
    The People of the State of New York, Appellant, v Clifford Griffith, Also Known as Clifford Griff and Carlton Griffith, Respondent.
    Argued December 14, 1979;
    decided January 10, 1980
    
      APPEARANCES OF COUNSEL
    
      Robert M. Morgenthau, District Attorney (Brian Rosner, Robert M. Pitler and Barbara L. Petras of counsel), for appellant.
    
      Laura Hoffberg and Joel A. Reiss for respondent.
   OPINION OF THE COURT

Order reversed for reasons stated in the dissenting opinion by Mr. Justice Vincent A. Lupiano at the Appellate Division (63 AD2d 138, 143-147) and the case remitted to the Appellate Division, First Department, for determination 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, Fuchsberg and Meyer.  