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.

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

Nicole Fidler and Ross Kramer

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.

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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

Sanctuary for Families

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

Melissa D. James

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.

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“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.

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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.