This matter comes before the Court on the Defendant's Motion, prior to retrial ^[FN1] , to Preclude the Prosecution from offering certain evidence of marijuana found in the vicinity of the Defendant's arrest on a street, and to preclude the Prosecution from making any reference to the Defendant having an outstanding criminal fugitive warrant from the State of Minnesota.

The Defendant herein is charged with Criminal Possession of a Weapon in the Second Degree (Penal Law §265.03(3)) and Tampering with Physical Evidence (Penal Law §215.40(2).) The Prosecution's theory of the case is that a loaded handgun along with loose marijuana, a "blunt" wrapper and a glass jar were thrown out of the window of Defendant's moving vehicle immediately prior to a vehicle stop by the Village of Monticello Police Department for an out of State fugitive criminal warrant.

On February 28th, 2018, a cold dark winter's night, the Defendant was driving a car when [*2]he was stopped in the Village of Monticello, New York by a Monticello Police Officer who had knowledge of the Defendant and of an active Warrant for him from the State of Minnesota. At the scene of the stop the Police noticed that the Defendant's passenger side window was open and that an odor of marijuana emanated from the car; albeit no marijuana was observed or seized from the Defendant or his car. On further Police investigation and about one block away from the stop area, and along the Defendant's travel route, loose marijuana, a broken glass jar, a blunt wrapper, were found along the street, and a loaded handgun in a nearby driveway. The Defendant upon interrogation denied having any knowledge of the items found. The Defendant was not charged with any crimes related to the marijuana found at the scene near the handgun. No other marijuana or blunt wrappers were found on the Defendant's person nor in his car.^[FN2] At the scene, the Defendant was arrested by the Monticello Police and held on the fugitive warrant from Minnesota.

Prior to the first trial, this Court held pre-trial suppression hearings and a Mapp ^[FN3] probable cause hearing for the initial stop and search of the Defendant's vehicle ^[FN4] and the seizure of the contraband from the driveway. The Defendant's suppression application was denied, except that the People would not be able to present evidence that the Defendant was taken into custody as a fugitive from justice due to an outstanding warrant from the State of Minnesota. This Court directed, and the People stipulated, that the arresting officer would only be allowed to testify that the Defendant was legally stopped and taken into custody on an unrelated offense. The pre trial hearings did not include any Molineux or other applications by the Prosecution regarding the loose marijuana and blunt wrapper found near the scene of the stop nor did the defense make any motion in limine regarding the marijuana.

The case then proceeded to jury trial. At trial, the arresting Police Officer testified that he was aware that the Defendant had an outstanding matter (fugitive warrant for his arrest from the State of Minnesota) and he was going to stop of the Defendant's vehicle for that matter when he also witnessed the Defendant committing traffic infractions ^[FN5] . The officer followed the Defendant and the Defendant stopped his vehicle a short distance away in front of 15 Fulton Street, a private residence in Monticello, and then the Defendant proceeded to exit his car and walk towards that residence. The officer ordered the Defendant to stop and return to his vehicle, with which the Defendant complied. As part of the stop the Officer was given permission to retrieve the Defendant's identification from the center console and upon opening the driver's side door of the [*3]Defendant's vehicle he smelled the odor of marijuana in the vehicle, and noticed that the passenger's side window of the Defendant's vehicle was slightly down. The officer further testified that he did not see or remove any marijuana or contraband from the Defendant's person or vehicle. The Defendant was then taken into custody on the Minnesota fugitive Warrant. The Defendant was not issued any traffic tickets for the stop. Approximately one to two houses down from the Defendant's stopped vehicle another officer on the scene, curious as to why the car's window was open, walked along the traveled route and (approximately one hundred feet) found a broken mason jar, mason jar lid, loose marijuana, and a blunt wrapper on the street, and in a nearby driveway a loaded handgun.

During this trial testimony, the Defendant's attorney requested a sidebar conference ^[FN6] and raised the issue, for the first time, that the testimony regarding the marijuana found on the street is prejudicial and is uncharged misconduct that violates the Defendant's rights under Molineux ^[FN7] , as there was no application by the Prosecutor for a pre-trial hearing under Molineux. The Defendant requested a mistrial or, in the alternative, that the jury receive a limiting instruction for the marijuana evidence. This application for mistrial was denied and the jury was given a limiting instruction.

The People contend that the odor of marijuana in and of itself is not a crime and that the amount of marijuana found on the street was minimal and only rose to the level of a violation, and therefore there was no need to charge or indict the Defendant with possession of the marijuana and a blunt. The People argue that this is not a Molineux issue, and , assuming arguendo, a Molineux issue it was not raised during pre-trial motions practice because the People did not have the obligation to seek any pre-trial ruling on this evidence since it was being offered only to "complete the narrative of the Police testimony."

This Court by Decision and Order, prior to the jury's deadlocked mistrial, (People v Elgin Cotto, 64 Misc 3d 1209(A), 2019) held that the introduction of testimony regarding the Defendant's alleged possession of marijuana, with which the Defendant was not charged was inextricably woven into the narrative of arresting Officers. The odor of marijuana in the Defendant's vehicle and the observations of loose marijuana and a blunt wrapper near a broken mason jar in the street were relevant in completing the narrative of the Officer's actions and observations during the course of their investigation involving the Defendant's stop, and in locating the loaded handgun ^[FN8] found in the driveway in the vicinity of the Defendant's vehicle. In this regard, the Court found that the probative value of this testimony outweighed the potential prejudice to the Defendant.

In the interests of justice, and to further reiterate the intended purpose of this testimony, this Court provided an explicit limiting instructions to the jury, including the following instruction that was agreed upon between the People and the Defendant:

You have heard testimony in this case regarding the odor of marijuana and the presence of what police may have believed to be marijuana in the vicinity of the vehicle stop in this case. Such testimony was merely to explain the police observations at the scene and to explain other testimony that you may or may not give weight as to the possession of the weapon in this case. Even if you were to believe that this marijuana were in the possession of this defendant at some point, I charge you, as a matter of law, that such possession would not be criminal conduct and could not and cannot, in any way, be used or considered by you as evidence of any propensity of this defendant to commit any crime at all.

This Court further advised the jury that the testimony regarding the marijuana and blunt found had no bearing on the Defendant's credibility or propensity for committing the crimes charged in the Indictment. This Court further advised the jury that the Defendant was not charged with the marijuana possession and that the testimony regarding the marijuana was simply allowed so that "the jury [could] have a thorough appreciation of the interwoven events leading to the defendant's culminating criminal conduct and of the competing theories of what happened and why, the closely antecedent, uncharged [crime] in this case was relevant and material."

Unrelated to the Defendant's Motion for mistrial under Molineux, a mistrial was declared solely on the basis of the Jury having become hopelessly deadlocked. After the mistrial was declared and in anticipation of a re-trial, the Defense brought this Motion to Preclude and now asks this court, once again, to preclude any testimony by the Prosecution to the marijuana/blunt when this Defendant is re-tried not withstanding the Court's ruling during the first trial. The Prosecution argues that because these issues have already been decided, this Court's prior ruling during the first trial is the "Stare Decisis", and "law of the case". The Defendant in the current case presents no new facts or law to re-argue this Court's previous determination.

Thus, the issue before the Court prior to retrial is to what extent does "Stare Decisis" apply to evidentiary rulings during trial as compared with pre trial ruling upon motion.

Although the doctrine of "Stare Decisis" does not contemplate that every trial ruling is binding on retrial it does follow the basic tenet that the "law of the case" doctrine is part of a larger family of kindred concepts, which includes res judicata (claim preclusion) and collateral estoppel (issue preclusion) in that these doctrines, broadly speaking, are designed to limit re-litigation of the same or similar issues.

In People v. Guerra, 65 NY2d 60 [Court of Appeals, 1985] , the defendant plead guilty after the denial of his motion to suppress evidence seized pursuant to an eavesdropping warrant. The Appellate Division affirmed, without opinion (100 AD2d 982). On appeal, the defendant argued that a number of errors were committed in connection with the motion to suppress; one of which deprived him of his right to be heard on the merits. The Defendant argued that since the Judge who issued the original eavesdropping warrant was not the Judge who decided his probable cause hearing, he was not given the benefit of being heard on the merits. The Court of Appeals held that the "law of the case doctrine" would not prevent the defendant from [*4]challenging a determination which he had no opportunity to litigate at the time, however the Guerra's issue was heard on its merits because the issue of whether there had been probable cause for the eaves dropping warrant was decided by the prior trial judge after a pre trial motion hearing. In so holding, the Court of Appeals stated that generally, the "law of the case" contemplates that if the parties had a "full and fair" opportunity to litigate the initial determination they would be barred from re-litigating a previously decided issue.

In People v. Evans, 94 NY2d 499 [Court of Appeals, 2000] the Defendant who was convicted after his second trial for armed robbery during his second trial argued that the "law of the case" doctrine precluded his trial judge from altering his Sandoval ruling from his prior trial. In affirming the lower court's ruling and the Defendant's conviction, the Court of Appeals held that the doctrine of the "law of the case," upon a retrial following a hung jury, will ordinarily not bind an "evidentiary" type ruling, whereas an order following a suppression motion made pursuant to CPL article 710 ordinarily will. The "law of the case" is a judicially crafted policy that expresses the practice of courts generally to refuse to reopen what has been decided; as such, it is necessarily "amorphous" in that it directs a court's discretion, but does not restrict its authority (People v. Evan, Id).

In the case at bar, even though the Prosecution failed to alert the Defendant to their Molineux issue, this Defendant had ample opportunity to litigate these issues during the pre-trial hearings or by motion in limine to have and did in fact fully argue the issue during the trial. The Prosecutor's argument that the Defendant failed to make a motion to re-argue this Court's trial evidentiary decision prior to the mistrial ruling is not controlling.

The issue of preclusion of the evidence pertaining to the marijuana was addressed fully by this Court's prior trial evidentiary decision (People v Elgin Cotto, 64 Misc 3d 1209(A), [2019] supra) as follows:

"In the case at bar, this Court finds that the introduction of testimony regarding the Defendant's alleged possession of a minuscule amount of marijuana, with which the Defendant was not charged and the People contend was only of the level of a violation, was inextricably woven into the narrative of Officer Napoli and Deputy DiSantos. Officer Napoli testified that he smelled the odor of marijuana in the Defendant's vehicle upon reaching inside to obtain the Defendant's identification. Deputy DiSantos testified about his observations of loose marijuana and a blunt wrapper near broken mason jar glass while he was securing the scene. Such testimony was relevant in completing the narrative of both Officer Napoli's and Deputy DiSantos' actions and observations during the course of their investigation involving the Defendant, and in connecting the items of alleged evidence found in the street to the Defendant and his vehicle. In this regard, the probative value of allowing this testimony outweighs any potential undue influence to the Defendant (People v Elgin Cotto, supra)."

The fact that this issue was not raised by the Prosecution as a Molineux pre-trial issue, although admittedly the better practice, is not controlling since the Defendant had a full and fair opportunity and did argue this issue at length during the first trial.

With regard to precluding the Prosecution from making any reference to the Defendant [*5]having an outstanding criminal fugitive warrant from Minnesota this Court has previously ruled prior to the first trial as follows:

"The Defendant's suppression application was denied, except that the People would not be able to inform the jury that the Defendant was taken into custody as a fugitive from justice [emphasis added] due to an outstanding warrant out of the State of Minnesota. This Court directed, and the People stipulated, that they would only be allowed to say that the Defendant was legally stopped and taken into custody on an unrelated offense (People v Elgin Cotto, supra)." Thus, this ruling in favor of the Defendant will go undisturbed.

The defense has failed to articulate any new facts or other issues as to why this Court should alter its prior marijuana evidentiary decision regarding these precise previously decided trial issues as "collateral estoppel". The Defendant had full and fair opportunity and did precisely argue this issue prior to the Court's trial evidentiary rulings.

Based upon the foregoing, it is hereby

ORDERED, that Defendant's request to preclude the Prosecution from offering evidence of the marijuana and blunt found in the street is denied; and it is further

ORDERED, that Defendant's request regarding any reference to the Defendant having an outstanding warrant from Minnesota will be granted to the extent that the Prosecution has stipulated that the Defendant was taken into custody but was legally stopped prior to his arrest for the weapon in question.

This constitutes the Decision and Order of this Court.