In this paper, we show the orbital instability of the solitary waves QΩe iΩt of the 1d NLS with an attractive delta potential (γ > 0)where Ω = Ω(p, γ) > γ 2 4 is the critical oscillation number and determined byThe classical convex method and Grillakis-Shatah-Strauss's stability approach in [2,10] don't work in this degenerate case, and the argument here is motivated by those in [5,15,16,20,21].The main ingredients are to construct the unstable second order approximation near the solitary wave QΩe iΩt on the level set M(QΩ) accoding to the degenerate structure of the Hamiltonian and to construct the refined Virial identity to show the orbital instability of the solitary waves QΩe iΩt in the energy space. Our result is the complement of the results in [8] in the degenerate case.