
    [664 NE2d 498, 641 NYS2d 587]
    The People of the State of New York, Appellant, v John Merrill, Respondent.
    Argued January 11,1996;
    decided February 15, 1996
    
      APPEARANCES OF COUNSEL
    
      Howard R. Relin, District Attorney of Monroe County, Rochester (Wendy Evans Lehmann of counsel), for appellant.
    
      Edward J. Nowak, Public Defender of Monroe County, Rochester (Drew R. DuBrin of counsel), for respondent.
   OPINION OF THE COURT

Order reversed and case remitted to the Appellate Division, Fourth Department, for consideration of the facts pursuant to CPL 470.25 (2) (d) and 470.40 (2) (b) for the reasons stated in the dissenting memorandum at the Appellate Division (212 AD2d 987, 988).

Concur: Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick.  