(concurring). Defendant pleaded guilty to attempted robbery in the second degree, a class D violent felony offense, under the first count of the indictment charging robbery in the first degree (uses or threatens the immediate use of a dangerous instrument, to wit, a knife), a class B felony. The second count of the indictment charged defendant with robbery in the second degree (displaying what appeared to be a pistol), a class C felony which is also defined as an “[ajrmed felony” (see CPL 1.20, subd 41). Pursuant to subdivision 5 of section 70.02 of the Penal Law, the Legislature has provided that where a defendant, confronted by an indictment charging an “armed felony,” specifically pleads guilty to a class D violent felony in satisfaction of the indictment, pursuant to CPL 220.10 or 220.30, the court must impose an indeterminate sentence of imprisonment pursuant to section 70.00 of the Penal Law. However, the court is permitted to “impose a sentence other than an indeterminate sentence of imprisonment, or a definite sentence of imprisonment for a period of *531no less that one year, if it finds that one or more of the following factors exist: (i) mitigating circumstances that bear directly upon the manner in which the crime was committed; or (ii) where the defendant was not the sole participant in the crime, the defendant’s participation was relatively minor although not so minor as to constitute a defense to the prosecution; or (iii) possible deficiencies in proof of the defendant’s commission of an armed felony” (Penal Law, § 70.02, subd 5, par [b]). The statute further provides that both “[t]he defendant and the district attorney shall have an opportunity to present relevant information to assist the court in making a determination pursuant to paragraph (b)”. (Penal Law, § 70.02, subd 5, par [c].) I join our dissenting brother in the view that the constitutional issue presented on this appeal respecting the above statute cannot be avoided. However, I find the statute to be constitutional. The facts and legal issues bearing on the question of constitutionality are ably set forth in the dissent and are not reiterated herein. Critical to the rationale of the dissent is its observation that “[sjince subdivision 5 of section 70.02 of the Penal Law precludes the imposition of a more favorable sentence which would otherwise be available, its effect is to impose increased punishment on the basis of an act charged, but unproven. In this respect subdivision 5 of section 70.02 is * * * fundamentally unfair and violative of due process” (emphasis supplied). However, the act charged, but unproven, has been rendered so by virtue of the permission granted the defendant to plead guilty to a lesser charge and thereby to avoid a trial on the act(s) charged. The dissent’s observation would obtain relevance if the defendant had a right to plead guilty to a lesser crime. No such right exists. “At the outset it is noted that defendant had no absolute right to have [his] plea of guilt accepted (Lynch v Overholser, 369 US 705; Santobello v New York, 404 US 257)” (People v Bartley, 60 AD2d 283, 285). CPL 220.10 provides, in subdivision 1, that “[t]he defendant may as a matter of right enter a plea of ‘not guilty’ to the indictment’ and in subdivision 2, that “the.defendant may as a matter of right enter a plea of ‘guilty’ to the entire indictment’ except as provided in subdivision 5 (emphasis supplied). It has aptly been observed that “permission to enter a lesser plea is a matter of grace” and that, accordingly, “reasonable conditions may be attached thereto” (People v Esajerre, 35 NY2d 463, 467; see People v Elliby, 80 AD2d 875, application for lv to app den 53 NY2d 942). There are two avenues by which a defendant stands convicted of a crime: (1) he may be found guilty by the finder of facts after a jury or nonjury trial upon a plea of not guilty, or (2) he may plead guilty to the crime(s) of which he stands convicted. The defendant exercises full control over his destiny in the second course, in that he chooses to plead guilty to the entire indictment and has a right to do so. If he chooses to plead guilty, not to the entire indictment, but to a lesser crime or crimes, then the matter is one of grace in which permission must be obtained. Here, before the defendant could enter a plea of guilty to a lesser crime, he had to obtain the permission of the court and the consent of the People (CPL 220.10, subd 4). While the defendant initially has full control, in that he may plead “not guilty” or “guilty” to the entire indictment, once he endeavors to plead guilty to one or more, but not all of the offenses charged or of a lesser included offense with respect to any or all of the offenses charged, or of any combination of offenses charged and lesser offenses included within other offenses charged, his control is less than full, in that he must now obtain the permission of the court and the consent of the People. As this route does not permit of a possible conviction of all the offenses as charged in the indictment, that is, the defendant is not at risk of being convicted of the offenses as charged in the indictment, whether by way of trial and a finding of guilty, or by way of pleading guilty, the legislative branch has determined to circumscribe the privilege thus afforded defendant *532in escaping that risk. Hechtman’s Practice Commentary to section 70.02 of the Penal Law (McKinney’s Cons Laws of NY, Book 39,1981-1982 Pocket Part, pp 119-120) states, in pertinent part, as follows: “During the past few years there has been a steadily mounting concern among the public and its officials over the constantly increasing incidence of violent stranger-to-stranger crime * * * [A] wide-ranging bill was enacted (L.1978, c.481) that attempts to address violent crime committed not only by adults but also by juveniles. Section 70.02 is probably the key section of the entire violent felony offender legislation. Here the ‘violent felony offenses’ are defined (subdivision 1) and the sentences upon conviction thereof set forth * * * Subdivision 5 introduces a new term, ‘armed felony,’ which is defined in Criminal Procedure Law § 1.20(41) as any violent felony offense defined in this section (§ 70.02[1]) which includes as an element thereof the possession, being armed with or causing serious physical injury by means of a loaded operable gun or displaying what appears to be a firearm. The consequence of being charged with an armed felony is that rigid plea bargaining restrictions are imposed * * * A charge of armed felony has, as evidenced by subdivision 5 of this section, further implications upon the sentence when a plea of guilty to a class D violent felony is predicated on [i.e., ‘in satisfaction of an indictment’ containing] an armed felony charge” (emphasis supplied). Defendant in pleading guilty to attempted robbery in the second degree under the first count of the indictment in satisfaction of such indictment which contained an armed felony charge, was fully informed of the sentencing restrictions placed upon the plea bargaining process by the Legislature and freely chose to so plead. It was defendant’s choice, his option, to so plead. The dissent perspicaciously notes that “[i]n enacting subdivision 5 of section 70.02 of the Penal Law, the Legislature chose to limit plea bargaining in instances where a defendant is charged with an armed felony by restricting the sentencing options available when such a defendant pleads guilty to a class D violent felony.” This is indeed what subdivision 5 does — no more, no less. We are unanimous in the view that the Legislature has the power and could choose to disallow plea bargaining altogether in those instances where the indictment charges an armed felony offense. A plea bargain is, as the term implies, a bargain as to a plea of guilty given by the defendant in consideration of more lenient treatment by the prosecutor and the court. It is the process by which a conviction may be obtained on consent of the defendant. It is not comprised of the conviction itself, which is the goal, but not the predicate for the guilty plea. Indeed, a defendant may plead guilty without admitting the facts of the crime to which he offers to plea (see North Carolina v Alford, 400 US 25; People v Serrano, 15 NY2d 304; Matter of Cumberland Pharmacy v Blum, 69 AD2d 903), he may plead guilty to a “hypothetical crime” based upon no objective facts (see People v Francis, 38 NY2d 150; People v Griffin, 7 NY2d 511), or to a nonexistent crime (see People v Foster, 19 NY2d 150; People v Francis, supra). However, a defendant may not enter into a plea bargain designed to vitiate “th[e] legal scheme of punishment” embodied in a statute (People v Lopez, 28 NY2d 148,152). Here the plea bargain was designed not to vitiate, but to honor the legal scheme of punishment delineated in subdivision 5 of section 70.02 of the Penal Law. The dissent opines that this statute with its sentencing restrictions regarding those who plea bargain by pleading guilty to a class D violent felony offense in satisfaction of an indictment charging an armed felony, would pass constitutional muster if the restrictions were based not upon the crime(s) charged, but upon the crime(s) of which defendant stands convicted. This, in my view, is placing the cart before the horse. The plea bargaining process is limned against the crimes of which defendant stands accused, and it is these crimes which impinge upon the bargaining position of *533the parties, the defendant on the one side and the People on the other. It is noted at this point that the Second Department in People v Caver (74 AD2d 852, 852-853) declared: “We have reviewed defendant’s contention that section 70.02 of the Penal Law violates the Constitutions of New York and the United States in that it imposes cruel and unusual punishment and abrogates the separation of legislative and judicial powers, and find this contention to be without merit (see People v Broadie, 37 NY2d 100, cert den 423 US 950; People v Eason, 40 NY2d 297).” Subdivision 5 of section 70.02 of the Penal Law has. a rational basis. It specifically relates to an indictment charging the defendant with an armed felony. The only method of prosecuting a criminal offense in a superior court is by indictment returned by the Grand Jury, unless the defendant waives the indictment and consents to be prosecuted on an information filed by the District Attorney whose consent is required to effectuate such waiver (CPL 195.10, 210.05). The evidence before the Grand Jury must he sufficient to “provide * * * reasonable cause to believe that such person committed such offense” before such charge is warranted (CPL 190.65, subd 1, par [b]). If the evidence before the Grand Jury is not legally sufficient, or the Grand Jury is not satisfied that there is reasonable cause to believe that such person committed such crime or other offense, the charge must be dismissed (CPL 190.75). After arraignment upon an indictment, the defendant may move to dismiss the indictment or any count thereof on the ground that the evidence before the Grand Jury was not legally sufficient to establish the offense charged or any lesser included offense (CPL 210.20, subd 1, par [b]; 210.30). Based upon the fact that a neutral body, the Grand Jury, has determined that the evidence before it is sufficient to provide “reasonable cause to believe that such person committed such offense,” in this instance, that defendant committed an armed felony, it is not irrational for the Legislature to differentiate in respect of allowable sentencing alternatives between such a defendant and one who has not been indicted for so grave a crime where the privilege of “pleading down” operates. Instead of prohibiting plea bargaining, the Legislature voted to permit a defendant thus charged to “plead down” to a class D violent felony with the prosecutor’s consent. However, the Legislature was clearly concerned that even a restriction on the extent to which an accused confronted by an armed felony charge could “plead down” to a lesser crime would not necessarily prevent overly lenient sentences from being given to persons accorded the benefit of such pleas. To avert as far as practicable overly lenient sentences, the Legislature reasonably limited the sentencing options available to the court where a defendant pleads guilty to a class D violent felony after being charged with an armed felony. If it is assumed that the Legislature could not permissibly restrict the range of sentencing alternatives in this situation, then the Legislature might well opt not to allow plea bargains at all respecting defendants charged in an indictment with an armed felony. Such a course would be detrimental, not only to society’s interest, but also to the defendant’s interest and the interests of other defendants similarly placed. There is no valid reason why the judicial branch of government should confront the legislative body with a “Hobson’s choice” of this nature. In People v Drummond (40 NY2d 990), the Court of Appeals declared CPL 720.10 (subd 2), insofar as it provided that a person between the ages of 16 and 19 is eligible for youthful offender treatment “unless he * * * is indicted for a class A felony,” unconstitutional in that it absolutely conditioned such eligibility on the highest count of the indictment. In so doing, the court relied on the dissenting opinion of Justice Rabin at the Appellate Division who found such classification to serve no legitimate and nonillusory State purpose (51 AD2d 1,14-16). However, the classification providing that persons between the ages of 16 and 19 are eligible *534for youthful offender treatment unless they had previously been convicted of a felony was found to have a reasonable basis. There are two critical distinctions between the instant statute (Penal Law, § 70.02, subd 5) and the statute found unconstitutional in Drummond, to wit, (1) the instant statute is concerned solely with plea bargaining, i.e., where a defendant charged with an armed felony “pleads down” to a class D violent felony, and (2) the instant statute contains an escape hatch in paragraphs (b) and (c). Eligibility for sentencing alternatives in the statute under review in Drummond depended solely on the highest count in the indictment and the defendant had no control, the statute being absolute in its application. It made no difference, therefore, whether the defendant pleaded guilty or was found guilty — if the indictment charged him with a class A felony, he was ineligible for youthful offender treatment. Here, the subject statute is not geared solely to the highest count in the indictment, i.e., is not geared solely to the count charging an armed felony, but operates on an additional set of factors, to wit, the defendant’s choosing to “plead down” to a plea of guilty to a class D violent felony. In itself, this is a vital distinction. The statute in Drummond did not concern itself with plea bargaining; the instant statute does. The “escape hatch” provisions of subdivision 5 of section 70.02 of the Penal Law state, in pertinent párt: “(b) In any case * * * the court may impose a sentence other than an indeterminate sentence of imprisonment, or a definite sentence of imprisonment for a period of no less than one year, if it finds that one or more of the following factors exist: (i) mitigating circumstances that bear directly upon the manner in which the crime was committed; or (ii) where the defendant was not the sole participant in the crime, the defendant’s participation was relatively minor although not so minor as to constitute a defense to the prosecution; or (iii) possible deficiencies in proof of the defendant’s commission of an armed felony, (c) The defendant and the district attorney shall have an opportunity to present relevant information to assist the court in making a determination pursuant to paragraph (b) hereof, and the court may, in its discretion, conduct a hearing with respect to any issue bearing upon such determination.” It is amply noted in Williams v New York (337 US 241, 247-251): “Undoubtedly the New York statutes emphasize a prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime * * * Modern changes in the treatment óf offenders make it more necessary now than a century ago for observance of the distinctions in the evidential procedure in the trial and sentencing processes * * * The due process clause should not be treated as a device for freezing the evidential procedure of sentencing in the mold of trial procedure. So to treat the due process clause would hinder if not preclude all courts — state and federal — from making progressive efforts to improve the administration of criminal justice.” The holding in Specht v Patterson (386 US 605) does not detract from the applicability of the Williams v New York rationale to the circumstances herein. In Specht, the United States Supreme Court adhered to Williams v New York (supra), but viewed it as not extending to the radically different situation presented in Specht (386 US, at p 608). Specht was convicted for indecent liberties under one Colorado statute that carries a maximum sentence of 10 years. However, the trial court did not sentence him under such statute, but, instead, sentenced him under the Colorado Sex Offenders Act which carries an indeterminate term of from one day to life. The Sex Offenders Act operates where the court “ ‘is of the opinion that any * * * person [convicted of specified sex offenses], if at large, constitutes a threat of bodily harm to members of the public, or is an habitual offender and mentally ill.’ § 1” (386 US, at p 607). The United States Supreme Court duly noted that the Sex Offenders Act under which defendant was not convicted makes one conviction of specified sex offense(s) “the basis for commencing another pro*535ceeding under [such] Act to determine whether a person constitutes a threat of bodily harm to the public, or is an habitual offender and mentally ill. That is a new finding of fact * * * that was not an ingredient of the offense charged” (386 US, at p 608; emphasis supplied). Accordingly, it was held in Specht that the invocation of the Sex Offenders Act entailed the making of a new charge leading to criminal punishment which requires under the due process clause that defendant be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right of cross-examination and to offer evidence of his own, and that there be findings adequate to make meaningful any appeal that is allowed. In our case, defendant is not confronted with a new charge having enhanced punishment, but is confronted with a plea bargain under a statute which imposes certain sentencing strictures on the sentencing court respecting the class D violent felony offense to which defendant pleaded guilty, concerning which strictures defendant was fully aware in voluntarily choosing to so plead, and which strictures are not absolute, but may be avoided under the “escape hatch” provisions. Simply stated, the statute (Penal Law, § 70.02, subd 5) does not enhance punishment for the crime to which defendant pleaded guilty; it merely prescribes that punishment having due regard for the fact that defendant was afforded the privilege of “pleading down” to a class D violent felony. Section 70.02 (subd 5, pars [b], [c]) of the Penal Law do not enhance the punishment prescribed by subdivision (a) thereof, they permit a lessening of that punishment. Under these circumstances, the holding of Williams v New York (supra) is fully applicable and the due process clause is not violated by subdivision 5 of section 70.02 of the Penal Law. It is well recognized that in passing sentence, “a judge may appropriately conduct an inquiry broad in' scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come” (United States v Grayson, 438 US 41, 50; see, also, Roberts v United States, 445 US 552, 556). Indeed, relevant to the broad inquiry that may be conducted by the sentencing court, it was specifically recognized that the sentencing Judge may take “into consideration facts directly related to the crimes with which the defendant was charged and to the crimes of which he was convicted, as revealed in the probation report” and is not frustrated in this endeavor “merely because the defendant, in pleading guilty to some counts of the indictment did not plead guilty to other counts” (People v Smith, 24 AD2d 760, 761). Subdivision 5 of section 70.02 of the Penal Law involves no mandatory presumption and does not purport to allocate either a burden of going forward or a burden of persuasion; it merely calls for individualized determinations within the legislative guidelines. In sum, subdivision 5 of section 70.02 of the Penal Law represents a rational attempt by the Legislature to accommodate the twin goals of encouraging bargained-for pleas of guilty to lesser offenses and, at the same time, discouraging overly lenient sentences for persons who are charged in an indictment with armed felonies. The statute permits the sentencing court to impose, under certain guidelines, upon a defendant charged in the indictment with an armed felony, but who obtains the privilege of pleading guilty to a class D violent felony, any sentence that it could have imposed on an individual who stands convicted of a class D violent felony and was not indicted for an armed felony. Paragraphs (b) and (c), which set forth the guidelines for the. imposition of a lesser sentence, do not constitute a new charge or equivalent separate criminal proceeding. Subdivision 5 of section 70.02 of the Penal Law does not violate due process of law. The judgment, convicting defendant of attempted robbery in the second degree and sentencing him to an indeterminate term of imprisonment of one to three years should be affirmed.