
87 N.Y.2d 948 (1996)
664 N.E.2d 498
641 N.Y.S.2d 587
The People of the State of New York, Appellant,
v.
John Merrill, Respondent.
Court of Appeals of the State of New York.
Argued January 11, 1996.
Decided February 15, 1996.
Howard R. Relin, District Attorney of Monroe County, Rochester (Wendy Evans Lehmann of counsel), for appellant.
Edward J. Nowak, Public Defender of Monroe County, Rochester (Drew R. DuBrin of counsel), for respondent.
Concur: Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK.
Order reversed and case remitted to the Appellate Division, Fourth Department, for consideration of the facts pursuant to CPL 470.25 (2) (d) and 470.40 (2) (b) for the reasons stated in the dissenting memorandum at the Appellate Division (212 AD2d 987, 988).
