| People v Fournier |
| 2010 NY Slip Op 07630 [77 AD3d 1201] |
| October 28, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Appellant, v Scott M.Fournier, Respondent. |
—[*1] David A. Haggard, Massena, for respondent.
Lahtinen, J. Appeal from that part of an order of the County Court of St. Lawrence County(Richards, J.), entered October 27, 2009, which granted defendant's motion to dismiss theindictment.
Facing a possible felony charge for possessing cocaine, defendant entered into a cooperationagreement with law enforcement officials. Some terms of the agreement were set forth in writingand others were agreed to verbally. Defendant wore a wire during a drug transaction and alsosupplied reliable information. His efforts resulted in the arrest of two other individuals. Lawenforcement officials nevertheless determined that he had not fully complied with the agreementand, thus, he was indicted for criminal possession of a controlled substance in the third degree.Defendant moved to dismiss the indictment and, following a combined suppression and dismissalhearing, County Court dismissed the indictment, finding that defendant had substantiallycomplied with the cooperation agreement. The People appeal.
We affirm. "A defendant seeking dismissal of an indictment pursuant to a cooperationagreement must demonstrate, by a preponderance of the evidence, 'a clear and specific promisefrom the authorities [and] services performed by the defendant involving a significant degree ofrisk or sacrifice' " (People vTrombley, 72 AD3d 1402, 1403 [2010], quoting People v Reed, 184 AD2d 536,537 [1992]; see Matter of Chaipis v State Liq. Auth., 44 NY2d 57, 65 [1978]). [*2]Where conflicting evidence is presented at the hearing, we accorddeference to the trial court's credibility determinations (see People v Trombley, 72 AD3dat 1404). Defendant testified that he was told by police that he was required to make two or threefelony drug purchases and, when he requested this condition be put in writing, the police refused.He thus allegedly recorded a conversation with police regarding these terms of the agreement,and it is undisputed that the police confiscated that recording from defendant and destroyed it.Although a police officer testified that defendant was required to purchase drugs twice from fivedifferent people and that this requirement never changed, an Assistant District Attorneyacknowledged that the agreement was modified in defendant's favor because of the significanceof one of the arrests. Defendant maintained that he was informed by law enforcement officialsthat his assistance in the arrest of the significant drug dealer resulted in the total fulfillment of hisobligation. In light of the evidence at the hearing and deferring to County Court's assessment ofcredibility, we are unpersuaded that it was error to dismiss the indictment.
The People's remaining arguments, to the extent they were properly preserved for review,have been considered and found unavailing.
Cardona, P.J., Mercure, Spain and Garry, JJ., concur. Ordered that the order is affirmed.