I think the court should not have set aside, over the defendant’s objection, the defendant’s earlier plea of guilty to the class D felony.
It is true that the statute forbade the court to accept any plea less than a class A felony for the crime committed after September 1, 1973. But the Supreme Court sitting in New York County obviously had jurisdiction to dispose of this indictment returned by the Grand Jury in the County of New York for crimes alleged to have been committed in the County of New York. The error in accepting the plea in violation of the statute was merely an error of law which did not deprive the Supreme Court of jurisdiction nor render the plea void.
Error that results in a conviction, whether by plea of guilty *289or verdict, is unlike other errors that the court can correct over the defendant’s objection. This court has recently reaffirmed the rule that "the court, in the absence of fraud (of which there is no allegation in the record) has no inherent power to vacate a plea without defendant’s consent.” (Matter of Fernandez v Silbowitz, 59 AD2d 837.) There is an "adjudicative element inherent in accepting a plea of guilty”. (Santobello v New York, 404 US 257, 262.) The Supreme Court has declared that a "plea of guilty is more than a confession * * * it is itself a conviction”. (Boykin v Alabama, 395 US 238, 242.) And so our statute declares (CPL 1.20, subd 13).
Such a plea forms a basis for a defense of previous prosecution (CPL 40.30, subd 1, par [a]; but cf. CPL 1.20, subd 16, par [c]), which is the New York formulation of the double jeopardy principle. (See Denzer, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL art 40.) It is true that the statute goes on to say that the defense of previous prosecution is inapplicable if the relevant proceedings, including the plea of guilty, are subsequently nullified by a court order which restores the action to its prepleading status (CPL 40.30, subd 3). But this does not answer the question as to when the court may so restore the action. That question must be answered in the light of double jeopardy principles.
The statutory provision for change of plea after a plea of guilty is only that the court "may permit a defendant who has entered a plea of guilty to the entire indictment or to part of the indictment to withdraw such plea” (CPL 220.60, subd 3), not that the court may set aside the plea over the defendant’s objection.
In the closely analogous area of postjudgment motions, I note that while the People (CPL 440.40) as well as the defendant (CPL 440.20) may move to set aside a sentence as invalid, only the defendant may move to vacate the judgment (CPL 440.10). The conviction on plea of guilty is part of the judgment but not of the sentence (CPL 1.20, subds 13, 14 and 15).
It follows that the Supreme Court erred in vacating the plea of guilty to the class D felony to cover the entire indictment, and that the plea should be reinstated.
After the court set aside the plea, the defendant brought a proceeding under article 78 in the nature of prohibition to prevent prosecution. This court denied the application and dismissed the petition without opinion. (Matter of Bartley v *290Sutton, 46 AD2d 843.) In opposition to the proceeding, the District Attorney urged not only that the vacatur of the plea was valid but also that prohibition was not the proper remedy. The denial of the prohibition is not an adjudication as to the validity of the plea for the purposes of this appeal from the judgment. (See People v Abbamonte, 43 NY2d 74, 80, n 1.)
In my view, the judgment of the Supreme Court, rendered May 28, 1975, after jury trial and verdict, should be reversed, and defendant’s prior plea of guilty to the crime of criminal possesssion of a dangerous drug, in the fourth degree, a class D felony, to cover the entire indictment, should be reinstated, and the case remanded to the Supreme Court for sentence on said plea.
Birns, J., concurs with Lupiano, J. P.; Evans, J., concurs in an opinion; Silverman, J., dissents in an opinion.
Judgment, Supreme Court, New York County, rendered on May 28, 1975, affirmed.