People v. Stokes

• Decision Date: 09 June 1995
• Citation: 630 N.Y.S.2d 634,165 Misc.2d 934
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Latherio STOKES, Defendant.
• Court: New York Supreme Court

Page 634

630 N.Y.S.2d 634

165 Misc.2d 934

The PEOPLE of the State of New York, Plaintiff, v. Latherio STOKES, Defendant.

Supreme Court, Monroe County.

June 9, 1995.

Howard R. Relin, Dist. Atty., Asst. Dist. Atty., David A. Foster, for the People.

Louis P. Pilato, Rochester, for defendant.

DONALD J. MARK, Justice.

This is an application by the defendant who is charged with six Class A-I and three Class B drug-related felonies, pursuant to CPL Section 710.20(3), to suppress oral statements concerning his drug activities made to prosecutors and police during the time he was operating under a cooperation agreement, ^* upon the ground that it became impossible for him to perform the conditions of that agreement, thereby precluding the admission of such statements.

The prosecutor seeks to utilize the admissions of the defendant for the purpose of impeachment and/or rebuttal. He argues that the defendant reneged on the cooperation agreement, but even if the agreement became impossible to perform, the plain language of the agreement permits the use at trial that he intends. The defendant responds that the claimed inability of the defendant to perform invalidates the entire agreement, including the terminology relating to the use of the defendant's statements in the event of non-performance.

Paragraph 5 of the agreement, insofar as it is applicable, provides as follows: "Any claim of impossibility of performance will void this agreement ... except that the express waiver called for in Paragraph 9 will not be voided."

Paragraph 9, insofar as applicable, provides as follows: "If at a future time defendant reneges on his promise to cooperate ... any statements made by defendant ... may not be used against him on the People's direct case.... [T]hey may be used for impeachment purposes. Further, any evidence derived from defendant's statements may be used for any evidentiary purpose by the prosecutor."

Paragraph 11, insofar as applicable, provides as follows: "Defendant agrees that any statements ... will not be used as direct evidence.... However, any statements can be used on cross-examination should the defendant testify at trial contrary to previous statements...."

The argument of the defendant that the alleged impossibility of performance invalidates the entire cooperation agreement, including the reference to the use of the defendant's statements, can be disposed of summarily. Paragraph 5 specifically states that the avoidance of the agreement because of the claimed impossibility of performance does not void the waiver relating to the defendant's statements contained in Paragraph 9. Paragraph 5 is completely unambiguous and plainly manifests the intention of the parties that the waiver in Paragraph 9 survives the termination of the contract because of claimed impossibility (see W.W.W. Associates, Inc. v. Giancontieri, 77 N.Y.2d 157, 565 N.Y.S.2d 440, 566 N.E.2d 639; Christian, Podleska & Van Musschenbroek Ltd. v. Goldman, Sachs & Co., 203 A.D.2d 9, 609 N.Y.S.2d 892, lv. to app. dism. 85 N.Y.2d 830, 624 N.Y.S.2d 363, 648 N.E.2d 782).

Before discussing the relationship between Paragraphs 5, 9 and 11, it should be noted that there is a distinction between the word "impeachment," referred to in Paragraph 9, and "rebuttal," not specifically referred to in that paragraph (see People v. Moore, 159 Misc.2d 501, 605 N.Y.S.2d 623). A defendant's testimony may be "impeached" by cross-examination on the basis of a prior statement which was inconsistent with his direct testimony (see People v. Wise, 46 N.Y.2d 321, 413 N.Y.S.2d 334, 385 N.E.2d 1262; People v. Jones, 207 A.D.2d 745, 617 N.Y.S.2d 4, app. den. 85 N.Y.2d 863, 624 N.Y.S.2d 382, 648 N.E.2d 802). "Rebuttal" consists of evidence offered by the prosecutor after both sides have rested in denial of some affirmative fact asserted by the defense on its case (see People v. Harris, 57 N.Y.2d 335, 456 N.Y.S.2d 694, 442 N.E.2d 1205, cert. den. 460 U.S. 1047, 103 S.Ct. 1448, 75 L.Ed.2d 803; People v. Jansen, 174 A.D.2d 968, 572 N.Y.S.2d 127, app. den. 78 N.Y.2d 955, 573 N.Y.S.2d 651, 578 N.E.2d 449).

Here, the sentence in Paragraph 9 stating that "any evidence derived from the defendant's statements may be used for any evidentiary purpose" would encompass rebuttal, since rebuttal is a form of evidence (see People v. Lopez, 187 A.D.2d 533, 589 N.Y.S.2d 920, lv. to app. den. 81 N.Y.2d 843, 595 N.Y.S.2d 742, 611 N.E.2d 781), and technical words are to be given their generally accepted technical meaning (HNC Realty Co. v. Bay View Towers Apts., Inc., 64 A.D.2d 417, 409 N.Y.S.2d 774).

As has been indicated, Paragraph 5 employs the term "impossibility of performance" and Paragraph 9 uses the term "reneges on his promise to cooperate." The first implies a failure to comply due to circumstances beyond one's control (see Inter-Power of New York, Inc. v. Niagara Mohawk Power Corp., 208 A.D.2d 1073, 617 N.Y.S.2d 562), and the latter connotes a deliberate failure to comply although able to do so (see Lee Odell Real Estate Inc. v. Fitzgerald, 177 A.D.2d 360, 576 N.Y.S.2d 112). Thus, these terms are mutually exclusive. If the defendant claims impossibility of performance, and this is true, he has not reneged. However, if he claims impossibility of performance, and this is not true, he has reneged.

These two paragraphs thereby generate these questions: Does a mere claim of impossibility as referred to in Paragraph 5 trigger Paragraph 9 so as to authorize the prosecutor to use the defendant's statements for impeachment and/or rebuttal, regardless of actual impossibility? Or does this claim of impossibility activate Paragraph 9 which authorizes the prosecutor to use the statements for those purposes only if the defendant reneges, the antithesis of actual impossibility? Because Paragraph 5, incorporating Paragraph 9, may be parsed in two different ways, it is ambiguous on its face (Delaware Otsego Corp. v. Niagara Fire Insurance Co., 192 A.D.2d 911, 596 N.Y.S.2d 880, lv. to app. dism. 82 N.Y.2d 705, 601 N.Y.S.2d 584, 619 N.E.2d 662).

The ambiguity manifested in Paragraph 5 and Paragraph 9 is compounded by Paragraph 11, because in contrast to those two paragraphs, Paragraph 11 imposes no restriction on the use of the defendant's statements for impeachment (it is silent on rebuttal). This inconsistency results in a third question: Does this paragraph authorize the prosecutor to use the defendant's statements for impeachment regardless of whether there existed actual impossibility, and consequently no reneging? Since this is a third possible interpretation, again there is facial ambiguity (Delaware Otsego Corp. v. Niagara Fire Insurance Co., supra ).

Since the cooperation agreement, which is a contract (see People v. Garcia, ...