
    The People of the State of New York, Appellant, v Mariano D. Respondent.
   Appeal by the People from a sentence of the Supreme Court, Kings County, imposed March 19, 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 second degree. Sentence affirmed. Under the facts, the granting of youthful offender status was a proper exercise 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 for youthful offender treatment entirely 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.  