9.39 - VIII. Remedies For Prosecutor's Breach Of Plea Agreement

• Jurisdiction: New York

viii. REMEDIES FOR PROSECUTOR’S BREACH OF PLEA AGREEMENT

If a plea agreement has been breached by the prosecutor, the remedy is the alternative of specific performance or an opportunity to withdraw the plea and proceed to trial—all at the option of the court. The court must find that the prosecutor did not act in good faith.¹⁷⁷⁶ The judiciary will not recognize an off-the-record promise to either vacate a plea or direct specific performance.¹⁷⁷⁷ Through careful exercise of this option, courts are able to prevent a defendant from obtaining the windfall benefit of vacating a guilty plea after a prosecutor’s breach in a case that has become stale or in which witnesses have become unavailable.¹⁷⁷⁸ Years may have gone by. It may be difficult to obtain renewed cooperation from witnesses. The People can hold a defendant to his bargain as long as the defendant gets what he bargained for. Technical divergence from the precise terms of the plea agreement do not foreclose specific performance by the People as long as the defendant’s reasonable expectations are met. A defendant’s subjective view of the plea bargain is not controlling. Compliance with the bargain is tested against an objective reading of it. “Thus, if the originally promised sentence cannot be imposed in strict compliance with the plea agreement, the sentencing court may impose another lawful sentence that comports with the defendant’s legitimate expectations.”¹⁷⁷⁹

Waiver of trial and a valid guilty plea requires that the waiver be knowing, voluntary and intelligent. “Prior to accepting a guilty plea, therefore, a defendant must be informed of the direct consequences of the plea. When a court fails to so advise the defendant, the plea cannot be deemed knowing, voluntary and intelligent, and defendant may withdraw the plea and be returned to his uncertain status before the negotiated bargain.”¹⁷⁸⁰ But, according to a dissenting view, is vacatur of the plea the only possible constitutional remedy in all cases? What is constitutionally deficient with a sentencing court having the flexible discretion to modify its original sentence so as to comport with the understanding and expectations of the defendant at the time of his guilty plea and, indeed, give him the full benefit of his bargain plus a windfall? The proffered rationale is that “when years have passed since the original plea, making it difficult for the People to proceed to trial, allowing vacatur of the plea would afford the defendant more than he...