People v. Evans

CourtNew York Court of Appeals
Citation727 N.E.2d 1232,706 N.Y.S.2d 678,94 N.Y.2d 499
PartiesTHE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ERIC EVANS, Appellant.
Decision Date29 February 2000

David E. Liebman, New York City, for appellant.

Robert M. Morgenthau, District Attorney of New York County, New York City (Susan Axelrod and Patrick J. Hynes of counsel), for respondent.




In this armed robbery case, the issue before us is whether, upon a retrial following a hung jury, the "law of the case" doctrine required the successor Trial Judge to adhere to the Sandoval ruling made at the first trial. We conclude that it did not.


As presented at both trials, the case against defendant rested on testimony that defendant and an accomplice, armed with a gun, robbed a driver of his car and some personal property. The police were summoned, gave chase and found defendant hiding under a van, after he and the accomplice had fled the stolen car on foot.

Prior to the first trial, Justice James Leff conducted a Sandoval hearing to determine the extent to which the prosecutor would be able to cross-examine defendant. His criminal record contained some 12 dispositions extending over an 11-year period. The oldest was defendant's youthful offender adjudication based on a third degree criminal possession of an automatic pistol. Defendant also had eight misdemeanor convictions: six for drug possession, one for criminal facilitation and one for unauthorized use of a vehicle. In addition, he had been convicted of three felonies: fifth degree sale of a controlled substance, third degree weapons possession and third degree attempted sale of a controlled substance. Justice Leff precluded the People from asking defendant about anything in his criminal past. Defendant testified at trial. After the jury could not agree on a verdict, Justice Leff ordered a new trial.

At the outset of defendant's retrial before Justice Nicholas Figueroa, defendant argued that Justice Leff's Sandoval ruling was binding on the court as the "law of the case." Concluding that he was not bound by the prior Sandoval ruling, Justice Figueroa exercised his discretion by allowing the prosecution to ask defendant—were he to testify—whether he had been convicted of three felonies (including the underlying acts of one, involving a drug sale) and a misdemeanor. The court prohibited cross-examination as to the rest. Defendant did not testify at the second trial. The jury found him guilty of robbery in the first degree, robbery in the second degree and criminal possession of a weapon in the second degree. The Appellate Division affirmed his conviction and a Judge of this Court granted defendant leave to appeal. We affirm.


Defendant does not contend that Justice Figueroa's Sandoval ruling was erroneous on its merits. Put differently, he does not claim that Justice Figueroa abused his discretion by allowing the prosecutor to cross-examine defendant as to the four convictions. Rather, he asserts that the "law of the case" operated to bar Justice Figueroa from making a second Sandoval ruling at all.

The law of the case doctrine is part of a larger family of kindred concepts, which includes res judicata (claim preclusion) and collateral estoppel (issue preclusion).1 These doctrines, broadly speaking, are designed to limit relitigation of issues. Like claim preclusion and issue preclusion, preclusion under the law of the case contemplates that the parties had a "full and fair" opportunity to litigate the initial determination (see, Arizona v California, 460 US 605, 619

; People v Guerra, 65 NY2d 60, 63; Sales v State Farm Fire & Cas. Co., 902 F2d 933, 936 [11th Cir 1990]).

As distinguished from issue preclusion and claim preclusion, however, law of the case addresses the potentially preclusive effect of judicial determinations made in the course of a single litigation before final judgment (Matter of McGrath v Gold, 36 NY2d 406, 413

; Walker v Gerli, 257 App Div 249, 251; see generally, Steinman, Law of the Case: A Judicial Puzzle in Consolidated and Transferred Cases and in Multidistrict Litigation, 135 U Pa L Rev 595 [1987]; 18 Wright, Miller & Cooper, Federal Practice and Procedure § 4478). Res judicata and collateral estoppel generally deal with preclusion after judgment: res judicata precludes a party from asserting a claim that was litigated in a prior action (see, Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347), while collateral estoppel precludes relitigating an issue decided in a prior action (see, Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640, 649). Accordingly, law of the case has been aptly characterized as "a kind of intra-action res judicata" (Siegel, New York Practice § 448, at 723 [3d ed]).

Res judicata and collateral estoppel are rules of limitation recognized in the CPLR. Indeed, in a civil proceeding a party is entitled, by statute, to a dismissal based on issue preclusion or claim preclusion (see, CPLR 3211 [a] [5]), both of which are also designated as affirmative defenses (see, CPLR 3018 [b]).2 Contrastingly, the law of the case doctrine is found in no New York statute. Beyond these procedural differences, law of the case rests on a foundation that further distinguishes it from issue and claim preclusion. Whereas the latter concepts are rigid rules of limitation, law of the case is a judicially crafted policy that "expresses the practice of courts generally to refuse to reopen what has been decided, [and is] not a limit to their power" (Messenger v Anderson, 225 US 436, 444). As such, law of the case is necessarily "amorphous" in that it "directs a court's discretion," but does not restrict its authority (see, Arizona v California, 460 US, at 618,


Over the years, the phrase "law of the case" has appeared at various times in New York decisional law, but it has not always meant the same thing (see, Black, Judicial Precedents or Science of Case Law [1912]). While this Court has used the term to connote a preclusive type doctrine (e.g., Booth v Bunce, 31 NY 246, 250; People ex rel. Davis v Sturtevant, 9 NY 263, 267), it has also been used colloquially (e.g., Sanford v Eighth Ave. R. R. Co., 23 NY 343, 346; Belmont v Coleman, 21 NY 96, 100). For a time, the phrase described jury charges to which no objection was taken (e.g., People v Lobel, 298 NY 243, 254; Brown v Du Frey, 1 NY2d 190, 195). As this Court observed in Martin v City of Cohoes (37 NY2d 162, 165), that usage is no longer current, in part because the Appellate Division is free, in the interest of justice, to review unpreserved error (see also, 12 Weinstein-Korn-Miller, NY Civ Prac ¶ 5501.11).

The term "law of the case" is also used, often in Federal court decisions, to describe the doctrine requiring a lower court, on remand, to follow the mandate of the higher court (see, e.g., Prisco v A & D Carting Corp., 168 F3d 593, 607, n 10

; Day v Moscow, 955 F2d 807, 812,

cert denied 506 US 821). In that setting, there is no discretion involved; the lower court must apply the rule laid down by the appellate court (18 Solum, Moore's Federal Practice § 134.23 [1] [a], at 134-58 [3d ed]).3 Although we too have employed the term in that way (e.g., Preston Corp. v Fabrication Enters., 68 NY2d 397, 405), we now refer to it primarily in the manner raised on this appeal—as a concept regulating pre-judgment rulings made by courts of coordinate jurisdiction in a single litigation (Martin v City of Cohoes, 37 NY2d 162, 165, supra; Matter of McGrath v Gold, 36 NY2d 406, 413,

supra; see also, United States v Todd, 920 F2d 399 [6th Cir]; United States v Williams, 728 F2d 1402 [11th Cir]; United States v Riley, 684 F2d 542 [8th Cir], cert denied 459 US 1111).

We agree with defendant insofar as he asserts that the law of the case doctrine is designed to eliminate the inefficiency and disorder that would follow if courts of coordinate jurisdiction were free to overrule one another in an ongoing case. This Court recognized as much in Matter of Dondi v Jones (40 NY2d 8, 15), when it cautioned that "a court should not ordinarily reconsider, disturb or overrule an order in the same action of another court of co-ordinate jurisdiction" (see also, Martin v City of Cohoes, 37 NY2d, at 165,


Although the vast majority of law of the case jurisprudence arises in civil cases, defendant also correctly argues that the concept is appropriate in criminal cases as well (e.g., People v Nieves, 67 NY2d 125, 137

; People v Malizia, 62 NY2d 755, 758; People v Leon, 264 AD2d 784 [barring reconsideration of a request for a Mapp hearing]; People v Rodriguez, 244 AD2d 364 [barring reconsideration of motion to dismiss indictment], lv denied 91 NY2d 896; People v Johnson, 131 AD2d 696 [same]; People v Guin, 243 AD2d 649,

lv denied 91 NY2d 834 [barring reinspection of Grand Jury minutes]; People v Broome, 151 AD2d 995 [barring Wade hearing redetermination]).

Law of the case, however, does not contemplate that every trial ruling is binding on retrial. By asserting that the successor Judge had no discretion but to adhere fully to the earlier Sandoval ruling, defendant, in effect, seeks inappropriately to impose the strict, legal application of claim and issue preclusion on the more flexible doctrine of law of the case. If that were so, a Judge conducting a retrial would be corseted by each of the previous Judge's evidentiary rulings, including those, for example, dealing with leading questions, or the manner in which an exhibit is marked or shown to a jury or some other discretionary call. Obviously, distinctions must be made.

Although this Court's precedents on the law of the case in the usage before us are sparse, there are two cases in which the issue is touched upon, and they point the way to our determination. Between them, they establish that an ...

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