Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered June 25, 1975, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence. Judgment reversed as to the sentence, on the law, and *582case remanded to Criminal Term for such resentencing as the court may, in its discretion, impose in accordance with the provisions of CPL 720.20. To the extent that CPL 720.10 conditions eligibility for youthful offender treatment entirely upon the highest count of the accusatory instrument, it is unconstitutional (see People v Carlos S, 40 NY2d 990, revg 51 AD2d 1, for the applicable reasons stated in the dissenting opn of Mr. Justice Rabin at the App Div). Accordingly, the case must be remanded for such resentencing as the Criminal Term may, in its discretion, impose. Hopkins, Acting P. J., Martuscello, Cohalan, Rabin and Titone, JJ., concur.