We are all agreed that the judgment of conviction in this case should be affirmed whether or not the plea of guilty constituted a waiver of the statutory previous prosecution bar of CPL 40.20. I see no reason for us now to add this statutory bar to the category of defenses which are not waived by a plea of guilty and may be urged on appeal as a ground for reversing the judgment of conviction entered on such a plea.
The majority’s most appealing point to the contrary I think is that a defendant presenting such an issue should not be required to try his case, although he acknowledges guilt, in order to preserve his right to appellate review.
(a) The point would be more persuasive if the defendant had pleaded guilty to the crime with which he was charged, and of which the jury would presumably have convicted him if he had gone to trial. But here, the defendant made a bargain plea. Indicted for a first degree narcotics offense, —an A-l felony—he pleaded guilty to a third degree offense and, as part of a carefully orchestrated bargain, got a sentence of 5 to 15 years, to run concurrently with his Federal sentence and to be served in a Federal institution. I see no reason why a defendant who makes such a bargain should be allowed to keep its benefits, eliminating the risks of more severe conviction or sentence, yet be relieved of his side of the bargain. “A plea of guilty to a lesser crime, negotiated in good faith with the help of counsel, should signal the end of the criminal action, not the beginning of an appellate process to evade the agreement thus made.” (People v Giuliano, 52 AD2d 240, 247.)
(b) We already have one anomalous statutory situation in which a non jurisdictional objection ■ survives the plea of guilty, i.e., suppression motions. (CPL 710.70, subd 2.) *179The Second Department has expressly stated that this practice is most undesirable. (People v Navarro, 61 AD2d 534.) The Tenth Annual Report of the Advisory Committee on Criminal Law and Procedure to the Judicial Conference and the Chief Administrator of the Courts (Jan., 1981, p 30) agrees with the Second Department stating:
“There are, however, many cases in which, as part of a negotiated plea, the defendant pleads guilty to a lesser charge or pleads guilty to a charge in one indictment to cover several other indictments. In these cases, the defendant has made a bargain and received a benefit for his agreement to conviction for a particular crime. Nevertheless, on appeal, he may continue to argue that he should be relieved of the bargain which he freely made. This increases the heavy burden on our appellate courts, and, if the conviction is ultimately reversed, the passage of time may have severely impaired the prosecution’s case.
“It is certainly not unfair to require a defendant as part of a plea bargain to recognize that the bargain is final and that previous rulings are out of the case.”
I see no reason to add another such anomaly.
(c) It is precisely to avoid the necessity of going through a trial in order to present to an appellate court even a statutory double jeopardy defense that article 78 proceedings have been permitted to be instituted in the Appellate Division in advance of trial in such situations.
(d) The argument that a defendant should not have to go through a trial in order to raise a particular defense in the appellate court applies equally to every defense that is waived by a plea of guilty.
(e) There are significant differences between the possible effects of statutory and constitutional limitations on a court’s powers. Thus in Menna v New York (423 US 61) the Supreme Court reversed the Court of Appeals decision in People v Menna (36 NY2d 930) that a plea of guilty waives the constitutional defense of double jeopardy. The Supreme Court gave as its reason: “Where the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviciton on that charge be set aside even if the *180conviction was entered pursuant to a counseled plea of guilty. Blackledge v. Perry, 417 U.S. 21, 30” (423 US, at p 62). In Blackledge v Perry (417 US 21, 30) cited by the Supreme Court in the Menna case, the Supreme Court indicated that the reason for the determination was that the particular Federal constitutional claim “went to the very power of the State to bring the defendant into court to answer the charge brought against him.” Whatever may be said of the effect of the Federal constitutional bar, it is not at all clear that the New York statutory bar goes to “the very power of the State to bring the defendant into court to answer the charge”; certainly New York’s highest court did not think so.
I do not see any need in the present case to decide that the procedure on the statutory double jeopardy defense should be assimilated to that on the constitutional defense.