Opinion
Decided April 4, 1996
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, Mario J. Rossetti, J.
Kevin M. Dillon, District Attorney of Erie County, Buffalo (Raymond C. Herman of counsel), for appellant.
Wayne Clarke, pro se, and Mary E. Good, Buffalo, and Linda S. Reynolds, for Wayne Clarke, respondent.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 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 N.Y.2d 792 [decided today]; People v Avery, 87 N.Y.2d 792 [decided today]).
Concur: Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK.