Opinion
December 29, 1978
Appeal, as limited by the People's brief, from so much of an order of the County Court, Westchester County, dated June 1, 1978, as granted defendant's motion to dismiss the first count of the indictment, accusing him of conspiracy in the first degree (Penal Law, § 105.15). Order reversed insofar as appealed from, on the law, count one of the indictment is reinstated, and the case is remitted to the County Court for further proceedings consistent herewith. The County Court dismissed the first count of the indictment, charging conspiracy in the first degree, on the sole ground that the only other participant in the alleged conspiracy besides the defendant was an undercover State trooper who concededly never intended to conspire or to commit the object crime. Since the facts of the instant case are in all material respects identical to those in People v. Schwimmer ( 66 A.D.2d 91), we reverse for the reasons stated therein. Martuscello, J.P., Hawkins and O'Connor, JJ., concur.
Titone, J., concurs in the result on constraint of the decision in People v. Schwimmer ( 66 A.D.2d 91).