FEATURED DECISIONS
People v. Jovan Fludd
Appellate Division Grants Article 78 Petition, Overturning Trial Court's Solitary Confinement Directive
OAD was assigned to handle Jovan Fludd's appeal from his forgery convictions, arising out of his filing of a series of false UCC liens against prosecutors and judges who had been involved in an earlier prosecution and conviction of him. When Staff Attorney Jenny Eisenberg got the case, she learned that the trial court (Justice Arlene Goldberg) had issued an ex parte order, imposing severe restrictions on Mr. Fludd in prison in order to prevent him from continuing to file false claims. The order directed, among other things, that all of Mr. Fludd's mail would be monitored by a Special Master, and Mr. Fludd would be confined indefinitely in a Special Housing Unit (solitary confinement), to prevent him from using other inmates to "kite" mail out on his behalf. OAD first challenged the order by way of Order to Show Cause to Justice Goldberg, arguing that she had no authority to impose such restrictions once the criminal case was over. While the judge lifted the restrictions on legal correspondence, she kept the other restrictions in place.
OAD then filed an Article 78 petition against Justice Goldberg in the Appellate Division, again arguing that she had exceeded her lawful authority in imposing these restrictions. After nearly a year under consideration, the court granted the petition in a 3-2 vote. Justice Catterson wrote for the court (with Justices Nardelli and Sweeny joining), while Justice Saxe wrote a dissent on behalf of himself and Justice Gonzalez. In its decision, the majority rejected Justice Goldberg's reliance on a court's "inherent power" to impose restrictive conditions, clarifying the extremely limited applicability of this doctrine, particularly when the challenged action has taken place post-judgment. The restrictions were punitive, even though they had been imposed as a means of addressing prospective conduct. Voicing its disapproval of such measures, the court held that "[t]o allow the court to place [Mr. Fludd] in solitary confinement because it believes that [Mr. Fludd] intends to commit further harassment is repulsive and contrary to the whole foundation of our penal system" (emphasis in original). As a result of this decision, Justice Goldberg's orders have been vacated in their entirety. Had the orders remained in effect, Mr. Fludd would likely have served all of his six-to-twelve year sentence in solitary confinement.
Mr. Fludd is represented by staff attorney Jenny Eisenberg, and supervising attorney Rosemary Herbert.
People v. Louis Cyrus
Conviction Reversed: Appellate Division Holds That Trial Counsel's Inadequate Performance Doomed His Client's Defense to Failure.
On December 15, 2002, Louis Cyrus was arrested leaving a drugstore having shoplifted several gift sets. He was then questioned by the police in three different locations. After 17 hours, and feeling sick from heroin withdrawal, Mr. Cyrus waived his Miranda rights and signed a statement admitting that he took the gift sets, and that he displayed a box cutter when leaving the store. The display of the box cutter elevated the crime from petit larceny, a misdemeanor, to robbery in the first degree, a Class B violent felony.
Despite the fact that there were six colorable suppression arguments that trial counsel could have made to prevent the jury from hearing the statement, trial counsel made no legal arguments for suppression. Instead, based on his admitted inexperience and failure to prepare for the hearing, he simply asserted that the officer's testimony was not credible because it contained minor discrepancies. The court denied the suppression motion, which resulted in the jury hearing the inculpatory admission made by Mr. Cyrus. Even more devastating, trial counsel blundered by asking the police officers whether they had viewed a store surveillance tape that had been destroyed prior to trial. The fact that the tape had been destroyed prevented the prosecution from introducing any evidence of the tape or its contents. But trial counsel's questions to the officers "opened the door" to their testimony that they had viewed the surveillance tape and had observed Mr. Cyrus with a "metallic object" in his hand.
On appeal, the Appellate Division found that "counsel's performance at the suppression hearing was abysmal" and that "counsel's performance was only marginally better at trial." Finding that the failure of Mr. Cyrus's trial counsel to investigate the law and facts relevant to the case led to crucial errors that "effectively doomed his client's defense to failure," the court reversed Mr. Cyrus's conviction and ordered a new trial.
Mr. Cyrus was represented by Volunteer Appellate Defender Yehudah Buchweitz of Weil, Gotshal & Manges, LLP and OAD Supervising Attorney Risa Gerson.
People v. Israel Vasquez
Appellate Division Throws Out Murder Conviction; Innocent OAD Client Released from Custody
On August 23, 2007, the Appellate Division, First Department, reversed the second degree murder conviction of OAD client, Israel Vasquez, finding that the evidence presented was legally insufficient to support a conviction. The court dismissed the indictment, ending a long ordeal for Mr. Vasquez.
The case arose out of the murder of Denise Raymond. Ms. Raymond came home to her apartment in the Soundview area of the Bronx after work on the evening of January 17, 1995. Based on the crime scene later discovered, it appeared as if she was accosted as she entered her apartment, after which she was dragged to her bedroom, handcuffed, blindfolded, and gagged, and then shot twice in the head, through two pillows that were placed over her. According to the prosecution, this execution-style murder was masterminded by Charles McKinnon, a former boyfriend of Ms. Raymond. McKinnon was charged with the murder and, after a separate trial, was acquitted. Mr. Vasquez and his co-defendants were charged with having carried out the murder.
There were no eyewitnesses and no forensic evidence linking Israel Vasquez to the crime. Nor, despite the prosecution theory, was there any evidence that Mr. Vasquez either knew or had ever met with McKinnon. The sole "evidence" against Mr. Vasquez was the questionable testimony of a troubled teen – Cathy Gomez's impeached and retracted assertion that she overheard Mr. Vasquez say he had eaten a sandwich and drank juice in Ms. Raymond's apartment. This statement allegedly occurred in a park the day after the Raymond murder. However, this evidence was entirely contradicted by her earlier grand jury testimony, in which Gomez attributed that statement to a different person. On cross-examination, Gomez admitted that she did not know who made that statement or even whether the statement had ever been made. After trial, she acknowledged to Mr. Vasquez's attorney that she had fabricated her testimony under pressure from the police.
The prosecution sought to portray Ms. Raymond's death as part of a well-planned conspiracy that also included the homicide of cab driver Baithe Diop, which was also charged in this indictment. Diop was murdered in his car two days after the Raymond murder. While Diop was killed as part of a robbery, the prosecution theorized that Ms. Raymond's murder was a professional execution orchestrated by McKinnon for some unexplained reason, and that, although some items were taken, robbery was not the motive. In other words, the two crimes were vastly different in terms of motive and modus operandi. No evidence was produced at trial that Israel Vasquez participated in either murder. Mr. Vasquez was acquitted of all counts pertaining to Diop's death.
Despite the remarkably weak evidence against Mr. Vasquez, after six days of deliberations, the jury convicted him of murder in the death of Denise Raymond. The trial court refused to review the serious concerns about Cathy Gomez's testimony.
On appeal, the Appellate Division recognized that the case against Israel Vasquez was "flawed" and "based on speculation unsupported by any credible evidence." Thus, the Court found that, even viewing the evidence in the light most favorable to the prosecution, "there is simply nothing that could lead a rational trier of fact to conclude that defendant was proven guilty of beyond a reasonable doubt of this allegedly ‘well-planned' contract murder." Having been exonerated, Israel Vasquez was released from prison to rejoin his family.
Mr. Vasquez was represented by former OAD Senior Staff Attorneys Jessica Henry and Melissa Rothstein, and Attorney-in-Charge Rick Greenberg.