People v. O'Toole

OPINION OF THE COURT Smith, J. We hold that on the facts of this case defendant’s acquittal of a charge of first degree robbery that was based on the alleged display of a firearm barred the People from introducing, at a later trial for second degree robbery, evidence that a firearm was displayed. [337] I Defendant was charged with first and second degree robbery and other crimes. The first degree charge was brought under Penal Law § 160.15 (4), which is applicable when a person “forcibly steals property” and “he or another participant in the crime . . . [djisplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.” The second degree charge was based on Penal Law § 160.10 (1). Under that statute, the second degree crime is committed when a person “forcibly steals property and ... is aided by another person actually present.” At defendant’s first trial, Phillip Horsey, the manager of a barber shop, testified that defendant told him he was entitled to “money from the shop,” and that if he did not get it he would “close the shop.” About an hour after this conversation, according to Horsey’s testimony, a large man walked into the barber shop and handed Horsey a telephone. When Horsey picked up the phone, he heard defendant’s voice telling him to “[g]ive my man the jewels.” Horsey then turned to face the man from whom he had taken the phone, and saw that the man was pointing a gun at his stomach. Horsey, followed by the armed man, walked out the door and encountered defendant in front of the shop. After some conversation, Horsey gave defendant a valuable gold chain. The jury at the first trial acquitted defendant of first degree robbery and convicted him of second degree robbery. The Appellate Division reversed (on an issue not relevant here) and ordered a new trial on the second degree robbery charge (People v O’Toole, 39 AD3d 419 [1st Dept 2007]). At the second trial, defendant moved to preclude the People from introducing evidence that his alleged accomplice used a gun in the robbery. The trial court denied the motion, and Horsey testified at the second trial, as he did at the first, that the large man pointed a gun at him. Defendant was again convicted of second degree robbery. The Appellate Division again reversed, holding that the People were collaterally estopped by the earlier verdict from presenting evidence of the gun (People v O’Toole, 96 AD3d 435 [1st Dept 2012]). A Judge of this Court granted the People leave to appeal (20 NY3d 934 [2012]), and we now affirm. [338] II This case is controlled by our holding in People v Acevedo (69 NY2d 478, 480 [1987]) that “the doctrine of collateral estoppel can be applied to issues of ‘evidentiary’ fact.” As we explained in Acevedo, in the analysis of collateral estoppel issues, facts essential to the second judgment are considered “ultimate” facts; other facts are only “evidentiary” (id. at 480 n 1). Under Acevedo, when an issue of evidentiary fact has been resolved in a defendant’s favor by a jury, the People may not, at a later trial, present evidence that contradicts the first jury’s finding. The facts of Acevedo illustrate the principle. Acevedo was first tried for, and acquitted of, robbing a man named Jakiela. Both Jakiela and Acevedo testified at the first trial, giving totally inconsistent versions of their interactions on the morning in question: Jakiela testified to a robbery at a gas station, Acevedo to a sexual encounter in a park. Later, defendant was tried for robbing another man on the same morning, and Jakiela was called as a People’s witness. He again testified that he had seen Acevedo that morning at the gas station, not the park. We held that the use of this testimony at the second trial was impermissible because, giving a “practical, rational reading to the record of the first trial,” it was apparent that the first jury had rejected Jakiela’s version of events (id. at 487-488). Here, as in Acevedo, we see no “practical, rational” escape from the conclusion that the jury’s finding at the first trial was inconsistent with evidence presented by the People at the second one. The first jury acquitted defendant of first degree robbery and convicted him of second degree robbery. It could not logically have done so without finding that the People had failed to prove beyond a reasonable doubt that the robbery involved the display of a firearm. The dissent would distinguish Acevedo on the ground that in that case the first jury affirmatively found Acevedo’s testimony to be true and Jakiela’s untrue, whereas here the first jury found only reasonable doubt about Horsey’s testimony that he was robbed at gunpoint; but the distinction is a false one. In any criminal case, an acquittal is only a finding of reasonable doubt, not a finding that defendant is in fact innocent. The first jury’s acquittal in Acevedo implied only that the jury was not convinced beyond a reasonable doubt that Jakiela was telling the truth, and our comment that the jury “concluded that Jakiela’s testimony was incredible” (69 NY2d at 488) meant no more than this. [339] The People, while arguing that Acevedo is distinguishable, also suggest that we should overrule it. The Acevedo holding has, the People argue, been undermined by the United States Supreme Court’s decision in Dowling v United States (493 US 342 [1990]). But Acevedo and Dowling are not inconsistent. Dowling decided that the Due Process and Double Jeopardy Clauses of the Federal Constitution do not require the application of collateral estoppel where “the prior acquittal did not determine an ultimate issue in the present case” (id. at 348). Acevedo did not purport to decide any federal or state constitutional question. It held only that, as a matter of New York law, collateral estoppel applies to issues of evidentiary as well as ultimate fact. Dowling furnishes no reason to abandon that holding. It is nonetheless true, as the People and the dissent point out, that the application of Acevedo can cause practical problems. There is force to the People’s argument, paraphrased by the dissent, that the facts they sought to prove at the second trial “were the facts the victim told police, and . . . they should not be required to put on a case pretending the facts were any different” (dissenting op at 340). The likelihood that such problems will arise leads us to suggest that collateral estoppel should be applied sparingly in criminal cases—as it has been to date; this is the first case since Acevedo, decided 26 years ago, in which we have held the doctrine applicable. But here, the problems Acevedo presents could have been— and could still be, at a retrial—handled without unreasonable difficulty. The People could refrain from asking Horsey questions that call for testimony about the firearm, and could warn Horsey not to volunteer it. If it becomes apparent, in this case or any other, that the Acevedo rule cannot practicably be followed if a necessary witness is to give truthful testimony, then collateral estoppel should not be applied. Nor should defense counsel be allowed to take unfair advantage of the dilemma that Acevedo creates for the People. Nothing in Acevedo, or in our opinion today, bars the People from walking through any door that defendant may open (see People v Massie, 2 NY3d 179 [2004]; People v Melendez, 55 NY2d 445 [1982]). Accordingly, the order of the Appellate Division should be affirmed.