Order reversed on authority of People v Patterson ( 39 N.Y.2d 288) and the case remitted to the Appellate Division, Fourth Department, for review of the facts (CPL 470.40, subd 2, par [b]; 470.25, subd 2, par [d]). On other questions of law raised by defendant there was no prejudice, assuming error.
Concur: Chief Judge BREITEL and Judges JASEN, GABRIELLI and JONES. Judges WACHTLER, FUCHSBERG and COOKE concur on constraint of People v Patterson ( 39 N.Y.2d 288).