99 A.D.2d 663 | N.Y. App. Div. | 1984
Order unanimously reversed, with costs, plaintiff’s motion for summary judgment on the issue of liability granted, and matter remitted to Supreme Court, Erie County, for an inquest on damages. Memorandum: Special Term erred by refusing to give collateral estoppel effect to defendant’s prior judgment of conviction for assault in the third degree. A criminal conviction may be given collateral estoppel effect in a subsequent civil litigation if there is an identity of issues and a full and fair opportunity to litigate in the first action (Gilberg v Barbieri, 53 NY2d 285, 291-292; Vavolizza v Krieger, 33 NY2d 351, 356; S. T. Grand, Inc. v City of New York, 32 NY2d 300, 305; Read v Sacco, 49 AD2d 471). This is true even though the conviction was entered pursuant to a guilty plea (Alexander v City of Peekskill, 80 AD2d 626; Matter of Cumberland Pharmacy v Blum, 69 AD2d 903; Armchair Races v Caso, 51 AD2d 565). We reject Special Term’s conclusion that plaintiff did not have a full and fair opportunity to litigate the assault charges against him. Unlike the situation in Gilberg (supra, p 289), in which the defendant had been charged with harassment, a “petty offense”, in the instant case defendant was initially charged with a felony and ultimately pleaded guilty to a class A misdemeanor. Defendant was represented by counsel, and before entering the plea admitted the acts of assault. Some three and one-half months had elapsed between defendant’s arraignment and his entry of the plea. Thus, defendant’s plea was not a spur of the moment means of disposing of the charges against him, but a deliberate and calculated resolution of serious criminal charges which could have resulted in incarceration. (Appeal from order of Supreme Court, Erie County, Marshall, J. — summary judgment.) Present — Hancock, Jr., J. P., Callahan, Doerr, Denman and Moule, JJ.
