Levine, J. (concurring). I join in the majority’s denial of a writ of prohibition, but wish to address in more detail what I consider to be the most troubling aspect of the plea arrangement between the respondent Schenectady County Judge (hereinafter respondent) and respondent Francis Di Donato (hereinafter defendant). Essentially, defendant was permitted to enter a conditional guilty plea pursuant to which the issue of the denial of leave to serve a late notice of insanity defense would be preserved on appeal or, if not, respondent promised that defendant would be allowed to withdraw his plea and go to trial on the indictment. A very strong argument can be made that this arrangement exceeded respondent’s legal authority. The holdings in People v Thomas (53 NY2d 338, 344) and People v Di Raffaele (55 NY2d 234, 240-241) make quite clear that conditional pleas are disapproved of in New York and are ineffective to avoid forfeiture of appellate review of issues which actually do not otherwise, as a matter of law, survive a guilty plea. It was initially held under Thomas and Di Raffaele that a defendant erroneously relying on the false assurances of the court and prosecutor that a forfeited issue could nevertheless be raised on appeal had the redress of obtaining vacatur of the guilty plea (see, People v Thomas, supra, at 344; People v Di Raffaele, supra, at 241).
Subsequent holdings, however, also make it clear that a defendant, such as defendant in this case, may no longer automatically be granted the right to withdraw a guilty plea *1019following an unsuccessful attempt to obtain appellate review of an issue forfeited by the plea (see, People v Levin, 119 AD2d 698, 699, lv denied 68 NY2d 758; People v O’Brien, 84 AD2d 567, 568, affd 56 NY2d 1009; see also, People v Hardy, 187 AD2d 810). The rationale of these cases is that, in view of the now settled disapproval of conditional pleas in this State, "principles of fundamental fairness” (People v Levin, supra, at 699) no longer dictate permitting a withdrawal of the guilty plea in every such case. Thus, respondent’s promise to defendant, that if his appeal on the late insanity defense notice is dismissed he can withdraw his guilty plea, gives defendant a remedy no longer afforded under all circumstances to all defendants who have entered conditional guilty pleas. In this sense petitioner’s claim, that respondent exceeded his legal authority in unqualifiedly promising defendant the right to withdraw his plea, has substantial cogency under the principles of Matter of Proskin v County Ct. (30 NY2d 15, 19-21).
The Proskin case is distinguishable in one vital respect, however, i.e., the District Attorney in that case had no remedy to challenge the action of the court by way of direct appeal. That is not the situation here. In the instant case, if defendant’s appeal is dismissed because the guilty plea worked a forfeiture of his objection, in order to enforce respondent’s promise, defendant will then have to make a postjudgment application to vacate the conviction in the nature of a motion pursuant to CPL article 440. Such a remedy was not entirely foreclosed in People v O’Brien (supra) and cases that have followed it. In O’Brien, the court specifically recognized that a defendant pleading guilty on the erroneous advice that an issue survived the plea for purposes of direct appeal may have the right to attack the voluntary and intelligent character of the plea in a postjudgment application (see, People v O’Brien, supra, at 568; see also, United States v Benson, 579d 508, 511; People v King, 152 AD2d 815, 816). Thus, respondent would have jurisdiction to entertain such a postjudgment application by defendant to enforce the promise of permission to withdraw his guilty plea. However, any order by respondent granting defendant vacatur of the judgment of conviction would clearly be appealable by the People (see, CPL 450.20 [5]). On such an appeal, I see no reason why petitioner would not have the right to challenge the legality of the plea arrangement between respondent and defendant, as well as to attack the order on the merits, including whether defendant was justified in relying upon the arrangement under the circumstances. Thus, petitioner appears to have an adequate *1020alternative remedy to prohibition and, accordingly, I join in voting to dismiss his application (see, Matter of State of New York v King, 36 NY2d 59, 62).
Adjudged that the petition is dismissed, without costs.