The People of the State of New York, Appellant, v. Stephen Speros, Respondent

(October 20,1992) The People of the State of New York, Appellant, v Stephen Speros, Respondent. [MAJORITY] — Order, Supreme Court, Bronx County (Harold Silverman, J.), entered on or about June 11, 1991, dismissing the indictment charging defendant with criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and unlawful possession of marijuana, on the ground that the People had failed to charge the Grand Jury on the affirmative defense of entrapment, unanimously affirmed. The People presented evidence to the Grand Jury that in an ordinary "buy and bust” operation, defendant sold an undercover police officer five vials of crack cocaine for $15. Defendant’s testimony before the Grand Jury was that the undercover officer had befriended him on the street; that when the undercover officer said he was unable to buy any drugs, defendant offered to share his; that the undercover officer volunteered that he had a crack pipe in his car that they could use, and gave defendant a small bag of marijuana; that defendant thereafter gave the undercover officer half of the vials he had purchased earlier and repeatedly refused the money the undercover officer offered; and that defendant accepted the money later only to buy beer for the two of them to share. This account of the "sale” sufficiently raised the elements of entrapment to warrant an instruction on entrapment to the Grand Jury, and the motion court correctly dismissed the indictment for the failure to give it (see, People v Fuller, 130 AD2d 840). Concur — Murphy, P. J., Rosenberger, Ross and Kassal, JJ.