I dissent. In my opinion the Legislature cannot refuse to permit an otherwise eligible youth to be considered for those elements of youthful offender treatment which come into play only after conviction merely because he had been accused by indictment of a class A felony, without regard to the grade of offense of which the youth is ultimately found guilty. An analysis of the function and meaning of an indictment in the prosecution of a criminal case as well as the workings of the youthful offender program compels me to reach this conclusion.
*56Under New York law, an indictment is merely a written accusation by the Grand Jury charging the defendant with a crime and serves as the jurisdictional basis for a prosecution (CPL 1.20, subd 3; 200.10; 210.05). It does not and cannot survive the trial, and the penalties prescribed for particular offenses must depend upon the crime of which the defendant is convicted, not the offense with which he was originally charged. The purpose of the youthful offender procedure is the "avoidance of the stigma and practical consequences” attaching to a youth on his conviction of a crime (see Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL art 720, p 317). In furtherance of this goal, the Legislature must act reasonably.
Under the scheme of New York’s youthful offender program, the determination as to whether a youth is to be treated according to the prescribed method is made after conviction, provided the conviction has not been for a class A felony. As a further protection to the youth charged with a crime, conviction of which may be vacated in favor of a youthful offender adjudication, the statute provides for quasi-private procedures designed to limit publicity. Obviously, the decision to leave the proceedings open to the public, or conduct them in a more private manner, cannot be made after trial, and in this respect I agree that there is a rational basis for basing a determination as to the nature of the proceedings on the crime charged and for which the defendant will be tried.
On the other hand, the imposition of a penalty should bear no relationship to the crime charged where the youth is ultimately convicted of a lesser crime. The restriction contained in CPL 720.10 (subd 2, par [a]) cannot stand against the equal protection clause since it denies eligibility for the sentencing benefits of the youthful offender program to those youths who are charged with class A felonies but who are ultimately convicted of lesser felonies, while granting the same benefits to youths convicted of lesser felonies but who have not been indicted for class A felonies. It cannot be denied that a capricious result is obtained where a youth indicted for a class B felony, and convicted of that crime receives youthful offender consideration, while another youth originally indicted for a class A felony count is convicted of a class E felony, and is then refused youthful offender consideration. The classification denying such procedures to youths previously convicted of *57a felony, for example, is reasonable. I see no rational basis for an inequality of treatment amongst youths who have been convicted of the same offense merely because one of them had originally been charged with a higher crime.
The majority is of the view that similar statutes making like distinctions have previously withstood constitutional attack when challenged on similar grounds. I respectfully suggest that this position is erroneous. The cases cited by the majority dealt with statutes under which jurisdiction in one court or another over youth crimes and trial procedures were determined by the nature of the crime charged. These statutes were upheld upon a finding that the distinctions had a rational basis—just as. the distinction between public and private procedures created by our statute. In the case before us, however, the constitutional attack is aimed at a statute which would distinguish between postconviction treatment to be accorded individuals convicted of similar crimes, on the basis of a crime charged, even though the indictment can have no force or effect subsequent to a verdict, and the crimes charged in the indictment have in fact resulted in acquittal thereon. Thus, while the Legislature may properly deny eligibility for youthful offender treatment to those convicted of class A felonies, there is no rational basis for providing for different postconviction treatment to those merely indicted but not convicted of such crimes. This argument has support, I feel, in the fact that, under the provisions of the former Code of Criminal Procedure (Code Crim Pro, § 913-e), the determination to grant or refuse youthful offender treatment was made at a point near the commencement of the criminal action and before the entry of a plea or a verdict of guilty, while under the present statute (CPL 720.20), the determination to grant or refuse youthful offender treatment is not made until a point virtually at the end of the action, namely, after conviction for the crime but before sentence. This revision in the law was made to avoid the cumbersome process of trying to determine whether youthful offender status should be accorded an accused youth prior to the time it would have actually been determined what, if any, offense the accused youth had in fact committed, and what penalty should be imposed.
For the above reasons, it is my opinion that CPL 720.10 (subd 2) is unconstitutional under the equal protection clauses of both the Federal and State Constitutions insofar as it *58denies eligibility for the postconviction aspects of youthful offender treatment to a youth who is convicted of a felony below a class A felony, merely by virtue of his indictment for a class A felony. Of course, the decision to actually grant or deny youthful offender status must remain within the sound discretion of the trial court. It is only the denial of eligibility therefor on an improper basis which I find objectionable.
Herlihy, P. J., Larkin and Reynolds, JJ., concur with Main, J.; Greenblott, J., dissents and votes to reverse in an opinion. Judgment affirmed.