9.8 - IV. The Power Of The Prosecutor

• Jurisdiction: New York

IV. THE POWER OF THE PROSECUTOR

A plea offer does not become a plea agreement until it is embodied in a guilty plea in open court on the record.¹⁶⁷⁵

A defendant has no enforceable right to plea-bargain. A district attorney does not abuse his discretion when he denies the opportunity to plea-bargain to an entire class of offenders as a means of deterring the crime being prosecuted.¹⁶⁷⁶ A prosecutor’s plea offer may be linked to adverse or lenient treatment for some person other than the accused, often a relative of the accused.¹⁶⁷⁷ Such “connected” or “wired” pleas are not per se coercive, and they are legal so long as the plea agreement is voluntarily, knowingly and intelligently made.¹⁶⁷⁸

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Notes:

^[1675] . In Mabry v. Johnson, 467 U.S. 504 (1984), abrogated on other grounds by Puckett v. U.S., 556 U.S. 129, 129 S. Ct. 1423 (2009), the question before the Court was whether a defendant’s timely acceptance of a prosecutor’s proposed plea bargain prior to the prosecutor’s withdrawal of the offer creates a constitutional right to have the bargain specifically enforced. The Court held that the plea bargain, standing alone, does not implicate the Constitution. It becomes effective only after it is embodied in a guilty plea. Prior to that, no constitutionally protected interests are involved.

^[1676] . People v. Issak, 99 Misc. 2d 543, 416 N.Y.S.2d 1004 (Crim. Ct., N.Y. Co. 1979) (defendants charged with patronizing prostitutes). See also People v. Peterson, 91 Misc. 2d 407, 398 N.Y.S.2d 24 (Sup. Ct., Bronx Co. 1977) (major offense screening program).

^[1677] . People v. Fiumefreddo, 82 N.Y.2d 536, 605 N.Y.S.2d 671 (1993); People v. Keehner, 28 A.D.2d 695, 281 N.Y.S.2d 128 (2d Dep’t 1967), aff’d, 25 N.Y.2d 884, 303 N.Y.S.2d 892 (1969); People v. Henzey, 24 A.D.2d 764, 263 N.Y.S.2d 678 (2d Dep’t 1965); see also People v. Antonio, 176 A.D.2d 528, 574 N.Y.S.2d 718 (1st Dep’t 1991); People v. Cornielle, 176 A.D.2d 190, 574 N.Y.S.2d 199 (1st Dep’t 1991); People v. Bermudez, 157 A.D.2d 533, 549 N.Y.S.2d 1022 (1st Dep’t 1990) (where prosecutor conditioned the acceptance of one defendant’s plea of guilty on a plea by all co-defendants).

^[1678] . Fiumefreddo, 82 N.Y.2d 536. The U.S. Supreme Court has specifically reserved judgment on this issue. See Bordenkircher v. Hayes, 434 U.S. 357, 364 n.8 (1978); U.S. v. Nuckols, 606 F.2d 566 (5th Cir. 1979); People v. Banks, 16 A.D.3d 313, 791 N.Y.S.2d 415 (1st Dep’t 2005).