McGrath v. Gold

• Decision Date: 01 April 1975
• Parties: , 330 N.E.2d 35 In the Matter of Louis McGRATH et al., Appellants, v. Eugene GOLD, as District Attorney of Kings County, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 62

369 N.Y.S.2d 62

36 N.Y.2d 406, 330 N.E.2d 35

In the Matter of Louis McGRATH et al., Appellants, v. Eugene GOLD, as District Attorney of Kings County, et al Respondents.

Court of Appeals of New York.

April 1, 1975.

Stephen R. Mahler, Forest Hills, for appellants.

Eugene Gold, Dist. Atty. (Mark M. Baker, Brooklyn, of counsel), respondent pro se, and for others, respondents.

COOKE, Judge.

Petitioners McGrath and Farrell seek to prohibit the District Attorney of Kings County and certain Justices of the Supreme Court from prosecuting them under two indictments pending in said county. The Appellate Division has dismissed the proceeding.

Under Queens County indictment 4619 for 1972, petitioners were indicted for various counts of grand larceny in the second degree, criminal possession of stolen property in the first degree and unauthorized use of vehicles, as well as for one count of possession of burglar's tools and one of conspiracy in the third degree, all alleged to have been committed on or about and between April 25, 1972 and May 23, 1972. They were also indicted under Kings County indictments 6334 for 1972 and 6652 for 1973 which contained a number of counts for said crimes of grand larceny, criminal possession and unauthorized use perpetrated during the same period. The Kings County counts do not coincide in all respects with those in the Queens indictment. However, for our discussion, we can overlook the dissimilarities. The petition recites: 'we were subsequently arrested and arraigned in Kings County Criminal Court * * * the arrests again being made * * * and the cases based on the same facts and circumstances as the Queens cases (the identity of these cases has been conceded thus far by the Kings County District Attorney's Office in response to previous motions made herein).' The brief of the People states: 'Respondent has always conceded that the automobiles and complainants involved in the Kings County charges are the same as those involved in the Queens County Indictment' and 'the District Attorney of Kings County has continually stipulated as to the similarity of the instant indictment (sic), thus never initiating a factual disparity between the separate charges.'

Pursuant to an order of the Supreme Court, Queens County, dated January 31, 1973, an eavesdropping warrant, as extended, was controverted and any evidence obtained as a result was suppressed. The memorandum on which said order was based cited CPL 700.20 (subd. 2, par. (d); subd. 3), Aguilar v. Texas (378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723) and Spinelli v. United States (393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637), and stated that the motion was granted '(s) ince the affidavit in this application does not contain the basis of the informant knowledge or belief nor does it meet the two-pronged test, namely the credibility of the information imparted by the informer, nor does it show any personal observations of the detective involved that would meet the standards of probable cause'. By a further order dated March 7, 1973, on an application by McGrath, said court granted a motion to controvert a search warrant, since it was obtained as a result of said eavesdropping 'previously determined to have been improvidently issued', and dismissed indictment 4619 for 1972 since, upon inspection of the Grand Jury minutes and upon excising therefrom evidence seized as a result of the search warrant declared invalid, there was 'insufficient legal evidence contained therein to sustain the indictment.' No appeal was taken from either order.

Petitioners now contend that, by virtue of the Queens County rulings, the People are precluded from prosecuting under the Kings County indictments because of double jeopardy, Res judicata, collateral estoppel and law of the case.

The double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage and is applicable to the States through the Fourteenth Amendment (Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707). Its protection to the individual is also preserved by our State Constitution (N.Y. Const., art. I, § 6), but its definition is left to the State Legislature (Matter of Klein v. Murtagh, 44 A.D.2d 465, 469, 355 N.Y.S.2d 622, 626--627, affd. 34 N.Y.2d 988; People v. Fernandez, 43 A.D.2d 83, 87, 349 N.Y.S.2d 774, 777--778). Obviously, petitioners were not 'prosecuted' in Queens County within the meaning of CPL 40.20, prescribing the circumstances when a previous prosecution is a bar to a second prosecution, since, under CPL 40.30 (subd. 1), the action did not terminate in a conviction upon a plea of guilty or proceed to the trial stage where a witness was sworn (see L.1970, ch. 996, § 1, eff. Sept. 1, 1971) or where a jury was impaneled and sworn or, in the case of a trial by the court without a jury, a witness was sworn (see L.1974, ch. 80, § 1, eff. March 19, 1974; People v. Scott, 40 A.D.2d 933, 337 N.Y.S.2d 640; 1974 Supplementary Practice Commentary on CPL 40.20 in McKinney's Cons.Laws of N.Y., Book 11A, CPL 1--169). None of the exceptions in the other subdivisions of CPL 40.30 is applicable.

There has been some confusion in terminology regarding these principles (see 46 Am.Jur.2d, Judgments, § 397; 5 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 5011.08; Wachtel New York Practice Under the CPLR (4th ed.), pp. 361--367). Although collateral estoppel, as an aspect of the broader doctrine of Res judicata, was originally developed in connection with civil litigation (Hoag v. New Jersey, 356 U.S. 464, 470, 78 S.Ct. 829, 2 L.Ed.2d 913, see United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161), it is also applicable in criminal cases (Yates v. United States, 354 U.S. 298, 335--336, 77 S.Ct. 1064, 1 L.Ed.2d 1356; People v. Lo Cicero, 14 N.Y.2d 374, 251 N.Y.S.2d 953, 200 N.E.2d 622; People v. Dreares, 15 A.D.2d 204, 206, 221 N.Y.S.2d 819, 821, affd. 11 N.Y.2d 906, 228 N.Y.S.2d 467, 182 N.E.2d 812), although not always in quite the same way as in civil cases (People v. Reisman, 29 N.Y.2d 278, 285, 327 N.Y.S.2d 342, 348, 277 N.E.2d 396, 400, cert. den. 405 U.S. 1041, 92 S.Ct. 1315, 31 L.Ed.2d 582, see, generally, Res Judicata--Criminal Cases, Ann., 9 A.L.R.3d 203, 212--214, 233--239).

Collateral estoppel means simply that, when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit (Ashe v. Swenson, 397 U.S. 436, 443, 445, 90 S.Ct. 1189, 25 L.Ed.2d 469; see People v. Cunningham, 62 Misc.2d 515, 519, 308 N.Y.S.2d 990, 994--995). This doctrine has acquired constitutional dimension since the Supreme Court in Ashe held that it is embodied in the guarantee of the Fifth Amendment of the United States Constitution against double jeopardy.

As indicated in Ashe, an ultimate fact adjudged or determined in the previo litigation must be accepted by the same parties in subsequent litigation (cf. People v. Rodgers, 184 App.Div. 461, 465, 171 N.Y.S. 451, 453--454, affd. 226 N.Y. 671, 123 N.E. 882), and collateral estoppel does not apply to an unmixed question of law (cf. United States v. Moser, 266 U.S. 236, 242, 45 S.Ct. 66, 69 L.Ed. 262). Supreme Court, Queens County, controverted the search warrant and dismissed the indictment, it being stated in the supporting memorandum that the affidavit supporting the search warrant indicates that probable cause for said warrant was furnished at least in part as a result of an eavesdropping order previously determined to have been improvidently issued. It was further held that, upon inspection of the Grand Jury minutes and excising therefrom the evidence seized as a result of the search warrant, declared to be invalid, there was insufficient legal evidence to sustain the indictment. Thus, the fall of the indictment follows in direct sequence from the suppression order respecting 'the tapes and any evidence obtained as a result therefrom'. In the memorandum preceding said order, after citing CPL 700.20 (subd. 2, par. (d); subd. 3) and the decisions in...