
    The People of the State of New York, Respondent, v Danny G., Appellant.
    Argued January 9, 1984;
    decided February 21, 1984
    
      POINTS OF COUNSEL
    
      Susan Slovak and William E. Hellerstein for appellant.
    Appellant cannot be denied specific performance of his bargained-for sentence when (a) he complied fully with the terms of the plea bargain by testifying against a codefendant; (b) the record does not substantiate the Trial Judge’s assertion that he warned defense counsel, before appellant testified against codefendant, that the bargain would not be honored; and (c) neither the failure of appellant’s codefendants to receive similar bargained-for sentences nor the information in appellant’s presentence report was a sufficient basis for the court’s refusal to honor the agreement. (People v McConnell, 49 NY2d 340; Matter of Chaipis v State Liq. Auth., 44 NY2d 57; People v Selikoff, 35 NY2d 227, 419 US 1122; Matter of Benjamin S., 55 NY2d 116; People v De Crescente, 53 NY2d 995; People v Da Forno, 53 NY2d 1006; People v Frederick, 45 NY2d 520; People v Davidson, 35 NY2d 227.)
    
      John J. Santucci, District Attorney (Brian Bressman of counsel), for respondent.
    The court’s refusal to honor the bargained-for sentence was warranted in view of the additional information contained in the probation report, which information would have made performance of the bargain improvident. (People v McConnell, 49 NY2d 340; People v Selikoff, 35 NY2d 227; Matter of Benjamin S., 55 NY2d 116.)
   OPINION OF THE COURT

Wachtler, J.

In People v McConnell (49 NY2d 340), we held that a defendant who has placed himself in a “no-return” position by carrying out his obligations under a plea agreement is entitled to specific performance of that agreement in cases where no significant additional information bearing upon the appropriateness of the plea bargain later comes to the court’s attention. Defendant, who testified at the trial of an accomplice in full compliance with his part of the bargain, falls squarely within this rule. The court’s refusal to impose the agreed upon sentence having no sufficient justification on this record, defendant is entitled to specific performance of the plea agreement.

Defendant was charged with burglary in the first degree and robbery in the first and second degrees, after he surrendered to the police and admitted his participation in the crimes. He pleaded guilty to burglary in the first degree in full satisfaction of the indictment. During proceedings on the plea, defendant admitted that he, along with four others, broke into complainant’s house through a kitchén window at 2:00 a.m. Defendant waited in the kitchen while the others went upstairs. One of his accomplices came downstairs and said that the complainant was home. The accomplice took a knife from the kitchen and returned upstairs. Shortly after, the four accomplices came back downstairs and defendant left the house with them.

The record indicates that defendant reached an agreement with the Assistant District Attorney in which defendant, in return for his guilty plea, would receive a recommendation for youthful offender treatment and a sentence of probation. The People’s recommendation that the court accept the plea was expressly conditioned upon defendant’s promise to testify for the People should the case against one of defendant’s accomplices proceed to trial. The court, noting that a similar arrangement had apparently been approved by another Judge for two other accomplices, agreed to the terms of the plea agreement, reserving the right to change the sentence should the presentence report contain information indicating that the promised sentence was improper, unrealistic, or inadequate.

Thereafter, defendant testified for the People in the case against his accomplice in accordance with the terms of the plea agreement. When defendant appeared for sentencing, however, the court refused to impose the agreed upon sentence of probation. Although the court did adjudicate defendant a youthful offender as it had promised, the sentence imposed was a 90-day term of imprisonment, to be served intermittently, as well as a term of probation.

The court listed several factors as affecting its decision to impose a sentence different from that originally recommended by the People. First, the court noted that although it had considered the plea agreement extremely generous to defendant, it had acquiesced in it because of its belief that other accomplices would be receiving similar treatment. It was subsequently learned that the sentence recommendations as to these others were not accepted and that the prosecutor had erred when he informed the court to the contrary. Secondly, the court indicated that counsel for defendant had immediately been informed of the court’s intention not to abide by the plea agreement, before defendant was produced to testify at the trial of his accomplice. Finally, the presentence report revealed that defendant had been arrested twice since the arrest in this case. Although one charge was dismissed, the other resulted in youthful offender treatment, incarceration, and a three-year probation term. The court viewed the report’s failure to recommend youthful offender treatment as mandating that a term of imprisonment be imposed, notwithstanding the very favorable report on defendant’s performance on probation.

Upon defendant’s appeal from the sentence imposed, the Appellate Division affirmed. Because we do not agree that the circumstances outlined by the sentencing court were sufficient to refuse to abide by the promised sentence after defendant had completed his part of the agreement by testifying for the People, we reverse.

Recently, this court held that an off-the-record promise, although not in express contradiction with the record, made in the course of the plea bargaining process, is not entitled to judicial recognition (Matter of Benjamin S., 55 NY2d 116). In so holding, we reaffirmed the important policy that openness and certainty in plea negotiations are vital to the continued validity of that process (id., at pp 120, 121; see People v Frederick, 45 NY2d 520, 525; People v Selikoff, 35 NY2d 227, 242-244, cert den 419 US 1122). Defendant argues that the contention that he was warned of the court’s intention not to abide by the plea agreement amounts to withdrawal of a sentencing promise which should be deemed unenforceable because it was not placed on the record.

It is clear that the warning referred to by the court is not reflected in the record. When the court indicated at sentencing that it had warned defense counsel of its change of heart, defense counsel insisted that the court had not done so until after defendant had irrevocably changed his position by testifying for the People. The court then stated that there were minutes reflecting the in-chambers conference on the matter which had taken place well before trial of defendant’s accomplice. These minutes were not produced, nor as was thereafter discovered, had defendant been scheduled for any appearance between his plea and sentencing. The court adhered to its recollection that counsel had been notified of the court’s intention prior to producing the defendant to testify.

We believe this state of facts underscores the need to have all relevant terms of a plea agreement, including the withdrawal of a promise, placed upon the record. In terms of the necessity for certainty in this process, reliance upon the sometimes faulty memories of counsel or the sentencing Judge for such specifics as the date that a given promise was withdrawn, without independent verification, cannot be tolerated. Effective appellate review is all but precluded when the courts below have placed reliance upon off-the-record promises and representations. Moreover, inasmuch as the State may hold the defendant to the precise terms of the plea agreement as stated on the record, as a matter of fairness, defendant should be entitled to no less (see People v McConnell, 49 NY2d 340, 349, supra). Thus, we conclude that the withdrawal of the sentencing promise, not appearing on the record, is entitled to no recognition because of its effect on the plea bargaining process.

The court also noted that its decision not to abide by the sentencing promise was initially reached because similar treatment for two of defendant’s accomplices had not been approved. We agree with defendant that this is an inappropriate basis, in the circumstances of this case, to refuse to honor the sentencing promise. There is no requirement that all participants in a crime be treated equally. Such factors as the extent of actual involvement and circumstances of the individual’s background can, and indeed should, be considered in the sentencing decision (People v Selikoff, supra, at p 234). We note further that while the court, on accepting defendant’s plea, referred to the representation concerning the accomplices’ plea agreements, it did not explicitly condition acceptance of defendant’s plea agreement upon that event. Finally, that the court was misinformed as to the status of related plea negotiations is due to the error of the prosecutor and can in no way be attributed to defendant (cf. People v Da Forno, 53 NY2d 1006). Thus, the mere fact that other participants did not, as had been expected, receive similarly lenient treatment for reasons unknown to us on this record provides no justification for reneging on the plea agreement.

Remaining for our consideration is whether the adverse information contained in the presentence report was sufficiently significant to warrant the court’s refusal to impose the promised sentence. In People v McConnell (49 NY2d 340, supra), this court indicated that, in certain circumstances, specific performance of a plea bargain must be afforded as a matter of essential fairness to defendant. There, defendant had been promised a certain term of imprisonment upon his plea of guilty in exchange for his testimony before the Grand Jury and in subsequent proceedings against the other participants in the crime. Defendant fully performed his obligations, but at sentencing the court refused to go along with the agreed upon sentence on the basis that defendant had participated in the crime in a manner not precisely known to the court upon acceptance of the plea agreement. We held that defendant, who had irrevocably changed his position by testifying for the People, thus waiving his privilege against self incrimination and exposing himself to the risk of retaliation, was entitled to specific performance of his plea agreement. The information coming to the court’s attention after the plea was approved — that defendant had used a knife in addition to beating, punching or kicking the victim — was deemed too insignificant to warrant refusal to honor the bargain that defendant had fully performed.

Essential to our determination that specific performance is warranted under some circumstances is our concern that a defendant who has performed services for the prosecutor, at risk to himself, be treated fairly (see Matter of Chaipis v State Liq. Auth., 44 NY2d 57). Once the defendant has been placed in such a “no-return” position, relegating him to the remedy of vacatur of his plea cannot restore him to the status quo ante, and he should therefore receive the benefit of his bargain, absent compelling reasons requiring a different result. “Of importance also is the detrimental effect on the criminal justice system that will result should it come to be believed that the State can renege on its plea bargains with impunity notwithstanding defendant’s performance” (People v McConnell, supra, at p 349).

In the present case, as in McConnell, defendant fully performed his obligation under the plea agreement. By his testimony for the People, he waived his privilege against self incrimination and assisted in the prosecution of another at the risk of possible retaliation. This irrevocable change in position entitles defendant to specific performance of his plea agreement, inasmuch as the information contained in the presentence report was not so significant as to require a contrary conclusion. The sentencing court found particularly relevant that defendant had been arrested twice since his arrest in this case. As to one arrest, however, the charges were dismissed outright. As to the other, defendant was found guilty of petit larceny, adjudicated a youthful offender and sentenced to 30 days in jail and three years probation. In addition to the fact that both arrests as well as the disposition of the latter took place well before the plea agreement in the present case was accepted, it appears that the presentence report is generally very favorable to defendant. The report, noting that his family situation is extremely stressful, attributed this youth’s few criminal involvements to those difficulties. Defendant’s progress on probation is reported upon in glowing terms; both his remorse and cooperation are documented. Indeed, his current probation officer stated that probation is also indicated as a recommended disposition for this offense.

We conclude that the additional relevant arrest, having been disposed of prior to approval of the plea bargain, is an insufficient basis upon which to refuse to honor the bargain défendant has fully performed, particularly in view of the over-all favorable nature of the presentence report. Accordingly, the order of the Appellate Division should be reversed and the case remitted to Supreme Court, Queens County, for resentence to a term of probation in accordance with defendant’s plea agreement.

Jasen, J.

(dissenting). The majority today holds that the presentence report which disclosed, inter alia, that defendant had been arrested twice, convicted once, adjudicated a youthful offender and sentenced to 30 days in jail and three years probation, all subsequent to his arrest in this case, is generally favorable and that the adverse information is “not so significant” as to permit the court to refuse to abide by its sentencing promise even though its agreement to do so was expressly conditioned upon receiving a favorable presentence report. Since I do not believe that both courts below erred as a matter of law in deciding that the report was not favorable, I respectfully dissent.

I note preliminarily my complete agreement with the majority’s holding that judicial recognition cannot be given to the court’s off-the-record withdrawal of its sentencing promise. (Matter of Benjamin S., 55 NY2d 116; People v Frederick, 45 NY2d 520.) I also agree that inasmuch as the court did not specifically condition its approval of the plea bargain agreement upon defendant’s accomplices receiving similar treatment, the fact that similar treatment was not ultimately accorded those individuals would not be a proper basis upon which to deny the defendant the bargained-for sentence.

As the majority concedes, however, the record discloses that the Trial Judge made it very clear to defendant that he would acquiesce in the plea agreement between defendant and the District Attorney and impose a sentence of probation only if all the terms of the agreement were satisfied. One of the conditions to the court’s approval of the agreement was receipt of a favorable presentence report. With respect to that condition, the Judge informed the defendant, on the record, that “[i]f the probation report is returned and makes that sentence improper or unrealistic * * * or improperly based, I reserve the right to change that sentence and to advise you of the sentence that I think should be imposed in light of the information supplied in the probation report, and if I do that you can accept such sentence as I indicate I intend to give or you can withdraw the plea. Do you understand what I have said?” The defendant, in the presence of his attorney, replied that he understood and agreed to the condition.

The report, which was prepared and submitted to the court, contained information indicating that defendant had engaged in additional criminal activity subsequent to his arrest in this case, had previously engaged in antisocial conduct and could be easily provoked into doing so again. After receiving the report, the court decided that a sentence of probation would be inappropriate “particularly in light of the report of the Department of Probation”. (Emphasis supplied.) As a result of its determination that the report was not favorable and that a condition of the plea agreement had therefore not been satisfied, the court sentenced defendant to 90 days in jail, to be served intermittently. The Appellate Division affirmed.

On this appeal, defendant contends, and the majority agrees, that “[t]he contents of [the presentence] report did not qualify as adverse because, when read in its entirety, the report was favorable.” While it is true that the report contained some favorable comments concerning defendant, it also contained evidence that defendant has a propensity for engaging in criminal conduct. Indeed, the report disclosed that defendant had been arrested twice subsequent to his arrest in this case. As to the first arrest, the charges were dismissed. As to the other, defendant was charged with grand larceny, a felony, but was permitted to plead to a misdemeanor and was sentenced as a youthful offender to 30 days in jail and three years probation. The report also discloses that “[t]he defendant has participated in delinquent and antisocial conduct in company with other youths, and he has apparently been susceptible to influence of bold and psychopathic persons.” Defendant was also reported to be “quick tempered” and “easily provoked”.

The determination whether or not the presentence report is favorable requires a balancing of both the critical and the laudatory information contained therein. The nature of the information, its relevance to the decision whether or not defendant should be given probation and the circumstances surrounding the incidents detailed must also be taken into consideration by the court. In the case before us, the sentencing Judge analyzed the information contained in the report, and exercised his judgment and discretion in determining it to be unfavorable. The Appellate Division agreed and refused to employ its “interest of justice” powers to require specific performance of the plea agreement.

Nevertheless, the majority today characterizes the report as generally favorable and the adverse information contained therein as “not so significant” as to permit the court to find that a condition of its sentencing promise had not been satisfied. In doing so, this court impermissibly substitutes its judgment for the judgment of both courts below while doing little more than listing some of the favorable comments contained in the report and ignoring much of the adverse information. It is noteworthy that the majority does not, and indeed cannot, say that the courts below erred as a matter of law in determining the presentence report to be unfavorable.

Inasmuch as this court is empowered to review only questions of law (CPL 450.90, subd 2) and not discretionary or factual determinations, specific performance of the subject plea agreement cannot be ordered by this court unless it can be said that the sentencing court and the Appellate Division abused their discretion as a matter of law. Because there is abundant support in the presentence report to sustain the determination below that the report was unfavorable and that a condition precedent to enforcement of the court’s sentencing promise was not satisfied, this court should not substitute its judgment to reach a different result and require specific performance of the plea agreement.

Accordingly, I would affirm the order of the Appellate Division.

Chief Judge Cooke and Judges Jones, Meyer and Kaye concur with Judge Wachtler; Judge Jasen dissents and votes to affirm in a separate opinion; Judge Simons taking no part.

Order reversed and case remitted to Supreme Court, Queens County, for further proceedings in accordance with the opinion herein. 
      
       Defendant refused the court’s offer to withdraw his plea, instead insisting upon specific performance of the plea agreement.
     
      
       The majority’s implication that the fact that “both arrests as well as the disposition of the latter took place well before the plea agreement in the present case was accepted” (majority opn, at p 176) is somehow relevant is misleading. As defendant concedes, there is nothing on the record to indicate that the sentencing Judge was aware of defendant’s additional arrests prior to his approval of the plea agreement. As a result, no judicial recognition can be given to that fact. (Matter of Benjamin S., 55 NY2d 116; People v Frederick, 45 NY2d 520.)
     