NYU Clinic

In the spring semester, eight to ten second and third year NYU students represent an OAD client through the Criminal Appellate Defender Clinic. The students attend a weekly seminar at the Office of the Appellate Defender covering issues of New York criminal law and procedure, and in which the students participate in simulations of all phases of representation from the initial client interview to the oral argument presented to a mock panel of appellate court judges.

At the end of the semester, each student files a brief in the Appellate Division, First Department. When the case is scheduled for argument the following semester, the student has the option, if desired, of presenting oral argument at the New York State Supreme Court, Appellate Division First Department.

The clinic's instructors are OAD Supervisors Eunice Lee and Rosemary Herbert.

Clinic Successes

Appellate Division Reverses Drug Conviction Based on Illegal Search of Automobile Passenger

On April 28, 2015, the Appellate Division, First Department, reversed the third degree drug possession conviction of OAD client, Jeffrey Butler. The court found that, although the police had lawfully stopped the car Mr. Butler was riding in due to a traffic infraction, the police lacked reasonable suspicion to frisk him. The pills found on Mr. Butler were therefore suppressed and the indictment dismissed. Mr. Butler is represented by Rosemary Herbert and former NYU student intern (now with Wachtell, Lipton, Rosen & Katz) Ishpuneet Chhabra. To read the decision, click here.

Appellate Division Reverses Drug Conviction Based on Prosecutorial Misconduct

On March 10, 2015, the Appellate Division, First Department, reversed Omar Minus' conviction of criminal possession of a controlled substance in the third degree (with intent to sell) based on the prosecutor's misconduct in summation. After the police allegedly observed Mr. Minus engaging in a hand-to-hand transaction, they stopped the alleged buyer, but he had no drugs on him. Despite the court's ruling that testimony about the observation could be admitted solely to explain why the police then stopped and searched Mr. Minus, and not to show intent to sell, the prosecutor repeatedly violated that ruling. On three occasions, the prosecuotr argued to the jury that the alleged hand-to-hand transaction proved that Mr. Minus intended to sell the small quantity of drugs found on him. As a result, Mr. Minus will get a new trial. Mr. Minus is represented by Joseph Nursey and NYU student intern Christina Liu. To read the decision, click here.

Appellate Division Reverses Robbery Conviction Based on Improper Admission of Other Crime Evidence

On April 17, 2014, in an opinion by Justice Rolando T. Acosta, the Appellate Division, in a 3-2 decision, reversed the robbery conviction and 5 1/2 year sentence of OAD client, Gerald DeGerolamo. The Appellate Division agreed with OAD that the trial court improperly permitted the prosecution to introduce evidence of a different crime allegedly committed by Mr. DeGerolamo under purportedly similar circumstances. The court noted that the evidence presented here did not fall within any of the recognized exceptions to the Molineux rule prohibiting evidnce of uncharged or other crimes. As a result of this decision, Mr. DeGerolamo is entitled to a new trial. Mr. DeGerolamo was represented by student interns Molly Ryan and Debra McElligott, who participated in OAD's Criminal Appellate Defender Clinic with NYU School of Law, and Supervising Attorney Joseph Nursey. To read the decision, click here.

Appellate Division Dismisses Identity Theft Charge In Important Case of First Impression

In an important case of first impression, the Appellate Division agreed with OAD that New York's identity theft statute requires proof that the accused assumed the identity of another person, and that merely using another person's credit card number to make charges without that person's authorization does not constitute identity theft. As a result, the 2 1/3 to 7 years sentence imposed on OAD client Scott Barden was vacated, and Mr. Barden was immediately eligible for release, having served his sentence on lesser charges. In a 36-page opinion written by Justice Rolando Acosta, issued on April 10, 2014, the court unanimously rejected the District Attorney's position that the fraudulent use of someone's personal identifying information (ie. the credit card number) was itself sufficient to contravene the statute. However, in another instance of first impression, the court rejected OAD's argument that the lesser charge of possession of stolen property, based on Mr. Barden's alleged constructive possession of the credit card number (not the card itself), should also be dismissed. The court determined that possession of stolen property can include the alleged possession of intangible property, such as a credit card number. OAD intends to seek leave to appeal to the Court of Appeals on this claim.

Mr. Barden was represented by student interns, Christine La Rochelle and Elizabeth Jordan, who participated in OAD's Criminal Appellate Defender Clinic with NYU School of Law, and Attorney-in-Charge Rick Greenberg. To read the decision, click here.

Appellate Division Reverses Conviction and Dismisses Case Based on Unlawful Unlawful Arrest

On January 28, 2014, the Appellate Division reversed the stolen property conviction of OAD client Claude McCree, finding that the police acted unlawfully when they arrested him without probable cause. While investigating the possible use of a stolen credit card, the police seized Mr. McCree and handcuffed him, even though the police did not have probable cause to arrest. Upon his arrest, Mr. McCree made an incriminating statement, and the police then searched him and found a stolen credit card. On appeal, the court held that the police action in seizing and handcuffing Mr. McCree amounted to an arrest, for which they did not have probable cause. The ensuing statement by Mr. McCree and the discovery of the credit card were fruits of the unlawful arrest, and the statement and credit card should have been suppressed.

Moreover, although Mr. McCree purportedly waived his right to appeal when he pled guilty after his suppression motion was denied, the Appellate Divison agreed with OAD that the appeal waiver was invalid, as it was not knowing, intelligent and voluntary. Accordingly, the court reversed the conviction, suppressed the evidence, and dismissed the indictment. Mr. McCree is represented by NYU Criminal Appellate Defender Clinic student intern Nate Potek, under the supervision of Margaret Knight.

To read the decision, click here.

Appellate Division Reverses Marijuana Felony Conviction and Dismisses the Indictment Based on Unlawful Police Stop

On January 14, 2014, the Appellate Division reversed the marijuana possession conviction of OAD client Javone Major, and dismissed the indictment based on unlawful police conduct. Javone Major was convicted of criminal possession of marijuana in the 3d degree for his alleged possession of more than ½ pound of marijuana. Although the drugs were allegedly recovered after the police forcibly stopped Mr. Major, his trial counsel failed to make a timely pre-trial motion to suppress the evidence.  Former OAD volunteer attorney Nick Duston filed a CPL 440.10 motion on the issue of ineffective assistance of trial counsel.  Trial counsel acknowledged that there was no reason for the failure to timely file the suppression motion and OAD argued, based upon the evidence at trial, that a properly filed motion would have been successful. The trial court denied the 440 motion and OAD appealed.

NYU Clinic student Whitney Flanagan then briefed and argued the case in the Appellate Division, successfully convincing the court that trial counsel was indeed ineffective for failing to file the timely motion and that there was a colorable claim that suppression should be granted based upon a forcible stop of Mr. Major by the police without reasonable suspicion.  The court held the appeal in abeyance and remanded the case to the trial court for a suppression hearing.  Joe Nursey represented Mr. Major at the hearing with Whitney as co-counsel, after which the trial court denied suppression.

The case returned to the Appellate Division and, in an opinion by Justice Roslyn H. Richter, the court reversed. finding that, although the officer had grounds for a common law inquiry, he lacked reasonable suspicion to forcibly stop and order Mr. Major to turn over the bag he was carrying. Because the stop was illegal, the court suppressed the marijuana and dismissed the indictment.

Read the decision here.

Appellate Division Reverses Weapon Possession Conviction Based on Ineffecitve Assistance of Trial Counsel

On October 11, 2012, the Appellate Division reversed the weapon possession conviction of OAD client Alana Gordian, based on the ineffective assistance of counsel she received from her trial lawyer. When Ms. Gordian, who had no prior criminal record, was arrested, she possessed an antique firearm and eight loose rounds of ammunition. Under the law, possession of ammunition renders the weapon considered "loaded," even though the cartridges were not in the gun at the time. However, counsel's defense was based on the erroneous premise the gun was not loaded. The Court found that counsel's lack of understanding of the law prejudiced Ms. Gordian and constituted ineffective assistance of counsel. Ms. Gordian, who was sentenced to 3 1/2 years in prison, but who remained free on bail pending appeal, will now get a new trial. The appellate brief was written by Clinic students David Kerschner and David Rochelson (both class of 2012), and the case was argued by Rochelson, under the supervision of Risa Gerson. Read the decision here.

Appellate Division Vacates Conviction and Grants Youthful Offender Status To Young OAD Client

In a welcome exercise of its interest of justice review power, the Appellate Division vacated the robbery conviction of OAD client Frank C., who was 16 years old at the time of the crime and, instead, adjudicated him a youthful offender. The court agreed that, given his age, the probation department's recommendation, and Frank C.'s intoxication at the time of the offense, youthful offender treatment was warranted. As a result, Frank C.'s sentence was reduced from a determinate five-year term to an indeterminate term of 11/3 to 4 years. In addition, by virtue of this decision, Frank C. will not have a criminal conviction on his record, and the records of this case will be sealed, allowing him an opportunity to move forward in his life without the debilitating impact of a criminal record. Clinic student Michael Pabian (class of 2012) wrote the brief for Frank C.

Read the decision here.

Client’s Sentence Reduced from 15 Years to Life Imprisonment to 3 ½ to 7 Years

Edward Harvey was sentenced as a discretionary persistent offender to a term of 15 years to life imprisonment for criminal possession of a weapon in the third degree. Mr. Harvey’s crime was an attempted pickpocketing on the subway, in which he was seen leaning over a sleeping man and trying to cut the man’s pocket with a razor blade to steal his wallet. When the train jerked and the man started to awake, Mr. Harvey left the train and was stopped by police, who had been following him. The would-be victim remained completely unaware and continued on his way.

Mr. Harvey’s lengthy prior record of this type of pickpocketing behavior made him eligible for an elevated sentence. He was 59 years old at the time of this offense, and the prosecution had offered him a pretrial plea of 1 1/3 to 3 years. After trial, however, the prosecution sought discretionary persistent sentencing, which the judge granted. The Appellate Division vacated the discretionary persistent adjudication and sentence of 15 years to life and reduced Mr. Harvey’s sentence to 3 ½ to 7 years. Clinic student Elliott Farren (class of 2011) represented Mr. Harvey and argued the case in the Appellate Division.

Read the opinion here.

Resentencing Motion Granted and Client Receives Minimum Sentence

Luis Ortiz was convicted of a third-degree sale of drugs. At sentencing, his attorney asked for the minimum possible term of 3 1/2 years. At the time of sentence, that was the minimum for a person, like Mr. Ortiz, with a non-violent prior felony offense. The court agreed and sentenced Mr. Ortiz to the minimum term of 3 1/2 years. However, Mr. Ortiz was never formally adjudicated a prior felony offender, as required by law. OAD filed a motion to vacate the sentence, pursuant to New York Criminal Procedure Law § 440.20, alleging that the sentence was illegal, either because the court mistakenly sentenced Mr. Ortiz to what the court believed was the minimum, when the actual minimum for someone without a prior felony would have been 1 year, or because, if Mr. Ortiz was a person with a valid prior felony, he was never properly adjudicated. The goal was to have the sentence vacated and Mr. Ortiz resentenced under the subsequently-modified drug laws, which authorized a lower minimum sentence for someone with a prior felony. The motion was granted, and Mr. Ortiz was resentenced to the current minimum term of 2 years. Clinic student Kate Winston (class of 2010) represented Mr. Ortiz on the motion and appeared in court at the resentencing proceeding.

Client’s Conviction Reversed over Jury Selection Error

Curtis Ballard was convicted of third-degree sale and sentenced to 4 years of imprisonment. During jury selection, defense counsel argued that the prosecutor improperly struck several potential jurors from the jury pool on the basis of race, in violation of Batson v. Kentucky, 476 U.S. 79 (1986). On appeal, OAD argued that reversal was required where, when defense counsel made the Batson challenge at trial, the prosecutor failed to offer any race-neutral reason for one of the strikes. The District Attorney’s office conceded error in its brief, and the Appellate Division agreed and reversed. Following reversal of Mr. Ballard’s conviction, OAD negotiated a plea deal for him of two years, which meant that Mr. Ballard, who was on work release at the time of the reversal, would not have to go back to prison. Clinic student Shannon Leong (class of 2009) represented Mr. Ballard and argued his case in the Appellate Division.

Read the opinion Here.

Client Represented by Former Clinic Student in the Court of Appeals

Paris Simmons’s case involved a difficult issue of error in the trial court’s response to the jury’s question concerning the element of “intent,” an essential element of the offenses for which Mr. Simmons was convicted. Whether Mr. Simmons had acted with the required criminal intent was vigorously contested at his trial.

The Appellate Division affirmed Mr. Simmons’s conviction. However, following briefing of the issue and oral argument by clinic student Valerie Koffman (class of 2008), two of the five justices on the appellate panel dissented, and one of the dissenting justices granted an application for leave to appeal the case to the New York Court of Appeals, the highest court in New York. After having graduated and begun employment, Ms. Koffman continued to represent Mr. Simmons in the Court of Appeals, arguing the case there in June 2010. Although that court ultimately affirmed the conviction, the case was notable in being the first case in which a former Criminal Appellate Defender Clinic student briefed and orally argued a case in the New York Court of Appeals.