Muldoon, Getz & Reston

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Defense alternative includes pleading to the indictment
By: Gary Muldoon
Muldoon, Getz & Reston
Rochester, New York

Plea bargaining is recognized as an integral part of the criminal justice system. Both prosecution and defense can agree to resolve the case by a guilty plea. The agreement may take the form of a guilty plea to all of the charges, to less than all, or to a reduced charge, and may include a specific sentence or a “cap” sentence. Other requirements can be included waiver of the right to appeal, for example.
But the prosecution’s terms of settling the case may be unacceptable to the defense, yet the defense does not want to go to trial. The prosecution is not required to engage in plea bargaining (CPL 220.10(3)). One other option is to circumvent the prosecution’s role and deal directly with the judge: pleading guilty to all of the charges in the accusatory instrument, Carney v. Feldstein, 193 AD2d 1016 (3d Dept 1993).


When the prosecution does not engage in plea bargaining, the guilty plea must be to all of the charges. In this situation, the judge has full discretion to decide the sentence, without any requirement to impose a sentence or other conditions as set by the prosecution. The prosecution retains the right to be heard on the sentence and related issues, but lacks the authority to withhold consent to what will happen with the case.


The judge is free to impose a sentence within what is statutorily permissible, and may permit the defense to raise issues on appeal that the prosecution might have required waiver of, had the case been plea bargained.


On an appeal without a waiver, issues that a defendant might raise on appeal include suppression, CPL 710.70(2), whether a sentence is harsh and excessive and Youthful Offender status. But if the defendant has waived the right to appeal, those issues may be waived, People v. Kemp, 94 NY2d 831 (1999); People v. Lopez, 6 NY3d 248 (2006); People v. Crispen, 284 AD2d 575 (3d Dept 2001).


© 2013 by Gary Muldoon