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In re Clark

Supreme Court of New York, First Department

February 21, 2017

In the Matter of Darcel D. Clark, Petitioner,
v.
Hon. April A. Newbauer, etc., et al., Respondents.

         In this original proceeding pursuant to CPLR article 78 of the Civil Practice Law and Rules, petitioner seeks a writ of prohibition to prohibit respondent Supreme Court Justice from enforcing the order of Supreme Court, Bronx County, entered on December 16, 2016.

          Darcel D. Clark, District Attorney, Bronx (Rafael Curbelo of counsel), for petitioner.

          John W. McConnell, New York (Paul McDonnell of counsel), for Hon. April A. Newbauer, respondent.

          Seymour W. James, Jr., The Legal Aid Society, New York (Jeremy R. Davidson of counsel), for Ronnell Joseph, respondent.

          David Friedman, J.P. David B. Saxe Judith J. Gische Barbara R. Kapnick, JJ.

          GISCHE, J.

         The People seek a writ of prohibition enjoining enforcement of the trial court's December 12, 2016 ruling [1] in the case People v. Ronnell Joseph, precluding them from introducing at trial any evidence about a firearm. The court ruled that the grand jury's vote to dismiss certain charges against the defendant was entitled to collateral estoppel effect, resulting in the preclusion. In accordance with the multilevel analysis required in evaluating the People's challenge to the trial court's ruling, we hold that the issue raised is reviewable by this Court as an excess of the trial court's authority and we exercise our discretion to review the ruling. Upon review, we grant the writ of prohibition.

         By indictment number 1245/2015, filed on May 5, 2015, a Bronx County Grand Jury charged the defendant with the crimes of robbery in the third degree (Penal Law § 160.05), two counts of grand larceny in the fourth degree (Penal Law § 155.30[5]) and petit larceny (Penal Law § 155.25), all in connection with an incident that occurred on February 28, 2015. The following charges, also presented to the grand jury based on the same incident, were dismissed: robbery in the first degree (Penal Law § 160.15[4]) and menacing in the second degree (Penal Law § 120.14[1]).

         The complainant's testimony before the grand jury consisted of the following facts: before the incident, the complainant and the defendant had known each other for more than 30 years. On February 28, 2015, at about 9:00 p.m., the complainant was giving the defendant a ride home from a convention they had both attended. The defendant told the complainant to pull the car over at the corner of Nereid and Monticello Avenues in the Bronx. Once they stopped, the defendant removed a small black pistol with a pearl handle from his right coat pocket and pointed it at the complainant's mid-section. The defendant then told the complainant, "You know what this is, " before reaching to grab a gold chain and medallion worth about $7, 500 from the complainant's neck. The complainant did not testify to any resulting injury. The defendant also demanded that the complainant turn over the money in his pocket. The complainant, fearing for his life, handed the defendant approximately $800 in cash. After the chain was taken and the money handed over, and while the gun was still pointed at the complainant, the defendant stated, "God forgive me what I'm about to do." The defendant exited the car, after which the complainant drove away and called 911.

         The defendant also testified before the grand jury. He denied having a gun or any item that appeared to be a gun, or displaying what appeared to be a gun, on the day of the incident. No gun or any item that appeared to be a gun was ever recovered in this case.

         Insofar as relevant here, the prosecutor charged the grand jury on the elements of robbery in the first degree and robbery in the third degree. The grand jury returned a true bill on the charge of robbery in the third degree, but dismissed the charge of robbery in the first degree. Before trial, defendant moved in limine to preclude any testimony about the gun, arguing that the grand jury's dismissal of the charge of robbery in the first degree was necessarily a rejection of the disputed factual claim that he had displayed what appeared to be a firearm during the incident. The People, in presenting the charge of first degree robbery to the grand jury, relied on Penal Law § 160.15(4) which provides:

         "A person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime... [d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm."

         The charge of robbery in the third degree (Penal Law § 160.05) provides:

         "A person is guilty of robbery in the third degree when he ...


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