Senate Bill S5649

                                BILL NUMBER:S5649

TITLE OF BILL:  An act to amend the criminal procedure law, in
relation to a plea of guilty

This measure is being introduced at the request of the Judiciary upon
the recommendation of the New York State Permanent Commission on
Sentencing{1}.

Provisions of this Measure This measure would amend sections 220.10(5)
and 220.30(3) of the Criminal Procedure Law to permit a plea of
guilty, notwithstanding any current statutory restriction on such a
plea otherwise, when both the prosecutor and the court are satisfied
that, in the interest of justice, the nature and circumstances of the
criminal conduct, the available evidence and the history and character
of the defendant justify such plea.

Section one of this measure would amend section 220.10, which sets
forth the rules governing when a defendant charged in a single
indictment may take a guilty plea. Subdivision (5) of section 220.10
now sets forth restrictions on the taking of such a plea depending
upon the charges that the defendant faces, e.g., where defendant is
charged with a certain B felony, then any guilty plea he or she enters
to the indictment must include a plea of guilty to a felony.  The
amendment to section 220.10(5) provided in this measure would permit
defendant, with permission of the court and consent of the people, to
              

enter a guilty plea to a charge not now permitted by section 220.10
under circumstances where, based on the nature and circumstances of
the criminal conduct, the available evidence and the defendant's
history and character{2}, both court and prosecutor believe such
guilty plea would be in the interest of justice.

Section two of this measure makes a comparable amendment to section
220.30(3)(b), which sets forth the rules governing when a defendant
charged in multiple indictments may take a single guilty plea in
satisfaction of those indictments.

Note that neither of the foregoing changes will alter the law with
respect to a guilty plea when capital murder is charged or in the case
of a juvenile offender.

Justification Prior to the Rockefeller Drug Laws, a plea of guilty to
less than an entire indictment was permitted with the consent of the
court and prosecutor. There were no other statutory restrictions on a
guilty plea to a lesser offense.

When proposing his Drug Laws in the early 1970s, Governor Rockefeller
wanted to bar a defendant from evading the higher penalties called for
thereunder by pleading guilty to a lesser crime, even where the court
and prosecutor consented; and, so, the laws governing the taking of
guilty pleas were amended accordingly. Since then, the Legislature has
applied similar restrictions upon pleas to broader classes of felonies
than those originally envisioned as part of the Drug Law enactment.

The Sentencing Commission now recognizes that information such as
might justify resolution of a criminal charge by guilty plea may not
often be complete on the day that the indictment is filed; and, yet,


that is the day on which the plea restrictions now set forth in
sections 220.10 and 220.30 attach. Experience has shown that the
nature and weight of the evidence against defendant may change over
time and, as a result, the prosecutor's belief as to the proper level
of a defendant's culpability, particularly among his or her
accomplices, may change as well. The result: despite ongoing efforts
by prosecutors, courts and criminal defendants and their counsel to do
justice within the current statutory framework, the arbitrary and
artificial restrictions on guilty pleas dictated by that framework may
force expensive and unnecessary trials, which can be contrary to the
interests of the prosecution, the defendant and the community.

Accordingly, the Commission urges the enactment of this measure. While
keeping the current plea restrictions intact, the measure adds an
escape valve to permit the doing of justice in especially compelling
cases. It does this by supplying a mechanism for overriding the
restrictions on guilty pleas where, upon consideration of the nature
and circumstances of the criminal conduct, the available evidence and
the defendant's history and character, both the court and the people
agree that bypassing the restrictions is warranted in the interest of
justice. This mechanism will promote fairness for individual
defendants, spare communities the need to expend precious resources on
unnecessary trials and, overall, further the administration of
criminal justice{3}.

This measure would take effect immediately.

Legislative History: None. New proposal.

{1}The New York State Sentencing Commission, was established by the
Chief Judge of the State in 2010. It is co-chaired by the Hon. Barry
Kamins, Administrative Judge for the NYC Criminal Court and for
criminal matters in the Second Judicial District, and Hon. Cyrus
Vance, Jr., New York County District Attorney. Its members include a
broad spectrum of representatives from the criminal justice community,
including criminal defense attorneys, judges, policymakers, academics
and victim advocates The Commission serves in an advisory capacity to
the Chief Judge and is charged with comprehensively evaluating
sentencing laws and practices and recommending reforms that will
improve the quality and effectiveness of statewide sentencing policy.

{2}The amendment requires that all of these factors be placed upon the
record, although the failure to do so would not be grounds for the
defendant to have his or her plea set aside.

{3}Note that there is precedent for this measure under current law
wherein, under the Vehicle and Traffic Law, the people and the court
may consent to a defendant's guilty plea to a violation of the DWI
laws albeit such plea is otherwise barred by statute, See VTL
1192(10)