People v. Plevy

67 A.D.2d 591, 416 N.Y.S.2d 41, 1979 N.Y. App. Div. LEXIS 10509
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 7, 1979
StatusPublished
Cited by11 cases

This text of 67 A.D.2d 591 (People v. Plevy) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Plevy, 67 A.D.2d 591, 416 N.Y.S.2d 41, 1979 N.Y. App. Div. LEXIS 10509 (N.Y. Ct. App. 1979).

Opinion

OPINION OF THE COURT

Gulotta, J.

Defendant, Jules E. Plevy, stands convicted of burglary in the third degree and petit larceny following a jury trial. On appeal, his principal contention is that he was denied due process of law when the trial court ruled that he was collaterally estopped from contesting the legality of a police officer’s entry onto his premises, which entry had been determined to be lawful in a prior murder prosecution in which the defendant was also a party. We believe that the trial court’s ruling was proper under the circumstances of this case and therefore affirm.

In order to adequately explain why the doctrine of collateral estoppel may properly be invoked against this defendant, it will be necessary to recount certain aspects of the prior investigation and prosecution, which culminated in defendant’s conviction for the murder of one Susan Macchio. That conviction was previously affirmed by this court (People v Plevy, 60 AD2d 896).

On September 26, 1975 Detective Harry Waltman of the Nassau County homicide squad was informed by the Lynbrook Police Department that one of its officers had recovered a tan plastic garbage bag containing female clothing, undergarments, a gag, a white surgical glove, a pair of blackened goggles and certain personal effects belonging to one Susan [593]*593Macchio, who was then listed as a missing person.1 Upon canvassing the area where the bag had been found, the detective located a witness who had seen a man emerge from the house at 102 South Franklin Avenue carrying a tan plastic bag and then return a short while later without it. After obtaining a description of that person, he placed those premises under surveillance.

Later that day, Detective Waltman observed the shadows of two men and a woman silhouetted against a shade at 102 South Franklin Avenue, whereupon he approached the house and knocked on the door. A man (the defendant) answering the description of the individual who had been seen carrying the garbage bag, opened the door and a conversation followed. The detective informed this individual that his name had come up during the course of an investigation and that the police would like to question him at headquarters. The defendant answered that he would come, but asked if he might get a jacket first. The detective responded by asking the defendant if he could accompany him while getting the jacket, and the latter answered in the affirmative. At this juncture, they both went upstairs to the defendant’s room. It is this purported consent to enter the premises which forms the crux of the problem on appeal.

While the detective was standing at the door to the defendant’s room, which was in disarray, he saw inside a meat cleaver, a butcher knife, a surgical glove and a tan plastic garbage bag. Nothing was seized at that time, but these observations helped form the basis for the issuance of a search warrant in Nassau County on September 27, 1975. The observations of Detective Waltman also helped serve as the basis for the issuance of a Kings County search warrant on or about September 28, 1975, after the body had been found and identified. The execution of the Nassau County warrant on September 27, 1975 resulted in the seizure of the tan plastic garbage bag, the meat cleaver, the butcher knife and the surgical glove.

When the defendant’s house was searched pursuant to the Nassau County warrant, the police observed a number of other items (including a serially numbered bank money bag [594]*594and a torn passport) which appeared to them to be suspicious, but which were not then seized.2 Further investigation revealed that the money bag had been reported stolen two days prior to the search, while the passport was traced to a man whose office had been recently burglarized. Again, the Nassau Police applied for a search warrant based on these facts and observations, and the resulting search led to the seizure on September 29, 1975 of the items connecting the defendant with the instant burglary, as well as the seizure of certain other items pursuant to the contemporaneously executed Kings County warrant relating to the murder. The defendant was subsequently indicted in Kings County for murder and in Nassau County for burglary in the third degree, criminal possession of stolen property in the third degree and petit larceny.

In the Kings County murder prosecution, defendant’s attorney moved to suppress the evidence seized on September 29, 1975 pursuant to the Kings County warrant and a hearing was held thereon. During that hearing, defendant’s attorney cross-examined Detective Waltman extensively on the circumstances leading to his initial entry into the defendant’s house, and when asked by the court why he was pursuing this line of inquiry, the attorney responded: "It is the defendant’s contention that when detective Waltman entered the room, it constituted [a] trespass within the meaning of the Constitution and all the Federal cases * * * and if in fact that was a trespass, anything that was seized or observed is now tainted and is considered to be fruits of the poisoned tree, and is subject to suppression at any later hearing”. At the conclusion of the hearing the court ruled that the detective’s initial entry was lawful and authorized by the defendant and did not constitute a trespass. However, the court did suppress certain other evidence taken from the defendant’s car because the Kings County search warrant did not authorize the search of a car. The defendant did not testify at this first suppression hearing, although the court advised him that he had the right to do so and that his testimony could not be used as evidence against him at his upcoming trial. Defendant contends that he declined to testify at the hearing since he was considering testifying at the murder trial and was concerned that any [595]*595inconsistencies in his testimony could be used to impeach his credibility.

At the suppression hearing relating to the instant burglary prosecution, defendant offered to take the stand in order to prove that he never consented to the entry of Detective Waltman into his home. The court refused to hear this evidence on the ground that the defendant was collaterally estopped from relitigating this issue.

We note initially that the doctrine of collateral estoppel is applicable to criminal proceedings, at least as against the People (Ashe v Swenson, 397 US 436; United States v Oppenheimer, 242 US 85; see, also, Matter of Levy, 37 NY2d 279; Matter of McGrath v Gold, 36 NY2d 406), and that, contrary to defendant’s assertion, there would appear to be no bar to invoking the doctrine against a defendant, at least in those situations in which his right to a jury trial would not be prejudiced thereby (see Steele v United States, 267 US 505; People v Williams, 40 AD2d 586; Comment: The Use of Collateral Estoppel Against the Accused, 69 Col L Rev 515; see, also, Ashe v Swenson, 397 US 436, 464-465, supra [dissenting opn of Burger, Ch. J.]; cf. Sanders v United States, 373 US 1; United States v De Angelo, 138 F2d 466, 468; Rouse v State, 202 Md 481, cert den 346 US 865). This established, we further note that it is not necessary to determine in the instant case whether the doctrine may be employed to establish an element of the defendant’s guilt (see, e.g., Pena-Cabanillas v United States, 394 F2d 785), as the issue involved here is merely the applicability of the doctrine to a suppression ruling.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Martin v. Reedy
194 A.D.2d 255 (Appellate Division of the Supreme Court of New York, 1994)
People v. Moore
142 A.D.2d 895 (Appellate Division of the Supreme Court of New York, 1988)
People v. Stephens
122 A.D.2d 608 (Appellate Division of the Supreme Court of New York, 1986)
State v. Ingenito
432 A.2d 912 (Supreme Court of New Jersey, 1981)
Duran v. Melton
108 Misc. 2d 120 (New York Supreme Court, 1981)
People v. Nieves
106 Misc. 2d 395 (New York Supreme Court, 1980)
People v. Evans
72 A.D.2d 751 (Appellate Division of the Supreme Court of New York, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
67 A.D.2d 591, 416 N.Y.S.2d 41, 1979 N.Y. App. Div. LEXIS 10509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-plevy-nyappdiv-1979.