Opinion
Argued May 5, 1978
Decided June 15, 1978
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, JOHN J. CLYNE, J.
Douglas P. Rutnick, Public Defender (Frank V. Bifera of counsel), for appellant.
Sol Greenberg, District Attorney (Melissa L. Campbell of counsel), for respondent.
Order reversed and indictment dismissed on the dissenting memorandum by Mr. Justice MICHAEL E. SWEENEY at the Appellate Division (58 A.D.2d, at p 674).
Concur: Chief Judge BREITEL and Judges GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE. Judge JASEN dissents and votes to affirm for the reasons stated in the memorandum by the majority at the Appellate Division ( 58 A.D.2d 673).