PEOPLE v. CALDWELL

Judgment reversed and a new trial ordered in the following memorandum: Defense counsel sufficiently preserved for this court's review the point that defendant was entitled to an instruction to the jury that it could return a verdict against the defendant for possession of a narcotic drug if it did not believe that a sale had been proved beyond a reasonable doubt ( People v. Malave, 21 N.Y.2d 26).

Concur: Chief Judge FULD and Judges BURKE, BERGAN, KEATING and BREITEL. Judges SCILEPPI and JASEN dissent and vote to affirm.