*637Contrary 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 NY2d 36, 41; see also, People v Thompson, 174 AD2d 1007; People v Beverly, 148 AD2d 922; cf., People v Jenkins, 157 AD2d 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.