The People of the State of New York, Appellant, v. George Walker, Respondent

The People of the State of New York, Appellant, v George Walker, Respondent. [696 NYS2d 333] [MAJORITY] —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 AD2d 1007, 1008, lv denied 78 NY2d 1082; People v Beverly, 148 AD2d 922, 922-923, lv denied 74 NY2d 661). The evi- dence 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 NY2d 780, 783; see also, People v Sanchez, 243 AD2d 312, lv denied 91 NY2d 897). (Appeal from Order of Supreme Court, Onondaga County, Brunetti, J. — Dismiss Indictment.) Present— Green, J. P., Lawton, Pigott, Jr., Hurlbutt and Callahan, JJ.