(dissenting). We dissent. The trial
court should have excluded Jakiela’s testimony on the ground that the prior acquittal of defendant for the alleged robbery of Jakiela operated as an estoppel which precluded the People from introducing his once-rejected testimony in the trial for the robbery of Nello. We agree with the majority insofar as it has rejected defendant’s claim of a violation of his constitutional rights (US Const 5th Amend). The guarantee against double jeopardy incorporates the law of collateral estoppel to the extent that "the prosecution of a defendant who has himself previously been acquitted of another crime based on *579the same transaction” is constitutionally impermissible (People v Berkowitz, 50 NY2d 333, 343-344; see, Ashe v Swenson, 397 US 436). It is well established, however, that common-law, nonconstitutional principles of collateral estoppel continue to exist independent of the prohibition against double jeopardy (see, People ex rel. Dowdy v Smith, 48 NY2d 477, 483). These common-law principles preclude the People from relitigating any issue of fact essential to a judgment of acquittal in any subsequent prosecution even though the offenses involved are unrelated and arise from separate criminal transactions.
A defendant is not entitled to the benefit of collateral estoppel unless he demonstrates that "the jury’s verdict in the prior trial necessarily decided the issues raised in the second prosecution” (United States v Gugliaro, 501 F2d 68, 70 [emphasis in original]; see, United States v Jackson, 778 F2d 933, 942). The majority, however, place such a restrictive meaning on the word "necessarily” that it is difficult to conceive of any fact pattern to which the nonconstitutional doctrine of collateral estoppel would apply. The Court of Appeals warning that collateral estoppel should not be liberally invoked because "it will normally be impossible to determine the exact import of a verdict of acquittal” (People v Berkowitz, supra, p 346) was not intended to serve as an excuse to avoid applying collateral estoppel in cases where a searching inquiry of the record in defendant’s first trial leads to the conclusion that a rational jury must have decided a particular issue in defendant’s favor Ashe v Swenson (supra, p 444) teaches that "the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality.” In determining " 'whether 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), we are compelled to examine the prior record "in a realistic, rational and practical way, bearing in mind all the circumstances” and "to determine as best we can what makes the jury’s verdict coherent” (United States v Mulherin, 710 F2d 731, 740, cert denied sub nom. Moore v United States, 464 US 964, cert denied sub nom. Hornsby v United States 465 US 1034).
The majority theorizes that defendant raised two defenses at his first trial — (1) that no one was at the gas station and (2) that regardless of whether defendant and Jakiela were at the gas station, no robbery occurred. Thus, they conclude that the jury necessarily decided only that Jakiela was lying about the *580robbery. In our view, the majority is applying a "hypertechnical” approach to the record of the first trial. The key disputed issue at that trial concerned the alleged encounter at the gas station. If the jury disbelieved Jakiela’s testimony that he was at the gas station, it follows that the jury had to find no robbery occurred. This was the strategy that the defense adopted. The defense necessarily challenged Jakiela on the details of the alleged robbery as part of its plan to show that his entire story was a fabrication. Clearly, the general verdict of acquittal did not establish the truth of defendant’s alibi; however, that alibi was part of the record and was a factor in narrowing the focus of the first trial to the key issue in dispute — whether defendant was present at the gas station.
More importantly, the jury’s verdict necessarily established that Jakiela was not a credible witness. The majority agrees that the first jury found Jakiela must have lied about the robbery but concludes we cannot infer anything further from the acquittal. However, there is no rational basis to divide Jakiela’s testimony into segments. He testified to a single, indivisible incident and the jury rejected his testimony. As a practical matter Jakiela’s testimony presented the jury with an all-or-nothing scenario and the verdict necessarily turned on their assessment of his over-all credibility. In effect, the question of Jakiela’s credibility was the issue "necessarily” decided at the first trial and, since one jury had determined that he was not a believable witness concerning the alleged incident at the gas station, the second jury should not have been allowed to reevaluate his veracity (see, United States v Mock, 604 F2d 341, affd 640 F2d 629; cf. United States v Jackson, 778 F2d 933, 941-942, supra). Accordingly, the judgment should be reversed, on the law, and a new trial granted. (Appeal from judgment of Supreme Court, Erie County, Marshall, J. — robbery, first degree, and another offense.) Present— Callahan, J. P., Doerr, Boomer, Lawton and Schnepp, JJ.