I respectfully dissent. Defendant was convicted, upon his plea of guilty, of murder in the first degree (Penal Law § 125.27 [1] [a] [vii]). Defendant admitted during the plea colloquy that he fell asleep in his car parked alongside a road after consuming alcohol and smoking cocaine. When he awoke, he discovered that his car would not start, and he decided to wait for the owner of another car also parked alongside the road to return to his car, in order to steal the car. When the owner of that car emerged from the woods after hunting, defendant shot him three times and took the keys to his car and his wallet. Defendant left the scene in the victim’s car but later returned and replaced the battery in his car with the battery from the victim’s car. Defendant then bought beer with the victim’s money. As the majority notes, defendant agreed to plead guilty “because he recognized that he had committed a ‘horrible crime,’ he was aware of the strength of the prosecutor’s case, *127and he wanted to avoid causing additional suffering to his family and the victim’s family.”
The majority properly concludes “that a contention that a plea was statutorily invalid under the holding of [Matter of Hynes v Tomei, 92 NY2d 613 (1998), cert denied 527 US 1015 (1999)] requires preservation in order to be subject to automatic review by this Court,” citing People v Mower (97 NY2d 239, 245 [2002]). In my view, however, the contention of defendant that the withdrawal of the notice of intent to seek the death penalty was ineffective, thereby rendering his plea invalid pursuant to Hynes, does not warrant review of that contention by this Court as a matter of discretion in the interest of justice. Defendant “did not raise this alleged constitutional infirmity before he pleaded guilty or was sentenced by [County] Court” (Mower, 97 NY2d at 245), “when the court had an opportunity of effectively changing the same” (CPL 470.05 [2]). Indeed, defendant explicitly waived his right to appellate review of “any and all . . . constitutional grounds including, but not limited to[,] those set forth in the decision of [Hynes]” (see generally People v Howe, 56 NY2d 622, 624 [1982]; People v Stephens, 122 AD2d 606, 608 [1986], lv denied 68 NY2d 817 [1986]; People v Morris, 111 AD2d 414 [1985]), and the record establishes that defendant entered a knowing, voluntary and intelligent plea of guilty (cf. People v Bryant, 262 AD2d 791 [1999]). Accordingly, I would affirm the judgment of conviction.
It is hereby ordered that the judgment so appealed from be and the same hereby is reversed as a matter of discretion in the interest of justice and on the law, the plea is vacated and the matter is remitted to Monroe County Court for further proceedings on the indictment. [As amended by unpublished order entered Jan. 14, 2005.]