
    In the Matter of Calvin Schrotenboer, Appellant, v Brenda Soloff, as Acting Justice of the Supreme Court Supervising the Current Term Grand Jury, et al., Respondents.
    Argued November 20, 1989;
    decided December 21, 1989
    
      POINTS OF COUNSEL
    
      Robert M. Beecher for appellant.
    I. A writ of prohibition is the appropriate vehicle, indeed, the only appropriate remedy under the circumstances, to prevent the unlawful prosecution of appellant. (Matter of Doe v Axelrod, 71 NY2d 484; Matter of Rush v Mordue, 68 NY2d 348; Matter of Schumer v Holtzman, 60 NY2d 46; Matter of B. T. Prods. v Barr, 44 NY2d 226; Matter of Dondi v Jones, 40 NY2d 8; Matter of Morgenthau v Erlbaum, 59 NY2d 143; Matter of Forte v Supreme Ct., 48 NY2d 179.) II. The District Attorney’s written agreement not to prosecute appellant is absolutely enforceable and its violation offends notions of fair dealing, due process, and constitutes impermissible prosecutorial misconduct. (People v Chin, 67 NY2d 22; People v Benedict, 115 AD2d 795, 68 NY2d 832, 998; United States v Carter, 454 F2d 426; Berger v United States, 295 US 78; People v Esajerre, 35 NY2d 463; Matter of Gribetz v Edelstein, 66 AD2d 788; Matter of Gold v Booth, 79 AD2d 691; Kastigar v United States, 406 US 441; United States v Kurzer, 534 F2d 511; United States v Gallo, 859 F2d 1078.)
    
      Robert M. Morgenthau, District Attorney (Kevin J. Fee and Marc Frazier Scholl of counsel), respondent pro se.
    
    I. A CPLR article 78 proceeding does not lie to test whether a promise not to prosecute should be enforced. (Matter of Lipari v Owens, 70 NY2d 731; Matter of Ward v McQuillan, 40 AD2d 974; Matter of Kraemer v County Ct., 6 NY2d 363; Matter of Rush v Mordue, 68 NY2d 348; Matter of Dondi v Jones, 40 NY2d 8; Matter of Blake v Hogan, 25 NY2d 747; People v Dunbar, 53 NY2d 868.) II. Petitioner is not constitutionally or statutorily entitled to enforce a promise not to prosecute extorted from authorities on the threat that he will not safely return children to their mother in the absence of the promise. Where the welfare of persons are at stake and where petitioner agreed to do nothing more than he was obligated to do by a prior judicial order, public policy mandates that a promise of amnesty not be enforceable. (Cowles v Brownell, 73 NY2d 382; United States v Bridgeman, 523 F2d 1099, cert denied sub nom. Johnson v United States, 425 US 461; United States v Gorham, 523 F2d 1088; United States v West, 607 F2d 300; People v Dunbar, 53 NY2d 868; People v McConnell, 49 NY2d 340; Santobello v New York, 404 US 257; Rowe v Griffin, 676 F2d 524; United States v Goodrich, 493 F2d 390; People v Seaberg, 74 NY2d 1.)
   OPINION OF THE COURT

Per Curiam.

In that an agreement of immunity from prosecution exacted by petitioner in exchange for the return of children to their lawful custodian pursuant to a Family Court order is unenforceable, petitioner’s article 78 proceeding to prohibit prosecution for custodial interference was correctly dismissed by the Appellate Division.

In accordance with the visitation provisions of a Family Court order of custody, petitioner — an attorney — during the summer of 1988 took charge of his three young children, who were to be returned to the custody of their mother (petitioner’s former spouse) by July 31. On July 16, petitioner was seen in New Jersey in his car with two children; the car was pulling a trailer packed with boxes. When the children were not returned by July 31, with no word of their whereabouts, their mother contacted the authorities, and on August 3, a warrant was issued for petitioner’s arrest, for the felony of custodial interference in the first degree (Penal Law § 135.50 [1]).

Some weeks later — on August 31 — petitioner called an Assistant District Attorney and offered to return the children by September 8, but only on condition that he received absolute immunity from prosecution and that his former spouse agree not to seek any change in the visitation provisions of the Family Court order. When petitioner telephoned the ADA two days later, she read him a draft agreement and then transmitted a copy electronically to the office of petitioner’s brother, an attorney in California. The agreement provided full immunity from prosecution for the return of the children safely and in good health by September 8, 1988, and represented that the prosecutor would use "all reasonable and best efforts” to prevent the children’s mother from seeking any change in the Family Court order that would adversely affect petitioner’s visitation privileges.

Petitioner informed the ADA of spelling errors in the draft; he solicited her promise that the District Attorney would take steps to insure that he would not be prosecuted under any Federal statute; and he demanded that he not be required to deliver the children personally. On September 6, a signed agreement incorporating these revisions was sent to the office of petitioner’s brother and on September 8, petitioner delivered the children to their mother’s apartment. He was thereafter arrested pursuant to the August warrant.

In response to a felony complaint charging him with custodial interference, petitioner initiated the present article 78 proceeding seeking to prohibit prosecution as a violation of the agreed immunity. The Appellate Division dismissed the petition, without opinion, and this court granted leave to appeal. We now affirm.

The core of petitioner’s argument is that prohibition is required because refusal to honor this "negotiated arrangement” offends notions of fair dealing and due process, and constitutes a breach of the obligations of public prosecutors. We have no quarrel with petitioner’s observations that a high trust is reposed in prosecutors, and that prosecutorial integrity is central to the entire criminal justice system (see, Matter of Chaipis v State Liq. Auth., 44 NY2d 57; see also, People v McConnell, 49 NY2d 340, 349). But we cannot agree that these principles have any application to the facts at hand. While petitioner complains of a lack of good-faith bargaining, these parties were not engaged in any true bargaining, a process that contemplates that each side will contribute something in exchange for a desired compromise.

Petitioner instituted this "negotiation,” and escalated his demands, while secreting three children in violation of a court order, their welfare unknown. In exchange for the prosecutor’s concessions, petitioner contributed nothing, and agreed to do no more than the law already required of him — return the children to their lawful custodian, safe and in good health. Mandating enforcement of an agreement exacted in these circumstances is a perversion, not a requirement, of public policy (see, United States v Gorham, 523 F2d 1088, 1097 [DC Cir]).

Accordingly, the judgment of the Appellate Division should be affirmed, without costs.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in Per Curiam opinion.

Judgment affirmed, without costs.  