DECISION and ORDER Legal Issue: To what extent may the District Attorney’s Office “Sua Sponte” withdraw their plea offer to a Defendant not accepted on the record in Court. The Defense asks the Court to reinstate the plea agreement offer, made on the record, based on the Defendant’s lack of sufficient time to consider the plea bargain and the Prosecution’s consent to the adjournment for the Defense to consider that offer. HISTORY: In the small rural hamlet of Livingston Manor the defendant on October 18, 2018 at 12:30 pm sold heroin to an undercover police officer across the street from and in front of the Livingston Manor Central School in the Town of Rockland, and County of Sullivan, New York. On November 21st, 2018, a Sullivan County Grand Jury returned an Indictment #231-2018 charging this defendant with the crimes of Criminal Sale of a Controlled Substance in the Third Degree in violation of New York State Penal Law §220.39(1) and Criminal Sale of a Controlled Substance on or near a school in violation of Penal Law §220.44(2). The Defendant was arraigned and assigned counsel1. Thereafter, discovery motion practice and plea conferences were held. On the June 11th, 2019 court appearance, the Defendant, with his then assigned counsel present, expressed that he wanted to have new counsel appointed to represent him because of his dissatisfaction with his counsel and the Prosecutor’s offer of seven years plus three years of post-release supervision. On June 13th, 2019 Defendant’s prior assigned counsel was relieved and present counsel was assigned under 18B of the County Law. Shortly thereafter the Defendant’s new counsel2 promptly met with the District Attorney’s Office. At that meeting, the District Attorney now offered an “open plea” covering all charges, including those not yet filed. The Defense countered with a request for a “cap” on sentencing. On June 19th, 2019, the Defendant’s counsel attorney again conferenced the matter and spoke with the Chief Assistant District Attorney3 requesting a “cap” and was told that the Defendant’s counter-offer was not agreeable. However, on July 3rd, 2019, a scheduled court conference date, the Chief Assistant District Attorney now offer an “open plea” covering all charges. This offer was placed on the record and Defense counsel requested a one-week adjournment to discuss the offer with her client. No objection was raised by the Prosecution at the time of this request and the matter was set down, on consent, for a plea scheduling conference on July 11th, 2019. Later that same day, the Defendant’s counsel received notice by email from the Chief Assistant District Attorney that the plea offer was now being withdrawn and that the offer reverted to the earlier offer of 7 years with 2 years post release supervision. The Prosecutrix, by way of email to defense counsel, stated, “We are withdrawing our offer to cover anything on Richard Mead. He had the offer open long enough and has continually asked for less (including this morning)”. The Defendant’s counsel immediately by her Email requested reconsideration but received no response from the District Attorney’s Office. On July 8th, 2019, the Defense Counsel conferred with Chief Assistant District Attorney and questioned the spontaneous withdrawal of the plea offer. Defense Counsel was told by the Prosecutrix that the people “in Livingston Manor wouldn’t like the deal.” Thereafter on the July 11th, 2019 the adjourn date before the Court, the Prosecutrix reiterated her position that the offer had simply been withdrawn. Defense Counsel orally moved the Court to enforce the Prosecution’s plea offer to this defendant. The Court requested the within written Motion. The Defense filed the within Notice of Motion with Affirmation in Support. The Prosecution have submitted an Affirmation in Opposition. Defense counsel argues that she was not given any time to convey and explain the “open plea” offer to the Defendant, made in Court that day, so that the Defendant could not claim ineffectiveness of counsel for not having had the benefit of reasonable time to consider the offer made in open Court. Further, that there was a reasonable probability that the Defendant and the Court would have accepted the Prosecutor’s plea bargain offer of an “open plea” at the adjourn date, and finally, that the Prosecutor did not object to the adjourn date for the Defendant to have time to consider the offer and they consented to that period of time for the Defendant to consider the offer. The Prosecution argues that there is no authority for the District Attorney’s Office to be bound by their plea offer until it is accepted by the Defendant. The Prosecutor further contends that the Defendant had adequate time to accept the plea offer and that in fact the “open plea” offer was made to the Defendant’s prior attorney on May 17th, 2019. The Prosecutor states that the Defendant had no intention of accepting the plea offer and that he had “never expressed any intention to accept the previously conveyed offer.” OPINION Plea bargains are responsible for resolution of over 90 percent of all disputes in criminal cases in the courts.5 The importance of the plea-bargaining process within our system of Justice cannot be gainsaid. The Court and the Prosecution receive the benefit of conserving vital resources and time that would be otherwise lost if each case went to a trial. The Defendant receives the benefit of a speedy resolution of their case and a reduction of a sentence. As important as the plea-bargaining process is to our Criminal judicial system, a criminal defendant is not entitled, as a matter of right, to receive a plea bargain (See Weatherford v. Bursey, 429 US 545, 97 S. Ct 837; People v. Memminger, 121 Misc. 2d 953.) A District Attorney is empowered with the statutory authority to prosecute criminal offenses in the County in which he/she is elected (County Law 700(1).) In executing that statutory duty, a District Attorney is given unchecked discretion to decide what crimes to prosecute, how they should be reduced, amended and even if additional charges should be added (People v. O’Grady, 175 Misc 2d 61, citing People v. Williams, 120 Misc 2d 68.) In People v. O’Grady, supra, the Defendant, was charged with third degree criminal trespass and disorderly conduct for running shirtless onto the field during a World Series game with the message “Howard Stern for President” written on his chest and stomach and “Guilliani [sic] kiss my…” written on his back with an arrow pointing down to his buttocks. The Defendant argued that he should be entitled to a dismissal of the charges on the ground that his prosecution was discriminatory because another person charged with trespassing on the field during the same game was offered a much more generous plea bargain. In refusing to dismiss the charges against the Defendant on the basis of bias, the Court stated “The District Attorney is generally given wide latitude “in determining when and in what manner to prosecute a suspected offender”. (People v. Di Falco, 44 N.Y.2d 482, 486, 406 N.Y.S.2d 279, 377 N.E.2d 732. It is incumbent upon the court to pay homage to the prosecutorial prerogative.” In People v. Williams, 120 Misc. 2d 68, 78, 465 N.Y.S.2d 648 [Crim Ct, Bronx County 1983] the defendant asked that her charges be dismissed in the “interests of justice” and challenged the District Attorney’s practice of reducing certain A misdemeanor cases (punishable by a maximum term of one year) to B misdemeanors (punishable by a maximum term of three months) on the eve of trial. The defense argued that the purpose of this practice was to deprive the defendant of the right to trial by jury. In denying the Defendant’s Motion, the court stated “The District Attorney has almost unfettered discretion in determining how and when to prosecute, including the right to reduce, add or amend charges (United States v. Lovasco, 431 U.S. 783; People v. Di Falco, 44 NY2d 482).” Thus, the ultimate decision to make or accept a plea offer is solely within the District Attorney’s discretion. The District Attorney is under no obligation to offer a plea bargain, however, if the Prosecutor does choose to offer a plea, they are free to impose conditions which must be followed in order for the plea to stand (See People v. Antonio, 176 AD2d 528 and People v. Respress 231 AD2d 934. In People v. Antonio 176 AD2d 528, the Defendants appealed their convictions after jury trial of Criminal Sale of a Controlled Substance and Criminal Possession of a Controlled Substance. The Appellate Division held that the defendant was not denied due process by the Prosecutor’s withholding of his consent to a plea bargain offer to a lesser crime because of co-defendant’s refusal to similarly plead guilty. The Prosecutor’s plea bargain offer to defendant was conditioned upon guilty pleas being entered by all defendants. The prosecutor was free to dictate the terms under which he would agree to accept a plea-bargained guilty plea. In People v. Respress, 231 AD2d 934, the Defendant appealed from a judgment convicting him, upon a plea of guilty, of burglary in the second degree. He contended that the prosecutor’s withdrawal of the original plea offer “constituted an abuse of discretion and was against public policy. Although the Appellate Division in Repress did not reach a decision based on the merits of the case because the Defendant raised the issue for the first time on appeal and it therefore had not been preserved for review, the court did state as follows: “Were we to reach the merits, we would conclude that it lacks merit. The prosecutor is free to dictate the terms under which he or she will agree to consent to accept a guilty plea, and where such terms are not met, consent may be withheld” (People v. Antonio, 176 AD2d 528, 529. lv denied 79 NY2d 824). (Appeal from Judgment of Erie County Court, Drury, J. — Burglary, 2nd Degree.) This court is not privy to the inner workings of the District Attorney’s Office which more than likely considered multiple factors when deciding to offer a plea or withdraw a plea in this case. In fact, “a plea offer” is a fluid transaction between the District Attorney and the Defendant and ultimately the Court which in essence is a transaction of mutual concession. The Defendant is free to refuse it if he finds it unacceptable and the District Attorney is free to withdraw it, if he/she finds it inadequate. It is not within the court’s prerogative to intervene in the plea offer process and ascertain whether each has complied with the requisite requirements to effectuate and consummate the plea (See People v. Algomai, 48 Misc 3d 760; 9 N.Y.S.3d 858 wherein the Court held “In executing his statutory duty, a District Attorney has wide latitude to decide the manner in which crimes are prosecuted, including the reduction, amendment, or addition of charges.”) The terms of a plea bargain offer only become operative at the time of the plea and allocution and it is at that point that the Court becomes a participant of the plea-bargaining process. It would be an improper exercise of the Court’s discretion to intervene in an ongoing plea negotiation by requiring the District Attorney to reinstate his plea offer. The court can simply reject or accept a plea bargain which has been offered by the Prosecution and accepted by the Defense. There is no basis for the Judicial recognition of a plea bargain until it has been officially entered and accepted upon the record (See People v. Hood, 62 N.Y.2d 863, 466 N.E.2d 161 [1984]). In People v. Hood, 62 N.Y.2d 863, 466 N.E.2d 161 [1984] the Defendants alleged that there had been an agreement on a plea bargain in their trial for attempted murder in which defendants would plead guilty to lesser offenses. The prosecutor said it was only discussed, but was not binding, and he rejected the plea bargain. Defendants were convicted of attempted murder. The plea bargain was never entered on the record. The reviewing court found that the convictions were proper and the Court held “Defendants were not entitled to specific performance of the alleged plea bargain. Even assuming defendants’ contentions were true, there was no basis for judicial recognition of a plea bargain unless it was concluded by entry on the record.” The Court of Appeals upheld the lower Court’s decision stating: “The order of the Appellate Division should be affirmed. Defendants are not entitled to specific performance of an alleged plea bargain which was never formally entered on the record” (See People v. Hood. supra) and accepted by the Defendant on the record. Based on the foregoing, it is ORDERED that the Defendant’s Motion to reinstate the plea offer must be and herein is denied in its entirety. This shall constitute the Decision and Order of this Court. Dated: August 22, 2019 Monticello, New York
