Sunday, November 11, 2007

Appellate Review of Bargained for Sentences

In its November decisions, the Appellate Division, Fourth Department twice (here and here) held that
Where, as here, a "defendant effects a plea bargain and receives the precise sentence that was promised, he should not later be heard to complain that he received what he bargained for" (People v Chambers, 123 AD2d 270, 270; see People v Dixon, 38 AD3d 1242).

Considering that the Court of Appeals in People v Thompson, 60 NY2d 513 [1983] has expressly held that the Appellate Divisions have the authority to review even bargained for sentences, one might be curious about the holdings in Chambers and Dixon.

In People v Chambers, the First Department actually reduced the bargained for sentence, holding that
Ordinarily, of course, where defendant effects a plea bargain and receives the precise sentence that was promised, he should not later be heard to complain that he received what he bargained for (People v. McCullers, 40 AD2d 796, 797, affd 33 NY2d 806). Here, however, there are special circumstances deserving of recognition.

Dixon is a Fourth Department decision citing Chambers and People v. McCullers, 40 A.D.2d 796 [1972] in which the First Department held that
...the defendant received no greater sentence than it was understood he would receive. He cannot now complain because a promise was kept.

Of course McCullers was rendered more than a decade before the Court of Appeals in Thompson, for the first time clearly held that appellants can raise such claims and that intermediate appellate courts in New York do have the authority to reduce bargained for sentences. The only other case cited in Dixon is People v Northrup, 23 AD3d 1102 [4th Dept 2005], another Fourth Department case which cited only Chambers and McCullers as support for this holding.

These decisions of the Fourth Department neither cite nor distinguish Thompson or People v Delgado, 80 NY2d 780 [1992](in which the Court of Appeals again confirmed the Appellate Divisions' authority to reduce bargained for sentences).

Here is what the Court wrote in Thompson
...the Legislature has adopted procedures at the intermediate appellate level, conferring different authority to reduce sentences on the Appellate Divisions than has been granted to the individual Trial Judges.....
The Legislature has also prescribed the corrective action the Appellate Division must take if it decides that a sentence legally imposed is excessive under the circumstances of a particular case....Thus the Appellate Division was not bound, as it assumed, to afford the People the option of withdrawing their consent to the plea once it concluded in the exercise of its discretion that the sentence imposed was excessive. Its first order, simply reducing the sentence to a lesser term, was in accord with the relevant statute. It was also consistent with the well-established practice. The power of the Appellate Division to reduce a sentence, which it finds unduly harsh or severe, in the interest of justice and impose a lesser one has long been recognized in this State. It was originally exercised as an inherent power (see, e.g., People v. Miles, 173 App.Div. 179, 183-184, 158 N.Y.S. 819) and was later codified in section 543 of the Code of Criminal Procedure. When the Legislature adopted the current CPL in 1971 it again expressly authorized the practice, without substantive change (CPL 470.15, subd. 6, par. [b]; 470.20, subd. 6). The defendant did not, as the People urge, lose his right to seek appellate review of his sentence by pleading guilty....If the exercise of this power frustrates the People's expectations in cases involving negotiated sentences it is not the result of any change in the law. The statute is clear on its face and has been uniformly, albeit rarely, employed in the past. It presents a risk, although a minimal one, which presumably is taken into account or discounted at the time of the plea negotiations.

It appears that the recent jurisprudence of the Appellate Division, Fourth Department is inconsistent with this holding. It further appears that no other Appellate Division has held since Delgado that a defendant may not complain on appeal about the fairness of a bargained for sentence. Thus, these decisions might present an issue meriting the granting of leave to appeal.