dissenting:
We find ourselves unable to join in the majority opinion and would reverse, for two independent reasons. First, the agreement between Cole and the State was ambiguous on the question of whether or not it restricted the State from using Cole’s statement for any purpose other than to consider whether to waive the death penalty. Because as a legal matter that ambiguity should have been resolved in Cole’s favor, this Court is not required to, nor should it, uphold the trial court’s contrary factual resolution under the deferential “clearly erroneous” review standard. Second, the outcome should be the same even if the trial court’s factual find*376ings were upheld. The State promised Cole that it would not seek the death penalty if Cole gave his proffered statement and if the statement was independently corroborated. Both of those conditions were satisfied, but the State breached its promise. In consequence, the trial court was obligated to remedy that breach in either one of two ways. The court could have either enforced the agreement, in which case the State would be precluded from seeking the death penalty. Or, failing that, the court could have declared the breached agreement as no longer valid and precluded the State from using Cole’s statement and any evidence derived therefrom at the trial. Having determined not to grant the first remedy, the trial court was legally required to grant the second, and erred by declining to do so. What follows are the reasons that lead us to these conclusions.
I.
Critical to the outcome reached by the majority is the trial court’s factual finding that the State made no enforceable promise to limit its use of Cole’s statement to presenting that statement to the Attorney General’s senior staff, solely for the staff to consider whether to seek the death penalty. The majority concludes that because there is evidence of record which supports that finding, the finding is not “clearly erroneous” and must therefore be upheld. Respectfully, we cannot agree.
The majority’s analysis overlooks the fact that the agreement is, at best, ambiguous as to what uses of Cole’s statement were to be allowed. Unquestionably, the record permits the inferences ultimately drawn by the trial court in both its original ruling on Cole’s motion to suppress and in its Opinion on Remand. But those inferences are only permitted; they are not mandated, because the same record also supports diametrically opposite inferences and findings. It is undisputed that the trial court found, as fact, that the State promised not to use Cole’s statement at trial as direct affirmative evidence of his guilt, unless Cole testified inconsistently. The State did not use Cole’s statement as direct affirmative evidence. What the State did do, however, was use Cole’s statement to obtain evidence indirectly, first by showing the statement to Trevani-an Norton, and then entering into a plea agreement whereby Norton would testify at trial and inculpate Cole. But for the State having shown Cole’s statement to Norton, Norton’s testimony would never have been procured. The State, however, never obtained Cole’s express consent to his statement being used in this manner. The question is whether Cole and his counsel should nonetheless be chargeable with having agreed in advance to this sleight of hand.
In other circumstances, perhaps they should be, but not here. In this case, DAG Miller explicitly told Cole, “Yeah, we’re not going to talk about this [statement] with [Norton] or Larry Johnson or anybody else....” In such circumstances a person in Cole’s (and his counsel’s) position could reasonably have understood the State to be representing that it would not use the statement to do indirectly what it promised not to do directly. Indeed, the majority opinion confirms that was Cole’s, and his counsel’s, understanding:
Bartley [Cole’s counsel] believed that the DAG’s comments before and after Cole’s statement confirmed that the State would limit the use of Cole’s statement to the senior staffs review and consideration of the death penalty. In other words, Bartley believed that the trial DAG had represented that he would present Cole’s statement to the senior staff so they could assess its *377truthfulness, and that the State would not use Cole’s statement for any other purpose.32
In our view, the legal conclusion reached by the majority is incorrect, because on the question of whether Cole consented to his statement being shown to Norton, the evidence permitted a fact finder to draw contrary, opposite factual inferences. That is, on this issue the agreement between Cole and the State was ambiguous. The trial court resolved that ambiguity in favor of the State. In so doing the trial court erred, because in the context of a plea agreement33, the better rule is that ambiguities must be resolved against the State and in favor of the defendant.34 As the Sixth Circuit stated the rule in United States v. Johnson:
This ambiguity must be construed against the government. Although plea agreements are contractual in nature, a defendant’s underlying right of contract is constitutional, and therefore implicates concerns in addition to those pertaining to the formation and interpretation of commercial contracts between private parties. Therefore, both constitutional and supervisory concerns require holding the government to a higher degree of responsibility than the defendant (or possibly than would be either of the parties to commercial contracts) for imprecisions or ambiguities in the plea agreements.35
Despite their clearly expressed concern about the integrity of the process by which the agreement with Cole was carried out, the majority regard themselves as compelled to uphold the trial judge’s findings, because those findings are not “clearly erroneous” and do not constitute an “abuse of discretion.”36 However appropriate those lenient review standards may be in other contexts, they are not applicable here, because the subject of judicial scruti*378ny is an ambiguous agreement functionally analogous to a plea agreement. Because the trial judge was required to, but did not, resolve the ambiguity in favor of Cole, her fact findings cannot stand as a matter of law. Therefore, those findings cannot be accorded any deference, let alone the deference called for under the clearly erroneous standard.
II.
There is a second, independent ground for reversal. The agreement between the State and Cole, which was the functional equivalent of a plea agreement, must be construed as an implicit promise by the State not to seek the death penalty in connection with the 23rd Street homicides, if two conditions were satisfied. First, Cole must provide a statement relating to (inter alia) the 23rd Street homicides. Second, the substance of Cole’s statement must be independently corroborated by the State. As a legal matter United States v. Bowler37 requires the recognition of such an implicit promise, and as a factual matter the majority recognizes that Cole understood that such a promise had been made. As the Seventh Circuit stated in Bowler:
The inclusion in the agreement of the language would serve no purpose unless construed to contain an implicit promise to consider the specified factors, for the Government had the authority to consider such mitigating factors even without the assent of the defendant.... The Government will not be allowed to avoid the obligation it thus incurred by claiming now that the language literally promises nothing to the defendant. A plea agreement is not an appropriate context for the Government to resort to a rigidly literal approach in the construction of language.38
Consistent with that observation, the majority finds:
Moreover, Cole was aware that the trial DAG would be taking his statement to his superiors and that, if his statement checked out, the State would not seek the death penalty should they charge him in the 23rd Street homicides.39
Without that implicit promise, the agreement between the State and Cole would be empty and illusory from Cole’s standpoint. Without that promise, Cole would have had no reason or inducement to put himself in jeopardy of a murder conviction. For this reason that promise acquired legal force, and the State became duty bound to honor it. As the United States Supreme Court has recognized, where, as here, “... a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”40
The State’s promise, however, was not fulfilled. Although Cole gave an incriminating statement and although that statement was fully corroborated, Mr. Miller, the Deputy Attorney General who made that promise on behalf of the State, never recommended that the senior staff of the Attorney General’s office “take the death penalty off the table,” and the prosecution never did. Instead the State, after indicting Cole for the 23rd Street murders, sought the death penalty, which prompted Cole to seek an order from the Superior Court preventing the State from doing that. The trial court denied the motion, on *379the basis that “[t]he transcript contains no promises about benefit to Cole as a result of the proffer, other than [the trial DAG’s] willingness to consider the information and review [Cole’s] request again with the senior staff.” That ruling, we submit, was legally erroneous, because it refused to recognize or enforce the State’s implicit promise to Cole that, once having satisfactorily corroborated Cole’s statement, the State would take the death penalty off the table.
This error is critically important to the analysis of the issue before us, because once the State breached its agreement not to seek the death penalty, Cole would have been entitled to one of two alternative remedies. The trial court could have either: (1) enforced the agreement and granted Cole’s motion to preclude the State from seeking the death penalty; or (2) alternatively, voided and rescinded the agreement in its entirety, if the agreement was not to be enforced. In the latter case, the State would have been free to seek the death penalty, but would forfeit its right to use Cole’s statement or any evidence derived therefrom in prosecuting Cole for the 23rd Street homicides.
The trial court was required to grant one remedy or the other. What it could not do was deny both. Having determined not to grant Cole’s motion to preclude the death penalty, the trial court was legally required to suppress Cole’s statement and any evidence derived therefrom. By not granting that alternative remedy, the trial court reversibly erred on this basis as well.41
For these reasons we respectfully dissent.
. Majority opinion, at 367 (italics added).
. Although the agreement between Cole and the State was not a plea agreement in the technical sense (because the charges growing out of the 23rd Street homicides would be the subject of a murder trial), that agreement was the functional equivalent of a plea agreement, because it involved a matter of the utmost importance that would certainly form part of any plea agreement: whether the State would seek the death penalty in the event of a murder charge arising out of Cole’s statement. Being functionally indistinguishable from a plea agreement, the rules governing the construction of plea agreements should be applied to the agreement at issue here.
. See, United States v. Feigenbaum, 962 F.2d 230, 234 (2d Cir.1992); United States v. Johnson, 979 F.2d 396, 399 (6th Cir.1992); Craig v. People, 986 P.2d 951 (Colo.1999); State v. Wills, 244 Kan. 62, 765 P.2d 1114, 1120 (1988); State v. Bethel, 110 Ohio St.3d 416, 854 N.E.2d 150, 167 (2006); State v. Mares, 119 N.M. 48, 888 P.2d 930, 934 (1994) (allowing ambiguities to be resolved in favor of the defendant but limiting doctrine); State v. Bis-son 156 Wash.2d 507, 130 P.3d 820, 827 (2006); People v. Toscano, 124 Cal.App.4th 340, 345, 20 Cal.Rptr.3d 923 (Cal.App.2004); State v. Rosado, 92 Conn.App. 823, 887 A.2d 917, 919 (2006); State v. Shorter, No. C4 — 94-2442, 1995 WL 147064, at *5 (Minn.Ct.App.Apr. 4, 1995).
. 979 F.2d at 399 (internal quotations omitted).
. The majority holds that:
Because the trial court’s factual findings and her credibility determinations are supported by the record, and because it does not appear that she abused her discretion when she reached the conclusions that she did, we, despite serious misgivings after our review of the record, affirm the trial judge's denial of Cole’s motion to suppress evidence derived from his statement. Though we are disturbed by the possibility that the State had been less than candid in its representations to Cole, we cannot conclude that the trial judge’s factual findings are clearly erroneous.
Majority opinion, at 372-73 (italics added)
. 585 F.2d 851 (7th Cir.1978).
. Id. at 854.
. Majority opinion at 372.
.Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).
. It is no answer to argue that the denial of the motion to preclude the death penalty created no prejudice because the trial court and the jury ultimately determined that Cole would not suffer the death penalty. That fact was unknowable at the time the motion was decided, and cannot be the basis to deprive Cole, on the basis of hindsight, of the alternative remedy, namely, invalidation of the agreement and forfeiture by the State of its right to use Cole's statement and evidence derived therefrom.