concurs in part and dissents in part in a memorandum, as follows: I concur in the result that there should be a new trial. However, I dissent from various portions of the opinion and from the determination with respect to consolidation. The consolidation was proper. (See People v Green, 67 AD2d 866.) Further, it was possible, as a matter of fact, for the jury to determine that the fire marshals were actually within the scope of their designated duties inasmuch as initiation of the matter was in connection with their investigation of a fire in which this defendant was in some way involved. However, with respect to that question of fact, the matter should have been submitted to the jury. (See People v Cuvilje, 66 AD2d 761.)