9.7 - III. Subject Matter Of Plea Agreements

• Jurisdiction: New York

III. SUBJECT MATTER OF PLEA AGREEMENTS

Plea bargaining is not quite a matter of contract law whose

rules will not be applied to plea negotiations and . . . any sentence promise is conditioned, as a matter of law and . . . strong public policy . . . [on] rehabilitating offenders, protecting society, . . . deterring other . . . offenders, [and] upon the appropriateness of the sentence in the light of information subsequently received by the sentencing Judge from the pre-sentence report or other reliable source. ¹⁶⁶¹

Subject to this limitation, so long as the parties’ minds apparently meet, the subject matter and contents of a plea agreement can be as varied as the creative capacities of counsel.¹⁶⁶² Possible plea agreements include reduction to a lesser-included offense and/or dismissal of counts in a multi-count indictment, agreement by the prosecutor to recommend a specific sentence,¹⁶⁶³ agreement by the prosecutor not to make any recommendation as to the sentence,¹⁶⁶⁴ agreement that a plea is conditioned upon a specific sentence being imposed, which may be vacated if the court deems it necessary to impose a greater sentence,¹⁶⁶⁵ agreement not to send prosecution evidence to other agencies,¹⁶⁶⁶ agreement to intercede with parole officials and make recommendations,¹⁶⁶⁷ agreement to use best efforts to prevent deportation,¹⁶⁶⁸ agreement not to make press releases or statements to the media, agreement not to oppose a motion for sentence reduction,¹⁶⁶⁹ agreement not to request or require the defendant to provide further information or testimony, agreement not to prosecute a third person,¹⁶⁷⁰ agreement by the defendant to provide specified cooperation in investigation of enumerated criminal activity.¹⁶⁷¹ Caveat: To be jurisdictionally valid, a plea of guilty must be to a crime actually charged in the indictment or a lesser-included offense thereof. If the indictment charges robbery in the first degree while displaying a firearm, a guilty plea to robbery in the first degree with a deadly weapon is jurisdictionally defective because the defendant was never indicted by a grand jury and charged with the latter crime.¹⁶⁷²

Plea bargains are usually oral and entered in the record. Plea agreements involving a degree of complexity (e.g., cooperation agreements, immunity, resolution of unfiled charges) should be in writing and read into the record or marked for identification and incorporated in the minutes by reference.¹⁶⁷³

Note the distinction between a “conviction” and a “judgment of...