The People of the State of New York, Appellant,v.Donald O'Toole, Respondent.BriefN.Y.November 14, 2013To be argued by KATHERYNEM. MARTONE (20 minutes) COURT OF ApPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, - against - DONALD O'TOOLE, Defendant-Respondent. BRIEF FOR DEFENDANT-RESPONDENT STEVEN BANKS KATHERYNE M. MARTONE Attorneys for Defendant- Respondent The Legal Aid Society Criminal Appeals Bureau 199 Water Street - 5th Floor New York, New York 10038 Telephone (212) 577-7993 Facsimile (212) 577-3523 kmartone@legal-aid.org May 6, 2013 TABLE OF CONTENTS PRELIMINARY STATEMENT.. 1 QUESTION PRESENTED. . 2 SUMMARY OF ARGUMENT.. 2 STATEMENT OF FACTS. 5 First Trial. 5 Opening Statements. 5 Prosecution's Case. 5 Alleged Incidents. 6 Police Investigation.. 9 Evidence of Alleged Admission to Mitchell. 11 Summations. 12 Defense. 12 Prosecution. 14 Jury Instructions.. 14 Deliberations and Verdict.. 15 Reversal of First Conviction and Second Trial. 16 Opening Statements. 16 Prosecution's Case. 17 Summations. 17 Defense. 17 Prosecution. 18 Second Appeal. 19 ARGUMENT. . . . . . 21 l POINT THE APPELLATE DIVISION CORRECTLY DETERMINED THAT, IN LIGHT OF THE FIRST JURY'S ACQUITTALS OF ALL COUNTS INVOLVING A GUN AND EXTORTION ATTEMPTS, THE TRIAL COURT ERRED IN PERMITTING EVIDENCE OF THE ALLEGED DISPLAY OF A FIREARM DURING THE ROBBERY AND DEMANDS FOR PROTECTION MONEY. U.S. CONST., AMENDS. V, XIV; N.Y. CONST., Art. I, §12.. . . . . 21 Existing Law Requires Affirmance.. 23 Despite the District Attorney's View, Dowling v. United States, 493 U.S. 342 (1990), Does Not Compel the Overruling of Acevedo. 40 CONCLUSION. . . ii 48 TABLE OF AUTHORITIES CASES Ashe v. Swenson, 397 U.S. 436 (1970) . Dowling v. United States, 493 U.S. 342 (1990) .. Huddleston v. United States, 485 U.S. 681 (1988). Matter of Simonson v. Cahn, 27 N.Y.2d 1 (1970). People v. Acevedo, 69 N.Y.2d 478 (1987) ... People v. Bennett, 219 A.D.2d 570 (l,t Dept. 1995). People v. Berkowitz, 50 N.Y.2d 333 (1980) .. People v. Goodman, 69 N.Y.2d 32 (1986) .. People v . Lopez, 161 A.D.2d 670 (2d Dept. 1990) .. People v. Mera11a, 228 A.D.2d 160 (1 st Dept. 1996). passim passim 43 40 passim 35 25, 27 passim 36 40 People v. O'Toole, 96 A.D.3d 435 (l,t Dept. 2012) . 1, 3, 20, 22, 45, 46 People v. O'Toole, 39 A.D.3d 419 (l,t Dept. 2007). People v. P1evy, 52 N.Y.2d 58 (1980). People v. Spencer, 255 A.D.2d 167 (1 s t Dept. 1998) . People v. Tucker, 55 N. Y. 2d 1 (1981) . People v. Woods, 41 N. Y.2d 279 (1977) .. People v. Yanayaco, 99 A.D.3d 416 (l,t Dept. 2012) . People v. Yarrell, 75 N. Y.2d 828 (1990) . Schiro v , Farley, 510 U.S. 222 (1994) ... Sealfon v. United States, 332 U.S. 575 (1948) .. State v. Cotton, 778 So.2d 569 (La. 2001) .. State v. Dean, 589 A.2d 929 (Me. 1991). 16 4, 39 37 26 35, 36, 37, 38 26 26 47 24 46 47 iii State v. Gusman, 874 P.2d 1112 (Idaho 1994) .. 47 United States v. Felix, 503 U.S. 376 (1992) .. 44 United States v. Kramer, 289 F.2d 909 (2d Cir. 1961) . 23 United States v. Mespoulede, 597 F.2d 329 (2d Cir. 1979) . 39 United States v. Oppenheimer, 242 U.S. 85 (1916) . . 23 Yeaqer v. United States, 557 U.S. 110 (2009) .. . . . . . . . . . .. 2, 23, 25, 27, 29, 47 CONSTITUTIONS New York Constitution, Article I, §12 .. U.S. Constitution, Amendment V.. U.S. Constitution, Amendment XIV. iv 21 21 21 COURT OF APPEALS STATE OF NEW YORK ------~------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- DONALD O'TOOLE, Defendant-Respondent. -------------------------------------x PRELIMINARY STATEMENT Mr. O'Toole submits this brief in response to the District Attorney's appeal, taken by permission of the Honorable Eugene F. Pigott, Jr., dated November 20, 2012 (Al), 1 from an order of the Appellate Division, First Department, entered June 7, 2012, reversing the judgment of the Supreme Court, New York County, convicting Mr. O'Toole of second-degree robbery and sentencing him, as a second violent felony offender,' to a determinate prison term of fifteen years to be followed by five years' post-release supervision (Lewis Bart Stone, J.), and remanding the matter for a new trial. See People v. O'Toole, 96 A.D.3d 435 (l't Dept. 2012). 'parenthetical references preceded by ~A" are to pages of the appendix; numbers in parentheses preceded by ~lTR" refer to the transcript pages of Mr. O'Toole's first trial; and those preceded by ~SA" refer to pages of the supplemental appendix and the second trial transcript of which it is comprised. 'The District Attorney incorrectly states that Mr. O'Toole was sentenced as a ~persistent violent felony offender." See District Attorney's Brief at 1. 1 Mr. O'Toole is in custody pursuant to the judgment. QUESTION PRESENTED Whether the Appellate Division correctly determined that, in light of the first jury's acquittals of all counts involving a gun and extortion attempts, the trial court erred in permitting evidence of the alleged display of a firearm during the robbery and demands for protection money. U. S. Const., Amends. V, XIV; N.Y. Const., Art. I, §12. SUMMARY OF ARGUMENT Once a jury has necessarily resolved a factual issue in the defendant's favor through an acquittal, the State is not free to try to prove those facts again before successive juries. See People v. Acevedo, 69 N.Y.2d 478 (1987); People v. Goodman, 69 N.Y.2d 32 (1986); see also Ashe v , Swenson, 397 U.S. 436 (1970). This important right, long established in New York, is often referred to as ~collateral estoppel," but ~[c]urrently, the more descriptive term 'issue preclusion' is often used in lieu of 'collateral estoppel.'" Yeager v. United States, 557 U.S. 110, 120 (2009). While the federal constitutional right to issue preclusion is said to be limited to ~ultimate facts," ~ District Attorney's Brief at 48-55, this Court has already flatly rejected this limitation. People v. Acevedo, 69 N.Y.2d at 486. As this Court has explained, New York's right to issue preclusion or collateral estoppel, as set forth in Acevedo, is based on a combination of an ~expansive" reading of Ashe, New York law ~extending double jeopardy 2 protection well beyond constitutional requirements," "generally recognized concepts of fairness," and this Court's "stated view that common-law collateral estoppel is generally applicable to criminal proceedings." See People v. Goodman, 69 N.Y.2d at 40 (citations omitted); see also People v. Acevedo, supra. Thus, in defining this right, New York does not merely follow federal law; the New York right "has a broader foundation and scope, resting on independent common-law considerations." People v. Acevedo, 69 N.Y.2d at 485. Applying these principles in this case, the Appellate Division properly determined that the first jury's verdict acquitting Mr. O'Toole of robbery by displaying a firearm and attempted second- degree grand larceny, but convicting him of robbery without a gun, prohibited the prosecution, on this case'S facts, from seeking to prove the existence of a gun and the extortion attempts again. People v. O'Toole, 96 A.D.3d 435, 436 (1" Dept. 2012). The District Attorney urges that the Appellate Division misapplied Acevedo and related cases and, if it did not, Acevedo should be overruled. See District Attorney's Brief at 37-55. Though the District Attorney purports to set forth "The Relevant Record," see District Attorney's Brief at 24-27, his first argument does not even mention the key evidence that clearly formed the rational basis of the first jury's verdict - the testimony of Corrections Officer Mitchell - recounting an admission from Mr. O'Toole that he robbed Mr. Horsey that made no mention of a gun or 3 attempted extortion. See District Attorney's Brief at 24-27, 37- 48.. As the District Attorney himself urged in the Appellate Division: ~Because Mitchell's account independently corroborated Horsey's testimony that defendant robbed him of the chain - but not Horsey's testimony about the accomplice's gun or the attempted extortions the mixed verdict had a demonstrably rational explanation." District Attorney's Appellate Division Brief at 30 (emphasis in original) . As to the District Attorney's alternative argument that Acevedo should be overruled, see District Attorney's Brief at 48- 55, it founders at the outset from the District Attorney's supposition that Acevedo is merely a restatement of federal law. The District Attorney simply fails to acknowledge that Acevedo is grounded in New York's longstanding common law and statutory traditions of providing greater double jeopardy protections than the United States Constitution provides. See,~, People v. Plevy, 52 N.Y.2d 58 (1980) Thus, Acevedo's incongruence with federal law is no reason to overrule it. Accordingly, the order of the Appellate Division should be affirmed. 4 STATEMENT OF FACTS First Trial Opening Statements The trial prosecutor opened the first trial by maintaining: "Fear, violence, and intimidation. These are the elements that this case is about. That's plain and simple what it boils down to. Fear, violence, and intimidation" (lTR261-262; A66-67). Counsel, in turn, urged that "what the trial is all about" is "to determine the truthfulness, the accuracy, and the credibility of" Mr. Horsey's "unsupported, uncorroborated" "accusations" (lTR272; A77) Prosecution's Case In February 1998, Ralph Wray, the manager of the RR Barbershop, located at 1569 Lexington Avenue in Manhattan, hired Phillip Horsey" [j]ust to cut hair" (lTR274; A79).3 Horsey paid $125 each week to "rent" his chair in the shop (lTR283; A88). In addition to Wray and Horsey, there were two barbers (lTR274-275; A79-80) . The owners, Ronald Jones and Elston Streeter, occasionally stopped by the shop to "make sure everything was all right" (lTR275-276; A80-81). In the Fall of 1998, Mr. Wray's use of crack, cocaine, and alcohol impaired his ability to work, and Mr. Horsey assumed Wray's managerial responsibilities (lTR27 6-27 9; A81-84). About three 3Mr. Wray was also known as "Country" (lTR274; A79). 5 years later, Horsey renewed the lease in his and Wray's names (ITR280, ITR371; A85, AI77). At that time, $2300 was owed on the prior lease, and Horsey entered into an agreement with the management company to pay the arrears (lTR284-287; A89-92). In March 2001, Mr. Horsey was arrested and subsequently convicted of possessing a .380 caliber semi-automatic handgun (lTR325-326; A130-131). At the time of trial, he had not yet completed the sentence of five years' probation imposed upon his conviction (lTR359-361; A165-167). Although Mr. Horsey worked at the barbershop for about seven years, he never filed an income tax return (lTR273-274, 1TR346-347; A78-79, A152-153). Alleged Incidents On September 15, 2004, at 11:30 a.m., Mr. Horsey was cutting Mr. 0' Toole's hair while "about two or three" other customers waited (lTR288, 1TR349; A93, A155). Horsey had known Mr. O'Toole for about five years "from the neighborhood" and called him "Pete" (lTR288-289; A93-94). The customers were "regulars": "Mike" still visited the shop "every two weeks" (lTR349; AI55). Mr. O'Toole asked Horsey if Ronald Jones or Wray was still involved in the business (lTR291-292; A96-97). According to Mr. Horsey, Mr. O'Toole said that he wanted "money from the shop" and "to make sure that . have nothing to do anything to do with those people that he didn't like didn't wi th the shop." Horsey denied "hav [ing] them." Mr. O'Toole allegedly replied, "I'm 6 just checking, you know, because I was going to come down here. I was going to close the shop" (lTR293-295; A98-100). After Mr. O'Toole's haircut, they continued their conversation outside. Mr. O'Toole repeated that he felt Horsey had an ftaffiliation with" the upeople that he don't like." He reminded Mr. Horsey that, two years earlier, he had offered to help pay the arrears on the rent and said, uI'll be back to talk to you" (lTR296, 1TR321-323; A101, A127-128).' That same day, at about 12:30 p.m., as Mr. Horsey was cutting a customer's hair and holding his eighteen-month-old son, a ftbig black guy walked into the barbershop and handed [Mr. Horsey] a cell phone, said 'BG wants to talk to you.'" Over the phone, Mr. Horsey heard Mr. O'Toole say, ftyo, put your son down; give my man the jewels." The big man supposedly "bad a gun in [Mr. Horsey's] stomach." Mr. O'Toole appeared in the doorway of the shop. Mr. Horsey handed his son to his ufriend" UElijah" and, with the big man following him, walked outside (lTR297-302, 1TR400; A102-107, A206) . Mr. Horsey asserted that, in addition to Elijah, there were a ftcouple of customers" in the store uwhen the big guy came and pointed the gun at [his] stomach~: ftThere's a young kid that I do 'According to Mr. Horsey, Mr. O'Toole offered him $2300 in exchange for weekly payments of $250. Horsey claimed that was Mr. O'Toole' s "wa y of buying into the shop," and he had refused (lTR321-322, 1TR388; A126-127, A194) 7 know his name and there was one of my customers. All I know him as is 'A.'" "A" visits the barbershop "every three weeks to a month." Mr. Horsey had known Elijah for three years and last saw him two days before Horsey testified (1 TR34 8, 1TR350-353, 1TR356; A154, A156-l59, A162). According to Mr. Horsey, outside the shop, Mr. O'Toole stood on his right side; the big man, with the gun now in his pocket, was on Mr. Horsey's left (lTR302-303, lTR400-40l; Al07-l08, A206-207). Mr. 0' Toole allegedly demanded Mr. Horsey's chain "right now," stating: "I got to eat off of the shop," and "I'll be back with a proposition" (lTR303, lTR305; Al08, AllO) Mr. Horsey's son ran out of the shop. Concerned for his son's safety, Horsey gave his chain to Mr. O'Toole (lTR304; Al09). On October 5, 2004, at about 3:00 p.m., a sports utility vehicle, with Mr. O'Toole, a driver, and a "couple" of other people inside, pulled up and parked outside the barbershop. A gray Buick also parked in front, and three or four men "got out, just looked at the barbershop." Mr. Horsey asked his customers to leave (lTR307-3l0; Al12-ll5) 5 Mr. O'Toole allegedly demanded "at least, $250 or $300 a week for the shop to stay open" or he would "burn [it] down." Mr. "Mr. Horsey had about seven customers, who were "people in the neighborhood." He could not "recall actually who was there" because it had "been so long." At the time, he did not provide their names to the police or District Attorney (lTR308, lTR357-358; A1l3, A163-l64). 8 Horsey's only al ternative was to "turn the shop over to" Mr. 0' Toole, who said that he would return on Friday, October 8 (ITR311-315; A1l6-120). Police Investigation On October 4, on the advice of his friend Corrections Officer Robert Mitchell, Mr. Horsey filed a complaint at the 23'd precinct house so that he could make an insurance claim for his jewelry (Horsey: ITR317-320, 1TR381-383; A122-125, A187-189; Mitchell: 1TR409-41 0; A215-216) 6 Mr. Horsey explained that he delayed reporting the incident because he was "waiting for [Officer] Mitchell to try to help [him] diffuse (sic) the situation" (Horsey: 1TR320; A125; see 1TR384-385; A190-191).' Mr. Horsey did not tell the police that Mr. O'Toole had "anything to do with" the alleged robbery, and claimed that he "lied to the police" and "gave some description of somebody with a hoody" (Horsey: 1TR344-345; A150- 151) Police Detectives Thomas Fischer and Julio Moreno were assigned to investigate Horsey's complaint (Fischer: 1TR442-443; A247-248; Moreno: 1TR466-467; A272-273). The detectives were 6Mi tchell was Ronald Jones' cousin. When Jones went to prison, Horsey consulted Mitchell about managing the shop (Horsey: 1TR369, 1TR378-379, 1TR391; A175, A184-185, A197; Mitchell: 1TR412, 1TR414, 1TR416-418, 1TR438-439; A218, A220, A222-224, A243-244). 'Officer Mitchell told Mr. Horsey that he would talk to Mr. O'Toole "to try to resolve the situation" (Mitchell: 1TR418-420; A224-226). "[T]hat never happened because [Mitchell] never ran into" Mr. O'Toole (Mitchell: 1TR422; A228). 9 "[m]aybe a little bit" "to be honest" "concerned" that Mr. Horsey was "making this up just for an insurance claim" (Fischer: ITR459; A264) .' Detective Fischer did not make out a complaint report (Fischer: ITR452-453, ITR457-458; A257-258, A262-263). The evening of October 5, Mr. Horsey again visited the 23~ precinct house and spoke with Detectives Fischer and Moreno (Horsey: ITR315-316; A120-121; Fischer: ITR442-443; A247-248; see Moreno: ITR466-469; A272-275). Horsey indicated that "Pete," whose nickname was "Little Pete," had robbed him and that he lived in the Carver Housing Projects (Fischer: ITR443-444; A248-249; Moreno: ITR467-468; A273-274). The detectives knew that Mr. O'Toole used that nickname (Fischer: ITR444; A249; Moreno: ITR468; A274). This time, Detective Fisher made out a complaint report. Nonetheless, Detective Fischer decided not to include Mr. O'Toole's name until he completed a "further investigation" (Fischer: ITR453-456; A258- 261) Detective Fischer recalled Mr. Horsey stating, at variance with his testimony, that, on September 15, it was "JT" and not "BG," who wanted to speak with him on the cell phone, and that, outside the barber shop, Mr. O'Toole had a gun in his waistband and the second man held a gun to his stomach (Fischer: 1TR460-4 62; A265-268) . According to Detective Moreno, Horsey also told the 'In fact, Mr. Horsey eventually received $3900 from his insurance company (Horsey: ITR345; A151). 10 detectives, at variance with his eventual testimony, that he gave his son to a "worker" during the September 15 incident (Moreno: ITR476; A282) 9 The police installed a camera and microphone inside the barbershop, but Mr. O'Toole did not return, as Mr. Horsey claimed that he had threatened (Horsey: ITR324; A129; Fischer: ITR449-450; A254-255). On October 14, the police arrested Mr. O'Toole when he visited the station house to report that he was "being harassed" in connection with an "unrelated matter" (Fischer: ITR45l; A256; see Moreno: ITR469-470; A275-276). Evidence of Alleged Admission to Mitchell In October 2004, Mr. 0' Toole allegedly telephoned Officer Mitchell "[a]bout the situation that happened in the barbershop about [Horsey's] chain being taken from him." According to Officer Mitchell, Mr. O'Toole wanted him to "try to get [Horsey] to drop the charges." Mr. O'Toole allegedly offered to give Horsey "some money so he wouldn't have to testify" (lTR427-429; A233-235) .'0 9Mr. Horsey denied telling the police that: the big man took the gun out of his pocket while they were outside; he saw a gun in Mr. O'Toole's waistband; he handed his son to a coworker; and the big man said that "JT" wanted to talk to him IlTR361-363, ITR401- 402; A167-169, A207-208). 10Mr. Horsey claimed that, after Mr. 0' Toole's arrest, he offered Horsey "some money" or to return the chain and to "leave [Mr. Horsey] and the shop alone" (lTR329-331, ITR395-397; A134-136, A201-203) . 11 Summations Defense Counsel argued that Mr. Horsey's uncorroborated testimony was insufficiently credible to establish Mr. O'Toole's guilt. Counsel emphasized that the jury's verdict was "as important as a decision such as buying" a ~new house," "new car" or "deciding on a course of medical treatment" (ITR487-488; A293-294). "But imagine, if you will, when you have to make a decision like that, you're forced to rely on the advice and information provided to you by a single individual." "No building inspection," "[n]o consumer reports," "no second opinion" (ITR488-489; A294-295). Counsel asked the jury to consider further that, while discussing this important decision with the real estate agent, auto seller, or doctor, he "shows you that he carries a loaded gun with him" and "tells you that he hasn't filed a tax return or paid any taxes for the past seven years." "And, finally, as you're continuing this discussion," he "says 'I have to cut this meeting short because I have to go see my probation officer. Yes; I'm a convicted felon and I have to report to a probation officer.' Now, if those factors would . raise doubts in your mind . then those same doubts apply to Phillip Horsey in this case" (ITR489- 491; A295-297). Counsel pointed out that, although the alleged crimes "occurred in front of many people," including Horsey's friend, 12 Horsey was the "only [ ] person [who] came in and testified about what happened" (lTR496, lTR502-503; A302; A30B-309). Moreover, Horsey "lies to the police." "He has no compunction about walking into a police precinct and making a false report about what happened to him" (1 TR496; A302) Counsel counted six inconsistencies between Horsey's testimony and what he told the police, including two relating to the alleged display of a firearm (lTR499-503; A305-309). Apparently, the police detectives did not "believe" Horsey's allegations. Initially, they did not "even take a report." When the police finally did, they did not include Mr. O'Toole's name or make any attempt to arrest him: "So [Horsey's] word is not enough to justify an arrest, but the District Attorney wants you to take his word to justify a conviction in a court of law at trial" (1 TR503-506; A30 9-312) . In fact, Mr. O'Toole was only arrested when he voluntarily came into the precinct house to make a complaint in an unrelated matter. "And so, [Mr. 0' Toole] kind of falls right into their laps." "That's not the way it works when a person is genuinely suspected of committing a violent crime" (lTR507-50B; A313-3l4). Counsel reminded the jury of the trial prosecutor's assertion in her opening statement that "this case is about" "'fear, violence, and intimidation.'" "Well, I think it's been shown that what this case is really about is lies, contradiction, and just 13 plain nonsense. And that's the quality of the evidence that's been presented here" (lTR5l4-5l5; A320-32l). Prosecution The trial prosecutor argued that Mr. Horsey is ~being truthful and he's being honest. And on that stand he was adamant" (lTR522; A328) . She emphasized the threat of force: Horsey ~tried not to show fear," but ~his actions spoke louder than his words." ~His son was turned over to someone else. 'Please keep my son here. Hold onto my son while I go outside 334). ~What happened? The victim's r rr son (ITR527-528; A333- runs out of the Listen to the barbershop, the same son the victim was trying to keep out of harm's way. What does the victim tell you the minute his son comes out? He took the jewels off and gave it to [Mr. O'Toole] 'Just go. I want my son out of harm's way.' victim's words" (lTR529; A335). Jury Instructions The trial court instructed the jury that a "reasonable doubt must arise either from the nature and quality of the evidence in the case or from the lack or insufficiency of the evidence in the case" (lTR560; A366). The trial court defined first-degree robbery as having two elements: That Mr. O'Toole ~forcibly stole property from Phillip Horsey," and "during the course of the commission of such forcible stealing, [Mr. O'Toole] or another participant in the crime displayed what appeared to be a pistol, revolver, or other 14 firearm" (lTR565; A371). As to second-degree robbery, the prosecution was required to prove that Mr. O'Toole "forcibly stole property from Phillip Horsey. And, two, that [he] was aided by another person actually present" (lTR568-569; A374-375). The trial court further instructed that a "person forcibly steals property" "when, in the course of committing a larceny, such person uses or (lTR564,"threatens the immediate use of physical force lTR568; A370, A374). Deliberations and Verdict On the first day of deliberations, the jury requested, "[Officer] Mitchell's testimony read back and Horsey's testimony of who was on the lease at present" (lTR584; A390). On the second day of deliberations, the jury requested the "definition of reasonable doubt and credible witness" and asked, "Are we permitted to draw inferences from the fact that despite the fact that there are eyewitnesses to the alleged crime the DA chose not to call them as a corroborating witness?" (lTR588-590; A394-396) The trial court responded to the jury's question, in part, by repeating that a "reasonable doubt must arise because of the nature and quality of the evidence in the case or from the lack or insufficiency of the evidence in the case" (lTR600; A406). The jury's next note indicated that it had reached a verdict (lTR608; A4l4). The jury acquitted Mr. O'Toole of robbery in the first degree and both counts of attempted grand larceny in the 15 second degree but convicted him of robbery in the second degree (lTR609-612; A415-418). Reversal of First Conviction and Second Trial The Appellate Division reversed Mr. O'Toole's conviction based upon the trial court's erroneous denial of his challenge for cause during jury selection. People v. O'Toole, 39 A.D.3d 419 (1't Dept. 2007). Upon remand for further proceedings, counsel unsuccessfully sought to preclude evidence the Jury necessarily rejected in acquitting Mr. O'Toole of robbery in the first degree and attempted grand larceny, specifically that a firearm was displayed during the alleged robbery and that Mr. O'Toole attempted to extort money from Mr. Horsey (see Transcript, dated December 6, 2007, at 8-10; A37- 39). The trial court denied the application, concluding that "this case is not within the Acevedo line of cases" (Transcript, dated December 6, 2007, at 16; A45). Opening Statements As at the first trial, the trial prosecutor maintained: "Fear, violence and intimidation. That's what this case is about." The trial prosecutor emphasized that, on September 15, 2004, Mr. O'Toole was aided by an accomplice, who was armed with a "gun," and that Mr. O'Toole demanded Mr. Horsey's jewelry "as part of that same conversation" in which he demanded a weekly "portion of the [barbershop's] proceeds" (SA14-15). In turn, counsel again urged that no evidence would corroborate Mr. Horsey's "concocted" 16 testimony (SA24-27). Prosecution's Case The prosecution elicited the same basic testimony at the second trial as it did at the first (see SA27-209). Mr. Horsey previously described Mr. O'Toole's alleged accomplice during the September 15, 2004, robbery as a "big black guy" (lTR297; Al02). At the second trial, Mr. Horsey more specifically described him as "dark-skinned, husky" and over six feet tall (SA53). Mr. Horsey also provided the additional testimony that, when Mr. O'Toole allegedly demanded his chain he said, "[T]hink about your son, you got your son with you" (SA57-59). Outside the barbershop, Mr. 0' Toole repeated his demand, again telling Mr. Horsey to "think about [his] son" (SA59-6l) Just then, Mr. Horsey's son ran out of the shop, and Mr. Horsey "pulled [him] close." Because Mr. Horsey "didn't want [his] son to get hurt," and he "didn't want to get hurt in front of [his] son either," he handed Mr. O'Toole his chain (SA6l-62). Summations Defense Counsel argued that Mr. Horsey "falsely accused [Mr. O'Toole] of a crime that he did not commit." Although Mr. Horsey testified that there were several individuals present in the barbershop, including his friend Elijah, no eyewitnesses corroborated his testimony. Counsel urged that Mr. Horsey's unsupported testimony 17 was unworthy of belief for numerous reasons, including his dishonesty in failing to pay income taxes, his felony conviction, his inconsistent statements to the police, and his admission to filing a false police report: "So, what better way to establish that a man is capable of filing a false report with the police? When he gets on the witness stand and acknowledges that he filed a false report with the police" (SA246, SA250-261). Prosecution The prosecutor began: "Fear, violence and intimidation. It was just yesterday when I introduced those three concepts to you. And it was yesterday when you heard the evidence and the testimony that supports that contention. Fear, violence and intimidation. That's what happened here" (SA265). In discussing "force and aid from another person," the trial prosecutor maintained that Mr. Horsey was "concerned for the safety of [his] son, as well as the other customers. And that's because there was a man with a gun who had just approached him" (SA279). "[A] man with a gun" "remained next to him." Horsey "was concerned because there was a man with a gun, and [Mr. 0' Toole] was threatening to harm [him]" (SA280). On October 5, when Mr. O'Toole returned with a "gun" and a "car full of other people," the "situation" "escalated": "The threat of violence escalated to the point where the defendant threatened to burn down the complainant's business. 18 rr (SA283-284, SA291). Second Appeal On appeal, Mr. O'Toole argued that the trial court erred in allowing evidence of the display of a firearm during the robbery and Mr. O'Toole's alleged attempts to extort money from Mr. Horsey notwithstanding that the first jury necessarily rejected these facts in acquitting Mr. O'Toole of robbery in the first degree (committed with the display of a weapon) and attempted grand larceny in the second degree (committed through extortion) See Mr. 0' Toole's Appellate Division Brief, Point I, citing, inter alia, Ashe v. Swenson, 397 U.S. 436 (1970), and People v. Acevedo, 69 N.Y.2d 478 (1987). In response, the District Attorney argued that the acquittals likely "stemmed from a perceived lack of corroboration for Horsey's testimony about those acts." District Attorney's Brief at 27-35. Relying on People v. Goodman, 69 N.Y.2d 32 (1982), and similar cases, in which the witness was an accomplice as a matter of law, the District Attorney argued that, likewise here, the jury's rejection of Horsey's testimony did not necessarily resolve the factual issues in Mr. O'Toole's favor. Brief at 27-33. See District Attorney's In reply, Mr. O'Toole argued that, since Mr. Horsey was not a testifying accomplice, the legal corroboration requirement did not apply, so any argument flowing from a statutory corroboration requirement was inapposite. See Reply Brief at 1-7 (and 19 authorities therein) 11 The Appellate Division determined: "[U]nder the facts presented, the People were barred by collateral estoppel from presenting evidence at the retrial that [Mr. O'Toole's] accomplice pointed what appeared to be a pistol at the complaining witness during the alleged robbery, and that [Mr. O'Toole] also attempted to extort regular payments of protection money from the complaining witness on the day of the robbery and on a later occasion. The court erred in allowing introduction of this evidence." People v. O'Toole, 96 A.D.3d 435, 436 (1 st Dept. 2012), citing People v. Acevedo, 69 N.Y.2d at 487. The Appellate Division rejected the District Attorney's argument that, because the jury likely was unwilling to rely on Mr. Horsey's uncorroborated testimony, the acquittals in this case should be "treated" "in the same manner as cases in which a defendant is acquitted of crimes subject to the statutory requirement that the testimony of an accomplice be corroborated." People v. O'Toole, 96 A.D.3d at 436, citing People v. Goodman, 69 N.Y.2d at 42. "The District Attorney has abandoned this argument. See District Attorney's Brief at 21-57. 20 ARGUMENT POINT THE APPELLATE DIVISION CORRECTLY DETERMINED THAT, IN LIGHT OF THE FIRST JURY'S ACQUITTALS OF ALL COUNTS INVOLVING A GUN AND EXTORTION ATTEMPTS, THE TRIAL COURT ERRED IN PERMITTING EVIDENCE OF THE ALLEGED DISPLAY OF A FIREARM DURING THE ROBBERY AND DEMANDS FOR PROTECTION MONEY. U. S . CONST., AMENDS. V, XIV; N. Y. CONST., Art. I, §12. Where a jury's acquittal necessarily rejects a fact that the prosecution sought to prove, the State is not free to try again before a second or third jury. See People v. Acevedo, 69 N.Y.2d 478 (1987); see also Ashe v. Swenson, 397 U.S. 436 (1970). At Mr. O'Toole's first trial, the jury acquitted him of a robbery committed by displaying what appeared to be a firearm, while convicting him of a robbery while being aided by another actually present; the jury also acquitted him of two counts of attempted second-degree grand larceny involving alleged extortion. Given the facts of this case, in doing so, the jury necessarily decided that no firearm was displayed in committing the robbery and that Mr. 0' Toole did not attempt to extort money from the complaining witness on either occasion charged. Nonetheless, at his retrial for a single count of second- degree robbery, the trial court permitted evidence that Mr. O'Toole's accomplice possessed a .9 millimeter handgun and that Mr. O'Toole threatened to burn down the barbershop unless the complaining witness paid him to stay in business. As the Appellate 21 Division correctly determined, the first jury's verdict acquitting Mr. O'Toole of robbery with a firearm and attempted grand larceny through extortion, but convicting him of robbery without a gun, prohibited the prosecution, on this case's facts, from seeking to prove those same facts again. People v , O'Toole, 96 A. D. 3d 435 (1" Dept. 2012). Furthermore, tacitly conceding that Acevedo and related cases require reversal of Mr. O'Toole's conviction, the District Attorney asks the Court to overrule Acevedo. Yet, the District Attorney does hot explain why Acevedo was wrongly decided, let alone why it should not be afforded stare decisis effect. In particular, the District Attorney treats Acevedo as a mere restatement of federal law, and urges that the federal law has changed, and so should Acevedo. District Attorney's Brief at 49-54, citing Dowling v , Uni ted States, 493 U. S. 342, 344-346 (1990). Even if the District Attorney was right about the effect of Dowling, which he is not, New York's right to issue preclusion is "broader in foundation and scope" than its federal corollary. People v. Acevedo, 69 N.Y.2d at 485. New York's right is grounded in New York constitutional, statutory, and common law, all recognizing New York's greater protections against the State being afforded a second opportunity to prove charges or issues a jury has already rejected. Id. Therefore, Acevedo should not be overruled. Accordingly, the order of the Appellate Division should be 22 affirmed. Existing Law Requires Affirmance. The constitutionally-recognized principle of collateral estoppel or issue preclusion precludes the prosecution from relitigating an issue decided in a defendant's favor by a final judgment. People v. Acevedo, 69 N.Y.2d at 484-485; see also Yeager v. United States, 557 U.s. 110, 119 (2009). As the Supreme Court explained in Ashe v. Swenson, 397 U.S. at 443, '''[c]ollateral estoppel' is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice." Id. While its origins are in civil litigation, collateral estoppel has long been an established rule of criminal law. ftAs Mr. Justice Holmes put the matter" in United States v. Oppenheimer, 242 U.S. 85 (1916), ft'It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt.'" Ashe v. Swenson, 397 U.S. at 443, quoting United States v. Oppenheimer, 242 U.S. at 87. Thus, ft'it [was] much too late [in 1970] to suggest that this principle is not fully applicable to a former judgment in a criminal case . '" Id. quoting United States v. Kramer, 289 F.2d 909, 913 (2d Cir. 1961). The law acknowledges the differences in applying this principle to criminal and civil cases, in that an acquittal in a criminal case is usually based upon a general verdict. 23 As a practical matter, this fact requires a court, seeking to ascertain what the jury found in reaching its verdict, to examine the entire record of the prior proceeding and "'conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.'" Ashe v. Swenson, 397 u.S. at 444, guoting Sealfon v. United States, 332 U.S. 575, 579 (1948) While Ashe v. Swenson, 397 U.S. at 443, and People v. Goodman, 69 N. Y. 2d at 38, "both describe collateral estoppel in terms of ultimate facts," that is, facts which would, if precluded, bar the subsequent prosecution, "such a limitation would be inconsistent with the rationale for the doctrine as articulated in both cases," and "neither can be read to so restrict the doctrine." People v. Acevedo, 69 N.Y.2d at 485. 12 The District Attorney nonetheless maintains that the Appellate 12The District Attorney erroneously adopted this limitation on the right Goodman, District Attorney's Brief at explains, it clearly did not. People v. asserts that this Court to issue preclusion in 48-49, but as Acevedo Acevedo, supra. The District Attorney argues that Acevedo is "completely distinguishable" on its facts "based on the manner in which that case was tried and defended." See District Attorney's Brief at 45- 46. Yet, Acevedo states principles of general applicability that govern any issue preclusion claim, ~ People v. Acevedo, 69 N.Y.2d at 484-485, including cases, like this one, involving a "mixed" verdict or acquittals and convictions, see People v. Goodman, 69 N.Y.2d at 35-43, or where the defendant did not testify, ~ Ashe v. Swenson, 397 U.S. at 438. Cf. District Attorney's Brief at 46- 48. 24 Division's "application of collateral estoppel was fundamentally erroneous." District Attorney's Brief at 22. As set forth below, the District Attorney's argument is confused on the law and misstates the facts. See District Attorney's Brief at 37-48. As to the law, the District Attorney's quarrel is with the very notion of issue preclusion in a criminal case. But, the law settled that issue long ago. See Yeager v. United States, 557 U.S. at 120 n.4 ("[aJlthough the doctrine of collateral estoppel had developed in civil litigation, we had already extended it to criminal proceedings when Ashe was decided"); People v. Berkowitz, 50 N.Y.2d 333,343 (1980) ("[i]t is well settled that the dotrine of collateral estoppel is applicable to criminal as well as civil matters, and exists independent of the prohibition against double jeopardy") . Ashe v. Swenson, 397 U.S. at 436, is the leading Supreme Court case in this area. Yet, the District Attorney does not once cite it. See District Attorney's Brief. Indeed, repeatedly referring to Mr. O'Toole's claim as "evidentiary," the District Attorney fails to mention, at all, its state and federal constitutional dimensions. See District Attorney's Brief at 27-57. At the same time, the District Attorney urges the Court to analyze Mr. O'Toole's collateral estoppel claim in light of repugnancy and weight-of-the-evidence case law, claims that are not at issue, and that entail different analyses. 25 See District Attorney's Brief at 32-37, 41-42, citing, inter alia, People v . Tucker, 55 N.Y.2d 1 (1981) (repugnancy), and People v. Yanayaco, 99 A.D.3d 416 (L'" Dept. 2012) (weight of the evidence). None of these cases have any application here. l3 From the "common thread running" through these unrelated authorities, the District Attorney extracts a number of inapposite, theoretical propositions. In particular, the District Attorney believes that appellate courts should be reluctant "to attempt to divine specific factual findings by a jury that has rendered a split verdict because of that jury's ability to return an acquittal as an exercise of mercy or leniency to a defendant." District Attorney's Brief at 36-37. Even in legal sufficiency cases, this theory is just wrong. For example, in People v. Yarrell, 75 N.Y.2d 828 (1990), this Court determined that the jury's acquittals as to the weapons possession charges necessarily manifested its rejection of certain evidence and concluded that, absent that evidence, the remaining evidence was legally insufficient to support the defendant's conviction of attempted first-degree murder. Id. reversing for reasons stated in dissent, 146 A.D.2d 819, 821-822 (2d Dept. 1990) ("it is apparent that the defendant was convicted . . on a theory of accomplice liability"). l3Repugnancy entails analysis only of a single trial and whether a jury's acquittal as to one charge nullified its conviction as to another; collateral estoppel relates to the jury's necessary rejection of certain evidence. Compare People v. Tucker, 55 N.Y.2d at 6-7, with People v. Goodman, 69 N.Y.2d at 40-43. 26 As to another one of the District Attorney's theories, his "it always could have been an act of mercy" argument simply proves too much. See District Attorney's Brief at 54 ("an acquittal can signal no more than that the jurors have decided to exercise their prerogative of extending mercy to the defendant"). Because juries have that ability in every criminal case, if the District Attorney's theory is correct, collateral estoppel would never apply in any such case. For good reason, state and federal law are to the contrary. See Yeager v. United States, 557 U.S. at 120 n.4; People v. Berkowitz, 50 N.Y.2d at 343. Of course, the "meaning of a general verdict is not always clear and mixed verdicts may, at times, appear inherently ambiguous." People v. Goodman, 69 N.Y.2d at 40. "Nevertheless, the court must assume that the jury reached a rational result." rd. at 40-41, citing Ashe v. Swenson, 397 U.S. at 443-445 (emphasis added) . And, in determining what a "rational jury" necessarily decided, the court "must also presume" that it "appropriately applied" the trial court's instructions regarding the governing procedural and substantive rules. People v. Goodman, 69 N.Y.2d at 41. Thus, "[s]o as not to add even further to defendant's already formidable burden, and so as to serve the underlying purposes of the collateral estoppel doctrine, courts considering such claims must give a practical, rational reading to the record of the first 27 trial. 'The rule is not to be applied with a hypertechnical approach but with realism and rationality by examining all parts of the record of the prior proceeding and concluding from it whether a rational jury could have grounded its decision on an issue other than that which the defendant seeks to foreclose from consideration.'" People v. Acevedo, 69 N.Y.2d at 487, guoting People v. Goodman, 69 N. Y. 2d at 40. While any acquittal could theoretically result from an arbitrary act of mercy, just as any conviction could result from an act of animus or prejudice, courts applying collateral estoppel presume, as courts do generally, that the jury did not so act, at least absent strong evidence to the contrary. See Ashe v. Swenson, 397 U.S. at 444; People v. Goodman, 69 N.Y.2d at 40-41; cf. District Attorney's Brief at 37, 43. Here, the District Attorney's argument is particularly unconvincing where the defense never asked the jury to exercise mercy, and the record provides no reason for it to extend leniency in this robbery/extortion prosecution by acquitting Mr. O'Toole of some but not all charges. The record does explain the jury's focus on Mr. Horsey's weak credibility and the lack of corroborating wi tnesses, despite their apparent availability (see 1TR588-590; A394-396). And, in acquitting Mr. O'Toole of the charges based on Mr. Horsey's testimony alone, the jury "appropriately applied" the trial court's instruction that a reasonable doubt "must arise either from the nature and quality of the evidence . 28 . or from the lack or insufficiency of the evidence. ." (lTR560, 1TR600; A366, A406) See,~, Ashe v. Swenson, 397 U.S. at 443-444; People v. Goodman, 69 N.Y.2d at 40-41; contra District Attorney's Brief at 44 n.11 (ftthere is no need to speculate about exactly what it was that motivated the jurors when they acquitted [Mr. O'Toole] on the first-degree robbery charge beyond the simple possibility that the verdict reflected an exercise of mercy") . Likewise misplaced is the District Attorney's reluctance ftto divine specific factual findings." See District Attorney's Brief at 36-37. While the District Attorney deems it somehow improper, the relevant authorities specifically require this analysis. In fact, the purpose of examining the entire record of the prior proceeding is to ascertain the issues upon which a ftrational jury could have grounded its verdict." Ashe v. Swenson, 397 U.S. at 444 (citation and quotation marks omitted). As a result, the court has a duty "t.o decipher what a jury has necessarily decided." See Yeager v. United States, 557 U.S. 110, 119-120 (2009). A more fttechnically restrictive" approach, such as the District Attorney proposes, ftsimply amounts to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal." Ashe v. Swenson, 397 U.S. at 444 (citation and quotation marks omitted); contra District Attorney's Brief at 42 (the Appellate Division decision is based on ftspeculation" that 29 this Court ~forbids," ~in order to safeguard a jury's ability to show mercy") . As to whether the ~entire record" supports issue preclusion here, the District Attorney simply fails to acknowledge, let alone discuss, the material facts that defeat his argument. While the District Attorney cites the trial prosecutor's summation, see District Attorney's Brief at 37, the relevant inquiry includes the evidence, the defense argument, and the trial court's instructions. See Ashe v. Swenson, 397 u.S. at 444 (citation omitted). Based on the entire record, the most reasonable interpretation of the jury's verdict is that it accepted the defense contention that Mr. Horsey was too unreliable to convict Mr. O'Toole based upon his testimony alone. Accordingly, the jury rej ected his testimony that Mr. 0' Toole's accomplice d i s p La ved a firearm and that Mr. 0' Toole attempted to extort payments of protection money from him. More specifically, Indictment Number 5560 of 2004 charged Mr. 0' Toole with two theories of a forcible stealing of Phillip Horsey's chain on September 15, 2004 - first-degree robbery for displaying a firearm while committing the crime and second-degree robbery for being aided by another person actually present. The indictment also charged Mr. O'Toole with two counts of attempted second-degree grand larceny for his efforts to extort money from Mr. Horsey on September 15, and October 5, 2004. See Indictment No. 5560/04. 30 At Mr. O'Toole's first trial, the prosecution's case rested on the testimony of Mr. Horsey, an admitted tax evader, who was still serving the sentence of probation imposed upon his felony gun possession conviction (lTR325, ITR346-347, 1TR359-361; A130, A152- 153, A165-167). Mr. Horsey claimed that, on September 15, 2004, at 12:30 p.m., at the RR Barbershop in Manhattan, where he worked as a manager, Mr. O'Toole and an accomplice stole his gold necklace at gunpoint, and Mr. 0' Toole demanded a regular payment from the barbershop's proceeds (lTR297-305; AI02-110). Mr. Horsey further alleged that, on October 5, 2004, Mr. O'Toole returned, this time with a number of strong men, and again demanded that Mr. Horsey pay him ftto keep the shop open" (lTR307-314; A112-119). When Mr. Horsey first reported the September incident, although he had known Mr. O'Toole for about five years, he did not provide Mr. O'Toole's name or address to the police (lTR288-289, ITR344; A93-95, A150) The police detective who initially interviewed Mr. Horsey suspected that he was ftmaking this up just for an insurance claim" (1 TR459; A264) In fact, Mr. Horsey eventually recovered $3900 from his insurance company for the loss of his jewelry (lTR345; A151). No physical evidence or incriminating statements to the police corroborated Mr. Horsey's allegations that this was an armed robbery, committed in broad daylight, inside a busy barbershop, accompanied by attempts to extort money from Mr. Horsey as the 31 price of doing business. Moreover, although Mr. Horsey's friend Elij ah and other customers were present during the alleged robbery, Mr. Horsey was the only eyewitness who testified at trial (see 1TR274-477; A79-283). Apart from Mr. Horsey's word alone, the testimony of Corrections Officer Robert Mitchell supplied the only evidence implicating Mr. O'Toole in the crimes. Officer Mitchell testified that, in a telephone conversation, Mr. O'Toole admitted taking Mr. Horsey's chain. Notably, Mr. O'Toole's alleged admission did not contain any mention of a firearm or extortion attempts (see 1TR427- 430; A233-236). Counsel's cross-examination exposed Mr. Horsey's unsavory background, his inconsistent and false statements to the police, and the presence of eyewitnesses, including Mr. Horsey's friend, during the alleged incidents (see 1TR342-402; A148-208). On summation, counsel emphasized the failure of the eyewitnesses to corroborate Horsey's allegations. Moreover, as counsel urged, some of Horsey's various inconsistent statements related to basic facts about the alleged display of the firearm that he would be expected to remember if it actually occurred. Counsel maintained that, given all the jury had learned, Horsey was not the kind of person whose word the jurors would want to take when buying a house or a car, never mind deciding a person's guilt of a serious crime (see 1TR487-515; A293-321) . 32 During deliberations, Horsey's testimony and the jury requested a readback of Mr. requested instruction on ~credible wi tnesses," reasonable doubt, and how it should consider the prosecution's failure to call corroborating witnesses (see ITR588- 590; A394-396). Significantly, the jury also requested and received a readback of Officer Mitchell's testimony (lTR584; A390) . Subsequently, the jury convicted Mr. O'Toole of the sole count that was corroborated by Officer Mitchell and did not involve the display of a gun or extortion attempts (see ITR609-612; A415-418; see ITR584; A390). Previously, and ironically, this was the District Attorney's own view of the record. Before the Appellate Division, the District Attorney argued: ~Because Mitchell' s account independently corroborated Horsey's testimony that defendant robbed him of the chain - but not Horsey's testimony about the accomplice's gun or the attempted extortions - the mixed verdict had a demonstrably rational explanation." District Attorney's Appellate Division Brief at 30 (emphasis in original) In this Court, the District Attorney has taken a u-turn. As to the attempted second-degree grand larceny charges, since Mr. Horsey's testimony constituted the sole evidence of the crimes, the jury's acquittals necessarily indicate that it rejected that evidence. While offering no other explanation for the attempted extortion acquittals, see District Attorney's Brief at 37-57, the 33 District Attorney now maintains that the first jury's verdict as to the robbery charges was irrational: "[A]part from the gun, the People presented no alternative factual theory to establish the 'force' element necessary to prove simple robbery. Thus, ... the accomplice's brandishing of the gun unquestionably constituted the threatened force necessary to prove that [Mr. O'Toole] committed a robbery of any degree." District Attorney's Brief at 37-38, 41 (ci ting record) (emphasis in original) . The District Attorney's present argument is oblivious to how the case was actually tried. As to the alleged theft of Mr. Horsey's chain, the District Attorney presented two theories of a forcible stealing, one which required the use of a firearm and one which did not (see Final Instructions: ITR565, ITR568-569; A371, A374-375). The jury rejected the theory that was not corroborated and based on an obvious embellishment that Mr. O'Toole's accomplice displayed a firearm in front of his customers inside the shop and put it away for the part of the crime that was committed outside their view. But, the jury accepted the theory that was corroborated and made sense - that Mr. O'Toole, who was five feet, two inches tall, about ten inches shorter than Mr. Horsey, returned wi t.h a "big" man to forcibly take the chain, and having a "henchman" (see Prosecutor's Summation: ITR519; A325), Mr. O'Toole did not need a firearm (see ITR609-612; A415-418) As the District Attorney notes, albeit in a footnote, see 34 District Attorney's Brief at 40 n.10, the trial court did not instruct the jury that the display of a firearm was necessary convict Mr. O'Toole of a forcible stea1ing. 14 Instead, the trial court's instructions, which it must be presumed the jury followed, see People v. Goodman, 69 N.Y.2d at 41, permitted a second-degree robbery conviction, if Mr. 0' Toole or his accomplice used or threatened the immediate use of physical force (~lTR564, 1TR568; A370, A37 4) . Moreover, as the District Attorney also acknowledges, the "accomplice performed actions other than brandishing a gun." District Attorney's Brief at 38. The robbery statute requires "merely that there be a threat, whatever its nature, of the immediate use of physical force." People v. Woods, 41 N.Y.2d 279, 283 (1977). The question is whether the "defendant's activities, taken in context and as a whole, constituted threats of the immediate use of physical force." Id. at 282; see People v. Bennett, 219 A.D.2d 570 (l't Dept. 1995) (robbery victim need not be "physically injured or touched") . Here, according to the prosecution, that was plainly the case. After being at the barbershop only an hour earlier, Mr. O'Toole returned, and this time he was not alone. A "big" man accompanied him (lTR297; A102). In itself, this was an intimidating "Despite the District Attorney's suggestion, the trial prosecutor did not argue otherwise. See District Attorney's Brief at 37 (citing trial prosecutor's summation) 35 development. With Mr. O'Toole being ten inches shorter than Mr. Horsey, the accomplice was obviously the "muscle" (~SA237-240). Indeed, this is specifically the notion the trial prosecutor called to mind in repeatedly referring to the accomplice as Mr. O'Toole's "henchman" (see Prosecutor's Summation: lTR519, ITR525, lTR545; A327, A33l, A35l) As in Woods, Mr. O'Toole and his alleged accomplice used their physical presence to threaten Mr. Horsey. People v. Woods, 41 N.Y.2d at 282-283. For example, the accomplice did not just "hand[] a cell phone to Horsey." See District Attorney's Brief at 38. His conduct also forced Mr. Horsey to stop what he was doing. In the middle of cutting a customer's hair while holding his son, Mr. Horsey left his customer sitting with his hair half-cut, placed his son in Elijah's care, and exited his barbershop full of waiting customers (lTR297-302, lTR400; Al02-l07, A206). Undoubtedly, Mr. Horsey would not have done any of these things if he felt he had the choice. See,~, People v. Lopez, 161 A.D.2d 670, 671 (2d Dept. 1990) (the "threatened use of force may be implicit in the defendant's conduct") Maintaining the threat, the accomplice did not allow Mr. Horsey to step outside alone; the accomplice closely followed behind him. Once outside, the accomplice and Mr. O'Toole positioned themselves on either side of Mr. Horsey, and Mr. O'Toole again demanded the chain "right now" (lTR302-303; Al07-l08). See 36 People v . Woods, 41 N.Y.2d at 282 (the defendant escorted the complaining witness to the bank, "staying right at her side the whole time"; "[w]hen they left the bank, the other man approached them and 'one on each side, [they] walked [her] to their car'"); People v. Spencer, 255 A.D.2d 167, 168 (l't Dept. 1998) (the defendant's actions in "standing 'chest to chest' with the victim and "moving in unison with" him were "meant to intimidate" and "indicative of the threat of force") Mr. Horsey believed that, if he did not comply, the men would "harm" him or his son. As the two men confronted Mr. Horsey, his son ran out of the shop: "When my son came out there to me, I wanted to get him out of harm's way. I just gave [Mr. O'Toole] the chain. I said 'Go ahead'" (lTR304; A109). The trial prosecutor emphasized this threat: "What does the victim tell you the minute his son comes out? He took the jewels off and turned them over. 'Just go. I want my son out of harm's way.' Listen to the victim's words" (lTR527-529; A333-335). See People v. Woods, 41 N.Y.2d at 282 (the complaining witness testified that the defendant said, '''[c]ome on, give us the money,'" and that "she did so '[b]ecause I was afraid of him anyway. He demanded it, and you know they are dangerous. What are you going to do?'"). While this was not overwhelming proof of an unarmed robbery aided by another person, a rational jury could have grounded its verdict upon it without being the least bit inconsistent with its 37 verdict acquitting Mr. O'Toole of first-degree robbery. See,~, People v. Woods, 41 N.Y.2d at 283. Unlike the District Attorney's argument before this Court, this used to be his view: At Mr. 0' Toole's second trial, based on the same evidence, the trial prosecutor successfully opposed Mr. O'Toole's application to submit petit larceny as a lesser included offense. Then, the trial prosecutor argued that, even if the jury "believe [d] that the victim lied as to all of the other facts,H there was "no reasonable view of the ev i dence " that this was not a forcible taking. In support of her contention, the trial prosecutor pointed to the evidence that Mr. O'Toole is "somewhere between 5-2 and 5-3. And the victim is approximately six feet tall. H Given their size difference, "it would be unreasonable H "for the jury to find that without any force, the defendant was able to obtain the property from the v i.c t i m" (SA234-235; emphasis added). The trial court agreed that "it is not reasonable that somebody would give up a piece of jewelry without, to somebody half the size without their being a proffer of force. H (SA237, SA239-242). Thus, the jury's verdict acquitting Mr. 0' Toole of first- degree robbery, while convicting him of second-degree robbery, is not at all inconsistent or irrational, as the District Attorney now posi ts, and the Appellate Division correctly applied collateral estoppel on the facts presented. Cf. District Attorney's Brief at 37-41, 55-56. 38 The District Attorney complains that it is "unfair" to prevent the prosecution from relying on testimony in a second trial because the first conviction was reversed on "serendipitous voir dire error." District Attorney's Brief at 43. Apart from the fact that this argument disparages the constitutional right to an unbiased jury, it utterly fails to recognize that "where the People have had a full and fair opportunity to contest issues, but have failed, it would be inequitable and harassive to again permit the prosecution to establish these same matters, as if the first trial had never taken place." people v. Acevedo, 69 N.Y.2d at 485, citing People v. Plevy, 52 N. Y. 2d at 64. Contrary to the District Attorney's elaborate and far-ranging argumentation, that right, and no other, is at stake here. The inequity this Court has previously recognized obtained here when the prosecution built its second trial case around highly inflammatory testimony about a firearm and threats to burn down the barbershop that the first jury had already found unbelievable. This allowed the trial prosecutor to argue that "this case" was all "about" "[f] ear, violence and intimidation" (see Trial Prosecutor's Opening Statement: SA14; Trial Prosecutor's Summation: SA265). See United States v. Mespoulede, 597 F.2d 329, 336 (2d Cir. 1979) ("[a]s the specific issue subject to relitigation looms larger in the Government's case, it becomes more likely the matter will prove decisive in the jury's deliberations") 39 The subsequent conviction was properly reversed. Despite the District Attorney's View, Dowlinqv. United States, 493 U.S. 342 (1990), Does Not Compel the Overruling of Acevedo. The District Attorney urges the Court to overrule People v. Acevedo, 69 N.Y.2d at 478, which was decided almost thirty years ago. See District Attorney's Brief at 48-55. While stare decisis does not "enjoin departure from precedent," a "court should overturn its previous holdings only where the principles announced prove unworkable or 'out of tune with the life about us, at variance with modern-day needs and with concepts of justice.'" Matter of Simonson v. Cahn, 27 N.Y.2d 1, 3 (1970) (citations omitted). Here, the District Attorney simply fails to demonstrate the necessity for abrogating this well settled precedent. See District Attorney's Brief at 49-55. As the District Attorney notes, in the intervening decades, the Court has not seen the need the revisit its decision in Acevedo. See District Attorney's Brief at 53. Moreover, the last time a defendant prevailed on a collateral estoppel-related claim before the Appellate Division was in 1996, in People v. Meralla, 228 A.D.2d 160, 160-161 (1 s t Dept. 1996), where the court held that trial counsel was ineffective, in part, for failing to raise a collateral estoppel objection. Id. at 160-161. The passage of time since Acevedo does not alter the fact that, as New York law has long recognized, "where the People have had a full and fair opportunity to contest the issues, but have 40 failed, it would be inequitable and harassive to again permit the prosecution to establish these same matters." People v. Acevedo, 69 N.Y.2d at 485. In particular, the District Attorney claims that the Supreme Court's "reasoning" in Dowling establishes a "rule" that acquittals do not reflect specific fact findings, only that the prosecution failed to meet its burden of proof beyond a reasonable doubt. See District Attorney's Brief at 51-53, 55-56, citing Dowling v. United States, 493 U.S. at 342. This is not so. In Ashe, the Supreme Court specifically rejected that argument: "'It is much too late to suggest that this principle is not fully applicable to a former judgment in a criminal case, either because of lack of mutuality or because the judgment may reflect only a belief that the Government had not met the higher burden of proof exacted in such cases for the Government's evidence as a whole although not necessarily as to every link in the chain.'" Ashe v. Swenson, 397 U.S. at 443, guoting United States v. Kramer, 289 F.2d 909, 913 (2d Cir. 1961) (emphasis added). Since then, the Supreme Court has only reaffirmed the core principles on which Ashe stands. See Dowling v. United States, 493 U.S. at 347 ("[i]n Ashe v. Swenson," "we recognized that the Double Jeopardy Clause incorporates the doctrine of collateral estoppel") . In fact, in Dowling, the Supreme Court fully applied those principles, even though there, as in Acevedo and this case, the 41 defendant did not argue "that the acquittal in the [prior] case" "barred further prosecution in the present. The issue is the inadmissibility of ... testimony." Dowling v. United States, 493 U.S. at 347; see People v. Acevedo, 69 N.Y.2d at 486 (applying collateral estoppel although the defendant sought to preclude evidence at a subsequent trial, not the prosecution itself). As a result, consistent with this Court's decision in Acevedo, the Supreme Court accepted that the doctrine applies, in principle, to exclude evidence at a subsequent trial and considered whether, on the record presented, the defendant met his burden of demonstrating that the particular factual issue was previously decided in his favor. See Dowling v. United States, 493 U.S. at 347-352; People v. Acevedo, 69 N.Y.2d at 487-489; cf. District Attorney's Brief at 48-55. To be sure, in Dowling, the Supreme Court concluded, on the facts presented, that collateral estoppel did not preclude the evidence. In its primary holding, the Supreme Court determined that double jeopardy was not implicated, because the evidence at issue was similar act evidence of another offense admitted under Rule 404 (b) of the Federal Rules of Evidence. See Dowling v. United States, 493 U.S. at 344-345, 350. Such evidence, unlike the evidence at issue here, is not offered as direct proof of the crime charged. Instead, Rule 404 (b) "provides that evidence of other crimes, wrongs, or acts may be admissible against a defendant for 42 purposes other than character evidence." Dowling v. United States, 493 u.s. at 345. In Dowling, the trial court characterized the prior crime evidence as "highly probative circumstantial evidence" of the defendant's guilt. Id. Given its limited evidentiary purpose, the prosecution is not required to prove that the defendant committed the prior crime beyond a reasonable doubt: A preponderance standard applies. See Dowling v. United States, 493 U.S. at 348-349, ("' [i]n the Rule 404(b) context similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and the defendant was the actor''') (quoting Huddleston v. United States, 485 U.S. 681, 689 (1988)). In Dowling, the defendant was acquitted of the unrelated burglary of Ms. Henry's home, and the prosecution sought to introduce the similar act evidence on the question of identity in a subsequent bank robbery prosecution. As the Supreme Court explained: "Because a jury might reasonably conclude that Dowling was the masked man who entered Henry's home, even if it did not believe beyond a reasonable doubt that Dowling committed the crimes charged at the first trial, the collateral-estoppel component of the Double Jeopardy Clause is inapposite." Dowling v. United States, 493 U.S. at 348-349. Thus, unlike in this case, there was no danger that two juries would reach inconsistent results as to the same factual issue. 43 Far from marking a departure, cf. District Attorney's Brief at 48-56, the Supreme Court in Dowling explained that its determination is ftconsistent" with its prior decisions holding that an ftacquittal in a criminal case does not preclude the Government from relitigating an issue when it is presented in a subseguent action governed by a lower standard of proof." Dowling v. United States, 493 U.S. at 349 (emphasis supplied). In a later decision, the Supreme Court explained that its holding was based upon that particular circumstance, which is not present here: ftThe primary ruling of [Dowling] was our conclusion that the collateral estoppel component of the Double Jeopardy Clause offered Dowling no protection despite his earlier acquittal, because the relevance of evidence offered under Rule 404(b) was governed by a lower standard of proof than that required for conviction." Uni ted States v. Felix, 503 U.S. 376, 386-387 (1992) (citing Dowling v. United States, 493 U.S. at 348-349) (further citation omitted) Even though Dowling cited Ashe, the District Attorney is apparently maintaining that Dowling overruled Ashe sub silentio.-,-- -- See District Attorney's Brief at 49 (the ftlegal underpinnings" of Acevedo ftessentially no longer exist") This seems rather unlikely since, as a secondary holding, the Supreme Court applied the standard stated in Ashe and concluded that the defendant failed to meet it where ftthere is nothing at all that persuasively indicates that the question of identity was at issue and was determined in 44 Dowling's favor at the prior trial." Dowling v. United States, 493 U.S. at 350-352. 15 On any fair reading of Dowling, then, the Supreme Court applied the principles the District Attorney claims it abrogated: The court examined the entire record, even "delving" into what was said at bench conferences, to ascertain the "specific" "facts" the jury's verdict resolved, while assuming that the jury reached a rational result, just as this Court did in Acevedo and the Appellate Division did here. Compare Dowling v. United States, 493 U.S. at 350-352, People v. Acevedo, 69 N.Y.2d at 487-489, and People v. O'Toole, 96 A.D.3d at 435-436, with District Attorney's Brief at 27-57. ' 6 Thus, the District Attorney is simply wrong that "applying the rule in Dowling would have led to a completely different result in Acevedo." District Attorney's Brief at 53. To the contrary, the different results are due to the facts. And, in this case, at Mr. O'Toole's retrial, the evidence was not of prior misconduct, governed by a lower standard of proof, on a question which he had previously essentially conceded, offered as circumstantial proof of identity. The evidence here related to the 15In sharp contrast with this case, the defendant in Dowling did not previously contest the fact at issue, so there was no reason to believe that the first jury decided it in his favor. "[A]t oral argument, Dowling conceded as much." Dowling v. United States, 493 U.S. at 352 (record citations omitted). "The Supreme Court analyzed the record without regard to the possibility that the jury may have been exercising mercy. See Dowling v. United States, supra. 45 very same course of conduct, and despite the first jury's acquittals deciding the contested facts in Mr. O'Toole's favor, the prosecution offered the evidence as direct proof of an element of the crime. Compare Dowling v. United States, 493 U.S. at 350-352, with People v. O'Toole, 96 A.D.3d at 435-436. In fact, even the District Attorney acknowledges that, "in the context of the evidence in this case," where the prosecution was relying on the "brandishing of the gun" to establish the force used to commit the robbery at the second trial, "as a practical matter, the People did have to prove that such action occurred beyond a reasonable doubt." District Attorney's Brief at 51 (emphasis in original) . This is precisely why, unlike in Dowling, collateral estoppel principles protected Mr. O'Toole. The first jury decided that "such action" did not occur. The District Attorney fails to mention it, but the Supreme Court's more recent decisions likewise undercut his argument that Dowling radically changed the Law ."? For example, in Yeager v. 17While the District Attorney ignores the existence and continued viability of Ashe, and fails to recognize that New York "extends double jeopardy protection well beyond constitutional requirements," People v. Goodman, 69 N.Y.2d at 40, the District Attorney cites numerous state court decisions, that are mostly distinguishable on their facts, and are all from jurisdictions which lack New York's Constitution, common law, and statutes. See District Attorney's Brief at 54-55, citing, inter alia, State v. Cotton, 778 So.2d 569, 577-578 (La. 2001) (evidence of a defendant's prior bad acts for which he was acquitted were admissible where the "required standard of proof of the prior act is less than that required for conviction"), State v. Gusman, 874 (continued ... ) 46 United States, 557 U.S. at 110, the Supreme Court reaffirmed: "In Ashe, we squarely held that the Double Jeopardy Clause precludes the Government from relitigating any issue that was necessarily decided by a jury's acquittal in a prior trial." Id. at 119. There, the Supreme Court held that collateral estoppel may apply in a subsequent prosecution as to facts previously decided when a jury acquitted a defendant of some counts and hung as to others. In doing so, the Supreme Court rejected the notion that the "fact that the jury hung was a logical wrinkle that made it impossible for the court to decide with any certainty what the jury necessarily determined." Yeager v. United States, 557 U.S. at 121 (citation and quotation marks omitted). Under the principles Ashe set forth, a "hung count is not a 'relevant' part of the 'record of [the] prior proceeding.'" Yeager v. United States, 557 U.S. at 121, guoting Ashe v , Swenson, 397 U.S. at 444; see Schiro v. Farley, 510 U.S. 222, 232 (1994) (applying Ashe in determining whether co l Lat.e.ra L estoppel barred evidence at the sentencing phase of the defendant's capital trial). Hence, the District Attorney has failed to offer any reason why Acevedo should be overruled, let alone meet his burden of 17 ( ••• continued) P.2d 1112, 1115 (Idaho 1994) (the state did not have a full and fair opportunity to litigate the issue at the prior proceeding), and State v. Dean, 589 A.2d 929, 932-933 n.5 (Me. 1991) (evidence of prior misconduct was admitted for a "limited purpose and could be considered for that limited purpose" if the jury concluded that it was established by a preponderance) 47 overcoming stare decisis. * * * Accordingly, for the above reasons, the Appellate Division's order should be affirmed. CONCLUSION FOR THE ABOVE REASONS, THE ORDER OF THE APPELLATE DIVISION SHOULD BE AFFIRMED. Respectfully submitted, r . "L .. h· fi1cJI7'*'J..- F i Ci/V'"i..b""7~ STEVEN/BANKS KATHERYNE M. MARTONE Attorneys for Defendant-Respondent May 6, 2013 48 STATE OF NEW YORK ss. : COUNTY OF NEW YORK KATHERYNE M. MARTONE, an attorney duly admitted to practice before the Courts of this State, hereby affirms under the penalty of perjury: On May 6, 2013, I served the within raspondent's brief upon Han. Cyrus R. Vance, Jr., District Attorney, New York County, attorney for appellant, at One Hogan Place, New York, New York 10013, the address designated by him for that purpose, by depositing three true copies of the same in a postpaid, properly addressed wrapper, in an official deposi- tory under the exclusive care and custody of the United States Post Office Department within the State of New York. Dated: New York, New York May 6, 2013