People v. Howard , 548 N.Y.S.2d 785 ( 1989 )

Sullivan, J. (concurring).

I agree with the determination of my colleagues that the defendant is entitled to a hearing on his suppression motion in the Nassau County robbery prosecution, and that, at a minimum, the People are collaterally estopped from attempting to demonstrate in the Nassau County proceedings that the defendant exercised dominion and control over the shotgun on February 8, 1984. However, I write separately to express my view that the resolution of these collateral estoppel issues should not rest upon an analysis of appealability.

Collateral estoppel bars relitigation of both the ultimate factual issues which are expressly decided in a final judgment and those evidentiary factual issues which are necessarily resolved in reaching the final judgment (see, People v Acevedo, 69 NY2d 478). With respect to the suppression issue, it is clear that the Supreme Court’s pretrial suppression determination was interlocutory in nature and by itself was not sufficiently final to be accorded collateral estoppel effect. Hence, our focus should be upon whether the resolution of the defendant’s motion to suppress in the Queens County proceedings consisted of a factual finding, the determination of which was necessary to or essential in arriving at the final judgment in that case (see, People v Acevedo, supra). It is clear that the determination of the defendant’s suppression motion was not an essential component of the final Queens County judgment acquitting him of possession of the shotgun on February 8, 1984. For this reason, the hearing determination is not entitled to collateral estoppel effect, and the defendant is entitled to challenge the seizure of the physical evidence in the Nassau County robbery prosecution.

The same principle requires that the People be collaterally estopped in the Nassau County prosecution from litigating the issue of the defendant’s exercise of dominion and control over the shotgun on February 8, 1984. The final judgment of acquittal in the Queens County prosecution necessarily determined that the defendant did not in fact exercise such dominion and control over the weapon on that date. Accordingly, it would be manifestly unfair to permit the prosecution to relitigate the issue in the Nassau County robbery prosecution (see, People v Acevedo, supra).

Hence, inasmuch as the doctrine of collateral estoppel is concerned only with final judgments and those factual determinations which are necessary thereto, I do not share my colleagues’ reliance upon an analysis of appealability in resolving the instant matter.

Spatt, J. P., and Balletta, J., concur with Harwood, J.; Sullivan, J., concurs in a separate opinion.

Ordered that the judgment is reversed, on the law, and a new trial is ordered, prior to which the court shall conduct a suppression hearing in accordance herewith. No findings of fact have been raised or considered.