author: Simons, J. Meyer, J.

text:
    The People of the State of New York, Respondent, v Morgan Goodman, Appellant.
    Argued November 14, 1986;
    decided December 18, 1986

      POINTS OF COUNSEL

      Arlene R. Popkin and Stephen J. Pittari for appellant.

      Carl A. Vergari, District Attorney (Melinda Tell Lazare and Anthony J. Servino of counsel), for respondent.
   OPINION OF THE COURT

Simons, J.

Defendant was originally charged with several crimes, including murder, robbery, grand larceny, burglary and criminal possession of a weapon, arising from the death of Elodie Henschel, age 83, and the theft of her two diamond rings. After trial the jury convicted him of the larceny and acquitted him of the remaining charges. On appeal we reversed, ordering suppression of defendant’s statement to the police, and remanded the matter for a new trial on the larceny charge (People v Goodman, 54 NY2d 451). On retrial, defendant was again convicted. On this appeal he contends the judgment must be reversed because the People were permitted to present evidence to the second jury, over his objection that it violated principles of double jeopardy and collateral estoppel, that (1) Ms. Henschel had been beaten to death, (2) defendant had said prior to her death that he intended to steal her rings and that he was willing to kill her to obtain them, and (3) defendant at a time relevant to the murder had blood on his clothes and hands. He concedes that the prior verdicts did not bar the second trial for grand larceny but contends that the People could not introduce this evidence after he had been acquitted of the murder, robbery and related counts in the first trial. For the reasons which follow there should be an affirmance.

The homicide was clearly established. Ms. Henschel’s body was discovered in her apartment in New Rochelle January 24, 1978 by the assistant manager of the building. Investigation disclosed that she had been brutally killed hours earlier by blows to the head and that two diamond rings which she had been seen wearing the day before were gone. There were no signs of a forced entry into the apartment and apparently no other valuables or cash had been stolen.

Defendant knew Ms. Henschel and was generally familiar with the area because his girlfriend lived in the same building. In fact, he was visiting his girlfriend when the police arrived to investigate. While the police were securing the crime scene he volunteered to them that he had seen three suspicious males in the rear of the apartment building the day before.

Defendant’s connection with the incident was established at the first trial by testimony that on January 20, 1978 defendant and a fellow student, Robert Shafran, had discussed the theft of Ms. Henschel’s two diamond rings; that defendant told Shafran that he would kill her to get them if he had to; that on January 23, 1978 Shafran made arrangements with Robert Carpenter, another student who had access to his parents’ automobile, to drive defendant and Shafran to the building in which Henschel lived; that when Carpenter drove them to the apartment they were also accompanied by Robert Benedict who had come along for the ride; that they parked the car about a block from the Henschel apartment and defendant left the others, saying that he would be back in about 20 minutes; that when defendant returned his manner was jittery, he seemed upset and looked pale and his three companions noticed a bloodlike substance on his hands and clothing; that Benedict noticed that defendant was carrying something that looked like "piping” beneath his coat; that he showed Shafran two diamond rings which appeared to have blood on them; that the four then drove to defendant’s house where defendant and Shafran went in; that once in the house defendant told Shafran, "I killed her”, started to wash the blood from his hands and clothing as well as from the tire iron that he had had beneath his coat, and stated that he had injured his leg; that defendant later burned his clothes; that defendant and Shafran agreed on an identical alibi; that on the following day Carpenter, after first refusing, drove defendant and Shafran to the White Plains railroad station for a payment of $50; that during the trip Carpenter saw the rings; that defendant and Shafran caught a train to New York where they went to the jewelry district and sold the rings to a fence for $2,000 before returning to Westchester County.

Most of this evidence linking defendant to the crime came from Shafran, who had earlier pleaded guilty to manslaughter first degree, but Carpenter and Benedict, who had received immunity, each testified to what they did and saw during these events of January 23 and 24. The trial court charged that Shafran was an accomplice as a matter of law but instructed the jury that it must determine whether Carpenter and Benedict were accomplices. It also instructed the jury that the testimony of any accomplice had to be corroborated by independent evidence tending to connect defendant with the commission of the offenses charged. The People presented substantially the same evidence from these witnesses at the second trial and defendant assigns error as a result, claiming the People were estopped from introducing evidence relating to the charges of which he was acquitted.

Collateral estoppel originally developed in civil litigation, but it is now clear that the doctrine applies generally to criminal proceedings as well (see, People v Sailor, 65 NY2d 224, 228; People v Plevy, 52 NY2d. 58, 64-65; People v Berkowitz, 50 NY2d 333, 344; Matter of McGrath v Gold, 36 NY2d 406, 411; United States v Oppenheimer, 242 US 85). It is not applied in quite the same way, however, because the preeminent concern in criminal cases is to reach a correct result whereas in civil litigation the focus is on the swift, impartial and peaceful resolution of disputes. The desire to avoid repetitious litigation must sometimes give way to concerns peculiar to criminal prosecutions (People v Plevy, 52 NY2d 58, 64-65, supra). The term "means simply that when an 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 lawsuit” (Ashe v Swenson, 397 US 436, 443; Matter of McGrath v Gold, supra, at p 411). As we noted in People v Lo Cicero (14 NY2d 374, 380), "[collateral estoppel, as distinguished from the principle of double jeopardy, arises not so much from concern for the peace of mind of the defendant as from a long-recognized equitable reaction against allowing a party to relitigate issues which have already been decided against him.”

The doctrine acquired constitutional dimension when the Supreme Court held in Ashe v Swenson (supra) that it is embodied in the Fifth Amendment guarantee against double jeopardy and is applicable to the States (see, id., at p 446; see also, Benton v Maryland, 395 US 784). It differs from double jeopardy, however, because jeopardy may attach long before the jury has rendered a verdict, whereas collateral estoppel applies only when there has been a final judgment. Moreover, constitutional double jeopardy normally relates only to subsequent prosecutions involving the same offense (see, Brown v Ohio, 432 US 161; Blockburger v United States, 284 US 299; Kepner v United States, 195 US 100; but see, CPL 40.10 et seq.), whereas the expansion of collateral estoppel principles to criminal cases was intended to overcome that narrow view of double jeopardy and prevent the harassment of defendants by serial prosecutions for multiple offenses arising from a single act or group of acts (see generally, Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv L Rev 1, 29 [1960]; Note, Twice in Jeopardy, 75 Yale LJ 262, 283-286 [1965]).

Before collateral estoppel may be applied in a subsequent criminal case, there must be an identity of parties (People v Berkowitz, 50 NY2d 333, 345, supra; People v Reisman, 29 NY2d 278, 285; People v Lo Cicero, 14 NY2d 374, 380, supra) and issues (see, People ex rel. Dowdy v Smith, 48 NY2d 477, 482-483; People v Reisman, supra, at p 285) and a prior proceeding resulting in a final and valid judgment (see, People v Fagan, 66 NY2d 815; Matter of McGrath v Gold, 36 NY2d 406, 412, supra) in which the party opposing the estoppel had a "full and fair opportunity” to litigate (see, People v Sailor, 65 NY2d 224, 229, supra; People v Berkowitz, supra, at p 347; Schwartz v Public Administrator, 24 NY2d 65).

Estoppel is asserted customarily in situations involving an acquittal followed by subsequent charges arising from the same incident. It may also apply, however, to a mixed verdict in a single prosecution which acquits defendant of some counts of a multiple count indictment and convicts him of others (see, e.g., United States v Keller, 624 F2d 1154; United States v Venable, 585 F2d 71; see also, United States v Medina, 709 F2d 155; United States v Mespoulede, 597 F2d 329 [involving acquittals as to some counts in the indictment and a hung jury as to others]).

In Ashe v Swenson (397 US 436, supra), the Supreme Court held that estoppel applied to ultimate facts. An ultimate fact is an issue which is the sine qua non of a conviction in the second trial. If the first jury has resolved the issue in defendant’s favor, the effect of that prior determination is to bar prosecution in a second criminal action though the second indictment may charge a different crime (see, United States v Keller, 624 F2d 1154, 1159, supra; United States v Mespoulede, 597 F2d 329, 333, n 6, supra). Ashe illustrates the rule in a case involving an acquittal and a subsequent attempt to prosecute for an offense arising from the same incident. In that case, defendant was acquitted in a prior trial of robbing one of several participants in a poker game. Because there was no dispute that the robbery had occurred, the jury’s verdict necessarily determined that defendant was not present at the time of the crimes. The Supreme Court held that the finding of this ultimate fact foreclosed the government from subsequently trying defendant for the robbery of another of the game’s participants.

In the case of a mixed verdict, the defendant has been acquitted by the jury of some of the charges in a multicount indictment but, at the instance of defendant, the conviction has been set aside because of trial error. In that situation, the People are not foreclosed by either double jeopardy or collateral estoppel concerns from reprosecuting the defendant on the charge which resulted in conviction. Acquittal on the joined charges does not give rise to a determination of an "ultimate fact” which would bar reprosecution because manifestly, unless the verdict is repugnant or inconsistent, the jury could not have found favorably to defendant on an element of the crime of which it convicted him (see, United States v Jones, 404 F Supp 529, 544, affd 538 F2d 321). Thus, in this case defendant’s acquittal of murder and the related charges could not bar reprosecution of the larceny conviction and defendant does not contend that it does. Rather, he urges us to adopt the rule that collateral estoppel not only bars reprosecution of ultimate facts but also forecloses the introduction or argumentation of evidentiary facts necessarily established in defendant’s favor in the former trial. The rule he urges upon us has been widely recognized as supported either by an expansive interpretation of the Ashe decision, which speaks only of ultimate facts, or by common law, the courts reasoning that, in fairness, a defendant who has satisfied one jury of his innocence of a crime should not be forced at a second trial to refute facts underlying the crime, and necessarily decided in his favor, as if the first trial had never taken place (see, e.g., United States v Mespoulede, 597 F2d 329, 334-335 [2d Cir], supra [constitutional basis]; United States v Venable, 585 F2d 71, 78 [3d Cir], supra [common-law basis]; Wingate v Wain wright, 464 F2d 209, 212-214 [5th Cir] [constitutional basis]; Green v United States, 426 F2d 661 [DC Cir] [common-law básis]; United States v Kramer, 289 F2d 909 [2d Cir] [pre-Ashe common-law basis]; Powers v State, 285 Md 269, 401 A2d 1031 [common-law basis]; Simon v Commonwealth, 220 Va 412, 258 SE2d 567 [constitutional basis]). This rationale is consistent with the protections accorded defendants by our statutes extending double jeopardy protection well beyond constitutional requirements (see, Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 40.10, pp 243-244), with generally recognized concepts of fairness (see generally, Ashe v Swenson, 397 US 436, 446, supra; Simon v Commonwealth, supra, at p 571; Powers v State, supra, at p 1039), and with our stated view that common-law collateral estoppel is generally applicable to criminal proceedings for purposes of conserving the time and resources of the courts and litigants (see, People v Plevy, 52 NY2d 58, 64, supra; People v Lo Cicero, 14 NY2d 374, 380, supra). These concerns do not warrant adoption of the evidentiary fact rule in this case, however, for even if we were to do so, its application would not require reversal of defendant’s conviction.

Application of the collateral estoppel doctrine requires that the court determine what the first judgment decided and how that determination bears on the later judgment (United States v Mespoulede, 597 F2d 329, 333, supra; United States v Kramer, 289 F2d 909, 913, supra; see, Ashe v Swenson, 397 US 436, 444, supra). The rule is easily stated but frequently difficult to implement because the meaning of a general verdict is not always clear and mixed verdicts may, at times, appear inherently ambiguous. Nevertheless, the court must assume the jury reached a rational result (Ashe v Swenson, supra), and a defendant claiming the benefit of estoppel carries the burden of identifying the particular issue on which he seeks to foreclose evidence and then establishing that the fact finder in the first trial, by its verdict, necessarily resolved that issue in his favor (see, United States v Mespoulede, supra, at p 333, and cases cited therein). If he can show no more than that the verdict is ambiguous, he cannot establish that the jury found the evidentiary fact in his favor. The rule is not to be applied with a hypertechnical approach but with realism and rationality by examining all parts of the record of the prior proceeding and concluding from it whether a rational jury could have grounded its decision on an issue other than that which the defendant seeks to foreclose from consideration (Ashe v Swenson, supra, at pp 443-445). The court must also presume that the jiiry appropriately applied the charged substantive and procedural rules of law to the determined events. Thus, although a mixed verdict may appear inconsistent and suggest that the jury established an implausible theory of events, upon closer scrutiny, the verdict may reveal "legal and not factual logic” as a consequence of the jury’s application of a peculiar procedural rule to a reasonably determined factual scenario (United States v Ballard, 586 F2d 1060, 1065; see also, United States v Woods, 484 F2d 127 [involving corroboration]).

Applying these rules, we find a rational basis for the first jury’s verdict which indicates that it did not necessarily find the evidentiary facts defendant objects to in his favor. The critical evidence in this case was the accomplice testimony of Shafran. Only his testimony clearly connected defendant to the crimes charged in all counts of the indictment. It is clear that the jury was acutely aware of the Judge’s instructions that this testimony required corroboration as to each crime because during deliberations they returned to the courtroom several times for further instructions on the subject and to have testimony of various corroborating witnesses read to them. An analysis of the trial record leads inescapably to the conclusion that the jury at the first trial determined that defendant had committed the larceny of Ms. Henschel’s rings during his 20-minute absence from Carpenter’s car because the prosecution presented no other evidence or theory placing defendant in a position to unlawfully take them. Notwithstanding that finding, the jury also found that the evidence linking defendant to Ms. Henschel’s death was insufficiently corroborated. Even if the jury decided that Carpenter and Benedict were not accomplices, the only evidence they offered connecting defendant to the homicide, and there was little else, consisted of the defendant’s 20-minute absence from Carpenter’s automobile while it was parked in his girlfriend’s neighborhood and his return with what they described variously as a pipe or tire iron under his coat and blood on his hands and clothes. The jury was free to discredit this testimony of Carpenter or Benedict, or parts of it, and it must have done so because Benedict corroborated Shafran’s testimony about defendant’s return with a weapon under his coat, evidence which not only could have implicated defendant in the murder and related crimes, but also was sufficient to convict defendant of criminal possession in the fourth degree (see, Penal Law § 265.01). Nevertheless, the jury acquitted him of that charge, a finding that was consistent with its acquittals on the murder, burglary and robbery counts and with other evidence which indicated that there had been no forced entry into Ms. Henschel’s apartment and that the apartment was not in disarray (see, Penal Law § 140.25).

Moreover, defendant does not offer any reason to believe that the jury necessarily found the asserted evidentiary facts in his favor. Instead, he contends, as does the dissent, that the People’s theory in the first trial was that the larceny was committed in conjunction with the murder and related counts, that the evidence would only support this theory and that the jury’s finding that the theft was not committed in conjunction with the murder was inconsistent with the People’s theory and with the evidence. Whatever the People’s theory, however, there was no inconsistency in the jury’s verdicts. To the contrary, they suggest that the jury rationally determined that defendant previously knew Ms. Henschel because she lived in the same building as his girlfriend, that he went to her apartment after she had been killed (or at least that he had not killed her), entered it, and took the rings from the dead body on the floor. If the jury had not accepted the evidence connecting defendant with the victim for the 20-minute period he was absent from Carpenter’s automobile, then it could not have convicted defendant of larceny. That the jury limited its verdict to larceny because of want of corroboration, as the dissent recognizes (dissenting opn, at pp 52-53), only supports the analysis that the jury did not necessarily find the facts in defendant’s favor; it merely found the People had not met the requirement of corroboration (see, United States v Woods, 484 F2d 127, supra; see also, United States v Venable, 585 F2d 71, supra).

Defendant may reasonably contend that the jury’s verdict in the first trial not only foreclosed the People from resubmitting the counts on which he was acquitted but also from advancing a theory that the murder and the theft were committed by the same person. The prosecution did not reargue that theory at the second trial, however. It established that Ms. Henschel had been murdered at some point between 11:00 a.m. on January 23, 1978 and 6:00 p.m. on January 24, 1978 and that defendant had been in close proximity to her body during that period, but it did not attempt to suggest that defendant was her murderer. Indeed, a close reading of the trial record discloses that both the court and the prosecutor were careful to avoid statements suggesting that he was.

Finally, defendant contends that, independent of estoppel principles, the evidence of the Henschel homicide, his prior statement that he was willing to kill to get her rings and his return to Carpenter’s automobile with blood on his person and clothing was not relevant in the larceny trial. There is no doubt that the first jury found that Ms. Henschel had been killed, however, and its verdict did not estop the prosecution from offering evidence at the second trial which supported the theory the first jury apparently adopted. The challenged evidence is relevant because it supports the People’s claim of larceny based upon Goodman’s acquisition of the rings without the victim’s consent. In fact, if the first jury found Ms. Henschel had been alive before defendant obtained her rings, it would, at least, have convicted him of burglary or robbery or both. Defendant’s statement that he would kill Ms. Henschel in order to obtain the rings was similarly relevant to this prosecution because it revealed his intent to commit larceny and the gravity of that intention. Finally, the evidence that defendant returned to Carpenter’s car with blood on himself and his clothing is consistent with lack of consent because the blood revealed that the violence surrounding the victim’s death had occurred before the rings were taken and that she was incapable of consent when they were taken. Whether the probative value of this evidence was exceeded by the danger of undue prejudice to defendant’s case was a matter for the trial court in the sound exercise of its discretion. We find no abuse of discretion in its rulings as a matter of law.

We have considered defendant’s remaining contentions and find them without merit.

Accordingly, the order of the Appellate Division should be affirmed.

Meyer, J.

(dissenting). Although recognizing that the Federal courts generally have applied the doctrine of collateral estoppel to bar the reintroduction of evidentiary facts necessarily decided in a defendant’s favor in an earlier criminal prosecution (majority opn, at pp 39-40) and that the rationale of those decisions is consistent both with fairness and with the expansive view of double jeopardy embodied in our statutes (at p 40), the majority stops short of adopting the "evidentiary fact rule” as the law in New York because of its conclusion that the rule’s "application would not require reversal of defendant’s conviction.” (At p 40.) With that conclusion, however, I respectfully disagree. In reaching its contrary conclusion, the majority concedes, at least implicitly, that the first jury necessarily decided not only that defendant did not murder Elodie Henschel, but also that he possessed no weapon and employed no physical force against Mrs. Henschel or her premises; indeed, that conclusion is consistent with the majority’s determination, with which I do agree, that the first jury necessarily decided that defendant must have stolen the rings from Mrs. Henschel during his 20-minute absence from Carpenter’s car (majority opn, at p 41) after Mrs. Henschel had already been beaten to death (ibid., at p 42). Nonetheless, the majority holds that the doctrine of collateral estoppel, even as applied to evidentiary facts, does not bar the admissibility of evidence that defendant intended to kill Mrs. Henschel, that she was beaten to death and found dead, lying in her blood, and that defendant was seen upon his return to the car with blood on his hands and clothing, reasoning that such evidence is relevant as proof of larceny and that the Trial Judge committed no error in ruling that its prejudicial impact is outweighed by its probative value. Such evidence, however, "if believed, would necessarily lead to the conclusion” that defendant participated in the murder of which he was acquitted and, therefore, its admissibility is barred by the doctrine of collateral estoppel (United States v Kramer, 289 F2d 909, 918). At the very least, its marginal relevance as proof of larceny is so clearly outweighed by its prejudicial impact as tending to implicate defendant in the murder of Mrs. Henschel that its admission into evidence was an abuse of discretion as a matter of law. Respectfully, therefore, I dissent.

I

The rule that collateral estoppel bars the reintroduction of evidentiary facts necessarily decided in the defendant’s favor in a prior criminal prosecution has gained wide acceptance in the Federal courts. The rule was originally placed on a common-law basis (see, e.g., Green v United States, 426 F2d 661; United States v Kramer, 289 F2d 909, 916 [2d Cir], supra; United States v Simon, 225 F2d 260, 262 [3d Cir]). Judge Friendly’s opinion in Kramer states with great cogency why in fairness these courts properly refused to limit collateral estoppel to those cases where the fact necessarily decided in the defendant’s favor at the first prosecution is an "ultimate fact.” The Government in Kramer had convicted the defendant of conspiracy to burglarize two Connecticut post offices and to receive stolen postal property, and of the knowing receipt of such property, following the defendant’s acquittal on charges of burglary and larceny arising from the same two events. In reversing the conviction, Judge Friendly reasoned (at p 916): "On the Government’s argument, if a postal inspector had been killed during one of the burglaries, Kramer’s acquittal would bar, as res judicata, a later prosecution for first-degree murder under 18 U.S.C. § 1114, since participation in a burglary would be an essential element of the crime, 18 U.S.C. § 1111; but, in a prosecution for second-degree murder or for manslaughter, the Government would be free, as it claims a fortiori to be here, to repeat all the testimony about Kramer’s presence on the scene which the Connecticut jury believed, since it would not be essential for the Government to establish burglary in order to convict on the lesser charge. Such a distinction seems utterly captious * * * The very nub of collateral estoppel is to extend res judicata beyond those cases where the prior judgment is a complete bar. The Government is free, within the limits set by the Fifth Amendment, see United States v. Sabella, 2 Cir., 1959, 272 F.2d 206, 211, to charge an acquitted defendant with other crimes claimed to arise from the same or related conduct; but it may not prove the new charge by asserting facts necessarily determined against it on the first trial, no matter how unreasonable the Government may consider that determination to be.” (Emphasis supplied.)

Following the holding of the Supreme Court in Ashe v Swenson (397 US 436, 445) that application of the collateral estoppel doctrine in a criminal case is embodied in the Fifth Amendment guarantee against double jeopardy, the Fifth Circuit in Wingate v Wainwright (464 F2d 209, 215) elevated to constitutional status its prior application of that doctrine to facts which are evidentiary in the second prosecution. It persuasively stated its reasons for doing so as follows (at pp 213-214):

"Certainly where an issue has been determined in a prior prosecution, the state is barred from bringing any subsequent prosecution in which a different determination of that issue is necessary to prove the offense charged. But we are unable to find in either the older cases applying the doctrine of collateral estoppel or the more recent Supreme Court cases any basis for limiting the prohibited relitigation of a previously resolved issue to only those suits where the relitigation is essential for the maintenance of the subsequent lawsuit.

* * *

"We do not perceive any meaningful difference in the quality of 'jeopardy’ to which a defendant is again subjected when the state attempts to prove his guilt by relitigating a settled fact issue which depends upon whether the relitigated issue is one of 'ultimate’ fact or merely an 'evidentiary’ fact in the second prosecution. In both instances the state is attempting to prove the defendant guilty of an offense other than the one of which he was acquitted. In both instances the relitigated proof is offered to prove some element of the second offense. In both instances the defendant is forced to defend again against charges or factual allegations which he overcame in the earlier trial.”

The Second Circuit, in United States v Mespoulede (597 F2d 329, 334-335), soon followed suit by placing its prior decision in Kramer on its proper constitutional footing.

Today, the overwhelming majority of Federal Circuit Courts of Appeal apply the doctrine of collateral estoppel to bar the relitigation of evidentiary facts previously decided in the defendant’s favor, whether as a matter of constitutional or common law (see, as to the former, Pugliese v Perrin, 731 F2d 85, 89 [1st Cir]; United States v Mespoulede, supra [2d Cir]; United States v Mock, 604 F2d 341 [5th Cir]; Albert v Montgomery, 732 F2d 865, 869-870 [11th Cir]; and, as to the latter, United States v Keller, 624 F2d 1154, 1159-1160 [3d Cir]; United States v Head, 697 F2d 1200, 1207 [4th Cir]; United States v Day, 591 F2d 861, 869 [DC Cir]). The Sixth Circuit, although holding in United States v Johnson (697 F2d 735, 740) that collateral estoppel bars the relitigation of factual issues previously decided in the defendant’s favor and with it "the admission of the prior conduct evidence” in the second trial, did not expressly invoke either the Constitution or Federal common law (see also, United States v Powell, 632 F2d 754, 757-758 [9th Cir] [collateral estoppel bars the Government in a conspiracy prosecution from alleging those overt acts of which the defendant was previously acquitted]). And thé Seventh Circuit, though not invoking collateral estoppel, achieves a like degree of fairness by its rule that prior crime evidence loses most of its relevance by reason of an acquittal (United States v Phillips, 401 F2d 301). Only the Eighth Circuit Court of Appeals has flatly declared that "[t]he law in this circuit is that collateral estoppel does not bar relitigation of facts that are evidentiary in the second prosecution” (Flittie v Solem, 751 F2d 967, 972). Such a rule is, however, supported by neither logic nor fairness, for it permits the sovereign to relitigate facts already decided against it in a prior prosecution on the sole ground that the evidentiary use of those facts does not completely bar a second prosecution.

In light of the nearly universal contrary view espoused in the Federal courts, the majority’s hesitation in adopting the "evidentiary fact rule” as the law of this State in criminal cases is disturbing. The more particularly is this so because the rule already finds support in New York’s jurisprudence. It is, of course, the rule in civil cases that — assuming all other requirements of collateral estoppel are met — a "finding essential to the judgment” in the first action will be given evidentiary force in the second action even though not dispositive of "the ultimate legal issue involved” (Hinchey v Sellers, 7 NY2d 287, 293; accord, People ex rel. McCanliss v McCanliss, 255 NY 456, 459-460; see also, e.g., Matter of Guimarles v New York City Bd. of Educ., 68 NY2d 989). That rule has been similarly applied, with the sanction of this court, in a criminal case as well. In People v Dreares (15 AD2d 204, 206-207 [Breitel, J.], affd on opn 11 NY2d 906), the defendant was acquitted in the first prosecution of loitering in a subway station, but was convicted in the second prosecution for assault arising out of his attempt to resist arrest on the loitering charge. In reversing the assault conviction, the Appellate Division reasoned first that "[t]he prior acquittal for loitering, which is not disputed, is determinative that defendant was not guilty of the underlying offense for which he was arrested” (15 AD2d, at p 206, supra). The court next gave that acquittal evidentiary force in the assault prosecution, noting that it established that the arrest was unlawful, thereby entitling the defendant to resist the arrest with reasonable force (ibid.). There being no evidence that defendant had used excessive force so as to render the assault criminal (see, People v Allen, 15 NY2d 558), the conviction was reversed and the information dismissed. Significantly, this court in People v Plevy (52 NY2d 58, 65, n 4) cited People v Dreares (supra) as involving a case "where relitigation of a fact previously resolved in the defendant’s favor would also be constitutionally precluded by the double jeopardy clause” (emphasis supplied). Equally significant, because the defendant’s conviction in Dreares would have been sustained upon the requisite proof that he used excessive force in resisting the arrest (see, e.g., People v Allen, supra; People v Cherry, 307 NY 308), the fact relitigated in Dreares cannot reasonably be deemed an "ultimate fact” under the rubric of Ashe v Swenson (supra).

There is, moreover, as the majority of this court recognized, support for according evidentiary force to facts necessarily decided in the defendant’s favor, even though not determinative of the ultimate issue, in "our statutes extending double jeopardy protection well beyond constitutional requirements, with generally recognized concepts of fairness, and with our stated view that common-law collateral estoppel is generally applicable to criminal proceedings for purposes of conserving the time and resources of the courts and litigants” (majority opn, at p 40 [citations omitted]). These concerns apply with much force here, where defendant’s conviction of larceny rests upon the introduction of "substantially the same evidence” (at p 37) employed by the People in their prior unsuccessful bid to convict defendant of murder and other violent crimes. We should, therefore, delay no longer in pronouncing as the rule in New York that the Constitution prohibits the People from "proving] the new charge by asserting facts necessarily determined against [them] on the first trial, no matter how unreasonable the [People] may consider that determination to be” (United States v Kramer, 289 F2d 909, 916, supra).

II

My disagreement with the majority proves the truth of the observation that "[i]n principle, the law of collateral estoppel is clear; in application, it can be a slippery concept indeed” (United States v Mock, 604 F2d, at p 343, supra). As stated by the Fifth Circuit in Mock (ibid., at p 343), collateral estoppel: "mandates two inquiries: First, what facts were necessarily determined in the first law suit? Second, has the government in a subsequent trial tried to relitigate facts necessarily established against it in the first trial? Facts so established in the first trial may not be used in the second trial either as ultimate or as evidentiary facts.” (Citations omitted.) The majority is in accord with this statement of principles (see, majority opn, at p 40). Where the majority and I disagree, however, is in the answer to the two questions posed in Mock, particularly in respect of the second.

Examination of the record of the first prosecution, "taking into account the pleadings, evidence, charge, and other relevant matter” (Ashe v Swenson, 397 US, at p 444, supra) leads to the conclusion that the first jury necessarily decided that defendant did not murder Elodie Henschel, nor did he possess the tire iron he was alleged to be carrying or employ physical force against Mrs. Henschel or her premises. As noted by the majority, the fact of Mrs. Henschel’s deadly beating was "clearly established” at the first trial (at p 35), there being evidence not only that she was discovered lying face down in her blood, but also that she had sustained a severe blow to the back of her head. Defendant was the only person placed by the People’s evidence at Mrs. Henschel’s apartment during the three-hour time period when, according to the People, the murder must have been committed, and the only question for the jury was whether defendant was her killer. By acquitting defendant on the murder charge, the jury necessarily decided that he was not, the more particularly so in light of the evidence that he would kill her if necessary to obtain the rings.

Nor can the jury’s acquittal on the intentional murder charge be based on a finding that defendant struck a blow to Mrs. Henschel with the intent only to cause her harm, for, in light of the larceny conviction, such a finding would have necessitated a guilty verdict of robbery in the first degree (Penal Law § 160.15 [1]) and of felony murder as well (Penal Law § 125.25 [3]). Moreover, as recognized by the majority, the only plausible explanation for defendant’s acquittal on the charge of burglary in the second degree (Penal Law § 140.25 [1]) would be the jury’s necessary finding that defendant imposed no physical force against Mrs. Henschel or her premises.

Equally important, as the majority also concedes (at p 42), the jury having rejected the People’s theory that defendant beat Mrs. Henschel to death, the only rational explanation for its finding of no consent is that at the time the rings were taken Mrs. Henschel was already dead, or at least in extremis, from the result of a prior beating administered by someone other than defendant.

Notwithstanding that the first jury necessarily decided not only that defendant did not kill or physically assault Mrs. Henschel, but also that he was not even present when the beating was administered, the majority upholds proof of the larceny charge by the admission without limitation of "substantially the same evidence” (majority opn, at p 37) by which the People at the first trial sought to establish defendant’s participation in the murder. In so doing, the majority deprives collateral estoppel of its preclusive effect and leaves defendant to argue only that the evidence of his participation in the murder is inadmissible because unfairly prejudicial to him.

Indeed, the purpose undérlying the application of. collateral estoppel to facts whose role in the second prosecution is an evidentiary one is to spare the defendant the burden of meeting a second time evidence of wrongdoing against which he successfully defended in the prior prosecution, even though defendant stands charged of a different crime. Thus, it has been held that "where the state in an otherwise proper prosecution seeks for any purpose to relitigate an issue which was determined in a prior prosecution of the same parties, the evidence offered for such a relitigation must be excluded from trial and the state must be precluded from asserting that the issue should be determined in any way inconsistent with the prior determination” (Wingate v Wainwright, 464 F2d, at p 215, supra [emphasis supplied]). Although the State’s attempt to relitigate an issue necessarily is clear in those cases where the prosecutor argues to the jury that it should now find in its favor the existence of a fact previously decided against it (see, e.g., United States v Mock, supra [in prosecution for tax evasion, prosecutor argued that the defendant received illicit income from his participation in a marihuana distribution conspiracy despite the defendant’s prior acquittal on the. conspiracy charge]), disclaimers by the prosecution that it does not seek to prove the defendant’s guilt of a prior crime are not, of course, controlling (see, United States v Kramer, 289 F2d, at p 915). Rather, it is enough that, "[considering the matter 'in a practical frame and viewed with an eye to all the circumstances of the proceedings,’ ” the admission of prior crimes evidence places the defendant at risk that the jury will reconsider facts previously decided in defendant’s favor by the prior judgment (see, ibid, [citations omitted]). When, as here, the People seek to establish the defendant’s guilt by "prov[ing] events which were in 'unity of time and place’ ” (United States v Mock, 604 F2d, at p 345) or where, as Judge Friendly put it in Kramer, " 'the core of the prosecutor’s case was in each case the same’ ” (289 F2d, at p 919, supra), the courts have generally held that the resubmission of such proof is invalid under principles of estoppel (see, e.g., United States v Keller, 624 F2d, at p 1160, supra; United States v Day, 591 F2d, at p 869, supra; United States v Mespoulede, 597 F2d, at p 335, supra; United States v Kramer, 289 F2d, at p 919, supra).

Pugliese v Perrin (731 F2d 85, supra) is of especial interest because it illustrates the vitality of these principles when, as here, the jury returns a verdict acquitting the defendant of one count but convicting him of another for crimes arising out of the same transaction. The defendant there was engaged in a street fight with another and upon the trial for the resulting homicide was acquitted of reckless manslaughter but convicted of negligent homicide, the jury having necessarily decided that he did not possess the requisite mental state to commit manslaughter. Upon retrial following a reversal of that conviction, the State employed evidence that defendant, who pleaded self-defense, engaged in purposeful, knowing or reckless conduct as proof of negligence, and succeeded in obtaining a charge to the jury that such proof, if believed, proved negligence beyond a reasonable doubt. Though recognizing the "problem” faced by the State in proving negligence where the defendant claimed awareness of the risk, the First Circuit held that "[tjhis evidentiary gap could not be plugged by proof of purposeful, knowing or reckless conduct which could only be the basis for a conviction of manslaughter of which Pugliese had already been acquitted” (731 F2d, at p 89, supra).

Here, too, the People complain of the potential for evidentiary gaps in their proof, for it is, of course, their burden to prove that defendant took the rings without Mrs. Henschel’s consent. The prosecutor theorized at the first trial that Mrs. Henschel never consented because defendant killed her to obtain the rings, but by acquitting defendant of murder and the related violent crimes, the jury necessarily decided that this was not so. Here, as in Pugliese, the People’s desire to plug a potential evidentiary gap cannot override the constitutionally declared policy of protecting defendant from the burden of relitigating facts previously decided in his favor by permitting the People to reintroduce the identical evidence by which the prosecution previously sought to prove defendant’s participation in the murder.

Because collateral estoppel barred the People from relitigating the questions whether defendant in fact killed Mrs. Henschel or used any force against her or her property in the course of allegedly taking her rings, they were prohibited from introducing "evidence which, if believed, would necessarily lead to the conclusion that” defendant engaged in those acts (United States v Kramer, 289 F2d, at p 918, supra). Evidence that the defendant intended to kill Mrs. Henschel if necessary to effectuate the larceny, that when he returned to the getaway car after committing the crime there was blood on his hands and that Mrs. Henschel was beaten to death and found lying in her blood, if believed, leads inescapably to the conclusion that defendant was guilty of more than larceny, especially in light of the evidence suggesting that the beating occurred at about the time when defendant was in her apartment. Indeed, had the initial jury found sufficient evidence to corroborate these charges, i.e., had they found a basis in law and reason to believe them, there is little doubt that their verdict would have differed. The jury, however, in its wisdom found otherwise and the People cannot now relitigate "facts necessarily determined against it on the first trial, no matter how unreasonable the [People] may consider that determination to be” (United States v Kramer, 289 F2d, at p 916, supra).

Ill

The other crimes evidence was inadmissible as well because, apart from the principles of collateral estoppel, its marginal relevance as proof of larceny was so clearly outweighed by its prejudicial impact in tending to implicate defendant in the murder of Mrs. Henschel that, as a matter of law, it should have been excluded from the People’s proof (People v Ventimiglia, 52 NY2d 350; People v Molineux, 168 NY 264), the more particularly so in light of defendant’s acquittal on the murder charge and related violent crimes (see, People v Schwartzman, 24 NY2d 241, 250 [barring cross-examination of defendant about criminal acts underlying a charge on which he was acquitted]; compare, People v Vidal, 26 NY2d 249, 253 [dismissal is not tantamount to an acquittal, and therefore cross-examination of underlying acts is permissible]). The Molineux rule, of course, proscribes the admission of other crimes evidence if offered for the sole purpose of demonstrating the defendant’s predisposition to commit the crime charged (see, e.g., People v Allweiss, 48 NY2d 40, 46). Even when offered for a proper purpose, however, other crimes evidence is inadmissible when its "probative value 'outweighs its potential for prejudice’ ” (People v Ely, 68 NY2d 520, 529; People v Ventimiglia, 52 NY2d, at p 359, supra; accord, People v McKinney, 24 NY2d 180, 184).

Here, although defendant’s statement that he intended to steal the rings was undoubtedly admissible as relevant proof of his intent to commit larceny, defendant’s additional remark to the effect that he would kill Mrs. Henschel if necessary to accomplish that purpose should have been redacted. To justify its admission as tending to establish "the gravity of’ defendant’s larcenous intent, as the majority here does (at p 43), is to blink the highly inflammatory nature of such proof in a case marked by evidence of the brutal beating of an 83-year-old woman. Nor is the reference to defendant’s willingness to commit murder "inextricably interwoven” with the otherwise admissible portion of the statement because such proof is unnecessary to comprehend the plain meaning of defendant’s admission of his intent to steal (People v Ely, supra; People v Ward, 62 NY2d 816, 818; People v Crandall, 67 NY2d 111, 117).

As for the remaining evidence that Mrs. Henschel was beaten to death and that, when defendant returned to Carpenter’s car, there was blood on his hands and clothing, the majority simply overstates its importance to the issue of consent (majority opn, at p 43). Indeed, there was an ample basis for the jury to find a lack of consent in the testimony of Dennis Martin that the two rings "were engagement rings, one from each of her husbands” and that Mrs. Henschel cherished then so that she "always wore them,” and in like testimony given by her son and daughter-in-law. The defense, moreover, was not that Mrs. Henschel consented, but that defendant did not take the rings, and at neither trial was one shred of evidence introduced to suggest any reason why Mrs. Henschel willingly might have given her treasured and irreplaceable personal effects to defendant. The People’s protestations notwithstanding, their insistence on presenting as proof of the lack of consent the same evidence of defendant’s role in the events of January 23 which they earlier had offered to prove that he committed the murder strongly suggests not only that the People hoped to gain from the obvious prejudice to defendant thereby aroused, but also that they sought to relitigate facts necessarily decided against them at the first trial. Even assuming, arguendo, the relevance to consent of the fact of Mrs. Henschel’s death, that cannot justify the admission of evidence concerning the manner in which she died and of the bloody state, described separately by three witnesses, in which her body was found.

For all of the foregoing reasons, the order of the Appellate Division affirming the judgment of conviction should be reversed and a new trial ordered.

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone and Hancock, Jr., concur with Judge Simons; Judge Meyer dissents and votes to reverse in a separate opinion. Order affirmed.

        People v Dreares (15 AD2d 204, affd no opn 11 NY2d 906), cited by the dissent (dissenting opn, at pp 47-48) also involved a prior acquittal, on a loitering charge, which was used to negate the element of unlawful use of force in a subsequent assault charge. It differs from this case which involves a mixed verdict, and, contrary to the contention of the dissent, it deals with an essential "element” (id., at p 206) of assault, the unlawfulness of the force used by defendant in resisting the unwarranted arrest.

      .Care should be taken not to confuse the reference to "evidentiary facts” in Hinchey v Sellers (7 NY2d 287, 293) and in People ex rel. McCanliss v McCanliss (255 NY 456, 460) with the reference to the "evidentiary fact rule” discussed in the present case. The reference in the earlier cases is to the rule that fact findings which are not essential to the first judgment are deemed "evidentiary facts” in the first action as to which there is no preclusive effect in the second action (see, Restatement [Second] of Judgments § 27 comment j). The present case involves only the question whether facts essential to the first judgment, or "necessarily decided” by it — sometimes referred to as "ultimate facts” in the first action (ibid.) — are to be given the effect of precluding evidence of the same facts in the second prosecution.

      .Dennis Martin, a friend of Mrs. Henschel’s, testified at both the first and second trials that on January 23, 1978 he escorted Mrs. Henschel home from a dentist appointment and left her at her apartment at 11:00 or 11:15 a.m. At 2:00 p.m., his grandmother, Mrs. Henschel’s close friend, began calling Mrs. Henschel’s apartment at half-hour intervals but to no avail. Martin’s grandmother resumed making those calls at 11:00 the following morning, without success. Later that evening, at about 6:00 p.m., Mrs. Henschel was found dead, lying face down in her blood, according to the testimony of the apartment building supervisor given at both trials. It was the People’s theory at both trials, as advanced by the prosecutor in summation, that the "crime” with which defendant was charged "occurred sometime between 11:30 on the 23rd and 2:00 p.m., or thereabouts, sometime in that period, because that is when Mrs. Henschel can no longer answer her phone.” The prosecutor further argued that defendant revealed his own consciousness of guilt when on January 24, 1978, he told police that he had seen three suspicious men in the area of Mrs. Henschel’s apartment on the previous day. The prosecutor asserted that only the perpetrator would have known that "something happened” to Mrs. Henschel on the previous day.

      .Although the prosecutor did not ask the jury to conclude that defendant had beaten Mrs. Henschel to death, even he could not avoid the obvious implication of the People’s proof that Mrs. Henschel was the victim on January 23,1978 of one criminal event. Thus, he argued to the jury that when on January 24, Detective Smith discovered the crime scene, "[t]he police don’t know that the crime occurred the previous day * * * They don’t know they have just opened the door and found the crime scene. They don’t know when it happened” (emphasis supplied). The prosecutor further argued that defendant, who told police that he had seen three suspicious men in the area the previous day, could only have known that "something happened” to Mrs. Henschel and that "it happened” to her on January 23, and not January 24, because defendant necessarily participated in the crime to which he referred, that being, as the above quotations show, the crime that resulted in her death.

      .There is neither logic nor fairness in the majority’s contention (at pp 42-43) that the People’s failure at the first trial to corroborate the testimony that defendant was the killer permits the People at the second trial to relitigate defendant’s alleged participation in the murder through the reintroduction of the same proof. Moreover, United States v Woods (484 F2d 127, 138) may be distinguished as involving a legal ruling by a Trial Judge rather than a fact determination by a jury.


source: Caselaw Access Project

author: Simons, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Patsy Ranghelle, Also Known as Joseph Ranghelle, Appellant. The People of the State of New York, Respondent, v John Buster, Appellant.
    Argued November 20, 1986;
    decided December 19,1986

      POINTS OF COUNSEL

      Jennifer S. Brand and Philip L. Weinstein for appellant in the first above-entitled action.

      Elizabeth Holtzman, District Attorney (Richard J. Cutler, Barbara D. Underwood and Peter A. Weinstein of counsel), for respondent in the first above-entitled action.

      Beverly Van Ness and Philip L. Weinstein for appellant in the second above-entitled action.

      Robert M. Morgenthau, District Attorney (Mark Cammack and Mark Dwyer of counsel), for respondent in the second above-entitled action.
   OPINION OF THE COURT

Simons, J.

These two appeals present, in different contexts, various problems involving the application of the Rosario rule (see, People v Rosario, 9 NY2d 286, rearg denied 9 NY2d 908, cert denied 368 US 866, rearg denied 14 NY2d 876, rearg denied 15 NY2d 765; see also, CPL 240.45). That rule requires generally that the People provide defense counsel with all pretrial statements of prosecution witnesses. The questions raised by these prosecutions include the nature of Rosario material; the obligation of the People to produce it even though it is available to the defense by subpoena; whether the People may be excused because of their good faith in failing to deliver such material; and whether the People’s omissions in these cases constitute a failure to produce, and thus are not subject to harmless error analysis, or merely a delay which does not require reversal unless it caused substantial prejudice to the defendant (see, People v Perez, 65 NY2d 154, 159). For reasons hereafter stated, both judgments must be reversed.

People v Ranghelle

Defendant Patsy Ranghelle appeals from an order of the Appellate Term affirming a judgment convicting him of obstruction of governmental administration, second degree; menacing and harassment. The Appellate Term affirmed the judgment, notwithstanding the People’s failure to timely provide Rosario material to defendant, finding that the failure was not deliberate and did not deprive defendant of a fair trial.

The convictions arose from an incident which occurred when complainant Doreen Nazario, a New York City Department of Sanitation enforcement agent, attempted to serve defendant with a summons for violating city codes in the repair of his Brooklyn apartment building. Nazario claimed that defendant threw a piece of wood at her and threatened to blow off her head with a nearby rifle. Following this incident, Nazario filed charges in the city’s 77th police precinct. Later that day, after an alleged confrontation between Department of Sanitation Supervisor Harry De Vito and defendant outside a Department of Sanitation garage, De Vito filed a second complaint against defendant in the 72nd police precinct. The two complaints were filed at different precincts because proper procedure required that complaint reports be filed in the precinct in which the incident occurred, and the two incidents involving defendant had occurred in different precincts. The latter complaint, in the 72nd precinct, resulted in a second harassment count against defendant which was subsequently dismissed after trial.

De Vito’s complaint report for this second incident was included in the People’s production of Rosario material prior to trial. The Nazario complaint report filed with the 77th police precinct and detailing her account of the first incident was not. Thus, during his cross-examination of Nazario, defense counsel moved for production of her report. The prosecutor stated that it was not in the People’s possession and that Officer Lloyd, another police officer scheduled to testify later in the trial, would bring it with her when she appeared. The Trial Judge refused to adjourn the trial until the report was produced, ruling that defense counsel could recall the complainant for further cross-examination after receipt of the report, if, necessary. When Officer Lloyd appeared, however, she did not have the report. Defense counsel did not make any motion directed at the failure to produce the report at that time, but, at the close of the People’s case, he moved to dismiss the complaint because the People had failed to comply with the requirements of the Rosario rule. The prosecutor argued that she had not violated the rule because the report was not in the People’s possession, that she had made every effort to produce it and that Officer Lloyd’s failure to recognize it was understandable because the report in the 77th precinct identified defendant by another name. The Trial Judge denied defendant’s motion, finding that the failure to produce did not appear to be "terribly prejudicial in any way”. Both sides rested their case and the jury was instructed that the evidence was closed. The report was subsequently produced before summations started. It was brief, and not inconsistent with the witnesses’ testimony, but did omit some details of the incident about which complainant had testified. After seeing the report, defense counsel renewed his motion to dismiss the complaint and the Trial Judge again denied the motion, reasoning that inasmuch as the report was not inconsistent with Ms. Nazario’s testimony defendant had not been prejudiced in cross-examining her. Nevertheless, the court offered defendant the opportunity to recall Nazario for further cross-examination. Counsel declined the offer.

People v Buster

Defendant John Buster appeals from an order of the Appellate Division, First Department, that affirmed, without opinion, the judgment convicting him of one count of robbery, first degree, and two counts of robbery, second degree. All three charges stemmed from a single incident during which Aquilino Benitez, a student attending Columbia University, was robbed by two men in the elevator of his apartment building. At trial, Benitez was the chief witness for the prosecution. He testified that on the day in question two men entered the elevator with him at the ground floor, stopped it at the sixth floor, and then robbed him of jewelry and money after displaying a gun and a knife. Although Benitez described the event in detail, he gave no description of the robbers beyond differentiating between them as "older” and "younger”. Benitez made an in-court identification of defendant and his codefendant, and he testified to his prior identification of the two men during separate lineups at the police station.

The defense theory was misidentification. Aware that incident reports completed by a police officer and a Housing Authority detective contained descriptions of the robbers obtained from Benitez that varied from the physical attributes of defendant and his codefendant, and assuming that these incident reports constituted all the Rosario material to which the defendant was entitled, defense counsel contented himself with eliciting a detailed description of the two robbers from Benitez. He later called the police officer and the Housing Authority detective, as witnesses for defendant, and questioned them regarding the descriptions of the robbers contained in their incident reports in an attempt to impeach Benitez’s testimonial descriptions by showing the inconsistent descriptions contained in the incident reports.

On cross-examination and over defense counsel’s repeated objections and requests for a sidebar, the prosecutor was permitted to elicit testimony that both officers had kept memo books containing notes of their investigation of the Benitez complaint. In response to the prosecutor’s questions as he read from the memo books, both witnesses acknowledged that they made the notes while interviewing Benitez shortly after the robbery and by their testimony they confirmed that Benitez’s description of the robbers at trial and his description of them made during their investigation was consistent. The discrepancies in the incident reports, they testified, were due to errors in their own transcription of Benitez’s statements from the memo books to the incident reports. Apparently, the books were never physically delivered to defendant’s counsel before all parties had rested and the evidence was closed. Defense counsel then moved for a mistrial and the Trial Judge belatedly recognized that the memo books constituted Rosario material that had not been provided to defendant. Nonetheless, she denied defendant’s motion and instead instructed the jury to disregard all testimony concerning the memo book entries. Defendant was subsequently convicted of all three charges, and the judgment was affirmed by the Appellate Division.

In People v Rosario, we held that "a right sense of justice” entitles a defendant to inspect the prior statements of a prosecution witness, prior to cross-examination, whether or not his statements vary from his testimony on the stand (People v Rosario, 9 NY2d 286, 289, supra). Recognizing that even statements which appear to be harmonious with trial testimony may nevertheless be valuable, we required that "[a]s long as the statement relates to the subject matter of the witness’ testimony and contains nothing that must be kept confidential, defense counsel should be allowed to determine for themselves the use to be made of it on cross-examination” (id.).

We have periodically refined the rule to ensure that a defendant "receives the full benefit of a [prosecution] witness’ statements for impeachment purposes” (People v Poole, 48 NY2d 144, 149). Thus, for example, in People v Malinsky we extended Rosario's disclosure requirement to apply to statements of prosecution witnesses testifying at suppression hearings, and we held that the Rosario rule covers the notes of a police officer witness made in connection with defendant’s arrest (see, People v Malinsky, 15 NY2d 86, 90-91; see also, People v Gilligan, 39 NY2d 769, 770 [notes and reports of investigating officers]). In People v Consolazio, we held that prosecutor’s worksheets are Rosario material subject, to disclosure reasoning that "[t]he character of a statement is not to be determined by the manner in which it is recorded, nor is it changed by the presence or absence of a signature” (People v Consolazio, 40 NY2d 446, 453). Most recently we applied the Rosario rule to taped statements made by a prosecution witness to private parties where the tapes were in the possession of the prosecution (People v Perez, 65 NY2d 154, 158-159, supra).

Notwithstanding the strong presumption of the discoverability of prior statements of prosecution witnesses under the Rosario rule, we have fashioned some commonsense limits to mandatory disclosure. Thus, we have held that Rosario does not create a right of a defendant to examine the prosecutor’s entire file or produce material which "the necessities of effective law enforcement would require to be kept confidential” (see, People v Poole, 48 NY2d 144, 149, supra). Nor does it impose an obligation on the People to produce statements that are "duplicative equivalents of statements previously turned over to the defense” (People v Consolazio, 40 NY2d 446, 454, supra; see also, People v Payne, 52 NY2d 743). Statements are not the "duplicative equivalent” of previously produced statements, however, just because they are "harmonious” or "consistent” with them (see, People v Consolazio, supra, p 454 [and cases cited therein]; People v Rosario, 9 NY2d 286, 289-290, supra; compare, People v Kass, 25 NY2d 123, 127 [retranscribed notes]). Thus, once it is determined that the statements sought by a defendant come within the Rosario rule, the better practice is to turn over the statements immediately without further analysis as to whether the defendant is technically entitled to disclosure (People v Consolazio, 40 NY2d 446, 454-455, supra).

When the People delay in producing Rosario material, the reviewing court must ascertain whether the defense was substantially prejudiced by the delay. When, however, the prosecution fails completely in its obligation to deliver such material to defense counsel, the courts will not attempt to determine whether any prejudice accrued to the defense. The failure constitutes per se error requiring that the conviction be reversed and a new trial ordered (see, People v Perez, 65 NY2d 154, 159-160, supra). Finally, the People’s good-faith effort to locate, identify and discover all Rosario material does not excuse their failure to produce covered material (compare, People v Bigelow, 66 NY2d 417, 427 [rejecting the "good-faith exception” to the warrant requirement]; People v Simmons, 36 NY2d 126, 132 [People’s good faith will not excuse failure to turn over Brady material]).

These rules compel the conclusion that both judgments must be reversed and new trials ordered.

In People v Ranghelle, the 77th precinct complaint report, which contained a synopsis of complainant Nazario’s allegations against defendant constituted a statement of a prosecution witness that should have been disclosed after she testified for the People (see, e.g., People v Gilligan, 39 NY2d 769, 770, supra). Although the description of the incident contained in the complaint report was consistent with Ms. Nazario’s testimony, it lacked essential details to which she later testified at trial, omissions which might have constituted important material for cross-examination. Accordingly, it constituted Rosario material (see, People v Rosario, 9 NY2d 286, 289, supra).

The People’s contention that defendant’s conviction should be affirmed because the People attempted in good faith to produce the report, and the delay in its production caused no prejudice, is inapposite. The People’s good faith in attempting to obtain the report is irrelevant and the failure to produce it before the evidence was closed was not a "mere delay”; it constituted a complete failure to comply with the Rosario rule as we have interpreted it (see, e.g., People v Perez, 65 NY2d 154, 159-160, supra).

Finally, we do not accept the People’s argument that the Rosario rule should not be applied where the prior statement of the prosecution witness is not in the sole custody of the People, or where the defense has knowledge of, and access to it. Where, as here, the existence of a complaint report filed with a police precinct is readily ascertainable by the prosecutor, there is no reason to dilute the Rosario obligation by holding that defense counsel should have himself subpoenaed the document. As we observed in Rosario, " 'the State has no interest in interposing any obstacle to the disclosure of the facts’ ”, and society’s interest in maintaining criminal trials as truth-finding processes requires that the burden of locating and producing prior statements of complaining witnesses, filed with police agencies, remain solely with the People (see, People v Rosario, 9 NY2d 286, 290, supra).

In the Buster case, the People contend that defendant is seeking to impose an obligation on them to produce material so that he may impeach his own witnesses. Because defendant called the officers to testify, they contend the People were not obliged to produce the officers’ memo books or, at worst, that their failure to do so could be error only if it resulted in prejudice to defendant. The memo book notes of the investigating officers, however, consisted of statements made by complainant Benitez, the prosecution’s primary witness. They detailed his initial description of the robbery and the robbers and, as such, the information constituted Rosario material which should have been produced following Benitez’s direct testimony (see, e.g., People v Malinsky, 15 NY2d 86, 90-91, supra). Moreover, the oral testimony by the officers concerning the contents of their memo books does not constitute production of the material. The books themselves had to be delivered to defense counsel and delivered long before this stage of the trial if any claim based on delay is to be entertained. Inasmuch as there is no evidence in the record that the books were ever delivered to defense counsel, there can be no claim that the People’s failure constituted a delay and that defendant’s case was not substantially damaged by it (compare, People v Perez, 65 NY2d 154, 159, supra).

Finally, the People contend that they had no obligation to produce the memo books because the notes they contained were duplicative of Benitez’s statements transcribed in the officers’ incident reports. It is sufficient answer to observe that the descriptions contained in the two materials varied. The inconsistencies were minor, to be sure, but they nevertheless may be found, and thus the People cannot claim the descriptions in the memo books were the "duplicative equivalents” of the descriptions in the incident reports.

Accordingly, the order, in each case, should be reversed and a new trial ordered.

Chief Judge Wachtler and Judges Meyer, Kaye, Alexander, Titone and Hancock, Jr., concur.

In each case: Order reversed, etc.