
    The People of the State of New York, Appellant, v Harry Correa, Respondent.
    Argued April 27, 1979;
    decided May 31, 1979
    
      APPEARANCES OF COUNSEL
    
      Eugene Gold, District Attorney (Claire Friedman of counsel), for appellant.
    
      Barry W. Agulnick for respondent.
   OPINION OF THE COURT

Order reversed for reasons stated in the dissenting memorandum by Mr. Justice James D. Hopkins at the Appellate Division (56 AD2d 935; see, also, People v McLaurin, 43 NY2d 902; and People v Kinlock, 43 NY2d 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.  