Office of the Appellate Defender will host its 23rd annual First Monday in October event on the evening of Wednesday, October 5, 2016, at NYU School of Law. The program features a mock Supreme Court argument preceded by a gala cocktail reception. This year's advocates and recipients of the Gould Award for Outstanding Oral Advocacy will be Lewis J. Liman, of Cleary Gottlieb Steen & Hamilton LLP, and David M. Zornow, of Skadden, Arps, Slate, Meagher & Flom LLP. Audrey Strauss, of Alcoa, Inc., will receive the OAD Counsel for Justice Award. The Honorable Jonathan Lippman, former Chief Judge of the New York State Court of Appeals, now with Latham & Watkins LLP, will serve as Chief Justice of the Mock Supreme Court, and Antonia M. Apps (Milbank, Tweed, Hadley & McCloy LLP), Jonathan P. Bach (Cooley LLP), G. Michael Bellinger (Carter Ledyard & Milburn LLP), Marc P. Berger (Ropes & Gray LLP), Lori E. Lesser (Simpson Thacher & Bartlett LLP), Hallie B. Levin (Friedman Kaplan Seiler & Adelman LLP), Tai H. Park (Park Jensen Bennett LLP), and Anthony L. Ricco (Law Office of Anthony L. Ricco, Esq.) will serve as Associate Justices. The Court will hear argument in Apple, Inc. v. F.B.I., a case that confronts the tension between individual privacy and the needs of law enforcement in the digital age. Click here to purchase your tickets now. Click here to view invitation and a list of our supporters.
On September 14, 2016, the Office of Justice Programs of the U.S. Department of Justice announced that it has awarded OAD a Wrongful Conviction Review grant. The grant is worth $217,294 over two years, and will support our Reinvestigation Project.
In 2007, OAD created its Reinvestigation Project to identify and reinvestigate cases of possible wrongful conviction. Employing a detailed questionnaire and intake checklist protocol, unique to appellate defender offices, OAD screens every new assigned case for indicia of the tell-tale signs of wrongful conviction, including mistaken identification, false confession, prosecutorial misconduct, jailhouse snitches, and junk science. When a case is selected for reinvestigation, our team acts quickly to obtain all records and information available and to proceed with a strategic reinvestigation and litigation plan.
The Project’s work has resulted in the full exoneration of one OAD client, Latisha Johnson, who was serving a 40-year sentence for a crime she did not commit. In another case, People v. Ricardo Jimenez, the Appellate Division, First Department, recognized actual innocence as a ground for vacating a conviction, and remanded our case for an evidentiary hearing into our claims. In addition, the Project has obtained vacaturs of convictions and new trials for other clients who were wrongfully convicted, and has identified several cases of wrongful conviction that are currently being reinvestigated and litigated.
The Reinvestigation Project, which is led by Director of Reinvestigation Anastasia Heeger, was previously awarded federal grant money in 2010 and 2012, and has now, for a third time, received a two-year grant. We are grateful to the Department of Justice for recognizing the efficacy and success of OAD’s model.
October 4 is Wrongful Conviction Day. OAD will join with the Innocence Project and many others around the country in helping to shine a light on aspects of our criminal justice system that contribute to wrongful convictions.
Office of the Appellate Defender mourns the passing of former Staff Attorney Diane E. Courselle. Diane, who worked at OAD between 1992 and 1997, died on September 11, 2016, from complications of Lupus. Since 1998, Diane was Professor of Law and Director of the Defender Aid Program at the University of Wyoming College of Law. We remember her as a brilliant, dedicated, warm, fun-loving, and loyal friend and colleague. She was a steadfast and creative defense attorney, and she inspired all who knew and worked with her.
On September 1, the Appellate Division reversed the conviction and dismissed the indictment against OAD client Habiyb Mohammed based upon its finding of insufficient evidence to prove Mr. Mohammed’s guilt.
Mr. Mohammed was convicted of first degree conspiracy and sentenced to 15 years to life imprisonment for his alleged involvement in a wide-ranging conspiracy to sell cocaine. The prosecution’s case against Mr. Mohammed consisted almost entirely of the voice of a man referred to as “Habiyb,” who is heard briefly on only two of over forty monitored phone conversations. The court found that although the evidence was sufficient to prove that someone called Habiyb Mohammed was a part of the conspiracy, the “record is devoid of any identification” of Mr. Mohammed to be the same as the person who is heard on the monitored calls.
Mr. Mohammed is represented by OAD Supervising Attorney Joseph Nursey. To read the opinion, click here.
The New York Court of Appeals dismissed identity-theft-related convictions for OAD client Scott Barden today. The Court found that Mr. Barden's right to a speedy trial under New York Criminal Procedure Law § 30.30 had been violated because the People were not ready for trial within the statutory six month deadline. Specifically, the Court resolved a long-gestating issue of whether a defense attorney's response that "that should be fine" to a proposed adjournment date constituted consent to excluding that time from the speedy trial calculations. According to the Court of Appeals, such a generic statement by defense counsel is too ambiguous to be deemed consent.
Because the speedy trial issue resulted in the dismissal of Mr. Barden's convictions, the Court left open an issue currently dividing the Appellate Divisions about whether the numbers associated with a credit are the equivalent to a physical credit card under New York's Penal Law.
Mr. Barden was represented by OAD Attorney-in-Charge Richard Greenberg. Former NYU Clinic students Elizabeth Jordan and Christine La Rochelle also represented Mr. Barden before the Appellate Division, First Department. Click here to read the Court of Appeals decision.
On May 19, 2016, the Appellate Division reversed the kidnapping conviction of OAD client Rafael Nevaro, and dismissed that count. Although Mr. Nevaro was convicted of other charges which the court let stand, his sentence was reduced from 15 years to a term of 3 1/2 to 7 years. The court agreed with OAD that Mr. Nevaro never threatened to use force against the complainant, and therefore did not abduct her within the meaning of the kidnapping statute. Mr. Nevaro is represented by Eunice Lee (with former OAD attorney Leila Tabbaa on the brief). To read the decision, click here.
In Carmichael v. Chappius, OAD achieved a very rare victory on a habeas petition in federal court on behalf of OAD client, Brian Carmichael, who is serving a 17-year sentence for an A-II drug conviction. Southern District Judge Katherine Polk Failla granted the petition on the ground that the trial court and Appellate Division unreasonably applied federal constitutional law in overruling trial counsel’s Batson claim that the prosecution exercised its peremptory challenges in a discriminatory fashion. In granting the petition, the court declined to adopt a Magistrate’s report that recommended denial. Moreover, the court engaged in a sophisticated and detailed analysis of Batson law and concluded that the New York courts were wrong to hold that statistical evidence alone cannot support a prima facie showing of discrimination. As for remedy, the court remanded to the New York County Supreme Court to either (i) hold a reconstruction hearing to hear the DA’s race-neutral reasons for the strikes and ultimately decide the Batson claim, or (ii) hold a new trial. Mr. Carmichael is represented by Sara Gurwitch. Click here to read the decision.
On April 19, 2016, just two weeks after reversing convictions in two OAD appeals, the Appellate Division again reversed two convictions in OAD cases.
In People v. Ronald Hechavarria, the Appellate Division reversed our client’s robbery conviction and sentence of 15 years, based on the trial court’s improper ruling granting a reverse-Batson challenge against the defense. As explained in the decision, there was no support for the judge’s conclusion that defense counsel’s gender-neutral reasons for the peremptory challenges at issue were pretextual. In this case, the prosecution sought the minimum sentence of 5 years after trial, but the court imposed a term of 15 years. On appeal, the DA agreed to a sentence reduction to 5 years, but the court went further and reversed the conviction. Mr. Hechavarria has been out on bail pending appeal and should remain free pending resolution of the case. Mr. Hechavarria is represented by Senior Staff Attorney Kerry Jamieson. Read the decision here.
In People v. Malik Hawkins, the Appellate Division, in a unanimous signed opinion by Justice Roslyn H. Richter, reversed our client’s gun possession conviction and 5 year sentence. The Appellate Division found that the trial court erred in allowing the prosecution to introduce photographs showing the defendants holding guns and making gang signs, as well as Facebook messages from our client months after the date of the arrest, discussing his use of guns. The court held that this evidence was inadmissible under the Molineux rule, since they were not probative and went only to propensity to possess guns. The court further held that, even if marginally probative, the prejudicial impact outweighed any probative value. Mr. Hawkins is represented by Rosie Herbert, who argued the appeal. Former OAD Staff Attorney Leila Tabbaa (now with The Bronx Defenders) worked on the brief while at OAD. Read the decision here,
On April 5, 2016, the Appellate Division reversed convictions in two OAD appeals.
In People v. Waun Smith, the court, in a unanimous signed opinion by Justice John W. Sweeny, Jr., agreed with OAD that where a defendant is charged with both qualifying offenses as well as other offenses that are neither defined as qualifying nor disqualifying, the defendant remains eligible for judicial diversion for drug treatment. The court reversed Mr. Smith's forgery conviction and prison sentence and remanded for further proceedings. This was a matter of first impression in the appellate courts, and trial courts had reached conflicting results. Thus, this decision will have great precedential value, and will make many more defendants eligible for judicial diversion for drug treatment and an opportunity to avoid conviction and prison. Mr. Smith is represented by Thomas M. Nosewicz. To read the decision, click here.
In People v. Devin T. Burley, the court unanimously reversed our client’s drug conviction because the court file contained a jury note, making a substantive inquiry, that was marked as an exhibit but never addressed on the record by the court. Applying well-established law in this area, the court reversed the conviction and ordered a new trial. Mr. Burley is represented by volunteer attorney Jarrod L.Schaeffer, of Debevoise & Plimpton, and Margaret Knight. To read the decision, click here.
On January 7, 2016, the Appellate Division reduced the sentence of OAD client, Alexander Villegas, from 2 2/3 to 8 years to 1 1/3 to 4 years. Mr. Villegas, a former U.S. Marine, who had no prior contact with the criminal justice system, was convicted of three counts of criminal contempt for violating an order of protection. Mr. Villegas is represented by Tomoeh Murakami Tse. To read the decision, click here.
On January 6, 2016, the NYU Furman Center announced the appointment of former OAD staff attorney Jessica Yager as its new Executive Director. Jessie has led the NYU Furman Center's policy work since 2012, first serving as Policy Director and more recently as Deputy Director. After leaving OAD, and before joining the Furman Center, Jessie was the founding Director of the Foreclosure Prevention Project at Queens Legal Services, where she supervised a team of lawyers and paralegals working on foreclosure defense and predatory lending cases. OAD congratulates Jessie and NYU on this well-deserved appointment. To read more about the announcement, click here.
On December 16, 2015, the Court of Appeals reversed the burglary conviction and 23 years to life sentence of OAD client, Luis Ortiz. The Court agreed with our claim that the trial court erred in not declaring a mistrial when the prosecution sought to introduce statements made by Mr. Ortiz's attorney at arraignment in order to impeach Mr. Ortiz's trial testimony. Counsel argued that the statements did not accurately reflect what Mr. Ortiz had told her, and she sought to be relieved or a mistrial, as she was being placed in the untenable position of being a wtiness against her client. The Court of Appeals ordered a new trial for Mr. Ortiz. Mr. Ortiz was represented in the Court of Appeals by former OAD staff attorney Anant Kumar and Joseph Nursey. To read the decision, click here.