(concurring). Although I agree with the majority’s conclusion, I am unable to agree that the release-dismissal transaction is not fundamentally different from the "common plea bargaining procedure used extensively in our criminal justice system”. Rather, as observed in Town of Newton v Rumery (480 US —, —, 107 S Ct 1187, 1196 [O’Connor, J., concurring]):
"release-dismissal agreements potentially threaten the integrity of the criminal process and preclude vindication of *329* * * civil rights. Permitting such releases may tempt public officials to bring frivolous criminal charges in order to deter meritorious civil complaints. The risk and expense of a criminal trial can easily intimidate even an innocent person whose civil and constitutional rights have been violated * * * The coercive power of criminal process may be twisted to serve the end of suppressing complaints against official abuse, to the detriment not only of the victim of such abuse, but also of society as a whole.
"In addition, the availability of the release option may tempt officials to ignore their public duty by dropping meritorious criminal prosecutions in order to avoid the risk, expense and publicity of a * * * [civil] suit * * * The public has an interest in seeing its laws faithfully executed. But, officials may give more weight to the private interest in seeing a civil claim settled than to the public interest in seeing the guilty convicted. By introducing extraneous considerations into the criminal process, the legitimacy of that process may be compromised. Release-dismissal bargains risk undermining faith in the fairness of those who administer the criminal process. Finally, the execution of release-dismissal agreements may result in having to determine whether the prosecutor violated any of his ethical obligations as a lawyer.”
With regard to the last observation, I note that the Code of Professional Responsibility DR 7-105 (A) provides that "[a] lawyer shall not * * * threaten to present criminal charges solely to obtain an advantage in a civil matter”. Accordingly, care should be exercised to assure that there is no appearance of a violation of the Code of Professional Responsibility by a prosecutor (see, MacDonald v Musick, 425 F2d 373, cert denied 400 US 852; see also, County Law § 700; Penal Law § 1.05; Town of Newton v Rumery, supra, at 1195, n 10 [majority opn], at 1203 [Stevens, J., dissenting]; People v Wilmot, 104 Misc 2d 412).
In light of the above, I w.ould emphasize that at the ensuing proceedings, Supreme Court should carefully scrutinize the agreement to ensure that consent was freely given. Moreover, defendant, as the party relying upon the release, has the burden of establishing that the agreement is neither involuntary nor the product of an abuse of the criminal process (see, Dziuma v Korvettes, 61 AD2d 677, 679, supra; see also, Town of Newton v Rumery, supra).
*330Main, Mikoll and Yesawich, Jr., JJ., concur with Harvey, J.; Kane, J. P., concurs in a separate memorandum.
Order reversed, on the law, without costs, and matter remitted to Supreme Court for further proceedings not inconsistent herewith.