People v. Plevy

• Decision Date: 22 December 1980
• Citation: 52 N.Y.2d 58,417 N.E.2d 518,436 N.Y.S.2d 224
• Parties: , 417 N.E.2d 518 The PEOPLE of the State of New York, Respondent, v. Jules E. PLEVY, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 224

436 N.Y.S.2d 224

52 N.Y.2d 58, 417 N.E.2d 518

The PEOPLE of the State of New York, Respondent, v. Jules E. PLEVY, Appellant.

Court of Appeals of New York.

Dec. 22, 1980.

Kent V. Moston, Albertson, Matthew Muraskin, Michael J. Obus and Richard Greenberg, Mineola, for appellant.

Denis Dillon, Dist. Atty. (Bruce E. Whitney and William C. Donnino, Asst. Dist. Attys., of counsel), for respondent.

OPINION OF THE COURT

WACHTLER, Judge.

In two separate, and unrelated, prosecutions for murder and burglary the defendant moved to suppress evidence seized from his room pursuant to several search warrants which were based, in part, on observations made by a police officer while in the defendant's room. The defendant urged in each case that he did not consent to the initial police entry of his room. In the murder prosecution the issue was decided against the defendant after a hearing at which he chose not to testify. At the suppression hearing in the burglary case, conducted after the defendant's conviction for murder, the defendant offered to testify on the consent issue but was held to be collaterally estopped from relitigating the point.

The defendant now appeals from an Appellate Division order, 67 A.D.2d 591, 416 N.Y.S.2d 41, affirming his conviction, after trial, for burglary and petit larceny. He claims that collateral estoppel should not be employed against a defendant at any stage of a criminal case including a pretrial suppression hearing; and, alternatively that even if the doctrine is generally applicable, the court should not have employed it under the circumstances of this case. The District Attorney disputes these contentions and, in the alternative, urges that if the court erred in holding the defendant collaterally estopped on the consent issue, a new hearing is not required because even if the observations in the defendant's room were excluded, the information remaining in the warrant application would alone be sufficient to establish probable cause.

On September 26, 1975 one of the defendant's neighbors informed the police that a man, fitting the defendant's description, had placed a tan plastic bag containing a woman's clothing, identifying papers and personal effects in a garbage can in front of the neighbor's Lynbrook home. The bag also contained a surgical glove, blackened goggles and other items. The police in Nassau discovered that the personal items belonged to a young woman who had been reported missing by her father in Kings County, and who was later found to have been murdered. ¹ Another neighbor told the police that she had seen a man carrying the bag through her backyard toward the street, after which he returned without the bag and entered the house behind hers. The police placed that house under surveillance.

Later in the day, seeing the silhouettes of two men and a woman against one of the windows, a police officer went to the door to investigate. The door was answered by the defendant, who fit the description of the man who had been seen carrying the bag. The officer told the defendant that his name had come up during an investigation, and asked the defendant if he would come to headquarters to answer some questions. The defendant agreed and went to his room to get a jacket. According to the officer the defendant also agreed that the officer could accompany the defendant to his room where the officer observed a tan plastic garbage bag, a surgical glove, butcher knife and meat cleaver.

At the police station the defendant, assisted by an attorney, signed a statement in which he claimed that he had found the bag, brought it to his home, gone through it looking for valuable items, and finding none, placed it in a neighbor's garbage can.

The following day, September 27, all of this information, including the signed statements of the defendant and his neighbors, was presented to a Justice in Nassau County in support of an application for a search warrant. That same day the police returned with the warrant and seized a tan plastic garbage bag, surgical glove, knife and cleaver from the defendant's room. While executing that warrant, the officers came across evidence of two burglaries, including a money bag bearing a bank serial number which, they discovered, had been reported stolen from a beauty parlor in Oceanside.

The police then obtained a second warrant, which is the subject of this appeal. On September 29, Nassau police officers executed the warrant and recovered the evidence of the burglaries form the defendant's room. On that occasion they were accompanied by New York City police officers who were executing another search warrant issued by a New York City Justice in connection with the murder.

In Kings County the defendant was indicted for murder. In Nassau County he was indicted for burglary and related offenses committed at the Oceanside beauty parlor. ²

Prior to trial on the murder charge the defendant moved in Kings County to suppress the evidence seized when the New York City warrant was executed. He contended that this warrant had been issued in violation of certain statutory requirements and that in executing the warrant the police had, in some instances, searched places and seized evidence not authorized in the warrant. He also sought to show, by cross-examination of the Nassau County police officer, that the initial entry of the defendant's room on September 26 was a trespass and that all the evidence subsequently obtained was tainted. The officer, however, testified that the defendant had given him permission to accompany him while he obtained his jacket. The defendant, as indicated, chose not to testify at this hearing.

At the conclusion of the hearing the court delivered an oral opinion from the Bench in which he granted the defendant's motion in part and suppressed certain items taken from places not specified in the warrant. When the defendant requested a ruling on the consent issue the court stated that he credited the police officer's testimony, specifically noting that there was no testimony to the contrary.

A jury subsequently found the defendant guilty of murder. The conviction was affirmed by the Appellate Division (60 A.D.2d 896, 401 N.Y.S.2d 755) and leave to appeal to this court was denied (44 N.Y.2d 956, 408 N.Y.S.2d 1036, 380 N.E.2d 346).

After defendant's conviction for murder in Kings County he was brought to trial on the burglary charge in Nassau County. Prior to that trial he moved to suppress the evidence taken from his room pursuant to the second Nassau County warrant executed on September 29. First he claimed that the warrant application contained material false statements of fact. Secondly, he urged, as he had in the earlier suppression hearing, that he did not consent to the police entry of his room on September 26. At this proceeding, however, he offered to testify on the point. He claimed that he had not been able to fully litigate the issue, by testifying on his own behalf, at the hearing in the murder case because he did not want his testimony to be used against him in any way, even for the limited purposes of impeachment, in view of the seriousness of the charge he faced at the trial in that case. ³

The court conducted a hearing on the defendant's first point and found that, despite some inconsistencies or inaccurate statements with respect to the timing of certain events, there were no material false statements. On the second point, however, the court held the defendant was precluded from testifying or otherwise relitigating the consent issue which had been decided against him at the prior hearing where he had a full opportunity to testify, although he had chosen not to do so.

As indicated, the defendant was convicted at trial. The Appellate Division affirmed in an opinion in which it concluded that all the prerequisites for the application of collateral estoppel had been met in this case. The court recognized that in Matter of McGrath v. Gold, 36 N.Y.2d 406, 369 N.Y.S.2d 62, 330 N.E.2d 35, we had held that the District Attorney could not be collaterally estopped by a suppression determination made in another case because the order was not final. Here, however, the Appellate Division concluded that the order denying suppression in the murder case had become final and, thus binding upon the defendant in the burglary case, once he had been convicted on the murder charge.

The common-law doctrine of collateral estoppel is designed to conserve the time and resources of the court and parties by precluding a party from litigation an issue which was resolved against him in another action where he had a full and fair opportunity to contest the determination (Schwartz v. Public Administrator of County of Bronx, 24 N.Y.2d 65, 298 N.Y.S.2d 955, 246 N.E.2d 725). The doctrine, however, is not to be rigidly or mechanically applied and must on occasion, yield to more fundamental concerns (People v. Berkowitz, 50 N.Y.2d 333, 344, 428 N.Y.S.2d 927, 406 N.E.2d 783). It serves an important role in civil cases, where it originated and where society's primary concern is to provide a means of peaceful, swift and impartial resolution of private disputes (People v. Berkowitz, supra, at p. 345, 428 N.Y.S.2d 927, 406 N.E.2d 783). It is less relevant in criminal cases where the pre-eminent concern is to reach a correct result and where other considerations peculiar to criminal prosecutions may outweigh the need to avoid repetitive litigation (People v. Berkowitz, supra, pp. 344-345, 428 N.Y.S.2d 927, 406 N.E.2d 783). Thus, although it is frequently said that collateral estoppel applies to criminal cases (see e. g., Matter of McGrath v. Gold, 36 N.Y.2d 406, 411, 369 N.Y.S.2d 62, 330 N.E.2d 35, supra; Matter of Levy, 37 N.Y.2d 279, 281, 372 N.Y.S.2d 41, 333 N.E.2d 350; People ex rel. Dowdy v. Smith, 48 N.Y.2d 477, 482-484, 423 N.Y.S.2d 862, 399 N.E.2d 894; People v. Berkowitz, supra, 50 N.Y.2d at p. 344, 428 N.Y.S.2d 927, 406 N.E.2d 783) it...