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

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

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.

New York Appellate Court issues landmark ruling on DVSJA in the case of Nicole Addimando

The application of the DVSJA in Nicole’s case sets a high bar for the compassionate treatment of survivors in the criminal justice system.

On July 14, 2021, Sanctuary for Families and the Incarcerated Gender Violence Survivors Initiative were part of a legal team that achieved a remarkable, ground-breaking result for domestic violence survivors in New York State. On that day, a New York appellate court dramatically reduced the sentence of defendant Nicole Addimando—by more than a decade—because she had demonstrated that her crime was directly related to the severe abuse she had suffered for years at the hands of her domestic partner. For the first time, an appellate court applied New York’s revolutionary Domestic Violence Survivors Justice Act (DVSJA) to ensure that a survivor’s experiences were credited and that she received a compassionate sentence in line with a modern understanding of the effects of prolonged abuse.

The Incarcerated Gender Violence Survivors Initiative

What does it take to change systems that have historically been stacked against survivors of abuse, particularly women of color? The answer to this question was the foundation of our Incarcerated Gender Violence Survivors Initiative. Formed in 2017 by Sanctuary attorneys and pro bono partners, the Initiative seeks to secure the release of gender violence survivors who have been imprisoned in New York State for crimes committed after prolonged domestic abuse, through a comprehensive approach: legislation, legal representation, training, and education.

In 2019, the Initiative, along with survivors and advocates across New York, achieved a major success when New York enacted the Domestic Violence Survivors Justice Act (“DVSJA”) after nearly a decade of hard-fought advocacy.

The DVSJA affords judges the discretion to impose reduced sentences if a 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 account, a standard sentence would be “unduly harsh.” The DVSJA allows defendants to seek a reduced sentence after conviction, and it also allows defendants who were sentenced before the DVSJA’s enactment the opportunity to apply for re-sentencing.

In New York, the passage of the DVSJA was hailed as a major victory by advocates of criminal justice reform and the movement to end gender violence. To be effective, however, laws must be applied as intended. Since 2019, Initiative members have worked to educate practitioners and courts on the DVSJA, but until the Nicole Addimando case there was no clear legal precedent on how it should be properly applied.

Nicole Addimando

Nicole Addimando is the proud mother of two young children who was living in Poughkeepsie, NY. At the age of 19, she began dating the father of her children. Throughout their nine-year relationship, Nicole’s partner became increasingly abusive, including sadistic sexual and physical violence, threats, and psychological and emotional manipulation. One night in 2017, he brandished a gun and threatened to kill both Nicole and himself, leaving their children to grow up parent-less. That night, Nicole used the gun to kill him.

In April 2020, following a jury trial, Nicole was convicted of second-degree murder and second-degree criminal possession of a weapon. Despite detailed testimony and evidence outlining one of the most extreme histories of abuse we at Sanctuary and many others in the field have seen, the trial judge ruled that the DVSJA should not apply in her case, and she should not receive a reduced sentence. Using a badly outdated understanding of the effects of prolonged domestic abuse, the judge concluded, among other things, that the history of abuse was somehow unclear, and that Nicole could have easily and safely escaped from her abusive home and relationship. Nicole was shockingly given a prison term of 19 years to life.

For advocates in New York State and across the country, the sentencing decision was disheartening. Nicole Addimando was precisely the kind of survivor for whom the DVSJA was written and enacted.

The Appeal

Sanctuary Board Member and Sullivan & Cromwell partner Garrard Beeney and a team of Sullivan & Cromwell lawyers took on the massive undertaking of filing an appeal on Nicole’s behalf. He and his team moved quickly, forming a powerful coalition including, among others, Sanctuary, The Legal Aid Society, and Nicole’s trial attorneys, to challenge both the conviction and the judge’s failure to apply the DVSJA at sentencing.

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.

One of the roles Sanctuary took on was to coordinate the filing of two amicus briefs (supplemental legal briefs submitted by third parties to provide judges with additional background or information on the potential impacts of a decision). First, a team of deeply trauma-informed attorneys at the firm of Davis Polk drafted an amicus brief about the impact of trauma on survivors’ memories and the way trauma informs survivors’ decisions, to be filed on behalf of a group of domestic violence service providers. Second, a devoted team of attorneys at the firm of Duane Morris drafted a highly insightful amicus brief detailing the legislative history of the DVSJA and its intended application, to be filed on behalf of the very New York State legislators who drafted and passed the statute.

On April 22, 2021, Garrard Beeney argued the case before a panel of four judges from the Appellate Division – Second Department. Oral argument lasted approximately two hours and can be viewed here. 

On July 14, 2021, the appellate court issued its decision. Much to the disappointment of Nicole, her legal team, family, and friends, the judges upheld Nicole’s conviction. In a blistering rebuke of the trial court’s sentencing, however, the appellate court held that the trial judge relied on thoroughly outmoded views of the impact of domestic violence and misinterpreted the legislative intent of the DVSJA and the circumstances of the case. Though not overturned as we hoped, Nicole Addimando’s sentence was reduced from 19 years to life to a term of 7 ½ years. We expect Nicole to be released to her family in less than three years. The full decision can be viewed here.

The Silver Lining: A Precedent for New York

As the first DVSJA decision to be issued by a New York appellate court, the Nicole Addimando decision is precedent-setting and should pave the way for more compassionate treatment for survivors throughout the state.

First, after reviewing the record, the court held that “through her lengthy testimony, photographs, and other evidence,” Nicole had shown that her domestic partner had “repeatedly abused her physically and sexually.” Second, the court held that the evidence, “which included a detailed history of repeated sexual, physical, and psychological abuse … expert testimony regarding the impact of that abuse on the defendant, and the defendant’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.” Third, the court held that in determining a sentence, the trial court “failed to fully take into account the impact of physical, sexual, and/or psychological abuse on the defendant as a domestic violence survivor.” The court concluded that “[t]his approach simply runs afoul of the spirit and intent of the statute. It is unacceptable that, in reflecting the views of a more enlightened society, the Legislature saw fit to enact the DV Survivor’s Act, only to have the court frustrate that legislative intent by applying outdated notions regarding domestic violence issues.”

The court’s decision adopted the arguments made by the Sullivan & Cromwell team in its briefs and Garrard’s oral argument, as well as the arguments in the amicus briefs submitted by Davis Polk and Duane Morris. In sum, the decision in Nicole Addimando’s case, beyond reducing her sentence dramatically, should have a profound impact on how prosecutors and courts apply the DVSJA, and how the criminal justice system views and treats survivors moving forward. While disappointed that her conviction was not reversed, Ms. Addimando has repeatedly mentioned the strength she has gained from obtaining a decision that will help survivors across the state and the country, and the vindication she has obtained from a finding that she was in fact abused and that that the abuse led to the crimes for which she was convicted.

New York Leads the Way

As the country reckons with the ways racism, misogyny, and poverty have fueled mass incarceration and the incarceration of abuse survivors, New York is setting an example that other states will hopefully choose to follow. The passage of the DVSJA and the correct application in Nicole’s case set a high bar for the compassionate treatment of survivors in the criminal justice system.

But our work is far from over. The appellate court’s decision to allow Nicole’s conviction to stand reflects the need for continued education and advocacy on behalf of gender-violence survivors. Nicole and similarly-situated survivors should never be convicted, incarcerated, and separated from their families for the sole crime of defending their own lives. The Initiative, its pro bono partners, and dedicated advocates across New York State intend to continue fighting for justice in every survivor’s case.

Nicole Fidler is the director of Sanctuary’s Pro Bono Program. Ross Kramer is the director of the Incarcerated Gender Violence Survivor Initiative.

The Vicente Foundation and Marquis Studios Bring Impactful Arts Program to Survivors

Thanks to The Vicente Foundation and Marquis Studios, Sanctuary has been able to offer families new and fun opportunities for creativity and family bonding despite the unprecedented challenges caused by the coronavirus pandemic.

Art has always been an essential tool for promoting healing and facilitating bonding within families who are recovering from abuse. Artistic expression fosters a sense of well-being and comfort in the midst of uncertainty and offers an alternative form of communication. For survivors processing feelings of isolation, depression, and fear during COVID-19, having access to the full range of therapy, including art therapy, has been more important than ever. Thanks to a partnership with Marquis Studios, Sanctuary has been able to offer these crucial services to families virtually.

Founded in 1977, Marquis Studios’ staff of skilled teaching artists provides a full spectrum of arts experiences to 40,000 participants each year, including education services in more than 170 New York City public schools. These programs are designed to integrate culturally responsive arts activities with instruction in academic or social and emotional subjects. Marquis Studios’ planning process is individualized for each residency, offered in-person or remotely, with teaching artists, teachers, and other facilitators meeting to discuss goals prior to session planning. Marquis’ program with Sanctuary likewise offers tailored instruction to best meet the needs of Sanctuary clients.

The Sanctuary and Marquis partnership consists of 10 virtual workshops that began in October and run through December. Each workshop caters to 10 families with young children and focuses on a different artistic skill or activity. The visual and performing arts disciplines covered in the sessions include paper collage, drawing, painting, bookmaking, paper sculpture, puppetry, mixed visual arts, hip hop dance, and African dance.

Reflecting on the workshops she observed, Kimberly Roman, Sanctuary’s children & family services program coordinator, shared,

“Marquis Studios has provided families with fun ways to engage with each other and express themselves. Participants encourage and celebrate each other and the facilitator is also very kind and engaging. Every week the activities are new, interesting and appropriately challenging.”

Sanctuary’s partnership with Marquis Studios was made possible by a donation from The Harriet and Esteban Vicente Foundation. Jennifer Stein of the Vicente Foundation notes,

“The Harriet and Esteban Vicente Foundation is proud to support the groundbreaking art education program run by Marquis Studios for Sanctuary for Families. It is our belief that art brings joy and healing.”

Thanks to The Vicente Foundation and Marquis Studios, Sanctuary has been able to offer families new and fun opportunities for creativity and family bonding despite the unprecedented challenges caused by the coronavirus pandemic.