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A hearing on the motion was held before a Judge of the Criminal Court

The defendants stand indicted of felony charges for drug related offenses and weapons possession. The common denominator underlying the charges is that the items of contraband constituting the physical evidence of the commission of these crimes was obtained by the police in the course of the execution of a warrant, signed by a Justice of this Court on April 2, 1979, for the search of a residential building located at 2170 Hughes Avenue in Bronx County.

A Nassau Criminal Lawyer said that, a thorough search of this multiple dwelling building of twenty-five apartments and its common area was conducted by the police pursuant to this warrant on April 3, 1979. The search yielded contraband consisting of weapons, drugs and drug paraphernalia that was the basis for the arrest of twenty-eight persons found in and about the building. Various felony and misdemeanor charges were filed against these persons. In particular, felony complaints were filed against the four defendants at bar since the contraband discovered within their respective apartments constituted a felony. None of the other defendants were charged with the possession of this contraband.

A Nassau Order of Protection Lawyer said that, a motion to controvert the search warrant pursuant to CPL 710.50, subdivision 1(c) and CPL 710.60 was then brought in the Criminal Court by defendants’ counsel, on behalf of all of the twenty-eight persons that had been arrested in the course of the search. Before this motion was decided, the four present defendants were indicted on the charges contained in the aforementioned felony complaints that had been filed against them. Their cases were thus removed from the jurisdiction of the Criminal Court to that of the Supreme Court. The charges against those remaining defendants that had been charged with drug possession were reduced to misdemeanors.

A Nassau Assault Lawyer said that, thereupon, proceedings to hear and determine the motion to controvert the search warrant were held in Criminal Court on behalf of the twenty-four purported misdemeanant defendants. The motion was opposed by the Office of the District Attorney of Bronx County. A hearing on the motion was held before a Judge of the Criminal Court, wherein the People vigorously exercised a full and fair opportunity to litigate the validity of the search warrant. In a written opinion dated September 27, 1979, the Judge granted the motion to controvert the search warrant, finding that it was unconstitutionally over-broad on the ground that a search of all twenty-five apartments was not supported by probable cause. He accordingly ordered the suppression of the evidence seized under the authority of the warrant.

At that juncture, the People determined that it would be unable to present a prima facie case at trial without the suppressed evidence and moved to dismiss the Criminal Court misdemeanor complaints, which motion was granted. The People failed to exercise its right to appeal from the suppression order to the Appellate Term (CPL 450.20, subd. 8; CPL 450.50; CPL 460.10, subd. 1(a)). An appeal of that order is thus foreclosed at the present time.

A Nassau Order of Protection Lawyer said that, the People now wish to proceed with the prosecution of the indictments against the four defendants before the court. The defendants have made a motion for the suppression of the physical evidence against them on the ground that it had previously been judicially determined in the Criminal Court proceedings to which the Office of the District Attorney of Bronx County was a party, that the search warrant which led to the police discovery of the evidence was unconstitutionally overbroad and, consequently, invalid. The defendants therefore seek to have the court invoke the doctrine of collateral estoppel to prevent the People from relitigating the issue of the validity of the search warrant and the resulting necessity for the suppression of the evidence thereby obtained.
The People have opposed the motion on two main grounds: (1) the defendants were not parties to the Criminal Court suppression proceedings, and (2) the evidence against the defendants was not in issue in the Criminal Court proceedings since it was found in the respective apartments occupied by these defendants, and was not the basis of any of the charges pending against the misdemeanant defendants in Criminal Court.

The issue in this case is whether a judicial order invalidating a search warrant requires the suppression, under the doctrine of collateral estoppel, of all evidence seized in the course of the execution of the warrant vis-a-vis defendants who were not parties to the motion to controvert the warrant.

Preliminarily, the Court notes that our Court of Appeals has held that the doctrine of collateral estoppel does not apply to an unmixed question of law. However, this holding does not pose a barrier to the application of the doctrine in the present case which involves a previous judicial determination that the search warrant in issue was not founded upon probable cause, as “The question of probable cause is a mixed question of law and fact”.

It was further held that the doctrine of collateral estoppel is inapplicable to suppression orders that are of an interlocutory nature. The suppression order presently in issue is not of an interlocutory nature. Rather, it is a final order dispositive of the case against the misdemeanant defendants due to the failure of the People to exercise their right of appeal and to People’s motion dismissing the charges for lack of evidence to proceed as a consequence of the suppression order. No hope remains of resurrecting those dismissed misdemeanor charges; the prosecution is thus terminated in regard to them. Consequently, this Court has determined that this suppression order is a final order that is capable of working a collateral estoppel effect if the other prerequisites of the doctrine are found to exist.

In civil cases the requirements for the application of the doctrine are two-fold: “First, it must be shown that the party against whom collateral estoppel is sought to be invoked had been afforded a full and fair opportunity to contest the decision said to be dispositive of the present controversy. Additionally, there must be proof that the issue in the prior action is identical, and thus decisive, of that in issue in the current action. However, a third requirement has been imposed for the application of the doctrine in criminal cases, namely, that “the parties are the same or are so clearly related that they may be deemed as one for these purposes”.
Applying these criteria to the case at hand, it is conceded by the People that the issue of the constitutional validity of this search warrant is identical to the issue decided against them by the suppression order of the Criminal Court. It is further conceded by the People that this determination is decisive of the issue presented in the current motion to suppress the evidence sought to be introduced against the defendants as the fruits of a seizure made in the execution of the very same warrant. Further there is no question that the People, the party against whom collateral estoppel is sought to be invoked, have had a full and fair opportunity to contest the issue of the validity of the warrant, both in the Criminal Court proceeding wherein the issue was decided against them and by being afforded a statutory right of appeal, which they failed to exercise. The sole obstacle, therefore, to the invocation of the doctrine of collateral estoppel in this case is the fact that the present defendants were not parties to the suppression proceedings in the Criminal Court.

This is an imposing obstacle, but not an insurmountable one. An examination of the criminal cases upon which the People rely, that have imposed the requirement of identity of parties reveals that the context involved an attempt by a defendant to stymie his prosecution by virtue of the fact that a codefendant, who had been tried separately, had been acquitted of charges stemming from the same criminal transaction.

The rationale for denying collateral estoppel effect in such cases due to the lack of identity of party-defendants in both prosecutions was explicated in one case, supra as follows: “There exist several other persuasive reasons not to apply principles of collateral estoppel so as to allow the acquittal of one defendant to ever serve as a bar to the prosecution of another. In most cases there will be significant disparities in the proof which is available against each of two defendants. For example, one defendant may make admissions which can be used against him at his trial, but which could not be introduced at the trial of a co-defendant. To suggest that the People had a fair opportunity to litigate the issue of the confessing defendant’s guilt at the trial of the non-confessing defendant would result in an absurdity. While this example is perhaps rather extreme, it is certainly not uncommon, and the vagaries of the complex rules of evidence applicable to criminal trials will in most cases result in the existence of evidence which may be used against only one of several persons accused of the same crimes. This is especially significant in light of the fact that the People must meet the high burden of proving guilt beyond a reasonable doubt in a criminal prosecution. Hence the acquittal of one of two defendants means merely that the People were unable to prove his guilt beyond a reasonable doubt; it does not mean that the People will necessarily be unable to prove guilt of the other defendant beyond a reasonable doubt. We see no reason to preclude such an attempt.
“Additionally, it will normally be impossible to ascertain the exact import of a verdict of acquittal in a criminal trial. It may well be that the acquittal of one defendant is based on some factor which is not relevant to the guilt or innocence of the other defendant. For example, there exist several defenses and affirmative defenses which are personal to a particular defendant and would not affect the guilt or innocence of another person accused of the same crime. Moreover, there always exists the possibility that the jury in the first case will have exercised its so-called ‘mercy’ function despite instructions to the contrary, especially in a case involving multiple crimes arising from the same transaction.

These justifications for requiring identity of parties in the context of a determination of the issue of guilt by verdict after trial clearly do not pertain to the process of a judicial finding of a lack of probable cause for the issuance of a search warrant. Where, as in the instant case, the written opinion of the judge granting the suppression motion sets forth his findings of fact and conclusions of law upon which the order of suppression is rendered, there is no room for speculation about the factual and legal issues that were actually decided.

Indisputably, the People have had a full and fair opportunity to litigate the identical issue presently before this Court of the validity of the search warrant. No additional facts or circumstances have been raised by the People that have a bearing upon the factual or legal determination made by the Criminal Court in its decision invalidating this search warrant.
Based upon all of the foregoing reasons, the court finds the People are collaterally estopped from relitigating the issue of the constitutionality of the search warrant that was decided against them by the order of suppression of the Criminal Court. Accordingly, the defendant’s motion to controvert the search warrant and to suppress the evidence seized in its execution is granted.

If you are involved in a criminal case, and the evidence was obtained illegally, seek the representation of a Nassau Criminal Attorney and Nassau Order of Protection Attorney at Stephen Bilkis and Associates.

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