In Matter of Hynes v. Tomei (92 NY2d 613 [1998]) the Court of Appeals found the 1995 death penalty statute had a so-called Jackson infirmity, stating: "Capital defendants under the New York statute who are awaiting trial and are offered a plea are still faced with the choice Jackson declared unconstitutional: exercise Fifth and Sixth Amendment rights and risk death, or abandon those rights and avoid the possibility of death." (Id., at 626, citing United States v. Jackson, 390 US 570, 582 [1968].) Instead of invalidating the entire death penalty statute, the Court excised the offending guilty plea provisions set forth in CPL 220.10 (5) (e) and 220.30 (3) (b) (vii), holding that the revised statute prohibits a guilty plea to first degree murder while a notice of intent to seek the death penalty is pending. (Matter of Hynes v. Tomei, supra, at 629.)