People v. Jones

• Decision Date: 08 December 1992
• Citation: 591 N.Y.S.2d 159,188 A.D.2d 331
• Parties: PEOPLE of the State of New York, Appellant, v. Darrell JONES, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 159

591 N.Y.S.2d 159

188 A.D.2d 331

PEOPLE of the State of New York, Appellant, v. Darrell JONES, Respondent.

Supreme Court, Appellate Division First Department.

Dec. 8, 1992.

Before MILONAS, J.P., and ROSENBERGER, ROSS and ASCH, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County (Angela Mazzarelli, J.), entered on January 8, 1992, which granted defendant's motion to set aside a jury verdict convicting him of robbery in the second degree, is unanimously reversed on the law, the motion denied and the jury verdict reinstated.

On the morning of April 10, 1991, the complainant was in the subway station at Roosevelt Island when she was grabbed around the neck from behind by a man, later identified as defendant, who then stepped in front of her, snatched her shoulder bag and fled. A Roosevelt Island security guard, Filberto Perez, observed defendant, sweating profusely and running out of the subway station, tuck an object under his sweatshirt. The victim followed defendant out of the station. Noticing Perez, she approached him and explained that she had just been robbed. The complainant pointed in the direction of defendant. Perez, after identifying himself, told defendant to stop, but defendant hastened off with Perez in pursuit. While he was chasing defendant, Perez saw defendant remove money from a wallet that he was holding and toss the wallet into some bushes. Defendant was able to ascend a ramp and board a waiting bus before he was apprehended by Perez and two other security personnel and returned to the subway station where he was identified by the victim. Her wallet was retrieved from the bushes and handed over to a police officer. Defendant was taken to the precinct house, and $35, the exact amount that the complainant had had in her wallet when she was robbed, was recovered from him.

Officer James Gratta stated at trial that he had arrived at the subway station at approximately 6:30 A.M. in response to a radio call. There, Perez turned defendant over to him. He put defendant under arrest, frisked the outside of his clothing and placed him in a police vehicle. Although there was no money in the wallet, the officer was informed by Perez that the latter had observed defendant rummaging through the wallet and take something out of it prior to disposing of it in the bushes. Officer Gratta also spoke with the victim noticing that the middle finger of her left hand was broken and that she was bleeding. She gave her pocketbook, which had a broken strap, to the officer. The complainant positively identified defendant in court as the perpetrator, and Perez identified him as the person whom he had seen leaving the station, whom he had pursued and who had discarded the victim's wallet. Officer Gratta also made an in-court identification of defendant.

The jury found defendant guilty of robbery in the second degree. A month later, his attorney moved to vacate the verdict pursuant to Criminal Procedure Law 330.30(1) authorizing a court to set aside or modify a verdict based upon "[a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court." Specifically, counsel urged that the defense had been unfairly surprised when Officer Gratta gave testimony that was inconsistent with certain disclosure made by the People during pretrial discovery. Defendant moved, pro se, to vacate the verdict, claiming that it was against the weight of the evidence and that his identification had not been established. In that regard, it should be noted that the proof of defendant's guilt was overwhelming and that his identification was amply demonstrated. However, the court was sufficiently persuaded by counsel's argument to grant vacatur on the ground of unfair surprise.

The complainant testified that when her wallet was stolen, it contained bills in the denomination of $20, $10 and $5, for a total of $35. Notwithstanding that the prosecution had given the defense pretrial notice that no property taken from the victim was found in defendant's possession, Officer Gratta asserted on the stand that he removed $35 from defendant's person at the precinct in the same type of bills as described by the complainant. He first testified to this effect during cross-examination and again on redirect. Defendant's lawyer made no comment at the time of the supposed inconsistency. The district attorney subsequently stated that she initially became aware on the morning of the trial that the officer had recovered money from defendant, but, since she did not intend to elicit this information on direct examination, she discerned no need to disclose the matter. Not until the summations had been completed did defense counsel ask that the court instruct the jury that "they might not conclude that in view of the fact that the People had not informed the defense that the money had been recovered from defendant's person, the defendant was in possession of the money and they may not draw any inference from any testimony that defendant had any money and they may not consider any testimony that the defendant had the money." The court denied the request to charge, as well as the defense attorney's ensuing motion for a mistrial.

Following the charge to the jury, defendant's lawyer advised the court that his notes reflected that it had first come to his attention during Perez's testimony that money had been discovered on defendant's person. Yet he conceded that he had failed to apprise the court of the discrepancy. In the course of deliberations, the jury sought a readback of the testimony of both the victim and Perez, and this was so ordered. After a second note was received concerning Officer Gratta's testimony, defense counsel renewed his application that the jury be instructed to disregard all...