# Appendix — Siegel v. New York

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1983
- **Citation:** 459 U.S. 1209

## Text

APPENDIX A

October 22, 1982 Decision and Judgment of Second
Circuit Court of Appeals herein Reversing the
District Court and Dismissing Petition/Complaint

(Siegel v. State and Kuriansky)

Before: Van Graaremanp, Pierce and Prart, Circuit
Judges.

Appeal from an order of the United States District
Court for the Southern District of New York, Robert W.
Sweet, Judge, specifically enforcing an off-the-record plea
agreement that plaintiff would not be required to testify
before a New York State grand jury with regard to certain
matters and, accordingly, enjoining defendants from so
questioning plaintiff.

Injunction vacated and cause remanded with an in-
struction to dismiss the complaint.

Prerce, Circuit Judge:

This case presents the novel issue of whether federal
due process requires a state prosecutor to fulfill an off-the-
record promise made in plea bargaining negotiations,' de-
spite New York State’s announced policy of enforcing only
those portions of a plea agreement which are actually
placed on the record at the plea proceeding. The United
States District Court for the Southern District of New
York, Robert W. Sweet, Judge, found that such a promise
must be enforced and, accordingly, enjoined the state prose-
eutor from breaching the promise. Because we find that
New York State’s policy of recognizing only on-the-record
plea bargains comports with due process and because the

1. Both the state trial court and the Appellate Division made
factual findings, and concluded that a plea bargaining promise existed
and should be enforced, each basing the result on different reasoning.
Matter of Benjamin S., 55 N.Y. 2d 116, 118-20 (1982),

2a
Appendia A

plaintiff, in offering his plea, failed to place on the record
the promise which he now seeks to enforce, we vacate the
injunction and remand to the district court with an in-
struction to dismiss the complaint.

I
A. State Court Proceedings

Plaintiff-appellee, Benjamin Siegel, is a 63-year-old
wholesale meat salesman. In March, 1979, Siegel testified
before a New York County grand jury investigating al-
leged criminal activities in the nursing home industry.
Siegel denied ever discussing or paying kickbacks to per-
sons in the nursing home industry, and he denied any
knowledge of other persons in the meat industry paying
such kickbacks.

Following his testimony, Siegel was indicted in New
York County on three counts of perjury in the first degree,
a class D felony. Siegel entered a plea of not guilty. On
November 21, 1979, Judge Aloysius Melia’ denied Siegel’s
motion to dismiss the indictment and several other motions,
and granted a motion to suppress one of the tape record-
ings which was to be used as evidence. Judge Melia re-
marked that the case appeared suited to disposition by a
negotiated guilty plea.

On January 21, 1980, in a reported hearing in open
court, the prosecutor, a Special Deputy Attorney General
assigned to the New York City regional office of the Hospi-
tal Division of the Deputy Attorney General for Medicaid
Fraud, and the appellee and his counsel informed Judge

2. Judge Melia was a — of the Criminal Court of the City
of New York, sitting by designation in the Supreme Court, New
York County,

3a
Appendix A

Melia that Siegel was prepared to plead guilty to a single
reduced count of perjury in the second degree, a class EB
felony, in exchange for dismissal of the other counts and
the promise of a sentence of five years probation plus a
fine. After ascertaining that Siegel was acting of his ‘‘own
free will,’’ that he understood the constitutional rights he
was waiving by pleading guilty, and that he understood
the sentence he would receive, Judge Melia accepted Sie-
gel’s guilty plea to a single count of perjury in the second
degree and imposed a sentence of five years probation and
a $2500 fine.

Six months later, on July 22, 1980, the Long Island
regional office of the Deputy Attorney General for Medi-
caid Fraud issued a subpoena to Siegel seeking to have
him testify before a grand jury investigating kickbacks in
the health care industry. Siegel moved in Queens County
Supreme Court to quash the subpoena claiming that, at
the time of the plea, the prosecutor had made an off-the-
record promise that Siegel would not have to testify before
the grand jury concerning the subject matter of his perjury
indictment. Justice George Balbach, to whom the motion
was assigned, conducted an extensive evidentiary hearing
with regard to the circumstances surrounding the negoti-
ation of Siegel’s guilty plea. During this hearing Justice
Balbach heard testimony from Siegel’s two defense at-
torneys and from both the New York City and the Long
Island Special Deputy Attorneys General handling the
ease. By opinion dated December 17, 1980, Justice Bal-
bach granted Siegel’s motion to the extent of modifying
the subpoena to preclude the prosecutor from questioning
Siegel about ‘‘those facts which were discussed during his
prior appearance before the New York County Grand Jury

4a
Appendia A

on March 13, 1979.’ Matter of John Doe, SP No, 4164,
slip op. at 16 (Sup. Ct. Queens Co. Dec. 17, 1980). Although
the trial judge found that the prosecutor made ‘‘no definite
promise’’ concerning future grand jury appearances, the
judge found that the prosecutor’s equivocal responses dur-
ing plea negotiations led Siegel to reasonably believe that
he would not subsequently be obliged to testify before a
New York State grand jury with respect to the subject
matter of his previous New York County grand jury
testimony.

In a memordandum opinion dated July 27, 1981, the
Appellate Division, Second Department, affirmed. Matter
of Benjamin S., 83 A.D.2d 630, 441 N.Y.S.2d 698 (2d Dep’t
1981). The appellate court found that there was no record
support for the lower court’s finding that the specific issue
of future grand jury appearances had been raised in the
plea negotiations. Nonetheless, the Appellate Division
ruled that the prosecutor’s statements to the effect that
Siegel would not be required to ‘‘give information,’’ ‘‘talk
about,’’ or ‘‘be questiined about’’ matters covered in his
previous grand jury testimony constituted ‘‘knowing con-
sent that [Siegel] was not to be called before a Grand
Jury by [the prosecutor’s] office to discuss those matters.’’
83 A.D.2d at 633, 441 N.Y.S.2d at 703. The Appellate
Division also ruled that specific performance of the con-
structive plea bargain would not impermissibly infringe
upon the right of the Queens County grand jury to gather
evidence.

In a unanimous opinion dated February 18, 1982, the
New York Court of Appeals reversed the Appellate Di-
vision’s order, Matter of Benjamin S., 55 N.Y.2d 116, 447

5a
Appendix A

N.Y.8.2d 905, 432 N.E.2d 777, reh’g denied, 56 N.Y.2d 570,
450 N.Y.S.2d 186, 435 N.E.2d 403 (1982). The court ruled
that the alleged promise concerning future grand jury
appearances was unenforceable, as a matter of law, because
it was not placed on the record at the time the guilty plea
was entered.

Shortly thereafter, Siegel moved pursuant to N.Y.
Crim. Proc. Law § 440 (McKinney 1971) to reopen his plea
proceedings and place on the record the alleged off-the-
record promise or, in the alternative, for a vacatur of the
judgment of conviction. In support of this motion Siegel
contended that his plea of guilty and the conviction based
thereon were procured by the prosecutor’s misrepresenta-
tion concerning future grand jury appearances, in violation
of his due process rights. By opinion and order dated
March 5, 1982, the New York County Supreme Court, Trial
Term, denied the motion, stating that the relief requested
was essentially identical to the relief previously rejected
by the New York Court of Appeals. Both the Appellate
Division and the New York Court of Appeals denied leave
to appeal.

B. Proceedings Below

On May 13, 1982, Siegel filed a complaint in the Southern
District of New York, alleging that his federal due process
rights were violated when the prosecutor failed to fulfill
his promise that Siegel would not be required to testify
before the grand jury concerning his prior testimony. The
complaint was founded on the federal habeas corpus statute,
28 U.S.C. § 2254, and the federal statute forbidd ig depriva-
tion of constitutional rights under color of state law, 42
U.S.C. § 1983. Siegel sought either an order permitting

6a
Appendia A

him to withdraw his guilty plea or, alternatively, an order
reopening the state plea proceedings and placing the alleged
off-the-record promise on the record.

On May 17, 1982, Judge Sweet, upon plaintiff’s applica-
tion, signed an order directing the defendants-appellants,
State of New York and Edward J. Kuriansky, Deputy New
York Attorney General for Medicaid Fraud, to show cause
why they should not be preliminarily enjoined from re-
quiring Siegel to be questioned concerning matters covered
by his previous grand jury testimony. To accommodate
the district court and opposing counsel, the State agreed
that Siegel would not be called before the grand jury prior
to June 16, 1982.

By opinion dated June 15, 1982, the district court
granted Siegel’s requested preliminary injunction, Siegel
v. State of New York, No, 82 Civ. 3095 (S.D.N.Y. June 15,
1982). The district court did not apply this Circuit’s settled
preliminary injunction standard,® but fully diseussed and
finally determined the merits of Siegel’s complaint. The
court stated that ‘‘[t]he action of the Court of Appeals
has served, in the view of this court, to deprive Siegel of
his due process right to enforce his plea bargain and to
challenge the voluntariness of his plea.’’ It further stated
that ‘‘[g]iven the resolution of the issue of the existence of

3. For a preliminary injunction to issue in this Circuit, the
plaintiff must show:

(a) irreparable harm and (b) either (1) likelihood of success
on the merits or (2) sufficiently serious questions going to the
merits to make them a fair ground for litigation and a balance of
hardships tipping decidedly toward the party requesting the pre-
liminary relief.

Friarton Estates Corp. v. City of New York, 681 F.2d 150, 152 n.2
(2d Cir, 1982).

7a
Appendia A

an off-the-record agreement by the Appellate Division and
its affirmance of the quashing of the subpoena by the Su-
preme Court, the writ of habeas corpus will be granted to
enforce the plea bargain and to quash the subpoena.’’ /d.,
slip op. at 4. Because the district court has fully and finally
adjudicated the claims raised in Siegel’s complaint, we will
review the decision as if it were a permanent, rather than
a preliminary injunction. See Part IV infra.

II

In Santobello v. New York, 404 U.S, 257, 260-61 (1971),
the Supreme Court endorsed the process of plea bargaining
as not only an ‘‘essential’’ but also a ‘‘highly desirable’’
component of the administration of criminal justice which,
if ‘‘|p]roperly administered, . .. is to be encouraged.’’
Plea bargaining benefits both the accused and society be-
cause it leads to prompt and final disposition of cases; it
avoids ‘‘the corrosive impact of enforced idleness during
pretrial confinement ;’’ it protects the publie from defend-
ants who might commit additional crimes while released
from jail before trial; and it enhances rehabilitative pros-
pects by shortening the time between charge and disposi-
tion. Id. at 261; see Blackledge vy. Allison, 431 U.S, 63, 71
(1977). Because endorsement of plea bargaining ‘‘presup-
pose[s] fairness in securing agreement between an accused
and a prosecutor,’’ Santobello, supra, 404 U.S. at 261, the
Supreme Court requires the process to be ‘‘attended by
safeguards to insure the defendant what is reasonably due
in the cireumstances,’’ Jd. at 262.

In 1974, the New York Court of Appeals began to move
toward promulgating a rule barring enforcement of any
promise made by the prosecutor to the defendant which

8a

Appendix A

was not contained in the record of the plea proceeding.
See People v. Selikoff, 35 N.Y.2d 227, 360 N.Y.8.2d 623, 318
N.E.2d 784 (1974), cert. denied, 419 U.S. 1122 (1975). In
Selikoff the Court of Appeals jointly considered three cases.
In one of those cases the Court rejected a claim that there
had been an off-the-record promise that the sentence would
not exceed four years, because the trial judge, on the record,
had explicitly stated that the defendant would receive a
sentence of three to ten years. 35 N.Y.2d at 244. In one
of the other cases, the court refused to enforce an off-the-
record promise that the prosecutor would not object to
defendant’s motion to set aside the plea if a prison term was
imposed where the defendant had stated on the record that
there was no inducement other than the prosecutor’s non-
binding promise to recommend no imprisonment. 35 N.Y.
2d at 241-42. At the close of his opinion for an unanimous
court, Chief Judge Breitel noted that in the future many
problems attending plea bargaining could be eliminated by
placing the entire agreement on the record and by the court
refusing to recognize any other purported agreement except
in ‘*the most unusual circumstances.’’ 35 N.Y.2d at 244.
In People v. Frederick, 45 N.Y.2d 520, 410 N.Y.S.2d 555,
382 N.E.2d 1332 (1978), the trial court informed the de-
fendant at the plea allocution that no promises were being
made concerning the sentence to be imposed. The defend-
ant acknowledged the trial court’s statement and the court
accepted his guilty plea. Eighteen months later, but prior
to imposition of sentence, defendant’s counsel alleged that
at the time of the plea the court had promised the defendant
off-the-record that it would allow the defendant to with-
draw his plea if the sentence exceeded the prosecutor’s
recommendation, The trial court denied making such a

9a
Appendia A

statement and rejected defendant’s motion to withdraw his
guilty plea. Thereafter, having considered the prosecutor’s
recommendation of a term of probation, the court sentenced
defendant to an indeterminate four year prison term. The
Court of Appeals affirmed the conviction, stating that ‘‘|i]f
the court had indeed assured defendant’s counsel that it
would follow the prosecution’s sentence recommendation
during an off-the-record bench conference, it was incumbent
upon defendant’s attorney to place that promise, in un-
mistakable terms, on the record.’’ 45 N.Y.2d at 526. Like
Chief Judge Breitel in Selikof’, Judge Jasen ended the
unanimous Frederick opinion by stressing ‘‘the importance
of placing the entire agreement reached by the parties
through plea negotiations on the record.’’ 45 N.Y.2d at
528. Accord, People v. McConnell, 49 N.Y.2d 340, 346, 425
N.Y.S8.2d 794, 402 N.E.2d 133 (1980) (dicta); People v. Da
Forno, 73 A.D.2d 893, 424 N.Y.8.2d 195 (1st Dep’t 1980),
aff’d, 53 N.Y.2d 1006, 442 N.Y.S.2d 476, 425 N.E.2d 864
(1981).

The New York Court of Appeals rule of Selikof? and
Frederick is, in essence, a ‘‘statute of ‘rauds’’ rule for
plea bargaining: the courts, except in rare cases, will en-
force only the bargain placed on the record at the time of
the plea. Stated differently, with the exception of unusual
cases, off-the-record promises made by the prosecutor or
the court are a nullity and, accordingly, the defendant may
not reasonably rely upon them; the defendant is entitled
to rely only on the recorded promises.

The foregoing New York state policy fulfills three im-
portant policy objectives. As detailed below, it increases
the likelihood that factual guilt underlies a proferred plea
of guilty; it enhances the integrity of the plea bargaining
process; and it assures finality of convictions,

10a
Appendix A

A. Enhancing Certainty of Guilt

The procedural rights guaranteed to the accused by the
United States Constitution reflect the high premium our
nation places upon preventing innocent persons from being
falsely or wrongly convicted. To protect the defendant
from falsely accusing himself by pleading guilty, due
process requires an affirmative showing that a guilty plea
is intelligently and voluntarily entered. Boykin v. Alabama,
395 U.S. 238, 242 (1969); see Brady v. United States, 397
U.S. 742, 758 (1970).

With respect to pleas offered after negotiations and
in reliance on inducements or promises, the possibility of
false convictions is greater than with respect to non-induced
pleas. The prosecutor may offer an innocent defendant
an inducement so attractive tha! the defendant may per-
ceive it to be in his self-interest to make a false confession
of guilt. See Westen & Westin, A Constitutional Law of
Remedies for Broken Plea Bargains, 66 Cal. L. Rev. 471,
493-98 (1978).

The New York rule, by recognizing as enforceable only
those inducements that are placed on the record before
the trial judge, gives the judge a more complete opportunity
to determine whether the defendant’s plea is intelligently
and voluntarily entered. Since the defendant in a New
York court knows that his failure to place on the record
promises upon which he has relied will result in non-en-
forcement of those promises, he and his counsel will be
more likely to apprise the trial judge of the entire agree-
ment. Consequently, there is a greater likelihood that the
trial judge will be aware of the entire plea agreement when
called upon to evaluate the voluntariness of the defendant’s
plea. Under these circumstances, the trial judge can more

lla
Appendix A

accurately determine whether the inducements offered are
so attractive, when compared to the risk of proceeding to
trial, as to override even an innocent person’s decision to
stand trial.‘ In other words, the New York rule, by requir-
ing that the parties place the entire plea agreement on the
record before the trial judge, allows the trial court a fuller
opportunity to determine objectively whether the guilty
plea is intelligently and voluntarily made, i.e., by an inde-
pendent review of the complete agreement, rather than by
reliance solely upon the statements of the defendant who
may, for various reasons, be inclined to conceal inducements
from the court. The New York rule, then, enhances the
court’s ability to judge the voluntariness and intelligence
of a defendant’s decision to plead guilty, and, thereby,
reduces the likelihood of false convictions.

B. Integrity of Process

The New York rule requiring that plea bargains be
fully disclosed on the record eliminates the ‘‘clandestine
atmosphere’’ which previously attended the plea bargain-
ing process. See Frederick, supra, 45 N.Y.2d at 526. The
rule furthers the integrity of the process by requiring that
the entire agreement be placed on the record and by treat-
ing off-the-record promises as void. The resulting en-
hancement of integrity and of the appearance of integrity
is particularly beneficial in light of the very high percent-
age of criminal cases in New York that are necessarily
disposed of by plea rather than trial.

4. If the trial court found that the inducements were patently
overwhelming, it could reject plaintiff's plea of guilty in the exercise
of sound judicial discretion. Santobello v. New York, 404 U.S. 257,
262. A defendant possesses no absolute right to have a guilty plea
accepted. /d. (citing Lynch v. Overholser, 369 U.S. 705, 719

(1962) ).

12a

Appendia A
C. Finality

The Supreme Court in Blackledge, supra, 431 U.S. at
71, noted that ‘‘the chief virtues of the plea system—spend,
economy, and finality’’—are undercut by indiscriminate
post-conviction proceedings. See also id. at 83-84 (Powell,
J., concurring) (stressing the importance of finality to a
system of justice). Because a defendant who complies with
the New York rule is, in all but the rarest instances, unable
to claim the benefit of a purported off-the-record promise
following the acceptance of his plea, the rule serves to
reduce the number of collateral attacks on convictions based
on guilty pleas. Consequently, the New York rule promotes
finality of judgments, and, thus, strengthens the efficacy of
the plea process. The rule thus serves an important so-
cietal goal.

In view of the salutary policies fostered by the New
York rule, we cannot conclude that it offends the constitu-
tional concept of due process. To the contrary, the rule
promotes openness, certainty, and finality of plea proceed-
ings. Furthermore, assuming the defendant is aware that
off-the-record promises by the prosecutor are void—not an
unreasonable assumption given the defendant’s right to
counsel at the plea proceeding, see Mempa v. Rhay, 389 U.S.
128, 134 (1967)—the memorialization in the record of all
promises upon which he relies will best protect the de-
fendant’s post-conviction expectations.

III

In the present case, Siegel claims that the off-the-record
constructive bargain found by the Appellate Division
should be honored because the trial judge failed to inquire
explicitly as to any inducements, aside from the promise
of no imprisonment, upon which Siegel relied.

13a
Appendiz A

As previously stated, a trial judge is required to ascer-
tain that a defendant’s guity plea is intelligently and
voluntarily made before accepting it. Boykin v. Alabama,
395 U.S. 238 (1969). According to Boykin, a case in which
no questions were put to the defendant by the judge at the
time he pleaded guilty, the thrust of the trial court’s in-
quiry should be directed toward the defendant’s waiver of
his privilege against self-incrimination, his right to a jury
trial, and his right to confront witnesses. Id. at 243. Neither
Boykin nor any other Supreme Court or Second Circuit
case that deals with due process requirements applicable to
the states (as opposed to the specific requirements made
applicable to federal criminal cases by Fed.R.Crim.P. 11)
has held that a court must explicitly ask a defendant
whether his guilty plea is entered as a result of any prom-
ises or inducements on the part of the prosecutor.’ Rather
than mandating a specific catechism, in determining vol-
untariness and intelligence, due process requires only that
the courts provide safeguards sufficient ‘‘to insure the
defendant what is reasonably due in the cireumstances.’’
Santobello, supra, 404 U.S. at 262.

Here, the trial judge ascertained, through Siegel’s af-
firmative responses to the court’s questions, that Siegel
understood the constitutional rights he was waiving by
pleading guilty. Further, Siegel responded affirmatively
to the court’s inquiry: ‘‘Are you pleading guilty to this
crime of your own free will?’’ The trial judge informed
the appellee that he would sentence him to five years pro-
bation and impose a fine. Siegel then responded affirma-

5. Though dicta in United States ex rel. Hill v. Ternullo, 510
F.2d 844, 845 n.1 (2d Cir. 1975), suggests that Boykin imposed
upon the states, as a matter of due process, the requirements of
Fed.R.Crim.P. 11, the surrounding discussion in that case concerned
only the waiver of constitutional rights, a matter with regard to which

Siegel was properly interned.

14a
Appendix A

tively to the trial court’s question: ‘*And do you under-
stand everything that has happened here today?’’ Through-
out the colloquy, Siegel and his two experienced attorneys
made no mention on the record of the alleged agreement not
to require testimony about the subject matter of his prior
grand jury testimony, even though Siegel later asserted
that the off-the-record promise was critical to his decision
to plead guilty. In these circumstances, we conclude that
the non-enforcement of the promise of the prosecutor does
not deprive Siegel of due process.

Since in this case Siegel was represented by counsel
throughout the plea bargaining process and the plea pro-
ceeding, and since both Siegel and his counsel had the
opportunity to place the off-the-record promise on the ree-
ord, as New York law requires, we find, on the facts of this
case that due process was satisfied.® Siegel’s claim that
off-the-record promises were not considered unenforceable
under prevailing New York law at the time of his plea, and
that therefore his counsel could not have known of his bur-
den to place on the record the promise upon which he relied,
is without merit. As discussed above, Selikoff and Fred-
erick—which were decided in 1974 and 1978, respectively—
prior to Siegel’s plea in January 1980—held that off-the-
record promises would not be enforced where an incon-
sistent promise was on the record or where the defendant
stated at the time he pleaded that no other promises had
been made. In addition to their explicit holdings, both
Selikoff and Frederick made it clear that, to be enforceable,

6. Placing on the defendant and his competent counsel the burden
of putting on the record all promises relied upon in offering the plea
is consistent with the Supreme Court holdings that, in the context of
federal collateral attacks, a plea is intelligently and voluntarily entered
so long as it is based upon the advice of competent counsel, even if
successful defenses to the charges existed. Tollett v. Henderson, 411
U.S. 258 (1973) ; McMann v. Richardson, 397 U.S. 759 (1970).

15a
Appendia A

a plea agreement normally had to be on the record. Indeed,
Frederick expressly stated that the defendant had the bur-
den of placing on the record promises upon which he relied
and which he would seek to enforce in the future. 45 N.Y.2d
at 526.7. Thus, Siegel, through his counsel, knew, or should
have known, at the time of the plea, that off-the-record
promises were unenforceable, and therefore he should have
undertaken to place his entire understanding of the plea
bargain on the record for the trial judge’s review—as well
as possible appellate or collateral review.

In conclusion, because the promise relied upon by Siegel
was not placed on the record and, hence, was a nullity at
the time the plea was accepted, Siegel’s reliance on that
promise was unreasonable and is entitled to no recognition.*
Non-recognition of this promise by the New York courts
and the appellants did not violate federal due process since
Siegel, through counsel, knew or should have known that
the off-the-record promise was unenforceable. Accordingly,
Siegel is neither entitled to vacatur of his plea nor specific
performance of the off-the-record constructive agreement
found by the Appellate Division.

7. Predictably, the New York Court of Appeals in Matter of
Benjamin S. held that the Selikoff and Frederick holdings applied
where the defendant had not expressly stated that no other promises
or inducements were made. 55 N.Y. 2d at 120.

Siegel contends that Chaipis v. State Liquor Authority, 44 N.Y.
2d 57, 404 N.Y.S.2d 76, 375 N.E.2d 32 (1978), shows that the
Selikoff-Frederick rule was not well established and thus could not
have been reasonably known to his counsel at the time he pleaded
guilty. This is not so, First, Chaipis predated Frederick. Further,
it is not clear from the reported opinion that the state’s promise to
bring the defendant's cooperation to the attention of the State Liquor
Authority was on the record. In any event, in Chaipis the prosecutor
had in fact informed the Liquor Authority of defendant's cooperation.

8. Because Siegel’s purported reliance on the constructive promise
found by the Appellate Division was unreasonable as a matter of law,
the promise cannot “be said to be part of the inducement or consider-
ation... [which] must be fulfilled.” Santobello, 404 U.S. at 262.

16a
Appendia A

IV

As stated at the end of Part I supra, although the dis-
trict court’s order was cast as a preliminary injunction,
that court unequivocally adjudicated the merits of the com-
plaint and entered what is in effect a permanent injunction.
In Almenares v. Wyman, 453 F.2d 1075, 1088 (2d Cir. 1971),
cert. denied, 405 U.S. 944 (1972), Judge Friendly treated a
preliminary injunction as a permanent injunction, noting
that—as is the case here—‘‘there seems to be nothing pre-
liminary about theorder that was issued’’ and ‘‘[t]here was
no suggestion that the parties return to the court with
further evidence or argument which might lead to modifica-
tion of the injunction.’’ In this case, the district court
rendered final relief and its order is properly considered a
permanent injunction.

Since we have concluded that plaintiff-appellee is en-
titled to no relief on the allegations of his complaint, and
the district judge has had an opportunity to fully address
the merits of the complaint, we believe it is appropriate to
direct final relief at this time. Accordingly, the injunction
entered below is vacated and the action is remanded to the
district court with instructions to dismiss the complaint
and enter final judgment for defendants.

Pratt, Circuit Judge, dissenting:

Desirable as it might be from the point of view of ad-
ministering criminal cases in the state courts, I do not
believe that the ‘‘statute of frauds’’ rule adopted by the
New York State Court of Appeals and approved by the
majority is permissible under Santobello v. New York, 404
U.S. 257 (1971), and Blackledge v. Allison, 481 U.S. 63
(1977). Therefore, I respectfully dissent.

17a

APPENDIX B

June 15, 1982 Decision and Order herein of the
U.S. District Court for the Southern District of
New York Granting Preliminary Injunction
(Siegel v. State and Kuriansky)

Sweet, D.J.

In this action brought pursuant to 42 U.S.C. § 1983 and
28 U.S.C. § 2254, Benjamin Siegel (‘‘Siegel’’) has moved
by order to show cause for a preliminary injunction to
restrain defendants, the State of New York and Edward
Kuriansky, Deputy New York State Attorney General for
Medicaid Fraud Control, from taking any action to require
Siegel to talk to or be questioned about matters related to
his prior grand jury testimony or, in the alternative, to
vacate his prior plea of guilty. As set forth below, the
motion will be granted, Siegel having been denied his due
process right to enforcement of a state court plea bargain
and to challenge the voluntariness of his plea of guilty.

Siegel’s action, which mirrors the preliminary relief
sought here, arose after the New York Court of Appeals
denied his motion to quash the grand jury subpoena at issue
here which admittedly seeks testimony on the subject mat-
ters which are alleged to be the plea bargain. Jn re Ben-
jamin S., 55 N.Y. 116, 447 N.Y.S.2d 905, Familiarity with
the state court opinions, Jn re Benjamin S., 8.P. No. 4164
(S.Ct. Queens County, Dec. 17, 1980), aff’d, 83 A.D.2d 630,
441 N.Y.S.2d 968 (2d Dep’t 1982) is assumed.

18a
Appendix B

The Facts

In March 1976 Siegel testified before a New York County
Grand Jury investigation alleging criminal activities in the
health care industry in New York. As a result of his testi-
mony he was indicted on three counts of perjury. After
pleading not guilty, negotiations were entered into, and an
agreement was reached pursuant to which Siegel, on Jan-
uary 21, 1980, pleaded guilty to one count of perjury in the
second degree. The sentencing judge, the Honorable Alo-
ysious Melia, promised that Siegel would receive probation
commencing on that date. No questions were put to Siegel
or to the state to determine whether the entire plea bargain
had been spread upon the record.

Six months later a Special Assistant Attorney General
in Long Island in a separate investigation, issued a sub-
poena concerning a separate matter. Siegel moved to quash
or modify the subpoena so that he would not have to testify
concerning events occurring prior to the New York County
Grand Jury appearance. Siegel alleged an agreement had
been entered into with the special prosecutor’s office that
he would not have to give information concerning matters
that were the subject of his prior grand jury testimony in
exchange for his undertaking to plead guilty.

Siegel moved to quash the subpoena before the Honor-
able George J. Balbach. The trial court reviewed the record
and found that there was ‘‘no promise in this case that
petitioner would never have to testify before a Grand
Jury.’’ Slip op. at 16. The trial court, however, also found
that the prosecutor’s responses in the plea negotiation were
sufficient to cause Siegel to rely on them as representations,

19a
Appendia B

thereby establishing that Siegel ‘‘did enter into a plea bar-
gaining agreement regarding his non-appearance before
any further New York Grand Jury.”’ Slip op. at 13. Thus
the subpoena was modified to reflect the agreement, and
Siegel was not required to testify about facts discussed
during his prior appearance on March 13, 1979 before the
Grand Jury.

On appeal by the Deputy Attorney General, the Appel-
late Division reviewed the facts and, although it did not
uphold fully the trial court’s findings of fact, it affirmed the
court’s ruling requiring specific performance of the plea
bargain. First, the court found no basis for the lower
court’s finding that there had been negotiations specifically
concerning grand jury appearances. Second, the court
found, contrary to the trial court, that the prosecutor could
not be held to an aspect of the plea bargain to which he did
not actually consent because of imprecise or equivocal state-
ments. The court, however, concluded that the prosecutor
indicated his knowing assent to the plea bargain that Siegel
would not be called before the grand jury to discuss the
matters discussed in the prior grand jury proceedings. 83
A.D.2d at 633, 441 N.Y.S.2d at 702-03.

The Court of Appeals reversed, holding that the claimed
off the record promise was unenforceable because the terms
of the plea agreement had not been placed upon the record.
55 N.Y.2d at 120-21, 447 N.Y.S.2d at 907. This was deter-
mined despite the fact that the claimed bargain did not
contradict the plea that was on the record.

The distinguishing factor in the present case, and
one which the Appellate Division found to be disposi-
tive on this issue, is that the promise now urged by peti-

20a
Appendia B

tioner is not expressly contradicted by the record. We
disagree that this factor mandates a departure from
our policy of requiring that all terms of the plea agree-
ment be placed on the record. Notwithstanding the
emphasis that has previously been placed upon the ex-
istance of record contradiction of the promise later
being claimed, we believe that the purposes of the plea
bargaining process would best be furthered in the usual
case by refusing judicial recognition of any off-the-
record promise once a record has been made of the
terms of the plea agreement. The mere fact that the
court failed to ask or the defendant failed to inform
the court of the existence of other promises or induce-
ments should not entitle that defendant to attempt to
prove that other inducements led him to plead guilty,
particularly where, as here, the defendant is repre-
sented in the plea bargaining process by experienced
counsel,

Thus, once the terms of a plea bargaining agreement
are placed on the record, judicial recognition of addi-
tional promises or terms of the agreement will not be
forthcoming except in rare cases.

Id., 447 N.Y.S.2d at 907.

Siegel then moved pursuant to N.Y.Crim.Proc.Law
§ 440 to reopen the plea and sentence proceedings to include
on the record the alleged terms of the plea bargain and, in
the alternative, to vacate and set aside the judgment of con-
viction, since it had been procured by a plea in violation of
Siegel’s substantive due process rights under the Constitu-
tion. The motion was denied by the Honorable Peter J.
McQuillan in an opinion dated March 5, 1982. Siegel’s ap-
plication for leave to appeal was denied on April 1, 1982,

2la
Appendia B

his application for reconsideration was denied on April 27,
1982, and the New York Court of Appeals denied leave to
appeal.’

Siegel then filed this action seeking an injunction to
prevent the State from requiring him to appear before the
grand jury. Alternatively he seeks vacation of his plea.
He moved by order to show cause for a preliminary injunc-
tion on May 17, 1982 at which time the Attorney General
agreed to delay calling Siegel to testify before the grand
jury until June 16, 1982 to accommodate the court and
opposing counsel.

Conclusions of Law

By issuing the subpoena to Siegel and challenging the
existence of the plea agreement the New York Attorney
General has clearly indicated that Siegel’s rights under
the alleged agreement will not be respected. Since con-
sideration of Siegel’s claims by this court is not barred by
the decision of the New York Court of Appeals due to the
procedural nature of their decision, Siegel is free to assert
his claims under the habeas corpus statute and Section
1983. Given the resolution of the issue of the existence of
an off-the-record agreement by the Appellate Division and
its affirmance of the quashing of the subpoena by the Su-
preme Court, the writ of habeas corpus will be granted to
enforce the plea bargain and to quash the subpoena. The
action of the Court of Appeals has served, in the view of
this court, to deprive Siegel of his due process right to

1. These actions by Siegel satisfy the requiremens of exhaustion
of state remedies.

22a
Appendix B

enforce his plea bargain and to challenge the voluntariness
of his plea.

In Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct.
495, 498 (1971), the Supreme Court recognized that plea
bargaining ‘‘is an essential component of the administra-
tion of justice. Properly administered, it is to be encour-
aged.’’ However, a guilty plea induced by a misrepresenta-
tion, including an unfulfilled promise, is grounds for relief,
is not a voluntary plea and is subject to collateral attack.
Id. at 267, 92 S.Ct. at 501; Brady v. United States, 397 U.S.
742, 755, 90 S.Ct. 1463, 1472 (1970) (A guilty plea induced
by an unkept plea bargain is not voluntary) ; Machibroda v.
United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513 (1962).
The form of relief, subject to the discretion of the trial
court, is either specific performance of the plea agreement
or withdrawal of the guility plea. Santobello, 404 U.S. at
263, 92 S.Ct. at 499. Such a claim under Santobello ade-
quately sets forth a due process violation that can be enter-
tained under the habeas corpus statute. McPherson v.
Barksdale, 640 F.2d 780, 781 (6th Cir. 1981); Patrick v.
Camden County Prosecutor, 630 F.2d 206, 208 (3d Cir.
1980).

In considering collateral attacks to guilty pleas the
Supreme Court has refused to apply a per se rule render-
ing guilty pleas invulnerable to collateral attack even where
the petitioner’s contentions directly conflict with his state-
ments made at the plea allocution. In Fontaine v. United
States, 411 U.S, 213, 93 S.Ct. 1461 (1973), a prisoner sought
relief pursuant to 28 U.S.C. 4 2855 seeking to invalidate his
guilty plea where he had acknowledged his guilt, the volun-
tariness of his guilty plea, and his understanding of the

23a
Appendia B

charge and the consequences of the plea. In spite of the
contradiction between the petitioner’s claim, the record
and the requirements of Rule 11, the court held that the
petitioner was entitled to a hearing on his claim. Although
the court recognized that a defendant ‘‘may not ordinarily”’’
repudiate statements made to the sentencing judge, the
court stated:

[t]he objective of Fed. Rule Crim. Proe. 11, of course,
is to flush out and reselve all such issues, but like any
procedural mechanism, its exercise is neither always
perfect nor uniformly invulnerable to subsequent chal-
lenge calling for an opportunity to prove the alle-
gations.

411 U.S. at 215, 93 S.Ct. at 1462 (emphasis added; footnote
omitted).

In Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, the
Supreme Court reaffirmed this principle in a case arising
under § 2254.2. In Blackledge v. Allison, the plea proceed-
ing consisted of the judge reading a form in open court
with thirteen printed questions concerning the charge and
the voluntariness of the plea, including the question: Has
anyone ‘‘made any promises or threat to you to influence
you to plead guilty in this case?’’ to which defendant re-

2. Although the standards for the right to a hearing differ on
cases involving federal and state prisoners, compare 28 U.S.C. § 2255
(“[u]nless the motion and the file and records of the case conclusively
show that the prisoner is entitled to no relief”) with 28 U.S.C. § 2243
(“unless it appears from the application that the appplicant or person
detained is not entitled thereto”), the relief under § 2255 was intended
to be “exactly commensurate” with the remedy afforded by § 2254.
Swain v. Pressley, 430 U.S. 372, 381 n.14, 97 S.Ct. 1224, 1230 n.14
(1977). See generally Blackledge vy. Allison, 431 U.S, at 74 n.4, 97
S.Ct. at 1629 n.4.

24a
Appendia B

sponded ‘‘No,’’ an answer which was recorded on the form.
In spite of this statement the court stated:

Solemn declarations in open court carry a strong
presumption of verity. The subsequent presentation
of conclusory allegations unsupported by specifies is
subject to summary dismissal, as are contentions that
in the face of the record are wholly ineredible....

What Machibroda and Fontaine indisputably teach,
however, is that the barrier of the plea or sentencing
proceeding record, although imposing, is not invariably
insurmountable. In administering the writ of habeas
corpus and its § 2255 counterpart, the federal courts
cannot fairly adopt a per se rule excluding all possi-
bility that a defendant’s representations at the time
his guilty plea was accepted were so much the product
of such factors as misunderstanding, duress, or mis-
representation by others as to make the guilty plea a
constitutionally inadequate basis for imprisonment.

431 U.S. at 74-75, 97 S.Ct. at 1629 (footnotes omitted),
Since the petitioners’ claims were sufficiently supported by
specific factual allegations, they were not so patently false
or frivolous as to warrant summary dismissal. Jd. at 78,
97 S.Ct. at 1631,

Similary in United States v. McCord, 618 F'2d 389, 391
n.2 (5th Cir, 1980) the trial judge thoroughly examined the
defendant and his attorney to make sure the entire agree-
ment was on the record, Judge Wisdom, although noting
that a defendant bears a heavy burden of overcoming a
contradictory statement made in an in-court plea allocution,
cited Blackledge and Fontaine and found that the defendant
was entitled to a hearing on his habeas corpus petition,
since there was no conclusive showing that the defendant

25a
Appendia B

was entitled to no relief. See also United States v. Ham-
merman, 528 F.2d 326 (4th Cir. 1976); Dugan v. United
States, 521 F.2d 231 (5th Cir. 1975). Cf. Caputo v. Hender-
son, 541 F.2d 979, 983 (2d Cir. 1976).

Here Siegel’s petition included affidavits, testimony
from prior proceedings, and two lower court opinions to
establish the agreement upon which he relies. Thus from
the face of the petition it does not appear that he is not
entitled to relief, 28 U.S.C. § 2254. The application is not
‘*palpably ineredible,’’ Machibroda v, United States, 368
U.S. at 495, 82 S.Ct. at 514, or so ‘‘patently frivolous or
false,’’ Herman v. Claudy, 350 U.S, 116, 119, 76 S.Ct, 223,
225 (1956) as to warrant summary dismissal.

Further, there has been no procedural default in the
state court such that would bar consideration of this claim
as an independent and adequate state law procedural
ground for the decision as set forth in Engle v, Isaac, 50
U.S.L.W. 4876 (April 5, 1982) and Wainwright v. Sykes,
433 U.S. 72, 97 S.Ct. 2497 (1977). In Davis v. United States,
411 U.S, 233, 93 S.Ct. 1577 (1973) the court held that a
federal prisoner under § 2255 could not raise a claim of a
lack of due process, in that instance, the improper composi-
tion of a grand jury, if the issue had not been raised before
trial unless the prisoner showed both ‘‘cause’’ for failure
to assert the objection before trial and ‘‘prejudice’’ result-
ing therefrom, Jd, at 243-45, 93 S.Ct. at 1583-84, This was
extended in Francis v. Henderson, 425 U.S. 536, 96 S.Ct.
1708 (1976), to state prisoners making a similar challenge
under Section 2254.

This ‘‘cause and prejudice’’ standard was further ex-
tended in Wainwright v. Sykes, 483 U.S. 73, 97 S.Ct. 2497

26a
Appendia B

to procedural defaults occurring during the trial of a state
criminal defendant, and confirmed in Engle vy. Isaac, 50
U.S.L.W. 4376, where a defendant had failed to comply with
a state law requiring contemporaneous objections to jury
instructions.

We reaffirm, therefore, that any prisoner bringing a
constitutional claim to the federal courthouse after a
procedural default must demonstrate cause and actual
prejudice before obtaining relief.
Id, at 4882. Cf, United States v. Frady, 50 U.S.L.W. 4388
(April 5, 1982) (‘‘Plain error’? standard of Fed.R.Cr.P.
52(b) held inapplicable to actions brought under 28 U.S.C.
§ 2255).

With regard to the terms of a plea bargain it is certainly
procedurally useful and even desirable from a public policy
point of view, to place all the terms of the agreement on
the record, since it leads to finality and complete disposition
of the action at the plea allocution. See People v. Frederick,
45 N.Y.2d 520, 526, 410 N.Y.S8.2d 555, 560 (1978) ; People v.
Selikof’, 35 N.Y.2d 227, 244, 360 N.Y.S.2d 623, 638 (1974),
cert, denied, 419 U.S, 1122, 95 S.Ct. 806 (1975). However,
to place such a procedure beyond challenge under any cir-
cumstances would negate the principles enunciated in F’on-
taine v. United States and Blackledge v. Allison and the
statement in Montaine v, United States that ‘‘like any pro-
cedural mechanism, its exercise is neither always perfect
nor uniformly invulnerable to subsequent challenge,’’ 411
U.S. at 215, 93 S.Ct. at 1462, is equally applicable to this
case, Judge Wisdom apparently reached a similar conelu-
sion in United States v. McCord, 618 F.2d at 394, where

27a
Appendia B

despite a thorough plea alloeution under Fed.R.Cr.P. 11 the
collateral attack was not barred. The availability of collat-
eral attack is particularly significant here where the viola-
tion of the alleged plea bargain has been found to exist.

The requirement imposed in this case barring the en-
forcement of any plea agreement not spread upon the
record is clearly distinguished from the requirement that
a defendant immediately object upon the admission of an
inculpatory statement or to errors in a jury charge. Such
objections are immediately discernable and the prejudice
resulting therefrom is immediately evident, contrary to the
uncertainties presented to Siegel and his counsel. Requir-
ing a defendant to object to the admission of relevant evi-
dence enables the judge to correct any errors or establish
a clear record for appeal concerning errors of which he may
not otherwise be aware.

Although there are interests of finality in the plea bar-
gaining process, these interests can only be protected and
even then to a limited degree, by an adequate plea allocu-
tion by the judge to insure that a complete record of the
agreement and its voluntariness is placed on the record,

Moreover, Siegel’s claim addresses not only the process
of his plea but its voluntariness, A guilty plea induced by
an unkept plea bargain cannot be considered voluntary and
is therefore void and subject to collateral attack. Brady v.
United States, 397 U.S. at 1472; Machibroda v. United
States, 368 U.S. at 493, 82 8.Ct. at 513; Palermo v. Warden,
Green Haven State Prison, 545 F.2d 286, 296 (2d Cir. 1976),
cert, dismissed, 431 U.S. 911, 97 S.Ct. 2166 (1977). Given
the constitutional requirement of a finding that a guilty
plea be truly voluntary, McCarthy v. United States, 394

28a
Appendix B

U.S. 459, 465, 89 S.Ct. 1166, 1170 (1969), a defefndant can-
not be expected to object at the time of the plea to the
involuntariness of his plea when the breach of the plea
agreement has yet to occur thus further distinguishing this
case from Waimvright v. Sykes and Engle v. Isaac. There-
fore the cause and prejudice standard cannot be construed
to apply to a state procedure precluding consideration
under these circumstances of an off the record promise,
particularly where in this case the defendant was not even
asked whether there were any off the record inducements
for his plea bargain. Such a question would undoubtedly
have put the agreement on the record and avoided the
necessity for these proceedings.

Even if the ‘‘cause and prejudice’’ standard were ap-
plicable, however, the requirements would have been estab-
lished. With regard to cause for failure to assert timely
the claim, the New York procedural rule precluding con-
sideration of off the record promises, even though not
contradicted by the record was first stated in Siegel’s case
before the Court of Appeals. Although at the time of
Siegel’s plea in January, 1980, the New York Court of
Appeals had stressed the importance of placing the entire
plea on the record and that other promises generally should
not be recognized, see People v. Frederick, 45 N.Y.2d at
526, 410 N.Y.S.2d at 559 (1978); People v. Selikoff, 35
N.Y.2d at 244, 360 N.Y.S.2d at 638, the overall preclusive
effect of the procedural rule, enunciated here for the first
time, had not been set forth. In Frederick and Selikoff the
trial judges painstakingly interrogated the defendants on
the record to insure that they were not induced to plead
guilty because of any undisclosed promises. The judges

29a
Appendix B

questioned the defendants about the voluntariness of their
pleas and the scope of the pleas. The claims asserted by
the defendants were clearly contradicted by the statements
on the record that there were no other promises or induce-
ments made and it was on that basis that collateral attack
was denied.

At the time of his plea Siegel was told by the judge that
if he entered his plea of guilty he would be sentenced to
probation for five years and, in addition, have to pay a fine.
He was never asked whether this was the entire agreement
or whether the prosecutor had agreed to any other arrange-
ments or made any other promises in exchange for the
plea of guilty. Further, contrary to the statement by the
New York Court of Appeals, the record in its entirety
establishes that the full scope of the agreement as found
by the courts below was not set forth. The process did
nothing to dispel the defendant’s belief that his off the
record agreement would be enforced. Cf. Blackledge v.
Allison, 431 U.S. at 77, 97 S.Ct. at 1631 (‘‘Neither lawyer
was asked to disclose any agreement that had been reached.
... The process did nothing to dispel a defendant’s belief
that any bargain struck must remain concealed,’’ quoted in
People v. Fredrick, 45 N.Y.2d at 527, 410 N.Y.S.2d at 560).

Moreover, the holding in People v. Frederick, was spe-
cifically limited by the fact that there was a clear contradic-
tion between the defendant’s claim and the record.

In sum, we again stress the importance of placing
the entire agreement reached by the parties through
plea negotiations on the record. Parties must realize
that ‘‘in all but the most unusual circumstances, no
other purported agreement will be recognized.’’ People

30a
Appendia B

v. Selikoff, 35 N.Y.2d [at] 244, 360 N.Y.S.2d [at]...
Where, as in the present case, the minutes of the plea
are unequivocal and refute any claim of an off-the-
record promises [sic], no judicial recognition of de-
fendant’s allegations is warranted. The very integrity
of the plea negotiating process so mandates.

45 N.Y.2d at 528, 410 N.Y.S.2d at 560. This was only de-
termined after careful analysis of the plea allocution
without mention of it being an absolute requirement. Thus
the procedural rule precluding consideration of an agree-
ment uncontradicted by the record was not clearly set forth,
a fact amply supported by the fact that the Supreme Court
and Appellate Division judges were unaware of the pro-
cedural bar thereby establishing cause for faiJure to put
the promise on the record. See also People v. Seminara,
58 A.D.2d 841, 841 [sic], 396 N.Y.S.2d 472, 473 (2d Dept.
1977) (relied upon by the lower court to hold the hearing).
Actual prejudice is established by the threat to Siegel’s due
process rights under Santobello.

With respect to the substance of the plea agreement, I
conclude that on the habeas corpus claim I am bound by the
findings of the Appellate Division. Under the habeas cor-
pus statute the factual findings of a state court made after
a full and fair hearing are to be accorded great weight. 28
U.S.C. § 2254(d) ; LaVallee v. Delle Rose, 410 U.S. 690, 93
S.Ct. 1203, (1973); Suggs v. LaVallee, 570 F.2d 1092, 1112
(2d Cir.), cert. denied, 439 U.S. 915, 99 S.Ct. 290 (1973).
Whether a hearing is now required therefore depends on
whether the facts determined by the Appellate Division are
to be accorded the ‘‘presumption of correctness’’ due to
explicit state court findings. 28 U.S.C. § 2254.

3la
Appendia B

The factual findings of a state court are presumed to be
correct unless the factual dispute was not resolved in the
state court, the fact finding procedure was inadequate to
afford a full and fair hearing or did not provide such a
hearing, the material facts were not adequately developed
at the state court hearing, or the facts were not supported
by the record. 28 U.S.C. § 2254(d); Townsend v. Sain, 372
US, 293, 312-13, 83 S.Ct. 745, 757 (1963) ; Walker v. Wilmot,
603 F.2d 1038, 1041 (2d Cir. 1979). The presumption of
correctness applies to ‘actual determinations whether made
by a state trial or appellate court. Sumner v. Mata, 449
U.S. 539, 546-47, 101 S.Ct. 764, 769 (1981).

The state has failed to establish any grounds to deny
the presumptive effect of the state court proceedings. There
was a fair and full hearing on the merits, and there is no
indication that there is additional specific evidentiary sup-
port needed on the issue litigated, the substance of the plea
bargain. Cf. Williams v. Blackburn, 649 F.2d 1019, 1021
(5th Cir. 1981). Both the trial court and the Appellate
Division rendered written opinions discussing the facts
found at the hearing.

The state’s principal contention on this issue is that
the findings of the Appellate Division were not ‘‘on the
merits’’ since the New York Court of Appeals chose not to
consider the facts.’ Thus it contends there was no deter-

3. The New York Court of Appeals stated:

We find it unnecessary to attempt to discern the scope and
meaning of the statements made during the plea negotiations
relative to petitioner’s desire to avoid further involvement with
the Grand Jury.

55 N.Y.2d at 120-21, 447 N.Y.S.2d at 907.

32a
Appendix B

mination on the merits to which the presumption of correct-
ness under the habeas corpus statute can attach.

Under New York law questions involving mixed issues
of law and fact, affirmed at the Appellate Division, are gen-
erally not reviewable by the New York Court of Appeals.
N.Y.Const.Art.VI, §3; People v. Wharton, 46 N.Y.2d 924,
415 N.Y.S.2d 204, cert.denied, 444 U.S. 880, 100 S.Ct. 169
(1979) ; People v. Morales, 42 N.Y.2d 129, 134-35, 397 N.Y.S.
2d 587, 589-90 (1977), cert.denied, 434 U.S. 1018, 98 S.Ct.
739 (1978); People v. Rizzo, 40 N.Y. 425, 430, 386 N.Y.S.2d
878, 881 (1976). The court’s review power is limited when
the findings are supported by evidence on the record.
Schubtex, Inc. v. Allen Snyder, Inc., 49 N.Y.2d 1, 5, 424
N.Y.S.2d 133, 134-35 (1979) ; In re Hofbauer, 47 N.Y.2d 648,
654, 419 N.Y.S8.2d 936, 939 (1979).

A review of the record presented to Judge Balbach,
establishes that the findings of the state court are supported
by the record. The Appellate Division held:

based upon both our review of the record and the find-
ings of Criminal Term, including its implicit findings
with respect to credibility of witnesses, we conclude
that when the prosecutor indicated his assent that un-
der the plea bargain petitioner would not be required
by his office to ‘‘give information’’, ‘‘talk about’’ or
‘*he questioned about’’ matters covered in his Grand
Jury testimony, he thereby gave his knowing consent
that petitioner was not to be called before a Grand Jury
by his office to discuss those matters.

83 A.D.2d at 633, 441 N.Y.S.2d at 703. The testimony of
the attorneys, evidently credited with significant weight in
the proceedings was sufficient to support the determinations

33a
Appendia B

made by the state court. Such assent and agreement in light
of the implicit findings of credibility by the state court is
sufficient to establish a valid and enforceable plea agree-
ment under the habeas corpus statute. Cf. Cooper v. United
States, 594 F.2d 12, 16-18 (4th Cir. 1979); Palermo v. War-
den, Green Haven State Prison, 545 F.2d 786; In re Doe,
410 F. Supp. 1163 (E.D.Mich 1976).

Having thus concluded that Siegel’s constitutional rights
have been violated by the prosecutor’s refusal to be bound
by the plea bargain, the remaining issue concerns determin-
ing the appropriate relief to which Siegel is entitled. The
choice among the alternative forms of relief established in
Santobello is best left to the discretion of the state court.
The Second Circuit has recognized that when the state court
has chosen the appropriate form of relief ‘‘due process
does not require the intervention of this court to disturb
that discretionary judgment.’’ Selikoff v. Commissioner
of Corrections, 524 F.2d 650, 654 (2d Cir. 1975), cert.denied,
425 U.S. 951, 96 S.Ct. 1725 (1976). In Palermo v. Warden,
Green Haven State Prison, 545 F.2d 286, the Second Circuit
affirmed the district court’s determination that specific per-
formance was the only meaningful form of recovery re-
maining, id. at 296-97, rejecting the argument that the state
‘‘ean disassociate itself from a promise if the prosecutor
lacked the authority to make the commitment in question.’’
Id, at 295. ‘‘[W hen a defendant pleads guilty because he
reasonably relies on promises by the prosecutors which are
in fact unfulfillable, he has a right to have those promises
fulfilled.’’ Jd. at 296 (footnote omitted).

In this case the state courts clearly indicated that once
the agreement had been established the appropriate remedy
was to grant specific performance of the plea agreement

34a
Appendix B

by, in part, quashing the subpoena. 441 N.Y.S.2d at 705.
Since the choice among the alternative forms is to be left
to the state court, this court will not intervene. Selikoff v.
Commissioner of Corrections, 524 F.2d at 654. Moreover,
this appears to be the only reasonably meaningful relief
available. Siegel has served one-half of his term of pro-
bation and to vacate the plea with the state having the
opportunity to retry Siegel would be clearly inappropriate
for Siegel would have served half of his term, paid a fine
and still be subject to reprosecution for the same offense.

The application of the collateral estoppel doctrine, urged
by Siegel fails to establish his Section 1983 claim since the
facts of the agreement and its violation must have been
necessary to the judgment of the Court of Appeals. Mon-
tana v. United States, 440 U.S, 147, 153, 99 S.Ct. 970, 973
(1979); 1B Moore’s Federal Practice, {| 0.443[5] (2d ed.
1980). Such was not the case.

In this case, however, a factual hearing on Siegel’s
Section 1983 claim is not appropriate for to do so would
leave the defendant subject to conflicting and inconsistent
factual determinations by this court. More specifically,
this court considers itself bound for the purposes of Section
2254 by the determinations of the state court because of
the presumption of correctness due state court determina-
tions of fact under Section 2254(d). The interests of jus-
tice require that this issue not be litigated further since
Siegel has already litigated the matter fully up through
the New York courts. Moreover, the press of time indicates
that appropriate other relief should be granted.

It is recognized that traditionally the remedy of habeas
corpus is addressed to the fact or duration of a petitioner’s
incarceration. Preiser v. Rodriguez, 411 U.S. 475, 494,

35a
Appendia B

93 S.Ct. 1827, 1838 (1973). The court, however, has pointed
out that the habeas corpus statute ‘‘does not deny the
federal courts power to fashion appropriate relief other
than immediate release.’’ Jd. at 487, 93 S.Ct. at 1835,
quoting, Peyton v. Rowe, 391 U.S. 54, 66, 88 S.Ct. 1549, 1556
(1968).

The habeas corpus statute has since 1874 ‘‘directed the
courts to determine the facts and dispose of the case sum-
marily, ‘as law and justice require.’’’ Preiser v. Rodri-
guez, 411 U.S. at 487, 93 S.Ct. at 1835. In this case law
and justice require that a preliminary injunction issue to
restrain the Attorney General from questioning on matters
already discussed before the grand jury. Although injune-
tive relief may be infrequently used under habeas corpus
the injunction may properly be used in aid of the writ and
the court’s jurisdiction. Cf. 28 U.S.C. § 1651; Moore v.
De Young, 515 F.2d 487, 447 (3d Cir. 1975). Since consider-
ation of the case under Section 1983 would generally be
appropriate, Allen v. McCurry, 449 U.S. 90, 100-01, 101 S.Ct.
411, 418 (1980), citing Monroe v. Pape, 365 U.S. 167, 173-74,
81 S.Ct. 473, 476-77 (1961), except for the risk of inconsist-
ent adjudications, the circumstances mandate that pre-
liminary injunctive relief be granted.

Consequently, the preliminary injunction is granted
prohibiting the New York Attorney General from question-
ing Siegel concerning matters discussed in the prior grand
jury proceeding.

Ir Is So Ornveren.

Darep: New York, N.Y.
June 15, 1982
/s/ RB. Sweet

Robert W. Sweet
U.S. D.J.

36a

APPENDIX C

December 17, 1980 Opinion and Order of N.Y.
State Supreme Court, Queens County, Finding
and Enforcing Plea Bargain and Modifying
Respondent’s Grand Jury Subpoena
(Matter of Benjamin S. (Kuriansky))

Petitioner John Doe moves to quash a Grand Jury sub-
poena on the unusual theory that the information sought is
barred by virtue of a prior plea bargaining agreement.

The petitioner herein is a salesman, employed by a food
company dealing with meat products. In March, 1979 he
appeared before a New York County Grand Jury and was
questioned by the special proseeutor in connection with
payoffs in the nursing home industry. Thereafter peti-
tioner was indicted and charged with three counts of per-
jury in connection with his Grand Jury testimony. On
January 21, 1980 he entered a guilty plea before the Hon.
Aloysious Melia to a class B felony on a perjury count and
was sentenced to a five year period of probation and fined
$2500.

A new subpoena was served on petitioner on July 22,
1980. It was issued from the Long Island branch of the
special prosecutor’s office and sought information in re-
gards to Queens or Nassau vendors in the health care in-
dustry. This subpoena engendered the instant motion.
Petitioner maintains that his New York sentence was the
result of plea bargaining and part of this agreement was
that he would not be asked to cooperate with the office of
the special prosecutor in giving information in connection
with the meat industry.

37a
Appendia C

Respondent vehemently denies that silence or lack of
cooperation was part of any plea bargaining and opposed
the relief sought by petitioner.

To resolve this motion, the court must determine:

(1) the nature of the plea bargaining agreement—
whether petitioner’s silence was an element in it; and

(2) the result of any such agreement. How would such
an understanding affect a subpoena?

I

Nature or THE PLEA NEGOTIATIONS

An extended hearing was held and all involved attorneys
testified.

Petitioner’s attorneys were Eleanor Jackson Peel [sic,
passim] and Harold Cammer. Ms. Peel has been prac-
ticing law for over 30 years; Mr. Cammer has almost half
a century before the bar to his credit. Both attorneys are
well known in their field, competent and highly respected,
with extensive practices in New York and other states.

Attorney Peel testified that she and co-counsel Cammer
represented petitioner at his earlier trial in which he was
charged with three counts of perjury. During the course
of these proceedings she had occasion to discuss the indict-
ment with the special prosecutor who handled the matter,
Mr. James Daw. On November 21, 1979 they were all
present in the courtroom as Justice Melia ruled on an omni-
bus motion. After the ruling, all three counsel discussed
the case in the judge’s chambers. Justice Melia felt that

38a
Appendia C

this was an appropriate matter for disposition and inquired
whether the parties had discussed the possibility of a plea.
The attorneys indicated that they had not and the judge
suggested that they consider this matter at their next
meeting.

On November 30 they returned to court and Mr. Daw
indicated that his office might consider a plea of guilty to
one count of perjury as a felony and would request a years
imprisonment or a similar jail sentence. Opposing counsel
rejected this offer as unacceptable and felt that under the
circumstances of the case a non-jail misdemeanor was more
appropriate, Attorney Peel testified that during this dis-
cussion Mr. Cammer (who had represented petitioner at
the Grand Jury level), stated that petitioner would not co-
operate in any plea by giving information or talking about
what he knew in the meat industry since he had been em-
ployed in that field for 18 years and it would be impossible
for him to work with people if he were to compromise
himself,

These statements were made before Judge Melia and he
asked the special prosecutor to see what could be done with
respect to these counter-offers. The matter was put off
until January 6th.

On this date, all parties returned to court and Mr, Daw
indicated that his office might accept petitioner’s proposals
except that he would not agree to a misdemeanor plea but
would only accept a felony. Judge Melia then stated that a
pre-pleading report would be necessary before any further
discussion of possible pleas might be considered. The case
was marked for January 21st.

39a
Appendia C

On this date, Ms. Peel testified that she arrived at the
court a few minutes before calendar call and met the deputy
attorney general in the hall. Both of them discussed the
case. Among the general topics of conversation was a dis-
cussion of the difficulty of obtaining cooperation from per-
sons involved in the service industries in cases of this
nature,

The case was called and both sides studied the probation
reports. Mr, Daw allegedly stated that it was a shame that
petitioner had not chosen to cooperate or give his office
information, Later, Judge Melia indicated that he had
read the probation report, found it favorable and that he
would consider imposing probation and a fine in this case,

Co-counsel Harold Cammer next testified. He was
present on November 30 when Judge Melia raised the possi-
bility of the case being resolved by a plea. At that time
the special prosecutor said only a felony plea would suffice,
The counsel stated that Ms. Peel objected to a jail sentence
as being unjust and she went into the background of peti-
tioner pointing out his age, his steady employment and a
favorable war record as well as his lack of culpability in
the instant case, Co-counsel testified that whatever the
plea it would have to be made with the understanding that
petitioner would not give any information about the meat
industry where he worked since he would not be able to
continue working or secure employment from friends in
the trade. In addition, since he worked as a commission
salesman, he would not be able to earn a living if he gave
incriminating information.

Neither Judge Melia or attorney Daw responded to this
statement or commented in any way. The only statement

40a
Appendia C

the special prosecutor made was that he would have to
take the matter up with his office.

On December 6, 1979 the special prosecutor stated that
the petitioner’s proposals were satisfactory except that the
plea would have to be to a felony.

Thereafter on January 21, 1980 the witness stated that
he returned to the courtroom and discussed the case in-
formally with Mr. Daw in the hall and once again advised
him that his client was deeply concerned over any possi-
bility that he might have to give further information. The
special prosecutor stated that he understood.

Attorney James Daw, representing the state, next testi-
fied. He was admitted to the bar in 1975 and was assigned
petitioner’s case in 1979. Attorney Daw handled the mat-
ter after the indictment was voted and he did not handle
it at the Grand Jury level. To the best of his recollection
there were two or three discussions dealing with a plea.
These talks took place between November, 1979 and Janu-
ary, 1980. The special prosecutor stated that on behalf of
his office he could not accept the plea unless it ). volved a
class EK felony with a recommendation of incarceration.
Defendant’s attorney objected to any felony plea and pro-
posed a class A misdemeanor with no imprisonment. Mr,
Daw testified in this regard (p, 139, 140, hearing minutes
8/28/80).

“‘T told Mrs, Peel at the time that the only way
such a plea would be acceptable would be if the de-
fendant agreed that he would cooperate with the office
in various investigations that we were conducting in-
volving information which had come to our attention,
and, indeed, had been the subject, I suppose, of his
Grand Jury appearance.’’

4la
Appendia C

‘*Mrs. Peel told me that he couldn’t cooperate with
us. That if he did so it would jeopardize his position
in the meat industry. He was employed as a meat
salesman. Given his age it would be extremely difficult
for him to find employment were that to happen’’,

‘*So the position I took was that the defendant
would have to plead to an EK and he did so’’,

“‘Q—This is an FE with no cooperation?
A—That is correct.’’

Mr. Daw stated that the only plea bargain agreement
that he entered into was that if defendant entered a plea
of guilty to a class E felony, he would not object to proba-
tion and a fine. There were no other promises that he
made in respect to this plea bargaining. He further stated
that he believed that he mentioned the possibility of peti-
tioner appearing before an additional Grand Jury regard-
less of what plea he took.

The plea minutes were then entered into evidence. There
is no mention of cooperation or lack of same in the record.

A pertinent section shows the following: (p. 3, plea and
sentence minutes, 1/21/80).

The Court: Now, I have told Mrs. Peel and Mr.
Cammer that if you entered this plea of guilty that I
would sentence you to probation for five years and in
addition impose a fine or in lieu of payment of the
fine a prison sentence. Do you understand that?

The Defendant: Yes, your honor.

The Clerk (p.7) * * * you are now being arraigned
for sentence under indictment * * * of 1979 upon your
plea of guilty to the crime of perjury in the second
degree under the first count of that indictment to cover
the indictment, You, your counsel or both of you may

42a
Appendia C

address the court after the assistant district attorney
has addressed the court and prior to sentence, Does
the assistant wish to make a statement before sentence?

Mr. Daw: No, the People will rely on the conference
that was had at the Bench.

The Court; Thank you, Mr. Daw. Mrs, Peel?

Mrs. Peel: Your Honor, I believe we have fully
discussed the matter, I believe your Honor fully
understands the facts. I have read the probation re-
port and your Honor has read it and I believe the
position of the defendant is clearly set forth there as
well as the position of the presecution and we rely on
the record,

The People concluded their hearing by presenting attor-
ney John Bevilacqua who issued the present disputed
subpoena, Mr, Bevilacqua stated that he was a special
assistant attorney general for the State of New York
assigned to working under Charles J. Hynes, deputy attor-
ney general in the hospital division of the Long Island
regional office, He testified that he had conducted his own
investigation and based on this and information received
in the Long Island office he had decided to subpoena the
petitioner in this case, The state attorney indicated that
he had not been in touch with the New York City prosecutor
and that his investigation was distinct from that of any
previous one,

II

Tun Apriicaste Law

It is now clear that plea bargain is a valid legal process
and one which serves the interests of justice (Santobello v

43a
Appendia C

New York, 404 US 257; People v Selikoff, 35 NY2d 227),
The underlying rule is that when a defendant has been
induced to plead guilty in reliance on a promised sentence
and all bargain conditions are performed, the sentence
promised must be fulfilled or the defendant granted the
right to withdraw his plea.

As regards the plea bargaining process, a fundamental
rule is that all agreements should be placed squarely on the
record (People v Selikoff, supra, 248-244), A full record
is vital

‘*so that defendant will understand that he can rely
on what is stated on the record, within the limitations
stated and cannot under any but the most unusual
circumstances rely on anything not stated on the
record no matter what discussion there has been’’
(People v McConnell, 49 NY2d 340, 346),

Once a promise is placed on the record the court will then
examine the minutes of plea and sentence. If the record
establishes that the plea is so unequivocal that it refutes
the contention of an ‘‘off-the-record promise’’ then relief
cannot be granted (People v Selikoff, supra), Nor will the
court act when defendant's claims are patently incredible
and flatly contradicted by this court record (People v
Davidson, 35 NY2d 227, 244; People v Sominara, 58 AD2d
841),

Most of these off-the-record promises start out as dis-
cussions between the parties and are merely exploratory in
nature and are not meant to be binding on either side,
However, some of these discussions do take the form of
representations, If these representations are substantial
enough to cause a defendant to actually accept a plea and

dda
Appendix C

the prosecutor is aware of this, then they well may be
considered legally binding agreements, If so, they fall
under the Santebello [sic] rule. If a defendant's rights
have been found to be violated, two remedies have been
utilized; (1) specific performance of the plea agreement
(Santebello [sic] v New York (supra); withdrawal of the
guilty plea (People v Selikof’, supra), Whatever the rem-
ody, its determination will be made by the court,

In the case at bar the sentencing and plea minutes make
no reference to any promise on the part of the prosecutor
that he would respect the petitioner’s right to silence on
matters revealed by the Grand Jury investigation or that
the plea in this case was based on a theory of non-coopera-
tion, There were references to prior conferences and
previous discussions but nothing which would support
petitioner’s claim, However, the hearing did disclose that
petitioner was involved in a non-violent crime and gave
false testimony in regard to his business dealings, On sev-
eral occasions petitioner’s attorneys stated to the special
prosecutor that their client was deeply concerned about
the possibility of future New York Grand Jury appear-
ances, The state was aware that the petitioner in this case
would not cooperate for fear of losing his business as a
salesman, Worthy or unworthy as this motive may be, it
was definitely expressed in this case. Further, the record
shows that the petitioner would not cooperate by giving
any information as regards his business dealings or accept
a misdemeanor plea based on cooperation,

An analysis of the evidence shows no definite promise
by the state regarding Grand Jury appearances, Yet the
record does establish that the issue was a central theme in

45a
Appendiz C

all negotiations and discussed frequently. Certainly the
special prosecutor is not under any duty to resolve every
issue raised during plea discussions. Some matters are
minor or beyond the normal scope of a sentencing court.
Thus a state attorney may elect to remain silent or take
no position on matters which he feels are immaterial to the
proceedings (cf. People v Jones, 37 Mise2d 931). However
once the prosecutor does enter into matters raised in plea
negotiations and becomes aware that a defendant considers
his answers to be representations and relies on such an-
swers, then the state attorney is under an obligation to be
precise in his representations. If the state perceives that
there is confusion about a specific matter vital to a de-
fendant it is under a further duty to take reasonable steps
to end that confusion. In the case at bar when the possi-
bility of future Grand Jury appearances was raised the
deputy attorney general gave equivocal answers which
logically would have the effect of letting petitioner believe
that he would have no grounds for worry in this respect.

In addition, petitioner was represented by two experi-
enced attorneys and it was their understanding also that
the off-the-record representation was to the effect that their
client would not be obliged to give further information be-
fore a New York Grand Jury. It is also clear that if the
special prosecutor had expressed any doubts on the record
as to whether or not the petitioner might have to appear
before a Grand Jury, the plea bargaining session would
have been different.

This being the case, the court believes that the petitioner
did enter into a plea bargaining agreement regarding his
non-appearance before any further New York Grand Jury.

46a
Appendia C
III

Tue Revier To Be Grantep

The finding that an agreement was made concerning a
second New York Grand Jury appearance does not resolve
the problem. For the state argues that if such a promise
was made it is limited exclusively to the matters discussed
in the earlier New York County hearing and cannot bind
future Grand Juries in another county. Without resolving
the jurisdictional implications of such a promise, it is the
general rule that the representations of one state agency do
not necessarily bind another state agency. Yet such com-
mitments * * * ‘*should not be lightly disregarded. While
the representation may not bind other State agencies, they
should not be ignored either’’ (Chaipis v State Liquor
Auth., 44 NY2d 57, 62). In any event, we are not dealing
with different state agencies in this case but only with one,
the special prosecutor’s office in charge of nursing home in-
vestigations. As we pointed out in Santobello v New York,
supra, p. 499 ‘‘The staff of the prosecution is a unit and
each meraber must be presumed to know the commitments
made by any other member’’ (supra, 263).

The promise in this case was that the petitioner would
not be questioned a second time on matters already asked
by New York Grand Jury. The normal remedy in plea
bargaining cases is to grant specific performance or set
aside the plea. In cases where neither relief is appropriate
the courts have not hesitated in proving a third remedy by
giving the defendant the legal equivalent of the prosecu-
tor’s promise in order to fulfill the ends of justice (Palermo
v Warden, Green Haven State Prison, 545 F2d 286). In

47a
Appendix C

one novel case, the court was faced with a situation which
involved a promise where a district attorney guaranteed
immunity if a witness would cooperate. The witness did
so and later was indicted. The People argued that since
the witness was never formally called before a Grand Jury
they could not grant immunity. The court resolved the
dilemma by dismissing the indictment and granting the
defendant the practical benefit of his earlier promise (Peo-
v Caruso, 100 Mise2d 601).

Another case similar in some respects to the present
one, concerns a petitioner in a federal action who sur-
rendered drugs to federal agents in return for an expressed
promise not to ask any questions about the contraband.
Later he was called before a Grand Jury and granted im-
munity from prosecution. He argued that his original
bargain was freedom from questioning, nothing else. A
federal appellate court agreed with him and stated that
the original promise was immunity from testimony and not
simply immunity from prosecution (Matter of Doe, 410
F.Supp. 1163).

In the instant case the application is to quash or modify
a Grand Jury subpoena which is governed by CPLR, section
2304. The state argues that the petitioner has advanced
none of the traditional grounds essential to avoid obedience.
There is no claim that the subpoena was issued in bad faith,
over-broad or barred by constitutional privilege.

While this may be so, it must be kept in mind that the
special prosecutor acts as the legal advisor of the Grand
Jury (CPL, § 190.25) and has the duty of determining both
the competency of prospective witnesses and the admis-
sibility of their evidence (CPL, § 190.30 [6]; People v Di

48a
Appendia C

Falco, 44 NY2d 482, 487). If the special prosecutor is aware
that a promise has been made at a plea bargaining session
to restrict the use of potential evidence, fundamental fair-
ness demands that this promise be kept. As was pointed
out in People v Savvides, 1 NY2d 554, 555, ‘‘The adminis-
tration of justice must not only be above reproach, it must
also be beyond the suspicion of reproach’’.

Since there was no promise in this case that petitioner
would never have to testify before a Grand Jury, that pro-
hibition against all questioning set forth in Matter of Doe
is not warranted. Instead, this court will issue an order
restricting Grand Jury testimony as contemplated by the
plea bargaining agreement.

Consequently the subpoena issued by the special prose-
cutor is modified to the extent that petitioner may be ques-
tioned about all relevant matters except those facts which
were discussed during his prior appearance before the New
York County Grand Jury on March 13, 1979. The applica-
tion is denied in all other respects,

Order entered accordingly.

The clerk of the court is directed to mail a copy of this
decision and order to the attorney for the defendant.

George J. Balbach, J.S.C,

49a

APPENDIX D

July 27, 1981 Decision of Appellate Division Affirming
N.Y. State Supreme Court, Queens County
(Matter of Benjamin S. (Kuriansky), 83 A.D.2d 630,
441 N.Y.S.2d 698 (2d Dept. 1981))

MEMORANDUM BY THE COURT

Appeal by the Deputy Attorney-General for Medicaid
Fraud Control, from so much of an order of the Supreme
Court, Queens County, dated December 17, 1980, as, upon
petitioner’s motion to quash or modify a subpoena requir-
ing his attendance before a Queens County Grand Jury,
modified the subpoena so as to preclude the questioning
of petitioner about facts discussed during his appearance
before a New York County Grand Jury on March 13, 1979.

Order affirmed insofar as appealed from, without costs
or disbursements.

On March 13, 1979 petitioner, a wholesale meat sales-
man, testified before a New York County Grand Jury which
was conducting an investigation into alleged criminal activi-
ties in the health care industry in New York County. In
his testimony petitioner denied any knowledge of persons
in the meat industry having paid kickbacks to persons in
the nursing home industry. Petitioner also denied that he
had ever paid or “iscussed kickbacks. As a result of his
testimony, he was indicted on three counts of perjury in
the first degree, a class D felony. The prosecution was
conducted by a Special Deputy Attorney-General assigned
to the New York City regional office of the Hospital Divi-
sion of the Deputy Attorney-General for Medicaid Fraud
Control.

50a
Appendia D

Petitioner pleaded not guilty. Thereafter, he made
several motions, including motions to dismiss the indict-
ment in whole or in part. The Trial Judge denied peti-
tioner’s motions to dismiss, although he did remark that
one of them involved ‘‘a very gray area’’. He did, however,
grant petitioner’s motion to suppress one of the tape re-
cordings which was to be used as evidence of his perjury.
According to one of petitioner’s counsel, after the Trial
Judge had made these rulings, he invited counsel into his
chambers, indicated that he thought that the case was an
‘‘appropriate case for disposition’’, and asked counsel to
return in a week with some sort of proposal with regard
to disposition of the case. As a result of the ensuing
negotiations triggered by the Trial Judge’s request, peti-
tioner pleaded guilty two months later to one count of
perjury in the second degree, a class E felony, in full satis-
faction of the indictment. He was sentenced to five years’
probation and a fine of $2,500. This sentence was imposed
in accordance with the Judge’s promise that if petitioner
pleaded guilty to a class E felony, he would receive proba-
tion and a fine. The Judge apparently arrived at this
sentence upon his review of a prepleading report prepared
by the probation department and without reference to any
agreement by the parties concerning what they perceived
to be an appropriate sentence. Before sentencing peti-
tioner, the court noted that he was 61 years of age, had
never had any prior conflict with the law, had a ‘‘fine war
record’’, and had led ‘‘what has appeared to be an exem-
plary life up to this point and time’’.

About six months after petitioner had pleaded guilty,
a Special Assistant Attorney-General assigned to the Long

5la
Appendia D

Island Regional Office of the Hospital Division, issued a
subpoena to petitioner directing him to appear before a
Queens County Grand Jury. According to the Special As-
sistant, that subpoena was issued because the Queens Coun-
ty Grand Jury had received information ‘‘ different than the
investigation in Manhattan’’ which had ‘‘grow[n] out of
a separate matter’’, The Special Assistant did not recall
discussing the issuance of this subpoena with any member
of the New York City Regional Office. The Special Deputy
Attorney-General who had prosecuted petitioner first
learned of the subpoena from petitioner’s counsel, after it
had been issued.

Petitioner moved to quash or modify the subpoena so
as to limit the subject matter of his testimony to events
that occurred in Queens County after the date of his testi-
mony before the New York County Grand Jury.’ The basis
for the time limitation urged by petitioner was an alleged
agreement that he had entered into with the Special Prose-
cutor’s Office that, in return for his pleading guilty to a
felony, he would not be required to give any information
concerning matters which were the subject of inquiry dur-
ing his appearance before the New York County Grand
Jury. After conducting an evidentiary hearing (ef. People
v. Seminara, 58 A.D.2d 841, 396 N.Y.S.2d 472), the hearing
court concluded that petitioner had indeed entered into such
an agreement and that he was entitled to have it enforced
to the extent of having the subpoena modified to limit the
subject matter of petitioner’s testimony to his being ‘‘ques-

1. Petitioner's motion was made in Queens County. A motion
by the Deputy Attorney-General to change venue to New York
Cauite was denied and later withdrawn,

52a
Appendia D

tioned about all relevant matters except those facts which
were discussed during his prior appearance before the New
York Grand Jury’’. This appeal by the Deputy Attorney-
General followed.

A defendant may not plead guilty to a lesser included
offense of an offense charged in an indictment without the
consent of the People (CPL 220.10). Accordingly, ‘‘[a]
District Attorney may dictate the terms under which he
will agree to consent to accept a guilty plea [to a lesser
offense] and * * * the withholding of such consent * * *
renders the court without authority to accept a plea to any-
thing less than the entire indictment’’ (Matter of Gribete
v. Edelstein, 66 A.D.2d 788, 410 N.Y.8.2d 873). Moreover,
‘*the statutory requirement of consent by the People to the
acceptance of a reduced plea can hardly be obtained by
estoppel against the District Attorney on the basis of his
alleged negligence or indifference’’ (Matter of Blumberg
v. Lennon, 44 A.D.2d 769, 354 N.Y.S.2d 261). It follows,
then, that, at least under all but the most unusual cireum-
stances, a prosecutor may not be held to any aspect of a
plea bargain as to which he has not, in fact, given his con-
sent. However, the law does not permit a prosecutor who
consented to an aspect of a plea bargain to avoid its en-
forcement merely because, as here, the relevant portion of
the plea bargain was neither in writing nor recited on the
record during the plea proceedings, at least where the ‘‘off-
the-record’’ promise is neither contradicted by the record
of the plea proceedings nor legally impossible for the prose-
cutor to perform (see Santobello v. New York, 404 U.S.
257, 92 S.Ct. 495, 830 L.Ed.2d 427; People v. Seminara,
supra; ef. People v. Selikof’, 35 N.Y.2d 227, 360 N.Y.S.2d

53a
Appendix D

623, 318 N.B.2d 784, cert. den. 419 U.S. 1122, 95 S.Ct. 806,
42 L.Ed.2d822; People v. Campbell, 35 N.Y.2d 227, 241-
242, 360 N.Y.S.2d 623, 318 N.B.2d 784). Concluding that
the Deputy Attorney-General, through the Special Deputy
Attorney-General who prosecuted petitioner’s case, did
enter into a plea agreement under which, among other
things, he agreed not to elicit further Grand Jury testimony
from petitioner concerning matters discussed in his Grand
Jury testimony on March 13, 1979, that such an agreement
is neither contradicted by the record of the plea proceed-
ings nor legally impossible for the Deputy Attorney-Gen-
eral to perform, and that there is no other reason for
denying specific performance of the plea agreement, we
affirm the order of Criminal Term insofar as appealed from.

Petitioner’s two defense counsel* testified at the eviden-
tiary hearing, as did the Special Deputy Attorney-General
who prosecuted petitioner. In their testimony, these wit-
nesses all agreed that, under the plea bargain, the People
consented to petitioner pleading guilty to a class E felony
without his having to provide any information about illegal
activities as a condition precedent thereto. However, the
prosecutor testified that this was the full extent of the
agreement. Indeed, he testified that he had specifically
told one of petitioner’s counsel that the plea bargain did
not prevent petitioner’s being recalled to testify for a
second time before the Grand Jury. In contrast, peti-
tioner’s counsel both testified that the specific topics of
future Grand Jury testimony by petitioner had never been

2. The hearing court observed that petitioner’s defense counsel
were “well-known in their field, competent and highly respected” and
had been practicing law for more than 30 years and almost 50 years,
respectively.

54a
Appendix D

discussed with the prosecutor. According to the testimony
of one of them, which was supported by the testimony
of petitioner’s other attorney, the plea bargain provided
that, as a result of petitioner’s having agreed to plead to
a felony, he would not be required to ‘‘give information’’,
‘*talk about’’ or ‘‘be questioned about’’ the matters cov-
ered in his perjury indictment. To petitioner’s counsel this
bargain barred any future Grand Jury testimony by peti-
tioner concerning such matters. According to them, their
client’s primary concern throughout the plea negotiations
have been to insure that he would be shielded from having
to give any information, whether before a Grand Jury or
otherwise, concerning his dealings with customers and
others in the health care industry. This concern arose from
petitioner’s fear that if it ever became known that he had
given such information he would be unable to continue to
work as a commission meat salesman, his sole occupation
for at least the preceding 18 years. Thus, petitioner’s
counsel portrayed the plea bargain, in essence, as one in
which petitioner, who had no prior criminal record, and a
good reputation, agreed to forego a possibly successful
defense to the prosecution and to accept the ignominy of a
felony conviction in return for being permitted to avoid
giving information by which he would severely jeopardize
his livelihood. In this regard, there was testimony, cor-
roborated for the most part by the prosecutor, that the
prosecutor had rejected petitioner’s offer to plead guilty
to a misdemeanor conditioned upon his not giving any in-
formation to the prosecutor’s office, insisting upon a plea

55a
Appendia D

to a felony in that event. To petitioner’s counsel the essen-
tial aspect of the plea bargain, that petitioner be shielded
from, inter alia, giving future Grand Jury testimony with
respect to the matters covered in his prior testimony, was
so well understood by counsel and the court that there was
no need to spell it out during the plea proceedings.

Based on the evidence adduced at the hearing, Criminal
Term reached the following conclusions concerning the
nature of the plea bargain which had been made:

‘*An analysis of the evidence shows no definite promise
by the state regarding Grand Jury appearances. Yet
the record does establish that the issue was a central
theme in all negotiations and discussed frequently.
Certainly the special prosecutor is not under any duty
to resolve every issue raised during plea discussions.
Some matters are minor or beyond the normal scope
of a sentencing court. Thus a state attorney may elect
to remain silent or take no position on matters which
he feels are immaterial to the proceedings (cf, People v.
Jones, 87 Mise.2d 981[887 N.Y.S.2d 779]). However,
once the prosecutor does enter into matters raised in
plea negotiations and becomes aware that a defendant
considers his answers to be representations and relies
on such answers, then the state attorney is under an
obligation to be precise in his representations. If the
state perceives that there is confusion about a specific
matter vital to a defendant it is under a further duty
to take reasonable steps to end that confusion. In the
case at bar when the possibility of future Grand Jury
appearances was raised the deputy attorney general
gave equivocal answers which logically would have the
effect of letting petitioner believe that he would have
no grounds for worry in this respect.

56a
Appendia D

‘In addition, petitioner was represented by two ex-
perienced attorneys and it was their understanding also
that the off-the-record representation was to the effect
that their client would not be obliged to give further
information before a New York Grand Jury, It is also
clear that if the special prosecutor had expressed any
doubts on the record as to whether or not the petitioner
might have to appear before a Grand Jury, the plea
bargaining session would have been different,

‘*This being the case, the court believes that the peti-
tioner did enter into a plea bargaining agreement re-
garding his non-appearance before any further New
York Grand Jury,”’
Criminal Term then Jetermined that ‘‘specifie perfor-
mance’’ of the plea bargain, to the extent indicated, was the
appropriate remedy for the breach of that agreement.

While we cannot agree with all of the findings and con-
clusions of Criminal Term, we reach the same result that
it did,

Insofar as Criminal Term found that the specific issue
of future Grand Jury appearances had been raised in the
plea negotiations, such a finding has no support in the
record and cannot be affirmed, As indicated, petitioner's
own counsel testified that there had been no specific dis-
cussion of future Grand Jury appearances. Moreover, we
disagree with Criminal Term to the extent that it concluded
that, as a matter of law, under the circumstances of this
case, the prosecutor might be held to an aspect of the plea
bargain to which he did not actually consent because he
made imprecise or equivocal statements during the plea
negotiations. The mere fact that a defnse attorney had
been left with an ‘‘impression’’ that a particular promise

57a
Appendia D

had been made is not sufficient to give rise to an enforceable
promise (see People v, Lazore, 59 A.D.2d 635, 398 N.Y.8.2d
189). In other words, as a general matter, short of a con-
clusion that a prosecutor knowingly consented to an aspect
of a plea bargain, this court will not hold him to it (see
Matter of Gribete v, Edelstein, 66 A.D.2d 788, 410 N.Y.S8.2d
873, supra; Matter of Blumberg v. Lennon, 44 A.D.2d 769,
354 N.Y.8.2d 262, supra). However, based upon our review
of the record and the findings of Criminal Term, including
its implicit findings with respect to credibility of witnesses,
we conclude that when the prosecutor indicated his assent
that under the plea bargain petitioner would not be required
by his office to ‘‘give information’’, ‘‘talk about’’ or ‘be
questioned about’’ matters covered in his Grard Jury testi-
mony, he thereby gave his knowing consent that petitioner
was not to be called before a Grand Jury by his office to
discuss those matters.

In reaching this conclusion, we must emphasize that
the promise alleged by petitioner is not contradicted by
the record of the plea proceedings, It it were, then the
promise could not be recognized for a defendant will not
be heard to contend that an off-the-record promise was
made to him to induce his guilty plea ‘‘when the minutes
of the plea are unequivocal and refute any contention of
an off-the-record promise’’ (People v, Frederick, 45 N.Y.2d
520, 526, 410 N.Y.S.2d 555, 382 N.B.2d 1332), However,
the oft-posed question to a defendant whether any prom-
ises have been made to him other than those set forth on
the record is conspicuously absent from the minutes of the
plea proceedings in petitioner's case, Nor do those min-

utes or the sentence minutes contain anything else which

58a
Appendi» D

refutes or contradicts petitioner’s contention, Since peti-
tioner’s reliance upon an off-the-record promise may not
be rejected on the ground that such a promise is at variance
with the record (see People v, Seminara, 58 A,D.2d 841,
396 N.Y.S.2d 472, supra), the issue whether the prosecutor
consented to a plea bargain which he understood to bar
future Grand Jury testimony by petitioner with respect to
matters discussed in his prior Grand Jury testimony may
properly be considered,

The prosecutor testified that he stated to one of peti-
tioner’s counsel that the plea bargain did not prevent peti-
tioner from being called to testify before a Grand Jury,
Petitioner’s covnsel testified that no such statement had
been made, If the prosecutor's testimony was credited,
then the order would have to be reversed insofar as ap-
pealed from, However, in reaching the determination that
it did, Criminal Term necessarily concluded that the testi-
mony of petitioner’s counsel was the more credible in this
respect, Since Criminal Term had the advantage of seeing
and hearing these witnesses and the testimony of neither
of them was incredible as a matter of law, we defer to this
factual conclusion by Criminal Term (see Amend v, Hurley,
293 N.Y. 587, 594, 59 N.B.2d 416; People v. Newson, 68
A.D.2d 877, 386-387, 417 N.Y.S.2d 264; Rametta v. Kaelo,
68 A,D.2d 579, 418 N.Y.S.2d 118; Barnet v, Cannizzaro, 3
A.D.2d 745, 747, 160 N.Y.8.2d 329),

Our review of the remaining evidence in the record, ac-
complished with Criminal Term’s determination of cred-
ibility in mind, convinces us that the result reached by the
court was proper. Concededly, there was no evidence that

59a
Appendix D

there had been any specific statement by the prosecutor
that the plea bargain would prohibit petitioner’s being
called to give Grand Jury testimony concerning the mat-
ters he had already discussed before the Grand Jury. How-
ever, there was evidence that the prosecutor had indicated
his assent to petitioner’s counsel’s statements that, under
the plea bargain, petitioner would not be required to ‘‘ give
information’’, ‘‘talk about’’ or ‘‘be questioned about’’
those matters. Any doubt concerning the meaning of these
terms is resolved to our satisfaction upon reference to the
admitted failure by the prosecutor, or anyone else in the
regional office in which he was employed, to make any effort
to call petitioner before the Grand Jury following entry of
his guilty plea despite ample opportunity to do so. In an
affirmation made in opposition to petitioner’s omnibus mo-
tion, over two months before petitioner pleaded guilty, the
prosecutor had stated that ‘‘[Petitioner’s] truthful im-
munized testimony could have provided the Grand Jury
with valuable insights into crime in the health care field’’,
Moreover, at the plea proceedings, the prosecutor heard
petitioner admit that he had given perjured testimony dur-
ing his Grand Jury appearances. Since the prosecutor was
of the view that petitioner could provide valuable testimony
to the Grand Jury and knew that the testimony that peti-
tioner had previously given was false, he had strong reason
to recall petitioner before the Grand Jury. The prose-
cutor’s failure to do so is powerful evidence that he under-
stood the plea bargain to prevent him from doing so.

Our conclusion concerning the agreed upon meaning of
the aspect of the plea bargain at issue is also buttressed by

60a
Appendix D

other uncontested facts reflected in the record. For ex-
ample, it is noteworthy that at no time did the Judge who
accepted petitioner’s plea and sentenced him to probation
indicate that either acceptance of the plea or imposition of
a probationary term would be conditioned upon petitioner’s
giving truthful testimony before the Grand Jury. More-
over, under the objective circumstances of this case, we
are of the view that it is unlikely that the prosecutor be-
lieved that petitioner’s counsel were entering into a plea
bargain under which the sole benefit to be provided to pe-
titioner by the prosecutor’s office was to permit him to
plead guilty to a felony that was of one degree less severity
than the crimes charged in the indictment without having
to provide information as a condition precedent thereto.
We reject the contention of the Deputy Attorney-Gen-
eral that, even if there was a promise which purported to
shield petitioner from further Grand Jury testimony, such
a promise may not be enforced because it is impossible for
the Deputy Attorney-General to perform it without imper-
missibly infringing upon the right of the Grand Jury to
gather evidence. As the Deputy Attorney-General con-
tends, where a prosecutor promises that which he cannot
legally perform, a defendant may not, as a matter of law,
rely on that promise or be entitled to its enforcement (Peo-
ple v. Selikoff, 35 N.Y.2d 227, 241, 360 N.Y.S.2d 623, 318
N.E.2d 784, cert. den, 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d
822, supra; see Matter of Chaipis v. State Liq. Auth., 44
N.Y.2d 57, 404 N.Y.S.2d 76, 375 N.E.2d 32; but see Palermo
v. Warden, Green Haven State Prison, 545 F.2d 286, 296
(2nd Cir.)). However, as this court and the petitioner
interpret the promise in question, we believe that there is

6la
Appendia D

no legal bar to the Deputy Attorney-General’s performance
of it.’

As stated in People v. DiFalco, 44 N.Y.2d 482, 486-487,
406 N.Y.S.2d 279, 377 N.E.2d 732:

‘(During the actual proceedings, the legal advisor of
the Grand Jury is the District Attorney and legal ad-
vice from any other source is improper (CPL 190.25,
subd. 6; see Matter of Hynes v. Moskowitz, 44 N.Y.2d
383 [406 N.Y.S.2d 1, 377 N.E.2d 446]). The District
Attorney determines the competency of witnesses to
testify (CPL 190.30, subd. 5), and must instruct the
jury on the legal significance of the evidence (CPL
190.30, subd. 6). He, in effect, determines what wit-
nesses to present to that body and who should be ex-
cluded. These duties and powers, bestowed upon the
District Attorney by law, vest that official with sub-
stantial control over the Grand Jury proceedings, re-
quiring the exercise of completely impartial judgment
and discretion.’’

We note that a district attorney is authorized to seek
to prohibit the Grand Jury from calling a witness where to
do so would not be ‘‘in the publie interest’? (CPL 190.50,
subd, 3). However, we need not explore that issue because
in this case, according to petitioner, his ‘‘limited position
** * is merely that prosecutor is barred by the plea agree-
ment from questioning [petitioner] again as to the iden-
tical matters already covered in [his] prior grand jury ap-

3. We observe that a prong of this nature made by a prosecutor
in the New York regional office of the Special Prosecutor is binding
upon the Special Prosecutor's office as a whole, including the members
of the Long Island regional office. “The staff lawyers in a prosecu-
tor’s office have the burden of ‘letting the left hand know what the
right hand is doing’ or had done” (Santobello v. New York, 404 U.S,
257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427).

62a
Appendia D

pearance’, CPL 190.50 sets forth the exclusive cireum-
stances under which a person may be called as a witness in
a Grand Jury proceeding. Pursuant to subdivision 2
thereof, the People ‘‘may’’, but are not required to, call
any person believed by the district attorney to possess
relevant information or knowledge. A prosecutor, in per-
formance of a valid plea bargain, may decline to call before
the Grand Jury a witness whom he believes possesses rel-
evant information or knowledge. Thus, we fail to perceive
any legal bar to his agreeing not to ask certain questions in
return for a defendant’s pleading guilty.

The Deputy Attorney-General contends finally that
Criminal Term erred in granting petitioner ‘‘specifie per-
formance’’ of the plea agreement. He argues that where,
as here, a defendant has given up only his right to proceed
to trial on the indictment, the ‘‘normal’’ remedy upon a
demonstrated breach of a plea agreement is to merely
afford the defendant an opportunity to withdraw his guilty
plea. We disagree. It has been said that ‘‘both Selikoff
and I’rederick establish that in most instances when a guilty
plea has been induced by an unfulfilled promise either the
plea must be vacated or the promise honored, but * * * the
choice rests in the discretion of the sentencing court’’
(People v. McConnell, 49 N.Y.2d 340, 346, 425 N.Y.S2d 794,
402 N.E.2d 133). However, in Selikof’, Frederick and
McConnell, the promise was made, or allegedly made, by
the sentencing court. Here a legally enforceable, nondis-
cretionary promise was made by a prosecutor, Where such
a promise has been breached, at least as a general matter,

63a
Appendia D

the minimum relief to which a defendant who has pleaded
guilty in reliance upon that promise is entitled is its enforce-
ment. Thus, it was said in Santobello v. New York, 404
U.S. 257, 262, 263, 92 S.Ct. 495, 498, 499, 30 L.E.2d 427
supra), where the defendant had apparently not been prej-
udiced by the prosecutor’s breach of the plea agreement:

‘‘This phase of the process of criminal justice, and the
adjudicative element inherent in accepting a plea of
guilty, must be attended by safeguards to insure the
defendant what is reasonably due in the circumstances.
Those circumstances will vary, but a constant factor is
that when a plea rests in any significant degree on a
promise or agreement of the prosecutor, so that it can
be said to be part of the inducement or consideration,
such promise must be fulfilled.

‘The ultimate relief to which petitioner is entitled we
leave to the discretion of the state court, which is in a
better position to decide whether the circumstances of
this case require only that there be specific perform-
ance of the agreement on the plea, in which case peti-
tioner should be resentenced by a different judge, or
whether, in the view of the state court, the cireum-
stances require granting the relief sought by petitioner,
i. e., the opportunity to withdraw his plea of guilty’’
(emphasis supplied).

Finding no reason in this case not to have the prose-
cutor’s promise enforced, we affirm the order of Criminal
Term insofar as appealed from.

64a

APPENDIX E

February 18, 1982 Opinion and Order of New York
Court of Appeals Reversing Appellate Division
(Matter of Benjamin S. (Kuriansky), 55 N.Y.2d 116,
447 N.Y.S.2d 905, 432 N.E.2d 777 (1982))

OPINION OF THE COURT
GasRieLut, Judge.

Petitioner moved to quash or modify a Grand Jury sub-
poena issued by a Queens County Grand Jury, on the basis
of a promise allegedly made to him by a Special Assistant
Attorney-General as part of a plea bargaining agreement.
Supreme Court and the Appellate Division both held that
the plea bargaining promise should be enforced, each basing
the result on differing reasoning. Because the alleged
promise was not made a part of the record in the prior
criminal proceeding, we reverse.

In March of 1979, petitioner was subpoenaed to appear
before a New York County Grand Jury and was questioned
about the existence of kickbacks and other illegal rebates
in the health-care industry. Petitioner’s responses to this
questioning led to his indictment for three counts of perjury
in the first degree. During plea negotiations, petitioner’s
desire to avoid being required to give further information
regarding the events covered by his Grand Jury testimony
was expressed several times by his two attorneys. What-
ever understanding may have been reached between peti-
tioner’s attorneys and the prosecutor in this regard, how-
ever, it clearly was noi, made a part of the record. Neither
is the existence of such an agreement flatly contradicted on
the record, either by virtue of an inconsistent agreement

65a
Appendix E

or by a statement elicited from petitioner that no other
promises had been made to induce his plea.

Approximately six months after his guilty plea, peti-
tioner was served with a grand jury subpoena commanding
his appearance before a Queens County Grand Jury, which
was investigating corruption in the hospital industry. This
subpoena, the subject of the present appeal, was issued in
connection with an investigation being prosecuted by an-
other bureau of the special prosecutor’s office which had
previously subpoenaed petitioner in March of 1979. After
unsuccessful attempts to have the claimed plea bargaining
agreement honored, petitioner made a motion to quash or
modify the subpoena. Supreme Court, Criminal Term,
found that the prosecutor, by his equivocal responses when-
ever the subject was brought up, had led petitioner to be-
lieve that he had no reason to worry about future Grand
Jury appearances. Notwithstanding the court’s belief that
no definite promise had been made regarding future Grand
Jury testimony, it enforced petitioner’s expectation by
modifying the subpoena to the extent of precluding ques-
tioning of petitioner about matters which had been dis-
cussed during his prior appearance before the New York
County Grand Jury.

The Appellate Division affirmed, but on a different
analysis. That court noted that a prosecutor may not be
held to an aspect of a plea bargain to which he did not con-
sent simply because he made imprecise or equivocal state-
ments during plea negotiations. The Appellate Division
found, however, that by indicating his assent that petitioner
would not be required to give further information about
matters covered in his Grand Jury testimony, the prose-

66a
Appendix E

cutor knowingly consented to an agreement that petitioner
would not be called before a Grand Jury by his office to
discuss those matters.

We find it unnecessary to attempt to discern the scope
and meaning of the statements made during the plea nego-
tiations relative to petitioner’s desire to avoid further in-
volvement with the Grand Jury. Inasmuch as a record had
been made of the terms of the plea agreement in the prior
criminal proceeding, and the promise petitioner now claims
was made is nowhere mentioned in that record, the claimed
off-the-record promise is unenforceable. Thus, the order
of the Appellate Division, 83 A.D.2d 630, 441 N.Y.S.2d 698,
should be reversed.

It is a settled rule of law in this State that off-the-record
promises made in the plea bargaining process will not be
recognized where they are flatly contradicted by the record,
either by the existence of some on-the-record promise whose
terms are inconsistent with those later urged or by the
placement on the record of a statement by the pleading
defendant that no other promises have been made to induce
his guilty plea (People v. Frederick, 45 N.Y.2d 520, 410
N.Y.S.2d 555, 382 N.E.2d 1332; People v. Selikoff, 35 N.Y.2d
227, 360 N.Y.S.2d 623, 318 N.K.2d 784, cert. den. 419 U.S.
1122, 95 S.Ct. 806, 42 L.Ed.2d 822; People v. Da Forno, 58
N.Y.2d 1006, 442 N.Y.S.2d 476, 425 N.B.2d 864). We have
repeatedly emphasized the necessity of placing all promises
on the record, in order to assure the continued validity and
usefulness of the plea bargaining process in our criminal
justice system (People v. Frederick, 45 N.Y.2d 520, 526,
410 N.Y.S.2d 555, 382 N.E.2d 1332, supra; People v. Selikoff,
35 N.Y.2d 227, 244, 360 N.Y.S.2d 623, 318 N.E.2d 784, supra;

67a
Appendix E

see, also, People v. McConnell, 49 N.Y.2d 340, 346, 425 N.Y.S.
2d 794, 402 N.B.2d 133),

The distinguishing factor in the present case, and one
which the Appellate Division found to be dispositive on this
issue, is that the promise now urged by petitioner is not
expressly contradicted by the record. We disagree that
this factor mandates a departure from our policy of requir-
ing that all terms of the plea agreement be placed on the
record, Notwithstanding the emphasis that has previously
been placed upon the existence of record contradiction of
the promise later being claimed, we believe that the pur-
poses of the plea bargaining process would best be fur-
thered in the usual case by refusing judicial recognition of
any off-the-record promise once a record has been made
of the terms of the plea agreement. The mere fact that the
court failed to ask or the defendant failed to inform the
court of the existence of other promises or inducements
should not entitle that defendant to attempt to prove that
other inducements led him to plead guilty, particularly
where, as here, the defendant is represented in the plea
bargaining process by experienced counsel.

Thus, once the terms of a plea bargaining agreement
are placed on the record, judicial recognition of additional
promises or terms of the agreement will not be forthcoming
except in a rare case, Any other rule would serve only to
undermine the goal of eliminating the secretiveness that
has at times tended to surround the plea bargaining process.
The court should, in every case, ascertain on the record
that no other promises have been made on which the de-
fendant might be relying. If the court fails to make this
determination, however, it is nevertheless the defendant's

68a
Appendix E

burden, on pain of losing the claimed promise, to inform
the Judge accepting the plea of all promises that were made
to induce his plea that are not otherwise revealed,

As the pron.ise sought to be enforced by petitioner does
not appear on the record of the prior criminal proceeding,
it was unnecessary to hold a hearing to determine whether
such a promise existed. In view of our disposition of this
case, we need not reach the question of whether the prose-
cutor has the power to negotiate with a criminal defendant
regarding potential future appearances before a Grand
Jury.

Accordingly, the order of the Appellate Division should
be reversed, with costs, and the motion to quash or modify
the subpoena should be denied,

Cooker, C. J., and Jasen, Wacutier, Fucuspera and
Meyer, JJ., concur.
Jones, J., taking no part.

Order reversed, ete.

69a

APPENDIX F

March 25, 1982 New York Court of Appeals
Certification of Federal Question (Matter of
Benjamin S. (Kuriansky), 56 N.Y.2d 570,
450 N.Y.S.2d 186, 435 N.E.2d 403 (1982) )

Motion for reargument, 55 N.Y.2d 116, 447 N.Y.S.2d 905,

432 N.K.2d 777, denied.

Motion to amend the remittitur granted, remittitur re-
called and, when returned, it will be amended by adding

thereto the following:

Upon the appeal herein there was presented and neces-
sarily passed upon a question under the Constitution
of the United States, viz: Whether petitioner’s federal
constitutional rights are violated by the requirement
that, once a record is made of the terms of a plea bar-
gaining agreement, all promises made to the pleading
defendant must be made a part of that record before

they will be enforced,

70a

APPENDIX G

March 5, 1981 Decision and Order of the New York
State Supreme Court, New York County, Denying
Petitioner’s Motion to Withdraw His Plea
(People of N.Y. v. Siegel)

McQuay, J.:

Defendant pleaded guilty to perjury in the second degree
in the Supreme Court, New York County, on January 21,
1980 (Melia, J.). He was sentenced on the same date to
five years probation and a fine of $2500. Defendant did
not appeal this conviction.

Approximately six menths after defendant had pleaded
guilty in New York County the Special Prosecutor sub-
poenaed him to testify before a Queens County Grand Jury.
Defendant moved to quash or modify the subpoena so as to
limit the subject matter of his testimony. The basis for
the motion to quash or modify the subpoena was a plea
bargaining agreement not placed on the record when de-
fendant pleaded guilty before Judge Melia on January 21,
1980. Both the Supreme Court, Queens County (Balbach,
J.) and the Appellate Division, Second Department, each
basing the result on different reasoning, held that the plea
bargaining agreement should be enforced. Both the Su-
preme Court, Queens County and the Appellate Division
made factual findings regarding the scope and existence
of the plea bargaining agreement; these findings were based
on the record of a hearing held before Judge Balbach on
August 28 and 29, 1980.

On February 18, 1982, the Court of Appeals reversed
the order of the Appellate Division. Matter of Benjamin

7la
Appendix G

S. v. Kuriansky, slip op. #2 at 1. The Court stated, inter
alia: ‘*We find it unnecessary to attempt to discern the
scope and meaning of the statements made during the plea
negotiations relative to petitioner’s desire to avoid further
involvement with the grand jury. Inasmuch as a record
had been made of the terms of the plea agreement in the
prior criminal proceeding, and the promise petitioner now
claims was made is nowhere mentioned in that record, the
claimed off-the-record promise is unenforceable . ... we
believe that the purpose of the plea bargaining process
would best be furthered in the usual case by refusing ju-
dicial recognition of any off-the-record promise once a rec-
ord has been made of the terms of the plea agreement. The
mere fact that the court failed to ask or the defendant failed
to inform the court of the existence of other promises or
inducements should not entitle that defendant to attempt
to prove that other inducements led him to plead guilty,
particularly where, as here, the defendant is represented
in the plea bargaining process by experienced counsel.
Thus, once the terms of a plea bargainiag agreement are
placed on the record, judicial recognition of additional
promises or terms of the agreement will not be forthcoming
except in a rare case.... As the promise sought to be
enforced by petitioner does not appear on the record of
the prior criminal proceeding, it was unnecessary to hold
a hearing to determine whether such a promise existed.’’
Id. at pp. 3-5.

Defendant (petitioner in the Court of Appeals) has now
moved, pursuant to CPL 440, for an order: (1) reopening
the plea and sentence proceedings of January 21, 1980 to
place on the record the terms of the plea bargaining agree-

72a
Appendia G

ment at issue in Matter of Benjamin S. v. Kuriansky, supra;
(2) ‘‘[vJacat

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0209%3A2. Public record. Not legal advice.