(dissenting):
I respectfully dissent.
As stated by Chief Judge John R. Brown in Geisser v. United States, 513 F.2d 862, 863 (5th Cir. 1975), “[t]his is an extraordinary case calling for extraordinary action.” In this habeas corpus proceeding, originally instituted as a 42 U.S.C. § 1983 action, the majority expands the jurisdiction of a district attorney of one county to (i) bind the Board of Parole of the State of New York, (ii) emasculate an indeterminate sentence with a maximum of 25 years previously imposed upon the petitioner, Palermo, by a state court in another county, and (iii) substitute therefor a one year sentence plus a five year period of parole supervision. The predicate for this result is a breach of a promise or commitment made by Queens County district attorney Mackell and his chief assistant Ludwig to carry out that part of a plea bargain promising Palermo early parole on a Richmond County conviction which induced him to plead guilty to a Queens jewelry theft and return $4 million worth of stolen jewelry, over which Palermo obviously had control. It was also provided in the agreement that Palermo would receive a discharge or suspended sentence for the Queens County plea of guilty, a dismissal of an assault charge pending in Queens County, and a disposition of an Oneida County charge which consisted of a plea of guilty by Palermo and a dismissal as against two codefendants. All parts of the agreement were performed except the parole promised Palermo after one year incarceration under the Richmond County sentence.
The facts are set forth in detail in the majority opinion, which in turn is based upon the findings of the district court. From these facts the precise nature of the prosecutor’s commitment is unclear as to whether it was a firm or “best efforts” commitment to obtain Palermo’s parole. In all events, it is clear that neither the Parole Board nor Parole Commissioner Jones made any commitment to anyone other than to give consideration to a petition for early parole. By releasing Palermo who was serving a sentence of up to 25 years imposed by the Richmond County court, the majority enforces a promise by Mackell for early parole even though it would seem questionable to the ordinary, reasonable man whether such a promise when made was within the power, authority or jurisdiction of the district attorney of Queens County. Indeed, Palermo himself, was suspicious and asked for assurances that the parole promise would be performed.
In this frame of reference, I join in the majority’s condemnation of the prosecutori*298al misconduct in making commitments and representations that were knowingly false in that Mackell and Ludwig had no assurance at any time from the Parole Board regarding Palermo’s parole. Courts prohibit such prosecutorial misconduct from depriving a defendant of his constitutional rights and accordingly order relief, if possible, in the nature of specific performance of the prosecutor’s promise, or in the alternative, the withdrawal of the defendant’s guilty plea. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).
Prosecutorial Promises Involving Other Jurisdictions
In a case of this kind, however, release of a defendant under the guise of specific performance of an unauthorized and in fact, an unfulfillable promise by the district attorney disrupts the state administration of justice and usurps governmental agencies outside of the jurisdiction or authority of the prosecutor. See United States v. Long, 511 F.2d 878 (7th Cir.), cert. denied, 423 U.S. 895, 96 S.Ct. 196, 46 L.Ed.2d 128 (1975); United States v. Boulier, 359 F.Supp. 165 (E.D.N.Y.1972), aff'd on other grounds sub nom. United States v. Nathan, 476 F.2d 456 (2d Cir.), cert. denied, 414 U.S. 823, 94 S.Ct. 171, 38 L.Ed.2d 56 (1973). In this case it appears that streetwise Palermo, who knew the whereabouts of several million dollars worth of stolen jewelry, assuming that he is not guilty of the theft, was able to extract from the prosecutor an unauthorized promise not binding upon other independent governmental agencies or jurisdictions of the government, and thereby obtain immediate release because those independent authorities failed or refused to perform a promise they never made. The district attorney of Queens County operates within specified geographic jurisdictional boundaries,1 and consequently he has no justification for proscribing the authority and obligations of the district attorney elected2 in Richmond County, nor of the New York State Board of Parole which is the sole body charged by law with determining who shall be released among inmates serving indeterminate sentences, and under what conditions.3 Therefore, it would seerri to me that instead of releasing the defendant forthwith as though he had been placed on parole, consideration must be given to fashioning a remedy which is more in harmony with the fundamental structures and principles of state and federal governments.
Here, the alternative of permitting Palermo to withdraw his guilty plea is under the circumstances meaningless, and moreover, under no circumstances could the prosecutor return to the thief or his accessory $4 million worth of jewelry. Therefore, we are faced with the dilemma of being unable to effectuate a form of specific performance of the prosecutor’s promise or to place Palermo back in the status quo, which to say the least was tainted with illegality.
Mackell, unlike prosecutors in the usual case whose interest is to obtain testimony for pending prosecutions, was acting under duress to retrieve the stolen jewelry deposited as collateral for loans by thousands of Queens residents. In exchange for his promise to return the jewelry Palermo succeeded in extracting from Mackell ultra vires promises. The majority, I believe, dismisses too quickly the reasoning in Unit*299ed States v. Gorham, 173 U.S.App.D.C. 139, 523 F.2d 1088 (1975), in which a prison director held hostage by inmates promised there would be no reprisals or court action against the inmates. The Gorham court stated that even if the promise had been made with authority, .it was voidable since, among other reasons, it was induced by duress. Palermo’s refusal to divulge the identity or location of those who possessed the stolen jewelry violated the law4 and subjected the prosecutor to a form of duress, rendering the promise unenforceable at least as far as equitable relief is concerned. Therefore, referring to specific performance involving immediate release, he does not stand in the same shoes as those, who, for instance, under a plea bargain agree to cooperate and testify to assist the government in obtaining convictions of other defendants.
It is true that the courts do hold a prosecutor not only to promises which may be fulfilled, but also to some of those which are unfulfillable. But in all such cases the unfulfillable promise was not specifically enforced retroactively against other independent agencies or jurisdictions. The majority relies upon cases which I believe do not support the relief of immediate release. Though Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), does assert, in dicta, the proposition that an unfulfillable promise by a prosecutor which induces a plea of guilty constitutionally taints that plea, the Court does not purport to distinguish among the several categories of unfulfillable promises nor does it specify the appropriate relief to be granted. Santobello, supra, cited as authority for granting immediate release in this case as specific performance, is inapposite since Santobello concerned a direct appeal involving a single criminal conviction in one jurisdiction. The Santobello Court did not mandate the relief granted here where the prerogatives and responsibilities of other agencies and public officials are implicated by ex post facto interference by a powerless district attorney making unauthorized promises.
Similarly, I do not believe that United States v. Carter, 454 F.2d 426 (4th Cir. 1972) (en banc), cert. denied, 417 U.S. 933, 94 S.Ct. 2646, 41 L.Ed.2d 237 (1974), is apposite. There, a federal prosecutor in the District of Columbia allegedly promised that no criminal charges would be brought in any jurisdiction concerning a group of stolen checks other than a misdemeanor charge for which the defendant was pleading guilty. Nevertheless, a criminal indictment was later brought in the Eastern District of Virginia, and the court of appeals in that case, by its own decision, determined that it would honor the promise by the prosecutor in the District of Columbia. Here, however, the promise concerned a previous conviction for an unrelated crime and none of the concerned authorities who possessed the power to grant the promised relief ever promised the relief.
Remedy
The question then is what is the appropriate relief under the circumstances. Other courts in the past have faced similar problems. In Geisser v. United States, supra, the federal government entered into a plea bargain with the defendant providing that if she pleaded guilty and provided indispensable evidence against others she would not be confined for more than three years and the government would use its best efforts 5 to prevent her deportation to Switzerland or France following incarceration. She then sought habeas relief since there was an outstanding warrant for her deportation to Switzerland, and the federal Board of Parole failed to honor the govern*300ment’s commitment concerning the three year limit of incarceration. The Department of State and the Board of Parole were not informed of the bargain, and when the petitioner applied for parole the Department of Justice disavowed the agreement and actively opposed parole and the Board of Parole denied the request. On the habeas petition, the district court granted immediate release, and the court of appeals vacated the lower court’s decision and remanded, stating at 513 F.2d at 869:
We recognize that in a structure of independent quasi-adjudicative agencies within an Executive department there is and should be no hierarchical intrusion into the exercise of administrative discretion. At the same time, that agency needs to be advised in positive terms of the agreements made, the consequences of which were (i) rich in terms of the public interest and (ii) of constitutional consequences to the bargainee if not honored,
and again at page 871:
Sharing as we do the Government’s concern about judicial intrusion into the parole process, we defer until after remand whether we would put our stamp of approval on the District Judge’s order which in effect releases Bauer at the end of the reconstructed three-year term.
The Geisser court ordered resubmission of the parole request to the Board and then provided that if the petitioner was not released on parole the district court “shall conduct further hearings after allowing fullest discovery on all issues and particularly on the question of just what has been done with the promise ‘to use our best efforts’ and the reasons why, if any, steps have not been taken or why they have been ineffectual.” Id. at 872.
In United States v. Carter, supra, Judge Boreman dissented upon the ground that Carter was not entitled to the relief sought under any theory, reasoning that “the United States Attorney’s office for the District of Columbia could not enter into a valid plea bargaining agreement to bind the district court and the federal prosecutor in another jurisdiction with respect to separate and wholly different crimes committed outside the District of Columbia.” Id. at 431. Among other things, Judge Boreman stated that “[t]he executive officials and courts of the Eastern District of Virginia should not be prevented from seeking to punish crimes victimizing the people of that district because an official elsewhere has overstepped the limits of his power.” Id. He suggested as a remedy that Carter move for a reduction of sentence in Virginia, or else that he be considered for executive clemency.
For the reasons above indicated I do not believe that our “zeal to right the wrongs of prosecutorial excess,” Martin v. Merola, 532 F.2d 191, 198 (2d Cir. 1976) (separate statement of Gurfein, J.), should induce us to grant, in effect, specific performance of an unauthorized and unfulfillable promise involving the intrusion into the exercise of administrative discretion of a wholly independent agency. For such excesses other remedies such as removal of the prosecutor from office are available. N.Y. Constitution Art. 13, § 13(a) (McKinney’s Supp. 1975-76). Since the stolen property cannot be returned to Palermo a form of rescission is impossible. I am not too disturbed by this fact since Palermo had no interest in the property and had an obligation to return it in the first place. While a completely equitable solution may not be possible under the circumstances, I would do the next best thing by permitting Palermo to withdraw his Queens County plea of guilty if he so desires, for whatever it is worth, and at the same time I would construe the promise made of early parole as a “best efforts” promise. I would direct the present Queens County district attorney to make every effort on behalf of Palermo before the Parole Board to obtain such early parole. This result would recognize the sovereignty of the Board and probably grant Palermo a significant chance of immediate release. If the Parole Board fails to take action Palermo's alternative would be to petition for executive clemency.
I would affirm as to the cross-appeal concerning the damage action against Mac*301kell and Ludwig and also affirm the denial of attorney’s fees and costs to Jones and Oswald.
. N.Y. County Law § 700(1) (McKinney’s 1972); N.Y. Criminal Procedure Law § 20.40 (McKinney’s 1971); People v, Dorsey, 176 Misc. 932, 29 N.Y.S.2d 637 (Queens Co.Ct. 1941); Nadjari, New York State’s Office of the Special Prosecutor: A Creation Born of Necessity, 2 Hofstra L.Rev. 97, 112-14 (1974).
. N.Y. Constitution Art. 13, § 13(a) (McKinney’s Supp. 1975-76).
. N.Y. Correction Law § 210 (McKinney’s Supp. 1975-76); People ex rel. Washington v. LaVallee, 34 App.Div.2d 603, 308 N.Y.S.2d 628 (3d Dep’t), motion for leave to appeal denied, 27 N.Y.2d 481, 312 N.Y.S.2d 1025, 260 N.E.2d 874 (1970); People ex rel. Smith v. Deegan, 32 App.Div.2d 940, 303 N.Y.S.2d 789 (2d Dep’t 1969). In order to parole a prisoner the Board of Parole must be of the opinion that "there Is reasonable probability that, if such prisoner is released, he will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society.” N.Y. Correction Law § 213 (McKinney’s Supp. 1975-76).
. Palermo was required to disgorge or divulge the whereabouts of the jewelry prior to, and apart from any agreement with the district attorney. N.Y. Personal Property Law § 252 (McKinney’s 1976); N.Y. Penal Law §§ 205.50(1), (4), (5), 205.55 & 205.60 (McKinney’s 1975).
. The court of appeals assumed a best efforts promise, though the district court found an absolute commitment. 513 F.2d at 869, 872.