A prior acquittal based on the defense of entrapment in
Relator, a multiple felony offender, was on parole under concurrent sentences for robbery in the first degree and felonious possession of a weapon. On May 5, 1977 he was arrested on two indictments charging him with first degree criminal sale of a controlled substance, first and third degree criminal possession of a controlled substance and first degree conspiracy. On the same day he was served with a parole violation notice based on the same offenses, alleging that, by both possessing and selling heroin, he had violated general parole rule 12 which, in March, 1975, when relator was released on parole, provided: "I will not use, possess, or purchase any illegal drugs or use or possess those that have been unlawfully obtained." (Formerly 7 NYCRR 1915.10, repeal filed Jan. 9, 1979.) After a jury trial in which relator interposed the affirmative defense of entrapment, he was acquitted on all counts. At the subsequent parole violation hearing relator, relying on the doctrine of collateral estoppel, contended that his acquittal in the criminal action constituted a complete defense to the charge of parole violation. The Parole Board rejected this contention and sustained both violations.
Relator then petitioned for a writ of habeas corpus. Supreme Court granted the writ, upholding relator's defense under the doctrine of collateral estoppel. The Appellate Division reversed, holding the doctrine inapplicable. We now reverse and reinstate the judgment of Supreme Court.
To consider the application of the doctrine of collateral estoppel in this case a review of the proceedings below is necessary to an understanding of the procedural posture in which the case reaches us. At the parole revocation hearing the defense of collateral estoppel was advanced before the start of the evidentiary phase of the hearing as a "jurisdictional" bar to revocation of parole. The respective contentions of the relator and the Parole Division were pressed with some vigor. The arguments proceeded on the implicit assumption that the acquittal in the criminal action had indeed been in consequence of a jury determination that relator had established the affirmative defense of entrapment. At no point did the Parole Division contend or the Parole Board suggest that the acquittal was ambiguous or might have been based on a
The board and counsel then proceeded to the evidentiary stage of the hearing. The Parole Division introduced the testimony of the undercover police officer and that of relator on the criminal trial. Counsel for relator stood on his "jurisdictional" position based on collateral estoppel and offered no evidence. As indicated, the board sustained the violations and stated: "No evidence was presented to support the defense of entrapment, and entrapment was therefore not considered." There is nothing to suggest that the decision of the Board of Parole did not proceed on the implicit assumption that the acquittal in the criminal action was based on the affirmative defense of entrapment; the board rather held that it would not recognize a defense based on such an acquittal in the absence of applicable precedent in New York State.
The handling of the case by Supreme Court on the petition for the writ of habeas corpus confirmed this analysis. That court, after reciting the facts of relator's indictment and the finding of not guilty on all counts, explicitly stated, "It is agreed that the acquittal was the result of the affirmative defense of entrapment", and concluded that such acquittal constituted a defense to parole revocation under the doctrine of collateral estoppel. Nowhere does the Attorney-General as counsel for respondents now disavow that agreement or press the contention in our court that the acquittal might reflect only a failure of the People to have met their burden of proof beyond a reasonable doubt in the criminal trial.
Accordingly, for the purposes of the disposition of the present appeal we take it as established that the acquittal in the criminal action did indeed constitute a determination that relator had proved the affirmative defense of entrapment by a
We turn then to a brief consideration of the doctrine of collateral estoppel. That the doctrine, an aspect of the broader doctrine of res judicata, is applicable to criminal cases is not disputed (see Matter of McGrath v Gold, 36 N.Y.2d 406, 411; cf. Ashe v Swenson, 397 U.S. 436, 443). Both courts below agreed that, if the prerequisites to its invocation were met, the doctrine would be applicable to parole revocation proceedings.
As to the identity of parties we encounter no difficulty in concluding, as did Supreme Court and as was not questioned by the Appellate Division, that for present purposes the People as prosecutors in the criminal action stood in sufficient relationship with the Division of Parole in the parole proceeding to meet the requirements of the doctrine in this respect. (Cf. Sunshine Coal Co. v Adkins, 310 U.S. 381, 402-403; Matter of Finn's Liq. Shop v State Liq. Auth., 24 N.Y.2d 647, 662.)
With respect to identity of issues, as stated above the criminal acquittal in this case constituted a conclusive finding that relator's conduct was induced by entrapment. The fact that the objectives of the criminal prosecution and of the parole revocation hearing may be differentiated — the one described as punitive and the other as remedial (Gagnon v Scarpelli, 411 U.S. 778, 783-784) — is irrelevant for the purpose of application of the doctrine of collateral estoppel in this case. Our resolution of this appeal is not predicated on an application of relator's constitutional protection against double jeopardy — as to which a punitive nature of the second proceeding against him would be crucial (Helvering v Mitchell, 303 U.S. 391, 399); we are here applying the substantive rule of collateral estoppel which springs from res judicata
But that does not end our consideration of this aspect of our inquiry. As conceded by counsel for relator, "a majority of American jurisdictions which have passed on the issue have held that an acquittal in a criminal proceeding does not bar revocation of parole or probation on the underlying charge". (See Acquittal in Criminal Proceeding as Precluding Revocation of Parole on Same Charge, Ann., 76 ALR3d 578; Acquittal in Criminal Proceeding as Precluding Revocation of Probation on Same Charge, Ann., 76 ALR3d 564.) Some of these decisions appear not to have involved a collateral estoppel analysis but rather to have been based on conclusions that there is a significant difference in the nature of criminal actions and parole revocation proceedings and that the actions of the parole authorities in the latter were not arbitrary or capricious. Where collateral estoppel arguments have been advanced, reference is made to the different levels of proof involved in the two proceedings. It is accurately asserted in
For the purpose of the present appeal we do not need to subscribe to this analysis
There remains the final issue, whether entrapment is a defense to an alleged violation of the provisions of general parole rule 12. That entrapment would constitute such a defense appears to have been assumed by Supreme Court and recognized at least to some extent by the Appellate Division (65 A.D.2d 293). The Attorney-General does not contend otherwise. We hold that entrapment is a defense to a charge of violation of rule 12. If the particular possession or sale of the drugs has been induced by the conduct of law enforcement officials, any standard of elemental fairness would dictate that possession or sale so induced may not be made the basis for revocation of parole.
For the reasons stated, the order of the Appellate Division
Order reversed, etc.