People v. Notrica

• Decision Date: 07 July 1971
• Citation: 323 N.Y.S.2d 198,66 Misc.2d 945
• Parties: PEOPLE of the State of New York, Plaintiff, v. Mark NOTRICA, Defendant.
• Court: New York District Court

Page 198

323 N.Y.S.2d 198

66 Misc.2d 945

PEOPLE of the State of New York, Plaintiff, v. Mark NOTRICA, Defendant.

District Court, Suffolk County, First District.

July 7, 1971.

[66 Misc.2d 946] George J. Aspland, Dist. Atty., Suffolk County, by Ronald E. Lipetz, Asst. Dist. Atty., for the People.

Sarisohn, Thierman & Sarisohn, Commack, for defendant.

MEMORANDUM

ROCKWELL D. COLANERI, Judge.

Defendant moves to reargue the denial of his motion to suppress upon the ground that another judge of this court had determined on the same facts in another case that probable cause did not exist for the making of an arrest or a search.

At the outset, defendant's reliance on People v. Anonymous A, 56 Misc.2d 1022, 290 N.Y.S.2d 337, is misplaced. While it is true 'that a motor vehicle stopped for a violation under the Vehicle and Traffic Law cannot be searched as there are no fruits of a traffic violation which would justify a search', the court did state 'had it appeared that the car was in fact stolen, or had the police observed therein any weapons or Contraband in open view, probable cause existing for an arrest for those crimes, an incidental search contemporaneous with such arrest would have been justified' (People v. Russo, 38 Misc.2d 957, 239 N.Y.S.2d 374 (loaded sawed off shotgun); People v. Isaac, 38 Misc.2d 1018, 239 N.Y.S.2d 624 (marijuana); emphasis added, at 1021, 239 N.Y.S.2d at 627). Defendant, herein, is charged with a violation of Penal Law section 220.05 (possession of marijuana). In short, the observance of contraband in open view in a vehicle stopped for a traffic violation does not constitute a 'search' nor can it be considered unreasonable. (People v. Ryder, 24 A.D.2d 497, 261 N.Y.S.2d 651; People v. Goldstein, 60 Misc.2d 745, 304 N.Y.S.2d 106; People v. Boyd, 57 Misc.2d 769, 293 N.Y.S.2d 754). Several factors are necessary for consideration before the motion to reargue is decided.

The doctrine of the law of the case applies to a prior interlocutory ruling which remains unchallenged and is thus controlling for the remainder of the case. (Mount Sinai Hospital Inc. v. Davis, 8 A.D.2d 361, 188 N.Y.S.2d 298; Pugatch v. David's Jewelers, 53 Misc.2d 327, 278 N.Y.S.2d 759). This doctrine is not applicable to the present situation because while there is the same set of facts, there are separate informations and prosecutions against two different defendants.

Collateral estoppel in criminal cases is embodied in the Fifth Amendment's guaranty against double jeopardy and is enforceable against the states through the Fourteenth Amendment's due process clause (Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469). The doctrine of collateral estoppel is 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, supra at 443, 90 S.Ct. at 1194).

Collateral estoppel has been held to apply to questions of fact and to mixed questions of law and fact (People v. Minton, Murov, J., 54 Misc.2d 552, 283 N.Y.S.2d 73; People v. De Sisto, 27 Misc.2d 217, 214 N.Y.S.2d 858, rev'd on other grounds People v. Lo Cicero, 17 A.D.2d 31, 230 N.Y.S.2d 384, modified 14 N.Y.2d 374, 251 N.Y.S.2d 953, 200 N.E.2d 622) but not to questions of law (People v. Federal Builders & Home Modernization Corp., 65 Misc.2d 407, 317 N.Y.S.2d 942).

A fact that is necessarily decisive in this prosecution and which could not possibly be determined without contradicting the former determination of such fact, is binding in this prosecution. (People v. Minton, supra; People v. Cunningham, 62 Misc.2d 515, 308 N.Y.S.2d 990).

However, the defendants are not the same and, therefore, there is not the 'same parties' or an 'identity of parties' (Ashe v. Swenson, supra 397 U.S. at 443, 90 S.Ct. 1189; People v. De Sisto, supra 27 Misc.2d at 239, 214 N.Y.S.2d at 884). People v. Scandifia, 41 Misc.2d 320, 245 N.Y.S.2d 679, did hold that the validity of the search warrant having been sustained as to a codefendant and upon the same motion by defendant, 'the principle of res judicata operates adversely to the (present) defendant'. (People v. Scandifia, supra at 332, 245 N.Y.S.2d at 681).

The court is mindful that criminal verdicts as between two or more defendants tried together need not demonstrate rational consistency (People v. Hovnanian, 16 A.D.2d 818, 228 N.Y.S.2d 771; Cf. People v. Munroe, 190 N.Y. 435, 83 N.E. 476) nor do verdicts in a multicount indictment require consistency (People v. Hollenbeck, 9 A.D.2d 983, 194 N.Y.S.2d 543). Courts have considered the facts and circumstances of the case and have explained away or reconciled the inconsistencies on any rational basis. (People v. Scheppa, 295 N.Y. 359, 67 N.E.2d 581; People v. Haupt, 247 N.Y. 369, 160 N.E. 643; People v. Hovnanian, supra; People v. Hollenbeck, supra). It is sometimes stated that the 'jury failed to do their duty' (People v. Cohen, 223 N.Y. 406, 429, 119 N.E. 886, 893) or the 'jury in the consideration of this evidence, * * * must have violated their oaths * * *.' (People v. Munroe, supra, 190 N.Y. at 438, 83 N.E. at 477) or that the 'jury may have given mercy' (People v. Cohen, supra, 223 N.Y. at 430, 119 N.E. at 893) in either upholding the inconsistency of verdicts or in reversing inconsistent verdicts.

Furthermore, other states have held that a judgment of acquittal or conviction does not operate as res judicata in the prosecution of another defendant, even though the 'same transaction' is involved (9 A.L.R.3rd 203, sec. 3(c) (note the section does not state 'same...