We respectfully dissent and vote to affirm.
The Court of Appeals, with studied and consistent direction, has made it clear that where a court illegally accepts a plea and sentencing has commenced, absent the defendant’s consent, the court has no power "to vacate the plea and sentence at the prosecutor’s request and reinstate the original charges” (Matter of Campbell v Pesce, 60 NY2d 165, 168; see, Matter of Kisloff [Wilson] v Covington, 73 NY2d 445, 450; cf., People v Bartley, 47 NY2d 965). While a limited exception to this principle permits a court to correct a sentence when the error is merely clerical and apparent on the face of the record (Matter of Campbell v Pesce, supra, at 169), this is not the situation here. The majority relies on People ex rel. Leventhal v Warden (102 AD2d 317) to circumvent the unequivocal prohibition expressed in Matter of Campbell v Pesce (supra). Leventhal attempts to distinguish Campbell according to the role which the prosecutor played in securing the illegal guilty plea. But that thesis is radically at odds with Campbell, which explicitly declares that a court simply has no power to vacate an illegally accepted plea and to resentence a defendant at the prosecutor’s request. The prosecution’s dissatisfaction with the plea arrangement cannot confer this missing statutory authorization on the court. Furthermore, Matter of Kisloff (Wilson) v Covington (supra), a case decided after Leventhal, unmistakably reinforces the Campbell decision.
Also, we are of the view that at the time defendant entered her plea, the "entire indictment” consisted of the seven counts (see, CPL 220.60 [3]) to which she had an unqualified right under CPL 220.10 (2) to plead guilty without the People’s consent. The thrust of the majority’s argument is that because the People undertook to appeal the dismissal of the first count, the indictment remaining therefore was less than an "entire” indictment. There is, however, no statutory basis for this concept in the CPL. Moreover, its application creates an anomaly, for had this court affirmed County Court, defendant’s plea to the remaining counts unquestionably would have been recognized as having been made to the "entire” indictment. Surely, whether an indictment is the "entire” *195indictment, to which a defendant has a statutory right to plead, cannot turn on whether a prosecutor chooses to pursue an appeal.
Weiss and Harvey, JJ., concur with Casey, J. P.; Mikoll and Yesawich, Jr., JJ., dissent and vote to affirm in an opinion by Yesawich, Jr., J.
Order reversed, on the law, defendant’s plea and sentence vacated, and the indictment restored to the prepleading stage with the first count thereof reinstated.