The People of the State of New York, Appellant,v.Donald O'Toole, Respondent.

Brief

N.Y.November 14, 2013

To be argued by TIMOTHY C. STONE (20 Minutes Requested) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, - against - DONALD O’TOOLE, Defendant-Respondent. BRIEF FOR APPELLANT CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov SUSAN GLINER TIMOTHY C. STONE ASSISTANT DISTRICT ATTORNEYS Of Counsel FEBRUARY 13, 2013 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................................. iii PRELIMINARY STATEMENT ......................................................................................... 1 QUESTION PRESENTED ................................................................................................ 2 JURISDICTIONAL STATEMENT ................................................................................... 2 CASE SUMMARY AND PROCEDURAL HISTORY ................................................... 3 THE EVIDENCE AT THE FIRST TRIAL ................................................................... 12 The People’s Case ................................................................................................................. 12 The Defense Case ................................................................................................................. 20 POINT ................................................................................................................................... 21 BECAUSE THE ESSENTIAL ELEMENT OF “FORCE” WITH RESPECT TO BOTH THE FIRST- AND SECOND-DEGREE ROBBERY CHARGES FILED AGAINST DEFENDANT WAS PREDICATED ON THE DISPLAY OF A GUN BY DEFENDANT’S ACCOMPLICE, WHEN DEFENDANT WAS INITIALLY ACQUITTED ON THE FIRST CHARGE AND CONVICTED ON THE SECOND, THE PEOPLE COULD NOT PROPERLY BE COLLATERALLY ESTOPPED FROM PRESENTING EVIDENCE ABOUT THE DISPLAY OF THE GUN AT A RETRIAL OF THE SECOND-DEGREE ROBBERY CONVICTION. ...................................................................... 21 The Relevant Record ............................................................................................................ 24 Legal Analysis ........................................................................................................................ 27 A. ............................................................................................................................................ 27 B. ............................................................................................................................................. 37 ii C. ............................................................................................................................................. 41 1. ............................................................................................................................................. 45 2. ............................................................................................................................................. 48 CONCLUSION ................................................................................................................... 57 iii TABLE OF AUTHORITIES FEDERAL CASES Dowling v. United States, 493 U.S. 342 (1990) ........................................................... 49-54 Dunn v. United States, 284 U.S. 390 (1932) ..................................................................... 31 Montana v. United States, 440 U.S. 147 (1979) ................................................................ 28 Schad v. Arizona, 501 U.S. 624 (1991) .............................................................................. 40 Standefer v. United States, 447 U.S. 10 (1980) ........................................................... 32, 56 United States v. Brackett, 113 F.3d 1396 (5th Cir.1997) ............................................ 51-52 United States v. Felix, 503 U.S. 378 (1992) ....................................................................... 51 United States v. Keller, 624 F.2d 1154 (3d Cir. 1980) ..................................................... 49 United States v. Maybury, 274 F.2d 899 (2d Cir. 1960) ................................................... 33 United States v. Mespoulede, 597 F.2d 329 (2d Cir. 1979) ............................................. 49 United States v. Powell, 469 U.S. 57 (1984) ...................................................................... 34 Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972) ............................................... 49, 51 Wright v. Whitley, 11 F.3d 542 (5th Cir. 1994) ................................................................ 51 Yeager v. United States, 557 U.S. 110 (2009) .................................................................... 31 STATE CASES Bansbach v. Zinn, 1 N.Y.3d 1 (2003) ................................................................................ 30 Commonwealth v. Holder, 805 A.2d 499 (Pa. 2002) ....................................................... 55 Duffy v. Vogel, 12 N.Y.3d 169 (2009) ............................................................................... 28 Eatherton v. State, 810 P.2d 93 (Wyo. 1991) .................................................................... 55 Hampton v. Commonwealth, 133 S.W.3d 438 (Ky. 2004) ............................................. 55 Kinney v. People, 187 P.3d 548 (Colo. 2008) ................................................................... 54 iv Levy v. Association of the Bar of City of New York, 37 N.Y.2d 279 (1975) ............... 30 Odum v. State, 989 A.2d 232 (Md. 2010) .......................................................................... 55 People ex rel. Matthews v. New York State Div. of Parole, 58 N.Y.2d 196 (1983) ................................................................................................................................ 54 People v. Acevedo, 69 N.Y.2d 478 (1987) ....................... 7-8, 11, 28-30, 44-49, 51, 53-56 People v. Aguilera, 82 N.Y.2d 23 (1993) ...................................................................... 28-29 People v. Berkowitz, 50 N.Y.2d 333 (1980) ................................................................ 27, 30 People v. Colon, 866 N.E.2d 207 (Ill. 2007) ..................................................................... 55 People v. Delamota, 18 N.Y.3d 107 (2011) ...................................................................... 36 People v. Flynn, 123 Misc.2d 1021 (Sup. Ct. N.Y. Co. 1984) ......................................... 39 People v. Goodman, 69 N.Y.2d 32 (1986) ........................................................ 7, 30-31, 48 People v. Hedgeman, 70 N.Y.2d 533 (1987) ..................................................................... 39 People v. Hines, 97 N.Y.2d 56 (2001) ............................................................................... 27 People v. Horne, 97 N.Y.2d 404 (2002) ...................................................................... 35, 54 People v. Lewis, 69 N.Y.2d 321 (1987) ............................................................................. 27 People v. Martinez, 63 A.D.3d 859 (2d Dep’t 2009) ................................................. 36, 42 People v. Mason, 101 A.D.3d 1659 (4th Dep’t 2012) ................................................ 36, 42 People v. Miller, 87 N.Y.2d 211 (1995) ............................................................................. 38 People v. Muhammad, 17 N.Y.3d 532 (2011) ............................................................ 34, 41 People v. O’Toole, 39 A.D.3d 419 (1st Dep’t 2007) ................................................... 5, 26 People v. O’Toole, 96 A.D.3d 435 (1st Dep’t 2012) .................................................. 10-11 People v. Plevy, 52 N.Y.2d 58 (1980) .......................................................................... 28, 30 People v. Rayam, 94 N.Y.2d 557 (2000) .......................................................... 33-34, 36, 54 v People v. Read, 228 A.D.2d 304, lv. denied, 88 N.Y.2d 1071 (1996) ................................................................................ 38 People v. Romero, 7 N.Y.3d 633 (2006) ........................................................................... 36 People v. Santamaria, 884 P.2d 81 (Cal. 1994) .................................................................. 54 People v. Scarola, 71 N.Y.2d 769 (1988) ........................................................................... 27 People v. Tucker, 55 N.Y.2d 1 (1981) .......................................................................... 32-34 People v. Yanayaco, 99 A.D.3d 416 (1st Dep’t 2012) ............................................... 36, 42 Reed v. New York, 78 N.Y.2d 1 (1991)............................................................................. 54 Sherman v. State, 931 S.W.2d 417 (Ark. 1996) ................................................................. 54 State v. Aparo, 614 A.2d 401 (Conn. 1992) ...................................................................... 55 State v. Cotton, 778 So.2d 569 (La. 2001) ......................................................................... 55 State v. Dean, 589 A.2d 929 (Me. 1991) ............................................................................ 55 State v. Eggleston, 187 P.3d 233 (Wash. 2008) ................................................................ 55 State v. Glenn, 9 A.D.3d 161 (N.H. 2010) ........................................................................ 55 State v. Gusman, 874 P.2d 1112 (Idaho 1994) ................................................................. 55 State v. Sharkey, 574 N.W.2d 6 (Iowa 1997) ..................................................................... 55 York v. State, 342 S.W.3d 528 (Tex. Crim. App. 2011) ................................................... 55 STATE STATUTES CPL 470.20 ............................................................................................................................ 42 CPL 450.90 .............................................................................................................................. 2 Penal Law § 110.00 ................................................................................................................. 5 Penal Law § 155.40(2) ............................................................................................................ 5 Penal Law § 160.10(1) .................................................................................................. 1, 5, 38 Penal Law § 160.15(4) ............................................................................................................ 5 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- DONALD O’TOOLE, Defendant-Respondent. BRIEF FOR APPELLANT PRELIMINARY STATEMENT By permission of the Honorable Eugene F. Pigott, Jr., the People of the State of New York appeal from an order of the Appellate Division, First Department, dated June 7, 2012. That order reversed an October 14, 2008 judgment, after a jury trial, of Supreme Court, New York County (Lewis Bart Stone, J.), and remanded the matter for a new trial. Pursuant to the judgment, defendant was convicted of Robbery in the Second Degree (Penal Law § 160.10[1]) and sentenced, as a persistent violent felony offender, to a determinate prison term of 15 years followed by five years of post-release supervision. Defendant is currently incarcerated. 2 QUESTION PRESENTED Defendant was acquitted of, inter alia, first-degree robbery (displayed what appeared to be a pistol), and convicted of second-degree robbery (aided by another actually present), in connection with a crime in which the only force alleged to have been used against the victim was the display of a gun by defendant’s accomplice. However, after the second-degree robbery conviction was overturned on appeal because of an error in jury selection, defendant moved to exclude any evidence pertaining to the display of the gun on the theory that the People were collaterally estopped by the previous verdict. Did the retrial judge correctly deny that motion, and thus properly allow admission of evidence regarding the display of the weapon to establish the element of “force” essential for proving the second-degree robbery charge? The Appellate Division answered this question in the negative. JURISDICTIONAL STATEMENT The appeal to this Court is authorized pursuant to Criminal Procedure Law 450.90 because it presents a question of law decided adversely to the appellant by the Appellate Division that resulted in a reversal of the judgment of conviction. 3 CASE SUMMARY AND PROCEDURAL HISTORY Shortly after noon on September 15, 2004, in the RR Barbershop at 1569 Lexington Avenue in Manhattan, defendant and another man robbed shop manager Phillip Horsey. Defendant had been Horsey’s customer for years back when the barbershop was under different management. Eventually, Horsey took over as manager of the shop. When the store’s lease was up for renewal in 2002, Horsey became one of the new leaseholders, and he entered into an agreement with the building’s management to pay off gradually the $2,300 balance that was owed in connection with the prior lease. Defendant had offered to pay off that entire amount if Horsey would agree to pay him $250 per week, but Horsey declined defendant’s offer. At about 11:30 a.m. on the day of the robbery, defendant came to the barbershop and told Horsey that he expected to be paid regularly for permitting the shop to remain open because men who were formerly associated with the shop had “disrespected” defendant. When Horsey refused to make the demanded payments, defendant stated that he would be back. Less than an hour later, defendant returned with a second man. At the time, Horsey was cutting a customer’s hair while holding his 18-month-old son. Defendant remained outside the shop while the second man entered and handed a cell phone to Horsey. Over the phone, defendant instructed Horsey to put down his son and give defendant’s cohort “the jewels.” After Horsey realized that the second man had a gun 4 pointed at his midsection, he handed his son to a customer and went outside to talk with defendant. Defendant and the second man stood on either side of Horsey, with the gun pointing at Horsey through the man’s pocket, as defendant demanded the gold chain that Horsey wore around his neck. Just then, Horsey’s son came out of the shop and, out of concern for his son’s safety, Horsey handed the chain over to defendant. That afternoon, Horsey reported defendant’s conduct to Robert Mitchell, a mutual acquaintance. Mitchell told Horsey that he would try to recover the chain from defendant, but, during the next few weeks, he was unable to locate defendant. In order to file a timely insurance claim, Horsey reported the robbery to the police on October 4, 2004, about two and a half weeks after the robbery. However, he did not identify defendant, or anyone else, as the robber. The next day, defendant returned to the barbershop with several other men and again demanded regular payments from Horsey. Later that same day, Horsey went back to the police and reported defendant’s entire course of conduct, and for the first time identified defendant as the man who had robbed his chain. Defendant was arrested the following week when he appeared at the stationhouse to make a complaint about an unrelated matter. After his arrest, defendant contacted Horsey and offered to return the chain. He also phoned Mitchell, offered an excuse for having stolen Horsey’s chain, and said that he would be willing to pay Horsey not to testify. 5 By New York County Indictment Number 5560/04, filed on November 3, 2004, a grand jury charged defendant with Robbery in the First Degree (Penal Law § 160.15[4]) (display firearm), Robbery in the Second Degree (Penal Law § 160.10[1]) (aided by another), and one count of Attempted Grand Larceny in the Second Degree (Penal Law §§ 110.00, 155.40[2]) for his conduct at the barbershop on September 15, 2004. The grand jury also charged defendant with an additional count of Attempted Grand Larceny in the Second Degree (Penal Law §§ 110.00, 155.40[2]) based on his attempt to extort money from Horsey on October 5, 2004. Defendant proceeded to a jury trial before the Honorable John Cataldo and, on April 12, 2005, the jury returned a verdict convicting him of second-degree robbery and acquitting him of the other three counts. On April 29, 2005, Justice Cataldo adjudicated defendant a second violent felony offender and sentenced him to 14 years in prison followed by five years of post-release supervision. On appeal to the Appellate Division, First Department (“Appellate Division”), defendant claimed, inter alia, that the trial court erred in rejecting his for-cause challenges to three prospective jurors. On April 26, 2007, a unanimous panel of the court held that the trial judge had improperly denied defendant’s challenge to one of those prospective jurors, reversed defendant’s conviction, and remanded for a new trial on the second-degree robbery charge. People v. O’Toole, 39 A.D.3d 419 (1st Dep’t 2007). 6 Prior to the retrial, defendant moved to preclude evidence that he asserted that the People were collaterally estopped from introducing, based on his claim that the proof was relevant only to the counts of the indictment on which he had already been acquitted. Specifically, defendant asserted that proof that his accomplice pointed a gun at Horsey during the theft of the gold chain should be barred because the original jury had acquitted him of first-degree robbery. By the same token, defendant maintained, because he was found not guilty on the counts of attempted grand larceny, the People should be precluded from eliciting that defendant attempted to extort money from Horsey both on the day of the robbery and on the subsequent occasion. Defendant argued that Horsey’s testimony provided the only evidence in support of those counts, that the jury’s split verdict signaled that it had rejected Horsey’s account, and that any evidence pertaining to those counts should therefore be barred at the second trial as having been factually resolved in his favor (12/4/07 Minutes at 16-18, 24-25 [A20-22, A28-29]; 12/6/07 Minutes at 8-10 [A37-39]).1 The People opposed defendant’s motion, emphasizing that the jury had convicted defendant of second-degree robbery, which required a finding that defendant or his accomplice threatened to use force in stealing Horsey’s necklace. According to the People, under the evidence adduced at the first trial, the element of “force” essential to the second-degree robbery conviction had been established by the 1 References to the People’s Appendix are preceded by “A.” 7 testimony that defendant’s accessory had brandished a gun. Thus, the basis for the jury’s mixed verdict was factually “ambiguous at best,” and clearly insufficient to trigger an application of the doctrine of collateral estoppel (12/6/07 Minutes at 11-14 [A40-43]).2 On December 6, 2007, the Honorable Lewis Bart Stone denied the defense motion (12/6/07 Minutes at 16-17 [A45-46]). As a threshold matter, the court emphasized that, at the retrial of the second-degree robbery count, the People had to prove that defendant used “force” to steal Horsey’s chain. Thus, the accomplice’s threatened use of the gun, which had functioned to establish that element at the first trial, was directly relevant to the crime at issue (id. at 17-18). The judge also stated that, in accordance with the procedure described by this Court in People v. Acevedo, 69 N.Y.2d 478 (1987) and People v. Goodman, 69 N.Y.2d 32 (1986), he had read the “entire records” of the first trial to assess how the case was presented to the jury. If the defense had offered to the jury any “methods of analysis” that would have led to the acquittals but that were not based on the facts 2 The People also contended that the manner in which the parties had litigated the issues at the first trial failed to support the application of the doctrine of collateral estoppel. Specifically, neither the People nor the defense had presented the jurors with competing factual narratives that required an “either or” determination, and, hence, any verdict that they handed down did not necessarily indicate that the jurors had chosen only one such narrative. Further, according to the People, the jury had not rendered a finding that defendant was factually innocent of the counts on which he was acquitted. Rather, its split verdict reflected the fact that the evidence adduced from Robert Mitchell had corroborated Horsey’s version of events to varying degrees (12/6/07 Minutes at 11-14 [A40-43]). 8 underlying those charges, collateral estoppel would be inappropriate (id. at 14-15 [A43-44]; see also 12/4/07 Minutes at 16-18, 24-25 [A20-22, A28-29]). “[W]ithout any difficulty,” Justice Stone concluded that the acquittals did not signify that the jury had found defendant factually innocent of the conduct underlying those counts. Rather, the only inference that could be drawn was that the jury concluded that Horsey’s testimony, standing alone, was insufficient to sustain defendant’s guilt of those charges beyond a reasonable doubt (12/6/07 Minutes at 16- 17 [A45-46]). The judge distinguished Acevedo — in which this Court had collaterally estopped the People from presenting evidence that it found had formed the basis of a prior jury acquittal at a subsequent trial on related charges — as involving a situation in which the first jury’s verdict reflected the resolution of an “either or” factual determination. By contrast, Justice Stone found, defendant’s trial strategy was merely to allege a general “lack of proof,” or to challenge broadly the People’s case as having failed to establish the elements of the charged crimes beyond a reasonable doubt. Accordingly, specific factual findings could not be gleaned from the jury’s split verdict (id. at 14-16 [A43-45]). Nevertheless, the judge opined that it was the aspects of the testimony adduced from Horsey that had not been independently corroborated that accounted for the acquittals rendered by the first jury. According to the judge, Horsey’s testimony that a robbery had indeed occurred had been substantiated by defendant’s admission of guilt 9 to an independent witness, Robert Mitchell, which provided the basis for the jury’s split verdict (12/6/07 Minutes at 16 [A45]).3 On December 10, 2007, defendant proceeded to a new jury trial before Justice Stone. At the ensuing retrial, the evidence presented by the People was virtually identical to the proof admitted at the first trial. However, Horsey additionally testified that, on December 5, 2007, a week before the start of the second trial, defendant had phoned him and stated that he would pay Horsey not to testify.4 On December 12, 2007, the jury returned a verdict, again convicting defendant of second-degree robbery. On October 14, 2008, the judge sentenced defendant, as a persistent violent felony offender, to a determinate prison term of 15 years followed by five years of post-release supervision. 3 Justice Stone also found that, although the first jury had acquitted defendant on the attempted extortions, the evidence that formed the basis of those charges was admissible as relevant evidence that was probative of defendant’s guilt of second-degree robbery (12/6/07 Minutes at 17-20, 21-22, 25-26 [A46-49, A50-51, A54-55]). For example, defendant’s attempt to extort Horsey on the day of the robbery lent support to the evidence indicating that the robbery had occurred, and defendant’s plan to “tax” Horsey’s business — where Horsey was “absolutely vulnerable” — explained why Horsey did not initially report the robbery to the police (id. at 21-22, 26 [A50-51, A55]). Finally, defendant’s attempted extortion on October 5th evinced why, after Horsey made a partial “delayed outcry” to the police on October 4th, he made a “full outcry” the next day (id. at 18 [A47]). The judge added that, at defendant’s request, he would instruct the jury that defendant was charged only with robbing Horsey of the chain, and that any additional evidence was presented solely to explain Horsey’s behavior (id. at 25-26 [A54-55]). However, defendant never requested such a charge at the retrial. 4 When defendant asked how much money Horsey wanted, Horsey did not give a price; he simply told defendant to send the money. However, Horsey, who was fearful of defendant, never planned to accept any money from him (Retrial at 91-92, 120-21 [A422- 25]). 10 On direct appeal from the retrial conviction, defendant challenged the lower court’s rejection of his collateral estoppel claim. In response, the People urged that, because the original jury convicted defendant of second-degree robbery, and because the gun was presented as the proof of force underlying both legal theories of robbery, the verdict was factually ambiguous. Thus, the doctrine of collateral estoppel was inapplicable (People’s Appellate Division Brief at 31 n.9). Additionally, the People suggested that the split verdict handed down at the first trial might be explained by the fact that the first jury had merely found that there was insufficient corroboration for the acquitted counts, not that defendant was factually innocent of the conduct underlying those charges (id. at 27-32). On June 7, 2012, a unanimous panel of the Appellate Division reversed defendant’s judgment of conviction on the law and remanded the case for a third trial. People v. O’Toole, 96 A.D.3d 435 (1st Dep’t 2012). The Appellate Division took note of the fact that, although the first jury had convicted defendant of second-degree robbery, it had acquitted him of first-degree robbery and two counts of second-degree attempted grand larceny. O’Toole, 96 A.D.3d at 436. The court observed that: Therefore, under the facts presented, the People were barred by collateral estoppel from presenting evidence at the retrial that defendant’s accomplice pointed what appeared to be a pistol at the complaining witness during the alleged robbery, and that defendant also attempted to extort regular payments of protection from the complaining witness on the day of the robbery and the later occasion 11 Id. (citing, inter alia, People v. Acevedo, 69 N.Y.2d 478 [1987]). In addition, the Appellate Division rejected the People’s assertion that the doctrine of collateral estoppel was inapplicable because the acquittals handed down by the first jury appeared to be based on a lack of corroboration for certain aspects of Horsey’s testimony. To that end, the court stated that the People’s reasoning was misplaced because there was no statutory accomplice corroboration requirement in this case. O’Toole, 96 A.D.3d at 436. On November 20, 2012, Judge Eugene F. Pigott, Jr. granted the People leave to appeal the Appellate Division’s decision (A1). On this appeal, the People contend that the Appellate Division erred when it disregarded that the “force” element of the original jury’s second-degree robbery conviction was based on the display of a gun by defendant’s accomplice, and found that the People were collaterally estopped from introducing any such evidence at the retrial. 12 THE EVIDENCE AT THE FIRST TRIAL5 The People’s Case In February of 1998, PHILLIP HORSEY began to work as a barber at the RR Barbershop, a four-chair Manhattan establishment located at 1569 Lexington Avenue (Horsey: 273-78, 332-34, 366 [A79-84, A138-40, A171]). At that time, the shop was owned by Ronald Jones and Elston Streeter, and it was managed by Ralph “Country” Wray, who also cut hair at the shop (Horsey: 274-76 [A80-82]; Mitchell: 412-14 [A217-19]). Horsey paid $125 per week to rent one of the chairs in the shop, and he gradually built up a steady clientele (Horsey: 282-84 [A88-90]). Horsey became acquainted with defendant, whom he knew by the names “Pete” and “Little Pete,” when defendant was a regular customer of Wray’s at the barbershop in 1999 or 2000 (Horsey: 288-91, 388-89 [A94-97, A193-94]). Because Wray’s persistent drug abuse affected his reliability, eventually, Horsey took over as manager of the shop (Horsey: 276-82, 369 [A82-88, A174]; Mitchell: 415, 435-36 [A220, A240-41]). Ronald Jones’s cousin, Corrections Department Emergency Trainer ROBERT MITCHELL,6 was also a regular customer, and he continued to 5 Because a review of the first trial record is sufficient to analyze the collateral estoppel issue before this Court, only the record of the original trial is recounted herein. In any event, as previously noted, the evidence admitted at both trials was essentially identical. 6 Mitchell, who had grown up in housing projects near the barbershop, was a veteran corrections officer who served in the Department of Corrections’ Emergency Service Unit. He trained corrections officers as well as the staff of various state and federal agencies, including the FBI, US Marshals, NYPD, and sheriffs’ offices, in handling responses to (Continued…) 13 visit the shop regularly after Horsey assumed the management duties (Mitchell: 409-18 [A214-23]).7 In late 2002, the shop’s lease was up for renewal, and Horsey and Wray signed a new lease, replacing Jones and Streeter as the leaseholders (Horsey: 279-80 [A85- 86]). At that time, the building management was still owed $2,300 on the old lease, and Horsey entered into an agreement with them to pay $750 of that amount immediately, and then the balance over the next several months (Horsey: 284-87 [A90-93]). Defendant offered to pay off the entire $2,300 if Horsey would agree to pay him $250 per week, but Horsey declined that offer (Horsey: 321-22, 387-88 [A127-28, A192-93]). Horsey made the necessary payments himself and operated the shop at a profit thereafter (Horsey: 287 [A93]). On the morning of September 15, 2004, Horsey spoke with defendant outside the barbershop (Horsey: 291 [A97]). Defendant asked whether Wray and Ronald Jones were still involved in running the shop, and Horsey told him that they were not (Horsey: 291-92 [A97-98]). The men went into the shop, and at about 11:30 a.m., as ___________________________ (…Continued) threats such as weapons of mass destruction and hazardous materials (Mitchell: 409-11 [A214-16]). 7 Horsey obtained a .380 semiautomatic handgun after being robbed at the barbershop, and was arrested in Nassau County in March of 2001 for possessing that gun. He was subsequently convicted of attempted weapon possession and sentenced to five years’ probation (Horsey: 325-26, 359-61 [A131-32, A164-66]). Moreover, because the shop did not issue him the proper forms, Horsey had not filed a federal income tax return in seven years (Horsey: 345-47 [A150-52]). 14 Horsey was cutting defendant’s hair, defendant said that he wanted some money “from the shop.” Defendant also indicated that he wanted to be sure that nobody he disliked, including Ronald, Rudy, “Smoke,” and “Buggy,” could have anything to do with the shop (Horsey: 288, 293-94, 392-93 [A94, A99-100, A197-98]). Defendant told Horsey that, by running the barbershop, Horsey was “affiliat[ing]” with men who had “disrespected” defendant (Horsey: 294-95 [A100-01]). Defendant said that he was “going to close the shop” and that the shop “shouldn’t be there without him getting some money from it” (Horsey: 295 [A101]). After Horsey finished cutting defendant’s hair, he told his other customers to wait, and he and defendant went outside (Horsey: 296 [A102]). Defendant repeated his complaint that Horsey was “affiliat[ed]” with certain people and said that the shop could not remain open unless he was paid some money (Horsey: 296 [A102]). When Horsey said he would “have nothing to do with it,” defendant responded that he would be returning for a further discussion (Horsey: 296-97 [A102-03]). Between 12:15 and 12:30 p.m. that same day, as Horsey was standing behind a barber chair in the back of the shop holding his 18-month-old son in one hand and cutting a customer’s hair with the other, a “large black man” walked in. The man handed Horsey a cell phone and said, “BG wants to talk to you” (Horsey: 297-99, 336, 342 [A103-05, A142, A147]). Speaking through the cell phone, defendant told Horsey to “put [his] son down [and] give my man the jewels” (Horsey: 298-300 [A104-06]). Horsey understood defendant to be referring to a gold chain with a 15 diamond Jesus figure, worth $3,900, that Horsey was wearing around his neck (Horsey: 298, 304, 345 [A104, A110, A150]). Horsey responded, “Yo, I told you I don’t have nothing to do with that” (Horsey: 300 [A106]). As the men spoke, defendant appeared at the doorway of the shop talking on a cell phone (Horsey: 301 [A107]). Upon turning to face the man who had handed him the cell phone, Horsey saw that the man had a black handgun pointed at his stomach (Horsey: 298-300, 358-59 [A104-06, A163-64]). Horsey gave the phone back to the gunman, walked over to the next barber chair, and handed his son to a friend named Elijah who was sitting in that chair (Horsey: 301-02, 336-37, 350-52 [A107-08, A142-43, A155-57]).8 When Horsey then walked out the front door of the shop to talk with defendant, the gunman followed him (Horsey: 302-03 [A108-09]). Outside, defendant stood to Horsey’s right while the other man stood to his left, appearing to aim the gun toward Horsey from inside his pocket (Horsey: 302-03, 400-01 [A108-09, A205-06]). Defendant said he had to “eat off the shop,” and demanded Horsey’s chain (Horsey: 303 [A109]). Horsey told defendant that he could work in the shop to earn money, but defendant said, “If I wanted to work I would have asked you for a chair” (Horsey: 341-42 [A146-47]). Defendant said that he 8 Horsey did not know Elijah’s last name; Horsey knew the man whose hair he was cutting as “A,” but he did not know that man’s full name either (Horsey: 350-53 [A155-58]). Although Elijah was “not a witness,” the prosecutor had spoken with him (Horsey: 353 [A158]). 16 would “be back with a proposition,” and added that he had tried to help Horsey with “an earlier proposition.” Horsey understood that statement as a reference to defendant’s 2002 offer to pay off the barbershop’s lease arrears in exchange for a monthly payment from Horsey (Horsey: 303, 322-23 [A109, A128-29]). As Horsey began to explain to defendant that he did not have anything to do with defendant’s disputes with other people, suddenly Horsey’s son ran out of the shop. In order to protect his son, Horsey gave defendant his chain (Horsey: 304 [A110]). Defendant repeated that he would “be back with that proposition,” and then he and the gunman walked away together (Horsey: 305 [A111]). Horsey went back into his shop and asked the customer who was waiting for a haircut to return later. Horsey finished working on the customer who was already in the chair, closed up the shop for several hours, and then took his son home (Horsey: 305-07, 402-03 [A111-13, A207-08]). Once there, he contacted Robert Mitchell and told him what had just happened (Horsey: 306 [A112]; Mitchell: 418-19 [A223-24]). When he spoke to Mitchell, Horsey was “nervous” and “scared,” and his voice was “trembling” (Mitchell: 426 [A231]). Mitchell advised Horsey to delay taking any action, and offered to speak to defendant to try to retrieve Horsey’s chain. However, Mitchell was unable to locate defendant (Mitchell: 419-22 [A224-27]). On October 4, 2004, Horsey spoke with his insurance broker and learned that he had only had 11 days left to file a claim for his stolen jewelry (Horsey: 380-82 [A185-87]). Horsey was aware that he had to report the theft to the police in order to 17 file for insurance (Horsey: 381 [A186]). That afternoon, Mitchell told Horsey that he knew Horsey wanted to file an insurance claim. However, Mitchell warned that once the police were involved, his “hands” would be “tied” (Horsey: 317-18, 382 [A123-24, A187]; Mitchell: 433-44 [A238-50]). That same evening, Horsey went to the 23rd Precinct stationhouse and spoke to Detective THOMAS FISCHER. He told the detective that his chain had been stolen at gunpoint, but he did not mention that the man who had stolen his jewelry was defendant or was known to him as “Pete” (Horsey: 318-21, 344-45 [A124-27, A149-50]; Fischer: 447-48, 453 [A253-54, A259]). Fischer did not believe that Horsey was being entirely forthcoming, so he asked Horsey to return the next day with some paperwork relating to the stolen jewelry (Fischer: 457-58 [A263-64]). The next day, between 2:30 and 3:00 p.m., Horsey was in the barbershop with six or seven other people when an SUV and a grey Buick pulled up in front of the shop (Horsey: 307-10 [A113-16]). Several men got out of the two vehicles, including defendant, and stood outside looking at the barbershop (Horsey: 309 [A115]). Defendant walked into the shop and entered the bathroom, and Horsey told everyone else to leave (Horsey: 310, 339, 403 [A116, A145, A208]). After everyone was gone, Horsey waited outside the shop for defendant, who soon came out and spoke with him (Horsey: 311 [A117]). Defendant once again said that he had to “eat from the shop,” which Horsey understood to mean that he wanted money for allowing the shop to operate (Horsey: 311-12 [A117-18]). The men went back inside the shop, and 18 defendant said that he wanted “at least $250 to $300 a week for the shop to stay open,” and if Horsey did not want to accept those terms, he could turn the shop over to defendant (Horsey: 312, 314 [A118, A120]). Defendant said that he would burn the shop down if his demands were not met (Horsey: 312 [A118]). Defendant also told Horsey that “all this wouldn’t have had to happen” if Horsey had accepted his previous proposal (Horsey: 323 [A129]). When Horsey said that he could not agree to pay defendant without discussing it with the other barber who worked there, defendant replied that Horsey should do so, and indicated that he would come back to the shop that Friday, October 8th (Horsey: 313-15, 323 [A119-21, A129]). That afternoon, when Horsey spoke to Mitchell, he still appeared to be “shaken up” (Mitchell: 424-27 [A229-32]). Although Horsey was “very nervous” and a “little reluctant” to involve the police, Horsey agreed to meet Mitchell at the stationhouse so that Horsey could file a complaint about the threat to his business (Horsey: 316, 320- 21 [A122, A126-27]; Mitchell: 422-25, 427 [A227-30, A232]). When Horsey made the complaint that evening to Detectives Fischer and JULIO MORENO, he described in full the events of both September 15 and October 5, 2004, and reported that it was “Pete” from the Carver Housing Projects, also known as “Little Pete,” who had stolen his jewelry (Horsey: 320-21, 386-87 [A126-27, A191-92]; Fischer: 442-46, 448- 49 [A248-52, A254-55]; Moreno: 466-74 [A272-80]). Fischer knew that “Little Pete” was a nickname for Donald O’Toole (Fischer: 444 [A250]). 19 Detective Fischer arranged for surveillance at the barbershop on October 8, 2004, but defendant did not appear (Fischer: 449-50 [A259-60]). Horsey continued to cooperate with the police investigation (Horsey: 324-25 [A130-31]; Fischer: 443 [A249]). About a week later, on October 14th, defendant appeared at the stationhouse to make a complaint concerning an unrelated matter, and Detective Moreno arrested him at that time (Moreno: 469-70 [A275-76]; Fischer: 450-52 [A260- 62]). Detective Fischer telephoned Horsey and informed him that defendant had been arrested (Horsey: 328 [A134]). Subsequently, a man came into the barbershop and handed Horsey a cell phone. Over the phone, defendant asked Horsey if he had reported defendant’s conduct to the police. Horsey assured defendant that he had not (Horsey: 329-31, 396-97 [A135-37, A201-02]). Defendant offered to give Horsey’s chain back and “leave [Horsey] and the shop alone,” but Horsey insisted that he had made no police report (Horsey: 330-31 [A136-37]). Defendant also telephoned Mitchell during October of 2004 and asked him to talk with Horsey about his theft of Horsey’s chain, and persuade Horsey to drop the charges (Mitchell: 427-29 [A232-34]). Defendant told Mitchell that he had taken Horsey’s chain because Horsey refused to tell him where he could find Ralph Wray. Defendant also indicated that he would pay Horsey not to testify against him (Mitchell: 428-29 [A233-34]). Mitchell told defendant that he would talk to Horsey, 20 but that defendant “kn[e]w what [he] did” and “the matter was out of Mitchell’s hands” (Mitchell: 429-30 [A234-35]).9 The Defense Case Defendant presented no evidence. 9 A few days before defendant’s trial, his attorney walked into the barbershop and asked for “Phillip Horsey.” However, since counsel had not identified himself, and Horsey did not want to talk to him, he told counsel that “Phillip Horsey” was not there (Horsey: 342-44 [A147-49]). 21 POINT BECAUSE THE ESSENTIAL ELEMENT OF “FORCE” WITH RESPECT TO BOTH THE FIRST- AND SECOND-DEGREE ROBBERY CHARGES FILED AGAINST DEFENDANT WAS PREDICATED ON THE DISPLAY OF A GUN BY DEFENDANT’S ACCOMPLICE, WHEN DEFENDANT WAS INITIALLY ACQUITTED ON THE FIRST CHARGE AND CONVICTED ON THE SECOND, THE PEOPLE COULD NOT PROPERLY BE COLLATERALLY ESTOPPED FROM PRESENTING EVIDENCE ABOUT THE DISPLAY OF THE GUN AT A RETRIAL OF THE SECOND-DEGREE ROBBERY CONVICTION. In the fall of 2004, defendant and a gun-wielding accomplice visited Phillip Horsey at the Harlem barbershop that he managed, and robbed Horsey of a gold chain at gunpoint. On that same day, as well as on a subsequent occasion, defendant also attempted to extort money from Horsey and the shop. In connection with the gunpoint robbery, defendant was tried on one count each of first- and second-degree robbery, and his accomplice’s display of the gun constituted the basis for the “force” element that was essential to each of those charges. Although the jurors convicted defendant of second-degree robbery, they nevertheless acquitted him of first-degree robbery, as well as of the other counts on which he had been tried. Subsequently, on direct appeal, the Appellate Division overturned that conviction based on a jury- selection error, and the case was remanded so that defendant could be retried on the second-degree robbery on which he had been previously convicted. 22 At the retrial, defendant claimed that, as a result of his prior acquittal on the first-degree robbery charge, the People should be collaterally estopped at the second trial from presenting any evidence relating to the display of a gun by his accomplice. The judge, however, denied defendant’s motion to preclude, recognizing that, since the display of the gun provided the predicate “force” element for the second-degree robbery count on which the jurors had just convicted defendant, the acquittal on the first-degree charge could not possibly be regarded as a definitive finding by the original jury that no gun had been displayed during the course of the crime. After the presentation of all the evidence at the retrial, defendant was again convicted on the second-degree robbery charge. On appeal from the conviction that stemmed from the retrial, defendant asserted that the judge had erred when he denied defendant’s motion to preclude. The Appellate Division agreed that the retrial court’s evidentiary ruling was erroneous, finding that the original jury’s verdict acquitting defendant of the first-degree robbery charge was equivalent to an affirmative factual finding that no gun had been displayed when the victim relinquished his chain to defendant in the barbershop. Accordingly, the Appellate Division once again reversed defendant’s conviction and ordered a third trial — albeit one in which there could be no admission into evidence of any proof that a gun had been displayed during the theft at issue. However, as demonstrated below, the Appellate Division’s application of collateral estoppel was fundamentally erroneous. The display of the gun was the only 23 proof of the “force” element that had been presented to the first jury with respect to both robbery counts that were submitted for their consideration. Thus, contrary to Appellate Division’s ruling, since the jurors had found beyond a reasonable doubt that defendant was guilty of one of those counts, their rendering of an acquittal on the second count could not possibly have qualified as a definitive factual finding on their part with respect to the brandishing of a gun. Indeed, that the Appellate Division has improperly applied the doctrine of collateral estoppel is demonstrated by the anomalous outcome in this case if that court’s decision is permitted to stand. But for a procedural error committed by the initial trial court during jury selection, defendant’s judgment of conviction for second- degree robbery would have remained intact, and he would be currently serving the prison term that he received as a persistent violent felony offender. And, that would be true even if defendant had challenged the split verdict against him as being repugnant, or had claimed that his conviction on the second-degree robbery count was against the weight of the evidence because of the seemingly inconsistent acquittal on the first-degree charge — arguments that defendant never even raised on appeal. Yet since that jury-selection error — which had nothing to do with the substantive case against defendant — did, in fact, occur, defendant’s conviction for second-degree robbery was voided, he had to be retried on that charge, and he was convicted once more. The Appellate Division’s decision not only rendered this second conviction a nullity, but, as a practical matter, will prevent defendant from 24 being retried with the same evidence, and upon the same ground, on which two juries have previously determined that he was guilty beyond a reasonable doubt. That is true notwithstanding the fact that defendant neither possessed a colorable claim that the first jury’s split verdict was repugnant, nor ever challenged the legal sufficiency or weight of the evidence of the second-degree robbery conviction handed down by that jury. That a fortuitous error in the voir dire at the first trial has yielded what is tantamount to an outright dismissal of defendant’s indictment — and a total disregard for the convictions rendered by two prior juries — serves to underscore the flawed nature of the Appellate Division’s evidentiary ruling, and the urgent necessity for this Court to reverse that decision. The Relevant Record In April 2005, defendant went to trial on the indictment that charged him with, inter alia, first-degree robbery (displayed a pistol) and second-degree robbery (aided by another actually present), in connection with the theft of Phillip Horsey’s gold chain by defendant and a gun-wielding accomplice. At trial, Horsey testified that defendant showed up at the barbershop and, citing his disagreement with the shop’s former owners, demanded that Horsey pay him money in order to be allowed to keep the shop open. Defendant then left, but he returned less than an hour later accompanied by an unidentified man. While defendant stood by the door to the shop, the unidentified man entered and handed Horsey a cell phone. Speaking through the phone while still standing by the door, defendant ordered Horsey, who had his young 25 son in one arm, to put down his son and hand over his gold necklace to defendant’s “man.” Horsey noticed that defendant’s cohort now had a gun pointed at his stomach. Horsey placed his son down and walked outside the shop to where defendant was standing. Defendant’s accomplice stood on one side of Horsey and through his pocket pointed the gun at Horsey. At the same time, defendant explained that he had to “eat off [Horsey’s] shop” and demanded that Horsey turn over his necklace. Horsey’s son suddenly ran out of the shop to where all the men were standing. In order to protect his son, Horsey surrendered his necklace to defendant. A few weeks later, defendant returned to the barbershop, demanded that Horsey pay him at least $250 per week in order to be permitted to keep the shop open, and warned that he would burn down the shop if Horsey did not pay him (Horsey: 288, 291-315, 322-23, 336-39, 341-42, 345, 350-52, 358-59, 390-92, 400-03 [A94, A97-121, A128-29, A142- 45, A147-48, A151, A156-58, A164-65, A195-97, A205-08]). During the People’s summation, the prosecutor relied on the above-described testimony, never departing from the stance that the first- and second-degree robbery charges were essentially interchangeable with respect to the element of “force.” Specifically, the People maintained that the conduct elevating the crime from mere theft to robbery, in each instance, was the accomplice’s display of the gun. For example, the People argued that defendant had appeared at Horsey’s barbershop with a “henchman” who “carried a loaded weapon” and “who had no fear in displaying 26 that loaded weapon to the victim” (519 [A325]); that Horsey had been “threatened by the defendant who’s accompanied by the man with the gun at his place of business” (520-21 [A326-27]); and that Horsey “tried not to show fear when he was being held up by [sic] gunpoint” (527-29 [A333-35]). See also People’s Summation at 523, 525 (A329, A331) (“That’s the same individual who had his henchman come into the barbershop with a loaded weapon and rob him at gun point in front of his child”), 532 (A338) (arguing that defendant decided to “come in here and rob [Horsey] with a loaded gun”). Furthermore, in describing the elements of second-degree robbery, the People urged that it was the display of the gun that constituted the requisite threat of “force.” Thus, the People stressed that, as to the “Rob 2” count, defendant was “always with, at least, one henchman,” and that it was the “henchman” — but not defendant personally — who “happened to have the gun,” “[b]ut that doesn’t make the defendant any less culpable” for the second-degree robbery (544-45 [A350-51]). The jury at the first trial convicted defendant of second-degree robbery and acquitted him of, inter alia, first-degree robbery. Defendant appealed and challenged his conviction on various grounds; none of his appellate arguments related to the legal consistency of the jury’s split verdict, or to the sufficiency or weight of the evidence supporting his conviction. On the basis of a procedural error committed by the trial court during jury selection — the court’s incorrect refusal to grant defendant’s for- cause challenge to a prospective juror — the Appellate Division reversed defendant’s conviction and ordered a new trial on the second-degree robbery charge. People v. 27 O’Toole, 39 A.D.3d 419, 420 (1st Dep’t 2007). Defendant was retried by a new jury and convicted once again of the second-degree robbery count. The instant appeal followed. Legal Analysis A. In New York, the general rule is that all relevant evidence is admissible unless its admission violates some exclusionary rule. People v. Scarola, 71 N.Y.2d 769, 777 (1988). Relevance, of course, turns on whether evidence has a tendency in reason to prove the existence of any material fact, i.e., it makes determination of the action more or less probable than it would be without the evidence. People v. Lewis, 69 N.Y.2d 321, 325 (1987). This broad presumption of admissibility furthers the truth-seeking process, particularly in the context of a criminal jury trial. After all, in assessing a criminal defendant’s guilt or innocence, it is vital that a jury consider all the reliable evidence that is available. See generally People v. Hines, 97 N.Y.2d 56, 61 (2001) (noting the “overall truth-seeking function of a jury trial”); People v. Berkowitz, 50 N.Y.2d 333, 345 (1980) (“it is the correctness of the result which is of pre-eminent concern in a criminal prosecution, for the major function of a criminal proceeding is the conviction of the guilty and the acquittal of the innocent, not the swift resolution of some private dispute between the prosecutor and the accused”). One exception to this presumption in favor of admissibility, under which relevant evidence may be excluded, is the doctrine of collateral estoppel. Simply put, 28 that doctrine precludes a jury from considering factual issues that were resolved in a party’s favor at an earlier trial. See, e.g., People v. Acevedo, 69 N.Y.2d 478, 484-85 (1987). Collateral estoppel satisfies the judicial interest in efficiency by preventing the unnecessary re-litigation of questions of fact that have already been answered, thereby conserving the time and resources of the court and the parties. People v. Aguilera, 82 N.Y.2d 23, 30 (1993). With that said, in the interest of fairness — and, indeed, to preserve the integrity of the truth-seeking process — it is a crucial requirement that the first jury’s verdict actually resolved the specific factual issue in dispute, i.e., that there exists an “identity of issues” between the two trials. This means that the party seeking to apply collateral estoppel carries the burden of identifying the particular issue on which he seeks to foreclose evidence, and then establishing that the jury in the first trial, by its verdict, “necessarily” resolved that issue in his favor. Acevedo, 69 N.Y.2d 487. The moving party also has the burden of demonstrating an identity of parties; a final and valid prior judgment; and a full and fair opportunity for the non-moving party to have litigated that issue in the prior determination. Aguilera, 82 N.Y.2d at 29- 30. Not surprisingly, the doctrine of collateral estoppel originated in, and predominantly remains, a rule of civil law. See People v. Plevy, 52 N.Y.2d 58, 64 (1980); see generally Montana v. United States, 440 U.S. 147, 153 (1979). That is because, unlike a criminal jury, a civil jury makes specific factual findings by rendering a verdict with interrogatories. See Duffy v. Vogel, 12 N.Y.3d 169, 173 (2009). Precise 29 and reliable conclusions can thus be drawn about how a civil jury resolved particular factual questions that were in dispute, and those findings can be assigned a preclusive effect at a later judicial proceeding. In contrast, a criminal jury renders a general verdict from which it is intrinsically difficult to glean factual findings. Additionally, this Court has found that different policy considerations govern the application of collateral estoppel to civil and criminal cases. Specifically, in a civil case, “[u]nderlying the collateral estoppel doctrine is a desire to conserve the time and resources of the court and the parties,” and “the primary societal interest is in the peaceful, expeditious and impartial settlement of disputes.” Aguilera, 82 N.Y.2d at 30. Given these policy goals, in such cases, this Court has indicated that it “might accept even an occasional erroneous result as preclusive to serve other significant societal interests.” In criminal cases, on the other hand, a “defendant’s liberty interest is at stake.” Id. Thus, “the preeminent concern is to reach the correct result,” and, accordingly, “the policies underlying issue preclusion are different.” Id. As a result, when a criminal defendant seeks to invoke collateral estoppel, the key and most vexing question is whether the particular factual issue sought to be precluded was previously litigated, and, by extension, whether the prior jury rendered a decision on that issue. This yields a “heavy” burden for a moving party that “severely circumscribes the availability of collateral estoppel in criminal prosecutions.” Acevedo, 69 N.Y.2d at 487; see Aguilera, 82 N.Y.2d at 30 (emphasizing that the prerequisites for collateral estoppel in criminal cases should not be applied 30 “mechanically” and that, because of the disparate policy considerations, “collateral estoppel is not as liberally applied in criminal prosecutions as in civil actions”); see also Berkowitz, 50 N.Y.2d at 344-45 (this Court is “less receptive to estoppel in criminal cases”). In those rare instances when a criminal defendant can satisfy this onerous showing — thereby demonstrating that an issue has been previously litigated and definitively resolved in his favor — the application of collateral estoppel furthers the judicial interests in efficiency and fairness, but without sacrificing the reliability of the jury’s truth-seeking function. See generally Bansbach v. Zinn, 1 N.Y.3d 1, 10 (2003); Plevy, 52 N.Y.2d at 64-65; Levy v. Association of the Bar of City of New York, 37 N.Y.2d 279, 281 (1975). As a practical matter, gauging whether a prior criminal jury conclusively resolved a particular factual issue requires a court to determine “what the first judgment decided and how that determination bears on the later judgment.” People v. Goodman, 69 N.Y.2d 32, 40 (1986). This necessitates a “practical, rational reading” of the “record” at the first trial in light of how the case was presented to the jury. Acevedo, 69 N.Y.2d at 487. The “record” encompasses not only the evidence, but also the pleadings, charge, and any “other relevant matter,” such as the parties’ arguments and the jury’s questions while deliberating; in other words, anything that helps ascertain whether the jury could have “grounded its decision on an issue other than that which the defendant seeks to foreclose from consideration.” Id. at 487-88. 31 Where, as in the instant case, a jury has rendered a mixed verdict in a multi- count indictment in which it convicted and acquitted the defendant of different charges relating to the same conduct, culling definitive factual findings is all the more problematic. That is because, by rendering a guilty verdict on at least one count, the jury has unanimously decided that every element of the crime on which it convicted the defendant was proven beyond a reasonable doubt. Unlike a situation in which a jury has completely acquitted a defendant, or has acquitted on some counts and hung on others, any attempt to attribute meaning to an acquittal in this context has to be counterbalanced by the import of the guilty verdict. Thus, collateral estoppel should apply only if a defendant can demonstrate that the verdict as a whole signals a certain factual finding, with due regard not only for any acquittals, but also for the significance of any accompanying convictions. See generally Yeager v. United States, 557 U.S. 110, 121-25 (2009); Goodman, 69 N.Y.2d at 39; see also Dunn v. United States, 284 U.S. 390, 393 (1932) (the “most that can be said” is that the “verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt”). In the end, if a mixed verdict is factually inconsistent, or if a defendant can show no more than that the basis for the verdict is “ambiguous,” he cannot establish that the jury resolved the factual matter underlying the acquittal in his favor, and cannot sustain the heavy burden necessary to establish collateral estoppel. Goodman, 32 69 N.Y.2d at 40. Indeed, as the United States Supreme Court has noted, an “inconsistency” in a split verdict “is reason, in itself, for not giving preclusive effect to the acquittals.” Standefer v. United States, 447 U.S. 10, 23 n.17 (1980). Finally, no discussion of the principles governing the doctrine of collateral estoppel can be complete without reference to this Court’s rulings in those other areas where lower courts have been faced with the task of attempting to discern what specific factual findings can legitimately be gleaned from a split criminal verdict of the type handed down by the first jury here. The most common form of analysis in this regard takes place when a defendant who has received a mixed verdict raises a claim of repugnancy. The issues that attend a possibly repugnant verdict arise when alternative theories of guilt, in the form of different counts but based on the same evidence, are submitted to a jury. As this Court has observed, the “problem often occurs when the jury convicts the defendant on one count and acquits on another, but the verdicts are illogical when viewed in light of the proof adduced.” People v. Tucker, 55 N.Y.2d 1, 6 (1981). In assessing whether a trial judge, faced with a seemingly illogical split verdict, should accept the verdict or resubmit the case to the jury for further deliberation, this Court has recognized the unique role played by a criminal jury through its rendering of a general verdict. That is, because a jury in a criminal prosecution does not announce specific factual findings, it is endowed with the implicit privilege to acquit a defendant for any number of reasons — notwithstanding the quantum or quality of 33 evidence establishing guilt. This includes the ability to return a not guilty verdict in exercising mercy, which is as an “accepted power of the jury.” People v. Rayam, 94 N.Y.2d 557, 561 (2000) (internal quotations omitted); see also United States v. Maybury, 274 F.2d 899, 902-03 (2d Cir. 1960). In deference to this jury power, a judge should refuse to accept a mixed verdict on repugnancy grounds only if the “acquittal on one crime as charged to the jury is conclusive as to a necessary element of the other crime, as charged, for which the guilty verdict is rendered.” Rayam, 94 N.Y.2d at 561 (quoting Tucker, supra) (internal quotations omitted). This rule, which ensures that a mixed verdict is upheld so long as the statutory elements of the conviction and acquittal counts are not legally contradictory, forecloses a trial court from parsing the record “in an attempt to divine the jury’s collective mental process of weighing the evidence,” and thus from intruding into the jury’s deliberative process. Tucker, 55 N.Y.2d at 4. A necessary corollary of this rule is that a mixed verdict that is legally consistent will not be disturbed even if it appears factually inconsistent and “there is no reasonable basis on the record to explain the discrepancy in results.” Rayam, 94 N.Y.2d at 561. Indeed, in Rayam, this Court noted that in Tucker, the case in which it first announced the legal principles that currently govern the doctrine of repugnancy, the Court had specifically rejected an approach that would have involved a search of the trial record for “some explanation for the apparent inconsistency,” in favor of the current rule recognizing that any illogical discrepancy in the mixed verdict may result 34 simply from the jury’s decision to “show lenity to the defendant.” Id. (quoting Tucker, supra). In this respect, although defendants are frequently rebuffed in their attempts to demonstrate that factually inconsistent verdicts are legally repugnant, see, e.g., People v. Muhammad, 17 N.Y.3d 532, 543-44 (2011), the principles that govern this area work to the distinct advantage of criminal defendants. By requiring that a trial judge accept a factually inconsistent and ostensibly illogical mixed verdict as long as it is not “legally impossible,” the law takes into account the possibility that the jury has not acted irrationally, but rather has exercised mercy. Rayam, 94 N.Y.2d at 561. That is to say, by refusing to speculate about a jury’s deliberative process and second-guess a factually irrational mixed verdict, the repugnancy doctrine safeguards any exercise of mercy to a defendant. United States v. Powell, 469 U.S. 57, 66 (1984). As this Court has stated, it is for this reason that the United States Supreme Court has ruled that “it is better to leave even a legally inconsistent jury verdict undisturbed,” since the “possibility that the inconsistent verdicts may favor criminal defendants as well as the Government militates against review of such convictions at the defendant’s behest.” Rayam, 94 N.Y.2d at 563 (citation omitted). The proposition that, when it comes to a split criminal jury verdict, there is always a possibility that an acquitted count stems from an exercise of mercy on the jury’s part, has been explicitly recognized in other situations in which appellate courts have attempted to discern specific factual findings from split verdicts. For example, 35 in People v. Horne, 97 N.Y.2d 404 (2002), the defendant was prosecuted for various crimes in relation to her commission of welfare fraud, including both theft offenses and filing false instruments. A jury returned a split verdict convicting the defendant of filing false instruments but acquitting her of the other crimes, and the court subsequently imposed restitution as part of her sentence. Id. at 408-10. On appeal, this Court rejected the defendant’s contention that the restitution was improper because, through the acquittals they had handed down, the jurors must have concluded that she did not wrongfully obtain any money from the State. Horne, 97 N.Y.2d at 413. The Court underscored that, as long as a mixed jury verdict was not legally repugnant, it was “imprudent to speculate concerning the factual determinations that underlay the verdict because what might appear to be an irrational verdict may actually constitute a jury’s permissible exercise of leniency.” Thus, it was unavailing for the defendant to invite the Court to engage in this type of “unfounded speculation into the jury’s deliberative process.” Id. The criminal jury’s accepted ability to impart mercy also plays in a role in how New York’s intermediate appellate courts exercise their exclusive power to conduct weight-of-the-evidence review of jury verdicts. It is not uncommon for a defendant to argue that his conviction for a crime is against the weight of the evidence because his acquittal on another count that involves the same proof is factually inconsistent with the guilty verdict. And, in assessing such claims, the Appellate Division is endowed with the unusual ability “to serve, in effect, as a second jury,” insofar as it 36 can review a trial record, independently assess the proof, substitute its own credibility determinations for those made by the jury in an appropriate case, determinate whether the verdict was factually correct, and acquit a defendant if unconvinced that the jury was justified in finding that guilt was proven beyond a reasonable doubt. People v. Delamota, 18 N.Y.3d 107, 116-17 (2011); People v. Romero, 7 N.Y.3d 633, 642-44 (2006). Nevertheless, because of the possibility that the jury was simply extending mercy or leniency to the defendant, the Appellate Divisions have been reluctant to exercise this unique power to find such convictions to be against the weight of the evidence simply because of a factual inconsistency present in a split verdict. See, e.g., People v. Yanayaco, 99 A.D.3d 416, 417 (1st Dep’t 2012); People v. Martinez, 63 A.D.3d 859, 859-60 (2d Dep’t 2009); People v. Mason, 101 A.D.3d 1659, 1660-61 (4th Dep’t 2012). And, this Court has held that the Appellate Divisions are entitled to consider the possibility of mercy when engaging in weight-of-the-evidence review, and are not required to: take into account the implied inconsistency in a mixed verdict, when a jury’s acquittals and convictions are based on the testimony of the same witness, and there is no reasonable basis in the record to explain the discrepancy in results Rayam, 94 N.Y.2d at 561. The common thread running through all of these cases is the reluctance of the appellate courts to attempt to divine specific factual findings by a jury that has 37 rendered a split verdict because of that jury’s ability to return an acquittal as an exercise of mercy or leniency to a defendant. Needless to say, this makes a defendant’s burden in proving the applicability of collateral estoppel all the more formidable. In short, because any acquittal may have legitimately been from an act of mercy on the part of the jurors — and have nothing whatsoever to do with a favorable finding on a disputed issue of fact — specific factual findings can very rarely be reliably adduced from a split verdict in the criminal context. B. Under the above-described principles, the Appellate Division clearly erred when it found that, under the doctrine of collateral estoppel, defendant’s initial acquittal on the first-degree robbery charge and conviction on the second-degree robbery charge signified that the jurors had specifically decided that his accomplice had not brandished a gun. Both of those counts stem from Horsey’s trial testimony, which was the only proof establishing the factual details of the robbery. Under that account, it was the cohort’s act of pointing a gun at Horsey that caused him to put down his son, walk outside the barbershop, and surrender his gold necklace to defendant. Indeed, apart from the gun, the People presented no alternative factual theory to establish the “force” element necessary to prove simple robbery. See People’s Summation at 519-21, 527-29, 544-45 (A325-27, A333-35, A350-51). Thus, as previously explained, the accomplice’s brandishing of the gun unquestionably 38 constituted the threatened force necessary to prove that defendant committed a robbery of any degree. That is so, notwithstanding that the second-degree robbery count upon which defendant had been convicted at the initial trial charged that an accomplice, who was “actually present” at the barbershop, “aided” him in stealing the chain. See Penal Law § 160.10(1). True, the evidence indicated that, at the time Horsey’s gold necklace was stolen, the accomplice performed actions other than brandishing a gun. Specifically, he handed a cell phone to Horsey, followed Horsey outside the shop, and then stood next to Horsey while defendant demanded his necklace. However, none of those actions was sufficient to satisfy the requirement that defendant and his cohort had committed a forcible taking. Again, as far as both the second- and first-degree robbery charges were concerned, the element of “force” was supplied only by the displaying of the gun by defendant’s accomplice. Put another way, once the element of “force” was established here by the display of the weapon, that defendant was “aided” by another was an aggravating factor that had to be proven in addition to the underlying use or threat of force required to sustain a second-degree robbery conviction. See People v. Miller, 87 N.Y.2d 211, 215 (1995). Of course, the same behavior on the part of an accomplice can supply both the element of “force” necessary to promote a charge of theft to a robbery, and the “aided” element that elevates a third-degree robbery into a second-degree crime. See e.g., People v. Read, 228 A.D.2d 304 (1st Dep’t), lv. denied, 88 N.Y.2d 1071 39 (1996) (the defendant and his cohorts formed a “human wall” around the victim). But, as happened here, the two elements can also be established by two separate courses of behavior, since the “aided” element that raised this forcible taking to a second-degree robbery only required proof that defendant was assisted by a cohort who was “in the immediate vicinity of the robbery or so positioned as to be capable of rendering immediate assistance” to defendant. People v. Hedgeman, 70 N.Y.2d 533, 535 (1987). Thus, the other actions performed by defendant’s henchman, such as handing a cell phone to Horsey, following Horsey outside the shop, and then standing next to Horsey while defendant demanded his necklace, were all sufficient to establish that defendant was “aided” by another person who was “actually present.” At the same time, though, nothing about the cohort’s behavior, except for his display of a gun, established the element of “force” that was essential, in the first instance, to elevate a mere theft into a robbery. Stated differently, the accessory’s presence and aid, standing alone, could not substitute for the requisite threat of force necessary to establish that a robbery of any type had occurred. Indeed, it is the “actual behavior” of those involved, “not their number or mere presence, that is determinative” of whether a robbery transpired, since “[f]orce of numbers alone is not a showing of physical force.” People v. Flynn, 123 Misc.2d 1021, 1023-24 (Sup. Ct. N.Y. Co. 1984). Again, because there was nothing about the words or actions of defendant and his cohort that amounted to an 40 immediate threat of force apart from the brandishing of the gun, there could be no other basis for the first jury to have handed down a guilty verdict on the second- degree robbery count.10 Given all of the above, the first jury’s split verdict on two robbery counts that, under the evidence presented, both required the brandishing of a gun, at worst created an ambiguity as far as any particular fact-finding was concerned. At the very least, however, the nature of that verdict completely belies the Appellate Division’s determination that the first jury had definitively resolved this factual issue in defendant’s favor so as to estop collaterally the People from introducing any evidence about the gun at a retrial of the second-degree robbery charge. Accordingly, it is vital that, in the exercise of its truth-seeking function, the retrial jury be permitted to consider evidence that was unquestionably relevant to the second-degree robbery charge before it, and that there simply was no valid reason to preclude. 10 Nor does it make a difference that, in instructing the jury on the elements of second-degree robbery, the trial court never explicitly limited the theory of force upon which the jury could convict defendant to the display of a gun. That is to say, the judge did not direct the jury that the threatened force necessary to sustain defendant’s guilt of second- degree robbery had to be the accomplice’s brandishing of the gun — which is why, as revisited later in the brief, this was only an evidentiary fact for the purpose of the retrial. The law rarely calls for a jury to base its verdict on a particular factual theory in deciding whether a defendant’s guilt has been proven beyond a reasonable doubt. See Schad v. Arizona, 501 U.S. 624, 632 (1991) (“there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict”). What constrains a jury in deciding guilt, rather, is the nature of the evidence presented. Here, as explained, the sole legal basis for convicting defendant of second-degree robbery was Horsey’s testimony that defendant’s accessory had displayed a gun. 41 C. Additionally, the Appellate Division’s decision on the application of the doctrine of collateral estoppel in this case is at complete odds with the result that would have followed had defendant posed his challenge in terms of the other forms of factual review discussed in subsection A. That is because, as previously explained, in a manner that inures exclusively to the benefit of criminal defendants, this Court has found that under those other types of factual review, a jury is permitted to show mercy and acquit on a particular count even if that is factually inconsistent with the conviction on another charge. For example, there is no question that if, at the end of the first trial, defendant had challenged his second-degree robbery conviction on repugnancy grounds, such a claim would have failed. After all, when viewed in the abstract, an acquittal of first- degree robbery for displaying a gun is not “conclusive” as to a “necessary element” of second-degree robbery for being aided by another person. See Muhammad, 17 N.Y.3d at 540-41. That is to say, inasmuch as there is an inconsistency in these verdicts, it is a factual inconsistency and not a legal one that is cognizable under Muhammad and this Court’s other cases. By the same token, on his appeal from the first trial, had defendant maintained that his conviction of second-degree robbery was against the weight of the evidence simply because it was inconsistent with his acquittal on first-degree robbery, there is no chance that such an argument would have been accepted by the Appellate Division — if anything, it surely would have been rejected 42 as an erroneous argument. See, e.g., Yanayaco, 99 A.D.3d at 417; Martinez, 63 A.D.3d 859-60; Mason, 101 A.D.3d at 1660-61. Nevertheless, in a summary fashion — indeed, without any explanation at all concerning the reason for its decision — the Appellate Division held that, based on the mixed verdict at the first trial, the jury must have made factual findings that defendant did not engage in the conduct underpinning those acquitted counts. That is, the court drew sweeping and conjectural conclusions about the basis for the jury’s mixed verdict, thereby elevating the acquittals into positive factual findings that defendant did not engage in the conduct underlying those counts. Suffice it to say, it simply cannot be correct that, although this Court forbids such speculation in order to safeguard a jury’s ability to show mercy — and so defendant’s argument would have been rejected out-of-hand if styled as a repugnancy or weight-of-the-evidence claims — the Appellate Division’s application of collateral estoppel entails precisely the opposite result. The unfair inconsistency created by the Appellate Division’s improper application of the doctrine of collateral estoppel below can be seen in the anomalous result of that decision. When a procedural defect occurs during a trial that is unrelated to the sufficiency or weight of the evidence, such as the jury-selection error at defendant’s original trial, the appellate process allows that defect to be identified and rectified. A defendant can then be retried without the error while also “protect[ing] the rights of the respondent.” CPL 470.20. Thus, once the Appellate 43 Division here identified the defect in defendant’s voir dire and ordered a new trial on this ground, the People clearly had the right to retry defendant with the same relevant evidence, and under the same theory, upon which the first jury had previously found him guilty of second-degree robbery. However, as a practical matter, the Appellate Division’s collateral estoppel ruling means that defendant cannot be retried at all. As previously explained, the testimony about the gun was the sole evidence of the “force” element essential to proving that a robbery of any degree had been committed, and that proof was the crux of the People’s theory at both trials in arguing defendant’s guilt to the jury. It is therefore difficult, if not impossible, to fathom how the People could retry defendant for the robbery without adducing the fact that his accomplice pointed a gun at Horsey. Likewise, it borders on the absurd to reach the conclusion, as the Appellate Division did, that Horsey could be ordered to testify about the robbery without referring to the gun — which comprised the very threat of violence that motivated Horsey to put down his son, exit the barbershop, and relinquish his property. Thus, for all intents and purposes, a serendipitous voir dire error has resulted in the dismissal of defendant’s indictment, not to mention the wholesale disregard for two jury findings that defendant was guilty of second-degree robbery. In brief, by convicting defendant of second-degree robbery, it is undisputable that the first jury believed that he was guilty of that crime beyond a reasonable doubt. Defendant’s acquittal of first-degree robbery, on the other hand, could have reflected 44 any number of factors, including the jury’s legitimate exercise of mercy.11 But, one thing is certain: no matter what motivated the first jury to reach a split verdict, under the circumstances present here, the verdict could not have indicated that the jurors believed that a robbery had occurred, but without the display of a gun. Accordingly, the Appellate Division’s decision — that the People were collaterally estopped at a retrial from presenting the very evidence that formed the basis for the second-degree robbery conviction — was undoubtedly erroneous. D. Notwithstanding the Appellate Division’s apparent determination to the contrary, this Court’s decision in People v. Acevedo, 69 N.Y.2d 478 (1987), does not mandate a different result. Acevedo involved a defendant who was tried and fully acquitted on charges that he committed a robbery outside a closed gas station. The defendant was subsequently tried for another robbery of a different victim committed near the gas station at approximately the same time. At that second trial, the prosecution introduced evidence about the defendant’s whereabouts in relation to the 11 Below, the trial court and the People sought to explain the first jury’s mixed verdict by suggesting that the evidence adduced from Robert Mitchell provided corroboration for certain portions of Horsey’s testimony and, thus, could account for the factual inconsistency of the verdict. The Appellate Division apparently misunderstood the People’s argument and found that their reasoning was misplaced because there was no statutory accomplice corroboration requirement in this case. However, the short answer is that, under the principles explained above, there is no need to speculate about exactly what it was that motivated the jurors when they acquitted defendant on the first-degree robbery charge beyond the simple possibility that the verdict reflected an exercise of mercy. 45 acquitted robbery as relevant to proving that he committed the subsequent crime. Id. at 481-83. On appeal, after he was convicted of the second robbery, the defendant cited the doctrine of collateral estoppel and challenged the admission of the evidence underlying the robbery charge on which he had been previously acquitted. See Acevedo, 69 N.Y.2d at 480-84. This Court agreed with the defendant and found that the acquittal on the first robbery indicated that that jury had reached a specific finding about the defendant’s whereabouts at the time of that crime, and thus that the People should have been precluded from using any of the underlying evidence when they tried defendant on the subsequent charge. 1. At the outset, even if this Court still considers Acevedo to be controlling law on this issue — and, as argued below, there are very good reasons for finding that it is not — that case is completely distinguishable from the one at hand. Specifically, the first jury in Acevedo did not find the defendant guilty of any of the counts relating to the robbery in question, and this Court viewed that prior complete acquittal as having “necessarily established” that the jury credited the defendant’s version of events — placing the defendant at a location other than the gas station at the time of the robberies — and thereby triggering collateral estoppel. See Acevedo, 69 N.Y.2d at 487-88 (“Thus, by acquitting defendant on both counts of the indictment, the jury 46 necessarily concluded that [the complaining witness’s] testimony was incredible, and that defendant was not present at the gas station with a knife-wielding companion”). By contrast, here, defendant was not totally acquitted at his first trial, inasmuch as the jury also convicted him of second-degree robbery. Hence, in the instant case, unlike in Acevedo, there is simply no conceivable basis upon which specific factual findings can be gleaned from the mixed verdict — that is, without engaging in guesswork into the jury’s deliberative process of the kind that has been unequivocally condemned by this Court. Beyond that, Acevedo is dissimilar based on the manner in which that case was tried and defended. As this Court underscored in Acevedo, the defendant had testified at the first trial and provided a competing factual narrative that directly contradicted the victim’s testimony. Namely, whereas the victim stated that the defendant had forced him into a car at the gas station and robbed him, the defendant claimed that, in fact, he had been in his car at a park smoking drugs, that the victim had voluntarily gotten into the defendant’s car, that the two men had smoked drugs together at the park, and that, after the defendant denied the victim’s sexual advances, the defendant forced the victim out of his car and drove away. See Acevedo, 69 N.Y.2d at 481-84. This Court further stressed that both parties had “posited the case as an all-or- nothing proposition,” and that, consequently, the jury had been “asked to determine a single question, of the ‘starkest simplicity’: did defendant, accompanied by a knife- 47 wielding companion, rob [the complaining witness] at the gas station, or did defendant reject his sexual proposition in LaSalle Park? Unlike many other criminal cases, this one was devoid of alternative possibilities.” Acevedo, 69 N.Y.2d at 487. Critically, and as already emphasized, the first jury in Acevedo — faced with these competing factual accounts — had completely acquitted the defendant of the robbery. This Court, in turn, appeared to view the jury’s resolution of that credibility contest through the lens of the “preponderance of the evidence” standard of proof that would apply in a civil trial. That is, the Court understood the jury’s apparent acceptance of the defendant’s version of events as having implied not only a finding that the defendant’s guilt was not proven beyond a reasonable doubt, but also an outright rejection of the victim’s account in favor of the factual narrative proffered by the defendant in his testimony. The case at hand is fundamentally different. Defendant did not testify or otherwise present evidence of a competing version of events, but rather argued that the victim’s credibility was simply too questionable to sustain the People’s burden of proof. In his opening statement, for instance, defense counsel argued that the case was “all about” testing Horsey’s account to determine the “truthfulness, the accuracy and the credibility of [his] accusations,” which counsel claimed were “unsupported” and “uncorroborated” (271-72 [A77-78]). Then, in summation, defense counsel relied on purported blows to Horsey’s credibility that he adduced on cross-examination to 48 portray him as a serial liar whose testimony was legally insufficient to prove defendant’s guilt beyond a reasonable doubt (487-95 [A293-301]). Therefore, based on the manner in which the case was tried and defended, other than the brandishing of the gun by defendant’s accessory, there was plainly no alternative theory of force upon which the jury could have grounded its guilty verdict on the second-degree robbery count. As Justice Stone recognized, unlike in Acevedo, it would be nonsensical in this context to infer that the jury, through its acquittals, made positive findings about factual issues underlying the acquitted counts — as opposed to merely having concluded that one or more elements of the crimes were not proven beyond a reasonable doubt. 2. In any event, the Acevedo decision was handed down by this Court in 1987, and subsequent developments have called into question its continued viability. An understanding of how the law in this area has developed begins with the recognition that, in Acevedo, this Court announced a new rule expanding the scope of collateral estoppel in criminal trials. Prior to Acevedo, an acquittal was assigned a preclusive effect at a later criminal trial only to exclude “ultimate facts,” i.e., facts directly necessary to prove an essential element of the crime at the subsequent trial. See Goodman, 69 N.Y.2d at 39-40. However, the Acevedo defendant’s whereabouts at the time and place of the acquitted robbery was not an “ultimate fact” for the purpose of the second robbery prosecution. Rather, this information was an “evidentiary 49 fact” — that is to say, proof that was relevant, but not legally essential, to establishing any element of the crime of robbery at the later trial. Citing three federal circuit court decisions, in Acevedo, this Court held for the first time that a prior jury acquittal could also preclude an evidentiary fact at a subsequent criminal trial. See Acevedo, 69 N.Y.2d at 485-87 (citing United States v. Keller, 624 F.2d 1154 [3d Cir. 1980]; United States v. Mespoulede, 597 F.2d 329 [2d Cir. 1979]; Wingate v. Wainwright, 464 F.2d 209 [5th Cir. 1972]). However, the legal underpinnings of the rule announced in Acevedo essentially no longer exist. Perhaps most significantly, in Dowling v. United States, 493 U.S. 342 (1990), the United States Supreme Court overruled the federal appellate court decisions upon which the Acevedo Court had based its holding, and found that a prior acquittal does not preclude “evidentiary facts” from being admitted as relevant evidence at a later criminal trial. In Dowling, the jury had completely acquitted the defendant of a home invasion, but the government subsequently prosecuted him successfully for a second crime, a bank robbery. At that latter trial, the prosecution had introduced evidence of the acquitted home invasion for the purpose of establishing the defendant’s identity as the bank robber, and to link him to another man who had participated in both crimes. See Dowling, 493 U.S. at 344-46. In assessing the defendant’s claim that collateral estoppel should have precluded evidence of the acquitted home invasion at the second trial, the Supreme Court recognized, initially, that a prior acquittal does not signify that a jury positively 50 found a defendant innocent of the conduct underlying the acquitted count. That is, although the first jury did not find the Dowling defendant guilty of the legal elements of the prior home invasion, which were the “ultimate facts,” the verdict was not an affirmative finding that the defendant had failed to engage in the conduct underlying those charges, and, hence, the proof on that score was composed of “evidentiary facts” that could be admitted at the second trial. See Dowling, 493 U.S. at 347-50. The Court analogized this situation to “other cases where we have held that an acquittal in a criminal case does not preclude the Government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof.” Dowling, 493 U.S. at 348-50. And, the Fifth Circuit Court of Appeals concisely and instructively summarized the import of Dowling as follows: [C]ollateral estoppel bars the introduction of evidence in a subsequent proceeding only if the facts ‘necessarily decided’ in the first trial were determined under the same burden of proof applicable in the subsequent trial. . . . A general verdict of acquittal ‘necessarily determines’ only that the evidence was insufficient to prove each element of the offense beyond a reasonable doubt; therefore, collateral estoppel bars relitigation only of facts that must be proven beyond a reasonable doubt. Because only ultimate facts must be established beyond a reasonable doubt, however, Dowling effectively limits the doctrine of collateral estoppel to cases in which the government seeks to relitigate an essential element of the offense 51 United States v. Brackett, 113 F.3d 1396, 1401 n.9 (5th Cir.1997);12 see United States v. Felix, 503 U.S. 378, 386-87 (1992) (“Underlying our approval of the [prior acquittal] evidence in Dowling is an endorsement of the basic, yet important, principle that the introduction of relevant evidence of particular misconduct in a case is not the same thing as prosecution for that conduct”). True, in the context of the evidence in this case, where the brandishing of the gun supplied the “force” element of both counts of robbery, as a practical matter, the People did have to prove that such action had occurred beyond a reasonable doubt. Nevertheless, as a general proposition, and as recognized by the doctrine of repugnancy, brandishing a gun is not an “ultimate fact” with respect to the crime of second-degree robbery — it is merely an “evidentiary fact” admitted to establish the “ultimate fact” of the element of “force.” To be sure, the display of what appeared to be a gun was a specific element of first-degree robbery at the original trial, distinct from the element of “force,” and therefore it embodied an “ultimate fact” as to that particular crime. But, under the principles enunciated in Dowling, defendant’s initial acquittal on the first-degree robbery count signified only that the jury was not 12 As previously noted in the text, this Court had relied on the Fifth Circuit’s decision in Wingate v. Wainright, 464 F.2d 209 (5th Cir. 1972), in holding that collateral estoppel applied to the relitigation of evidentiary facts. Acevedo, 69 N.Y.2d at 485-87. In Wright v. Whitley, 11 F.3d 542 (5th Cir. 1994), the Fifth Circuit first recognized that its understanding of the law had “not been accepted by the Supreme Court,” and held that Dowling “teaches” that collateral estoppel “only bars relitigation of a previously rejected factual allegation where that fact is an ultimate issue in the subsequent case.” Id. at 545-46. 52 convinced that the “ultimate facts” of that particular degree of robbery had been established beyond a reasonable doubt — it was not a specific determination that the People had failed to prove that defendant’s accomplice had brandished a firearm. Importantly, at the retrial, defendant did not again face a first-degree robbery charge, which required display of a gun as a specific element. Rather, at the retrial, the People had to establish the elements of second-degree robbery beyond a reasonable doubt, a crime that, as a matter of law, does not require the display of a gun as one of its specific elements. Since, with respect to the second-degree robbery charge, the brandishing of the gun is merely an “evidentiary fact” that can be used to prove the “ultimate fact” or element of “force,” it is the equivalent, as the Dowling Court noted, to the re-litigation of an issue when it is presented in a subsequent action governed by a lower standard of proof, and thus, the doctrine of collateral estoppel is inapplicable. Put another way, pursuant to the understanding of collateral estoppel set forth in Dowling — namely, that there is material difference between an ultimate issue and an evidentiary fact that merely helps to prove an ultimate issue — the display of the gun did not constitute an “essential element,” or ultimate fact, for the purpose of the second trial. See Brackett, 113 F.3d at 1401 n.9. And since the “evidentiary facts” underlying the acquitted charge did not have to be proven at the retrial under that same demanding burden of proof, again, there was no basis for invoking the doctrine of collateral estoppel. 53 Thus, applying the rule announced in Dowling would have led to a completely different result in Acevedo. The defendant’s acquittal of the first robbery would not have collaterally estopped the People from introducing evidence of the “evidentiary fact” that the defendant was present in the area of the crime when they tried him for the subsequent robbery. Using that same reasoning, here, the fact that the initial jury arrived at the ultimate conclusion that defendant was not guilty of first-degree robbery merely signified that the People had failed to establish the elements of that crime beyond a reasonable doubt, yet indicated no opinion, whatsoever, about the evidentiary question — governed by a drastically lower standard of proof — of whether defendant’s accomplice had displayed a gun. Hence, if evidence of the display of the gun was relevant at the retrial, the People could not be collaterally estopped from introducing it, even if there had been no factual inconsistency or split in the original verdict.13 This Court has not directly revisited Acevedo since the federal cases upon which it relied were overturned by the Supreme Court in Dowling. Nevertheless, since its decision in Acevedo, this Court has never used the doctrine of collateral 13 Likewise, pursuant to this line of reasoning, although defendant was acquitted on the two counts of attempted second-degree grand larceny in connection with his attempts to extort money from Horsey, this would not preclude the introduction of the evidence that underlay those charges. Since the timing and nature of the attempted extortions explained why Horsey reacted to the robbery in the way that he did, including his delay in reporting defendant’s conduct to the police, the evidence of the attempts to extort would be relevant at the retrial of the second-degree robbery charge, and not subject to the doctrine of collateral estoppel. 54 estoppel to preclude the People from introducing the evidence underlying acquitted counts in one case to prove the guilt of a defendant at another trial. Moreover, in cases subsequent to Acevedo, which concern the fact-finding implication of a jury verdict, this Court has accepted many of the same principles that caused the Supreme Court to reach the conclusion that it did in Dowling. For example, this Court has recognized that a jury’s decision to acquit a defendant of a criminal charge does not equate to an affirmative factual finding that the defendant is innocent of the conduct underlying that charge. Rather, an acquittal stands for the proposition, at most, that the jury was not convinced of the defendant’s guilt beyond a reasonable doubt. See Horne, 97 N.Y.2d at 413; Reed v. New York, 78 N.Y.2d 1, 7-8 (1991); People ex rel. Matthews v. New York State Div. of Parole, 58 N.Y.2d 196, 203 (1983) (“an acquittal on any basis which does not involve the defendant bearing part of the burden of proof merely stands for the proposition that the People have failed to meet the higher standard of proof required at the criminal proceeding”). Moreover, and as previously underscored, an acquittal can signal no more than that the jurors have decided to exercise their prerogative of extending a measure of mercy to the defendant. See Rayam, 94 N.Y.2d at 561. Additionally, the high courts of numerous other states have explicitly or implicitly embraced Dowling’s conclusion that collateral estoppel does not apply to evidentiary facts at a criminal trial. See, e.g., Sherman v. State, 931 S.W.2d 417, 425 (Ark. 1996); People v. Santamaria, 884 P.2d 81, 87 (Cal. 1994); Kinney v. People, 187 55 P.3d 548, 554 (Colo. 2008); State v. Gusman, 874 P.2d 1112, 1116 (Idaho 1994); People v. Colon, 866 N.E.2d 207, 222-24 (Ill. 2007); State v. Sharkey, 574 N.W.2d 6, 9 (Iowa 1997); Hampton v. Commonwealth, 133 S.W.3d 438, 442 (Ky. 2004); State v. Cotton, 778 So.2d 569, 571, 574-78 (La. 2001); State v. Dean, 589 A.2d 929, 932-33 (Me. 1991); Odum v. State, 989 A.2d 232, 238-41 (Md. 2010); State v. Glenn, 9 A.D.3d 161, 171 (N.H. 2010); York v. State, 342 S.W.3d 528, 539, 552 (Tex. Crim. App. 2011); State v. Eggleston, 187 P.3d 233, 238-39 (Wash. 2008); Eatherton v. State, 810 P.2d 93, 99 (Wyo. 1991); but see, e.g., State v. Aparo, 614 A.2d 401, 413 n. 9 (Conn. 1992); Commonwealth v. Holder, 805 A.2d 499, 502, 502 ns.3, 4 (Pa. 2002). Thus, even though, for the reasons already explained, this case is readily distinguishable from the situation that confronted this Court in Acevedo — and, accordingly, that the Appellate Division’s decision was erroneous even under Acevedo’s precepts — there is clearly a strong basis for this Court to overturn that decision and announce a new rule of law. * * * In short, the Appellate Division’s application of the doctrine of collateral estoppel here was based on a misreading of this Court’s precedents and is plainly erroneous. Because, unlike in Acevedo, where there was a total acquittal on the charges in question, the first jury in this case rendered a split verdict with respect to two robbery counts that were both predicated on the display of a gun to establish the “force” element. The acquittal on the first-degree count — which very well might 56 have resulted from an exercise of mercy on the part of the jurors — therefore cannot be interpreted as a specific factual finding of “no gun” that is binding in defendant’s retrial for his second-degree robbery conviction. Indeed, as the United States Supreme Court has noted, an “inconsistency” in a split verdict “is reason, in itself, for not giving preclusive effect to the acquittals.” Standefer, 447 U.S. at 23 n.17. Moreover, this latter view concerning the application of collateral estoppel is consistent with the principles handed down by this Court with respect to other forms of factual review of split verdicts, such as the doctrine of repugnancy, and will prevent the unfair and anomalous outcome that has resulted from the Appellate Division’s decision in this case. Alternatively, the legal underpinnings of this Court’s decision in Acevedo, finding that the doctrine of collateral estoppel can be applied in a criminal case to evidentiary facts, and not just to ultimate factual determinations, have clearly been eroded. Thus, even in the absence of a split verdict, the rendering of an acquittal by a criminal jury should be preclusive only as to the ultimate outcome, and not bar the admission of evidence relating to the underlying conduct if it is relevant at another trial. Under either scenario, this Court should reject the Appellate Division’s decision setting aside defendant’s conviction of second-degree robbery at the retrial, which derived from the admission of relevant evidence from the first trial that the Appellate Division found subject to the doctrine of collateral estoppel. Accordingly, 57 this Court should reverse the order of the Appellate Division directing yet a third trial in this case, and remand the matter for consideration of the other appellate challenges that defendant posed to his second-degree robbery conviction, but that the Appellate Division had no occasion to reach. CONCLUSION The order of the Appellate Division should be reversed and the case remanded to that court. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: TIMOTHY C. STONE Assistant District Attorney SUSAN GLINER TIMOTHY C. STONE Assistant District Attorneys Of Counsel PRINTING SPECIFICATIONS STATEMENT The word count for this brief is 14625, excluding the Table of Contents and Table of Authorities. The word processing system used to prepare this brief and to calculate the word count was Microsoft Word 2010. The brief is printed in Garamond, a serifed, proportionally spaced typeface. The type size is 14 points in the text and headings, and 13 points in the footnotes.