Opinion
March 11, 1996
Appeal from the Supreme Court, Queens County (Braun, J.).
Ordered that the order is reversed insofar as appealed from, on the law, the branch of the defendant's omnibus motion, pursuant to CPL 210.20 (1) (c) and 210.35 (5), which was to dismiss the first count of Indictment No. 3162/93, charging him with criminal sale of a controlled substance in the third degree, is denied, that count of the indictment is reinstated, and the matter is remitted to the Supreme Court, Queens County, for further proceedings.
Contrary to the Supreme Court's determination, the evidence adduced at the Grand Jury, which consisted solely of the testimony of the undercover officer, "did not so clearly support the [agency] defense as to require its submission" to the Grand Jury (People v Valles, 62 N.Y.2d 36, 41; see also, People v Thompson, 174 A.D.2d 1007; People v Beverly, 148 A.D.2d 922; cf., People v Jenkins, 157 A.D.2d 854). Accordingly, the Supreme Court erred in dismissing the first count of the indictment based on the People's failure to charge the agency defense, and that count of the indictment must be reinstated. Bracken, J.P., O'Brien, Sullivan and Krausman, JJ., concur.