People v. Donald O'Toole


AD1 order dated June 7, 2012, reversing judgment of conviction and ordering a new trial. Decision below: 96 A.D.3d 435, 946 N.Y.S.2d 127. Pigott, J., granted leave to People November 20, 2012.

ISSUE PRESENTED: Whether the People were barred by collateral estoppel from presenting evidence at defendant’s retrial that an accomplice pointed what appeared to be a pistol at the complaining witness, where the defendant was acquitted of first-degree robbery at the first trial but convicted of only second-degree robbery, and that conviction was reversed on appeal. (Assigned counsel for respondent: Steven Banks, Legal Aid Society, Criminal Appeal Bureau, 199 Water Street, NYC 10038.)

Issue before the Court: Whether the defendant’s acquittal at his first trial on a charge of first-degree robbery based on the alleged display of a firearm barred the People from introducing at a later trial for second-degree robbery evidence that a firearm was displayed?


Held: Yes.  Under People v. Acevedo, 69 N.Y.2d 478 (1987), the previous acquittal collaterally estopped the People from introducing evidence of the display as that was an “evidentiary” fact that was resolved in the defendant’s favor by a jury.   


CAL Observes: Judge Smith, writing for the majority, declines the People’s invitation to overrule Acevedo, finding it not inconsistent with the subsequently decided Dowling v. United States, 493 U.S. 342 (1990).  Nonetheless, the majority urges that collateral estoppel should be applied “sparingly” in criminal cases, a position that Judges Rivera and Lippman, concurring only in the result, reject.