To what extent should the Domestic Violence Survivors Justice Act be applied?
How should the long-term impact of repeated abuse be measured, or the length of time between an instance of abuse and a criminal act be considered?
Such questions, considered by the state Supreme Court’s Appellate Division, could soon decide Nicole Addimando’s fate. In doing so, the panel of four justices may also provide clarity for the application of a two-year-old state law that’s relatively lacking in legal precedent, while intended on providing sentencing leniency for those driven to criminal activity by domestic violence.
“Does (a criminal act) have to be a sense of immediacy as to spatial and time orientation?” Judge William Mastro asked Putnam County Assistant District Attorney Larry Glasser during a virtual appellate court hearing Thursday. “Does the act apply because of the history (of abuse), or does the state require imminency of conduct that creates the reaction that ends up in the homicide that then triggers the applicability of the act?”
Glasser, one of the attorneys who prosecuted Addimando’s case, responded “Respectfully, your honor, I believe it’s somewhere in-between. I don’t think it requires imminency like justification (of a crime) does … but it also certainly is not the purpose of the act, and I know this is not what Your Honor is suggesting, that a domestic violence victim has carte blanche to kill their abuser because they were abused.”
Addimando was convicted of second-degree murder in April 2019 after shooting and killing Grover, her live-in boyfriend and father of her children. She never denied the shooting, but claimed she did so after years of physical and emotional abuse. Prosecutors have long argued that while she may have been a victim, there was no evidence directly proving Grover was the culprit of the abuse.
Addimando requested to be sentenced under the Domestic Violence Survivors Justice Act, but was denied by Dutchess County Judge Edward McLoughlin, who presided over the three-week murder trial and sentencing hearing. In his decision, McLoughlin noted Addimando “had the opportunity to safely leave her alleged abuser” before shooting him in September 2017, and said “it is not clear whether the alleged abuse was carried out by Christopher Grover in part or in whole, and to what degree.”
Addimando’s appeal, filed by attorney Garrard Beeney of the New York City-based law firm Sullivan & Cromwell, seeks to either overturn the conviction or for Addimando to be resentenced under the 2019 survivors act.
Thursday’s hearing included questioning from four justices — Mastro, Reinaldo Rivera, Colleen Duffy and Sylvia O. Hinds-Radix — walking through the key points of Beeney’s appeal. Addimando did not appear on the virtual event.
The appeal asserts Addimando’s original attorney, Kara Gerry of the Dutchess County Public Defender’s Office, should not have been disqualified; prosecution utilized “false hearsay testimony” in front of the grand jury which stated the gun used in the shooting had been wiped down when no test had been performed to show this was true; the court denied the defense from striking a juror before the jury was sworn in; and the court wrongfully denied evidence that could have shown Grover uploaded photographic proof of abusing Addimando to a pornographic website.
Addimando was sentenced in February 2020 to 19 years to life, which she is serving in Bedford Hills Correctional Facility; under the act, Addimando could face a sentence of 5 to 15 years.
Much of Thursday’s hearing covered questions debated for weeks during the murder trial regarding if it could be proven Grover had abused her during their relationship, which started in 2009. There was also discussion of other relationships she shared with men, some of which overlapped her relationship with Grover, in which she also claimed to be abused, as well as the consistency of Addimando’s claims.
No decision was made by the panel by Thursday afternoon, and a timeline for the decision was not disclosed.
Defining the domestic violence law
The appeal claims Addimando met the standard for the survivors act, showing she sustained “substantial domestic violence where that violence was a ‘significant contributing factor’ to the defendant’s crime and a sentence without modification would be ‘unduly harsh’ in the circumstances.”
But the lawyers took turns answering the judges’ questions regarding how the law should be applied to Addimando’s situation. Beeney argued the jury’s determination that Addimando was not justified in her actions should not come into consideration for sentencing, and that because some form of abuse changed her state of mind her actions would fall under the law.
Rivera asked Beeney, “What factual scenario that you say did not take place here would have warranted the denial by the court of the applicability of this act?”
Beeney said there would have needed to be no evidence of abuse, no evidence Addimando wasn’t a “law-abiding” resident and no evidence the crime was substantially related to domestic violence.
Glasser in answering a similar question later in the hearing, said the law did not apply as it could not be proven Grover was the perpetrator of the abuse.
In their questioning during the appeal, the judges seemed to focus on different applications of the law.
While Rivera and Hinds-Radix, at one point, asked Beeney about how different scenarios on the night of the shooting would have changed the defense’s claim to the Domestic Violence Survivors Justice Act, Mastro pointed out “that night is only part of the story in the analysis” of the act.
What role did Grover play?
During the trial, the defense showed evidence that explicit images of Addimando having been abused had been posted to a pornographic website. However, the court denied the defense from showing evidence the username and profile of the person who uploaded images to the site both included unsubstantiated references to Grover.
Beeney said the court could have presented that evidence to the jury, with caveats showing it does not prove Grover was the person who posted them, and let the jury decide.
Beeney said the exhibits “tied Christopher Grover to the abuse.”
While Glasser defended the court’s decision and rationale for rejecting that evidence, he also asserted if the court was wrong to do so it was “very much the epitome of a harmless error.”
Mastro seized on that statement.
“The (prosecution) went out of their way, in this case, to imply, infer, that the violence that was inflicted upon the defendant could have been, may have been, either self-inflicted or done by other people,” he said. “This evidence that we are now talking about goes directly to the identification of the abuser. So, how can you say this is harmless?”
Duffy added she shared those concerns, and asked Glasser if such information should also be considered in the sentencing hearing.
“If it was proffered by the defense, I believe it could have been presented,” Glasser said, but noted the images themselves were fully discussed in trial.
“The (prosecutors) were suggesting throughout this entire trial that the injuries that were inflicted upon this defendant could have been from other sources other than the victim, in this case,” Mastro said. “And, to me, if that’s the position you’re taking, then the evidence we’re talking about with the identification on it, I think would have changed the dynamic of the people’s case.”
In late May 2018, McLoughlin granted the Putnam County District Attorney’s Office’s motion that Gerry, Addimando’s lawyer of roughly eight months, be disqualified from representing the Poughkeepsie woman due to a conflict of interest.
The conflict, Addimando’s current lawyers state, stemmed from a witness who had been represented by the Dutchess County Public Defender’s Office years before Gerry joined the office. And, the motion was granted despite Addimando waiving any objection she had to Gerry’s involvement to an independent third party assigned by the court to inform her of her rights.
Gerry, at the time, called it an “11th hour” move, and that she “strenuously opposed” her conflict of interest.
Lawyers Thursday argued over the court’s right to make that decision, to what extent Gerry was acting on Addimando’s behalf, and how aware the defendant was.
Beeney noted Addimando “knowingly waived” having someone else represent her, but was denied that right.
“That knowing waiver was as clear as it could be and should not have been rejected by the trial court,” Beeney said. “There had been a bond formed between Addimando, a victim of abuse, and Miss Gerry, she very much wanted to keep her counsel.”
However, Glasser questioned if Addimando knew Gerry had offered to change how the witness in question would be used in her defense, a move Glasser said wasn’t acting in Addimando’s best interest, as there were indications the witness would be an important part of her argument.
“Counsel realized there were dueling issues here and this was a proposal to avoid a conflict,” he said, citing precedent he said shows “this proposal actual proves the conflict, it does not ameliorate it.”