OPINION OF THE COURT
Order reversed for the reasons stated in the dissenting opinion by Justice John J. Callahan at the Appellate Division (79 AD2d 203, 204) and case remitted to the Appellate Division, Fourth Department, for consideration of the facts (CPL 470.25, subd 2, par [d]; 470.40, subd 2, par [b]), this court having determined that the reversal by the Appellate Division was “upon the law and such facts which, but for the determination of law, would not have led to reversal” with respect to the issues reviewed (CPL 450.90, subd 2, par [a]).
Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.