Order reversed on authority of People v Patterson (39 NY2d 288) and the case remitted to the Appellate Division, Fourth Department, for review of the facts (CPL 470.40, subd 2, par [b]; 470.25, subd 2, par [d]). On other questions of law raised by defendant there was no prejudice, assuming error.

*836Concur: Chief Judge Breitel and Judges Jasen, Gabrielli and Jones. Judges Wachtler, Fuchsberg and Cooke concur on constraint of People v Patterson (39 NY2d 288).