OPINION OF THE COURT

Order reversed and indictment dismissed on the dissenting memorandum by Mr. Justice Michael E. Sweeney at the Appellate Division (58 AD2d, at p 674).

*943Concur: Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke. Judge Jasen dissents and votes to affirm for the reasons stated in the memorandum by the majority at the Appellate Division (58 AD2d 673).