The People of the State of New York, Respondent, v. Stephen J. Riale, Appellant

—Judgment unanimously reversed as a matter of discretion in the interest of justice and new trial granted. Memorandum: County Court erred in denying defendant’s Sandoval motion with respect to a prior forgery conviction on the ground that defendant “waived” or “forfeited” that motion by asserting an agency defense. The record establishes that defendant never asserted an agency defense. In any event, that defense has no application to the crimes of criminal possession of a forged instrument in the second degree (Penal Law § 170.25), grand larceny in the third degree (Penal Law § 155.35) and grand larceny in the fourth degree (Penal Law § 155.30 [1]), which are charged herein (see, People v Andujas, 79 NY2d 113, 117). (Appeal from Judgment of Onondaga County Court, Hafner, Jr., J. — Criminal Possession Forged Instrument, 2nd Degree.) Present — Pigott, Jr., P. J., Pine, Wisner, Scudder and Lawton, JJ.