— Appeal unanimously dismissed as academic and matter remitted to Supreme Court, Erie County, to vacate the conviction and dismiss the indictment, sua sponte, or an application by the District Attorney or the attorney who appeared for defendant (see, People v Massaro, 78 AD2d 775, Iv denied 52 NY2d 835). (Appeal from judgment of Supreme Court, Erie County, Marshall, J. — robbery, third degree, and other charges.) Present — Dillon, P. J., Denman, Boomer, Green and O’Donnell, JJ.