Submitted by Darryll A. Buford, for Appellant.
Submitted by Oscar Garcia-Rivera, for Respondent.
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On review of submissions pursuant to section 500.4 of the Rules, order reversed and case remitted to the Appellate Division, First Department, for consideration of the facts pursuant to CPL 470.25(2)(d) and 470.40(2)(b) (see, People v Cona, 49 NY2d 26, 33-34). The Appellate Division erred by concluding that defendant's motion for a trial order of dismissal was sufficient to preserve the Ryan issue for appellate review (see, People v Gray, ___ NY2d ___ [decided 5-11-95]). Chief Judge Kaye a nd Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.
July 6, 1995