The opinion
Kupferman, J. (concurring in part and dissenting in part).
While I agree that a plea of guilty can constitute a waiver of fundamental constitutional rights (see Tollett v Henderson, 411 US 258 , but see Menna v New York, 423 US 61 [Per Curiam]), it is clear that in these matters there was no intentional waiver. (People v Chirieleison, 3 NY2d 170 .) In the present situation, it was made perfectly clear that the guilty plea was being taken subject to the right of appeal on several constitutional and statutory points.
With respect to the issues raised, it would seem that there is no rational basis (see United States v Wood, 299 US 123 ), for the legislation (Judiciary Law, § 598) which specifically excludes from service on a Grand Jury all public employees receiving over $1,000 annual compensation. The effect of this legislation is to exclude from Grand Jury service, among many others, for example, a part time janitor earning $1,100. Inasmuch as foreclosing jury service by a significant segment of the population (Taylor v Louisiana, 419 US 522 ), renders their action a nullity, we are constrained to reverse and dismiss the indictment.
If we were to reach the point of considering the sentences imposed, they are clearly not excessive, and there was no abuse of discretion with respect to them.
Judgments of conviction affirmed in opinion by Birns, J.; Markewich, J. P., and Capozzoli, J., in a separate partially concurring and partially dissenting opinion, concur with Birns, J., as to affirmance, as to constitutionality of section 598 of Judiciary Law and as to absence of a sufficient record to present for appellate review question of existence of a constitutionally discriminatory practice excluding women from service on Grand Juries, but dissent insofar as to hold that defendants-appellants’ pleas of guilty constitute a waiver *425 of any prior infirmities in the procedures theretofore had; Lupiano, J., in a separate partially concurring and partially dissenting opinion, concurs with Birns, J., that defendants-appellants by their pleas of guilty did not waive consitutional challenge to indicting Grand Jury and as to constitutionality of section 598 of Judiciary Law, but dissents in part, holding that the question of existence of discriminatory practices excluding women from Grand Juries should be remanded for hearing, and also that there should be remand of defendants-appellants for resentence in respect of conditions of probation; Kupferman, J., in a separate partially concurring and partially dissenting opinion, concurs with Birns, J., that defendants-appellants’ pleas of guilty did not constitute a waiver of prior infirmities, but dissents to hold section 598 of Judiciary Law unconstitutional, requiring reversal of convictions and dismissal of indictments.
Three judgments, Supreme Court, Bronx County, each rendered February 27, 1976, affirmed.