People v. Nieves

• Decision Date: 31 July 1980
• Citation: 431 N.Y.S.2d 892,106 Misc.2d 395
• Parties: The PEOPLE of the State of New York v. Edwin NIEVES and Carmen Orta, Defendants. The PEOPLE of the State of New York v. Hector PERALEZ and Carmen Peralez, Defendants.
• Court: New York Supreme Court

Page 892

431 N.Y.S.2d 892

106 Misc.2d 395

The PEOPLE of the State of New York v. Edwin NIEVES and Carmen Orta, Defendants.

The PEOPLE of the State of New York v. Hector PERALEZ and Carmen Peralez, Defendants.

Supreme Court, Criminal Term, Bronx County, Part 23.

July 31, 1980.

Mario Merola, Dist. Atty., Bronx County by Ross Weaver, Asst. Dist. Atty., for the People.

Lewis E. Alperin, Messinger, Alperin & Hufjay, Mount Vernon, for defendants.

MURRAY KOENIG, Judge:

The following constitutes the opinion, decision and order of the Court.

This case presents the interesting question of whether a judicial order invalidating a search warrant requires the suppression, under the doctrine of collateral estoppel, of all evidence seized in the course of the execution of the warrant vis-a-vis defendants who were not parties to the motion to controvert the warrant.

The defendants stand indicted of felony charges for drug related offenses and weapons possession. The common denominator underlying the charges is that the items of contraband constituting the physical evidence of the commission of these crimes was obtained by the police in the course of the execution of a warrant, signed by Justice Louis A. Cioffi of this Court on April 2, 1979, for the search of a residential building located at 2170 Hughes Avenue in Bronx County.

A thorough search of this multiple dwelling building of twenty-five apartments and its common area was conducted by the police pursuant to this warrant on April 3, 1979. The search yielded contraband consisting of weapons, drugs and drug paraphernalia that was the basis for the arrest of twenty-eight persons found in and about the building. Various felony and misdemeanor charges were filed against these persons. In particular, felony complaints were filed against the four defendants at bar since the contraband discovered within their respective apartments constituted a felony. None of the other defendants were charged with the possession of this contraband.

A motion to controvert the search warrant pursuant to CPL 710.50, subdivision 1(c) and CPL 710.60 was then brought in the Criminal Court by defendants' counsel, Mr. Lewis Alperin, on behalf of all of the twenty-eight persons that had been arrested in the course of the search. Before this motion was decided, the four present defendants were indicted on the charges contained in the aforementioned felony complaints that had been filed against them. Their cases were thus removed from the jurisdiction of the Criminal Court to that of the Supreme Court (N.Y. Const., art. VI, § 7(a)). The charges against those remaining defendants that had been charged with felonies were reduced to misdemeanors.

Thereupon, proceedings to hear and determine the motion to controvert the search warrant were held in Criminal Court on behalf of the twenty-four purported misdemeanant defendants. The motion was opposed by the Office of the District Attorney of Bronx County. A hearing on the motion was held before Judge Jerome Becker of the Criminal Court, wherein the People vigorously exercised a full and fair opportunity to litigate the validity of the search warrant. In a written opinion ¹ dated September 27, 1979, ² Judge Becker granted the motion to controvert the search warrant, finding that it was unconstitutionally over-broad on the ground that a search of all twenty-five apartments was not supported by probable cause. He accordingly ordered the suppression of the evidence seized under the authority of the warrant.

At that juncture, the People determined that it would be unable to present a prima facie case at trial without the suppressed evidence and moved to dismiss the Criminal Court misdemeanor complaints, which motion was granted. The People failed to exercise its right to appeal from the suppression order to the Appellate Term (CPL 450.20, subd. 8; CPL 450.50; CPL 460.10, subd. 1(a)). An appeal of that order is thus foreclosed at the present time (see, People v. Thomas, 47 N.Y.2d 37, 43, 416 N.Y.S.2d 573, 389 N.E.2d 1094 (1979)).

The People now wish to proceed with the prosecution of the indictments against the four defendants before the court. The defendants have made a motion for the suppression of the physical evidence against them on the ground that it had previously been judicially determined in the Criminal Court proceedings to which the Office of the District Attorney of Bronx County was a party, that the search warrant which led to the police discovery of the evidence was unconstitutionally overbroad and, consequently, invalid. The defendants therefore seek to have the court invoke the doctrine of collateral estoppel to prevent the People from relitigating the issue of the validity of the search warrant and the resulting necessity for the suppression of the evidence thereby obtained.

The People have opposed the motion on two main grounds: (1) the defendants were not parties to the Criminal Court suppression proceedings, and (2) the evidence against the defendants was not in issue in the Criminal Court proceedings since it was found in the respective apartments occupied by these defendants, and was not the basis of any of the charges pending against the misdemeanant defendants in Criminal Court.

Preliminarily, the Court notes that our Court of Appeals has held that the doctrine of collateral estoppel does not apply to an unmixed question of law (Matter of McGrath v. Gold, 36 N.Y.2d 406, 411, 369 N.Y.S.2d 62, 330 N.E.2d 35, supra). However, this holding does not pose a barrier to the application of the doctrine in the present case which involves a previous judicial determination that the search warrant in issue was not founded upon probable cause, as "The question of probable cause is a mixed question of law and fact" (People v. Oden, 36 N.Y.2d 382, 384, 368 N.Y.S.2d 508, 511, 329 N.E.2d 188, 190 (1975)).

It was further held in Matter of McGrath v. Gold, supra, that the doctrine of collateral estoppel is inapplicable to suppression orders that are of an interlocutory nature (36 N.Y.2d, at 412, 369 N.Y.S.2d 62, 330 N.E.2d 35). The suppression order presently in issue is not of an interlocutory nature. Rather, it is a final order dispositive of the case against the misdemeanant defendants due to the failure of the People to exercise their right of appeal and to People's motion dismissing the charges for lack of evidence to proceed as a consequence of the suppression order. No hope remains of resurrecting those dismissed misdemeanor charges; the prosecution is thus terminated in regard to them. Consequently, this Court has determined that this suppression order is a final order that is capable of working a collateral estoppel effect if the other prerequisites of the doctrine are found to exist (cf. United States ex rel. Di Giangiemo v. Regan, 528 F.2d 1262, 1265 (2d Cir. 1975), cert. den. sub nom. Di Giangiemo v. Olgiatti, 426 U.S. 950, 96 S.Ct. 3172, 49 L.Ed.2d 1187 (1976); People v. Plevy, 67 A.D.2d 591, 596-597, 416 N.Y.S.2d 41 (2d Dept. 1979); People v. Scott, 93 Misc.2d 1074, 1080, 405 N.Y.S.2d 169 (Sup.Ct., Bronx County, 1978)).

In civil cases the requirements for the application of the doctrine are two-fold: "First, it must be shown that the party against whom collateral estoppel is sought to be invoked had been afforded a full and fair opportunity to contest the decision said to be dispositive of the present controversy. Additionally, there must be proof that the issue in the prior action is identical, and thus decisive, of that in issue in the current action" (Gramatan Home v. Lopez, 46 N.Y.2d 481, 485, 414 N.Y.S.2d 308, 311, 386 N.E.2d 1328, 1331 (1979), citing Schwartz v. Public Administrator of County of Bronx, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955, 246 N.E.2d 725 (1969)). However, a third requirement has been imposed for the application of the doctrine in criminal cases namely, that "the parties are the same * * * or are so clearly related that they may be deemed as one for these purposes" (citations omitted) (People v. Berkowitz, 50 N.Y.2d 333, 428 N.Y.S.2d 927, 406 N.E.2d 783 (1980)). See People v. Rasero, 62 A.D.2d 845, 849, 406 N.Y.S.2d 458 (1st Dept., 1978).

Applying these criteria to the case at hand, it is conceded by the People that the issue of the constitutional validity of this search warrant is identical to the issue decided against them by the suppression order of the Criminal Court. It is further conceded by the People that this determination is decisive of the issue presented in the current motion to suppress the evidence sought to be introduced against the defendants as the fruits of a seizure made in the execution of the very same warrant. Further there is no question that the People, the party against whom collateral estoppel is sought to be invoked, have had a full and fair opportunity to contest the issue of the validity of the warrant, both in the Criminal Court proceeding wherein the issue was decided against them and by being afforded a statutory right of appeal, which they failed to exercise. The sole obstacle, therefore, to the invocation of the doctrine of collateral estoppel in this case is the fact that the present defendants were not parties to the suppression proceedings in the Criminal Court.

This is an imposing obstacle, but not an insurmountable one. An examination of the criminal cases upon which the People rely, that have imposed the requirement of identity of parties reveals that the context involved an attempt by a defendant to stymie his prosecution by virtue of the fact that a codefendant, who had been tried separately, had been acquitted of charges stemming from the same criminal transaction (see, e. g., People v. Berkowitz, supra; People v. Rasero, supra; People v. O'Dell, 34 A.D.2d 856, 310 N.Y.S.2d 645 (3rd Dept. 1970); United States v. Musgrave, 483 F.2d 327 (5th Cir.), cert. den. 414 U.S. 1023, 94 S.Ct. 447, 38 L.Ed.2d 315 (1973); People v. Legrand, 88 Misc.2d 685, 389 N.Y.S.2d 531 (...