Opinion
March 1, 1985
Appeal from the Supreme Court, Erie County, Marshall, J.
Present — Dillon, P.J., Denman, Boomer, Green and O'Donnell, JJ.
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 A.D.2d 775, lv denied 52 N.Y.2d 835).