40-b Plea Bargaining Considerations

LibraryA Jailhouse Lawyer's Manual (2020 Edition)

40-B. Plea Bargaining Considerations

In order to convince you to plead guilty, the prosecutor may offer various sentencing benefits including: reducing the charges, dropping some of the charges, or recommending a particular sentence to the court. Plea bargaining may benefit both you and the prosecutor. Plea bargaining is usually faster than going to trial, which may benefit you. The speedier process also usually helps the prosecutor avoid having to spend time and resources preparing for trial. A plea bargain establishes your guilt for a specific criminal charge against you, which removes the uncertainty about how the trial would turn out. In addition, accepting a plea agreement will often reduce the risk that you could receive the maximum sentence. Sometimes the plea agreement will include the terms of a sentence, meaning it is unlikely that you or the prosecutor will be surprised by a lesser or greater sentence.

Although there may be benefits to accepting a plea agreement, there are many things you should consider when deciding whether or not to accept a plea bargain. You are never required to accept a plea bargain that a prosecutor offers, and you always have the right to go to trial.5 It is your choice, and only your choice, whether to accept a plea bargain.

When you accept a plea bargain, you give up important constitutional rights in exchange for a potentially more favorable sentence than you would receive if convicted after trial. The constitutional rights that you waive (give up) when you enter a guilty plea include: the right to a trial by jury,6 the right to testify or not to testify at trial,7 the privilege against self-incrimination (meaning the right to not reveal information about criminal acts that you may have committed),8 the right to confront your accusers,9 the right to plead "not guilty,"10 the right to require the prosecution to prove your guilt beyond a reasonable doubt by an undivided verdict of the jurors, the right to compel favorable witnesses,11 and the right to present any available defenses at trial. If you decide to plead guilty, you cannot later challenge your conviction, or appeal your case, by arguing you were not given these rights.

Once you have accepted a plea bargain, your ability to challenge a conviction resulting from that guilty plea will be very limited. New York courts have stated that a guilty plea "marks the end of a criminal case" and does not provide a "gateway to further litigation."12 A guilty plea communicates that you do not intend to challenge the issue of your guilt.13 The conviction is based on the sufficiency of your plea and not the constitutional or legal sufficiency of the proceedings.14 By pleading guilty, you waive claims that you were deprived of your rights in the proceedings prior to entering the plea.15 Your guilty plea also waives the right to challenge the underlying conviction,16 and the ability to appeal any non-jurisdictional defects in the case.17

There are a couple of defects, or errors in the legal proceedings, that you can still challenge after pleading guilty. Such defects include:

(1) Jurisdictional defects, meaning that the particular court you were in did not have authority to convict you, no matter what evidence may have been presented against you at trial;

(2) Defects that go directly to the guilty plea itself; or

(3) Defects in relation to the sentence subsequently imposed which was not part of the plea agreement.

Some examples that fall under these categories are if the indictment (or other accusatory instrument) failed to charge an offense,18 conviction on an indictment that the prosecutor knows is only supported by false evidence,19 conviction under an unconstitutional statute,20 and a guilty plea that was not entered voluntarily, knowingly, or intelligently, (such as if you were forced to plead guilty or did not understand the plea agreement).21 More examples include proceedings that did not meet the standards of a constitutional speedy trial,22 an illegal sentence,23 an excessively harsh or severe sentence,24 or ineffective assistance of counsel in the plea bargaining process.25 Because these issues are not waived by a guilty plea, you cannot waive these claims simply by pleading guilty and you may challenge your conviction based on one of these claims at a later time.

By pleading guilty, however, you do waive certain rights. Entering a plea of guilty likely means you will not be able to challenge or appeal any issues which relate to trial or pretrial rights because these rights only protect you at trial.26 Some issues which you may not appeal or use to challenge your sentence and conviction include: no probable cause for arrest;27 improperly seized evidence;28 illegally obtained confession;29 problems with the form of the accusatory instrument;30 improperly failing to provide a bill of particulars;31 insufficient factual allegation in...

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