(dissenting). I respectfully dissent. The plea agreement which was entered into here, to which defendant, the prosecution and County Court were all parties, was a reasonable and fair resolution of the pending charges. Defendant did not have an extensive prior record, and the crime had its genesis in his drug addiction, which, at the time of the criminal proceedings, he was making genuine efforts to overcome. The prosecutor could, therefore, reasonably conclude that the interest of justice would be served by a disposition which would enable defendant to avoid incarceration by making restitution. The prior felony conviction in the same court stood in the way of that disposition (see, Penal Law § 70.06 [2]). Hence, the agreement was made whereby the prior conviction would be vacated, on motion, the guilty plea to the prior felony withdrawn and a plea to a misdemeanor substituted.
*346The majority holds, nevertheless, that the stipulation was void because it was beyond the power of the prosecutor to agree to a vacatur of the prior felony conviction and that this vitiated defendant’s guilty plea pursuant to the stipulation. The majority cites no express statutory prohibition against the prosecutor’s agreement to consent to the revocation of the conviction, relying entirely on the fact that such a procedure does not fall within the ambit of the grounds for vacatur under CPL article 440. In my view, however, the absence of any express statutory authority for the District Attorney to move for or consent to the vacatur of a conviction over which he has prosecutorial jurisdiction is not conclusive. To the contrary, such authority falls within the District Attorney’s inherent power, unless expressly prohibited by statute.
Historically, as the courts have repeatedly recognized, a prosecuting officer has virtually unfettered discretion in deciding whether, whom and how to prosecute, and limitations on that power are not to be presumed by implication. "The responsibility is upon [the District Attorney] to conduct all prosecutions for crimes triable in his county * * * And for that purpose it would seem that unless the performance of that duty is restricted by some other statute it was * * * within his power to do that which was essential to such prosecution; and that is a matter necessarily to a great extent dependent upon his judgment” (People ex rel. Gardenier v Board of Supervisors, 134 NY 1, 5 [emphasis supplied]). Similarly, in Matter of McDonald v Sobel (272 App Div 455, affd 297 NY 679) it was stated: "At common law no part of the power to accuse a person of crime or to prosecute a person for crime was vested in a court. These powers were vested elsewhere. The power to prosecute crime and control the prosecution, after formal accusation had been made, was reposed in a prosecuting officer, an Attorney-General or a District Attorney * * * It may not be presumed that the Legislature intended to disrupt the basic general plan for the administration of justice or envelop it in conflict and contradictions by sanctioning change by implication” (supra, at 461 [emphasis supplied]).
These inherent, traditional powers have been reaffirmed in more recent times (see, Matter of Holtzman v Goldman, 71 NY2d 564, 573; People v Di Falco, 44 NY2d 482, 486; People ex rel. Doe v Beaudoin, 102 AD2d 359, 365; People v Mackell, 47 AD2d 209, 217, affd 40 NY2d 59; People v Harding, 44 AD2d 800, 801). Accordingly, it has been held that the courts may not interfere with a prosecutor’s discretion to refuse to prose*347cute (Matter of Hassan v Magistrates’ Ct., 20 Misc 2d 509, appeal dismissed 10 AD2d 908, lv dismissed 8 NY2d 750, cert denied 364 US 844; see, Inmates of Attica Correctional Facility v Rockefeller, 477 F2d 375, 380, 382), to consent to the acceptance of a lesser plea (Matter of McDonald v Sobel, supra) or to dismiss pending charges in an indictment in order to effectuate a plea bargain (People v Pettway, 131 Misc 2d 20, 24). The recognized discretionary authority of the District Attorney to control the prosecution before conviction is, in my opinion, indistinguishable from similar authority with respect to postconviction criminal proceedings, such as those at issue here (see, People v Johnson, 127 Misc 2d 386, 389).
Of course, the Legislature may limit, and has on occasion restricted, prosecutorial control over criminal disposition by express statutory provision. Certain powers have been transferred to the court (e.g., permission to withdraw a guilty plea) (see, CPL 220.60 [3]; People v Selikoff, 35 NY2d 227, 241). Other powers by specific legislative provision may only be exercised by the prosecutor in conjunction with the court (e.g., acceptance of a reduced plea [CPL 220.10 (3), (4)]). To the extent that any such statutory limitations on prosecutional discretion are applicable here, however, they are obviated by the fact that County Court itself was also a party to the plea agreement.
I am equally unpersuaded by the rationale for reversal advanced in the concurring opinion, namely, that vacatur of the prior conviction was beyond the power of County Court because it was not based upon one of the grounds set forth in CPL 440.10. Of course, the court could not vacate that conviction without a specific statutory basis if the District Attorney had not moved for or concurred in vacatur (see, Matter of Holtzman v Goldman, supra; Matter of McDonald v Sobel, supra). The point is, however, that no express statutory provision prevented County Court, in which the prior conviction occurred, from acceding to the inherent power of the District Attorney to control all phases of the prosecution, including those postconviction (see, People v Pettway, supra).
Since in every other respect the points defendant raises on appeal are essentially the same as the contentions made (and rejected) in the companion appeal (see, People v Felman, — AD2d — [decided herewith]), I would affirm the judgment of conviction.
Mikoll and Yesawich, Jr., JJ., concur with Weiss, J.; *348Casey, J. P., concurs in a separate opinion; Levine, J., dissents and votes to affirm in an opinion.
Judgment reversed, as a matter of discretion in the interest of justice, defendant’s plea of guilty vacated and matter remitted to the County Court of Rensselaer County for further proceedings not inconsistent with this court’s decision.