(dissenting). In a retrial of defendant Donald O’Toole on a charge of robbery in the second degree (Penal Law § 160.10 [1] [aided by another person actually present]), the People sought to offer into evidence testimony that the person who was “actually present” with O’Toole appeared to have a gun, and that O’Toole twice attempted to extort protection money from Phillip Horsey, the robbery victim. The evidence was not to be offered to prove robbery in the first degree; defendant had been acquitted of that charge. It was, however, important to the People because those were the facts the victim told police, and, they argued, they should not be required to put on a case pretending the facts were any different. O’Toole moved to preclude that evidence, on the ground that it amounted to factual findings resolved in his favor at the first trial. Supreme Court denied his motion, concluding that specific factual findings could not be gleaned from the jury’s verdict. In my view, *341Supreme Court’s decision was correct. I would reverse the order of the Appellate Division.
In People v Acevedo (69 NY2d 478 [1987]), we applied the doctrine of collateral estoppel to preclude the People from relitigating a defendant’s presence at the location of an alleged robbery, in a separate trial of the same defendant for a different robbery. It was the first time we had upheld the application of collateral estoppel in a criminal case (see People v Aguilera, 82 NY2d 23, 29 [1993]); and there was a good reason for it.
The defense at Acevedo’s first trial—where it was alleged that he had robbed one Jakiela and in which he was acquitted of robbery and criminal possession of a weapon—had several unusual aspects, which influenced our decision in that appeal, and which the majority now ignores.
Acevedo’s alleged robbery victim, Jakiela, testified that Acevedo and a knife-wielding companion accosted him at a gas station in Buffalo and forced him to hand over cash and a gold ring. Acevedo, however, testified that Jakiela had concocted a false accusation for the purpose of revenge. According to Acevedo, Jakiela had made a sexual advance to him when the two men were smoking marijuana together one night in Acevedo’s car, in a local park. Acevedo testified that he had forced Jakiela to get out of the car and walk some distance in the cold to his own vehicle, eliciting a vow by Jakiela to “get” Acevedo.
Crucially, defense counsel at Acevedo’s first trial did not contend that the People had failed to prove any particular element of the crimes, and did not challenge the complainant’s ability to identify defendant as one of his assailants (see 69 NY2d at 488). Instead, the defense focused entirely on Jakiela’s lack of credibility (see id. at 482-483). In fact, as noted by the prosecution, “if Mr. Jakiela’s testimony is to be believed, the Defendant is guilty, [and his counsel] makes no bones about that” (id. at 482). In other words, as we summarized, “[b]oth the People and the defendant posited the case as an all-or-nothing proposition” (id. at 487-488), based on whether the jury believed Acevedo or Jakiela.
The Acevedo jury acquitted defendant on both counts, and, we decided, the jury must necessarily have concluded that Jakiela’s testimony was incredible, and that “defendant and Jakiela encountered each other in the park (as related by defendant), not at the gas station (as related by Jakiela)” (69 NY2d at 487). “Unlike many other criminal cases, this one was devoid of *342alternative possibilities” (id.). We concluded that, in Acevedo’s second trial, involving a separate alleged robbery that same night, the People could not introduce Jakiela’s testimony that Acevedo had been at the gas station, since that issue had been necessarily decided in Acevedo’s favor at the first.
As we made clear in Acevedo, “[d]efendant’s burden to show that the jury’s verdict in the prior trial necessarily decided a particular factual issue raised in the second prosecution is a heavy one indeed, and as a practical matter severely circumscribes the availability of collateral estoppel in criminal prosecutions” (69 NY2d at 487). This is in large part because criminal verdicts are general ones; it is usually not possible to ascertain whether a certain factual finding led to the acquittal, unlike a civil trial verdict, with its specific interrogatories answered by the jury.
In Acevedo, we could reach the conclusion that the first jury must necessarily have found that Acevedo was not at the gas station because the dispositive issue for the jury was credibility. We reasoned that, “by acquitting defendant . . . , the jury necessarily concluded that Jakiela’s testimony was incredible” (69 NY2d at 488) and that no gas station robbery ever occurred. As we took care to explain, the jury must have reached this affirmative factual finding because the case was “devoid of alternative possibilities” (id. at 487).
That is not the case here. The jury in O’Toole’s first trial could have based its decision that O’Toole was not guilty of first-degree robbery on a number of grounds other than an affirmative finding that his companion did not display what appeared to be a firearm. Most obviously, as Supreme Court noted, the jury could have acquitted because reasonable doubt prevented it from reaching an affirmative finding one way or the other.
It is possible, for example, that the O’Toole jury decided that the People had not shown beyond a reasonable doubt that O’Toole’s accomplice displayed a firearm, but at the same time decided that there was sufficient evidence to prove that O’Toole forcibly stole Horsey’s gold chain by using his accomplice’s large physical size and proximity to Horsey (and Horsey’s child) as a threat. If so, the jury could rationally have acquitted O’Toole of first-degree robbery (Penal Law § 160.15 [4] [displays what appears to be a firearm]), but convicted him of second-degree robbery (Penal Law § 160.10 [1] [aided by another person actually *343present]). The jury would then have reached its verdicts without affirmatively finding that there was no firearm.
Nor would such a jury finding be irrational or surprising. The jury may reasonably have been skeptical that a gun was displayed, given the public nature of a barber shop; the jurors may have concluded that Horsey was embellishing, either to save face or to try to strengthen the prosecution’s case. Or, in light of skepticism by some jurors, the jury may have reached a compromise verdict, by agreeing on the second-degree robbery conviction.
But a jury’s decision that a factual proposition has not been proven beyond a reasonable doubt is not the same as a jury’s affirmative finding that the proposition is not true. Put another way, being doubtful that there was a gun is not the same as finding that there was no gun. Collateral estoppel would be justified only if it were clear that the jury must necessarily have found that there was no gun.
This does not mean that defendant would not have benefitted from his acquittal. He would not have been recharged or retried on a first-degree robbery charge. No matter what the proof, he could not have been convicted of more than second-degree robbery.
Similar reasoning requires a reversal also with respect to the evidence that O’Toole tried to extort protection money from Horsey, which O’Toole also sought to preclude in his second trial. The first jury, in acquitting O’Toole of attempted second-degree grand larceny, did not necessarily reach an affirmative finding that there was no extortion; the jury may simply have decided that the People did not prove the elements of the crime beyond a reasonable doubt.
In my view, a strict and narrow interpretation of our holding in Acevedo is required. Although the majority takes a different approach, there is one thing we agree on: “collateral estoppel should be applied sparingly in criminal cases” (majority op at 339).
Judges Graffeo, Read and Abdus-Salaam concur with Judge Smith; Judge Rivera concurs in result in an opinion in which Chief Judge Lippman concurs; Judge Pigott dissents and votes to reverse in an opinion.Order affirmed.