¶1Defendant was convicted after a jury trial of criminal sale of a controlled substance in the third degree and ultimately sentenced to an indeterminate term of imprisonment with a minimum of one and one-half years and a maximum of four and one-half years.
¶2The principal trial issue as to this defendant was raised by the agency defense, a particularly persuasive defense here in light of the evidence presented by the People’s *59witnesses, indeed strong enough in my view to raise a serious question as to the legal sufficiency of the evidence.
¶3The evidence discloses a “buy and bust” operation in the vicinity of Madison Avenue and 130th Street. An undercover police officer, Officer McCann, parked his vehicle near 10 to 12 persons standing near the curb and'called out “if anyone had dimes.” The defendant approached the officer’s car and asked what he wanted. McCann replied that he wanted dimes. Meanwhile, the codefendant, Richard Blue, standing some feet behind the defendant, asked McCann if he wanted “Santa Claus,” a term unfamiliar to the officer. Officer McCann repeated to the defendant that he wanted “dimes.” The defendant asked him “how many dimes” and McCann replied that he wanted “two dimes.”
¶4The defendant called over his shoulder to Blue “duay, duay.” Blue removed a quantity of glassine envelopes from the base of a tree some 1.5 feet away. While Blue was securing the glassine envelopes, defendant told McCann “all right, give me the money, and you got to give me one dollar extra for me.” McCann gave Windley $20—one 10, one 5, and five 1-dollar bills—from the previously photo-stated money. Windley told McCann that he needed an additional dollar and McCann handed him an additional five-dollar bill from thé marked money and received from the defendant four one-dollar bills in return.
¶5Blue went over to the driver’s window where Windley was standing and handed two glassine envelopes containing heroin to McCann. Blue then cautioned McCann to leave the area promptly since the area was “hot.”
¶6McCann left immediately and contacted his backup team, one of whom first arrested Windley, then retrieved a brown bag containing heroin from behind the tree, and thereafter arrested Blue.
¶7Blue was in possession of $20 of the photostated money. Windley possessed only $1, and that dollar was one of the previously photostated bills.
¶8Although the legal significance of these events with regard to the agency defense is open to legitimate disagreement, the factual reality seems clear and free from doubt. *60The defendant, who had no money on his person at the time the undercover officer approached the group, attempted to receive, and in fact received, a $1 tip from the officer for assisting him in the purchase of the two “dime” bags of heroin.
¶9I agree that in the several decisions of the Court of Appeals defining the criteria to be considered by a jury in evaluating the agency defense, there is language which would sustain the legal sufficiency of the jury’s verdict of guilt here. (See People v Lam Lek Chong, 45 NY2d 64, 75; People v Argibay, 45 NY2d 45, 53-54.) Whether these expressions are applied meaningfully to the truly de minimus event developed in this trial seems to me at least open to doubt, but I am inclined to the view that the evidence presented a factual issue for the jury.
¶10However, in the trial court’s carefully detailed, for the most part unobjectionable, charge on agency, there appeared at several points overly broad phrases that could easily have been interpreted by the jury as requiring rejection of the agency defense in a factual situation which at best from the prosecution’s standpoint made that issue a very close jury question. Most significantly, the trial court instructed the jury in pertinent part that if they were persuaded beyond a reasonable doubt “that the defendant Calvin Windley was in any way associated with the seller of the drug … you must conclude that the defendant Calvin Windley did not act solely as an agent for the buyer”.
¶11This clearly overbroad statement had an obvious potential for prejudice since the codefendant Blue had testified that he had known Windley for many years. Although not objected to by defense counsel, this erroneous instruction justifies exercise of our jurisdiction to reverse “[a]s a matter of discretion in the interest of justice” (CPL 470.15, subd 3, par [c]) given the nature of the incident, the close factual question presented, and the prejudicial nature of the instruction.
¶12Accordingly, the judgment of the New York Supreme Court, New York County (Goodman, J., and jury), rendered November 2, 1979, nunc pro tunc June 22, 1978, *61convicting defendant of criminal sale of a controlled substance in the third degree and sentencing him to one and one-half years to four and one-half years, should be reversed, and the case remanded for further proceedings.