*809OPINION OF THE COURT
Order reversed for reasons stated in the dissenting memorandum by Mr. Justice James D. Hopkins at the Appellate Division (56 AD2d 935; see, also, People v McLaurin, 43 NY2d 902; and People v Kinlock, 43 NY2d 832), noting that if consent had been refused such fact should not be taken into consideration in determining whether there was probable cause; and the case remitted to the Appellate Division, Second Department, for review of the facts (CPL 470.25, subd 2, par [d]; 470.40, subd 2, par [b]).
Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.