Defendant’s Refusal to Testify in Separate Prosecution Violated Cooperation Agreement, Even Though Agreement Did Not Expressly Require Such Testimony

In People v. Rodriguez (Ct. App. 4/2/19) (6-1), a majority of the Court of Appeals found that the defendant violated the terms of his cooperation agreement when he refused to testify in a separate, unrelated prosecution. Therefore, the Court affirmed the Appellate Division, Third Department’s decision and held that the County Court did not abuse its discretion by denying defendant’s motion to withdraw his guilty plea based on his claimed subjective misinterpretation of the agreement.

The defendant, Alexis Rodriguez, and his family were the victims of a home invasion burglary arising from a dispute between the defendant and Jose Sanchez. The defendant owed money to Sanchez for his help registering and insuring a minivan. Sanchez and three accomplices — Sanchez’s two brothers and a man later identified as Victor Marin — entered the defendant’s home and brandished weapons at the defendant and his family. The defendant told the men to take the minivan in place of the money he owed, which they did. Before leaving, Marin threatened defendant and his family that anyone who reported the incident to the police would be killed.

About a month later, defendant and three accomplices armed with guns went to Sanchez’s house intending to retrieve the vehicle. A fight ensued, during which defendant’s accomplices fought and stabbed one of Sanchez’s brothers. One of the accomplices then stabbed Sanchez, another shot him multiple times, and after Sanchez fell to the ground, the defendant shot Sanchez several more times.

After being arrested and charged for Sanchez’s murder and the assault on Sanchez’s brother, the defendant identified Marin in a photo array shown to him by police and waived immunity and testified before a Grand Jury about Sanchez’s murder. During his Grand Jury testimony, the defendant described his motive for the murder as the home invasion and stated that Marin was one of the participants in that prior crime. The government explained to the Grand Jury that the defendant’s testimony was relevant only as to the motive behind the murder of Sanchez and the assault on Sanchez’s brother. Nevertheless, based on that testimony, the People successfully requested the Grand Jury indict Marin for Burglary 1º.

Thereafter, the defendant pleaded guilty to one count of Murder 2º and one count of Assault 1º. As part of his plea agreement, the defendant entered into a cooperation agreement with the government, which provided:

Defendant will cooperate completely and truthfully with law enforcement authorities, including the police and the District Attorney’s Office, on all matters in which his cooperation is requested including but not limited to the prosecution of [defendant’s accomplices] on charges related to the murder of Jose Sanchez and the assault of [Sanchez brother].

The agreement also stated that:

Defendant hereby verifies, and it is a condition of this agreement, that his Grand Jury testimony . . . regarding this murder and assault was truthful. It is a condition of this agreement that he agree to look at photo array compilations in an attempt to identify the other two accomplices.

In exchange for his cooperation and guilty plea, the defendant was to receive a sentence of 20 years to life on Murder 2º and a concurrent sentence of 20 years in prison, followed by five years of post-release supervision, on Assault 1º. If the defendant failed to comply with the cooperation agreement, he would be sentenced to a consecutive term of 10 to 20 years in prison on his plea to the assault. Accordingly, after the defendant pleaded guilty, the County Court sentenced him to 20 years to life in prison on Murder 2º and adjourned sentencing on Assault 1º pending defendant’s compliance with the cooperation agreement.

Approximately ten months after entering into the cooperation agreement and pleading guilty, the government requested that the defendant testify against Marin in Marin’s burglary trial for the home invasion committed against the defendant and his family. The defendant refused to testify. He refused, maintaining that the agreement did not require this testimony, and that he was afraid for his family’s safety.

After the court warned the defendant that it viewed the cooperation agreement as requiring him to testify in Marin’s trial, the defendant filed a motion to withdraw his guilty plea on the ground that the plea was not knowing, intelligent, and voluntary. The defendant affirmed that he had a justifiable belief that the cooperation agreement only required him to cooperate in the murder and assault prosecution and had he known the government would require him to testify at a public trial regarding the burglary and home invasion he would have rejected the agreement out of concern for his family’s safety. In opposition to the motion, the government conceded that the agreement does not mention Marin or the home invasion, but they argued that because defendant picked Marin out of an array before signing the agreement and mentioned him in his grand jury testimony, the agreement should be read to include his cooperation on “the case in which his family were victims.”

The County Court denied the defendant’s motion to withdraw his guilty plea, noting the broad language in the agreement, and that defendant had already cooperated in the case against Marin by picking him out of the photo array and testifying before the Grand Jury. The County Court further concluded that the defendant violated the terms of the agreement by refusing to testify against Marin and imposed a consecutive term of 20 years in prison for the assault conviction. The Appellate Division affirmed.

The majority decision in this case is a brief memorandum opinion. The majority concludes that the “County Court did not err when it determined that defendant’s refusal to testify against Marin violated the express terms of his cooperation agreement” because “[t]he plain language of the agreement was objectively susceptible to but one interpretation.” Apparently, that interpretation is that the defendant was required to cooperate by testifying against Marin in a separate prosecution in order to benefit from the plea agreement. The majority concludes that the “County Court, therefore, did not abuse its discretion by denying defendant’s motion to withdraw his guilty plea based on his claimed subjective misinterpretation of the agreement or by concluding, to the contrary, that defendant reasonably understood that his cooperation in the Marin prosecution was required.”

In a lengthy dissent, Judge Rivera criticized the majority’s effort to dispose of this case in such a conclusory manner because this case presented “an open question that th[e] [Court of Appeals] has never addressed: what interpretive standards apply to the terms of a cooperation agreement when, as here, a defendant claims to have neither intended nor understood the agreement to include the People’s demand for assistance with an unspecified criminal investigation or prosecution?”

Judge Rivera argued that cooperation agreements are bargained-for promises subject to “traditional principles of contract interpretation” and that, applying such rules, “defendant’s cooperation agreement is limited in scope to the crimes for which he pleaded guilty.” Judge Rivera would hold that the “defendant did not violate the agreement when he refused to testify against an individual charged with a different, prior crime against defendant and his family” and that “it was error for County Court to deny defendant’s motion to withdraw his guilty plea upon that court’s refusal to sentence defendant to the consecutive terms he bargained for.”

Applying the principle of contract interpretation that the intention of the parties is best surmised by the contents of the agreement itself, Judge Rivera noted that “the writing does not expressly mention the home invasion or Marin. Yet, and in notable contrast, the agreement unambiguously explains that defendant must cooperate with law enforcement in the investigation and prosecution of the murder and assault.”

So, because the agreement expressly mentioned defendant’s cooperation regarding the murder and assault cases, it followed that the government’s failure to expressly include language requiring defendant’s cooperation in the prosecution of Marin meant that the cooperation agreement did not require the defendant’s testimony in a separate and unrelated prosecution.

Judge Rivera also found unavailing the government’s reliance on the catchall phrase, which stated that “defendant will cooperate ‘on all matters in which his cooperation is requested, including but not limited to’ the murder and assault prosecution.” According to Judge Rivera, this argument suffers from two fatal flows: (1) the wording is too over broad and vague and therefore, unenforceable; and (2) the circumstances surrounding the contract formation suggest that the defendant did not understand that provision as requiring him to testify in an unrelated prosecution of Marin.

Justice Rivera closed her opinion compellingly:

Under the cooperation agreement, defendant entered a guilty plea for the murder and assault charges in exchange for a specified term of concurrent sentences. He did so without understanding that the sentencing promise was conditioned on his testimony against Marin at Marin’s burglary trial. Thus, County Court erred when it refused to impose a concurrent sentence on the ground that defendant violated a term not encompassed by the agreement, and the Appellate Division erroneously upheld defendant’s conviction on the same reasoning. Defendant should have been sentenced to a concurrent sentence on the assault conviction, or his motion to withdraw the plea should have been granted.

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