
61 N.Y.2d 656 (1983)
The People of the State of New York, Appellant,
v.
Raffa Johnson, Respondent.
Court of Appeals of the State of New York.
Decided December 20, 1983.
Robert M. Morgenthau, District Attorney (Michael H. Warren of counsel), for appellant.
William E. Hellerstein and Jill F. Moscowitz for respondent.
Concur: Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, conviction reinstated and case remitted to the Appellate Division, First Department, so that it may consider any questions of fact and whether to exercise its discretion (see People v Creech, 60 N.Y.2d 895).
