The People appeal from an order of the Appellate Division which reversed defendant's conviction of the crime of
Defendant was convicted of conspiring with one Diane Alvarez to commit certain drug related class A felonies. The primary witness against defendant was Detective Robert Wainen, an undercover agent of the Drug Enforcement Administration. One of Wainen's sources was Jason Stark, a confidential informant. Stark agreed to arrange a meeting between Wainen and defendant in Stark's apartment at 12:30 P.M. on the afternoon of December 13, 1974 so that Wainen could purchase cocaine.
Wainen arrived at Stark's apartment at about 12:15 P.M. on the appointed day. Defendant did not appear at 12:30, but at about 1:00 P.M. Stark received a phone call from a man who told him that he had been delayed and would not be able to get there until 2:30 P.M. Officer Wainen also listened to the phone conversation,
Upon their arrival at the apartment, Alvarez led Wainen and Stark into the living room, where they engaged in general conversation for approximately five minutes. Then defendant entered the apartment, looked briefly at Wainen, and walked into another room in the rear of the apartment. Alvarez followed defendant into the rear room, and a few minutes later defendant and Alvarez both called out to Stark to join them there. Several minutes after he did so, Alvarez returned to Wainen, who had been waiting in the living room, and handed him a plastic bag containing 26.68 grams of cocaine. Alvarez then returned to the rear room while Wainen examined the package and its contents. Shortly thereafter Alvarez returned to the living room and asked Wainen for the money. He gave her some $2,200 and then told her that if they were to continue doing business the changes in time and place would have to cease. She assured him that there would be no such complications on the next occasion. He then asked if he could purchase a "heavier package" in the near future, and she replied that there would be no problem. Wainen and Stark then left the apartment.
On December 24, 1974, some 11 days after the transaction in the apartment, Wainen attempted to contact Alvarez by telephone to arrange another sale. Defendant answered the telephone, and after ascertaining Wainen's identity, told him that Alvarez was out. The two then engaged in a somewhat ambiguous conversation, which was interpreted by Wainen at trial as containing numerous veiled references to the December
On December 27, 1974, Wainen again telephoned, this time reaching Alvarez. The two arranged to meet that afternoon for a discussion of future drug transactions. At that meeting, the two had a long conversation about the amount and price of drugs Alvarez could obtain for Wainen. She also explained that he should deal directly with her instead of defendant in the future, because the "connection" was hers and defendant normally handled only the street sales. During the next few days Alvarez and Wainen continued negotiations over the possible purchase of an eighth of a kilo of cocaine, but no sale resulted from those discussions. Shortly thereafter, Alvarez and defendant were arrested. They were indicted and tried separately. Defendant was charged only with conspiracy in the first degree and was convicted of that crime. Alvarez, who was charged with several counts, was acquitted of conspiracy but was convicted of criminal sale of a controlled substance in the second degree.
On defendant's appeal, the Appellate Division reversed the judgment of conviction on the law alone and dismissed the indictment. Correctly noting that any statements made by Alvarez and acts performed by her during and in furtherance of the alleged conspiracy could not be admitted into evidence against defendant unless the People first established a prima facie case of conspiracy without such evidence, the Appellate Division then found that the People in this case had failed, as a matter of law, to establish a prima facie case of conspiracy. Accordingly, the Appellate Division concluded that the People had failed to prove defendant's guilt beyond a reasonable doubt. We disagree.
Applying these principles to the instant case, we conclude that the People did establish a prima facie case of conspiracy sufficient to justify the use of Alvarez' statements against defendant and to premise defendant's guilt of conspiracy upon the overt acts performed by Alvarez in furtherance of their illicit agreement. Defendant's involvement in the plan to sell drugs to Officer Wainen was evidenced by his significant connections with the transaction: there was evidence indicating that from the very beginning, it was defendant whom Wainen was to meet on December 13, not Alvarez, as is shown by Wainen's testimony that defendant called the apartment to postpone the first meeting. Similarly, once the informant and Officer Wainen arrived at the apartment, the transaction was delayed until defendant made his appearance. While the actual sale was conducted by Alvarez, the details of that transaction, as described above, lead inexorably to the conclusion that defendant was involved. Finally, the tape-recorded conversation between defendant and Officer Wainen on December 24, although possibly somewhat ambiguous if viewed alone, contains clear indicia of guilt when interpreted in context and in light of the prior meeting between Wainen and defendant, which was fully described by Wainen at trial. In short, although it might well be that absent the incriminatory statements and actions of Alvarez there would be insufficient
This does not end the matter, however, for defendant also contends that the acquittal of Alvarez served as a bar to the subsequent trial of defendant for conspiracy, pursuant to established rules of collateral estoppel or issue preclusion. Although the Appellate Division did not reach this issue, it was raised by defendant both before that court and by pretrial motion to dismiss. The issue is therefore preserved for our review and may be raised defensively on this appeal. Initially, defendant argues that the crime of conspiracy necessarily requires at least two conspirators since it is premised upon an agreement between at least two persons. In the instant case, the only alleged conspirators were Alvarez and defendant, and thus, according to defendant, if Alvarez is not a conspirator neither is he. Finally, according to defendant, since Alvarez has been acquitted of participation in this conspiracy, the People are estopped from contending at his subsequent trial that he and she entered into an illicit agreement. Thus, it is claimed that since the People are supposedly precluded from proving the existence of any illicit agreement between Alvarez and defendant, they must of necessity be precluded from prosecuting defendant as a conspirator.
Insofar as defendant's argument is premised upon the belief that there must exist at least two criminally culpable persons for there to be a conspiracy, it must be rejected as an attempt to return to the traditional "bilateral" theory of conspiracy, which is no longer the law in this State as a result of the Legislature's decision to adopt a "unilateral" theory of liability for conspiracy (Penal Law, § 105.30; see People v Schwimmer, 47 N.Y.2d 1004, affg 66 A.D.2d 91). Under the unilateral theory of conspiracy as it exists in this State, a defendant may be convicted of conspiracy even though all other parties to the illicit agreement are not criminally liable
It is important to note at the outset that this argument is premised entirely upon common law, nonconstitutional principles of collateral estoppel. Since defendant was not put in jeopardy by the prior prosecution of Alvarez, we need not concern ourselves with double jeopardy considerations. Similarly inapplicable are those aspects of collateral estoppel and res judicata which have been subsumed within the Federal constitutional prohibition against double jeopardy so as to preclude the prosecution of a defendant who has himself previously been acquitted of another crime based on the same
It is now well settled that the doctrine of collateral estoppel is applicable to criminal as well as civil matters, and exists independent of the prohibition against double jeopardy (see People ex rel. Dowdy v Smith, 48 N.Y.2d 477, 482-484). As we have previously noted, "[c]ollateral 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" (People v Lo Cicero, 14 N.Y.2d 374, 380). Nonetheless, it has long been recognized that neither the doctrine of collateral estoppel nor the principles of res judicata from which it has developed should be applied "to criminal prosecutions in quite the same way as that body of doctrine is applicable to civil cases" (People v Reisman, 29 N.Y.2d 278, 285; Matter of McGrath v Gold, 36 N.Y.2d 406, 411; see, also, Res Judicata — Criminal Cases, Ann., 9 ALR3d 203; Matter of Martinis v Supreme Ct. of State of N. Y., 15 N.Y.2d 240, 249-251). Collateral estoppel has always been a flexible doctrine which is not to be applied blindly and mechanically (see Schwartz v Public Administrator of County of Bronx, 24 N.Y.2d 65, 73). This is especially true when questions arise concerning the extent and propriety of its application to fields far removed from that body of law within which the doctrine evolved — civil litigation (see, generally, Matter of Venes v Community School Bd. of Dist. 26, 43 N.Y.2d 520). Care must be taken lest the rigid application of collateral estoppel principles to other areas of the law runs afoul of countervailing policies which may at times outweigh the otherwise sound reasons for preventing repetitive litigation to the greatest extent possible (see Developments in the Law — Res Judicata, 65 Harv L Rev 818, 840).
It is for such reasons that the criminal law counterpart of the rule of mutuality of estoppel, which we have long since thrown aside as a "dead letter" in civil cases (B. R. DeWitt, Inc. v Hall, 19 N.Y.2d 141, 147; see Liberty Mut. Ins. Co. v Colon & Co., 260 N.Y. 305; Good Health Dairy Prods. Corp. v Emery, 275 N.Y. 14),
Of considerable significance is the fact that in criminal law, unlike civil litigation, defendants are, to a great extent, protected from burdensome and repetitious prosecution by the constitutional and statutory prohibitions against double jeopardy. Thus, the doctrines of collateral estoppel and res judicata are somewhat less needed in the criminal law. Especially is this true in this State, for our law contains extraordinarily broad proscriptions against multiple prosecutions of the same
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 codefendant. To suggest that the People had a fair opportunity to litigate the issue of the confessing defendant's guilt at the trial of the nonconfessing 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 the guilt of the other defendant beyond a reasonable doubt. We see no reason to forbid an attempt to do so.
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 (see Dunn v United States, 284 U.S. 390, 393) despite instructions to the contrary, especially in a case involving multiple crimes arising from the same transaction.
For all these reasons, we conclude that a defendant whose own interests were not put directly in issue at the prior trial may not utilize the doctrine of collateral estoppel as a bar to
As a result of our decision that the Appellate Division erred in concluding that the People had failed, as a matter of law, to make out a prima facie case of conspiracy against the defendant and our determination that the acquittal of Alvarez does not preclude defendant's conviction, there must be a reversal. Because the Appellate Division order of reversal was on the law alone, that court has not yet had an opportunity to exercise its power to review questions of fact and discretion. Accordingly, the case must be remitted to that court for such review. Should the Appellate Division conclude on remittal that there exists some reason to set aside defendant's conviction, it must then take whatever corrective action is appropriate (see CPL 470.20).
There exists, however, one further matter which warrants our consideration and which would in any case serve to prevent the Appellate Division from immediately affirming defendant's conviction on remittal even in the absence of any other reason for not doing so. In March, 1977, shortly before his trial commenced, defendant moved to dismiss on the ground that he had been deprived of a speedy trial. The factual allegations supporting that motion were provided by defense counsel's affidavit. According to defense counsel, shortly after defendant was indicted in July of 1975, defendant sought and obtained discovery. By July of 1976, however, defendant was fully prepared for trial and actually requested that he be speedily tried. Allegedly, the People rejected defendant's requests for a trial and declared on several occasions that they were not yet ready for trial either because the Assistant District Attorney in charge of the case was otherwise occupied or because counsel for Alvarez was indisposed and the People wished to try Alvarez first. Defense counsel further alleged that more than six months went by as a result of such delays by the People during which time the People were not ready for trial, and that defendant was accordingly entitled to a dismissal pursuant to CPL 30.30. Accompanying the motion papers, however, was a copy of the calendar notations made by the court officer concerning all pretrial
It has long been the law in this State that every accused is entitled to a speedy trial. This was a settled principle of State law long before the Supreme Court concluded in Klopfer v North Carolina (386 U.S. 213) that the speedy trial guarantee provided by the Sixth Amendment is binding upon the States (see People v Prosser, 309 N.Y. 353). That policy is now embodied in both the broad declaration of CPL 30.20 (subd 1) that every "defendant is entitled to a speedy trial" (see People v Moore, 47 N.Y.2d 872; People v Dean, 45 N.Y.2d 651, 659; People v Johnson, 38 N.Y.2d 271; People v Taranovich, 37 N.Y.2d 442) and in the specific time periods prescribed by CPL 30.30 within which the People must be ready for trial. It is the latter section which is applicable here. CPL 30.30 provides that unless the prosecution is ready for trial within six months after the commencement of a criminal prosecution charging a felony, the indictment must be dismissed. In computing that six-month period, however, certain time periods
In this case the court erroneously concluded that that burden had been met by the calendar notations enscribed by the court officer after each appearance, presumably at the direction of the Presiding Justice. Such notations, however, do not comprise a binding determination as to whether in fact the time span covered by a particular adjournment is to be excluded from the six-month period within which the People must declare their readiness for trial. That determination is one which must be made following an adversarial proceeding at which the defendant has an adequate opportunity to contend that the time is not excludable. It may not be made by the court acting sua sponte and in the absence of the parties. Normally, moreover, it is a determination which is to be made when the defendant moves to dismiss on speedy trial grounds, and not at the time the adjournment is granted. This is so because there is no necessary connection between the validity of a particular ground for an adjournment and the question whether such a period is to be excluded in computing the six-month period pursuant to CPL 30.30. At any rate, the calendar notations alone do not suffice to prove that the periods marked "excluded" do in fact come within the ambit of the statutory exclusions. Hence, since the defendant alleged the existence of a delay greater than six months and the People did not provide conclusive proof of sufficient excludable periods, the court erred in denying the motion to dismiss without a full hearing. Accordingly, should the Appellate Division on remittal conclude that there exists no other reason for setting aside defendant's conviction, it nonetheless may not then immediately affirm defendant's conviction, but must withhold final determination of the appeal pending a remittal to Supreme Court for a hearing on defendant's speedy trial motion.
Accordingly, the order appealed from should be reversed
Order reversed and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.