Opinion
Argued April 27, 1979
Decided May 31, 1979
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, MAXINE DUBERSTEIN, J.
Eugene Gold, District Attorney (Claire Friedman of counsel), for appellant.
Barry W. Agulnick for respondent.
Order reversed for reasons stated in the dissenting memorandum by Mr. Justice JAMES D. HOPKINS at the Appellate Division ( 56 A.D.2d 935; see, also, People v McLaurin, 43 N.Y.2d 902; and People v Kinlock, 43 N.Y.2d 832), noting that if consent had been refused such fact should not be taken into consideration in determining whether there was probable cause; and the case remitted to the Appellate Division, Second Department, for review of the facts (CPL 470.25, subd 2, par [d]; 470.40, subd 2, par [b]).
Concur: Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER and FUCHSBERG.