On the evening of October 4, 1976 defendant was arrested on a warrant issued by the Nassau County District Court for the charge of forgery in the second degree. At that time, defendant was on parole from a 1964 sentence of 10 to 20 years’ imprisonment imposed upon his conviction of the crimes of forgery and grand larceny.
A Nassau County Criminal lawyer said that in the early hours of October 5, 1976, defendant was questioned by the police and made a statement concerning the charges then lodged against him, which involved possession of a forged $1,200 check from a Shoe Repair and attempted grand larceny arising out of an unsuccessful effort to cash that check. Thereafter defendant claims that he spoke with a Detective of the Nassau County Police Department, who solicited his co-operation and assistance in a pending homicide investigation.
Defendant was then taken to the headquarters of the District Attorney’s Rackets Bureau in Bethpage, where he met with an Assistant District Attorney. In order to effectuate the previously agreed upon bargain, there was an explanation on the conditions upon which defendant had agreed to co-operate, and obtained the consent of Inspector General of that office to defer execution of the violation of parole arrest warrant.
In the late afternoon of October 5, defendant was arraigned in Nassau County District Court on the forgery and attempted grand larceny charges, pleaded not guilty, and was released in his own custody. Thereafter, criminal defendant alleges that he returned to police headquarters “in order to consummate the bargained-promise.” The record is unclear as to when defendant performed any services on behalf of the police and District Attorney regarding the homicide investigation.
On October 8, 1976 defendant was arrested on the outstanding violation of parole warrant and was transported to the Correctional Facility where he remained until November 10, 1976, when he was returned to Nassau County. In December, 1976 defendant waived immunity and testified before the Grand Jury with respect to the alleged forgeries.
In April, 1977 defendant moved to dismiss Indictment No. 45688, charging him with criminal possession of a forged instrument in the second degree and attempted grand larceny in the third degree regarding the $1,200 check. Defendant claimed that the indictment should be dismissed because of prosecutorial misconduct in failing to honor the promise made at the time of his arrest.
On May 27, 1977 the Nassau County Grand Jury returned Indictment No. 46246 against defendant, charging him with criminal possession of a forged instrument in the second degree. In September, 1977 defendant moved to dismiss that indictment, pertaining to the $53.45 check, and renewed his motion to dismiss Indictment No. 45688, involving the $1,200 check, upon the ground of prosecutorial misconduct in breaking the promise that he would not be prosecuted for a felony. In his motion papers defendant alleged that the police and Assistant District Attorney knew about both checks and that the District Attorney’s promise encompassed both charges, despite the fact that a complaint had not been officially filed concerning the $53.45 check until October 7, 1976.
The motion was referred to another Judge because the former judge, had disqualified himself from hearing these cases. He summarily denied the motion, apparently upon the ground that the issue presented had previously been decided adversely to defendant by Judge.
Thereafter defendant pleaded guilty to the crime of attempted criminal possession of a forged instrument in the second degree in satisfaction of both indictments. The possession plea minutes indicate that defendant specifically reserved his right to challenge the denial of his motions to dismiss the instant indictments and the Judge stated that he was not asking defendant to waive that right. Criminal Defendant was subsequently sentenced as a second felony offender to a term of imprisonment of one and one-half to three years.
On appeal defendant’s sole contention is that the motions to dismiss were improperly denied. The People contend that by his plea of guilty defendant waived all nonjurisdictional defects. In view of the fact that defendant entered his plea only after specifically reserving his right to raise on appeal the propriety of the denial of his motions to dismiss, and since the court stated that it was not asking defendant to waive that right and the People made no objection to such an arrangement, The Court cannot agree that the defendant’s plea resulted in a waiver.
Turning to the merits of the case, the defendant has adduced evidence by way of the affidavits of Assistant District Attorney and Detective Sergeant that a promise of leniency was made to him in return for his co-operation. Detective Sergeant’s affidavit also clearly indicates that defendant was provided with a recording device, that he was sent to the home of a person suspected of having knowledge of the homicide and that this person was advised of defendant’s co-operation with the police, thereby endangering defendant’s safety and ending his usefulness in the investigation. In opposition to these motions the People submitted only an affirmation of an Assistant District Attorney without knowledge of the facts, who stated, on information and belief, that no promises were made to the defendant.
In the Court’s opinion, a hearing should have been held on defendant’s second motion to determine whether a promise was made and, if so, its exact nature and scope. The People’s bald assertion that no promise was made is controverted by the affidavits of Assistant District Attorney and Detective Sergeant. These affidavits provide strong support for defendant’s claim that a promise was indeed made to him and it seems highly unlikely that defendant gratuitously undertook to work with the police on the homicide investigation. If defendant’s allegations of a promise are true, then ostensibly the People reneged on their “deal” with him because, although he co-operated, his efforts failed (through no fault of his own) to produce any incriminating evidence against the target of the homicide investigation. According to Detective Sergeant’s affidavit, defendant did all he was asked to do and was admittedly “placed in a very precarious position” when his co-operation with the police was discovered. The fact that defendant’s services failed to produce results is not determinative for, as the Court of Appeals said in a case: “Where those services have been significant, Or have involved considerable risk or sacrifice on the defendant’s part, failure to enforce the promise might do substantial injustice, not only to the defendant but to the public which is entitled to have the benefit of future co-operation, and is to be avoided”.
Fairness dictates that if defendant exposed himself to danger on the People’s behalf, he is entitled to have the alleged promise made to him enforced. Accordingly, the instant appeal and arraignment should be held in abeyance and the case remitted to the County Court, Nassau County, for a hearing to determine (1) whether a promise was made to defendant to gain his co-operation, (2) if so, the exact nature and scope of the promise, including whether it was intended to cover one or both forgery charges and (3) whether defendant performed services in reliance upon the promise which exposed him to danger.
Case remitted to the County Court, Nassau County, to hear and report on the issues set forth in the opinion herein, and appeal held in abeyance in the interim. The County Court is to file its report with all convenient speed.
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