Benjamin S., Matter of

• Decision Date: 27 July 1981
• Citation: 83 A.D.2d 630,441 N.Y.S.2d 698
• Parties: In the Matter of BENJAMIN S. (Anonymous), Respondent (Edward J. Kuriansky, Deputy Attorney-General, Appellant).
• Court: New York Supreme Court — Appellate Division

Page 698

441 N.Y.S.2d 698

83 A.D.2d 630

In the Matter of BENJAMIN S. (Anonymous), Respondent (Edward

J. Kuriansky, Deputy Attorney-General, Appellant).

Supreme Court, Appellate Division,

Second Department.

July 27, 1981.

Edward J. Kuriansky, Deputy Atty. Gen., New York City (Arthur Weinstein and Richard D. Carruthers, New York City, of counsel), appellant pro se.

Richenthal & Birnbaum, P. C., New York City (David G. Richenthal and George P. Birnbaum, New York City, of counsel), for respondent.

Before MANGANO, J. P., and RABIN, MARGETT and WEINSTEIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the Deputy Attorney-General for Medicaid Fraud Control, from so much of an order of the Supreme Court, Queens County, dated December 17, 1980, as, upon petitioner's motion to quash or modify a subpoena requiring his attendance before a Queens County Grand Jury, modified the subpoena so as to preclude the questioning of petitioner about facts discussed during his appearance before a New York County Grand Jury on March 13, 1979.

Order affirmed insofar as appealed from, without costs or disbursements.

On March 13, 1979 petitioner, a wholesale meat salesman, testified before a New York County Grand Jury which was conducting an investigation into alleged criminal activities in the health care industry in New York County. In his testimony petitioner denied any knowledge of persons in the meat industry having paid kickbacks to persons in the nursing home industry. Petitioner also denied that he had ever paid or discussed kickbacks. As a result of his testimony, he was indicted on three counts of perjury in the first degree, a class D felony. The prosecution was conducted by a Special Deputy Attorney-General assigned to the New York City regional office of the Hospital Division of the Deputy Attorney-General for Medicaid Fraud Control.

Petitioner pleaded not guilty. Thereafter, he made several motions, including motions to dismiss the indictment in whole or in part. The Trial Judge denied petitioner's motions to dismiss, although he did remark that one of them involved "a very gray area". He did, however, grant petitioner's motion to suppress one of the tape recordings which was to be used as evidence of his perjury. According to one of petitioner's counsel, after the Trial Judge had made these rulings, he invited counsel into his chambers, indicated that he thought that the case was an "appropriate case for disposition", and asked counsel to return in a week with some sort of proposal with regard to disposition of the case. As a result of the ensuing negotiations triggered by the Trial Judge's request, petitioner pleaded guilty two months later to one count of perjury in the second degree, a class E felony, in full satisfaction of the indictment. He was sentenced to five years' probation and a fine of $2,500. This sentence was imposed in accordance with the Judge's promise that if petitioner pleaded guilty to a class E felony, he would receive probation and a fine. The Judge apparently arrived at this sentence upon his review of a prepleading report prepared by the probation department and without reference to any agreement by the parties concerning what they perceived to be an appropriate sentence. Before sentencing petitioner, the court noted that he was 61 years of age, had never had any prior conflict with the law, had a "fine war record", and had led "what has appeared to be an exemplary life up to this point and time".

About six months after petitioner had pleaded guilty, a Special Assistant Attorney-General assigned to the Long Island Regional Office of the Hospital Division, issued a subpoena to petitioner directing him to appear before a Queens County Grand Jury. According to the Special Assistant, that subpoena was issued because the Queens County Grand Jury had received information "different than the investigation in Manhattan" which had "growout of a separate matter". The Special Assistant did not recall discussing the issuance of this subpoena with any member of the New York City Regional Office. The Special Deputy Attorney-General who had prosecuted petitioner first learned of the subpoena from petitioner's counsel, after it had been issued.

Petitioner moved to quash or modify the subpoena so as to limit the subject matter of his testimony to events that occurred in Queens County after the date of his testimony before the New York County Grand Jury. ¹ The basis for the time limitation urged by petitioner was an alleged agreement that he had entered into with the Special Prosecutor's Office that, in return for his pleading guilty to a felony, he would not be required to give any information concerning matters which were the subject of inquiry during his appearance before the New York County Grand Jury. After conducting an evidentiary hearing (cf. People v. Seminara, 58 A.D.2d 841, 396 N.Y.S.2d 472), the hearing court concluded that petitioner had indeed entered into such an agreement and that he was entitled to have it enforced to the extent of having the subpoena modified to limit the subject matter of petitioner's testimony to his being "questioned about all relevant matters except those facts which were discussed during his prior appearance before the New York Grand Jury". This appeal by the Deputy Attorney-General followed.

A defendant may not plead guilty to a lesser included offense of an offense charged in an indictment without the consent of the People (CPL 220.10). Accordingly, "District Attorney may dictate the terms under which he will agree to consent to accept a guilty plea and * * * the withholding of such consent * * * renders the court without authority to accept a plea to anything less than the entire indictment" (Matter of Gribetz v. Edelstein, 66 A.D.2d 788, 410 N.Y.S.2d 873). Moreover, "the statutory requirement of consent by the People to the acceptance of a reduced plea can hardly be obtained by estoppel against the District Attorney on the basis of his alleged negligence or indifference" (Matter of Blumberg v. Lennon, 44 A.D.2d 769, 354 N.Y.S.2d 261). It follows, then, that, at least under all but the most unusual circumstances, a prosecutor may not be held to any aspect of a plea bargain as to which he has not, in fact, given his consent. However, the law does not permit a prosecutor who consented to an aspect of a plea bargain to avoid its enforcement merely because, as here, the relevant portion of the plea bargain was neither in writing nor recited on the record during the plea proceedings, at least where the "off-the-record" promise is neither contradicted by the record of the plea proceedings nor legally impossible for the prosecutor to perform (see Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427; People v. Seminara, supra; cf. People v. Selikoff, 35 N.Y.2d 227, 360 N.Y.S.2d 623, 318 N.E.2d 784, cert. den. 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822; People v. Campbell, 35 N.Y.2d 227, 241-242, 360 N.Y.S.2d 623, 318 N.E.2d 784). Concluding that the Deputy Attorney-General, through the Special Deputy Attorney-General who prosecuted petitioner's case, did enter into a plea agreement under which, among other things, he agreed not to elicit further Grand Jury testimony from petitioner concerning matters discussed in his Grand Jury testimony on March 13, 1979, that such an agreement is neither contradicted by the record of the plea proceedings nor legally impossible for the Deputy Attorney-General to perform, and that there is no other reason for denying specific performance of the plea agreement, we affirm the order of Criminal Term insofar as appealed from.

Petitioner's two defense counsel ² testified at the evidentiary hearing, as did the Special Deputy Attorney-General who prosecuted petitioner. In their testimony, these witnesses all agreed that, under the plea bargain, the People consented to petitioner pleading guilty to a class E felony without his having to provide any information about illegal activities as a condition precedent thereto. However, the prosecutor testified that this was the full extent of the agreement. Indeed, he testified that he had specifically told one of petitioner's counsel that the plea bargain did not prevent petitioner's being recalled to testify for a second time before the Grand Jury. In contrast, petitioner's counsel both testified that the specific topic of future Grand Jury testimony by petitioner had never been discussed with the prosecutor. According to the testimony of one of them, which was supported by the testimony of petitioner's other attorney, the plea bargain provided that, as a result of petitioner's having agreed to plead to a felony, he would not be required to "give information", "talk about" or "be questioned about" the matters covered in his perjury indictment. To petitioner's counsel this bargain barred any future Grand Jury testimony by petitioner concerning such matters. According to them, their client's primary concern throughout the plea negotiations have been to insure that he would be shielded from having to give any information, whether before a Grand Jury or otherwise, concerning his dealings with customers and others in the health care industry. This concern arose from petitioner's fear that if it ever became known that he had given such information he would be unable to continue to work as a commission meat salesman, his sole occupation for at least the preceding 18 years. Thus, petitioner's counsel portrayed the plea bargain in essence, as one in which petitioner, who had no prior criminal record, and a good reputation, agreed to forego a possibly successful defense to the prosecution and to accept the ignominy of a felony conviction in return for being permitted to avoid giving information by which he would severely jeopardize his livelihood. In this regard, there was testimony, corroborated for the most part by the prosecutor, that the prosecutor had rejected petitioner's offer to plead...