—Appeal dismissed as moot (see, People v Finkle, 262 AD2d 971 [decided herewith]).
All concur except Pigott, Jr., J., who votes to affirm. (Appeal from Order of Oneida County Court, Burke, J. — CPL art 440.) Present — Denman, P. J., Lawton, Hayes, Pigott, Jr., and Scudder, JJ.