OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed for reasons stated in the dissenting memorandum of Justice John J. Callahan at the Appellate Division (112 AD2d 38, 39), judgment of conviction reinstated and case remitted to the Appellate Division, Fourth Department, for consideration of the facts.

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone. Taking no part: Judge Hancock, Jr.