OPINION OF THE COURT
Order affirmed for the reasons stated in the memorandum of the Appellate Division (99 AD2d 665). Absent timely protest we do not address defendant’s constitutional contention based on People v Ricco (56 NY2d 320).
Concur: Judges Jasen, Jones, Wachtler, Simons and Kaye. Judge Meyer dissents and votes to reverse in an opinion in which Chief Judge Cooke concurs.