People v. Rasero

• Decision Date: 20 June 1978
• Citation: 406 N.Y.S.2d 458,62 A.D.2d 845
• Parties: The PEOPLE of the State of New York, Appellant, v. Mario RASERO, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 458

406 N.Y.S.2d 458

62 A.D.2d 845

The PEOPLE of the State of New York, Appellant, v. Mario RASERO, Defendant-Respondent.

Supreme Court, Appellate Division,First Department.

June 20, 1978.

Bernard Jay Coven, P. C., New York City, for defendant-respondent.

Alan D. Marrus, New York City, of counsel (Thomas Geller, Scarsdale, with him on the brief, Mario Merola, Dist. Atty.), for appellant.

Before BIRNS, J. P., and FEIN, MARKEWICH and SULLIVAN, JJ.

FEIN, Justice:

The People appeal from an order rendered April 8, 1976, after a non-jury trial in Supreme Court, Bronx County, which granted defendant's motion to dismiss an indictment charging defendant police officer Mario Rasero (Rasero) with three counts of perjury in the first degree. Dismissal was predicated solely on the ground of collateral estoppel, after the trial court had found defendant guilty of all three counts of the indictment. The issues are (1) the propriety of the trial court's ruling that collateral estoppel required dismissal, and (2) whether reversal and remand would place defendant in double jeopardy. This latter issue appears to be one of first impression in this State.

Defendant and Police Officer Cerniglia (Cerniglia), both on patrol duty at the time of the material events, responded to a report of an automobile accident on the evening of May 28, 1972, on East 222nd Street near its intersection with Kingland Avenue. The report in substance was that the operator of the vehicle, Anthony Scocozza (Scocozza), in an intoxicated condition, had driven his vehicle at a high rate of speed through a heavy police barricade, striking two parked cars and coming to a halt in a portion of the street under excavation. Rasero and Cerniglia arrived on the scene about forty minutes after the accident. In an accident report signed by Rasero and filed subsequently, the officers ascribed the cause of the accident to a blowout in Scocozza's right front tire.

However, eyewitnesses at the scene attributed the accident to Scocozza's intoxicated condition and the high rate of speed at which his vehicle was travelling, which they estimated to be in excess of 60 m. p. h. According to witnesses, one of whom had written to the Police Department after the operator had resisted claims for property damage resulting from the accident, Scocozza seemed very relaxed, his face was flushed, his eyes were red and watery, and his breath smelled of alcohol. The witnesses concluded that Scocozza was heavily intoxicated at the time of the accident and later when the police arrived. It was claimed that the officers gave the impression that they knew Scocozza. The officers admittedly drove him home. Witnesses had also reported that as Scocozza was being escorted to the patrol car, he offered the officers a $50 bribe to take him to a subway or to a train station. Both officers denied any such bribe offer. About fifteen minutes after the patrol car left with Scocozza, the owner of one of the damaged vehicles took photographs of Scocozza's car, which clearly showed that the tires were inflated. This was contrary to the officers' accident report subsequently filed which attributed the cause of the accident to be a blowout in the right front tire. About one hour after the occurrence, Scocozza returned to the scene by taxi and drove off in his vehicle. As he turned the corner, witnesses heard what sounded like a blowout.

A departmental investigation of the two officers was conducted following receipt by the Police Department of a letter from one of the alleged eyewitnesses. When the preliminary investigation revealed discrepancies between the accident reports filed by the officers and the accounts of the incident as related by witnesses at the scene, the matter was referred to the District Attorney. Both Rasero and Cerniglia testified before the grand jury, in essence that: (1) the accident resulted from a blowout; (2) Scocozza appeared to be in a state of shock when the officers arrived on the scene, but was not drunk; and (3) Scocozza did not offer them a bribe.

Thereafter each officer, by separate indictment, was charged with three counts of perjury in the first degree. Cerniglia's case proceeded to a bench trial, resulting in an acquittal on all three counts. The court, in its written decision, found the evidence sufficient to create a reasonable doubt as to Cerniglia's guilt.

Rasero's case, now here, was subsequently tried, without a jury, by a different judge, who rendered a written opinion. The court, upon review of all of the facts, found that Rasero had "deliberately lied to the grand jury" as to each count of the indictment, when "he denied (1) that Scocozza had offered him $50.00 to take him to 'the train station' and (2) that Scocozza never mentioned $50.00 * * * ." The court further found that Rasero "deliberately deceived the grand jury when he told them that Scocozza was 'only in a mild state of shock' ", at the time the officers arrived at the scene. The court also found that Rasero had "deliberately lied to the grand jury when he ascribed the cause of the accident to a blowout on the right front tire." The court's written opinion rendered after trial specifically found: "The facts in the trial establish beyond cavil that Scocozza was thoroughly intoxicated when he drove full tilt through the barricade." The driver was found to have consumed two bottles of beer and eight shots of liquor immediately prior to the accident. Scocozza recalled asking the officers to take him home but did not remember offering them $50. The court further found that the photographs taken of the Scocozza vehicle and the testimony of witnesses to the occurrence established that the "blowout" story was false and had been "invented by the officers to cover their improper police action."

Thus the trial court made specific findings that Rasero had deliberately lied to the grand jury, confirming each perjury count contained in the indictment. Despite these findings "as a matter of fact, that the People have established the essential allegations of this indictment", the trial justice stated he was "nevertheless constrained as a matter of law to dismiss the indictment." Dismissal was predicated solely upon application of the doctrine of collateral estoppel, based upon the earlier acquittal of defendant's partner, Cerniglia. The court reasoned that the underlying facts in both cases were the same and that the People had a full and fair opportunity to litigate the issues in the Cerniglia case.

The acquittal of Cerniglia, however, does not operate under established principles of res judicata or collateral estoppel so as to bar the subsequent prosecution of Rasero. In this respect, the trial court erred in applying the doctrine as it has developed in civil cases.

Under current doctrine, in order to invoke collateral estoppel in civil cases it must be shown that (1) there is an identity of issue necessarily decided in the prior action and decisive of the present suit; and (2) there was a full and fair opportunity afforded to the party against whom the estoppel is sought to be invoked to contest the decision now said to be controlling (Schwartz v. Public Administrator, 24 N.Y.2d 65, 298 N.Y.S.2d 955, 246 N.E.2d 725). In short, in civil cases the litigant barred by collateral estoppel must have had an opportunity to contest the precise issue resolved in the prior action. However in criminal cases there must also be an identity of parties.

As stated in Matter of McGrath v. Gold, 36 N.Y.2d 406, at 411, 369 N.Y.S.2d 62, at 65, 330 N.E.2d 35, at 37, relied on by the trial court:

"Although collateral estoppel, as an aspect of the broader doctrine of res judicata, was originally developed in connection with civil litigation * * *, it is also applicable in criminal cases (Yates v. United States, 354 U.S. 298, 335-336, 77 S.Ct. 1064, 1 L.Ed.2d 1356; People v. LoCicero, 14 N.Y.2d 374, 251 N.Y.S.2d 953, 200 N.E.2d 622; People v. Dreares, 15 A.D.2d 204, 206, 221 N.Y.S.2d 819, affd. 11 N.Y.2d 906, 228 N.Y.S.2d 467, 182 N.E.2d 812), although not always in quite the same way as in civil cases (People v. Reisman, 29 N.Y.2d 278, 285, 327 N.Y.S.2d 342, 277 N.E.2d 396, cert. den. 405 U.S. 1041, 92 S.Ct. 1315, 31 L.Ed.2d 582 * * *.

"Collateral estoppel means simply that, when the 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 law suit (Ashe v. Swenson, 397 U.S. 436, 443, 445, 90 S.Ct. 1189, 25 L.Ed.2d 469; see People v. Cunningham, 62 Misc.2d 515, 519, 308 N.Y.S.2d 990). This doctrine has acquired constitutional dimension since the Supreme Court in Ashe held that it is embodied in the guarantee of the Fifth Amendment to the United States Constitution against double jeopardy.

"As indicated in Ashe, an ultimate fact adjudged or determined in the previous litigation must be accepted by the same parties in subsequent litigation * * *."

However, here there is neither identity of issue nor identity of parties. The subject of the prior prosecution was whether Cerniglia had perjured himself before the grand jury. Resolution of that issue has no legal bearing upon the independent issue of whether Rasero committed perjury before the same grand jury. That the underlying factual issues may be the same, in both criminal prosecutions, to wit (1) whether there was a bribe offer; (2) whether Scocozza was intoxicated; and (3) the accuracy of the police report that a blowout was the cause of the accident, is neither controlling nor dispositive. The issue is whether Rasero perjured himself in his testimony before the grand jury. That was plainly not at issue in the prior litigation concerning the independent perjury charge against Cerniglia. The fact that their testimony may have been strikingly similar as to the underlying facts is irrelevant. Moreover, even if similarity as to the underlying facts is to be...