Defendant's moving papers consist of a rambling, prolix series of allegations, couched mainly in the form of rhetorical questions, attacking the legality of the major offender program. Without avowing any particular constitutional deprivation, criminal defendant seems to be implying that he is being denied some fundamental right by being selected for prosecution as a major offender. Such vagueness is due, no doubt, to the difficulty he has in recognizing just what right it is that he is being denied. He certainly cannot claim that he is being denied the right to a speedy trial. If anything, the program augments that right.
Generally speaking, the gravamen of defendant's complaint seems to be that by being cast as a defendant in the accelerated prosecution program, he is being deprived of the right to be treated the same as other defendants in the criminal process. This argument is without merit.
At the root of this challenge is the oft-heard criticism that defendants prosecuted under the major offense program are being denied the plea bargain opportunities that are available to those not so prosecuted. There is, of course, no constitutional right to a plea bargain. In stating this principle, there is no intention here to disparage plea bargaining or gainsay its efficacy in the criminal justice system.
Plea bargaining does in fact occur in the overwhelming percentage of major offense prosecutions but not on terms in which the elements of delay and staleness of prosecution are a factor. In most instances, the plea offered is to the highest count of the indictment or to the next highest count. Doubtless, it is this feature of the program that is so distressing to a defendant. If there is a certain intransigence in the position of the prosecutor as regards his plea offer in a major offense case, it is due to the fact that his case is relatively strong, well prepared and free of the debilitating effect of delay.
It should be noted at the outset that the major offense program involves a decision by the District Attorney of Bronx County to prosecute certain individuals by means of a procedure different from what is used to prosecute the majority of those accused of the commission of felonies. It is not a decision to prosecute only certain types of crimes or individuals. If a particular defendant is not selected for prosecution under the major offense program, he is prosecuted nonetheless. In short, what is involved is selective prosecution, not selective enforcement.
To Be Cont...