People v. Acevedo

• Decision Date: 05 May 1987
• Parties: , 508 N.E.2d 665 The PEOPLE of the State of New York, Respondent, v. Frank ACEVEDO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 753

515 N.Y.S.2d 753

69 N.Y.2d 478, 508 N.E.2d 665

The PEOPLE of the State of New York, Respondent, v. Frank ACEVEDO, Appellant.

Court of Appeals of New York.

May 5, 1987.

Susan P. Wheatley, Rose H. Sconiers and John A. Ziegler, Buffalo, for appellant.

Richard J. Arcara, Dist. Atty. (Rosemarie A. Wyman and John J. DeFranks, Buffalo, of counsel), for respondent.

OPINION OF THE COURT

KAYE, Judge.

This appeal presents two questions: first, whether the doctrine of collateral estoppel can be applied to issues of "evidentiary" fact, ¹ and second, if so, whether on the present record such fact issues were necessarily established in defendant's favor at his first trial, so as to preclude their further litigation in defendant's second trial. We answer both questions in the affirmative.

The nature of the questions before us requires a full account of both trials.

Defendant was charged in two indictments with robbery and criminal possession of a weapon for two separate incidents, both occurring in Buffalo on the same day, at approximately the same time, within several blocks of each other. The charges in indictment No. 49331B (the Jakiela robbery) stemmed from an incident in which defendant and a knife-wielding companion allegedly robbed Mark Jakiela. The charges in indictment No. 49331A (the Nello robbery) related to an incident in which he and a knife-wielding companion allegedly robbed William Nello. Although the two indictments were initially consolidated for trial, they were ultimately severed when the prosecutor was unable to locate Nello.

The First Trial: The Jakiela Robbery

The prosecution proceeded first with the Jakiela robbery. At trial, two conflicting versions were given of a December 27, 1981 encounter between defendant and Mark Jakiela--one by Jakiela, one by defendant.

Jakiela, 23 years old, testified that at 4:30 A.M., he left Casey's (a bar) for home, having had nothing to drink except two glasses of wine several hours earlier with dinner. On his way to the Thruway entrance, he drove to a gas station at Porter Avenue and Seventh Street. At trial, Jakiela testified that he had stopped there because he needed to use the restroom; in his statement the morning after the robbery, he claimed that he had gone there for gas. The station, however, was closed and the restroom locked. Jakiela testified that, although the area was well lit and the view from the street unobstructed, he urinated outside the gas station.

According to Jakiela, while he was urinating, someone approached him from behind and placed a 12-inch brown-handled knife at his throat. A second man, identified at trial as defendant, came toward him and asked for his wallet. When Jakiela replied that he had no wallet, defendant demanded cash and his gold ring. After these were handed over, defendant ripped open Jakiela's shirt, looking for chains, and his companion grazed the victim's chest with the knife. The two robbers fled in a brown car driving the wrong way down Busti Avenue. Jakiela recorded the license plate number--900 CFH--on a piece of paper and left for home, passing two police stations he knew were nearby. He contacted the police later that morning. The only other witnesses for the prosecution were defendant's father, who testified that the license plate number given to police by Jakiela was registered to defendant's mother, and a friend of complainant, who saw him leave Casey's at 4:30 A.M.

Defendant portrayed a wholly different encounter. Defendant, 21 years old, testified that he spent the evening and early morning of December 27, 1981 with his fiance at her family's home, leaving at approximate 3:00 A.M. for a Buffalo bar. About an hour later, he drove to LaSalle Park to smoke a marihuana cigarette; defendant said he had quarrelled with his fiance and needed to relax. He parked at the side of the road and, as he began rolling a cigarette, a red car pulled up with Jakiela--whom he had never seen before--inside. Jakiela asked defendant what was happening, and if he could join him. Defendant replied that he was "partying" and agreed to allow Jakiela to join him in his car. The two men shared the cigarette, driving slowly through the park to avoid the police. Halfway around the park, Jakiela made a sexual advance, which defendant rejected, and defendant ordered Jakiela out of the car. Jakiela, who had to walk a half mile across the park on a cold night in order to get back to his car, warned defendant: "I'll get you for this." Defendant further testified that the license plate of the brown car he was driving was 900 CFH, that the plate was well lit and thus would have been visible as he drove away, and that he had not been in the immediate vicinity of the gas station that morning or participated in any incident in which Jakiela was robbed.

The defense summation focused on both Jakiela's lack of credibility and the improbability of his story. Counsel argued that a sober individual who had not had a drink for many hours would hardly have stopped at a deserted gas station at 4:30 A.M. to urinate in a well-lit area in full view of the street, especially when there was a motel/bar across the street. He isolated inconsistencies in Jakiela's account, and noted Jakiela's failure to stop at either of two nearby police stations as well as his failure to call his own father as a witness to his condition when he arrived home following the incident.

The District Attorney, similarly, viewed the case as an uncomplicated choice of one story or the other. In the prosecutor's words, "the issue you have to decide is very simple, it's a relatively straightforward issue * * * you have to believe Mark Jakiela * * * or, you believe the Defendant, it's that simple." He further argued: "if you believe Mark Jakiela's testimony, there's no question [defendant] was guilty of the robbery * * * there's no question Mr. Acevedo is guilty. There's no question and no question is made by Mr. McLeod [defense counsel] of the possession of the weapon that's in the Indictment, the proof as Mr. Jakiela testified to was that there was a robbery with another person * * * jewelry and cash were stolen from him * * * The knife was possessed by one of them, the other person was present, and the two of them acted in concert, or acted together * * * Also, the identification, obviously, Mr. Jakiela identifies Frank Acevedo as the person who robbed him. The point of it is, if Mr. Jakiela's testimony is to be believed, the Defendant is guilty, Mr. McLeod makes no bones about that. So it is a simple matter of you deciding whether to believe that testimony, whether you think beyond a reasonable doubt the Defendant is guilty on the basis of that testimony. You have to decide whether that testimony is truthful."

The court's instructions included an extensive charge on credibility. No lesser included offense charge, or instruction on identification, was requested or given. After one hour of deliberation, the jury returned a verdict acquitting defendant on both counts of the indictment.

The Second Trial: The Nello Robbery

A few weeks later, defendant was tried for the Nello robbery by the same counsel before the same Judge. The complaining witness--William Nello--testified under subpoena that he had been at two bars during the early morning of December 27, 1981, where he consumed a total of two beers, and left at 4:20 A.M. He then drove home, which was located at 793 Busti Avenue--three blocks from the alleged Jakiela robbery. He left the car, removed his glasses--Nello testified he was nearsighted--and began walking toward the house, when he heard someone shout "hey". He then observed a vehicle and, believing he recognized the caller, turned toward the car. He was grabbed from behind by a man who placed a foot-long knife to his throat and threw him into the front seat of the vehicle. The car then drove off, and Nello surrendered two rings, $6, and his keys. After about five minutes, his glasses broken, Nello was pushed from the vehicle. He identified defendant as the driver; without his glasses, however, he was unable to read the license plate. He could recall no distinguishing features of the car except that it was brown and possibly a Chevrolet Nova. Defendant's mother testified that the interior of the car was dilapidated--both seats were torn and strewn with loose foam--and that there were several distinctive stickers visibly displayed inside and outside the car, as well as a tassel dangling from the rearview mirror, and a religious statue affixed to the dashboard. Nello testified that after the incident he awakened a neighbor, borrowed some dimes, and called his girlfriend. Later they reported the incident to the police.

Near the close of the prosecution's case, the People called Mark Jakiela to the stand. Defense counsel objected, urging that a jury had already rejected Jakiela's version of his December 27 encounter with defendant; that Jakiela's testimony would open a "Pandora's box", because it would be impossible for the prosecution to bring out what Jakiela purported to know without raising the events related to that indictment, resulting in a "double jeopardy situation"; and that the defense could not fairly deal with Jakiela's testimony because he could not be cross-examined effectively without introducing prejudicial matters already disposed of. The trial court overruled the objection and permitted Jakiela to testify that on December 27 between 4:30 and 5:00 A.M., he saw defendant and another man at a gas station located at Porter Avenue and Seventh Street. Defendant was the driver of a brown Chevrolet, with license plate number 900 CFH. He left the station driving the wrong way up Busti Avenue, toward Nello's house. On cross-examination, defense counsel elicited only that Jakiela was at Casey's at the same time as Nello.

Following defendant's testimony in which he described the sexual encounter with Jakiela in the park, denied being at the gas...