ORDERED that this motion by defendant for an order precluding the People from introducing certain evidence at the trial of this indictment is considered by the Court and is granted solely to the extent indicated herein below.

Defendant is charged in this indictment with the crimes of Forgery in the Second Degree, Criminal Possession of Stolen Property in the Fourth Degree and Petit Larceny. The charges are based upon the allegations that defendant, a New York City Police Detective, stole a credit card from a prisoner whose arrest he was assisting in processing and then used that credit card to purchase items at a Target Department Store located in Bay Shore, New York on July 24, 2002. [*2]It is alleged in the Suffolk County indictment that in purchasing these items, defendant forged a signature on the Target credit card receipt. While these charges were pending in Suffolk County, defendant was also charged in Queens County with Grand Larceny in the Fourth Degree and Official Misconduct arising out of these same facts and based upon his theft of the credit card. The Queens County charges were related to the allegations that defendant stole the prisoner's credit card and engaged in official misconduct by so doing that. The allegations that he subsequently used that same credit card to make purchases in Suffolk County are what form the basis of the present indictment here in this County.

After a jury trial in Queens County, defendant was acquitted of both charges. Defendant now contends that certain evidence introduced during the trial in Queens County may not be introduced in the trial of this indictment based upon the doctrine of collateral estoppel. Defendant asserts that the evidence that was rejected by the jury in acquitting defendant on the Queens County charges may not again be introduced at this trial.

The doctrine of collateral estoppel operates to bar the relitigation of issues in a criminal prosecution that were necessarily resolved in defendant's favor at an earlier trial (see, People v. Acevedo, 69 NY2d 478, 515 NYS2d 753; People v. Goodman v. 69 NY2d 32, 511 NYS2d 565; Ashe v. Swenson, 397 US 436). The theory underlying this principle is that a defendant, having once been acquitted by a jury, should not be subjected to the burden, at a subsequent trial, of meeting issues that were necessarily decided in his or her favor (People v. Goodman, supra at p 37). However, it has also been recognized that for policy reasons, collateral estoppel is not to be as liberally applied in criminal prosecutions as it is in civil actions (see, People v. Goodman, supra, People v. Plevy 52 NY2d 58; People v. Berkowitz, 50 NY2d 333). The Court of Appeals has held that a defendant who asserts that collateral estoppel bars the introduction of certain evidence must "show that the jury's verdict in the prior trial necessarily decided a particular factual issue raised in the second prosecution..." (People v. Acevedo, supra at p 487). Defendant's burden has been described as a "heavy one" which "severely circumscribes the availability of collateral estoppel in criminal prosecutions" (People v. Acevedo, supra at p 487).

Here, the record of the proceedings during the trial of defendant in Queens County clearly demonstrates that the verdict of acquittal did not necessarily decide the issues to be resolved in the trial of this indictment. Indeed, this Court need look no further than the instructions to the jury in the Queens County indictment wherein the Judge told the jury "(t)he case you're considering is solely whether there was a grand larceny and official misconduct in Queens County at the time that the credit card was taken." He went on to instruct the jurors that "(w)hat happened in Suffolk County is evidence that's come in throughout the trial, but it is not coming in for purposes of your considering any criminal activity that might have occurred in Suffolk County, but solely in so far as it impacts on your ability to evaluate what did or did not happen with regard to a larceny, taking of a credit card, in Queens County." Thus, it cannot be successfully argued that the issues surrounding the use of the credit card in Suffolk County were necessarily resolved by the jury in the Queens County indictment. [*3]

Therefore, to the extent that defendant seeks to preclude the introduction of any testimony regarding the transactions or occurrences in Suffolk County, including the search of defendant's home pursuant to a warrant, the application is denied. However, the Court will preclude the introduction of testimony tending to establish that defendant stole the credit card in Queens County since that proof was indeed necessarily rejected by the jury in arriving at a verdict of acquittal.



Dated: JANUARY 19, 2005

J.S.C.