In my view, CPL 720.10 (subd 2) violates the constitutionally-protected guarantees of due process and equal protection of the laws. The equal protection violation results from the arbitrary distinctions drawn by the statute between classes of individuals predicated on the seriousness of the crime charged in the indictment. The anomalous situation created by the statute is arbitrary and capricious and unsupported by any rational basis. As stated by Mr. Justice Greenblott in his dissent in People v Goodwin (49 AD2d 53, 56-57), a case involving the same issue now confronted by this court: "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 a felony, for example, is reasonable. I see no rational basis for an inequality of treatment amongst youths who have been *15convicted of the same offense merely because one of them had originally been charged with a higher crime.”
While statutory distinctions based on rational grounds may be drawn between classes of individuals, the distinctions made " 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike’ ” (Reed v Reed, 404 US 71, 76). At the very least, "some relevance to the purpose for which the classification is made” must be shown (Baxstrom v Herold, 383 US 107, 111; see, also, Dandridge v Williams, 397 US 471, 485; Rinaldi v Yeager, 384 US 305, 309). The statute under review fails to satisfy these tests; the classification it makes serves no "legitimate and nonillusory” State purpose (McGinnis v Royster, 410 US 263, 276). A far different situation is presented where the classification created in a statute defining eligibility for a program of postconviction treatment is grounded upon an articulable rationale. An exclusion from eligibility based upon the prior conviction of a felony is a good example (see CPL 720.10, subd 2, par [b]; People v Goodwin, supra, p 55; Marshall v United States, 414 US 417, 423-425).
In my view, the statute also fails to comport with the concept of due process of law. "Even though the concept of due process of law is not final and fixed * * * [its] limits are derived from considerations that are fused in the whole nature of our judicial process” (Rochin v California, 342 US 165, 170). By according a decisive role in the determination of which youths are eligible for youthful offender treatment to nothing more substantial than a written statement of unproven allegations (see CPL 1.20, subd 3), the statute offends reasonable notions of fairness. There is no reasonable justification or necessity for fixing the degree of the crime charged as the determinative factor. It is clear that an indictment does not survive a trial and verdict; it should play no part in determining the type of postconviction treatment accorded to youngsters otherwise eligible for youthful offender consideration (see People v Brian R, 78 Misc 2d 616, 619, affd 47 AD2d 599).
I do not agree with the majority’s position that a significant question of standing to challenge the constitutionality of the statute is presented by the Santiago and Drummond appeals. As I read the majority’s resolution of this issue, the acceptance by Santiago and Drummond of the benefits of their *16guilty pleas, knowingly and voluntarily made, precludes their constitutional challenges on the ground that the entry of the pleas waives all nonjurisdictional defects (see People v La Ruffa, 34 NY2d 242, 245). Although the proposition of law is certainly correct, I do not see how it applies in this situation. The constitutional infirmity in the statute is simply not akin to a waivable defect of procedure or to the knowing relinquishment of some constitutionally-guaranteed right, such as the right to trial by jury (NY Const, art I, § 2). What we are dealing with here is an issue of eligibility for a system of postconviction treatment rather than a question of the voluntary bargaining-away of rights enjoyed by an individual. In short, the right to be considered for youthful offender treatment, since it is a matter of statutory definition, is not a right which can be relinquished by a defendant as the quid pro quo of a plea bargain. Any otherwise eligible youth indicted for a class A felony and thereby deprived of consideration for youthful offender treatment has standing to challenge the statute (see People v Charles S., 79 Misc 2d 1058).
I would reverse the judgments as to Santiago and Drummond and would remand for compliance with the procedure set forth in CPL 720.20 regarding youthful offender determinations. I would affirm the judgment as to Jimeness.
In People v Santiago, Latham and Brennan, JJ., concur with Hopkins, J.; Rabin, Acting P. J., dissents and votes to reverse and remand the case to the Supreme Court, Westchester County, for compliance with the procedure set forth in CPL 720.20 regarding youthful offender determinations, in an opinion, in which Christ, J., concurs.
Judgment affirmed.
In People v Drummond, Latham and Brennan, JJ., concur with Hopkins, J.; Rabin, Acting P. J., dissents and votes to reverse and remand the case to the County Court, Suffolk County, for compliance with the procedure set forth in CPL 720.20 regarding youthful offender determinations, in an opinion, in which Christ, J., concurs.
Judgment affirmed.
In People v Jimeness, Latham and Brennan, JJ., concur with Hopkins, J.; Rabin, Acting P. J., dissents and votes to affirm, in an opinion, in which Christ, J., concurs.
*17Sentence reversed, on the law, and case remanded to the Criminal Term for resentence.