Opinion
Argued January 13, 1978
Decided February 22, 1978
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, JOHN J. CLYNE, J.
Frank H. Penski for appellant.
Sol Greenberg, District Attorney (George H. Barber of counsel), for respondent.
Order reversed and the indictment dismissed on the dissenting opinions by Mr. Justice T. PAUL KANE and Mr. Justice J. CLARENCE HERLIHY at the Appellate Division (53 A.D.2d, at pp 385-386, 386-391).
Concur: Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE.