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The court ultimately sentenced the defendant

In this Criminal action, the defendant here pleaded guilty only after the court told him that, if he did not, he would be remanded until his next scheduled court appearance. The issue presented on this appeal is whether the plea was voluntary.

A Nassau County Criminal lawyer said that in November 2005, the People filed a felony complaint charging the defendant with two counts of falsifying business records in the first degree. He was arraigned on the complaint and released on $1,000 bail. Seven months later, a grand jury returned a 40-count indictment charging the defendant with two counts of grand larceny in the third degree, scheme to defraud in the first degree, granc larceny in the fourth degree, petit larceny, attempted granc larceny in the fourth degree, attempted petit larceny, twenty-four counts of falsifying business records in the first degree, seven counts of insurance fraud in the fourth degree, and two counts of insurance fraud in the fifth degree.

The charges were based on allegations that, between December 21, 1999 and October 13, 2005, the defendant, a licensed dentist with a practice in Hempstead, New York, repeatedly submitted falsified claim forms to a number of insurance carriers and attempted to alter his own business records to avoid detection.

At the defendant’s arraignment on the indictment on July 6, 2006, the People asked that bail be fixed at $250,000. The court, however, continued the $1,000 bail previously set, but directed a “conditional release” which involved placing the defendant under the supervision of the Nassau County Probation Department.” The court further directed that the defendant surrender his passport and report to the Nassau County Investigation Bureau for processing.

When the case was called on November 21, 2006, the court observed that it was “ripe for trial.” On December 18, 2006, the court stated that the case was “getting old meaning it’s going to be either disposed of soon or it’s going to be tried soon.” The court then told the defendant that it had reviewed the minutes of the grand jury proceedings and had concluded that, in view of the “overwhelming” proof presented, his chances of prevailing at trial were slim. The court said it would adjourn the case for the defendant to decide whether or not to accept the plea offer, and that, if he did not, the case would be “farmed out for trial.”

For reasons not clear from the record, the matter was subsequently adjourned a number of times until all parties again appeared in court on Wednesday, January 3, 2007. Plea discussions continued, and the court revealed that it had received a letter from the Probation Department complaining of the defendant’s failure to comply fully with the conditions of his release. The Probation Department asked that the court “admonish the defendant and remind him that he must report as directed if he wishes to remain at liberty.”

The terms of the plea were then spread on the record. The defendant would plead guilty to two counts of granc larceny in the third degree, scheme to defraud in the first degree, granc larceny in the fourth degree, and falsifying business records in the first degree; he would waive his right to appeal, pay restitution in the amount of $10,102.20, and surrender his license to practice dentistry. At the time of sentence, the People would dismiss the remaining counts of the indictment, and would recommend that the defendant be fined $20,000 and sentenced to an indeterminate prison term of 1 1/3 to 4 years. The court would then sentence the defendant to probation with restitution and the suspension of his dentistry license, unless it felt, based upon the presentence report, that it could not fulfill its promise of a nonjail sentence. In that event, the defendant would be permitted to withdraw his plea of guilty.

The criminal defendant asked some questions, particularly about the suspension of his dentistry license. The court replied that the suspension of the license was a condition of the plea, “but it’s not going to be carried forth until date of sentence. If things happen between now and [the] sentence that make me change my mind, then that’s a possibility.

The allocution concluded and the criminal court adjourned the matter for two months for the preparation of a presentence report. The defendant’s bail was continued.

Thereafter, the matter languished as the defendant twice changed attorneys and moved to withdraw his guilty plea, inter alia, on the ground that the court had coerced him to plead guilty by threatening to remand him if he did not. By order entered August 29, 2007, the court (Peck, J.) denied the motion, finding, among other things, that the defendant had not been coerced into pleading guilty. In its decision, the court wrote, in pertinent part:

“As to the issue of remanding the defendant if a plea did not take place, an examination of the historical record of the case, especially the Court dates prior to the defendant’s plea date is necessary to fully understand what transpired. The defendant’s custody status was that he was released to the custody of the Nassau County Probation Department. Pending the outcome of his case, he failed on eight separate occasions to comply with their mandates.

The court ultimately sentenced the defendant, inter alia, to concurrent terms of five years’ probation, restitution in the amount of $10,102.20, and a fine of $20,000. The court, however, did not require the defendant to surrender his dentistry license. The defendant now appeals, challenging the voluntariness of his plea.

In order to be valid, a guilty plea must be entered voluntarily, knowingly, and intelligently. A plea is voluntary if it represents a choice freely made by the defendant among legitimate alternatives. When offered benefits for pleading guilty and confronted with the risk of more severe punishment if a plea offer is refused, a defendant will certainly feel pressure to plead guilty. But such pressure does not render a guilty plea involuntary because “`the imposition of these difficult choices is an inevitable’—and permissible—`attribute of any legitimate system which tolerates and encourages the negotiation of pleas'”.

New York, like most other jurisdictions, has long accepted the practice of plea bargaining, noting that it “serves important functions for both prosecutors and defendants”. Indeed, plea bargaining is predicated on mutuality of advantage. In return for surrendering the right to put the prosecution to its proof at a trial and for giving up the possibility of acquittal, the defendant receives consideration, almost always in the form of a sentence more lenient than might reasonably be expected upon a conviction after trial.

In practice, plea bargaining in New York is a process by which the prosecution and the criminal defendant, often with the active participation of the court, negotiate to find a disposition that is both acceptable to the court and prosecution and sufficiently lenient to induce the defendant to relinquish the right to a trial, and all the rights associated with a trial.

In contrast, bail status concerns only “the kind and degree of control or restriction that is necessary to secure attendance when required”. It has no legitimate connection to the mutuality of advantage underlying plea bargaining because it does not relate either to the more lenient sentence for which the criminal defendant is negotiating or to the waiver of trial and the certainty of conviction the prosecution is seeking.

Moreover, it is hardly befitting a legitimate system of plea bargaining to require a defendant, in effect, to choose between, on the one hand, admitting guilt and remaining free, and, on the other, maintaining innocence and going to jail.

Because an immediate change in the defendant’s bail status is not an appropriate consideration in plea negotiations, when the court threatens to increase bail or remand the defendant unless a guilty plea is entered, any resulting plea cannot be deemed voluntary because the defendant’s decision to plead guilty would no longer represent a free choice among legitimate alternatives. The Court conclude, therefore, that the defendant’s guilty plea was not voluntary.

Finally, the Court recognize that, in the course of plea negotiations, it may be the defendant who first inquires as to the court’s intentions with respect to bail. This most often happens when a defendant who is incarcerated in lieu of bail is conditionally offered a disposition that carries no further jail time. We think that the better practice when, during plea negotiations, a defendant inquires about bail is for the court to remind the defendant that the parties are engaged in plea bargaining, not “bail bargaining,” and that the question of bail will be addressed only after plea negotiations are completed.

Because the Court conclude that the defendant’s guilty plea was not voluntarily entered, the judgment is reversed, the defendant’s guilty plea is vacated, and the matter is remitted to the Supreme Court, Nassau County for further proceedings.

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