Circumstances related to the commission of the offenses
- Before we get into the facts that established Fisher's criminal responsibility for the offenses of which he confessed and was convicted, and in light of a number of disagreements that were discovered between the parties' counsel during the arguments for punishment regarding various circumstances related to the commission of the offenses alleged by them, I thought it necessary to mention the procedural framework in which we find ourselves: Fischer's admission of the facts of the amended indictment that was filed against him as part of a plea bargain. In this situation, the factual basis on which Fischer's sentence will be sentenced is the facts that appear in the amended indictment, and it is not possible to add to those facts findings that arise, according to one of the parties, from the evidence that was heard in court prior to the plea bargain. This result is constant In section 40J(d) According to the Penal Law:
"Without derogating from the provision of subsection (b)(2), if the defendant admitted the facts of the indictment, whether after hearing the evidence or before, the indictment in which he admitted shall include all the facts and circumstances related to the commission of the offense."
Accordingly, it was also determined in paragraph 4 of the plea bargain of August 28, 2025 that "The parties to the settlement shall not deviate in their arguments for punishment from the facts of the indictment submitted to the court by the accuser, shall not contradict them, detract from them, or add to them".
On the Meaning and Purpose of Section 40J(d) It is stated:
"The defendant's admission of the facts of the indictment expresses his agreement with the facts and the circumstances stated therein. It constitutes a declaration that there is nothing more in the facts and circumstances described in the indictment than in what he did, and accordingly, that no fact or circumstance was omitted from the indictment that could have been of help or lenient to him. Therefore, once the defendant admits to the facts of the indictment – usually after a discussion and agreement with the prosecution and as part of a plea bargain – the indictment reflects the parties' agreement to what is stated therein. Therefore, it is clear that any withdrawal from this consent, a change thereof or an addition to it in examining the circumstances related to the commission of the offense, will be required to meet more stringent conditions – as stipulated in section 40J(b)(2), as opposed to section 40J(b)(1)" (Criminal Appeal 3667/13 Khatib v. State of Israel, para. 26 (October 14, 2014)).