S&C Attorneys Obtain a Groundbreaking Appellate Victory for Domestic Violence Survivors

Sharon Barbour

At this year’s Above & Beyond Awards, Sanctuary is honoring an extraordinary team of attorneys from Sullivan & Cromwell LLP who achieved a ground-breaking appellate victory for their pro bono client Nicole Addimando and survivors of domestic violence across New York state.

At this year’s Above & Beyond Awards, Sanctuary is honoring an extraordinary team of attorneys from Sullivan & Cromwell LLP who achieved a ground-breaking appellate victory for their pro bono client Nicole Addimando and survivors of domestic violence across New York state. The S&C team includes Garrard Beeney, Amanda Davidoff, Kamil Shields, Tim Weinstein, James Browne, Samantha Briggs, Alexander Self, and Jennifer Lee.

Nicole’s Case

In 2017, Nicole, a loving and proud mother of two young children from Poughkeepsie, NY, was enduring unspeakable violence at the hands of her children’s father, Chris. The two had begun dating when Nicole was 19 years old, and Chris became increasingly abusive over the course of their nine-year relationship.  He regularly subjected Nicole to sadistic sexual and physical violence, threats, and psychological and emotional abuse. One night in 2017, Chris brandished a gun and threatened to kill Nicole then himself, leaving their children without parents. Nicole used the gun against Chris, killing him.

The Trial Court Proceedings

In April 2020, a jury convicted Nicole of second-degree murder and second-degree criminal possession of a weapon. During the sentencing phase, Nicole’s trial counsel requested application of the Domestic Violence Survivor Justice Act (the “DVSJA”), which allows judges to impose a reduced sentence if the defendant was “a victim of domestic violence subjected to substantial physical, sexual or psychological abuse inflicted by a member of the same family or household,” the abuse was “a significant contributing factor” to the crime, and, taking all of the circumstances into a count, a standard sentence would be “unduly harsh.”

Opposing the application of the DVSJA to Nicole, the prosecution presented various purported explanations to minimize the documented evidence of extreme abuse that Nicole survived—including photographs and medical documentation that she had been beaten, burned, sodomized by objects, and had her head slammed against countertops, among other abuse. Indeed, lawyers at Sanctuary for Families who assisted in the case have described Nicole’s history of abuse as among the most extreme that they have ever seen. In the face of this overwhelming evidence, the prosecutor relied on abhorrent, outdated, and fundamentally incorrect notions about the realities of domestic violence. She argued that, if Nicole was abused at all, it must have been self-inflicted or at the hands of someone other than her domestic partner; or if this extreme violence was perpetrated by Chris, it must have been consensual; or if it was not consensual, Nicole could have simply left him.

Based on a deeply flawed understanding of the dynamics of domestic violence, the judge concluded that the DVSJA should not apply and sentenced Nicole to an indeterminate sentence of 19 years to life in prison. 

S&C’s Representation of Nicole on Appeal

By the time Nicole was sentenced, Sanctuary had approached S&C about representing Nicole on appeal. Garrard Beeney, an S&C partner and Sanctuary Board member, was undaunted by the multi-thousand-page trial transcript and lengthy pre-trial and pre-DVSJA-hearing history. “I looked through the opening statements and closing arguments,” Beeney recalled. “I think that made clear to us at a point before sentencing that there had been, in many respects, a miscarriage of justice in the way that the case had been presented to the jury, at least in the sense of ignoring what we know about survivors of domestic violence and the science of domestic violence.”

The S&C team formed a coalition of advocates including Sanctuary, the Legal Aid Society, and Nicole’s trial counsel to challenge Nicole’s conviction and the court’s refusal to apply the DVSJA at her sentencing. Working with this coalition, Sanctuary coordinated the filing of two amicus briefs—a brief on behalf of domestic violence service providers on the impact of trauma on domestic violence survivors’ memories and decisions, and a brief on behalf of certain  New York state legislators who drafted and passed the DVSJA detailing the statute’s legislative history and intent. An amicus also was filed by the Association of the Bar of the City of New York.

Meanwhile, the S&C team worked tirelessly on the appeal, strategizing on the legal issues most likely to achieve the best result for Nicole, researching and briefing the legal arguments, and ultimately arguing the appeal before a panel of the New York Appellate Division, Second Department. During an extraordinary oral argument that lasted nearly two hours (and can be viewed here), the Appellate Division panel lobbed question after question at Beeney to probe the contours of the DVSJA.

As Nicole Fidler, director of Sanctuary’s Pro Bono Program, and Ross Kramer, Director of Sanctuary’s Incarcerated Gender Violence Survivor Initiative, described it:

“The appeal demonstrated that the trial judge’s refusal to apply the DVSJA reflected deeply flawed understandings of the dynamics of abuse, the impact on survivors’ memories, the risk assessment survivors make when determining life or death situations, and the application of the DVSJA—views that unfortunately pervade our justice system.”

The Appellate Division’s Ruling

On July 14, 2021, the Appellate Division ruled on Nicole’s appeal, marking the first appellate decision to interpret the DVSJA. Although the panel upheld Nicole’s conviction, it rejected the trial court’s decision not to apply the DVSJA and reduced Nicole’s sentence to a determinate term of 7.5 years. Nicole is expected to be eligible for release in two years. 

In its opinion (available here), the panel strongly criticized the trial court’s reliance on antiquated attitudes about the impact of domestic violence, its misinterpretation of the legislative intent of the DVSJA, and its inexplicable determination that the record of Nicole’s abuse by Chris was “undetermined.” The panel forcefully rejected the trial court’s reliance “on a presumption or notion that [Nicole] could have avoided further abuse at the hands of [Chris],” and concluded that “[t]he evidence, which included a detailed history of repeated sexual, physical, and psychological abuse by [Chris] against [Nicole], expert testimony regarding the impact of that abuse on the defendant, and [Nicole’s] testimony regarding the events prior to the subject shooting, established that the abuse was a significant contributing factor to the defendant’s criminal behavior.”

Nicole felt vindicated by the Appellate Division’s recognition that Chris had, in fact, inflicted horrific abuse upon her. She also felt gratified that the opinion will help other survivors in similar circumstances. “She is a remarkable person,” Beeney said of his client. “She has the ability to focus on how she can help other people avoid the abuse she suffered at the hands of her abuser as well as the abuse she suffered in the judicial system. It’s a remarkable fortitude and strength.”

After the Appellate Division’s decision came down, several members of the S&C team including Beeney visited Nicole. “On the drive back to the City,” Beeney recalled, “we were remarking to each other that you can’t describe to other lawyers the feeling, the satisfaction, that you get from knowing that as a result of the team’s effort and the efforts of many others in the community, [Nicole] will be going home when her kids are still in middle school—rather than potentially spending the rest of her life [in prison].”  Working on a case like Nicole’s, Beeney said, gives him “faith in the profession, and recognition of the power that we all have with a law degree.”

“I and every member of the board and others who support Sanctuary’s mission feel the same way—[domestic violence] survivors are an underserved community, many of whom, because of economic and other reasons, don’t have a voice or a position that allows them access to the services and support they need to get out from under domestic violence. The organization is wonderful. The cause is something that everyone needs to know about.” — Garrard Beeney, S&C Partner

Kramer praised the S&C team’s work, saying the team “went Above and Beyond for Nicole by any measure.  The compassion, diligence, and skill they brought to the case were inspirational. And the result they achieved profoundly impacted both Nicole and her family.  Beyond that, the appellate court’s ruling in Nicole’s case – which would never have come about but for the passionate advocacy of the Sullivan & Cromwell team – will have a broad and deep impact on the way courts and advocates approach survivors’ cases going forward.  In both their hard work and the tremendous result they achieved, the Addimando case team went far Above and Beyond, and richly deserves this recognition.”

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Join us at our Above & Beyond virtual celebration on Oct. 26, 2021, as we honor Sullivan & Cromwell’s outstanding pro bono work. Click here to RSVP for free.

If you can’t join us, but would like to support Sanctuary’s work, please consider making an Above & Beyond donation here.

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Sharon L. Barbour is co-chair of Sanctuary for Families’ Pro Bono Council.

Take Action This Domestic Violence Awareness Month

Sanctuary for Families

The tragic and sensationalized murder of Gabby Petito put a national spotlight on the issue of domestic violence last month — Take action to support survivors and keep the conversation going through October and beyond.

The tragic and sensationalized murder of Gabby Petito put a national spotlight on the issue of domestic violence last month — the racial disparities in resources and attention afforded to Black and brown missing persons, the limitations of our country’s domestic violence laws, and the role of the police officers who enforce them.
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Yet as the weeks have passed and the search for Petito’s alleged murderer continues, what was becoming a fruitful conversation about abuse and femicide has unsurprisingly stalled just when it should be picking up.
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October is Domestic Violence Awareness Month (DVAM). Join advocates and survivors here in New York and across the country in educating yourself and your communities about the dynamics of abuse, and raise awareness about resources available to victims. Here are a few ways you can get involved:
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Attend a Virtual Event

Join Sanctuary, fellow service providers, advocates, and supporters during the month of October.

  • October 14,  Moving Through Trauma and Beyond @ 6:00 PM via Zoom – Hosted by Sanctuary’s Survivor Leadership Coalition, this survivor-led panel will explore the connection between mind and body, and how different modalities build pathways towards healing. RSVP here.
  • October 26, Above & Beyond Virtual Pro Bono Achievement Awards and Benefit @ 6:30 PM via Zoom – Join us as we honor members of the legal community who have gone “above and beyond” by providing outstanding pro bono representation and advocacy to survivors of gender violence. RSVP here.
  • October 26, Vicarious Trauma and Resilience: Creating Space to Care for Yourself and Your Clients @ 1:00 PM via PLI – Learn from current and former Sanctuary staff and advocates how to identify vicarious trauma and the steps you and your organizations can take to address it. Register here.

Request a Training

Our staff and survivor leaders are available to lead virtual trainings for community members and groups – including schools, hospitals, law enforcement, courts and judges, faith communities, and cultural groups – who are interested in learning how to identify and support survivors. Learn more.
 

Wear Purple and Speak Out on Social Media on Thursday, Oct. 21

On NYC Go Purple Day, wear purple as a way to spark conversation and awareness about domestic violence. You can participate by taking a photo of yourself wearing purple. Send your photo to Info@sffny.org and answer the prompt: Today, I wear purple [for/because/to] _________.

We’ll share your photos on Go Purple Day. You can also post on your own social media accounts and tag us on Instagram and Twitter @SFFNY or on Facebook and LinkedIn @sanctuaryforfamilies.
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Donate to Sanctuary

Your support ensures our ability to deliver counseling services, legal representation, career-readiness training, and shelter to thousands of immigrant and low-income survivors and families every year.

    MAKE A GIFT   
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Take action to keep the conversation about domestic violence going through Domestic Violence Awareness Month and beyond.

Davis Polk & Wardwell Secures Release of a Survivor Under New York’s DVSJA

Devin Jane Buckley

At this year’s Above & Beyond Awards, Sanctuary is honoring a compassionate team of pro bono attorneys from Davis Polk who employed New York’s revolutionary Domestic Violence Survivors Justice Act to secure the release of Chloe, a survivor of severe domestic abuse and trafficking.

At this year’s Above & Beyond Awards, Sanctuary is honoring a compassionate and perseverant team of pro bono attorneys from Davis Polk who employed New York’s revolutionary Domestic Violence Survivors Justice Act (“DVSJA”) to secure the release of “Chloe,” a survivor of severe domestic abuse and sex trafficking. The team includes Pro Bono Counsel Dara L. Sheinfeld, Counsel Denis J. McInerney, associates Don Levavi and Stephanie Mazursky, and former associates Timothy Horley and Patrick Moroney. 

The DVSJA, which was passed in 2019, provides judges greater discretion in sentencing when domestic abuse significantly contributed to the crime for which the person was convicted. The Act also allows for re-sentencing of incarcerated survivors like Chloe.

Chloe is a survivor of terrible abuse at the hands of her trafficker. Under the guise of a loving boyfriend, her trafficker convinced her to travel with him from upstate NY to the Bronx, leaving her young child behind with her family. Once in the Bronx, her trafficker cut her off from her family and friends, prevented her from having access to a cellphone of her own, and surveilled her minute-by-minute, even going so far as to sit outside the bathroom while she showered. Her trafficker abused her physically on a daily basis and also abused her psychologically and emotionally. He forced her into prostitution and even made her get a tattoo of his name across her neck – a common branding technique used by traffickers.

In a tragic incident, Chloe’s trafficker killed a buyer who had paid to have sex with Chloe. When Davis Polk began working with Chloe, she was serving a 10-year sentence for robbery, a crime related to the buyer’s death. Remarkably, after four months of intensive work in partnership with the Legal Aid Society and Sanctuary for Families, the Davis Polk team was able to successfully secure Chloe’s release under the DVSJA.

The Davis Polk team recognized that key to the case was highlighting the psychological factors that undermined Chloe’s lack of agency in connection with her crime of conviction. To that end, Davis Polk engaged a recognized expert psychologist to meet with Chloe, explore the nature of her relationship with her trafficker, and evaluate her agency at the time. The psychologist concluded that Chloe suffered from “trauma bonding,” a phenomenon in which there is a powerful emotional attachment to an abusive partner which often remains even after the relationship ends.

Trauma bonds are formed when three main conditions are met:

  1. The existence of an imbalance of power between the abuser and victim
  2. The use of coercive control tactics, and
  3. The intermittent reward and punishment that the abuser metes out in the course of the relationship.

These factors, combined with isolation, gaslight the abused into an almost worshipful dependence on the abuser. The DVSJA permitted the court to take these psychological factors into consideration in connection with Chloe’s re-sentencing.

The case was highly challenging. One difficulty in employing the DVSJA for re-sentencing, as team member and former Davis Polk attorney Patrick Moroney remarked, is that “you go before the same judge who initially imposed the sentence” and who might be reluctant to disturb that previous decision. In Chloe’s case, securing the support of the District Attorney’s Office proved crucial. While the Davis Polk team worked tirelessly with Chloe to prepare and submit her DVSJA application, engaged in extensive communications with the DA’s Office regarding the merits of the application and arranged for Chloe to be interviewed by the DA’s Office for several hours, all of which resulted in the DA’s Office joining in the application, the Court still required the District Attorney’s Office to submit a full written response to the petition. As a true testament to their commitment to re-sentencing, the DA’s Office promptly submitted a detailed set of papers explaining their reasoning for joining in the application within just hours of the Court’s order.

The prosecution’s willingness to support the DVSJA application was facilitated by the collaborative, open approach that both defense counsel and the DA’s Office took in handling this case. Davis Polk team leader, Counsel Denis McInerney, who serves as President of Sanctuary’s Board and supervises many DVSJA matters at the firm, noted that the defense team’s history with the DA’s Office in a prior similarly successful DVSJA application — which also centered on open lines of communications in which the defense provided the prosecutors with a thorough and candid evaluation of the facts and legal issues in the case – undoubtedly helped to establish the trust one wants in order to have an effective dialogue with the DA’s Office. In Moroney’s words, the team “gave them access to Chloe [and] the documents,” and answered all of their questions. McInerney believes that this approach of being rigorous in one’s factual and legal analysis while at the same time treating the prosecution as “allies” helps tremendously in persuading DA’s Offices to respond rapidly and sympathetically to meritorious DVSJA applications.

Davis Polk demonstrated not only legal acumen but humanity in their representation of Chloe. In anticipation of her release, the team sought therapy services for Chloe, and even provided a car service for her five-plus hour drive home from prison—with a stop at Walmart included! Davis Polk team member Stephanie Mazursky said that she learned patience, compassion, and the power of positive reinforcement from her relationship with Chloe – a relationship that was difficult to build, not only because it required Chloe to revisit traumatic memories, but because conversations took place almost exclusively over the phone due to COVID restrictions at the prison. Now, with the benefit of her early release and without the burden of any post-release supervision, Chloe has emerged from her incarceration with the unfettered freedom to participate in her child’s growth and to spend time with her loved ones.

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Join us at our Above & Beyond virtual celebration on Oct. 26, 2021, as we honor Davis Polk’s outstanding pro bono work. Click here to RSVP for free.

If you can’t join us, but would like to support Sanctuary’s work, please consider making an Above & Beyond donation here.

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Dr. Devin Jane Buckley holds a Ph.D. from Duke University where she studied philosophy and literature while doing title IX advocacy and policy work. She is also a member of Sanctuary’s Pro Bono Council and serves on the Education Committee for World Without Exploitation.

Kasowitz Team Navigates Complicated Divorce Proceeding

Nicole Vescova

At this year’s Above & Beyond Awards, Sanctuary is honoring a team from Kasowitz Benson Torres LLP for their compassionate and devoted pro bono representation of “Frannie,” a domestic violence survivor.

At this year’s Above & Beyond Awards, Sanctuary for Families is honoring a team from Kasowitz Benson Torres LLP (“Kasowitz”) for their compassionate and devoted pro bono representation of “Frannie” to obtain a judgment of divorce with a continued order of protection and a favorable settlement agreement. The team consisted of partners Sarah Gibbs Leivick and Cindy Caranella Kelly, and associates Léa Dartevelle Erhel, Marcellene E. Hearn, and Jillian Roffer.

Approximately ten years ago, Frannie moved to the United States where she met and married Jim. Frannie thought that Jim was kind and loving, but he quickly became both mentally and physically abusive. The abuse increased after Frannie gave birth to their two children, and often occurred in front of the children. Frannie fled the family home and, fortunately, found Sanctuary and obtained an order of protection.

After Jim obtained private counsel and filed for divorce, Sanctuary realized it needed to build a more robust team to support Frannie and joined forces with Kasowitz at the end of 2018.  After over two years of court appearances, extensive discovery from multiple parties, and complex negotiations, Kasowitz successfully secured a favorable settlement agreement.

Throughout the proceedings, the Kasowitz team remained highly client-centered and sensitive to Frannie’s needs. The team took the time necessary to ensure that Frannie, a non-English speaker, was fully informed of all issues during court conferences or negotiations.  When the COVID-19 pandemic hit, the team smoothly navigated the transition to virtual hearings and continued to remain in contact with Frannie to resolve day-to-day issues while a final custody/visitation arrangement was being negotiated. To facilitate Frannie’s understanding of a complicated visitation schedule, the team got creative, preparing tools to help her visualize and adhere to the final schedule.

Sarah Leivick, speaking on behalf of the team, describes the experience as “extremely rewarding,” and stressed that the Sanctuary team was with them every step of the way. “It was a true partnership and team effort,” said associate Marcellene Hearn. Lauren Patel, Senior Staff Attorney in Sanctuary’s Matrimonial and Economic Justice Project, applauds the Kasowitz team for being graceful and proactive throughout the proceeding:

“The Kasowitz team remained constantly engaged, and was ready to pivot to meet every challenge. Whenever the Kasowitz team would come to Sanctuary to discuss an issue, the team had already thought of three possible solutions.” – Lauren Patel, Sanctuary Senior Staff Attorney

Frannie just recently received her judgment of divorce and is very happy to be done with the proceeding. She is relieved to have the custody and visitation issues resolved, and is thankful that Kasowitz was able to have her order of protection continued.

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Join us at our Above & Beyond virtual celebration on Oct. 26, 2021, as we honor Kasowitz’s outstanding pro bono work. Click here to RSVP for free.

If you can’t join us, but would like to support Sanctuary’s work, please consider making an Above & Beyond donation here.

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Nicole Vescova is an associate in the Labor & Employment group at Ellenoff Grossman & Schole LLP where she represents and advises businesses in all industries across the country. She is also a member of the Pro Bono Council.