Opinion
June 22, 1981
Appeal by defendant from a judgment of the County Court, Dutchess County (Rosenblatt, J.), rendered August 21, 1979, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and seventh degrees, upon a jury verdict, and imposing sentence. Judgment affirmed. The defendant failed to preserve for review the error claimed in the jury charge with respect to agency. We therefore find the alleged error to have been waived (see People v Darrisaw, 49 N.Y.2d 786; People v Benoit, 72 A.D.2d 648). We see no reason to consider the claim of error in the interest of justice. The defendant concedes the diligent efforts made by the People to locate the informer, whose disappearance was not attributable to the People. He has failed, however, to demonstrate that the missing informer, a longtime friend, would have provided material and relevant testimony tending to exculpate the defendant. As a result, his claim that dismissal of the indictment is required is without foundation (see People v Maneiro, 49 N.Y.2d 769; People v Santiago, 44 N.Y.2d 924; People v Jenkins, 41 N.Y.2d 307). Mollen, P.J., Hopkins, Titone and Weinstein, JJ., concur.