Motion granted to the extent of amending the remittitur of this court entered on October 23, 1980 [78 AD2d 779, 781] to recite the following: “Upon the appeal herein there were presented, and necessarily passed upon, questions under the Constitution of the United States, viz.: Appellant contended that his rights under the Fourteenth Amendment of the United States Constitution were violated. The Appellate Division held that there was no violation of appellant’s rights.” Concur — Fein, J. P., Sullivan and Lynch, JJ.; Lupiano, J., dissents.