Opinion
Argued January 5, 1990
Decided February 8, 1990
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, Francis J. Vogt, J.
Marshall Nadan for appellant.
Michael Kavanagh, District Attorney (Joan Lamb of counsel), for respondent.
Order reversed and the indictment dismissed for the reasons stated in the dissenting memorandum by Presiding Justice A. Franklin Mahoney at the Appellate Division ( 147 A.D.2d 769, 773, 774).
Concur: Chief Judge WACHTLER and Judges SIMONS, KAYE, TITONE, HANCOCK, JR., and BELLACOSA. Taking no part: Judge ALEXANDER.