People v. Dolkart , 400 N.Y.S.2d 520 ( 1977 )

OPINION OF THE COURT

Per Curiam.

Joel Dolkart had been a partner on successive occasions in two major law firms located in New York City, as well as an officer and director of Gulf & Western Industries, Inc. In December, 1974, Dolkart was indicted by a New York County Grand Jury and charged with various felonies, including grand larceny and forgery. The charges were based on allegations that, between 1967 and 1973, Dolkart stole over two million dollars from the two law firms. In April, 1976, Dolkart pleaded guilty to the 19th count of the indictment charging him with forgery in the second degree in connection with the fraudulent issuance of a check in the amount of $250,000. This plea was entered pursuant to an agreement between counsel for Dolkart and the District Attorney, which agreement was approved by the court.

The terms of the agreement included a promise that the maximum term of imprisonment would be an indeterminate sentence not to exceed three years; that in the event that at the time of sentencing the court intended to impose a greater sentence, the defendant would be permitted to withdraw his plea; that commencement of the sentence of imprisonment would be stayed for a sufficient period to permit Dolkart to cooperate with the office of the District Attorney and with the Securities and Exchange Commission; that the District Attorney would then bring the extent of the co-operation to the attention of the court prior to commencement of sentence and would further recommend that any sentence of imprisonment be changed to a sentence of probation; that the recommendation would be made regardless of whether Dolkart’s co-operation resulted in commencement of legal proceedings against any other person or entities; and that the court did not bind itself to accept the recommendation of the District Attorney.

After the entry of the plea, the court imposed a sentence on June 10, 1976 of an indeterminate term of imprisonment not to exceed three years. Execution of sentence was stayed and, during the term of the stay, the defendant co-operated fully with the Securities and Exchange Commission in its investigations.

Towards the end of June, 1977, the court was fully apprised of Dolkart’s co-operation by both the office of the District Attorney and a representative from the Securities and Exchange Commission. A lengthy affidavit was given to the court by the Securities and Exchange Commission detailing the information given by the defendant.

On June 29, 1977, the District Attorney reported to the sentencing Judge that Dolkart had fully co-operated with the authorities and, in accordance with the agreement entered into at the time of the plea, the People recommended that the sentence of Dolkart be reduced to one of probation. The court refused to modify the sentence that it had originally imposed and vacated the stay of execution.

The defendant has taken an appeal from that determination and execution of the sentence has been stayed pending determination of this appeal. In our review of the record, we note that Dolkart had effectuated restitution by making repayment of large sums of money to the law firms in which he was a partner and, in addition, he waived his rights, which were substantial, to certain pension funds and capital interests. The co-operation of the defendant with the governmental authorities has been extensive and uninhibited. We also note that at the time of sentencing the defendant was 61 years of age and had practiced law for over 30 years with an unblemished record. He was disbarred after his felony conviction in the instant action (54 AD2d 67).

We find that the court in its sentencing of the defendant in June, 1977 did not give adequate consideration to the extensive co-operation of the defendant with the authorities, or the fact that he did effectuate restitution with those from whom he had stolen the large sums of money. After expressing his doubts as to the effectiveness of the Securities and Exchange Commission as a governmental agency, the Justice then stated that it was the judgment of the court that vacatur of the sentence would not be in the public interest.

We would modify the sentence imposed. Prefatorily, we note that it is not the position of this court that the sentencing Judge was obligated to impose a term of probation upon the defendant. Quite to the contrary, the plea arrangement specifically reserved the right to the Trial Judge to reject the recommendation of the District Attorney and to impose the original sentence; namely, an indeterminate term of imprisonment not to exceed three years. However, the plea arrangement did provide that the court would take into consideration the co-operation of the defendant with the various agencies, and that that co-operation was not to be considered diminished if no others were indicted by the time the defendant was finally sentenced. We find that the record presently before us indicates that the defendant was not afforded the benefit of the plea agreement, to which benefit he was entitled (Santobello v New York, 404 US 257; People v Selikoff, 35 NY2d 227, cert den 419 US 1122).

We conclude that, under all of the circumstances of this case, a sentence of probation should have been imposed. As we have appropriately noted in People v Golden (41 AD2d 242, 243-244): "The proper imposition of sentence is probably the most difficult problem with which a Trial Judge is faced. The difficulty is not alleviated by the insistence of those who believe, simplistically, that long and severe sentences will provide the panacea for burgeoning crime. A sentence must be fashioned strictly ad hominem, based almost entirely on how society will probably be affected by the strictures placed on the activities of a particular defendant. The process must take into account several factors: the rehabilitative, which is self-explanatory; the incapacitative, not here applicable; the deterrent effect upon him, as well as upon others who may be inclined toward criminal activity; and the vindictive, i.e., the measure of punishment to be inflicted upon the defendant by way of retribution for the transgression invovled. It would, of course, be far easier to couple a particular punishment, automatically with a particular crime, but such a sentence, completely ignoring the stated factors, would not, in most instances, be beneficial to society. Utter economic and emotional destruction of a defendant and of his family would rarely, if ever, confer a benefit upon the community.”

Accordingly, the judgment of the Supreme Court, New York County (Leff, J.), rendered June 29, 1977, convicting the defendant, upon his plea of guilty, to the crime of forgery in the second degree, and sentencing him to an indeterminate term of imprisonment with a maximum of three years, should be modified as a matter of discretion in the interest of justice to the extent of reducing the sentence to a term of five years’ probation, remanding the matter to another Judge to fix the conditions of probation, and the judgment should otherwise be affirmed.