The case of a transient charged with using force and fear to seize a cell phone from a woman who saw a rock shatter the front window of Rudy’s restaurant on Christmas Eve was continued Monday until next month.
The defendant, Nelly Gackowska, 60, had been scheduled to be arraigned for a second time on charges of second-degree robbery and grand theft from a person, both felonies. She could receive a maximum sentence of five years in prison if convicted.
Ms. Gackowska previously pleaded not guilty. But after a judge found the charges against her to be true at a preliminary hearing and ruled that her case could proceed to trial, she was granted a second opportunity at another arraignment to choose between pleading guilty or not guilty.
Ms. Gackowska represented herself at her preliminary hearing, but a public defender was appointed Monday to represent her at her new arraignment, which was continued to Feb. 27, prosecutors said.
Rebecca Brand, the witness to the rock breaking the window at the Santa Barbara restaurant, contends the defendant forcibly took her cell phone from her because she took pictures of her at the scene, and because she was calling 9-1-1 to report the incident.
Ms. Brand claims the defendant injured her by repeatedly slamming her cell phone against her hip while trying to pry it from Ms. Brand’s hand, and that the alleged attack left her with a large bruise. (Ms. Brand emailed a photo of the bruise to the News-Press.)
Ms. Brand never said she actually saw the defendant throw the rock that broke the window at the upper State Street restaurant. She told the News-Press that she heard the rock hit the window and saw it shatter, and saw Ms. Gackowska and an unidentified man standing there.
Because she was not an eyewitness to Ms. Gackowska throwing the rock, prosecutors have declined to also charge the defendant with breaking the restaurant window despite Rudy’s willingness to press charges.
“We don’t have enough evidence to prove a vandalism (incident) beyond a reasonable doubt, so that charge has not been filed for the broken window,” Deputy District Attorney Elizabeth Branch said Monday.
At the same time, prosecutors have left the door open to charging Ms. Gackowska with that crime, telling the News-Press previously that “we are waiting on more information before making a filing decision on the breaking of the window.”