Opinion
October 1, 1999
Appeal from Order of Supreme Court, Onondaga County, Brunetti, J. — Dismiss Indictment.
Order unanimously reversed on the law, motion denied, counts one and two of the indictment reinstated and matter remitted to Supreme Court for further proceedings on the indictment.
Memorandum:
Defendant was charged in an indictment with one count of criminal sale of a controlled substance in the third degree and one count each of criminal possession of a controlled substance in the third and seventh degrees. Supreme Court granted defendant's motion to dismiss the first two counts of the indictment on the ground that the Grand Jury proceedings were defective because the prosecutor failed to instruct the Grand Jury on the agency defense. We reverse. The evidence before the Grand Jury does not so clearly support the defense of agency as to require its submission (see, People v. Thompson, 174 A.D.2d 1007, 1008, lv denied 78 N.Y.2d 1082; People v. Beverly, 148 A.D.2d 922, 922-923, lv denied 74 N.Y.2d 661). The evidence presented establishes that defendant's behavior, "both before and during the sale, was consistent with that of a `steerer' in a drug sales operation" (People v. Herring, 83 N.Y.2d 780, 783; see also, People v. Sanchez, 243 A.D.2d 312, lv denied 91 N.Y.2d 897).
PRESENT: GREEN, J. P., LAWTON, PIGOTT, JR., HURLBUTT AND CALLAHAN, JJ.