Opinion
Decided July 6, 1995
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Irene Duffy, J.
Robert T. Johnson, District Attorney of Bronx County, Bronx (Darryll A. Buford of counsel), for appellant.
Oscar Garcia-Rivera, Brooklyn, for 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, First Department, for consideration of the facts pursuant to CPL 470.25 (2) (d) and 470.40 (2) (b) (see, People v Cona, 49 N.Y.2d 26, 33-34). The Appellate Division erred by concluding that defendant's motion for a trial order of dismissal was sufficient to preserve the Ryan issue for appellate review (see, People v Gray, 86 N.Y.2d 10).
Concur: Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK.