This case is not published in a printed volume and its disposition appears in a table in the reporter.
Julie A. Garcia, Esq., Essex County District Attorney, (Ellen C. Schell, Esq., of counsel), Elizabethtown, New York.
Livingston L. Hatch, Esq., Essex County Public Defender, Elizabethtown, New York, for the defendant.
Richard B. Meyer, J.
The defendant is charged by a five-count indictment filed on September 10, 2007 with having allegedly committed the crimes of rape in the first degree (Penal Law 130.35), a class B violent felony, rape in the third degree (Penal Law 130.25), a class E felony, endangering the welfare of a child (Penal Law 260.10), a class A misdemeanor, and two counts of unlawfully dealing with a child in the first degree ( Penal Law 260.20 ), a class A misdemeanor. The charges arise out of an incident alleged to have occurred on February 17, 2007 in the Town of Moriah, Essex County, New York when the defendant is claimed to have supplied two females under the age of twenty-one with alcoholic beverages and to have subsequently subjected one of the underage females to sexual intercourse while she was physically helplessness due to intoxication. This action was commenced by the filing of accusatory instruments in local criminal court on June 5, 2007. The defendant was arrested and arraigned that day and remanded to the Essex County Jail in lieu of $5,000 cash bail or $10,000 secured bail bond.
As part of the defendant's pretrial motion (CPL 255.10), the defendant sought enforcement of an unwritten cooperation agreement he claims to have entered into with the District Attorney's office and law enforcement to participate in drug purchases as a confidential informant, and which he allegedly performed to "the point of no return". A hearing was held on February 4, 2008 at which the defendant bore the burden of submitting competent evidence establishing the terms and conditions of the alleged cooperation agreement, the services actually performed by the defendant in reliance upon such agreement, and any improper acts on the part of the prosecution or law enforcement which prevented him from fulfilling his part of the bargain ( People v. Fraisier, 253 A.D.2d 437, 675 N.Y.S.2d 900, after remand 260 A.D.2d 398, 686 N.Y.S.2d 319). The defendant, two members of the New York State Police Bureau of Criminal Investigation (BCI), and the District Attorney, testified at the hearing.
The credible evidence at the hearing established that upon his arrest for the instant charges the defendant contacted his attorney and asked if there was anything he could do to "get rid of the charges". Shortly thereafter, BCI Investigator Richard Dumoulin (Dumoulin) received a telephone call from Essex County District Attorney Julie Garcia (Garcia) requesting that he meet with the defendant. The defendant was released from the county jail on June 7, 2007 and was immediately met by Dumoulin who drove him from the jail to the District Attorney's office where he met with Dumoulin and BCI Investigator Liane Colby (Colby) without counsel. The defendant was told by Dumoulin that they were looking for information that would lead to arrests and successful prosecutions, and he asked the defendant if he could make some controlled drug buys. Dumoulin went on to explain the drug buy procedure and told the defendant that this would involve him wearing a wire. The defendant stated that he was willing to make the controlled buys, and they discussed certain individuals from whom the defendant thought he could successfully purchase illegal drugs, including one Brian Platero.
Garcia entered the room for a brief time, introduced herself to the defendant, and told him that she had at one time lived next door to his father. No specific promises were made to the defendant about what would happen to the pending charges if he cooperated, but he was told that he would receive some consideration if the buys occurred and resulted in successful prosecutions. The defendant's claims that Garcia told him that the charges "would go away if everything worked out", and that Dumoulin said the charges would be dropped and he would not have to go to court, are not credible in light of the class B violent felony charge lodged against him.
The defendant told Dumoulin that he needed some time before making any drug buys because he was "hot" due to his recent arrest on the instant charges. He was given Dumoulin's and Colby's pager and cell phone numbers, as well as the phone number for Investigator Cornelia. The defendant informed them that he could not make long distance calls from his trailer where he lived with his mother and girlfriend, but that he would contact them. The meeting ended and the defendant went home. Approximately two weeks later, the defendant called Dumoulin and told him to call the next Thursday because Platero had told the defendant he (Platero) would then have drugs to sell. Dumoulin and Colby attempted on a number of occasions to contact the defendant by telephone but were never able to speak with him as their calls were answered by the defendant's mother or girlfriend. The defendant admits that he never spoke to Dumoulin or Colby again.
One week after telephoning Dumoulin, the defendant went to Platero's home and as he entered the driveway he was "jumped" by Platero, another male, and the mother of the alleged rape victim. They called him a "rat" and a "rapist", and hit him with baseball bats. The defendant never told Dumoulin or Colby about this incident, and no claim was made by the defendant that he went to Platero's as part of a coordinated drug buy in cooperation with law enforcement. The defendant admitted that he never made any controlled drug buys and that there were no arrests made as a result of what he did. The case was thereafter presented to a grand jury, resulting in the indictment.
Cooperation agreements are to be enforced "[w]here those services have been significant, or have involved considerable risk or sacrifice on the defendant's part" ( Chaipis v. State Liquor Authority, 44 N.Y.2d 57, 65, 404 N.Y.S.2d 76, 80, 375 N.E.2d 32, 36) for the reason that "failure to enforce the promise might do substantial injustice, not only to the defendant but to the public which is entitled to have the benefit of future co-operation" (id.). "Fairness dictates that if defendant exposed himself to danger on the People's behalf, he is entitled to have the alleged promise made to him enforced" ( People v. Argentine, 67 A.D.2d 180, 185, 414 N.Y.S.2d 732, 735, after remand, 71 A.D.2d 869, 422 N.Y.S.2d 736).
"Not sanctioned, of course, is enforcement of promises made not only in excess of prosecutorial power, but in violation of the law (cf. People v. Selikoff,35 N.Y.2d 227, 238, 360 N.Y.S.2d 623, 633, 318 N.E.2d 784, 791, supra ). When no agent of the State could legally perform the promise made to defendant, the promise may not be enforced . . ." (Chaipis ...