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.

Sanctuary Applauds Gov. Cuomo for Granting Clemency to Monica Szlekovics

Read our press release

After 23 years in prison and incredible advocacy by Sanctuary partners Davis Polk & Wardwell, Monica Szlekovics has been granted clemency for the crime she was compelled to commit in 1996 due to years of abuse from her ex-husband. In granting her clemency, the State acknowledges the extenuating circumstances of her conviction and the traumatic impact of domestic violence on its victims.

Read our press release below:

 Hon. Judy Harris Kluger, Executive Director of Sanctuary for Families, New York State’s leading advocate and service provider for survivors of domestic violence, sex trafficking and related forms of gender violence, issued the following statement:

“In granting clemency to domestic violence survivor Monica Szlekovics, who served 23 years of a 50-year to life sentence, Governor Andrew Cuomo has not only recognized her incredible personal transformation and achievements while in prison, but he has also acknowledged the extenuating circumstances of her conviction and the traumatic impact of domestic violence on its victims.”

“Sanctuary for Families views Monica’s clemency as a victory for survivors of intimate partner abuse everywhere.  We applaud the Governor for his insight, compassion and courage in making this important decision.”

Monica’s clemency case was handled by an extraordinary team of pro bono attorneys at Davis Polk & Wardwell, led by Special Counsel for Pro Bono Sharon Katz and Pro Bono Attorney Dara Sheinfeld, and including associates Jennifer Kalmanides and Peter Bozzo, former associates Brooklynn Moore and Jaryn Fields, and former legal assistant Emma Schwartz.  Partner Tatiana Martins also provided valuable assistance.  The team worked closely with outside co-counsel, Sara Bennett, whose prior clemency experience proved invaluable.  The team engaged with numerous leaders in the domestic violence community, who strongly advocated for Monica’s release.  The case was referred to Davis Polk by the Initiative for Incarcerated Survivors of Gender Violence, founded in 2017 by Dorchen Leidholdt, the Director of Sanctuary for Families’ Legal Center.

Like so many women across this country, Monica suffered years of excruciating and escalating domestic violence at the hands of her now ex-husband.  He choked her, threatened her with guns, beat her mercilessly—rupturing her eardrum and bruising her from head to toe, and subjected her to ongoing psychological torture.  Years of abuse led her to fear that her husband would kill her. Eventually, he kidnapped her at gunpoint and forced her—through a combination of physical threats, force, emotional abuse, and psychological manipulation—to accompany him on a violent crime spree in Rochester in search of an estranged girlfriend, who, herself, had previously fled from his violence.

Monica was sentenced to 50 years to life for her participation in crimes masterminded and instigated by her abusive husband.  At his trial, which post-dated hers, the prosecutor characterized Monica as “a pathetic, battered woman,” and acknowledged that her husband was a dangerously violent man who was “manipulating her, controlling her [and] dominating her.”

During her 23-year incarceration, Monica transformed herself from a broken, battered, drug-addicted young woman into a self-aware, confident agent of change.  Among other accomplishments, she earned a Bachelor of Arts degree in sociology, cum laude, became a responsible and valued employee of the prison’s college program, consistently volunteered her time to mentor other women, and flourished as a talented and published writer and artist.

Davis Polk Attorneys Fight for Immigrant Survivor of Sex Trafficking

At this year’s Above & Beyond Awards, Sanctuary is honoring a team of attorneys from Davis Polk & Wardwell LLP for their tireless pro bono work on behalf of “Maria,” a trans survivor of sex trafficking.

Melissa D. James is a Senior Associate at a boutique employment law firm, specializing in Workers’ Compensation and Social Security Disability. She is also an Adjunct Professor and member of Sanctuary’s Pro Bono Council.

“Giving is not just about making a donation. It is about making a difference.” – Kathy Calvin, CEO & President of the United Nations Foundation

At this year’s Above & Beyond Awards, Sanctuary is honoring a team of attorneys from Davis Polk & Wardwell LLP for their tireless pro bono work on behalf of “Maria,” a trans survivor of sex trafficking. The incredible team, consisting of Joshua Sills and David Robles, was successful in helping Maria vacate two outstanding criminal warrants and ultimately secure a T-Visa.

Drawing Parallels

Maria started grappling with her gender identity in her early teens, back in the early 2000s, while living in her home country of Mexico. As she began to transition at the age of fourteen, Maria would come to face horrible backlash and even violence from her parents. One day she came home from school to find that her father, in a rage, had set all of her belongings on fire. This prompted Maria to leave her parents’ home immediately and move to Mexico City where, like many transgender youth without familial support, she was forced to live on the streets. By the age of fifteen, Maria was residing in a group home and waiting tables to earn money. It was there where she met the older man who would later rape and force her into the world of trafficking.  He brought Maria to the U.S. and as soon as they crossed the border, he took her to her new “home”—a house where she was forced to have sex with the men who lived there as well as other men who came for the purpose of buying sex.  Maria eventually managed to escape with the help of a childhood friend who was also living in the United States. She ended up in New York City and was arrested for prostitution but, luckily, was referred to the Human Trafficking Intervention Court in Brooklyn where she was connected to Sanctuary and, ultimately, to Davis Polk.

In sheer contrast, Josh, who is the same age as Maria, lived a life free from such a dark reality. In fact, Josh expressed that “going through life, not understanding” the challenges others face is a “real eye-opener and a motivator to do more” to help victims of sexual abuse and exploitation. So, when the time came to face an unexpected obstacle, the Davis Polk team did not hesitate in taking the necessary steps to help Maria vacate two outstanding criminal warrants that could have jeopardized her T-Visa application.  As Josh so humbly stated, “passing it [the task] on to anyone else was not even a thought.”

Blazing a Path

As part of the T-Visa application, clients must provide proof that they cooperated with reasonable requests for assistance in the investigation or prosecution of acts of trafficking. This proof often comes in the form of a law enforcement “certification.”  At the time that Josh and David were working on Maria’s case, no trafficking survivor had yet to obtain this type of certification from the Brooklyn Human Trafficking Intervention Court (“HTIC”).  Working with Maria to prepare her for an in chamber interview with a Brooklyn HTIC Judge, Josh and David were able to help Maria obtain this critical certification from the Judge, blazing a path in Brooklyn for future survivors.

The Game Changer

During the process of preparing Maria’s T-Visa application, the Davis Polk team learned that it could be compromised unless two outstanding criminal warrants were resolved. Without hesitation, the team reached out to Red Hook Community Justice Center (“RHCJC”) and got the cases placed on the calendar to be heard before a criminal law judge. At the hearing the team made an application to vacate the outstanding warrants that was granted by the presiding judge. Josh remembers Maria initially being scared, however he recognized her resilience and admired her for her strength. At the end, Maria was granted a T-Visa and could now truly move on from her past.

The Golden Standard

Amy Hsieh, Sanctuary’s Senior Staff Attorney, had an opportunity to work closely with the Davis Polk team and expressed that they provided “the perfect combination of support for Maria.” “Their legal work was of course outstanding,” said Hsieh, “but they also formed a true bond with their client so much so that Josh—even though he is now in Spain—continues to help her as needed from afar.” She noted that the Davis Polk team was very passionate, stepped outside the box and treated Maria like any other client who walked through Davis Polk’s doors. In her eyes, the way that the Davis Polk team took the lead to handle this arduous obstacle represents a level of dedication that she wishes could be the standard for all pro bono work.

What brings true value to the Davis Polk team is that both Josh and David understand the time and effort that it takes to provide exceptional pro bono representation. In fact, prior to joining Davis Polk both Josh and David regularly participated in complex pro bono opportunities. In law school, David worked closely with victims of domestic abuse and prior to law school, Josh was involved with Immigration Equality – the leading national LGBTQ immigrant rights organization. David expressed that working with Sanctuary has been invaluable and has shaped him into a better attorney. Similarly, Josh feels blessed to work so closely with Sanctuary and often thinks deeply about the struggles that face so many victims of sex trafficking. This vast contrast in life is what drives him to continue doing this type of work – the notion that sometimes we live a life so secluded oblivious to the fact that there is someone else so close living a life that mirrors a nightmare.

Join us at our Above & Beyond celebration on November 12, 2019, at the RUMI Event Space, 229 W 28th St, New York, NY as we honor Davis Polk’s outstanding pro bono work. You can buy tickets here

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

Cahill and Davis Polk Attorneys Join Efforts to Defend Domestic Violence Survivor and Her Children

At this year’s Above & Beyond Awards, we are recognizing a powerful joint collaboration between attorneys at Cahill Gordon & Reindel LLP and attorneys at Davis Polk & Wardwell LLP for their unwavering commitment to their client, “Shiho.”  The team helped Shiho gain full custody of her children, a final order of protection against her abusive husband, and a fair and appropriate child support order.

Caroline Irving is the director of Sales Development at Parfums Christian Dior and a member of Sanctuary’s Pro Bono Council.

At this year’s Above & Beyond Awards, we are recognizing a powerful joint collaboration between attorneys at Cahill Gordon & Reindel LLP and attorneys at Davis Polk & Wardwell LLP for their unwavering commitment to their client, “Shiho.”  The team helped Shiho gain full custody of her children, a final order of protection against her abusive husband, and a fair and appropriate child support order. We are pleased to honor this incredible team consisting of Dara L. Sheinfeld, Pro Bono Attorney at Davis Polk; Chui-Lai Cheung, Associate at Davis Polk; Jonathan White, Associate at Cahill Gordon; and Dan LeCours, former Associate at Cahill Gordon.

In the fall of 2012, Dara began assisting Shiho pro bono, with co-counsel from Sanctuary for Families.  Shiho had experienced multiple severe instances of domestic violence by her husband and in 2012 she made the brave decision to leave the marriage, taking her 2 young children with her. Sanctuary for Families had been providing counseling to Shiho, and the legal team then jumped in to assist Shiho in court.  The team filed a Custody and Family Offense Petition for Shiho, and she received a full temporary order of protection, for herself and her children, which was continued throughout the several years of litigation.

In 2013, Dara joined Sanctuary full time as the Family Law Director in the Bronx Family Justice Center and continued to represent Shiho, along with Barbara Kryszko, Sanctuary’s Family Law Director in the Brooklyn Family Justice Center. As Dara and Barbara prepared to move forward with a trial concerning family offense and custody matters, they sought pro bono assistance, and Associates Dan LeCours and Jonathan White at Cahill Gordon came on board to join the trial team. Jon and Dan provided much needed assistance by gathering evidence spanning more than 12 years, preparing exhibits and witness questions, and drafting motions. Additionally, Dan conducted a direct examination of one of the custody trial witnesses and Jon and Dan handled discovery and conducted the examinations of all witnesses in a simultaneous child support hearing.  According to Barbara Kryszko, who nominated this team,

“Dan and Jon’s . . . overall ability to stay abreast of all the ongoing developments in the case were vital in our ability to provide Shiho with zealous, professional advocacy.”

In addition to their invaluable help with trial preparation, Jonathan and Dan’s immense support of Shiho extended to handling a difficult relationship with Shiho’s husband, who elected to appear pro se and who was an extremely challenging respondent. Her husband reached out incessantly to Jon, Dan, and the rest of the legal team – sometimes with hostility and threats because of his unrealistic desire to reunite with Shiho and their children. However, the team was undeterred, continuing to fight for Shiho in the family offense, custody, and child support proceedings.

When Dara moved to Davis Polk in 2017 to join their Pro Bono Program as a Pro Bono Attorney, she continued to represent Shiho in her new role. Chui-Lai Cheung, an Associate at the firm, joined the team to assist with trial preparations. Chui-Lai and Jonathan worked seamlessly together to support the trial team and took the lead in preparing the powerful written summation at the end of the trial. Chui-Lai noted that she benefited from this case by being able to be in a courtroom and gain a deeper understanding of how family law works.

Shiho has expressed her immense gratitude to the whole team for all their work during the past 7 years and recognizes that having them on her side made all the difference. In August 2019, a decision was handed down granting Shiho full custody of her children and a full final order of protection against her ex-husband. Furthermore, the court found that the father had committed 16 family offenses against Shiho, including numerous counts of criminal obstruction of breathing or blood circulation, menacing, assault, harassment, and criminal mischief, and had also, on several occasions, violated the temporary orders of protection.

In response to the ruling, Dara said,

“I’m just so happy for her that there is some finality, at least for now.”

This decision finalizes what Shiho has been fighting for for the past 7 years – she now has full custody of her children and the abuses she suffered have been recognized and validated. As they were leaving trial, in an emotional goodbye, Shiho told her team that she would miss them, but is thrilled to be out of court for the first time since 2012.

Join us at our Above & Beyond celebration on November 12, 2019, at the RUMI Event Space, 229 W 28th St, New York, NY as we honor Dara, Jon, Dan, and Chui-Lai’s outstanding pro bono work.  You can buy tickets here

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