Opinion
Argued February 17, 1978
Decided June 15, 1978
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, MAX BLOOM, J.
Herbert S. Siegal for appellant.
Mario Merola, District Attorney (Leonard G. Kamlet and Billie Manning of counsel), for respondent.
Order affirmed on the memorandum at the Appellate Division ( 58 A.D.2d 747).
Concur: Chief Judge BREITEL and Judges JONES, WACHTLER, FUCHSBERG and COOKE. Judges JASEN and GABRIELLI concur in result only in the following concurring memorandum.
We concur in result only because we reject the agency defense, as is articulated and explained in the dissenting opinion by Judge GABRIELLI in People v Roche ( 45 N.Y.2d 78, decided herewith).
Order affirmed, etc.