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.