In the Matter of Darcel D. Clark, Petitioner,
Hon. April A. Newbauer, etc., et al., Respondents.
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.
D. Clark, District Attorney, Bronx (Rafael Curbelo of
counsel), for petitioner.
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,
Friedman, J.P. David B. Saxe Judith J. Gische Barbara R.
People seek a writ of prohibition enjoining enforcement of
the trial court's December 12, 2016 ruling  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.
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) 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) and
menacing in the second degree (Penal Law § 120.14).
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.
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.
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
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."
charge of robbery in the third degree (Penal Law §
person is guilty of robbery in the third degree when he