¶1OPINION OF THE COURT
¶2On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), 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, 86 NY2d 10).
¶3Concur: Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick.