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

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.

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.

S&C Attorneys Help Trafficking Survivors Adjust Status, Obtain T-Visa

At this year’s Above & Beyond Awards, Sanctuary is honoring a team of attorneys from Sullivan & Cromwell LLP for their astute and flexible representation of “Soojin” and “Miyoung” in their applications for adjustment of status and a T-non-immigrant visa, respectively.

Colleen is a member of Sanctuary’s Pro Bono Council.  She is a Vice President and Senior Counsel at Goldman Sachs & Co. LLC.

At this year’s Above & Beyond Awards, Sanctuary is honoring a team of attorneys from Sullivan & Cromwell LLP for their astute and flexible representation of “Soojin” and “Miyoung” in their applications for adjustment of status and a T-non-immigrant visa, respectively. The team assisting Soojin consisted of partner Garrard Beeney, attorneys Connor “CJ” Haynes and Suniti Mehta, and legal assistant Emma Needham.  Garrard Beeney also assisted in Miyoung’s case, along with attorneys Olivia Chalos and David Seidler.

Soojin and Miyoung, two unrelated women who survived sex trafficking through massage parlors in both Korea and the United States, have each spent years working to overcome the trauma they endured.  Both women had paid the same immigration attorney in another state to assist them with their immigration petitions, but when they found their way to Sanctuary for Families, those applications had been in limbo for several years.  Soojin had filed a petition to adjust her status to receive lawful permanent residency after procuring a T-nonimmigrant visa (“T visa”) several years prior.  Miyoung had been waiting for her T visa for nearly five years, despite the successful prosecution of several of her traffickers.

When Sanctuary for Families attorneys Amy Hsieh and Kathy Lu began working with Soojin and Miyoung, they made several attempts to get the attention of USCIS and to find out the status of the cases, but to no avail. They realized that the best course of action to force a decision would be a rare and risky tactic: filing a mandamus action against the federal government to compel action in Soojin’s and Miyoung’s cases. And they knew that they would need a sophisticated team of pro bono attorneys to help.

In July of 2019, the Sullivan and Cromwell team took the cases, and Garrard, CJ, Suniti, Oliva, David, and Emma began preparing the mandamus actions.  After conducting extensive research into the novel issues presented, and considering the risks of increased negative scrutiny on the clients’ petitions as the result of a lawsuit against the government, the team drafted complaints.  In relatively short order the team filed the mandamus suit in Miyoung’s case in the United States District Court for the Eastern District of New York.  Shortly thereafter, they were contacted by the Assistant U. S. Attorney who had been assigned the case.  The AUSA asked for more time to respond, with the implication that the suit may have prompted the government to take action on the underlying petition that would moot the mandamus case.  In January 2020, Miyoung received a Request for Evidence (“RFE”) relating to her T-visa petition.

In the meantime, Soojin had received an RFE, as well, likely on the back of a new, corrected adjustment-of-status petition Sanctuary had filed after withdrawing the prior version.  In light of the new territory both clients found themselves in, the Sullivan and Cromwell team did not miss a beat before shifting their attention to the RFEs.  While the mandamus actions were largely complicated questions of law that required extensive legal research, the RFE responses were incredibly fact-specific, especially when it came to detailing in a clear and accurate way the complicated criminal histories of both Soojin and Miyoung, which often present challenges for survivors of trafficking.

Further compounding the issue was the fact that the country was in the beginning stages of a pandemic.  In-person meetings between the clients and their lawyers would not be possible. “These circumstances make pro bono cases especially difficult when you can’t see your clients in person and develop that connection with them,” reflected Suniti.  

But as Kathy notes about the Sullivan and Cromwell team, “The speed with which Garrard, CJ, Suniti, Olivia, David, and Emma pivoted was remarkable.  They did not hesitate to roll up their sleeves to work on the RFE right after they had put countless hours into the mandamus complaints, all while managing the challenging new logistics of handling immigration cases during a pandemic.  We could not have done this work without them.”

For their part, the Sullivan and Cromwell team remained focused on serving Soojin and Miyoung with the best quality legal counsel, and they found their close partnership with Amy and Kathy to be incredibly effective.  Bolstered by their clients’ resilience and this new shot at overcoming the legal barriers that had been in Soojin and Miyoung’s way for too long, the Sullivan and Cromwell and Sanctuary for Families teams completed the RFEs together and submitted them timely.

Within a matter of weeks, Miyoung received approval of her T-visa petition, which granted her access to much-needed work-authorization, as well as a derivative visa for her husband, and Soojin received approval of her adjustment of status petition and is now a lawful permanent resident of the United States.  Given the extensive length of time both clients waited, and the significant legal hurdles they had to overcome, they were prepared for the worst.  Receiving approval of their respective petitions so soon after the Sullivan and Cromwell team started working on them was a tremendous relief.

Reflecting on the case, Olivia noted how clear it was to her from the start that Miyoung undoubtedly had overcome horrible experiences and had met the legal requirements for a T visa, especially since her traffickers had already been prosecuted.

“I was grateful to work on this case, but it is challenging to know that there are so many people without lawyers who find themselves in similar situations, facing these procedural hurdles.” — Olivia Chalos, Associate.

Suniti expressed her deep admiration for Soojin, who had lived in a state of uncertainty for so long and had survived years of trauma as the result of the trafficking, only to become stuck for years in an immigration system that she thought her prior attorney was working to help her navigate.  The Sullivan and Cromwell team, cognizant of Soojin’s experiences, worked hard to gain her trust and to be the advocates she deserved.  As Suniti put it, “having counsel can actually help you.”

Join us at our virtual Above & Beyond virtual celebration on October 29, 2020, as we honor the outstanding pro bono work of Garrard, Suniti, C.J. Emma, Olivia, and David. Click here to RSVP for free.

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