Memorandum: Appeal unanimously dismissed and matter remitted to Cattaraugus County Court to vacate the *1726judgment of 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 — Scudder, EJ., Smith, Centra, Fahey and Peradotto, JJ.