Opinion
Argued September 8, 1976
Decided September 14, 1976
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, EUGENE W. BERGIN, J.
Lawrence T. Kurlander, District Attorney (Michael Nelson of counsel), for appellant.
Peter L. Yellin, Public Defender (Andrew C. Fine of counsel), for respondent.
Order reversed on authority of People v Patterson ( 39 N.Y.2d 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.
Concur: Chief Judge BREITEL and Judges JASEN, GABRIELLI and JONES. Judges WACHTLER, FUCHSBERG and COOKE concur on constraint of People v Patterson ( 39 N.Y.2d 288).