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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Angel CARRION, Defendant-Appellant.

Decided: September 25, 2008

TOM, J.P., MAZZARELLI, FRIEDMAN, WILLIAMS, MOSKOWITZ, JJ. Steven Banks, The Legal Aid Society, New York (Lawrence T. Hausman of counsel), and Dewey & LeBoeuf LLP, New York (George E. Mastoris of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Robert R. Sandusky III, of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Peter J. Benitez, J.), rendered May 21, 2003, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds, criminal sale of a controlled substance in the third degree, and criminal possession of a controlled substance in the third degree, and sentencing him to concurrent terms of 5 1/212 to 11 years, unanimously affirmed.

 After the People rested their case and defendant rested without presenting any evidence, defendant, who had not previously mentioned an agency defense, successfully requested a jury charge on that defense.   Accordingly, the court properly exercised its discretion regarding the order of proof (see CPL 260.30[7];  cf. People v. Whipple, 97 N.Y.2d 1, 734 N.Y.S.2d 549, 760 N.E.2d 337 [2001] ) when it permitted the People to reopen their case to introduce defendant's grand jury testimony, in which he denied taking part in any drug transaction and stated that no such transaction had occurred in his presence.   Defendant's grand jury testimony was clearly relevant, because it “negate[d] the existence of an agency defense insofar as he denied any participation in the drug transaction” (People v. Alexander, 172 A.D.2d 385, 386, 568 N.Y.S.2d 931 [1991], lv. denied 78 N.Y.2d 961, 574 N.Y.S.2d 940, 580 N.E.2d 412 [1991][citations omitted];  see also Prince, Richardson on Evidence § 8-201 [Farrell 11th ed.] [“As a general rule, any declaration or conduct of a party which is inconsistent with the party's position on trial may be given in evidence against the party as an admission.”] ).

Defendant's challenges to the prosecutor's summation are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ).

We have considered and rejected defendant's ineffective assistance of counsel claim (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).