Appeal by the People from a sentence of the Supreme Court, Kings County, imposed March 23, 1976, upon an adjudication that defendant was a youthful offender, after his plea of guilty to the crime of criminal possession of a controlled substance in the third degree. Sentence affirmed. Under the facts, the granting of youthful offender status was an act of discretion. Accordingly, the sentence appealed from was not invalid as a matter of law (see CPL 720.20; 450.20, subd 4). To the extent that CPL 720.10 conditions eligibility upon the highest count of the accusatory instrument, it is unconstitutional (see People v Carlos S., 40 NY2d 990, revg 51 AD2d 1 [for the applicable reasons stated in the dissenting opn of Mr. Justice Rabin at the App Div]; see, also, People v Victor M., 56 AD2d 581). Hopkins, Acting P. J., Martuscello, Latham, Rabin and Hawkins, JJ., concur.