OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order reversed for the reasons stated in the dissenting memorandum by former Justice James D. Hopkins at the Appellate Division and the indictment dismissed (see People v Burwell, 53 NY2d 849).

*639 Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.