
48 N.Y.2d 1009 (1980)
The People of the State of New York, Appellant,
v.
Clifford Griffith, Also Known as Clifford Griff and Carlton Griffith, Respondent.
Court of Appeals of the State of New York.
Argued December 14, 1979.
Decided January 10, 1980.
Robert M. Morgenthau, District Attorney (Brian Rosner, Robert M. Pitler and Barbara L. Petras of counsel), for appellant.
Laura Hoffberg and Joel A. Reiss for respondent.
Concur: Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER.
Order reversed for reasons stated in the dissenting opinion by Mr. Justice VINCENT A. LUPIANO at the Appellate Division (63 AD2d 138, 143-147) and the case remitted to the Appellate Division, First Department, for determination of the facts (CPL 470.25, subd 2, par [d]; 470.40, subd 2, par [b]).
