People v. Selikoff

• Citation: 360 N.Y.S.2d 623,35 N.Y.2d 227
• Parties: , 318 N.E.2d 784 The PEOPLE of the State of New York, Respondent, v. Sheldon SELIKOFF, Appellant. The PEOPLE of the State of New York, Respondent, v. Tim CAMPBELL, Appellant. The PEOPLE of the State of New York, Respondent, v. Robert DAVIDSON, Appellant.
• Decision Date: 07 October 1974
• Court: New York Court of Appeals

Page 623

360 N.Y.S.2d 623

35 N.Y.2d 227, 318 N.E.2d 784

The PEOPLE of the State of New York, Respondent, v. Sheldon SELIKOFF, Appellant.

The PEOPLE of the State of New York, Respondent, v. Tim CAMPBELL, Appellant.

The PEOPLE of the State of New York, Respondent, v. Robert DAVIDSON, Appellant.

Court of Appeals of New York.

Oct. 7, 1974.

Stay of Incarceration Denied Dec. 23, 1974. See 95 S.Ct. 677.

Certiorari Denied Jan. 20, 1975. See 95 S.Ct. 806.

Irving Anolik, New York City, for appellant in the first and third above-entitled actions.

Carl A. Vergari, Dist. Atty. (Janet Cunard, White Plains, of counsel), for respondent in the first above-entitled action.

Richard H. Kuh, Dist. Atty., New York County (Lewis R. Friedman and Allen G. Swan, New York City, of counsel), amicus curiae in the first above-entitled action, and for respondent in the second above-entitled action.

Henry J. Boitel and Stanley M. Hyman, New York City, for appellant in the second above-entitled action.

Richard H. Kuh, Dist. Atty. (Anthony J. Girese and Lewis R. Friedman, New York City, of counsel), for respondent in the third above-entitled action.

BREITEL, Chief Judge.

These three appeals by defendants present issues arising from convictions based on negotiated guilty pleas. They raise the question whether a defendant may show that his guilty plea to a lesser crime was induced by an off-the-record unfulfilled promise, although contradicted by the recorded colloquy on the taking of the plea. Also at issue is whether a defendant is entitled to be sentenced as promised, or, if the court cannot or will not sentence as promised, whether the defendant is entitled to no more than the right to withdraw his guilty plea.

In each case the order of the intermediate appellate court affirming the conviction should be affirmed.

Throughout history the punishment to be imposed upon wrongdoers has when subject to negotiation (see Comment, The Plea Bargain in Historical Perspective, 23 Buffalo L.Rev. 499, 500--501). Plea negotiation, in some form, has existed in this country since at least 1804 (see p. 512). Even in England, where there are no public prosecutors, no inflexible sentencing standards, and considerably less pressure on the trial courts, a limited form of plea negotiation seems to be developing (compare Cooper, Plea Bargaining: A Comparative Analysis, 5 N.Y.U. Journal of Int. Law & Politics 427, 435; Thomas Plea Bargaining and the Turner Case, 1970 Crim.L.Rev. (Eng.) 559, 561--565 With Davis, Sentences For Sale: A New Look at Plea Bargaining in England & America, 1971 Crim.L.Rev. (Eng.) 150, 223, 225). Moreover, convictions upon guilty pleas, pleas probably to lesser crimes, have been high since 1839 both in rural, where there is little trial court congestion, and in urban areas, where there is much congestion (Nineteenth Annual Report of N.Y. Judicial Conference, 1974, A-97--A-99, A-129; Moley, The Vanishing Jury, 2 So.Calif.L.Rev. 96, 107, 109). History and perspective suggest, then, that plea negotiation is not caused solely, or even largely, by overcrowded dockets. This is not to say, however, that plea negotiation is not acutely essential to relieve court calendar congestion, as indeed it is (U.S. President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society, 135 (1967)). In budget-starved urban criminal courts, the negotiated plea literally staves off collapse of the law enforcement system, not just as to the courts but also to local detention facilities.

Plea negotiations, of course, serve many other needs. They relieve the prosecution and the defense too, for that matter, from 'the inevitable risks and uncertainties of trial' (U.S. President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society, 135 (1967)). The negotiation process which results in a guilty plea telescopes the judicial process and the necessarily protracted intervals involved in charges, trial, and sentence, and even appeals, hopefully starting the offender on the road to possible rehabilitation (see Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 30 L.Ed.2d 427; Brady v. United States, 397 U.S. 742, 752, 90 S.Ct. 1463, 25 L.Ed.2d 747; American Bar Association Project on Minimum Standards For Criminal Justice, Standards Relating to Pleas of Guilty, 40--41 (1968)). The process also serves significant goals of law enforcement by permitting an exchange of leniency for information and assistance (U.S. President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts, 10 (1967)).

Perhaps most important, plea negotiation serves the ends of justice. In enables the court to impose 'individualized' sentences, an accepted ideal in criminology, by avoiding mandatory, harsh sentences adapted to a class of crime or a group of offenders but inappropriate, and even Draconian, if applied to the individual before the court (Newman, Conviction: The Determination of Guilt or Innocence Without Trial, 112-- 115 (1966)). Obviously no two defendants are quite alike even if they have committed, in legal definition, identical offenses. The negotiation process often brings to light mitigating circumstances unknown when the defendant was charged (Enker, Perspectives in Plea Bargaining, in Appendix A to U.S. President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts, 110).

'(C)riminal conduct must be described in generalized terms. The rules must sweep together identical acts with their markedly different actors amid infinitely variable circumstances. So, as the chancellor and the general verdict of the jury softened the impact of common law rules in the civil law field, so discretion functions to provide the selectivity needed in criminal law enforcement. Thus, the respectable businessman who inadvertently carries a pistol across state lines need not be treated as the gangster who is caught with an unlicensed revolver. Nor need the nurse who technically violates the narcotics law be treated as a criminal because she unwisely administered to a patient in excruciating pain. * * *

'(T)here is the much-maligned, but almost universally used, discretion by prosecutors and courts in accepting lesser pleas. * * * It is sometimes a finer adjustment to the particular crime and offender than the straight application of the rules of law would permit.' (Breitel, Controls in Criminal Law Enforcement, 27 Univ. Chicago L.Rev. 427, 431--432; see, also, Newman, Conviction: The Determination of Guilt or Innocence Without Trial 112--129 (1966), Op. cit.)

Plea negotiations serve other laudable purposes (see Newman, Conviction: The Determination of Guilt or Innocence Without Trial 105--111, Op. cit.; Enker, Perspectives in Plea Bargaining, in Appendix A to Task Force Report, 109--110). Like procedures to protect the integrity of the fact-finding process at trial, still-developing modern practices are available to assure the integrity of the guilty plea (see, e.g., People v. White, 32 N.Y.2d 393, 399--400, 345 N.Y.S.2d 513, 518--520, 298 N.E.2d 659, 663--664; People v. Flowers, 30 N.Y.2d 315, 333 N.Y.S.2d 393, 284 N.E.2d 557; People v. Nettles, 30 N.Y.2d 841, 335 N.Y.S.2d 83, 236 N.E.2d 467; see, generally, People v. Nixon, 21 N.Y.2d 338, 287 N.Y.S.2d 659, 234 N.E.2d 687*; American Bar Association Project on Minimum Standards For Criminal Justice, Standards Relating to Pleas of Guilty, §§ 1.5--1.7). Where a defendant denies guilt, or if the court believes defendant may be innocent, and the guilty plea is not otherwise justified as knowingly and intelligently made, the guilty plea may be and should be rejected (see, e.g., People v. Beasley, 25 N.Y.2d 483, 307 N.Y.S.2d 39, 255 N.E.2d 239; People v. Nixon, 21 N.Y.2d 338, 351, 287 N.Y.S.2d 659, 668, 234 N.E.2d 687, 694, Supra; People v. Serrano, 15 N.Y.2d 304, 258 N.Y.S.2d 386, 206 N.E.2d 330; see, also, North Carolina v. Alford, 400 U.S. 25, 31--39, 91 S.Ct. 160, 27 L.Ed.2d 162).

In People v. Selikoff, the first of the three appeals before the court, defendant, in Westchester County Court, pleaded guilty to second degree grand larceny in full satisfaction of 38 counts in three indictments arising out of a complicated real estate 'swindle'. Defendant also pleaded guilty to obscenity in the second degree in satisfaction of another fourth multicount indictment. In accepting the guilty pleas, the pleading court stated on the record that based on the representations made by the prosecution and defense counsel, as well as on the facts known to him, it was his then opinion that no sentence of imprisonment would be imposed. Subsequent to the pleas, the same Judge presided at the trial of the codefendants. As the result of his experience in the trial, the Judge concluded that the pleading defendant's role in the fraudulent scheme had not been peripheral, as he had been advised during the plea negotiations, but that defendant had been a principal participant. The presentence report stated that defendant denied both his role in the fraud and his guilt of the obscenity charge.

On sentence, based upon his later information and views, the sentencing Judge stated that he could not and would not perform his conditional promise of no imprisonment. He offered defendant an opportunity to withdraw his guilty pleas. Defendant rejected the opportunity and insisted on performance of the 'promise'. Consequently, the court sentenced defendant to an indeterminate five-year sentence on the grand larceny charge and a $1,000 fine on the obscenity charge. The Appellate Division affirmed the convictions (41 A.D.2d 376, 343 N.Y.S.2d 387).

In People v. Campbell, the second appeal before the court, defendant, after a preliminary hearing on charges of felony drug possession, was held for action by the Grand Jury. Thereafter, at direction of the Grand Jury, a prosecutor's information...