He's coming down the road. Now we have him. It is this closing argument that, according to the defendants, sufficiently raised the contended issue of whether Leather was the target of a selective prosecution as to estop Leather from collaterally relitigating the issue in federal court. Under New York law, Collateral estoppel . The doctrine applies if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action.
Collateral estoppel is thus both narrower and broader than res judicata.
Unlike res judicata, collateral estoppel bars any issue that was raised and litigated in a prior proceeding from being subsequently relitigated in a different, parallel proceeding, provided that the first proceeding offered the litigant a full and fair opportunity to litigate the issue. In contrast to claim preclusion, however, collateral estoppel does not prevent a litigant from raising, in a later proceeding, an issue that he could have, but did not, raise in the first proceeding. The question in this case, therefore, is whether or not the issue of selective prosecution was actually litigated in the State court proceeding. Leather's attorney at that hearing did mention what might be construed as a selective prosecution argument. But he did so at most in passing, certainly not explicitly, and only in his closing argument.