Opinion
Argued March 27, 1978
Decided April 27, 1978
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, JOSEPH P. SULLIVAN, J.
Norman A. Olch for appellant.
Mario Merola, District Attorney (Richard M. Joel and Alan D. Marrus of counsel), for respondent.
Order reversed, judgment of conviction vacated, and a new trial ordered on the dissenting opinion of Mr. Justice LOUIS J. CAPOZZOLI at the Appellate Division (55 A.D.2d, at pp 20-25). See, also, People v Buxton ( 44 N.Y.2d 33) involving a situation close to that in this case except that the circumstances here, as detailed in the dissenting opinion at the Appellate Division, are even stronger in dictating reversal.
Concur: Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE.