The People of the State of New York, Appellant,v.Donald O'Toole, Respondent.BriefN.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. REPLY BRIEF FOR APPELLANT CYRUS R. VANCE, JR. District Attorney New York County Attorney for Appellant 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 MAY 30, 2013 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii INTRODUCTION................................................................................................................ 1 POINT BECAUSE THE ESSENTIAL ELEMENT OF “FORCE” WITH RESPECT TO BOTH THE FIRST- AND SECOND-DEGREE ROBBERY CHARGES WAS BASED ON THE DISPLAY OF A GUN BY DEFENDANT’S ACCOMPLICE, THE FIRST JURY’S VERDICT CONVICTING ON ONE CHARGE AND ACQUITTING ON THE OTHER WAS FACTUALLY INCONSISTENT. ACCORDINGLY, THE APPELLATE DIVISION ERRED WHEN IT FOUND THAT THE PEOPLE SHOULD HAVE BEEN COLLATERALLY ESTOPPED FROM INTRODUCING EVIDENCE ABOUT THE DISPLAY OF THE GUN AT DEFENDANT’S RETRIAL. .................................... 2 A. .............................................................................................................................................. 5 B. ............................................................................................................................................. 10 CONCLUSION ................................................................................................................... 18 ii TABLE OF AUTHORITIES FEDERAL CASES Dowling v. United States, 493 U.S. 342 (1990) ........................................................... 13-16 Standefer v. United States, 447 U.S. 10 (1980) ................................................................... 5 United States v. Felix, 503 U.S. 378 (1992) ....................................................................... 15 Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972) ..................................................... 14 Wright v. Whitley, 11 F.3d 542 (5th Cir. 1994) ................................................................ 14 Yeager v. United States, 557 U.S. 110 (2009) ................................................................... 13 STATE CASES People ex rel. Matthews v. New York State Div. of Parole, 58 N.Y.2d 196 (1983) .... 15 People v. Acevedo, 69 N.Y.2d 478 (1987) ................................................................... 12-16 People v. Brown, 28 Misc.3d 1221(A) (N.Y. Co. Sup. Ct. 2010) ..................................... 8 People v. Goodman, 69 N.Y.2d 32 (1986) ................................................................. 11, 13 People v. Horne, 97 N.Y.2d 404 (2002) ............................................................................ 14 People v. Rayam, 94 N.Y.2d 557 (2000) ........................................................................... 16 People v. Yanayaco, 99 A.D.3d 416 (1st Dep’t 2012) ..................................................... 16 Reed v. New York, 78 N.Y.2d 1 (1991) ............................................................................ 15 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- DONALD O’TOOLE, Defendant-Respondent. REPLY BRIEF FOR APPELLANT INTRODUCTION The People submit this brief in reply to the main brief filed by defendant Donald O’Toole. This reply brief supplements the discussion in the People’s main brief, and will be limited to addressing the specific portions of defendant’s brief that bear additional comment. 2 POINT BECAUSE THE ESSENTIAL ELEMENT OF “FORCE” WITH RESPECT TO BOTH THE FIRST- AND SECOND-DEGREE ROBBERY CHARGES WAS BASED ON THE DISPLAY OF A GUN BY DEFENDANT’S ACCOMPLICE, THE FIRST JURY’S VERDICT CONVICTING ON ONE CHARGE AND ACQUITTING ON THE OTHER WAS FACTUALLY INCONSISTENT. ACCORDINGLY, THE APPELLATE DIVISION ERRED WHEN IT FOUND THAT THE PEOPLE SHOULD HAVE BEEN COLLATERALLY ESTOPPED FROM INTRODUCING EVIDENCE ABOUT THE DISPLAY OF THE GUN AT DEFENDANT’S RETRIAL. At his first trial, the jury acquitted defendant of first-degree armed robbery, but convicted him of second-degree robbery, under the theory that he had robbed the victim while aided by another person actually present. However, that conviction was overturned on appeal because of a jury-selection error. When defendant was retried on the second-degree robbery charge, he cited the doctrine of collateral estoppel and moved to bar the People from introducing the evidence that his accomplice had brandished a gun. After the retrial court denied defendant’s request, the evidence at issue was admitted and defendant was again convicted by a jury of second-degree robbery. However, on appeal, the Appellate Division found that the trial court had erred and reversed defendant’s second-degree robbery conviction for a second time. According to defendant, the Appellate Division’s decision was correct. Defendant recognizes that collateral estoppel was properly invoked only if it could be 3 demonstrated that the jurors on the first panel had definitely found that no gun was displayed during the robbery. Defendant is equally aware that such a definite determination can be inferred only if the first jury’s split verdict — acquitting him on one charge but convicting him on the other — was factually consistent (see Defendant’s Brief at 37-38). In an attempt to impose such factual consistency, defendant insists that the first jury rendered a conviction on the second-degree robbery count because it must have concluded that actions on the part of the second perpetrator not involving his brandishing of the gun established the threat of force that was necessary to constitute even a simple robbery (Defendant’s Brief at 21, 34). Specifically, defendant maintains that the second assailant was the “muscle” and that, together with defendant, their combined “physical presence” constituted the requisite threat of force required to prove a robbery under the second-degree count (id. at 36-37). Under the scenario proposed by defendant, while the first-degree robbery necessitated the display of a gun, the “force” element of the second-degree robbery was supplied by the actions of the second assailant, other than his display of a weapon (id. at 34). On that basis, defendant insists, the first jury’s mixed verdict was not factually inconsistent, but rather reflected a conclusive finding that no gun was displayed during the robbery. However, as explained in the People’s main brief (see People’s Appellant’s Brief at 38-40), defendant simply ignores the fact that the mere presence of another 4 person satisfied the “aided” element of the second-degree count, regardless of whether that person’s actions in any way formed the basis for the “force” or “threat of force” employed during the robbery. To be sure, there certainly are situations, such as the hypothetical presented by defendant, in which the actions of a second person during a robbery are sufficient to supply both the “aided” and “force” elements. Unfortunately for defendant, though, the People’s case simply did not fall within that rubric. As explained in more detail below, and contrary to defendant’s contention that the People’s “present argument is oblivious to how the case was actually tried” (Defendant’s Brief at 34), examination of the trial record reveals that neither party ever suggested that the “force” element of the second-degree robbery charge could be satisfied by any actions on the part of defendant’s accomplice other than his display of a gun. Indeed, not only did the People fail to argue that the “force” element of the second-degree robbery could be based solely on the physical presence and “muscle” supplied by the second perpetrator, but it is questionable that, as a matter of law, the evidence before the jurors was sufficient to allow them to reach such a conclusion, even if the jurors had so desired. Thus, both the People and defendant’s counsel tried this case based on the premise that it was only the “aided” person’s brandishing of the gun, and not any other act, that provided the requisite threat of force necessary to prove that a robbery 5 had occurred under each of the counts charged. The first jury’s split verdict was, therefore, factually inconsistent, and represented a determination that, as to the convicted count, defendant’s accomplice had brandished a weapon, but as to the acquitted count, he had not. Since it well established that an “inconsistency” in a split verdict is “reason, in itself, for not giving preclusive effect to the acquittal[],” Standefer v. United States, 447 U.S. 10, 23 n.17 (1980), the Appellate Division’s ruling that the doctrine of collateral estoppel barred admission of evidence about the accomplice’s use of a gun at defendant’s retrial should be reversed. A. Evaluation of defendant’s claim that his second-degree robbery conviction stems from the actions of his accomplice, other than the brandishing of a gun, must begin with the testimony adduced from the victim on this score. Horsey testified that defendant, whom he had known for several years, showed up at the barbershop, and that Horsey cut defendant’s hair. Citing his disagreement with the shop’s former owners, defendant demanded that Horsey pay him money 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, who was cutting a customer’s hair, a cell phone. Speaking through the phone while still standing by the door, defendant ordered Horsey, who had his young 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 6 now had a gun pointed at his stomach. Horsey placed his son down and walked outside the shop to where defendant was standing. There, 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 ordered that Horsey turn over his necklace. Horsey’s son suddenly ran out of the shop to where all the men were standing. To protect his son, Horsey surrendered his necklace to defendant (Horsey: 288, 291-315, 336-39, 350-52, 358-59, 400-03 [A94, A97-121, A142-45, A156-58, A164-65, A205-08]). Given the nature of the victim’s testimony, it is unsurprising that the People’s explicit theory of the “force” element for the second-degree robbery was dependent on the accomplice’s brandishing of a gun. Indeed, in his summation, the trial prosecutor never once tried to convince the jury that any of the accomplice’s actions, other than his display of a firearm, constituted the force or threat of force essential to establishing a robbery. Defendant now urges that, with respect to the verdict convicting him of second-degree robbery rendered at the first trial, the jurors: [A]ccepted the theory that was corroborated and made sense – that [defendant], who was five feet, two inches tall, about ten inches shorter than Mr. Horsey, returned with a “big” man to forcibly take the chain, and having a “henchmen” (see Prosecutor’s Summation: 1TR519; A325), [defendant] did not need a firearm (see 1TR609- 612; A415-418) 7 (Defendant’s Brief at 34). However, defendant’s argument is severely undercut by the fact that neither party at the first trial ever questioned Horsey about the respective heights of Horsey and defendant’s “henchman.”1 In fact, the only description of the physical appearance of defendant’s accomplice that Horsey provided at the first trial was that he was “a big black guy” (Horsey: 297 [A102]). Defendant now acknowledges that the proof that defendant and his accomplice committed “an unarmed robbery aided by another person” was “not overwhelming” (Defendant’s Brief at 37). That is a vast understatement. In fact, the evidentiary support for such an “unarmed robbery” in the trial record is virtually nonexistent. Given the above, it made sense that the prosecutor never pointed to a physical disparity between the accomplice and the victim as supplying the “force” that underlay the second-degree robbery charge. Indeed, even the cite to the People’s summation that defendant provided above serves only to underscore that any reference to defendant’s “henchman” was inextricably linked to the display of a gun: [Defendant] went to Mr. Horsey’s place of business with another individual, his henchman, who carried a loaded 1 The sole evidence pertaining to the accomplice’s actual height came during the testimony of Detective Moreno, who was the People’s last witness. In responding to the prosecutor’s question about whom Horsey told Detective Moreno “had the weapon,” the detective responded, “Said a male Black, about 6’3’’, bald, was the one who entered the barbershop with the gun” (Moreno: 471 [A277]). The fact that neither party had elicited this information from Horsey, but rather that it was adduced indirectly — and inadvertently — from the detective in hearsay form, goes to show that the height of the accomplice was a complete afterthought. Notably, the prosecutor never referred to this testimony in her summation, nor did either party ever mention the heights of the accomplice, Horsey, or defendant. 8 weapon who had no fear in displaying that loaded weapon to the victim, Mr. Horsey, pointed it directly at his stomach, and demanding that he give up the jewels. “Take them off right now.” Mr. Horsey had his one-year old son on the other side of his arm. The gunman didn’t care. The defendant didn’t care. All they cared about was the $3900 jewelry and more money to come from the shop (519 [A325]). Significantly, the People never once argued that, even if the jurors for some reason discredited Horsey’s testimony about the gun, they could still convict defendant on the second-degree robbery based on the other actions performed by defendant’s accomplice. Once again, the fact that the People did not argue this theory of liability, in case the jurors had any doubts about whether a gun had been brandished, is reflective of the fact that none of the parties believed that any such alternative theory of liability existed in the first place.2 2 Although defendant contends that “a rational jury could have grounded its verdict” on the evidence of such an “unarmed robbery”(Defendant’s Brief at 38), the notion that, even without the gun, the evidence would have been legally sufficient to establish a robbery is a tenuous proposition, at best. See People v. Brown, 28 Misc.3d 1221(A), at *3 (N.Y. Co. Sup. Ct. 2010) (“The handing of the note to the teller that requested her to ‘give me your money’ followed by a verbal statement to that effect without more, unaccompanied by other statements or conduct, did not constitute a threat of the immediate use of physical force”). In any event, even if it is possible that such a verdict might have barely passed muster, the crucial question, as far as the doctrine of collateral estoppel is concerned, is the manner in which this case was actually tried. Here, it is plain that neither party believed that they were dealing with the “unarmed robbery aided by another person” theory of second-degree robbery that defendant now espouses. 9 By the same token, the defense presented by defendant’s attorney at the first trial clearly demonstrates that he understood that the People were urging that the brandishing of the gun supplied the “force” element for both the first- and second- degree robbery charges. Specifically, counsel launched a zealous attack on the victim’s credibility and urged the jury to conclude that his testimony could not sustain the People’s burden of proof beyond a reasonable doubt (487-506 [A293-312]). Just like the prosecutor, defense counsel never addressed the possibility that the jury might discredit the testimony about the gun and convict defendant of second-degree robbery on an aided, but unarmed, theory. Surely, if the case was tried in the manner that defendant now claims, counsel would have pointed out the same weaknesses in the People’s evidence in this respect, as just described above. That defense counsel said nothing at all about this particular “aided” scenario logically resulted from the fact that, as the parties understood, the brandishing of the gun supplied the “force” element for both robbery counts with which defendant was charged.3 3 Under the Appellate Division’s decision, the error of such a ruling is underscored by the fact that the People will not be able to present any evidence about the gun at a third trial. However, because Horsey’s testimony was the sole evidence establishing the details of the crime, and the gun was so entwined in that narrative, it would be virtually impossible to dissect Horsey’s testimony in this fashion. For example, in his effort to demonstrate that the second-degree robbery conviction was based on an “unarmed” theory, defendant points to the supposed effect of the accomplice merely handing a cell phone to Horsey inside the barbershop: it “forced” Horsey to “stop what he was doing,” and, 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 [another customer’s] care, and exited the barbershop full of waiting customers” (Defendant’s Brief at 36). But, as Horsey’s testimony made clear, he did all those (Continued…) 10 To summarize: defendant’s entire argument depends on convincing this Court that the first jury was presented with different fact-finding decisions as to the two robbery counts. However, based on the nature of the trial evidence, viewed in conjunction with the manner in which the case was actually tried, there is no question that the display of the gun constituted the only threat of force underpinning both robbery counts, including the second-degree “aided” charge. The first jury’s split verdict therefore could not have embodied its rejection of the evidence that defendant’s accomplice brandished a gun, and such a finding cannot reasonably be attributed to the first jury under the doctrine of collateral estoppel. B. Several arguments raised in defendant’s brief warrant short responses. First, defendant insists that the principles elucidated in the repugnancy and weight-of-the- evidence lines of cases “employ different analyses,” and have no relevance here (Defendant’s Brief at 25-26). Yet such a claim ignores the fact that, as the People ___________________________ (…Continued) things exclusively because the accomplice had just pointed a gun at his stomach (Horsey: 301- 04, 336-37, 350-52 [A106-09, A142-43, A155-57]). Defendant also claims that his accomplice “maintain[ed] the threat” by “not allow[ing] Mr. Horsey to step outside alone,” but rather “closely followed behind him” (Defendant’s Brief at 36). Yet once more: the reason that Horsey walked out of the shop, and that he was “followed” in the first place, was that the accomplice had just threatened him with a gun. This holds true for why Horsey surrendered his necklace as soon as his son ran out of the shop (id. at 37). Horsey’s split- second decision to turn over his valuable jewelry makes sense only when viewed against the backdrop of the accomplice’s earlier display of the gun, coupled with Horsey’s knowledge that the man still had the gun in his pocket trained on Horsey. Once again, to try to establish a legally sufficient unarmed but aided robbery before a third jury would be effectively impossible. 11 explained in our main brief (People’s Appellant’s Brief at 32-36), those cases also deal with the definitive factual findings that can be gleaned from a jury’s split and inconsistent verdict. So, for example, if defendant had challenged the first jury’s split verdict as repugnant, and asked that the second-degree robbery conviction be vacated, defendant does not contest that such a request would have had to be rejected out of hand. To hold that, under the same circumstances, the People should have been precluded from introducing evidence about the gun at the second trial would create an unfair inconsistency in the law as a whole. Moreover, defendant is incorrect when he claims that the People are advocating a “more ‘technically restrictive’ approach” to the doctrine of collateral estoppel that would virtually eliminate it in criminal proceedings where the first verdict was an acquittal (Defendant’s Brief at 29 [citation omitted]; see id. at 27 [because the jury has the prerogative of extending mercy to the defendant in “every criminal case,” the People’s position would eliminate collateral estoppel in criminal cases]). Rather, the People are merely urging that, in a case such as this one — where the first jury’s verdict acquitting on one charge and convicting on another was factually inconsistent — no definitive fact-finding can be gleaned for the purpose of collateral estoppel. See People v. Goodman, 69 N.Y.2d 32, 40 (1986) (collateral estoppel is inapplicable if the defendant “can show no more than that the verdict is ambiguous”). Defendant apparently recognizes this fact when he vociferously argues 12 that the conviction on second-degree robbery was not inconsistent with the acquittal on first-degree robbery because it was based on an aided but unarmed theory of force. However, as explained above, such an argument is totally unpersuasive.4 It is for this reason that defendant’s contention that the People, in their main brief, “tacitly conced[ed]” that People v. Acevedo, 69 N.Y.2d 478 (1987) “require[s] reversal” of defendant’s conviction (Defendant’s Brief at 22), is simply wrong. Put another way, there is no merit to defendant assertion that the People have acknowledged that they can prevail in relation to the evidence of the gun only if this Court overrules its decision in Acevedo. To the contrary, as set forth above and expounded throughout the People’s main brief, it is the factual inconsistency in the first jury’s split verdict that renders the doctrine of collateral estoppel inapplicable in this case. As noted in our main brief (People’s Appellant’s Brief at 45-47), Acevedo involved an “all-or-nothing” credibility contest between the complaining witness and 4 Defendant maintains that the People’s present argument is inconsistent with the one presented in the Appellate Division, where the People asserted that the first jury’s split verdict had an apparently rational explanation given the nature of Robert Mitchell’s corroborating testimony (Defendant’s Brief at 4, 33). However, the People also urged before the Appellate Division that, as a factual matter, the first jury’s split verdict was inconsistent and thus collateral estoppel was inapplicable on that ground as well (People’s Appellate Division Brief at 31 n.9). In any event, upon reexamination of the relevant law, the People now realize that, as in the area of repugnancy, the “rationality” of the split verdict is completely irrelevant to the application of collateral estoppel. Rather, regardless of whether the jury acted rationally or merely decided to extend a degree of mercy to defendant when it rendered its split verdict, the factual inconsistency between the acquittal on one charge, and the conviction on another, could not have given rise to a definitive finding of fact under the doctrine of collateral estoppel. 13 the defendant that resulted in a complete acquittal at the first trial, and that gave rise to a definitive factual finding that cannot be inferred from the factually inconsistent verdict rendered here. Thus, a ruling that the Appellate Division erred when it found that the evidence about the gun should have been precluded from the second trial is perfectly consistent with this Court’s prior decision in Acevedo.5 With that said, the People urge that, given the United State Supreme Court’s subsequent ruling in Dowling v. United States, 493 U.S. 342 (1990), this case presents an ideal opportunity for the Court to reconsider its decision in Acevedo. At the outset, although defendant asserts otherwise (Defendant’s Brief at 44-45), the People are not proposing that Dowling abolished the analytical model for collateral estoppel under the Fifth Amendment’s guarantee against double jeopardy. Rather, Dowling merely clarified that collateral estoppel applies in the context of criminal trials only to 5 As to the facts that underlay the two counts of attempted grand larceny on which the first jury acquitted (see Defendant’s Brief at 21), the admission of that evidence at the second trial was nevertheless proper because defendant’s stated intention, on September 15th, to tax Horsey’s business, where Horsey was totally vulnerable, explained why Horsey did not initially report the robbery to the police. Moreover, defendant’s conduct on October 5th shed light on why, after having partially reported the robbery to the police on October 4th, Horsey returned to the police stationhouse the next day and provided a full accounting of what had happened. In any event, the introduction of that proof was harmless insofar as the testimony about the accomplice’s use of a gun, which was properly admitted, was compelling, and the larceny evidence could not have had an impact on the second jury’s verdict convicting defendant of second-degree robbery. However, even if it was not harmless, the appropriate remedy would be to reverse and remand for another trial, with a finding that the evidence about the accomplice’s brandishing of the gun, alone, could be presented to the jury. As previously indicated, under the ruling handed down by the Appellate Division, the evidence that underlies both the counts on which the second jury acquitted, as well as the count on which it convicted, would be precluded at a third trial. 14 the re-litigation of an “ultimate fact,” which is an issue that is the sine qua non of a conviction in the second trial. Goodman, 69 N.Y.2d at 38. The Supreme Court only recently reaffirmed this holding. See Yeager v. United States, 557 U.S. 110, 123 (2009) (“Thus, if the possession of insider information was a critical issue of ultimate fact in all of the charges against petitioner, a jury verdict that necessarily decided that issue in his favor protects him from prosecution for any charge for which that is an essential element”) (emphasis supplied). Although this Court can impose more exacting double jeopardy protection under the New York State Constitution (see Defendant’s Brief at 2-3, 46 n.17), the Court should nonetheless look to Dowling for guidance in this area of the law. That is because, in expanding collateral estoppel to the re-litigation of evidentiary facts in criminal trials, this Court specifically relied on federal circuit court decisions that Dowling has since abrogated. Compare Acevedo, 69 N.Y.2d at 487 (citing, inter alia, Wingate v. Wainwright, 464 F.2d 209 [5th Cir. 1972]), with Wright v. Whitley, 11 F.3d 542, 545-46 (5th Cir. 1994) (recognizing that the Fifth Circuit’s understanding of collateral estoppel had “not been accepted by the Supreme Court,” and concluding 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”). Furthermore, there is a strong logical reason for embracing Dowling — in fact, as explained in the People’s main brief, it is a reason that this Court has frequently 15 invoked in related legal contexts. Namely, 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 People v. Horne, 97 N.Y.2d 404, 413 (2002); 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”); see also 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”). In Dowling, the Supreme Court merely reconciled this settled legal axiom with the doctrine of collateral estoppel. The Dowling Court concluded that, on the one hand, a prior acquittal can still have a preclusive effect in relation to an ultimate fact at a later trial. On the other hand, as the Supreme Court recognized, it defies reason to assign a preclusive effect to a prior acquittal for an evidentiary fact that, at a subsequent trial, does not have to be proven beyond a reasonable doubt. See 16 Dowling, 493 U.S. at 348-50. That sound reasoning was why the Dowling Court overruled the circuit court decisions upon which this Court predicated its decision in Acevedo. That is also why, as detailed in the People’s main brief, numerous state high courts have followed Dowling by clarifying that, under their respective state constitutions and statutes, collateral estoppel applies only to the preclusion of ultimate facts at a later criminal trial (see People’s Appellant’s Brief at 54-55). But the wisdom of Dowling is not only that it avoids the logical pitfall described above. It also comports with the truth-seeking function of a criminal jury trial by ensuring that the fact-finder be permitted to consider all the reliable evidence that is available in deciding a defendant’s guilt or innocence. Still further, as explained in the People’s main brief, allowing for the preclusion of evidentiary facts in the context of split criminal jury verdicts encourages courts to speculate about the factual bases for prior verdicts — an exercise that is proscribed under related areas of New York criminal law in order to safeguard a jury’s privilege to extend mercy to a defendant through an acquittal. See People v. Rayam, 94 N.Y.2d 557, 561-63 (2000); People v. Yanayaco, 99 A.D.3d 416, 417 (1st Dep’t 2012). Acevedo therefore weakens this protection accorded New York’s criminal defendants, which is yet another reason why it is a problematic decision.6 6 Of course, if this Court were to overrule Acevedo, there would be no problem with the admission of the evidence that underlay the attempted grand larcenies. 17 * * * In short, the Appellate Division’s application of the doctrine of collateral estoppel was clearly erroneous. Alternatively, the legal and logical underpinnings of this Court’s decision in Acevedo, finding that collateral estoppel can be applied in a criminal case to evidentiary facts, and not just to ultimate factual determinations, have been eroded and should be reconsidered. Under either scenario, this Court should reject the Appellate Division’s ruling setting aside defendant’s conviction of second- degree robbery. 18 CONCLUSION The order of the Appellate Division should be reversed. 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 May 30, 2013