— Judgment affirmed. Memorandum: Defendant appeals from a judgment of the Supreme Court convicting him of robbery in the first degree and criminal possession of a weapon in the third degree stemming from his participation in the robbery of William Nello on December 27, 1981 in the City of Buffalo.
Defendant was also indicted for the separate and unrelated robbery of Mark Jakiela, which allegedly occurred at a gas station in the same area and at approximately the same time as the Nello robbery. Defendant was tried for the Jakiela robbery and acquitted. At defendant’s trial for the Nello robbery, Jakiela testified to defendant’s presence at the gas station, placing him in the vicinity of the Nello robbery close to the time it occurred. Defendant objected and claimed that, as a result of the prior acquittal, Jakiela’s testimony was inadmissible on the ground of collateral estoppel.
We hold that the doctrine of collateral estoppel is inapplicable under the facts presented and that the court, therefore, did not err in allowing Jakiela to testify at defendant’s trial for the robbery of Nello.
If an issue of ultimate fact has once been determined by a final judgment in a criminal case, the same issue cannot be relitigated between the same parties in a later prosecution (see, Ashe v Swenson, 397 US 436, 443; United States v Gugliaro, 501 F2d 68, 70). The burden is on the defendant to show that the jury’s verdict in the prior trial necessarily decided that issue raised in the second prosecution (see, United States v King, 563 F2d 559, 561, cert denied 435 US 918; United States v Gugliaro, 501 F2d 68, 70, supra). This casts upon a defendant who has been acquitted in a criminal case “a most difficult burden since it usually cannot be determined with any certainty upon what basis the previous jury reached its general verdict.” (United States v Gugliaro, 501 F2d 68, 70, supra; see also, United States v Seijo, 537 F2d 694, 697, cert denied 429 US 1043; People v Berkowitz, 50 NY2d 333, 346 [”[I]t will normally be impossible to ascertain the exact import of a verdict of acquittal in a criminal trial.”]) Where a previous judgment of acquittal was based on a general verdict, the court is required to " ’examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and *578other relevant matter’ ” (Ashe v Swenson, supra, p 444). If a " 'rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration’ ” (Ashe v Swenson, supra, p 444), the claim of collateral estoppel must fail (see, United States v Seijo, 537 F2d 694, 697, supra).
Here, the jury did not have to decide that defendant and Jakiela were not present at the gas station to acquit defendant of the robbery. The ultimate fact was not whether defendant and Jakiela were at the gas station, but whether defendant robbed Jakiela. Defense counsel convincingly argued to the jury that no robbery had occurred. He emphasized the fact that Jakiela had previously failed to tell the police that a gold chain and lighter were taken from him during the robbery. Also, Jakiela had testified that during the robbery his shirt was torn and he received a scratch on his chest, and defense counsel argued to the jury that Jakiela’s father, the first person who saw Jakiela after the robbery, was not called by the prosecution as a witness to corroborate Jakiela’s testimony that he was robbed. The court gave the jury a missing witness charge based on the prosecutor’s failure to call Jakiela’s father to the stand.
Based on the evidence in the case, the summation, and the court’s charge, the jury could rationally have concluded that no robbery had taken place, without necessarily deciding whether defendant was at the location testified to by Jakiela. Since the issue of defendant’s whereabouts was not necessarily determined in the first trial, the People were not precluded by the verdict of not guilty from relitigating that issue in this action.
We find no merit to the other issues raised by defendant.
All concur, except Doerr and Schnepp, JJ., who dissent and vote to reverse, in the following memorandum.