Opinion
Argued September 22, 1970
Decided October 8, 1970
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, LARRY M. VETRANO, J.
Eugene Gold, District Attorney ( Raoul Lerow of counsel), for appellant.
George K. Decker for respondent.
Appeal dismissed in the following memorandum: The order of the Appellate Division incorporates by reference the opinion and decision slip of the court which states as part of the basis for decision that the procedure followed had deprived defendant of a fair trial. Accordingly, the reversal must be deemed an exercise of discretion by the Appellate Division and thus not based solely on the law although reversal "on the law" is recited in the order ( People v. Rainey, 27 N.Y.2d 748; People v. Campbell, 25 N.Y.2d 784; People v. Cooper, 25 N.Y.2d 928; People v. Rossi, 11 N.Y.2d 787, 788).