People v. Gottfried

Sandler, J. (concurring).

I agree with the court that the totality of factors disclosed in this case does not justify the exercise of this court’s power under CPL 470.20 (subd 6) to reduce the sentence fixed as a matter of discretion in the interest of justice. Nor do I see any reason to doubt that the experienced *634Trial Judge was fully aware of the options available to him under People v Farrar (52 NY2d 302), and imposed the sentence appealed from in the conscientious view that it was an appropriate one. I further agree with the view implicit in the court’s opinion, and explicitly affirmed in the dissenting opinions, that People v Farrar (supra), did not directly, or by implication, limit the power of intermediate appellate courts explicitly set forth in CPL 470.20 (subd 6) to reduce clearly excessive sentences in the interest of justice. It would take a far clearer signal than any I perceive in People v Farrar to persuade me that this court’s discretionary power, in compelling circumstances, to reduce aberrationally harsh sentences is now to be confined by commitments made by Trial Judges in the course of plea bargaining. I share Justice Carro’s concern at the development of the last several years that has seen the power to sentence defendants effectively transferred from Judges to prosecutors in a significant number of cases. This development, one of the most important in recent years in the criminal justice system, has occurred with disturbingly little attention or analysis. In People v Farrar (supra), although strongly reaffirming the power and duty of Judges to sentence in accordance with their conscientious judgment, the Court of Appeals in effect upheld the right of prosecutors to exact from Judges, in exchange for the prosecutor’s agreement to a plea to a lesser charge, a commitment to fix a sentence desired by the prosecutor. It is an underlying reality in many criminal cases that defendants have no practical alternative to accepting the plea bargain proposed by prosecutors, and that Judges are effectively constrained to make the requested commitment even though they may doubt the appropriateness of the required sentences. Undeniably the conceptual analysis in Farrar was compelling in light of the present statutory framework and the rules of law that had previously developed with regard to sentencing promises by Judges. To what extent the appeal in Farrar informed the Court of Appeals adequately as to the breadth of the development that was occurred is unclear. In my opinion this development is of such importance as to invite, indeed require, careful and comprehensive professional and scholarly study and analysis. If, as I expect, such studies confirm that prosecutors have assumed a sentencing power which is inappropriate for them to exercise, and for which they are often not qualified, a groundwork will have been established for remedial legislative action.