The Office of the Appellate Defender

OAD mourns the loss of an unwavering champion

Wed, 12 Jan 2022 14:19:00 GMT

The Office of the Appellate Defender (OAD) is saddened to learn of the passing of Roy Reardon. Roy was a founding member of the Board of Directors and served for 31 years. In the early years, Roy used his considerable stature in the New York legal community to help OAD develop and build relationships with the bench and bar. When OAD was facing potential defunding, Roy helped facilitate important conversations with the New York City Corporation Counsel and the City Council. Our standing in the legal community today as one of New York City’s oldest providers of appellate representation to indigent individuals convicted of felonies and a leader in holistic representation rests, in large part, on Roy’s shoulders.

Roy also helped OAD shape a knowledgeable and deeply supportive Board of Directors by giving his personal time to recruitment efforts. He offered sage advice and counsel to board chairs, other board members, and OAD’s internal leadership.

Roy was as an outstanding trial and appellate attorney. He supported OAD’s Volunteer Appellate Defender (VAD) program, where law firm associates have the opportunity to represent a client in a criminal appeal under the tutelage of an OAD supervising attorney. As a revered leader at Simpson Thacher for many decades, Roy ensured the firm’s participation in the VAD program. But Roy’s work and dedication to OAD’s mission was not always in the background. He was a champion of bringing powerful representation in the courts to those who did not have access to financial resources and demonstrated that by providing representation in a case before the Court of Appeals (People v. Diggins, 990 N.E.2d 129, 21 N.Y.3d 935, 967 N.Y.S.2d 891, 2013 N.Y. Slip Op. 3872 (N.Y. 2013)).

Roy helped create the First Monday in October, a mock Supreme Court argument on an issue pending before the United States Supreme Court. For decades he led the charge as the event’s Honorary Co-Chair and worked tirelessly to make event a successful one. Not only did he ensure Simpson Thacher’s support of First Monday, but he also used his vast contacts in the legal community to draw others to the event. First Monday in October is OAD’s premier fundraiser and continues to a be a unique, go-to event for members of New York’s legal and judicial community and beyond.

E. Joshua Rosenkranz, OAD’s first Attorney-in-Charge and Orrick partner, remembered Roy’s quiet gravitas and ability to command a huge boardroom by speaking just above a whisper. Former OAD Attorney in Charge, Richard Greenberg, described Roy as an inspiration, a friend, a colleague, and a wonderful person. Christina Swarns, former OAD Attorney-in-Charge and currently the Executive Director of the Innocence Project, commented that Roy exhibited such an enthusiasm for OAD and was always open to brainstorming office structural issues and sharing his deep knowledge of New York’s appellate courts. His support of OAD and its leadership never faltered.

Roy Reardon was an invaluable member of the OAD family, and his mentorship and many contributions continue to bear fruit. In his honor, OAD will rename its Volunteer Appellate Defender program as the Roy Reardon Volunteer Appellate Defender Program.

OAD mourns the loss of an unwavering champion

OAD Alumni Eunice C. Lee Confirmed to the United States Court of Appeals for the Second Circuit

Mon, 09 Aug 2021 21:53:00 GMT

OAD Alumni Eunice C. Lee Confirmed to the United States Court of Appeals for the Second Circuit

On Saturday, August 7, 2021, the United States Senate voted to confirm Eunice Lee for a judgeship on the Second Circuit Court of Appeals. Eunice was an exemplary staff and supervising attorney at the Office of the Appellate Defender for over two decades, and we are so incredibly proud of her as she takes this next step to ensure equal justice under law.1

Eunice will be the first former federal defender to serve on the Second Circuit, and the first former public defender appointed to that court in almost 50 years. Further, she will be the longest-serving public defender to become a judge on any federal circuit court. 2 Importantly, Eunice will be only the second Black woman to be confirmed to the Second Circuit, after the Hon. Amalya Lyle Kearse, who was appointed in 1979.

These accolades are important because of the need for personal and professional diversity on our country’s highest benches. Advocates from the right3 and the left4 agree that broadening the career backgrounds of judicial nominees is essential to protecting the rights of all litigants, particularly those enmeshed in the criminal legal system.

During her time at OAD, Eunice was known for her legal acumen, and as a supervising attorney, played a vital role in training the staff attorneys in our office. Just as importantly, Eunice embraced OAD’s holistic model to advocacy, often receiving praise from her clients for her commitment to listening to them. She also helped develop and teach OAD’s appellate defender clinic at NYU Law School for over 15 years, consistently rated by students as one of their top educators. As many past and present OADers will attest, Eunice played an integral role in shaping the culture of our office in her twenty-one years, and we could not be any happier for her.

Eunice Lee also follows the path of several of OAD’s other distinguished alumni in becoming a judge, include the Hon. Catharine Easterly of the D.C. Court of Appeals, and the Hon. Bridget Mary McCormack, Chief Justice of the Michigan Supreme Court.

1 Sen. Chuck Schumer, Remarks at Senate Judiciary Committee (June 9, 2021), available at https://www.democrats.senate.gov/news/press-releases/transcript-majority-leader-schumer-remarks-at-senate-judiciary-committee-introducing-eunice-lee-his-recommendation-to-the-second-circuit-court-of-appeals

2 Jasmine Sheena, “Judicial nominee stands out on many fronts,” City & State New York (June 8, 2021), available at https://www.cityandstateny.com/personality/2021/06/judicial-nominee-stands-out-on-many-fronts/182800/

3 Clark Neily, “Are a Disproportionate Number of Federal Judges Former Government Advocates?,” Cato Institute (May 27, 2021), available at https://www.cato.org/study/are-disproportionate-number-federal-judges-former-government-advocate

4 Maggie Jo Buchanan, “Pipelines to Power: Encouraging Professional Diversity on the Federal Appellate Bench,” Center for American Progress (Aug. 13, 2020), available at https://www.americanprogress.org/issues/courts/reports/2020/08/13/489312/pipelines-power-encouraging-professional-diversity-federal-appellate-bench/

Appellate Division: Prosecutor’s Jury Selection Improperly Based on Dubious Explanations & Stereotypes

Wed, 07 Jul 2021 21:50:00 GMT

Appellate Division: Prosecutor’s Jury Selection Improperly Based on Dubious Explanations & Stereotypes

On June 29, 2021, in People v. Murray , the Appellate Division reversed the convictions of Dexter Murray, an OAD client, finding that the prosecutor at his trial exercised her peremptory jury challenges in a racially discriminatory manner. In the landmark decision Batson v. Kentucky (1986), the United States Supreme Court made clear that it is unconstitutional to exclude prospective jurors based upon their race and created a framework for establishing purposeful discrimination in the jury selection process.

In Mr. Murray’s case, the prosecutor removed four out of the five African American potential jurors available for selection on the trial jury. Mr. Murray, who was representing himself at trial, raised the Batson objection . When the prosecutor attempted to explain why she excluded every available Black juror but one, her explanations shifted over time and included the claim that she wanted to seat jurors who had “higher level jobs” and “indicated that they read.”

The Appellate Division bluntly rejected the prosecution’s explanation: “We cannot accept as race-neutral a prosecutorial explanation that was a pretext masking a discriminatory intent.” The Court, quoting earlier precedent, continued, “To recognize the proffered explanation as valid and legitimate would, in our view, emasculate the constitutional protection recognized in Batson . . . and we refuse to do so.”

In the aftermath of George Floyd’s murder, Chief Judge Janet DeFiore, commissioned the Report from the Special Adviser on Equal Justice in New York State Courts . The Special Adviser’s Report found pervasive racial discrimination in courtrooms throughout New York: “The sad picture that emerges is, in effect, a second-class system of justice for people of color in New York State.”

In recent years, New York State’s incarceration rate was 7.56 times higher for Black people than for white people.1 Within the five boroughs, the population of Rikers Island—where Mr. Murray was confined before being tried by a nearly all white jury—is comprised of approximately 90 percent people of color.2 Rikers Island bears the name of Richard Riker, who was a former slave holder and a New York judge who adjudicated Fugitive Slave Act claims.3

Fortunately, the Special Advisor’s Report diagnosed the problem and prescribed the way forward: “This is a moment that demands a strong and pronounced rededication to equal justice under law by the New York State court system.” The Appellate Division’s decision in Mr. Murray’s case is a critical place to start.

OAD attorneys Adam Murphy and Joseph Nursey had the privilege of representing Mr. Murray on appeal.

1Prison Policy Initiative, New York Incarceration Rates by Race/Ethnicity (2010), available at https://www.prisonpolicy.org/graphs/2010rates/NY.html

2Bruce Western, Jaclyn Davis, Flavien Ganter, & Natalie Smith, “The Cumulative Risk of Jail Incarceration,” Proceedings of the National Academy of Sciences (Jan. 15, 2021), available at https://www.pnas.org/content/118/16/e2023429118

3Brentin Mock, “The Dark ‘Fugitive Slave’ History of Rikers Island,” Bloomberg CityLab (July 23, 2015), available at https://www.bloomberg.com/news/articles/2015-07-23/what-should-be-done-about-rikers-island-s-dark-fugitive-slave-history

The Office of the Appellate Defender (OAD), ALAA Announce Recognition of Staff Union

Mon, 25 Jan 2021 17:06:00 GMT

The Office of the Appellate Defender (OAD), ALAA Announce Recognition of Staff Union

January 25, 2021

Today, the Office of the Appellate Defender recognized the Association of Legal Aid Attorneys – UAW Local 2325 as the collective bargaining representative of its workers.

OAD represents individuals experiencing poverty, who are predominantly Black and Brown and have shouldered the burden and trauma of racism, mass incarceration, over-policing, over-criminalization, and anti-Black violence. While OAD takes an expansive view of appellate practice and the collateral consequences of incarceration, we also recognize the intersection and impact of other oppressive systems causing economic anxiety, food insecurity, environmental injustice, inadequate housing, lack of education resources, and lack of access to quality healthcare. Both OAD and ALAA believe that it is crucial that we train our sights on these issues facing so many individuals, families, and communities. It is with this focus that OAD and the Union agree to work towards reaching a collective bargaining agreement as thoughtfully and expeditiously as possible.

“Since joining OAD several weeks ago, I have proudly witnessed the dedication, quality, and innovative representation of OAD staff members to our clients. Yet, even in the face of excellence, there is room for growth and improvement. We stand at a pivotal time in our nation’s and organization’s history where we can amplify shared values of inclusion and race equity and use them as our guideposts to strengthen OAD’s mission and resolve to provide the highest quality, holistic appellate advocacy and post-conviction relief for those entangled with the criminal legal system in Manhattan and the Bronx,” said Caprice R. Jenerson, President and Attorney-in-Charge of the Office of the Appellate Defender . “Together, I am confident that we can define and actualize our shared values and goals that will sustain OAD well into the future. Our efforts will ensure not only an equitable and inclusive workplace, but also elevate our zealous appellate advocacy in the communities we so passionately serve.”

“We are so proud to welcome the dedicated staff of OAD into our Union as part of the massive movement of legal services workers across this country organizing themselves to better the conditions of their colleagues and clients” said Lisa Ohta, President of the Association of Legal Aid Attorneys – UAW Local 2325 . “We commend OAD for its open and expedient recognition of the staff’s decision to unionize and hope it can serve as a shining example to other non-profits of how a progressive organization can engage productively with their staff. We look forward to fruitful discussions with OAD to further its mission and provide even greater representation to our clients.”

About the Office of the Appellate Defender

The Office of the Appellate Defender (OAD) is New York’s oldest provider of appellate representation to people experiencing poverty convicted of felonies, and the City’s second oldest institutional indigent defense office. Since 1988, OAD has maintained a national reputation for superb appellate advocacy and innovation, as well as a holistic approach to representation.

About the Association of Legal Attorneys (UAW 2325)

ALAA – UAW Local 2325 is the nation’s oldest union of attorneys and legal workers. The Office of the Appellate Defenders employees now join the more than 2,000 members of ALAA who are employed at the Legal Aid Society of New York City, the Nassau County Legal Aid Society, Federal Defenders of New York, The Legal Aid Society of Orange County, Youth Represent, CAMBA Legal Services, Neighborhood Defender Service of Harlem, New York Legal Assistance Group, Asian Americans for Equality, Center for Family Representation, Safe Passage Project, Children’s Law Center, The Bronx Defenders, Catholic Migration Services, Justice in Motion, and Lenox Hill Neighborhood House.

Caprice R. Jenerson Selected as the President & Attorney-in-Charge for the Office of the Appellate Defender

Mon, 26 Oct 2020 20:07:00 GMT

Caprice R. Jenerson Selected as the President & Attorney-in-Charge for the Office of the Appellate Defender

The Board of Directors of the Office of the Appellate Defender (OAD) is proud to announce today that it has selected Caprice R. Jenerson to be OAD’s next President and Attorney-In-Charge, effective December 1, 2020.

Ms. Jenerson comes to OAD after serving as the Chief Equity & Inclusion Officer and Director of the Pro Bono and Volunteer Unit for the New York Legal Assistance Group (NYLAG). Ms. Jenerson will bring a wealth of leadership expertise to OAD, particularly in addressing systemic issues of racism in the criminal legal system.

As both a trial and appellate criminal defense attorney for over two decades, Ms. Jenerson has a deep understanding of the necessity of OAD’s mission to advocate for people who are indigent and convicted of felonies in Manhattan and the Bronx. Moreover, her management and strategic planning expertise at organizations of all sizes ensures that OAD will continue to be a model public defender office for years to come.

Ms. Jenerson succeeds Christina A. Swarns, who is the new executive director of the Innocence Project.

“We are thrilled to have Caprice assume the leadership of OAD,” said Nicolas Bourtin, Chair of OAD’s Board of Directors and a partner at Sullivan & Cromwell. “She is a consummate leader with a demonstrated passion for serving individuals who are disadvantaged in the criminal justice system. Her deep experience as a criminal justice advocate and the breadth of the positions that she has held both as a lawyer and a manager give her unparalleled insight into the needs of OAD and make her the perfect fit to lead our exceptional organization into the future.”

“It is an honor and a privilege to lead OAD and to serve its clients,” said Ms. Jenerson. “The work of OAD is even more critical today as our nation grapples with its stained history of unjust laws, policies, and practices, and the racial bias that has unduly burdened Black and brown communities. Justice has been elusive for so many for too long and that must change. The approach of OAD and its extraordinary staff centers the clients’ lived experiences, voices, and stories in the foreground, not only to tackle the specific legal issues presented in each case, but also to advocate for the eradication of systemic barriers to equality that are deeply embedded in the criminal justice system. I am proud to join the OAD team as we continue to fight for humane and just outcomes in the appellate process and through other post-conviction remedies. I look forward to working collaboratively with OAD’s staff and external stakeholders to create meaningful and sustainable transformation in the administration of justice for all.”

Before her roles at NYLAG, Ms. Jenerson also served as a Senior Resource Counsel for the Clemency Project 2014, and as a Managing Partner and Managing Attorney at law offices in Georgia for over a decade. Ms. Jenerson earned a J.D. from the Georgia State University College of Law and a B.A. from Rutgers University.

On Ahmaud Arbery, Breonna Taylor, George Floyd, Tony McDade …

Wed, 10 Jun 2020 19:19:00 GMT

On Ahmaud Arbery, Breonna Taylor, George Floyd, Tony McDade …

The Office of the Appellate Defender, Inc. stands in solidarity with the families of Ahmaud Arbery, Breonna Taylor, George Floyd, and Tony McDade.

We support the protestors in New York City, across the country and throughout the world. We share their outrage at the seemingly endless list of black victims of police and vigilante violence. We recognize that their deaths are a legacy of the white supremacy and slavery that built our nation and evidence of the stubborn persistence of structural racism.

The extrajudicial executions of black and brown people by police and vigilantes are the most overt and horrific manifestations of the ways in which our system betrays the promise of equal protection under the law. As many scholars and historians have explained, mass incarceration is only the current iteration of this country’s history of slavery, lynchings, and segregation. [1] The United States incarcerates more people, both proportionally and in sheer numbers, than any other country on earth. [2] Those who are incarcerated are overwhelmingly and disproportionately African-American.

The extrajudicial executions of black and brown people by police and vigilantes are the most overt and horrific manifestations of the ways in which our system betrays the promise of equal protection under the law. As many scholars and historians have explained, mass incarceration is only the current iteration of this country’s history of slavery, lynchings, and segregation. The United States incarcerates more people, both proportionally and in sheer numbers, than any other country on earth. Those who are incarcerated are overwhelmingly and disproportionately African-American.

As public defenders, we bear witness every day to the ways in which our legal system perpetuates these injustices. Racial disparities exist at every single stage of the criminal legal system—from police stop to arrest to conviction to sentencing to parole. In New York City, broken windows policing and the rampant use of stop and frisk (declared unconstitutional in 2013) have ensured that police officers are much more likely to harass black and brown people in their day-to-day lives. Black people are less likely than similarly-situated white people to be released on bail, to be offered favorable plea deals, or to be granted a jury of their peers; they are more likely receive a longer sentence if convicted. Perhaps not surprisingly, black and brown people are significantly underrepresented in decision-making positions in the police department, in prosecutor offices, and in public defender offices. [3]

Once mired in the system, black people face charges based on the testimony of New York City police officers who are all too often caught lying to judges and juries or withholding key evidence without consequence. [4] Time and again, this misconduct is hidden, overlooked and/or written off as harmless by prosecutors and courts, leading directly to wrongful convictions and unjust punishment. Yet again, this abuse of power is seen more frequently in the reversal of cases involving black people than white people. [5] Tolerance for such misconduct in police investigations and in prosecutions undermines the legitimacy of our criminal legal system.

Racial inequity persists in the trauma of incarceration. Black and brown people are disciplined more frequently and more harshly by corrections officers, whose ranks are drawn from the predominately white rural communities where most New York prisons are located. [6] Acts of excessive force and overt racism by officers go unreported or unpunished. And black people are less likely to be granted parole and more likely to be re-incarcerated for technical parole violations than their white counterparts. Our society can no longer turn a blind eye to these profoundly racialized inequities.

Finally, there is no excuse for the NYPD’s rampant use of force on New Yorkers gathered to express their justifiable anger. We oppose the mass arrests of protestors as well as their detention for over 24 hours, particularly during this dangerous pandemic. Instead, this must become an opportunity for New York City to enact real, robust reforms.

We must pass the Safer NY Act, including the repeal of Civil Rights Law § 50-a, which prevents the disclosure of police disciplinary records, and the end to arrests for non-criminal offenses or marijuana use. [7]
We must have justice in the NYC budget by reallocating funds from policing priorities to community development. [8]
We must end qualified immunity for police officers, whether through legislation or Supreme Court decision. [9]
We must demand true reform of the NYPD including, but not limited to, de-escalation and bias training, as well as meaningful accountability including increased support for the Civilian Complaint Review Board. [10]
And we must support our clients through the creation of an elder parole law and the reform of New York’s solitary confinement policies. [11]

This moment is not unique. Police impunity was a direct cause of the necessary protests in Harlem in 1943, in Watts in 1965, in Los Angeles in 1992, in Ferguson in 2014, and nationally in 1967 and again today. But our response this time needs to be different; and we must leave behind our tragic and racist legacy by confronting police and officer violence in each and every phase of the legal system.

Christina Swarns
President and Attorney-in-Charge
Office of the Appellate Defender

OAD is Open for Business

Wed, 18 Mar 2020 19:13:00 GMT

OAD is Open for Business

Like you, everyone at OAD is deeply concerned about and closely monitoring the spread of the coronavirus/COVID-19.

Although we have closed our physical office for the safety of our staff and our clients, we continue to do the important work of representing and advocating for people convicted of felonies every day.

We are answering all phone calls; we are researching, writing and filing briefs; and we are working to protect the safety of our incarcerated clients.

We look forward to resuming normal operations in our office, but in the meantime, please call with any questions or concerns you may have.

We are here. #WeRepresent.

Indictment Dismissed

Thu, 30 May 2019 17:05:00 GMT

Indictment Dismissed

Today, in People v. Coulibaly, the First Department vacated OAD’s client’s conviction and dismissed his indictment after finding that trial counsel incorrectly calculated his client’s speedy trial time. Kudos to our Volunteer Appellate Defender co-counsel at MilbankLLP! You can read the decision here .

The Latest About OAD

Tue, 28 May 2019 16:00:00 GMT

The Latest About OAD

In OAD’s May 2019 Newsletter, you can learn more about:

OAD’s holistic post-conviction representation model;
OAD’s First Monday in October Counsel for Justice Honoree, Tony West;
and OAD’s available Staff Attorney positions!

Check it out here .

The post The Latest About OAD appeared first on The Office of the Appellate Defender .

OAD to NYC Mayor and NYS Governor: Banishment is Not Good Public Policy

Fri, 03 May 2019 20:11:00 GMT

OAD to NYC Mayor and NYS Governor: Banishment is Not Good Public Policy

On April 8, 2019, OAD joined forces with Appellate Advocates, the Bronx Defenders, Brooklyn Defender Services, the Center for Appellate Litigation, the Center for Community Alternatives, the Legal Aid Society, the Neighborhood Defender Service of Harlem, New York County Defender Services, and the Sex Law Policy Center in a letter urging Mayor DeBlasio and Governor Cuomo to oppose a proposal to ban people convicted of two or more misdemeanor sex offenses from the MTA for life .

You can read our letter here .

You can learn more about representation of people convicted of sex offenses here .

Indictment Dismissed

Fri, 03 May 2019 19:31:00 GMT

On April 26, 2019, in People v. Taylor , the Appellate Division dismissed the indictment of an OAD client after finding an “unreasonably long” delay in sentencing. The Court held that the prosecution “offer[ed] no excuse for more than one year of the delay in defendant’s sentencing, a period that began when the prosecution received actual notice, provided by defense counsel, that defendant was in custody in another state and wished to be produced for sentencing on this case.”

Kudos to OAD Staff Attorney, Emma Shreefter, for her outstanding advocacy on behalf of Mr. Taylor!

You can read the decision here .

Indictment Dismissed

OAD Joins NYC Defenders in Urging Accuracy and Transparency in DNA Testing and Analysis

Fri, 15 Feb 2019 21:38:00 GMT

On February 15, 2019, OAD joined with New York City indigent and post-conviction defense providers to urge the Office of the Chief Medical Examiner to conduct a transparent and collaborative review to determine whether and to what extent a controversial method for evaluating DNA mixtures has been used in New York City criminal cases. You can read the letter here .

OAD Joins NYC Defenders in Urging Accuracy and Transparency in DNA Testing and Analysis

AD1 Reverses OAD Client’s Conviction: Cumulative Errors Deprived Right to a Fair Trial

Wed, 16 Jan 2019 17:02:00 GMT

In People v. Ortiz , the First Department reversed Mr. Ortiz’s conviction because numerous errors—including the improper admission of testimony about cell-site data by an unqualified lay witness—deprived Mr. Ortiz of his right to a fair trial. The decision is available here: http://www.nycourts.gov/reporter/3dseries/2019/2019_00221.htm

Mr. Ortiz was represented by OAD Staff Attorney, Victorien Wu.

AD1 Reverses OAD Client’s Conviction: Cumulative Errors Deprived Right to a Fair Trial

OAD’s 2019 Preservation Training for Trial Lawyers

Mon, 07 Jan 2019 19:31:00 GMT

OAD’s 2019 Preservation Training for Trial Lawyers

On February 4, 2019, OAD Supervising Attorneys, Eunice Lee and Joe Nursey, will lead a discussion about how trial lawyers can and should preserve errors to maximize full and complete appellate review.

This training will be held at:

New York University Law School

Room 210, Vanderbilt Hall

40 Washington Square South

New York, N.Y.

6-8pm

Please RSVP to Carolyn Norris: cnorris@oadnyc.org

OAD Alumni Directory

Fri, 07 Dec 2018 15:40:00 GMT

OAD Alumni Directory

In honor of OAD’s 30th anniversary, we are proud to present this first-ever OAD Alumni Directory.

We have listed our former staff members’ names, current place of business, and position while at OAD.

As this Directory powerfully demonstrates, OAD-trained attorneys have become state and federal public defenders, scholars, policy-makers, jurists and private practitioners.

OAD’s alumni hold leadership positions in national public interest organizations, large law firms, and even prosecutor offices.

Former OAD staffers have relied on their experiences representing people convicted of felonies in becoming artists, writers, healers, and philanthropists.

Today, OAD stands as a national model of outstanding indigent appellate defense representation.

It would not be the organization it is today were it not for the contributions made by each of the extraordinary individuals who has served our clients.

We have tried to include information that is as comprehensive and up-to-date as possible.

If you have any corrections, updates or additions, please contact Carolyn Norris at cnorris@oadnyc.org or 212.402.4120.

To download a PDF of this Directory, please click here .

OAD@30

Fri, 07 Dec 2018 15:29:00 GMT

OAD@30

In honor of OAD’s 30th anniversary, we are sharing 30 ways that OAD makes a difference.

From our courtroom success, reinvestigation project, esteemed alumni, client advocacy programs, and social services–follow along on Twitter and Facebook, or click here to see all of the ways revealed thus far!

# WeRepresent # OAD @30

Court of Appeals Dismisses Enterprise Corruption Indictment

Mon, 03 Dec 2018 15:05:00 GMT

On November 27, 2018, New York’s Court of Appeals dismissed the Enterprise Corruption indictment against OAD client, Damian Jones, finding that “the proof elicited at trial was not legally sufficient to establish the elements of defendant’s knowledge of the existence of the subject criminal enterprise and the nature of its affairs or his intent to participate in such affairs.” Specifically, the Court held that “[t]he evidence of defendant’s participation in the three requisite criminal acts included in the pattern activity alone does not establish defendant’s knowledge of the existence of the criminal enterprise and the nature of its activities.” Kudos to OAD Supervising Attorney, Rosemary Herbert, and VAD Attorney, Scott Danner at Howell Shuster. You can read the decision here.

Court of Appeals Dismisses Enterprise Corruption Indictment

Appellate Update (November 5-16, 2018)

Mon, 19 Nov 2018 19:33:00 GMT

Appellate Update (November 5-16, 2018)

Second Department

People v. Jahmarley Jones

Reversing and remanding for a new trial for Crawford and Inoa errors.

Mr. Jones was allegedly part of the S.N.O.W. gang. Two officers testified as experts based on their expertise “in the hierarchy, practices, [and] languages of the S.N.O.W. Gang and other gangs.” Both officers stated that their expertise stemmed from many post-arrest “debriefings” of S.N.O.W. gang members.

First, the Court held that the testimony of both experts violated Crawford because their knowledge was based on “out-of-court testimonial statements made by absent witnesses who were never subjected to cross-examination by the defendant.”

Second, the hearsay testimony was “impermissibly conveyed to the jury . . . in the guise of expert testimony” and impermissibly conveyed as the truth for the matter asserted.

In violation of Inoa, one officer “usurp[ed] the jury’s function by interpreting, summarizing, and marshaling the evidence,” when he “offered commentary” on and “connected the evidence.”

People v. Trevor Lucas

Reversing and dismissing the indictment (as against Mr. Lucas).

Defendant was allegedly part of the S.N.O.W. gang (tried with Mr. Jones above).

Defendant was charged with conspiring to murder two rival gang members. The evidence was legally insufficient to prove conspiracy in the second degree, therefore the motion for a trial order of dismissal should have been granted.

The evidence “showed that the defendant conspired with others to retaliate against rival gang members for the recent shooting death of a member of the S.N.O.W. Gang, [but] there was no direct or circumstantial evidence tying this defendant to any plan specifically intended to kill either [rival gang member].”

People v. Pedro Fletcher

Reversing and remanding for new trial in the interest of justice.

The jury found Mr. Fletcher guilty of assault in the second degree and criminal possession of a weapon in the third degree, but found him not guilty of assault in the first degree. The lower court provided a justification instruction on the assault charges, but did not instruct on the defense of temporary and lawful possession of a weapon with respect to the charge of criminal possession of a weapon.

The lower court’s jury charge in conjunction with the verdict sheet failed to convey to the jury that if it found Mr. Fletcher not guilty based on justification as to assault in the first degree, then “it should simply render a verdict of acquittal and cease deliberation, without regard to” assault in the second degree. This was not preserved. In the interest of justice a new trial is necessary because the Court “[could not] say with any certainty and there is no way of knowing whether the acquittal on assault in the first degree was based on a finding of justification.”

People v. Anardo Batista

Finding Mr. Batista’s waiver of the right to appeal was valid thus a review of his excessive sentence claim is precluded.

During the plea proceeding, there was discussion regarding the defendant waiving his right to appeal:

THE COURT: All right. Do you understand that one of the terms of this plea agreement is that you will not exercise your right to appeal.

THE DEFENDANT: Yes, sir.

THE COURT: All right. Is there a right to appeal form executed here? Please uncuff the defendant.

[DEFENSE COUNSEL]: He executed the waiver of appeal, your Honor.

THE COURT: Mr. Batista, I have this form in front of me, the waiver of your right to appeal. Did you just sign that?

THE DEFENDANT: Yes, sir.

THE COURT: Did you discuss this with your attorney Mr. Weinstein before you signed it?

THE DEFENDANT: Yes, sir.

. . .

THE COURT: By waiving your right to appeal, you will be foreclosed forever from complaining about any errors that may have occurred in this proceeding. Do you realize that?

THE DEFENDANT: Yes, sir.

First, “the court’s phrasing served to differentiate the rights the defendant gave up by pleading guilty from the right to appeal the defendant gave up as part of this plea agreement.”

Second, Mr. Batista acknowledged signing the written waiver form, and answered that he discussed it with his attorney before he signed it, that he understood all those discussions, that he was satisfied with those discussions, and that he signed it of his own free will.

Third, like in Ramos (CTA, 2006), “any ambiguity in the oral colloquy was cured by the detailed written waiver of the right to appeal.”

The Court continued, stating “we take the opportunity to respectfully urge our trial courts to give greater attention to the colloquy used in taking a waiver of the right to appeal.” The Court quoted a prior Second Department case (Brown) which has a “thorough explanation” of the waiver of the right to appeal and the Criminal Jury Instructions & Model Colloquies.

Additionally, the Court noted, “[o]ur research has shown that this Court has held an appeal waiver invalid in well over 200 appeals over the past five years.

Fourth Department

People v. Craig Davis

New trial ordered for a Batson violation.

The court had previously remitted the matter for the prosecution to provide a race-neutral reason for striking a black juror. During the hearing, the prosecutor testified that “there was something on [the prospective juror’s] jury questionnaire . . . that [he] did not particularly like,” which would have provided a basis for exercising a peremptory challenge if he “could not clarify [that] issue” during voir dire. This reason did not satisfy the prosecution’s burden; it “amounted to little more than a denial of discriminatory purpose and a general assertion of good faith.”

People v. Dung Vo

Reversed and remanded for a new trial.

First, the lower court improperly precluded Mr. Vo from presenting evidence tending to establish that the complainant had a reason to fabricate the allegations. The prosecution conceded this error.

Second, the court erred in permitting the prosecution to present prompt outcry testimony that exceeded the proper scope of such testimony.

The Court concluded that “either error, alone, would justify reversal and that the cumulative effect of the errors denied defendant a fair trial.”

AD1 Vacates OAD’s Client’s Plea Because of Inadequate Trial Court Instruction

Mon, 19 Nov 2018 16:38:00 GMT

In People v. Vasquez, the First Department vacated Mr. Vasquez’s second-degree robbery plea after concluding that the trial court failed to inform Mr. Vasquez that the enhanced sentence he would receive if he violated the conditions of his plea agreement would include post-release supervision (PRS).

Congratulations to OAD Staff Attorney Victorien Wu!

Read it here: http://www.nycourts.gov/report…/3dseries/2018/2018_07658.htm

AD1 Vacates OAD’s Client’s Plea Because of Inadequate Trial Court Instruction

OAD Appellate Update (October 23 to November 5, 2018)

Wed, 07 Nov 2018 22:05:00 GMT

OAD Appellate Update (October 23 to November 5, 2018)

Appellate Update (October 23, 2018 to November 5, 2018)

Court of Appeals

People v. Jakim Grimes (Oct. 23, 2018)

Opinion by Judge Di Fiore with Judges Stein, Fahey, Garcia and Feinman concurring; Judge Wilson dissents in an opinion joined by Judge Rivera

The Court of Appeals previously held in People v Andrews (2014) that an attorney’s failure to file a timely criminal leave application to the Court of Appeals within thirty-days or to move within the one-year grace period for an extension to cure the error did not deprive a Defendant of their federal constitutional right to the effective assistance of counsel. Andrews therefore found that a defendant cannot use the writ of coram nobis to abrogate the one-year time limitation of CPL 460.30. Andrews left open the question of whether the standard is the same under the New York State Constitution (Art. 1 § 6). In People v. Grimes , the Court of Appeals held that the rule is the same. The majority arguably went even further, however, holding that “there is no state constitutional right to legal representation on an application for leave to appeal to [the Court of Appeals].” (Op. at 22).

The facts were fairly straight-forward: Mr. Grimes pleaded guilty to criminal possession of a controlled substance. His conviction was timely appealed and affirmed by the Fourth Department. The day after receiving the Fourth Department’s decision, Mr. Grimes’s attorney wrote to him to say that he was in the process of drafting a leave application to the Court of Appeals and that Mr. Grimes would “receive it shortly.” Over a year later, Mr. Grimes was released from prison and asked his attorney about the status of the leave application. Counsel moved for coram nobis relief in the Appellate Division, requesting an extension of time to file a leave application on the grounds that Mr. Grimes was denied his right to due process and to counsel under the state and federal constitutions. Counsel represented that due to “law office failure and [his] lack of oversight” the leave application was not filed and the case was mistakenly closed. Counsel noted that Mr. Grimes relied on this representation and could not have reasonably discovered that his rights were not preserved within one year. The Fourth Department denied the application and Mr. Grimes appealed.

The Court of Appeals affirmed. The majority bases its decision on a few principles. First, it differentiates a “first-tier appeal” (direct appeal) from a “second-tier appeal” to the Court of Appeals – the former being “an integral part of the. . .trial system for finally adjudicating the guilt or innocence of a defendant” ( quoting Griffin v. Illinois, 351 US 12 (1956)) and the latter coming after “the defendant has the benefit, from the perfection of the first-tier appeal, of a prepared or original record of the trial court proceedings, briefs by both counsel on the merits of the errors that allegedly occurred at trial, and the written opinion of the intermediate appellate court determining the validity of the conviction.” The majority says that the “critical issue” in a second-tier appeal is not whether there was a correct adjudication of guilt, but whether there is a significant public interest in the subject matter of the appeal or whether the cases poses legal principles of major significance. The majority further notes that there is no constitutional right to appeal to the Court of Appeals other than in a death penalty case, and says that the legislature sets the court’s jurisdiction and concludes there is no reason to abrogate that jurisdiction here.

Judge Wilson disputes all of this in a dissent joined by Judge Rivera – framing the issue in this case as: “when New York has provided counsel to represent a defendant in preparing a [criminal leave application], does the defendant have a constitutional right that counsel meet established standards of effectiveness?” (Dissent at 2). Judge Wilson answers this question in the affirmative – tracing the right to counsel under the New York constitution, observing that the Court of Appeals has recognized an exception to the time limits in CPL 460.30 before, and questioning the majority’s interpretations of the federal cases that it relies on. The dissent includes this memorable sentence: “Daunting is the prospect of explaining to the citizens of New York why the only time we tolerate ineffective lawyers is when they are petitioning the highest court to hear issues of ‘significant public interest’ or to decide ‘legal principles of major significance’[.]” (Dissent at 7, quoting majority op. at 13).

First Department

People v. Brith (Oct. 30, 2018) (criminal sale of controlled substance / for-cause juror challenge)
Acosta, J.P., Friedman, Kapnick, Webber, Moulton

The First Department unanimously reversed the Defendant’s conviction for criminal sale of a controlled substance in the third degree and criminal sale of marijuana in the fourth degree and remanded for a new trial. The trial judge (Judge Clott) denied the Defendant’s for-cause challenge to a prospective juror who “repeatedly expressed a predisposition to credit police testimony, and a belief that innocent defendants would testify on their own behalf.” The juror’s statements reflected an inability to be fair and impartial, and there was no “unequivocal assurance” that the prospective juror could set aside his beliefs to render an impartial verdict.

People v. Crovador (Oct. 30, 2018) (third degree robbery / Boone cross-racial witness ID jury instruction)
Sweeny, J.P., Mazzarelli, Kahn, Oing, and Singh

The Defendant’s conviction for third degree robbery and petit larceny was unanimously reversed on the law and remanded for a new trial. The trial case hinged on the accuracy of the victim’s cross-racial ID of the Defendant with no corroborating evidence to connect the Defendant to the crime. After a Frye hearing, the trial judge (Judge Yearwood) improperly precluded expert testimony on the inaccuracy of cross-racial IDs, even though the expert testimony at the Frye hearing sufficiently established that this principle is generally accepted in the relevant scientific community, and the prosecution “d[id] not dispute that this phenomenon applies to identifications of certain racial groups.” The First Department also found that the trial judge improperly denied the Defendant’s explicit request for a jury instruction on cross-racial IDs.

The First Department significantly found that the new rule announced by the Court of Appeals in People v. Boone requiring such a jury instruction “should be applied retroactively to cases pending on direct appeal.”

Second Department

People v Medina (Oct. 24, 2018) (SORA court “sexual predator” designation)

The Second Department reversed the SORA court’s sua sponte “sexual predator” designation because it was neither recommended by the Board of Examiners nor sought by the People. However, there was no error in the SORA court’s declining the Defendant’s request for the appointment of an expert psychiatrist or psychologist to assist him in seeking a downward departure.

People v Williams (Oct. 24, 2018) (plea upheld, notwithstanding exclusion from Shock)

Although the plea court told the Defendant that it would not oppose the Defendant’s inclusion in the Shock program, the Second Department held that the Defendant’s plea was not rendered invalid when he was ultimately not admitted to the Shock program. The plea transcript established that neither the Defendant’s eligibility for Shock, nor his ultimate admission to Shock, were a condition of his plea. Notwithstanding that this issue survived the Defendant’s valid plea wavier, his conviction was affirmed.

People v Stokeling (Oct. 24, 2018) (aggravated unlicensed operation / confrontation)

The Defendant’s conviction for aggravated unlicensed operation of a motor vehicle (VTL § 511(3)(a)(ii)) was reversed and new trial was ordered. In order to establish the Defendant’s knowledge that his license had been suspended in 1999, the People called a supervisor from the Department of Motor Vehicles to testify about the DMV’s general process for mailing notices of revocation and suspension. The DMV supervisor also read into the record an affidavit sworn out in 2012 that stated that “upon information and belief” the DMV mailed notice to the Defendant in 1999. However, the supervisor admitted that she had no personal knowledge of the mailing to the Defendant herself, and the People did not produce an original affidavit of mailing from 1999.

The Second Department held that the Defendant’s right to confrontation was violated because he was never afforded the opportunity to cross-examine a DMV employee who had personal knowledge of his driving record or who was directly involved in sending out suspension notices.

People v. Johnson (Oct. 24, 2018) (robbery / right to counsel violation at police line-up)

The Defendant’s conviction for robbery in the first degree and robbery in the second degree was reversed and a new trial was ordered for the violation of the Defendant’s right to counsel.

On January 13, 2012, there was a robbery committed by one man at a grocery store. Four days later, on January 17, two men robbed an “apparel store.” Two witnesses from the grocery store identified the Defendant through a police lineup, and another witness identified the Defendant through a photo array. “Other evidence” apparently established the Defendant as one of the perpetrators of the apparel store robbery.

The Second Department found that the Defendant’s right to counsel was violated when the detective who conducted the line-up failed to notify Defendant’s counsel of the line-up or afford counsel a reasonable opportunity to attend. While people generally do not have the right to counsel at pre-accusatory, investigatory line-ups, the Defendant here had the right to counsel because the detective became actually aware that the Defendant was represented by an attorney on the case being investigated two hours before the line-up was conducted. The identification therefore should have been suppressed by the trial court. A new trial was ordered on the grocery store robbery, because the other evidence of the defendant’s identity as the person who committed the grocery store robbery was not overwhelming and the court therefore could not assess whether the admission of the line-up evidence affected the verdict.

The court also ordered a new trial on the apparel store robbery because of the “spillover effect” from improper admission of the grocery store line-up evidence.

Invalid Appeal Waivers : The Second Department held several waivers of the right to appeal to be invalid: People v. Robert Prude (10/24/2018) (record failed to establish that the Defendant understood the distinction between appeal rights and trial rights, and also Supreme Court failed to ascertain whether the Defendant read the waiver, discussed it with counsel, or was aware of its contents); People v. Gregory Posy (10/24/2018) (no knowing waiver where the colloquy “improperly suggested that waiving the right to appeal was mandatory rather than a right which the defendant was being asked to voluntarily relinquish” and the court failed to establish that the Defendant had read the written wavier); People v. Rodney Pierre (10/24/2018) (appeal waiver invalid where Supreme Court’s comments at the plea allocution improperly suggested that the right to appeal is “automatically extinguished upon the entry of a plea of guilty” and the record otherwise failed to indicate that the Defendant understood the difference between the right to appeal and the trial rights that he was waiving by entering his plea).

Third Department

People v. Hernandez (Oct. 25, 2018) (assault, criminal possession of a weapon / weight of the evidence / justification defense)

The Defendant’s convictions for assault in the first degree and criminal possession of a weapon in the fourth degree, following a non-jury trial, were reversed on the facts and the indictment was dismissed. Although the Defendant’s challenge to the legal sufficiency of his conviction was unpreserved, the court found the conviction to be against the weight of the evidence.

The Defendant was convicted of stabbing his estranged wife’s new boyfriend, who the wife began dating prior to her separation from the Defendant, on Christmas Eve 2010. The Defendant, his ex-wife, and her boyfriend (the victim) were the only witnesses to the stabbing. Each person offered a “sharply conflicting” account of the event: the Defendant testified that the victim initiated the altercation and that the victim was stabbed by his own knife, while the victim testified that the Defendant jumped on him, threw him to the ground, started hitting him and stabbed him in the chest, and that the attack was entirely unprovoked.

The trial court rejected the Defendant’s justification defense based on the victim’s testimony that the Defendant started the fight and was the first to use a knife – which would have permitted the Defendant to retreat with complete personal safety before using deadly force. However, at sentencing, the court “expressed a contrary finding” and stated that the Defendant had not brought the knife to the scene and had wrested the knife from the victim during the struggle. The Third Department accepted the trial court’s “implied finding that the victim was the first to use deadly physical force,” which meant that the Defendant had no duty to retreat until the victim did so. Independently assessing the proof, the Third Department found that the Defendant’s justification defense was not inconsistent with the Defendant’s account of what happened, and the People failed to carry the burden of proving that the Defendant’s actions were not justified beyond a reasonable doubt.

People v. Simon (Nov. 1, 2018) (CPCS, CPW / invalid plea allocution)

The Third Department found the Defendant’s plea to the charges of criminal possession of a controlled substance in the third degree and criminal possession of a weapon in the second degree to be involuntary because the plea allocution was insufficient. Although there is no “mandatory catechism,” the trial court conducted an “abbreviated colloquy” that included “only a passing reference to certain rights that the defendant was forfeiting by pleading guilty.” Specifically, the trial court failed to mention the Defendant’s right to confront witnesses at trial, his privilege against self-incrimination at trial, and did not establish that the Defendant consulted with his attorney about forfeiting these rights. The Third Department found this claim to be unpreserved because the Defendant’s post-plea motion to withdraw his plea was grounded in other arguments. Nevertheless, the court reviewed the claim in the interest of justice, noted that it survived the Defendant’s appeal waiver, without deciding whether the waiver was valid, and reversed the judgment and remitted to the Supreme Court.

Two Wins in the Appellate Division

Mon, 02 Jul 2018 22:36:00 GMT

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

Mon, 02 Jul 2018 22:36:00 GMT

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 Receives Open Society Foundations Grant

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

Wed, 27 Jun 2018 19:35:00 GMT

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.