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.
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.
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.
On February 20, 2018, the First Department held that OAD presented sufficient evidence to establish that trial counsel was ineffective for failing to challenge the voluntariness of his client's statements. The Court remanded the case for a new suppression hearing. This case was litigated by OAD Supervising Attorney, Anastasia Heeger, and you can read the decision here.
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!
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)
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.
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
On Monday, October 2, the Office of the Appellate Defender held its 24th Annual First Monday in October gala and mock Supreme Court argument. This event—which was attended by more than 400 judges, lawyers and guests—holds a place of honor in the New York City legal community’s fall calendar.
OAD was proud to recognize three exceptional and deserving lawyers: Barry Berke, of Kramer Levin Naftalis & Frankel LLP, and John Savarese, of Wachtell, Lipton, Rosen & Katz, who received the Milton S. Gould Award for Outstanding Advocacy; and Christopher Reynolds, of Toyota Motor North America, who received the OAD Counsel for Justice Award. Please click here to read more about this year’s honorees.
The First Monday mock U.S. Supreme Court, led by Mr. Reynolds as Chief Justice, heard argument in Carpenter v. United States, a case that asks whether the government needs a warrant and probable cause to obtain cellphone records that document historical location information. Mr. Berke, as Counsel for Petitioner, and Mr. Savarese, as U.S. Solicitor General, offered compelling and persuasive arguments, answering tough questions from our enthusiastic and unrelenting Associate Justices: Jillian Berman of Levine Lee LLP, Samidh Guha of Jones Day, Matthew Mazur of Dechert LLP, Lynn Neuner of Simpson Thacher & Bartlett LLP, Jonathan Polkes of Weil, Gotshal & Manges LLP, Daniel Ruzumna of Patterson Belknap Webb & Tyler LLP, Linda Chatman Thomsen of Davis Polk & Wardwell LLP, and Jim Walden of Walden Macht & Haran LLP.
OAD extends its deepest gratitude to all the participants and supporters of First Monday in October 2017. For photographs and a video recording of the event, click here.
On September 28, 2017, dissenting Justice Sallie Manzanet-Daniels granted leave in People v. Rafael Sanabria to determine the question of whether Mr. Sanabria was deprived of his right to present a defense where the court allowed the prosecutor to question a defense expert about certain prejudicial details of a prior conviction, but prevented that expert from explaining why he doubted that Mr. Sanabria actually committed the crime, as the conviction was vacated on appeal and Mr. Sanabria was allowed to enter a plea without conceding guilt. In addition, Justice Manzanet-Daniels departed from the majority in finding that Mr. Sanabria was denied effective representation because his attorney introduced additional, highly prejudicial information about the prior conviction during voir dire and through the submission of exhibits, notwithstanding the trial court’s preclusion of such evidence. Mr. Sanabria is represented by Supervising Attorney Margaret E. Knight.
On September 26, 2017, Justice Barbara R. Kapnick granted leave in People v. Carlos Tapia to consider whether, in an assault involving multiple assailants, a defendant’s intent to inflict serious physical injury with a weapon can be inferred solely by his participation in the assault, absent any evidence the defendant himself used a weapon or expected that any of the assailants might do so. Mr. Tapia is represented by Volunteer Appellate Defender Daniel A. Rubens from Orrick, Herrington & Sutcliffe LLP and Supervising Attorney Eunice C. Lee.
On August 14, 2017, Judge Michael J. Garcia granted leave in People v. Damian Jones, which raises the issue of whether, under New York’s Enterprise Corruption statute, the prosecution can prove the existence of a “criminal enterprise” with an “ascertainable structure” without evidence that a leadership structure or other system of authority existed at the time of the conduct charged. Mr. Jones is represented by Volunteer Appellate Defender Scott M. Danner from Holwell Shuster & Goldberg LLP and Supervising Attorney Rosemary Herbert.
On June 29, 2017, Judge Eugene M. Fahey granted leave in People v. Princesam Bailey to address whether the trial court should have discharged a juror or, at the least, conducted an inquiry into the juror’s ability to remain fair and impartial after the juror directed an outburst at defense counsel during the questioning of a witness. Mr. Bailey is represented by Supervising Attorney Margaret E. Knight.
New York, New York—The Board of Directors of the Office of the Appellate Defender (OAD) is proud to announce today that it has selected Christina A. Swarns, a nationally respected lawyer and criminal justice advocate, to serve as OAD’s third Attorney-In-Charge, effective August 28, 2017.
Most recently serving as the Litigation Director for the NAACP Legal Defense & Educational Fund, Inc. (LDF), Ms. Swarns enjoys a national reputation as a criminal justice reform expert. Her extraordinary criminal, civil and appellate defense expertise will powerfully advance OAD’s longstanding mission of advocating for poor people convicted of felonies in Manhattan and the Bronx.
Ms. Swarns succeeds Richard M. Greenberg, who retired after serving as OAD’s Attorney-in-Charge for over 20 years. During that time, Mr. Greenberg oversaw tremendous success at OAD, as the organization developed and earned its reputation as one of the nation’s premier appellate defense organizations.
Ms. Swarns has dedicated her professional career to the defense of the most marginalized people in the criminal justice system. She worked for 14 years at the LDF and served for the last three years as its Litigation Director. In that capacity, she oversaw all aspects of LDF’s economic justice, education, political participation and criminal justice litigation, and served as lead counsel in some of this country’s highest-profile death penalty cases. In the 2016-2017 Term of the United States Supreme Court, for instance, Ms. Swarns argued, and won, Buck v. Davis, a Texas death penalty case challenging the introduction of explicitly racially biased evidence at trial. Ms. Swarns was the only Black woman to argue in last year’s Supreme Court term, and is one of only a handful of Black women to have argued before the nation’s highest court. Ms. Swarns’s defense of Mumia Abu-Jamal—often called “the world’s most famous death row prisoner”—led a federal court to vacate Mr. Abu-Jamal’s death sentence based on improper instruction to the sentencing jury.
“We are thrilled to have Christina assume the leadership of OAD,” said Sean Hecker, Chairman of OAD’s Board of Directors and a partner at Debevoise & Plimpton. “Her unrivaled reputation in the indigent defense community, her passionate and life-long commitment to criminal justice, and her years of experience in supervising intelligent, creative and dedicated lawyers make her the perfect fit for our stellar organization.”
“Christina is the perfect leader to continue the legacy of dedicated, compassionate and creative appellate representation of indigent clients championed so effectively by Rick Greenberg and the fine lawyers of OAD for so many years,” said E. Joshua Rosenkranz, an OAD Board member, its founder and first Attorney-in-Charge, now a partner at Orrick.
“It is an honor and a privilege to have the opportunity to serve OAD and its clients,” said Ms. Swarns. “I firmly believe that the American criminal justice system must be administered fairly and without regard to racial, social or economic status, so that all communities receive fair and appropriate police protection and all individuals charged with or convicted of crimes are afforded the full range of safeguards guaranteed by the Constitution. By consistently offering powerful and effective advocacy on behalf of indigent people convicted of felonies, OAD has, since its inception, stood at the vanguard of institutional appellate defenders. I therefore look forward to working with the brilliant OAD staff to ensure that all of their clients receive vigorous, creative, and effective appellate representation.”
A passionate legal advocate, Ms. Swarns speaks and writes regularly on issues concerning race, law, and criminal justice. She is frequently interviewed by media outlets including: PBS News Hour, NBC, MSNBC, CNN, National Public Radio, Democracy Now!, and the New York Times.
Before becoming LDF’s Litigation Director, Ms. Swarns served as the Director of LDF’s Criminal Justice Project, where she analyzed, developed and implemented litigation, organizing, public education, communications and other advocacy strategies. Prior to joining LDF, Ms. Swarns served as a Supervising Assistant Federal Defender and Assistant Federal Defender at the Capital Habeas Unit of Philadelphia’s Federal Community Defender Office. Ms. Swarns began her legal career as a Staff Attorney with the Legal Aid Society’s Criminal Defense Division in New York.
Ms. Swarns earned a J.D. from the University of Pennsylvania Law School and a B.A. from Howard University.
OAD was created in 1988 as a new breed of public defender organization committed to providing the highest quality legal representation, while also training new generations of lawyers. Since its founding, OAD has developed a national reputation for superb appellate advocacy and innovation. The organization is known for its holistic, client-centered, approach to representation. It has forged partnerships with many of the leading law firms in New York, under which attorneys from those firms handle appeals under the supervision of senior OAD attorneys. OAD has been recognized by the New York State Bar Association, as well as the appellate courts, for its excellence. The United States Department of Justice has repeatedly awarded OAD grants to help underwrite its pursuit of claims of wrongful conviction.
For more information, please contact:
Carolyn Norris : (212) 402-4100
After considering arguments that OAD client S.T.'s sentence for attempted murder was excessive, in light of his young age and his noteworthy academic achievement and potential, and taking into consideration a significant trauma that S.T. had witnessed in the weeks before in the incident at issue, the Appellate Division reduced his sentence from 16 years to 10 years. S.T. is represented by Sharmeen Mazumder.
A Bronx County judge found that OAD client Amir Douglas was denied the effective assistance of trial counsel and vacated his conviction for first degree gang assault and second degree assault in the death of a fellow incarcerated person at Rikers Island. While the prosecution's case relied entirely upon the testimony of three other inmates, his attorney failed to request that jurors be instructed that, under New York law, 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 Sara Gurwitch and Joe Nursey.
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.
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.
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.
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.
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.
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.