Defendant appeals from the judgment rendered on 3 May 1989 of the County Court, Nassau County convicting him of sodomy in the first degree and use of a child in a sex performance, upon his plea of guilty and sentencing him to four concurrent indeterminate terms of 2 years imprisonment.
AF is a retired high school teacher. He was under arrest in 1987 on Federal criminal charges for using the mails to send and receive child pornography. A subsequent investigation disclosed that AF ran an after-school computer program in his Great Neck home. AF’s son, JF, had been sexually abusing the young boys who had been regularly attending the computer classes. AF was arrested on State charges with respect to the sexual abuse crimes, and upon his guilty plea, was sentenced, inter alia, to 8 1/3 to 25 years imprisonment in addition to his sentence on the Federal charges. In connection with the investigation of the AF and JF, police were led to the defendant, a friend of JF, who had also sexually abused some of the boys who had been attending the computer classes. The defendant, who was 15 and 16 years old when he committed the crimes, became repulsed by them, and six months before the AF and JF were arrested, the defendant disassociated himself from JF and his activities. Following the defendant’s indictment for a number of sex crimes, including class B violent felonies, the prosecution, with the approval of the victims’ families, approached the defendant’s counsel and sought the defendant’s assistance in strengthening the case against JF and in providing information concerning two other individuals suspected of being involved in the crimes. Domestic Violence could be involved.
The defendant agreed to cooperate on 8 September 1988. The terms and agreement between the defendant and the prosecution were placed on the record. In exchange for defendant’s testimony, it would recommend to the sentencing court that defendant will receive a sentence no more than six months in jail, youthful offender status, probation and any and all therapy contingent upon that probation which the probation department deems is necessary. There was not a drug charge made.
The prosecution received the maximum benefits of the defendant’s testimony. He supplied the information and testimony that led JF to plead guilty and get imprisoned. The prosecution, however, entered into another set of promises unknown to the defendant. They represented to the victim’s families that the defendant would not be allowed to plead guilty to anything less than the top counts of the indictment, Class B violent felonies. The defendant was made aware of these only five months after the date of his cooperation agreement.
On 22 March 1989, defendant entered his guilty plea. On 3 May 1989, he was sentenced.
At the time the defendant pleaded guilty, Judge B stated that based on her review of the defendant’s candid revelations before the Grand Jury, she would not grant the defendant youthful offender treatment. The prosecution then rejected the defense counsel’s urging that the prosecution consent to a guilty plea to a class D felony, which would have enabled the court to impose a six-month term of imprisonment, in keeping with the prosecution’s recommendation. After learning that the court would not grant the defendant youthful offender treatment, the prosecution, by refusing to let the defendant plead guilty to any crime below a class B violent felony, prevented the defendant from being legally sentenced to anything less than the 2 to 6 year term of imprisonment which was imposed.
Thus, the prosecution rendered hollow its express promise to recommend a six-month term of imprisonment.
The defendant asserts on appeal that the prosecution’s representation to the victims’ families, that it would insist on guilty pleas to the top counts, constituted secret, double dealing which violated the “fair import and spirit” of the prosecution’s cooperation agreement with the defendant, and that, therefore, the defendant’s sentence should be adjusted to reflect the terms of his cooperation agreement with the prosecution.
The court finds that by extending promises to the victims’ families, after negotiating the cooperation agreement with the defendant, the prosecution betrayed the spirit of the cooperation agreement and its promise to the defendant as to the prospects of his receiving youthful offender treatment and six months imprisonment.
The prosecution has recognized that the defendant fully complied with his part of the agreement, and that he was instrumental in the prosecution of one of the key figures in the crime. Although the court, when refusing to grant the defendant youthful offender treatment, gave him the opportunity to withdraw his guilty plea, that offer, under the circumstances of this case, could not adequately remedy the situation created by the prosecution. At that point, the defendant had already totally complied with his part of the agreement, and the prosecution had received and fully benefitted from his cooperation.
The court finds that the defendant acted to his detriment on the promise of the prosecution, and it was not enough to permit the defendant to withdraw his plea, or to promise to foreclose the use of his Grand Jury testimony if he chose to go to trial as was held in an analogous case of People v McConnell.
The court rules that it cannot countenance a judgment of conviction obtained under these circumstances and then vacate the judgment of conviction and adjudicate the defendant a youthful offender.
Although there is some question as to whether Judge B applied the proper standard in denying the defendant youthful offender treatment, the court finds that under the circumstances of this case, in light of the determination regarding the prosecution’s conduct, it would be inappropriate to remit the matter for resentencing. In the exercise of the court’s discretion in the interest of justice, the court reduces the defendant’s sentence to the very terms recommended and agreed to by the prosecution.
The court notes that the defendant has already served his sentence.
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