OPINION OF THE COURT
Order reversed for reasons stated in the dissenting memorandum by former Justice James D. Hopkins and Justice Moses M. Weinstein at the Appellate Division (81 AD2d 893, 895-896) and case remitted to the Appellate Division, Second Department, for consideration of the facts (CPL 470.25, subd 2, par [d]; 470.40, subd 2, par [b]).
Concur: Chief Judge Cooke and Judges Jasen, Gabrielli and Jones. Judges Wachtler, Fuchsberg and Meyer dissent and vote to affirm for reasons stated in the memorandum of the Appellate Division (81 AD2d 893).