This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 201
The People &c.,
            Respondent,
        v.
Luis Ortiz,
            Appellant.




          Anant Kumar, for appellant.
          Catherine M. Reno, for respondent.




PIGOTT, J.:
          This case presents two issues for our review.   The
first is whether the doctrine of collateral estoppel bars the
People from introducing, at defendant's second trial, evidence
that defendant threatened the victim of a burglary with a razor
blade when the jury had acquitted defendant of charges involving

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the use or threatened use of a dangerous instrument at the first
trial.    The second issue is whether the trial court erred when it
permitted the People to introduce a statement made by defense
counsel at arraignment that was damaging to her client but then
denied counsel's request to withdraw.    We hold that collateral
estoppel does not apply in this case but that the advocate-
witness rule required the court to grant counsel's motion to
withdraw or to declare a mistrial.
                                 I.
            Defendant Luis Ortiz was charged with burglary in the
first degree (Penal Law § 140.30[3]), burglary in the second
degree (Penal Law § 140.25) and related offenses in connection
with an incident that occurred on July 20, 2006 in the Bronx.
According to the People, Colpo Manuel Valenzuela was entering his
apartment with his girlfriend, Para Nunez, around 1:00 in the
afternoon when defendant approached them from behind.    Defendant
grabbed Nunez and, while holding a razor blade to her neck,
pushed Valenzuela and Nunez through the door.    He threatened to
cut Nunez's throat if Valenzuela did not give him money or
jewelry.    Valenzuela struck defendant in the head, causing
defendant to drop the razor blade and allowing Nunez to break
free.    While Valenzuela and defendant struggled, Nunez ran to get
Valenzuela's nephew, Jose Henrique Colon, who had been sleeping
in one of the bedrooms in the apartment.    Together, Colon and
Valenzuela restrained defendant on a bed and Nunez called 911.


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She told the operator that someone had broken in and that
Valenzuela had cornered the intruder with a kitchen knife.
          Valenzuela, Colon and Nunez all testified to that
effect at trial.   Defendant, however, told a different story.      He
testified that he and a female friend went to the apartment
building looking for a room to rent and stopped at Valenzuela's
apartment to ask for the superintendent.   Valenzuela made
inappropriate comments to defendant's friend and the two men
engaged in a verbal altercation that escalated into a full-
fledged fight.    At some point during the struggle, according to
defendant, Valenzuela pulled defendant into the apartment.     He
testified that he was unarmed but that Valenzuela grabbed a
kitchen knife and lunged at defendant, eventually restraining him
on the bed.
          The jury rejected defendant's rendition of events and
found him guilty of burglary in the second degree.   It acquitted
him, however, of burglary in the first degree and robbery in the
first degree.    The Appellate Division reversed the conviction for
reasons not relevant to this appeal (69 AD3d 490 [1st Dept
2010]), and defendant proceeded to a second trial on the sole
charge of burglary in the second degree.
          Before the second trial began, defense counsel moved to
preclude the prosecution from presenting evidence of the razor
blade at trial.    Counsel argued that the jury in the first trial
necessarily decided that defendant did not use a razor blade by


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acquitting him of first-degree burglary, which requires the
People to prove that defendant used or threatened the use of a
dangerous instrument (see Penal Law § 140.30).   The trial court
denied the motion and allowed the People's witnesses to testify
about the use of the razor blade when giving their accounts.
          Defendant testified on his own behalf, as he did at the
first trial.   On cross-examination, the People attempted to
impeach defendant's testimony that Valenzuela came after him with
a kitchen knife with the following statement made by his counsel
at arraignment:
          Your Honor, my understanding of the events for
          [defendant] is vastly different [from the
          prosecution's]. I believe [defendant] was at
          this apartment looking to possibly rent a room
          there. An argument began between him and the
          landlord, and at which point the complaining
          witness came after him with a razor blade,
          which explains why it was recovered, and that
          it belongs to the people who lived there
          [emphasis added].
The People sought to introduce this statement to show that
defendant previously told his attorney that Valenzuela came after
him with a razor blade, not a kitchen knife, as he testified.
Defense counsel vigorously objected, arguing that she misspoke at
arraignment and that introducing the statement would force her to
become a witness.   The court overruled defendant's objection and
allowed the prosecutor to impeach defendant with counsel's prior
statement.
          After defense counsel had an opportunity to review her
notes from the arraignment, she discovered that she had indeed

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misspoken.   As it turned out, defendant had told her Valenzuela
came after him with a knife, not a razor blade, consistent with
his testimony during trial.   The court reviewed her notes and
confirmed that her statement at arraignment did not reflect what
defendant had told her.   In light of this revelation, defense
counsel asked to withdraw as counsel and moved for a mistrial.
She argued that her client's right to confront her about the
statement would require her to take the stand and tell the jury
that she misstated material facts moments before advocating for
her client's innocence in summation.
          The court denied counsel's requests but offered to have
another attorney question her about the statement or to introduce
a stipulation as to what counsel would say if asked about the
statement.   After renewing her objection and being overruled a
second time, defense counsel agreed to the stipulation, which the
court read aloud to the jury.   It provided that if counsel were
to testify, she would state that her remarks at arraignment were
incorrect and that defendant did not tell her Valenzuela had come
after him with a razor blade, but rather, defendant told her
Valenzuela came after him with a kitchen knife.   Following
deliberations, the jury convicted defendant of burglary in the
second degree.
          Defendant moved to set aside the conviction pursuant to
CPL 330.30(1) on the grounds that the trial court erred in not
precluding testimony about the razor blade and in denying defense


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counsel's motion to withdraw.   Supreme Court denied the motion
and sentenced defendant as a persistent felony offender to
twenty-three years to life in prison.
           The Appellate Division modified the judgment by
vacating the sentence and remanding the case for resentencing,
and as so modified, affirmed (114 AD3d 430 [1st Dept 2014]).      A
Judge of this Court granted defendant leave to appeal (24 NY3d
1087 [2014]), and we now reverse.
                                 II.
           The doctrine of collateral estoppel originated in civil
litigation as a means of ensuring the swift and peaceful
resolution of disputes (see People v Goodman, 69 NY2d 32, 37
[1986]).   It applies in criminal prosecutions to bar relitigation
of issues resolved in a defendant's favor at an earlier trial
(see People v Acevedo, 69 NY2d 478, 484 [1987]).   We considered
the doctrine most recently in People v O'Toole (23 NY3d 335
[2013]) where we held that defendant's acquittal of first degree
robbery based on the alleged display of a firearm barred the
People from introducing, at a later trial for second-degree
robbery, evidence that a firearm was displayed (id. at 336).
           The defendant in that case took a gold chain from a man
named Horsey who managed a barber shop.   He was charged with,
among other things, robbery in the first degree based on the
display of a firearm and robbery in the second degree for being
aided by another person actually present (id. at 337).   At


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defendant's first trial, Horsey testified that he owed the
defendant money and that the defendant threatened to close his
barber shop if Horsey didn't pay.   About an hour after defendant
made the threat, a large man walked into the shop, pointed a gun
at Horsey and handed him a telephone with defendant's voice on
the other end (id.).   Horsey's young child was sitting nearby
(id. at 342 [Pigott, J., dissenting]).   Horsey followed the man
out of the store, where the defendant was waiting for him, and
gave the defendant a valuable gold chain (id. at 337).   The jury
acquitted the defendant of the first-degree charge but convicted
him of second-degree robbery.   We concluded that the jury could
not have logically acquitted the defendant of first-degree
robbery unless it necessarily decided that the People failed to
prove beyond a reasonable doubt that the robbery involved the
display of a firearm (id.).
          We also observed, however, that the rigid application
of collateral estoppel sometimes gives way to society's interest
in ensuring the correctness of criminal prosecutions (see id. at
339; see also People v Berkowitz, 50 NY2d 333, 345 [1980]).
Thus, we said that if it becomes apparent, in a future case, that
collateral estoppel "cannot practicably be followed if a
necessary witness is to give truthful testimony, then [the
doctrine] should not be applied" (O'Toole, 22 NY3d at 339).
Collateral estoppel did not pose practical difficulties in
O'Toole because the facts could be told in such a way, on


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retrial, that they did not call for testimony about the firearm:
the second-degree robbery charge required the People to prove
only that defendant forcibly stole property aided by another
person actually present.   Without mentioning the firearm, Horsey
could have testified that a large man came into his shop, near
Horsey's young child, handed him a phone with defendant on the
other end and led Horsey outside to meet defendant, who
ultimately stole Horsey's gold chain.   That version of events
would not have required the complaining witness to materially
alter his testimony or provide the jury with a misleading or
untruthful account.
           By contrast, the practical difficulties of applying
collateral estoppel in this case "outweigh the otherwise sound
reasons for preventing repetitive litigation" (Berkowitz, 50 NY2d
at 344).   Unlike the witness in O'Toole, Nunez and Valenzuela
would have had to materially alter their testimony and mislead
the jury in order to omit reference of the razor blade.   They
both testified that defendant threatened to cut Nunez's throat if
Valenzuela did not give him money or jewelry and that defendant
made a slitting gesture with his hand when he uttered the threat.
If not permitted to mention the razor blade, the complainants
would have been required to eliminate this portion of their
testimony or else state, misleadingly, that defendant pushed
Nunez and Valenzuela into the apartment and threatened to hurt
Nunez simply by grabbing her from behind, without a weapon.


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Nunez would not have been able to explain, however, how defendant
threatened her or what he threatened to do.    Nunez also would
have been prevented from explaining why she put up no resistance
to a man she had never seen before.
          Contrary to defendant's assertion, the fact that Nunez
did not tell the 911 operator about the razor blade does not mean
she could omit it from her testimony in court.    The 911 call
reflects Nunez's hurried and frightened description of the
emergency, not its inception, and it is likely that Nunez
neglected to tell the operator every detail that would ultimately
become part of her trial testimony.     Moreover, at the time of the
call, defendant was not wielding a weapon because Valenzuela and
Colon had apparently restrained him on a bed.
          The material changes that these key witnesses would
have had to make to their testimony in order to recount the
incident without reference to the razor blade present the kind of
"unreasonable difficulty" that, as we warned in O'Toole,
jeopardizes the jury's truth-seeking function and outweighs the
need for collateral estoppel.   Therefore, even if the jury
necessarily decided that defendant did not use or threaten to use
the razor blade, the Appellate Division correctly determined that
the doctrine does not apply.
                                III.
          The second issue in this appeal concerns the advocate-
witness rule.   Pursuant to that rule, a lawyer must withdraw from


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representation when it becomes apparent that she must testify on
behalf of her own client (former Code of Professional
Responsibility DR 5-102[a] [22 NYCRR 1200.21(a)]; Rules of
Professional Conduct [22 NYCRR 1200.0] rule 3.7[a] [current,
similar provision]; see also People v Berroa, 99 NY2d 134, 140
[2002] [an attorney "should not continue to serve as an advocate
when it is obvious that the lawyer will be called as a witness on
behalf of the client"]).   The rule seeks to avoid "the unseemly
circumstance of placing an attorney in a position in which he
must argue the credibility of his own testimony" (Ellis v Broome
Cnty, 183 AD2d 861, 862 [3d Dept 1984]), which may "confuse the
fact-finder and impair the fairness of the trial" (People v
Townsley, 20 NY3d 294, 299 [2012]).
           In Berroa, we held that a stipulation by defense
counsel violated the advocate-witness rule and deprived defendant
of his right to conflict-free counsel where the stipulation
transformed the defendant's advocate into an adverse witness and
pitted counsel's credibility against other witnesses (99 NY2d at
138).   Defendant's trial counsel in Berroa was the only person
who could impeach two key defense witnesses whose testimony
deviated in substantial part from information they had provided
to counsel before trial.   Although the parties agreed to a
stipulation in lieu of having counsel testify, we held that the
stipulation exacerbated counsel's conflict by "eviscerating the
credibility of her client's witnesses and his defense" (id. at


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139).
            Defendant's counsel was placed in a similarly untenable
position in this case when the People introduced counsel's
statement from arraignment.    Anyone familiar with arraignment
practices in New York City criminal courts understands the
hurried nature of those proceedings and the likelihood, as
occurred here, that defense counsel may appear on behalf of 30
defendants in one night.    It is no surprise then that she
mistakenly stated that defendant told her Valenzuela came after
him with a razor blade instead of a knife.    The prosecutor sought
to use this statement to attack defendant's credibility, and in
doing so, caused defendant's advocate to become his adversary.
Indeed, defendant's credibility was attacked by the one person in
the courtroom whose job was to advocate for it.
            The situation went from bad to worse when it became
clear that the only way for defense counsel to rehabilitate her
client's credibility was to impugn her own, moments before she
would argue for her client's innocence in summation.    Any way you
look at it, defense counsel had no choice but to withdraw.      In
these unusual circumstances, we hold that the trial court should
have granted counsel's request to withdraw or declared a
mistrial.
            The People's reliance on People v Brown (98 NY2d 226
[2002]) and People v Rivera (58 AD2d 147 [1st Dept 1977] affd 45
NY2d 989 [1978]) is misplaced.    The statements admitted in those


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cases were made by defendants' former attorneys and therefore did
not involve the issue of whether a defendant's current counsel
must withdraw when her statements are inconsistent with the
defendants' testimony at trial.      Unlike defense counsel in this
case, the defendants' trial attorneys in Brown and Rivera were
not set up to attack their clients' credibility or, by
stipulation, their own.
            Accordingly, the order of the Appellate Division should
be reversed and a new trial ordered.
*   *   *    *   *   *    *   *     *      *   *   *   *   *   *     *   *
Order reversed and a new trial ordered. Opinion by Judge Pigott.
Chief Judge Lippman and Judges Rivera, Stein and Fahey concur.
Judge Abdus-Salaam took no part.

Decided December 16, 2015




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