Two Wins in the Appellate Division

On June 7, 2018, the First Department vacated Mr. Travis Breckenridge’s first degree assault conviction after concluding that “the court’s jury charge failed to convey that an acquittal on the top count of attempted second-degree murder based on a finding of justification would preclude consideration of the count of first-degree assault.” 

On May 31, 2018, the First Department exercised its discretion to reduce Mr. Sean Christianson’s sentence from eight years to six years, after OAD argued that he entered an invalid waiver of his right to appeal and that he was entitled to the minimum sentence.  

Kudos to OAD Staff Attorneys Katherine Pecore and Emma Shreefter!

OAD Receives Open Society Foundations Grant

Today, the Open Society Foundations (OSF) announced that OAD's President and Attorney-in-Charge, Christina Swarns, is one of eight new leaders of nonprofit organizations who has been awarded a New Executive Fund grant to "help implement their vision of change."  You can read more about this exciting grant here.

OAD is Selected as a Host Site for NLADA’s Inaugural AmeriCorps VISTA Program

The National Legal Aid and Defender Association (NLADA) has selected the Office of the Appellate Defender (OAD) to serve as a host site for NLADA’s inaugural AmeriCorps VISTA program.  This initiative is designed to train AmeriCorps VISTA members in best practices in Community Oriented Defense by placing them in public defense agencies to help establish systems for ongoing sustainability.  OAD’s VISTA member will work to strengthen OAD’s partnerships with New York City’s community and criminal justice stakeholders. 

“OAD is thrilled to be one of the first public defender offices in the country – and the only appellate defender – to participate in NLADA’s pilot AmeriCorps VISTA program,” said Christina Swarns, President and Attorney-in-Charge of OAD. “This is an important affirmation of OAD’s belief that effective indigent appellate defense is grounded in not only an in-depth understanding of the complexities of criminal law but also a meaningful understanding of the myriad ways in which the criminal justice system impacts our clients and their communities.”

OAD’s Community Partnerships VISTA member will be drawn from a pool of recent college graduates who have a demonstrated interest in social justice and a connection to the communities served by OAD.  The VISTA member will work to ensure OAD’s practice reflects the ways in which criminal laws and policies impact its individual clients, their families and their communities. The VISTA member will also build OAD’s capacity to share critical and current information that will ease the trying process of navigating the criminal justice system.  Thus, the VISTA member will improve OAD’s ability to provide truly holistic appellate defense representation, not only by identifying resources relevant to our clients’ most basic but as yet unmet needs during and after incarceration, but also by creating and cementing connections between OAD and impacted communities.

“Thanks to the vision of NLADA, OAD is fortunate to have the opportunity to host a VISTA member whose primary goal will be fortifying OAD’s community partnerships,” said Lisa Packard, OAD’s Managing Attorney. “This will reap benefits for our organization for years to come.”

More information about OAD’s VISTA position can be found here.

OAD Client Exonerated of 1991 Rape Charges

A joint investigation between defense counsel and prosecutors revealed that VanDyke Perry and Gregory Counts were convicted of a crime that never happened.

New York (May 7, 2018) – OAD client VanDyke Perry and Innocence Project client Gregory Counts were exonerated today after a joint reinvestigation by OAD’s Reinvestigation Project, the Innocence Project and the Manhattan District Attorney’s Conviction Integrity Unit revealed that their accuser falsely claimed that the men raped her in Central Park in 1991.

Mr. Perry served 10 years in prison and was paroled in 2001. Mr. Counts served 26 years in prison and was paroled last year.

“Justice for Mr. Perry is long-overdue. Not only did a senseless lie cost him his young adulthood, Mr. Perry spent the last 17 years labeled a sex offender,” said OAD Senior Staff Attorney Mandy Jaramillo, who represents Mr. Perry. “The stigma and restrictions of our sex offender laws were, for Mr. Perry, a second sentence.”

“For twenty-seven years, VanDyke Perry has proclaimed his innocence,” said Christina Swarns, President and Attorney-in-Charge of OAD. “Today, the criminal justice system acknowledges that truth and Mr. Perry rightly reclaims the integrity of his name and reputation.”

In 1991, a woman claimed that then 21-year-old Mr. Perry, then 19-year-old Mr. Counts, and a third man abducted her in Queens, drove her to Central Park, and took turns sexually assaulting her. The woman alleged that the attack was an attempt to force her to reveal the location of her boyfriend who, she claimed, was involved in a dispute with the men over drug money. At the time of the alleged rape, the boyfriend was also being sought by the police for shooting Mr. Perry.

From the beginning, the woman offered wildly inconsistent accounts of the alleged attack. Nonetheless, her statements were the only evidence against the men. DNA testing on the woman’s underwear excluded both Mr. Perry and Mr. Counts, and there was no physical evidence of rape or trauma.

By the time of the 1992 trial, the woman had completely stopped cooperating with law enforcement and prosecutors had to secure a material witness order in order to ensure her testimony. The prosecutor argued to the jury that the DNA in the complainant’s underwear probably belonged to her boyfriend. It also came out during the trial that charges against the woman’s boyfriend for shooting Mr. Perry were dropped, even though the boyfriend confessed to the shooting, and gave police the weapon.

Mr. Perry and Mr. Counts were found guilty of first degree rape and other charges. After their convictions were affirmed on appeal, they continued their efforts to prove their innocence.

In 2014, the Innocence Project, with the consent of Manhattan prosecutors, had additional DNA testing done on a sample from the complainant’s underwear. A genetic profile was developed and entered into the FBI’s national offender database. That profile matched a man, now deceased, who was 20 years older than the complainant and who lived near the apartment where the complainant was staying when she reported the alleged attack. When confronted with the DNA test results, the complainant explained that in 1991 she sold sex for drugs and the semen in her underwear may have been from a john.

After this revelation, attorneys from the Innocence Project and OAD’s Reinvestigation Project began a joint reinvestigation of the case with Manhattan CIU. In a series of meetings over a year, the attorneys and prosecutors reviewed and discussed the evidence and collaboratively identified potential witnesses, lines of inquiry and additional evidence.

This collaboration resulted in a joint defense-prosecution interview with the unapprehended alleged third perpetrator, where investigators learned critical evidence that further undermined the complainant’s account.

At a recent interview with investigators, the complainant completely recanted her trial testimony, and said that her boyfriend coerced her into making the false accusation.

“This case powerfully demonstrates the unique value of collaborative defense- prosecution conviction review efforts,” said Anastasia Heeger, Director of OAD’s Reinvestigation Project, who, along with Ms. Jaramillo, represented Mr. Perry in the joint reinvestigation. “By working together, the defense and the prosecution can ensure that questionable convictions receive fresh, critical review. Because you can’t have meaningful conviction review without competing views, informed, zealous defense counsel is an essential component of the effort to get at the truth.”

Mr. Perry and Mr. Counts were in court today where, with the consent of prosecutors, their convictions were vacated by Justice Mark Dwyer of New York County Supreme Court.

“This really destroyed my life,” said Mr. Perry about his wrongful conviction and incarceration. “I couldn’t get decent jobs. But I’m determined. I have kids, and I had to strive for them. Even when my back was hurting, and I started getting gray hair too young from working so hard, I had faith.” Mr. Perry, who describes himself as a jack of all trades, is a landscaper, a general repairman, and a talented baker—a skill he learned from his mother as a child. He plans to go to college and study business management and the law, and he hopes to one day establish a program to mentor children at risk of incarceration.

For More Information Contact:

Mandy Jaramillo, OAD Senior Staff Attorney

Anastasia Heeger, Director, OAD Reinvestigation Project


First Department Orders New Trial Based on Missing Accomplice Liability Instruction

Today, the First Department reversed OAD’s client’s  first degree gang assault and second degree assault convictions – for which he had been sentenced to 25-years-to-life as a persistent violent felony offender – because the trial court failed to provide an accomplice liability instruction. The Court found that the People's case relied heavily on three witnesses that the jury could conclude were accomplices, the non-accomplice testimony was minimal or exculpatory, and trial counsel was ineffective for failing to request the instruction. You can read the decision here.

OAD Secures Speedy Trial Dismissal

Today, the New York Supreme Court dismissed OAD's client's criminal facilitation indictment after finding that the trial prosecutor never responded to a pre-trial motion for dismissal based on a speedy trial violation.  Although the People sought to file an affirmation in response to the speedy trial motion after the Appellate Division remanded the case, the Supreme Court held that the inquiry on remand was limited to whether or not a pre-trial response had been filed. The Court held that because the People "neither satisfied their burden in response, nor raised a factual dispute requiring a hearing," dismissal was required.  You can read the decision here. 

OAD's Statement on the Herman Bell Parole Recommendation

The Office of the Appellate Defender (OAD) is New York’s oldest provider of appellate representation to poor people convicted of felonies, and the City’s second oldest institutional indigent defense office. OAD handles post-conviction cases from the Bronx and Manhattan, including direct appeals before the Appellate Division, First Department, and the New York Court of Appeals. OAD litigates sex offender registration level hearings, drug law resentencings, and motions to overturn wrongful convictions (including claims based on new or undisclosed evidence, prosecutorial misconduct and ineffective assistance of counsel). OAD also advocates for improved prison and parole conditions, and provides reentry assistance. Since its founding in 1988, OAD has maintained a national reputation for superb appellate advocacy and innovation, as well as a holistic, client-centered, approach to representation. OAD has repeatedly been recognized by the New York State Bar Association and the appellate courts for excellent representation. 

On March 14, 2018, the New York State Parole Board announced that it was granting parole to Mr. Herman Bell – an individual who, in 1971, received a 25-years-to-life sentence pursuant to his conviction for two counts of second-degree murder. The Board explained that it concluded Mr. Bell was eligible for release based on a number of factors, including Mr. Bell’s age (70), the number of years he spent in prison (47), his commitment to programming, and a Department of Corrections and Community Supervision assessment finding that Mr. Bell poses a low risk to the community. In response, numerous New York City and State elected officials have publicly criticized the Board’s decision, asserting that the nature of Mr. Bell’s conviction renders his release inappropriate. Although OAD lacks sufficient information to take a position on Mr. Bell’s entitlement to release, OAD firmly believes that no one should be denied release based solely on the facts of a crime – particularly not one that is almost five-decades old. Not only must evidence of rehabilitation be a critical component of any parole decision, the parole process must be independent, transparent and offer a meaningful opportunity for release. Unfortunately, the critique of Mr. Bell’s recent grant of parole suggests that New York’s parole process lacks such fundamental guarantees.

“Instead of asking why the Board granted parole this time, we should be asking why the Board doesn’t grant parole more often,” said Lisa Packard, Managing Attorney for OAD.  “If rehabilitation is a goal of incarceration, we should applaud the parole board’s decision to release a person whose institutional record warrants it.”

Over the past thirty years, OAD has represented thousands of people in prison and witnessed first-hand our clients’ extraordinary efforts to achieve rehabilitation and release. The suggestion that the Parole Board’s decision should be reconsidered or reversed solely because Mr. Bell was convicted of the murder of a police officer – and regardless of his substantial evidence of rehabilitation – sends a profoundly disturbing message that New York’s sentencing structure is disingenuous and that some sentences are parole-eligible on-paper-only. A reversal of Mr. Bell’s grant of parole on this basis would undermine New York’s recent progress in the parole arena, and discourage meaningful efforts at reform and rehabilitation by people currently serving parole-eligible sentences.

In New York, repeated parole denials are, unfortunately, the norm. Indeed, Mr. Bell was previously denied parole seven times. The Parole Board’s decision to grant parole to Mr. Bell after considering evidence of his rehabilitation – and the facts and circumstances of his crime – appears to be an example of the system working properly. 



OAD Featured in InjusticeToday Article About Gov. Cuomo's Flawed Budget Amendment Imposing Draconian Restrictions on People Convicted of Sex Offenses

Last week, OAD delivered a Letter to New York Governor, Andrew Cuomo, opposing his plan to impose draconian restrictions on people convicted of sex offenses. Yesterday, that Budget Amendment was the subject of an article in InjusticeToday -- NY Gov. Cuomo's Terrible, Awful, Very Bad Plan to Protect Your Kids -- explaining how and why "banishment" policies like the one Gov. Cuomo seeks to expand are not more likely to protect children. 

The article quotes OAD's Attorney-in-Charge, Christina Swarns:  

“It’s hard to believe that we are debating banishment as an acceptable public safety measure in 2018,” Christina Swarns, attorney-in-charge of New York’s Office of the Appellate Defender, which provides appellate representation to individuals convicted of felonies, told In Justice Today. “This conversation is particularly absurd given the overwhelming evidence that people convicted of sex offenses are more likely to re-offend when isolated and denied medical, social and economic supports. Banishment is a punishment that should remain in the dustbin of history.”

It also quotes OAD's Senior Staff Attorney, Lauren Stephens-Davidowitz:

While proponents of the Cuomo proposal suggest it targets those deemed most likely to re-offend, Lauren Stephens-Davidowitz, a supervising attorney with the Office of Appellate Defender, told In Justice Today that the risk assessment tool used by New York State has never been subject to scientific scrutiny. For example, it treats a sex offender’s status as a juvenile as an aggravating (rather than mitigating) factor in assigning a risk level. So it’s unclear if the risk levels assigned by authorities, such as the Level 2 and 3 categories, are based on criteria that are scientifically sound.



Appellate Division Affirms Suppression of OAD's Client's Statement

Today, the First Department affirmed the trial court's decision to suppress the physical evidence and statements the People sought to introduce against OAD's client. The Court held that the hearing record supports the trial court's conclusion that "the People did not meet their initial burden of coming forward with credible evidence to establish the legality of the [car] stop" that produced the evidence at issue, because the police officer's testimony about that stop was "conclusory and sometimes contradictory" and, indeed, "the officer's testimony gave the court reason to suspect that the car was actually stopped because of an encounter on the street 20 minutes earlier between the car's occupants and the same officer."  You can read the decision here.  Congratulations to OAD Staff Attorney, Kami Lizarraga.  

OAD Joins Fifteen Prominent Indigent Defense and Advocacy Organizations to Oppose Gov. Cuomo's Budget Amendment as Illegal and Ineffective

Cuomo’s Budget Amendment Undermines Public Safety and Rehabilitation

[New York, NY; March 12, 2018 – ] Today, the Office of the Appellate Defender (OAD) joined fifteen prominent advocacy and indigent defense organizations to oppose Governor Cuomo’s proposed amendment to the 2019 budget, imposing additional restrictions on people required to register under the Sex Offender Registration Act (SORA).  Specifically, OAD delivered a letter to Gov. Cuomo explaining that his proposal to broaden New York’s already sweeping residence and movement restrictions is expensive, undermines public safety, and constitutes a contemporary form of banishment.

“It’s hard to believe that we are debating banishment as an acceptable public safety measure in 2018,” said Christina Swarns, President and Attorney-in-Charge of OAD.  “This conversation is particularly absurd given the overwhelming evidence that people convicted of sex offenses are more likely to re-offend when isolated and denied medical, social and economic supports.  Banishment is a punishment that should remain in the dustbin of history.”

Executive Law § 259-c(14) prohibits people convicted of certain sex offenses – including crimes against children – from setting foot within 1,000 feet of school grounds while on parole or post-release supervision. This restriction has made most of New York City and large parts of the rest of the State inaccessible to hundreds of people attempting to reintegrate into society after a prison sentence. Gov. Cuomo’s proposed amendment expands the definition of “school grounds” for people convicted of crimes against children under the age of thirteen to include pre-kindergarten and kindergarten facilities and thereby renders even more of New York City and the State off-limits to those individuals. Furthermore, Gov. Cuomo’s proposed addition to Social Services Law § 131-y prohibits social services officials from placing people classified as a moderate or high risk of re-offense under SORA – including those who have completed their sentence and those who were not convicted of offenses against children – in any temporary emergency housing or homeless shelters used to house families with children.  In New York, people convicted of sex offenses are now routinely held in prison long past their release dates solely because of the unavailability of housing that satisfies the impossible restrictions already in place.  Gov. Cuomo’s proposed amendment exacerbates this already dire situation.

“Throughout our country’s history, the worst laws and policies have been driven by fear and hysteria, rather than evidence,” said David Cole, National Legal Director of the American Civil Liberties Union.  “The draconian banishment of people convicted of a broad category of sex offenses is an unfortunate extension of this ignoble past.  New York can and should do better.” 

Research – including by the United States Department of Justice – shows that residency restrictions do not improve public safety or reduce sex offender recidivism. Contrary to popular perception, the recidivism rates of people convicted of sex crimes are relatively low, and the vast majority of sex crimes are committed by someone the victim already knows. Moreover, laws and policies that isolate sex offenders and deny them access to employment, family, and social services increase the risk of re-offending.

Court of Appeals Grants Leave to Review the Denial of a Justification Defense

Yesterday, Hon. Jenny Rivera of the New York Court of Appeals granted leave to appeal in one of OAD's cases. Our client was convicted of second-degree assault after getting into a bar fight during which he threw a pint glass at the complainant. The second-degree assault charge was premised on the theory that throwing the glass constituted use of a “deadly weapon or dangerous instrument.” The record was undisputed that the complainant initially pushed OAD's client but the trial court refused to instruct the jury on justification because it essentially held that the use of a dangerous instrument can never be justified against an unarmed complainant. The court would only give a deadly force justification instruction -- i.e., that OAD's client was justified in throwing the glass only if he was being confronted with deadly physical force -- but not an ordinary force justification instruction. You can read the underlying decision here. This case was litigated by OAD Supervising Attorney, Eunice Lee, and Matt Wilkins of Jenner & Block who, as a student in OAD's Criminal Appeals clinic at NYU Law School, argued the case in the Appellate Division and in the leave conference.

Appellate Division Reduces OAD's Client's Conviction

Today, the First Department reduced OAD’s client’s gang assault conviction to attempted gang assault after concluding that “[t]he evidence was legally insufficient to establish that the injuries sustained by the victim constituted serious physical injury” and, indeed, it was “undisputed that the victim’s injuries did not impair his general health.”  The Court remanded the case for resentencing.  You can read the decision here.  Congratulations to OAD Staff Attorney, Katherine Pecore!

Recent OAD Victories


People v. Marcucci, 2018 NY Slip Op 00634 (1st Dep’t February 1, 2018):  the First Department, in the interest of justice, vacated OAD’s client’s second-degree assault conviction, and remanded for a new trial. OAD’s client presented a justification defense at trial.  The Appellate Division found that the trial court erred in failing to give a “stop deliberating” instruction to the jury, informing them that if they accepted the defense and acquitted of the top count (attempted murder), the jury should not continue to deliberate on the other charges.  (Eunice Lee)

People v. Greogory, 2018 NY Slip Op 00070 (1st Dep't January 4, 2018):  the First Department, in the interest of justice, reduced OAD's client's 5 to 15 year sentence for conspiracy in the first degree, attempted murder in the second degree and criminal possession of a weapon in the second degree to 3⅓ to 10 years on the conspiracy conviction and 3½ years on the weapon possession, with 5 years postrelease supervision.  In this case, OAD's client was charged, and convicted, as an adult for conduct that took place when he was 14 and 15 years old. (Lauren Stephens-Davidowitz)

People v. Peters, 2017 NY Slip Op. 08417 (1st Dep’t December 5, 2017):  the First Department vacated OAD’s client’s drug sale conviction after concluding that, for a six month period, OAD’s client was represented by an attorney that labored under an actual conflict of interest.  Specifically, counsel simultaneously represented both the accused seller (OAD’s client) and the purported buyer (whose guilty plea included a description of the seller that matched OAD’s client and who testified against OAD’s client at trial) in an alleged drug sale transaction. The Court remanded the case for a new trial wherein the testimony of the buyer is excluded.  (Kate Mollison)

People v. Cintron, 2017 NY Slip Op. 08184 (November 21, 2017):  the First Department vacated OAD’s client’s guilty plea because the trial court failed to ensure it was knowing and voluntary, even though the client “made statements casting significant doubt upon his guilt and calling into question his understanding of the nature of the charges against him.” (Sam Mendez)

People v. Estremera, 2017 NY Slip Op. 08036 (November 16, 2017): the Court of Appeals granted OAD’s client a new sentencing hearing after finding that his right to be present at sentencing was violated. The Court reversed the Appellate Division and found that Criminal Procedure law § 380.40 requires a defendant to be personally present at the reimposition of his/her original sentence pursuant to Penal Law § 70.85 unless the defendant validly forfeits or waives the right to be present. The Court reiterated the convicted person’s “right to hear the court’s pronouncement of sentence and to address the court, even if it is certain that the sentence is a foregone conclusion unaffected by whatever the defendant might do or say.” (Sam Mendez)

People v. Swinson, 2017 NY Slip Op. 07302 (October 19, 2017): the First Department held that the first degree burglary conviction was legally insufficient because the evidence did not support a finding that OAD’s client “entered or remained unlawfully” in a dwelling with the intent to commit a crime therein. (Eunice Lee)

People v. Rosa (October 11, 2017): the Bronx Supreme Court reduced OAD’s client’s Sex Offender Registration Act (SORA) designation from level two to level one.  (Will Kendall) 

People v. Ablakatov (October 11, 2017): the New York County Supreme Court vacated OAD’s client’s plea because the trial court did not advise him of the deportation consequences. (Kate Mollison)

People v. Ortiz, 2017 NY Slip Op. 06990 (October 5, 2017):  the First Department vacated guilty pleas to two counts of burglary in the second degree, finding that this crime requires the unlawfully entered building to be a “dwelling” and, during the allocution, OAD’s client maintained that he only committed commercial burglaries.  The Court concluded that this was one of the “rare cases” where the defendant’s recitation of the facts negated an element of the offense and that the plea court’s follow up questions did not sufficiently address the problem. (Eunice Lee)

OAD Mourns the Passing of Judge Leon Lazer

Judge Leon Lazer, who retired from the Second Department bench in 1986, served as the Founding Chair of OAD's Board of Directors from 1988 – when OAD first opened its doors – until October 24, 1991. Judge Lazer lent OAD instant credibility with the bench and bar at a time when no one knew what OAD was, and he guided the organization through the early years with wisdom and fortitude. In many ways, he set the foundation for the gold standard public defender organization OAD grew to be.  You can read more about Judge Lazer's extraordinary life and career here.


"A Ray of Light in a Very Dark Place"

So many aspects of OAD’s work are exceptional, but none is more important than the fact that our lawyers change people’s lives for the better everyday.

Here is one remarkable example of OAD’s work: the story of Supervising Attorney Margaret Knight's representation of Khalil A. Cumberbatch.  Please take a few minutes to read it.

Read More