Judge Grants Rare Post-Conviction Motion Vacating Conviction

In a rare decision vacating a conviction under NY Criminal Procedure Law §440.10, a Bronx County judge agreed with OAD that our client Amir Douglas was denied the effective assistance of trial counsel.  Mr. Douglas was convicted of first degree gang assault and second degree assault in the death of a fellow incarcerated person at New York’s notorious Rikers Island jail.  Mr. Douglas’s conviction was based entirely upon the testimony of three other inmates in the jail. His trial attorney failed to request that the trial court instruct the jury under New York law that a person cannot be convicted upon the uncorroborated testimony of purported accomplices.  The court found: “There is a reasonable likelihood that [Mr. Douglas] was convicted by insufficient evidence because the jury was not advised to apply the proper standard.  .   .   . [He] has established that trial counsel was ineffective because he failed to seek accomplice corroboration jury charges for the three inmate witnesses who had been implicated in the same incident.” Amir Douglas was represented by OAD Supervising Attorneys Sara Gurwitch and Joe Nursey.

Appellate Division Reduces Harsh and Excessive Sentence for Attempted Burglary

Douglas Locust was charged with multiple counts of attempted second- and third-degree burglary after he was observed by police pulling on the doors to several buildings in lower Manhattan. The furthest that Mr. Locust was able to reach was the vestibule of a few of the buildings; he did not access any building beyond that point. He was also charged with one count of third-degree burglary stemming from a separate incident. Mr. Locust pled guilty to one count of attempted burglary in the second degree and one count of burglary in the third degree. He was sentenced to six and one-half years in prison on the attempted burglary count, which was only six months below the maximum possible sentence and more than double the minimum sentence of three years. He received a concurrent sentence of two to four years on the third-degree burglary count. On appeal, Mr. Locust argued that his sentence was harsh and excessive where, essentially, he only turned a few door handles. Mr. Locust did not take property from any of the locations nor did he threaten or harm anyone. The Appellate Division agreed and reduced his sentence on the attempted burglary count to four years. Mr. Locust is represented by Kerry Jamieson. To read the decision, click here.

Court of Appeals Reverses Manslaughter Conviction Because Trial Court Erroneously Precluded Voir Dire Questioning About Involuntary Confessions

On December 22, 2016, the Court of Appeals unanimously reversed the criminal conviction of OAD client James Miller. Mr. Miller, who was charged with a homicide, made statements to the police admitting his involvement in a shooting. At trial, Mr. Miller testified that his previous confession was false and was coerced by the police. Nonetheless, when counsel asked to voir dire prospective jurors about their ability to disregard a confession they deemed involuntary, the trial court denied the request based, in part, on the District Attorney’s indecision about whether to introduce the confession at trial. The Court of Appeals reversed, finding that “the trial court abused its discretion when it entirely precluded questioning on the issue of involuntary confessions and refused to make its own inquiry of the potential jurors on the issue.” In so holding, the court noted that defense counsel’s proposed questioning “went to the heart of determining whether those jurors could be impartial and afford defendant a fair trial,” Mr. Miller was “facing the most serious charge of murder,” and Mr. Miller’s defense was “premised . . . on the involuntariness of his inculpatory statements.” Mr. Miller is represented by volunteer attorney Daniella Main, of Alston & Bird LLP, and Margaret Knight. To read the decision, click here.

Appellate Division Reduces Sentence of OAD Client Convicted of Controlled Substance Charges

The Appellate Division reduced the sentence of OAD client Bryan Otero. Mr. Otero, who was only 19 years old at the time of his arrest, was charged in connection with a conspiracy to sell drugs, which involved a number of other people. Mr. Otero was one of the youngest members of the alleged conspiracy and had no prior criminal record, yet Mr. Otero received one of the harshest sentences meted out to any of his codefendants following a guilty plea to third-degree criminal sale of a controlled substance. The reduction in sentence from six years to four years resulted in a term that more appropriately reflected Mr. Otero’s relative culpability, and led to his almost immediate release. Mr. Otero is represented by Margaret Knight. To read the decision, click here.

Appellate Division Affirms Order Granting a New Parole Hearing to OAD Client

OAD client Niki Rossakis was convicted in 1996 of second-degree murder in connection with the shooting death of her husband, whom she maintained had abused her for years and was threatening her at the time of the shooting. Despite the fact that she had no prior criminal record, she was initially sentenced to a term of 23 years to life imprisonment, which was later reduced on appeal to 15 years to life imprisonment. Ms. Rossakis has an exemplary institutional record. She has obtained two associate’s degrees, served on the inmate grievance committee, completed all rehabilitative programming available to her, and earned praise for her work as a telephone operator.  Yet the Parole Board  repeatedly denied her parole, focusing almost exclusively on the serious nature of the crime. After her administrative appeals were denied, OAD successfully filed a petition challenging the Parole Board’s action. The Board then appealed the Supreme Court decision, which found that the Board had acted arbitrarily in denying parole and failing to give proper consideration to the range of statutory factors it was supposed to consider. In a unanimous decision, the First Department affirmed the lower court’s order requiring the Board to give Ms. Rossakis a new parole hearing at which the appropriate factors must be considered. Ms. Rossakis was previously represented by former OAD Attorney-in-Charge Richard M. Greenberg, and she is currently represented by Eunice C. Lee. To read the decision, click here.

Appellate Division Reverses Legally Insufficient Attempted Murder Conviction

On November 1, 2016, the Appellate Division reversed Raheim Bruno’s attempted second-degree murder conviction because the evidence was legally insufficient to establish accessorial liability. Mr. Bruno gave a statement to the police in which he described how he and a friend went to a Bronx apartment and, while they were in the apartment, another man shot and killed two of the occupants and seriously wounded a third man. When the man turned the gun on Mr. Bruno and his friend, it jammed and he and his friend were able to escape. Despite suffering from a traumatic brain injury, the surviving victim subsequently identified Mr. Bruno’s friend as the person who shot him, although he had previously named someone else as the shooter. The victim placed Mr. Bruno in the apartment at the time of the shooting, but did not ascribe any role to him. Despite the slim evidence against him, Mr. Bruno was convicted of attempted murder and sentenced to 22 years in prison. On appeal, OAD argued that the evidence was legally insufficient, as it showed no more than Mr. Bruno’s mere presence in the apartment at the time of the shooting. In a unanimous decision, the Appellate Division agreed and ordered that the charges against Mr. Bruno be dismissed. Raheim Bruno was represented by former staff attorney Alejandro Fernandez and Acting Attorney-in-Charge Rosemary Herbert. To read the decision, click here.

Court Of Appeals Finds Exception To Residential Burglary Statute Where The Accused Was Found in the Basement of a Deli on the Ground Floor of an Apartment Building

In a significant decision regarding the scope of the residential burglary statute, the Court of Appeals, by a 6-1 vote, reduced the conviction of OAD client, Ronel Joseph, from second degree burglary to third degree burglary.  Mr. Joseph was arrested in the basement of a deli that was on the street level floor of an apartment building.  Under normal rules, the burglary of any premises that is attached to a dwelling, e.g., the office of a hotel, or the garage of an apartment building, is considered second degree burglary.  While the Court had previously articulated a possible exception, where "the burglar neither comes nor readily can come near to anyone's living quarters," that exception had never before been applied by any appellate court in the state.  Thus, the Court's recognition and application of the exception in Mr. Joseph's case is ground-breaking and provides an avenue for relief in similar cases going forward.  Mr. Joseph is represented by Eunice C. Lee.  To read the decision, click here.

OAD'S 23rd ANNUAL FIRST MONDAY IN OCTOBER A HUGE SUCCESS

Office of the Appellate Defender hosted its 23rd annual First Monday in October event on Wednesday, October 5, 2016, at NYU School of Law.  The program, which was attended by about 500 judges, lawyers, and guests, featured 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 were 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., received 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, served 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.) served as Associate Justices.  The Court heard argument in Apple, Inc. v. F.B.I., a hypothetical case that confronted the tension between individual privacy and the needs of law enforcement in the digital age.  The event was a major success, and OAD thanks the participants and honorees, and all of our many supporters.  

OAD Awarded DOJ Wrongful Conviction Review Grant

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.

IN MEMORIAM: DIANE E. COURSELLE

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.  

Appellate Division Reverses Conviction and Frees OAD Client Serving 15 Years to Life

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.

Court of Appeals Dismisses Convictions on Speedy Trial Grounds

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 former 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.

Appellate Division Dismisses Kidnapping Charge

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.

Federal Court Grants Habeas Corpus Petition in OAD Case

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. 

Appellate Division Reverses Convictions in Two More OAD Appeals

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,

Appellate Division Reverses Convictions in Two OAD Appeals

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.

Appellate Division Reduces Sentence for OAD Client

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.

Former OAD Staff Attorney Jessica Yager Named Executive Director of NYU Furman Center

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.

Court of Appeals Reverses Burglary Conviction and Life Sentence Based on Violation of the Advocate Witness Rule

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.