And more:
"Once the defendant admits the facts of the indictment, the indictment reflects the parties' agreement to what is stated therein, and the matter is even more valid when the defendant admits to the facts of an indictment that was amended as part of a plea bargain with him, during which he was given the opportunity to negotiate, while influencing the wording of the indictment. Therefore, and as I noted in the Khatib case, any retraction of the agreement in connection with the facts and circumstances of the commission of the offense, modification thereof or addition thereto, is required to comply with the stringent conditions of section 40J(b)(2) ofthe Penal Law: that it will be with the approval of the court, and in cases where the defendant did not have the opportunity to argue the claim at the stage of clarifying the accusation or in cases where the proof of those circumstances is necessary in order to prevent a miscarriage of justice" (Justice Danziger inCriminal Appeal 4289/14 Hanuna v. State of Israel, Paragraph 54 (January 21, 2015); Request for a Further Hearing Denied - Additional Criminal Hearing 845/15 Barbi v. State of Israel (March 22, 2015)).
Accordingly, "The court has only the facts described in the indictment, all the more so when it comes to an indictment that was amended as part of a plea bargain"And"The court must not bring facts or circumstances that are not included in the considerations for sentencing the defendant" (Criminal Appeal 4749/17 Ganish v. State of Israel, paragraph 25 (August 30, 2017)). This rule also applies when the plea bargain was preceded by the hearing of evidence (Criminal Appeal 677/14 Dankner v. State of Israel, paragraphs 42 – retrial (July 17, 2014); Criminal Appeal 2454/18 Sheinberg v. State of Israel, paragraph 17 (December 2, 2018)).
First Event - 'The Yair Biton Affair' and 'The Night Meeting Affair'
- Early Planning, Fisher's Relative Role and Malka's Influence - Despite the accuser's position, I did not find that the amended indictment indicates prior planning on Fisher's part to receive classified police materials relating to Biton, nor to prior knowledge of Malka's intention to leak the materials or Malka's solicitation to do so. In the amended indictment, the sections that appeared in the original indictment were deleted, in which Malka and Fisher were attributed a criminal method of action while linking Fischer's actions to the same method, including in the Biton case (see paragraph 4 of the original indictment). Fischer's request to Malka to help him help his friend Biton, as described in section 6 of the first indictment, does not include Fischer's prior knowledge at the time of the inquiry that Malka had previously joined the investigation team of the "Ma'ase Nissim" affair and was exposed to all the undercover investigative materials (in section 3 of the indictment, it was not mentioned that Malka told Fischer this). In any event, the amended indictment does not state that when Malka arrived at Fischer's office with the classified materials (section 7), he did so following Fischer's request to receive such materials, or according to a prior agreement between them. Moreover, the amended indictment attributes to Fisher knowledge that it was classified material that Malka had illegally removed from the police. It is not noted that Malka told Fischer that the questions that appear in the document are supposed to be thrown at Biton during the stage of the open investigation. This is distinct from Fischer's understanding that the classified materials could assist Biton's briefing in advance of the investigation, in addition to Malka and Fischer's joint analysis of the materials.
Regarding the leak of the date of the "breach," section 15 of the first indictment describes the WhatsApp message that Malka sent to the state witness, and through it to Fischer, regarding the original date of the "breach." However, it was not claimed that this was done following a request by Fisher Malka to reveal the date of the transition from an undercover investigation to an open one. Similarly, Section 18 of the indictment regarding the WhatsApp message that Malka sent to Fischer regarding the date of the postponed "breach."