Motion to dismiss appeal granted, the appeal is dismissed and the matter is remitted to Supreme Court, Erie County, to vacate the conviction and dismiss the indictment either sua sponte or on application of either the District Attorney or counsel for defendant (see People v Matteson, 75 NY2d 745 [1989]). Present—Pigott, Jr., P.J., Hurlbutt, Scudder, Kehoe and Gorski, JJ.