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 and case remitted to the Appellate Division, Fourth Department, for consideration of issues raised but not considered on the appeal to that court and consideration of the facts pursuant to CPL 470.25 (2) (d) and 470.40 (2) (b) (see, People v Goss, 87 NY2d 792 [decided today]; People v Avery, 87 NY2d 792 [decided today]).

Concur: Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick.