Motion to dismiss the appeal is granted, and the matter is remitted to Monroe County Court to vacate the judgment of conviction and dismiss the indictment either sua sponte or on application of either the District Attorney or counsel who appeared for appellant (see People v Matteson, 75 NY2d 745 [1989]). Present — Scudder, PJ., Hurlbutt, Gorski, Martoche and Smith, JJ.