Opinion
Indictment No. 1216-2020
08-08-2023
The PEOPLE of the State of New York, v. Jessie NOWELL, Defendant.
For the People: Assistant District Attorney Jonathon Junig, Of Counsel, New York County District Attorney's Office For the Defendant: Adam Silverstein, Esq., The Law Offices of Adam Silverstein
For the People: Assistant District Attorney Jonathon Junig, Of Counsel, New York County District Attorney's Office
For the Defendant: Adam Silverstein, Esq., The Law Offices of Adam Silverstein
Althea E.M. Drysdale, J. The defendant, Jessie Nowell, was charged with Predatory Sexual Assault Against a Child pursuant to Penal Law § 130.96 and Course of Sexual Conduct Against a Child in the First Degree pursuant to PL § 130.75(1)(b). The case proceeded to trial before this Court. On August 29, 2022, upon the completion of jury selection and swearing in a jury, the defendant pled guilty to one count of Course of Sexual Conduct Against a Child in the First Degree pursuant to PL § 130.75(1)(b) with a promised sentence of thirteen years state prison followed by ten years of post-release supervision and Sex Offender Registration Act (SORA) designation. On the morning of January 9, 2023, the date that the defendant's sentence was to be imposed, the defendant died by apparent suicide. The defendant, through his attorney, has moved to dismiss the defendant's case as abated by his death. The People submitted a response in opposition, and the defendant submitted a reply to the People's response. For the reasons stated herein, the defendant's motion is granted.
Summary of Facts
This case stems from the defendant's repeated sexual abuse of his girlfriend's eight-year-old daughter. At the end of 2015 into the early months of 2016, the complaining witness’ mother became pregnant with the defendant's child. Following the pregnancy announcement, the defendant began secretly and routinely sexually abusing the complaining witness.
Several nights every week, the complainant's mother, the complainant, and the defendant would watch television in the mother's bedroom while lying in bed together. On many nights, after the complainant's mother left the bedroom to make dinner in the kitchen, the defendant would touch the complainant's buttocks and vagina, first through her pajama pants and eventually graduating to touching the complainant underneath her clothing as well. Over time, the defendant started showing the child pornographic videos and instructing the child to rub his penis with her hands while viewing the videos. On one occasion in 2016, the defendant forced the child to perform oral sex on him. On another occasion, the defendant performed oral sex on the child. The defendant's odd behavior around the child was noticed by the child's aunt, who brought her concerns to the child's mother. The child then disclosed the abuse to her mother. However, instead of reporting the abuse, the child's mother hid the fact that her child had disclosed the abuse to her. The morning after the child had spoken with her mother, the defendant told the child that he knew that she had spoken with her mother and to never mention anything like that to her mother again. The defendant then proposed engagement to the child's mother, and the child's mother accepted.
The defendant ceased abusing the child after she disclosed the abuse to her mother. For three years the child suffered the consequences of the defendant's behavior unsupported, leading her to become withdrawn from her family and spend most of her time in her room alone. Unable to process her feelings, the child used the "Notes" app on her iPhone to detail her abuse by the defendant. Eventually in late September of 2020, the child's aunt addressed the child directly regarding whether she had been sexually abused by the defendant. At this point, the child disclosed the abuse to her aunt, sharing with her the notes she had taken on her phone. Thankfully, the child's aunt took immediate action: she picked up the child from the home she shared with the defendant and her mother and arranged for the child to live with her in Pennsylvania. After the child's mother again refused to act on the information, the child's aunt assisted the child in reporting the incident to the NYPD. After the child was interviewed by detectives, the defendant was placed under arrest.
Procedural History
The defendant was arraigned in New York County Criminal Court on September 20, 2020 and charged with Predatory Sexual Assault Against a Child in the First Degree pursuant to PL § 130.96, Course of Sexual Conduct Against a Child in the First Degree pursuant to PL § 130.75(1)(b), and Endangering the Welfare of a Child pursuant to PL § 260.10. The defendant was then indicted on one count of Predatory Sexual Assault Against a Child in the First Degree pursuant to PL § 130.96 and one count Course of Sexual Conduct Against a Child in the First Degree pursuant to PL § 130.75(1)(b). The defendant was arraigned on the indictment in New York County Supreme Court, Part 41, on October 16, 2020.
On August 26, 2022, the case proceeded to trial in front of this Court. A jury was selected and empaneled, and the case was adjourned to August 29, 2022 for opening statements and the People's case. On the morning of August 29, 2022, prior to opening statements, the defendant pled guilty to Count Two, Course of Sexual Conduct Against a Child in the First Degree pursuant to PL § 130.75(1)(b), with the promised sentence of thirteen years state prison followed by ten years of post-release supervision and Sex Offender Registration Act ("SORA") registration. As part of his plea, the defendant allocuted fully to the elements of the crime. The defendant also executed a waiver of his right to appeal. The case was adjourned for sentencing on December 8, 2022.
On December 8, 2022, the defendant failed to appear for sentencing. At that time, defense counsel informed the People and the Court that the defendant had been admitted to a hospital. The case was then adjourned to December 22, 2022 for sentencing.
On December 22, 2022, the defendant did not appear for sentencing. Defense counsel reached out to the Court later that day to inform the Court that the defendant had died by apparent suicide earlier that morning. The People confirmed that information, and the case was adjourned for the People to obtain a death certificate.
Defense counsel provided the Court with a death certificate on January 9, 2023, at which time the defense moved to dismiss the case as abated by the defendant's death. The People filed a motion in opposition, arguing that the distinct circumstances of this case warrant departure from normal procedure as a matter of public policy and out of respect to the victim in this case.
Conclusions of Law
I. History of the Abatement Doctrine in the United States
"When a convicted defendant dies while his direct appeal as of right is pending, his death abates not only the appeal but also all proceedings had in the prosecution from its inception." United States v. Libous , 858 F.3d 64, 66 (2d Cir. 2017) ; citing United States v. Wright, 160 F.3d 905, 908 (2d Cir. 1998); see also United States v. Christopher, 273 F.3d 294, 297 (3d Cir. 2001) ("[T]he rule followed almost unanimously by the [federal] Courts of Appeals is that a conviction abates on the death of the accused before his appeal has been decided."). Following the dismissal of the defendant's case as abated ab initio, "the defendant ‘stands as if he never had been indicted or convicted.’ " United States v. Logal , 106 F.3d 1547, 1552 (11th Cir. 1997) ; quoting United States v. Schumann , 861 F.2d 1234, 1237 (11th Cir. 1988).
Abatement claims to satisfy two main principles of law: the punishment principle and the finality principle. In terms of the punishment principal, from a practical standpoint, efforts to punish a guilty defendant as part of a criminal proceeding are entirely defeated by the death of defendant, therefore dismissal due to abatement provides an end to the criminal action as the ability to punish has been thwarted. Turning next to the finality principle, abatement removes criminal convictions that do not have the necessary basis of confidence to support finality, since the appeals process has yet to be, and theoretically cannot be, exhausted. United States v. Moehlenkamp , 557 F.2d 126, 128 (7th Cir. 1977) ; citing Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 100 L.Ed. 891 (1956).
Tim E. Staggs, Legacy of A Scandal: How John Geoghan's Death May Serve As an Impetus to Bring Abatement Ab Initio in Line with the Victims’ Rights Movement , 38 Ind. L. Rev. 507, 515 (2005) ("In both state and federal courts, opinions are easily found suggesting that abatement is an appropriate remedy when a defendant dies because the defendant is no longer available to receive his punishment."); Harvard Law Review, Second Circuit Decision Illustrates Harms of Abatement Doctrine : United States v. Brooks , 131 Harv. L. Rev. 1147 (2018) ; Rosanna Cavallaro, Better Off Dead: Abatement, Innocence, and the Evolving Right of Appeal, 73 U. Colo. L. Rev. 943, 954 (2002).
The origin of the doctrine of dismissal by abatement is not completely clear, but scholars have opined that the abatement doctrine arose during medieval times, carried through to English common law and eventually made its way to the American colonies, as a purely clerical necessity arising from privatized prosecutions before the institution of public prosecutors. In situations where an aggrieved party was responsible for bringing charges against a wrongdoer, no further recompense existed once the defendant had died. For example, in an 1848 civil action, the United States Supreme Court held that "all private criminal injuries or wrongs, as well as all public crimes, are buried with the offender." United States v. Daniel , 47 U.S. 11, 14, 6 How. 11, 12 L.Ed. 323 (1848). The issue of abatement appeared before the Supreme Court again forty years later, but this time in the form of a criminal case. In State of Pennsylvania v. List, 131 U.S. 396, 9 S.Ct. 794, 33 L.Ed. 222 (1888), the Supreme Court dismissed the defendant's prosecution, holding that the death of the defendant abated the case. In Durham v. United States , 401 U.S. 481, 482, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971), the Supreme Court, following the majority of the Circuit Courts, briefly adopted the principle of abatement ab initio , or "from the beginning," arguing that the death of the defendant not only abated the appeal of a conviction, but also abated the conviction itself. The Court then instructed that the appeal be dismissed as abated and remanded the case to the trial court for the case to be dismissed. Id. This position was quickly reversed five years later by Dove v. United States , 423 U.S. 325, 96 S.Ct. 579, 46 L.Ed.2d 531 (1976), where the Court opined that only the petition for certiorari would be dismissed as abated by death and the underlying conviction would remain in place, citing to the fact that the Supreme Court's review of the appeal was discretionary in nature. For the most part, the Circuit Courts have not adopted the Supreme Court's ruling in Dove and instead continue to abate ab initio, remanding the cases to their courts of origin for dismissal. In applying this practice, most of the Circuit Courts cite the difference between the discretionary review by the Supreme Court once a writ of certiorari has been granted compared to obligatory review by the Circuit Courts. However, in recent years, the Second Circuit has invited Congress to make changes to victim's rights laws to better combat the often unjust outcomes as a result of abatement. See United States v. Libous , 858 F.3d 64, 68 (2d Cir. 2017) ("We recognize that the consequences of abatement can be unsettling. In certain cases, they can surely be devastating to those affected by the defendant's conduct. The inclination to allow some component of the deceased defendant's punishment to stand is therefore an understandable one."); See also United States v. Brooks , 872 F.3d 78, 89 (2d Cir. 2017).
Roger L. Michel Jr., Esq., Out with the Old: The Demise of the Abatement Doctrine in Massachusetts , 102 Mass. L. Rev. 1, 5 (2020) ("[T]o the extent that there was ever any policy justification for the abatement doctrine, it likely lies in medieval times, when victims were largely left to private remedies, even in the case of criminal matters. When a criminal offense--including murder--occurred, a victim was entitled to seek compensation from the putative defendant. If the latter died before such compensation could be collected, however, the cause was said to "abate"--that is, the injured party lost his right to obtain relief."); see also Richard R. Colina, Dead to Rights: Jeffrey Epstein and the Perverse Consequences of Abatement, 56 No. 4 Crim. Law Bulletin ART 3 (Summer 2020) ("Early United States criminal justice typically involved the average citizen claiming justice by their own hands. Public prosecutors tasked with trying alleged criminals first appeared in the 1820s. That was the start of "uniformity" to the American criminal justice system."); see also Timothy A. Razel, Dying to Get Away with It: How the Abatement Doctrine Thwarts Justice-and What Should Be Done Instead , 75 Fordham L. Rev. 2193, 2198 (2007) ("There is little historical writing about the doctrine before the nineteenth century. Beginning in the late nineteenth century, the earliest American cases dealing with the question generally treated abatement as the obvious course of action when a defendant died.").
II. Abatement Law in New York State
In New York State, when a defendant dies after a conviction but before sentencing or before perfecting an appeal, Courts are instructed to abate any outstanding appeals and remand the case to the trial court for vacatur of the conviction and dismissal of the indictment. People v. Mintz , 20 N.Y.2d 770, 284 N.Y.S.2d 77, 230 N.E.2d 722 (Ct. App., 1967) ; People v. Matteson , 75 N.Y.2d 745, 551 N.Y.S.2d 890, 551 N.E.2d 91 (Ct. App., 1989) ; People v. Griggs , 306 A.D.2d 122, 762 N.Y.S.2d 246 (1st Dept., 2003) ; People v. Grana, 32 A.D.3d 1052, 823 N.Y.S.2d 224 (3rd Dept., 2006).
The manner of the defendant's death holds no significance when it comes to abatement: the Court of Appeals has specifically held that a defendant's suicide should not be deemed a voluntary abstention from further proceedings and should therefore not "be deemed a waiver or forfeiture of the right to appeal." Matteson , supra , at 747, 551 N.Y.S.2d 890, 551 N.E.2d 91.
III. National Trends in the Application of Abatement
While abatement as a strict application still exists in some states, New York included, it is not only the minority rule, but an increasingly remote one. "The national trend over the past three decades [ ] has been decidedly away from abatement." From the 1990s to today, at least TWENTY states have abandoned the practice of abatement ab initio. In doing away with abatement, courts across the country have opined that the doctrine is outdated because it refers back to a time when convictions were considered to be solely punitive, not restorative, in nature and finding that the practice of abatement fails to account for the impact that the erasure of the criminal action would have on victims of crime."The emerging approach to abatement, in jurisdictions where the practice has been seriously tested in recent years, has been either to abandon the doctrine altogether, or to transform a needlessly rigid and legally unsupportable rule into a flexible standard attuned to modern conceptions of victim's rights." This trend supporting the rights of victims is also visible in the legislature: over the last thirty years, thirty-six states have adopted constitutional amendments incorporating victims’ rights. Notably, while New York State has passed several statutes aimed at protecting and aiding of victims of crime, New York has not adopted a constitutional amendment incorporating these rights. Legal scholars have opined that, in the face of these restorative reforms, abatement "stands as an obsolete bulwark that deprives victims even a breath of justice." While likely considered one of the more obscure aspects of criminal law, abatement has been a topic at the forefront of public debate since the early 2000s, thanks to a string of high-profile cases where the application of the abatement doctrine led to seemingly unjust outcomes.
Alabama (2005): Wheat v. State , 907 So. 2d 461 (Ala. 2005) : ("We today choose a mean between the two extremes of assuming, on the one hand, that had the appeal not been dismissed because of the defendant's death, the conviction would have been reversed with instructions to enter a judgment of acquittal or, on the other hand, that had the appeal not been dismissed because of the defendant's death, the conviction would have been affirmed on appeal. We therefore hold that when a person convicted of a crime dies while an appeal is pending in the Court of Criminal Appeals and that court abates the appeal, [ ] by reason of the death of that person, the Court of Criminal Appeals shall instruct the trial court to place in the record a notation stating that the fact of the defendant's conviction removed the presumption of the defendant's innocence, but that the conviction was appealed and it was neither affirmed nor reversed on appeal because the defendant died while the appeal of the conviction was pending and the appeal was dismissed."); Alaska (2011): State v. Carlin , 249 P.3d 752, 754 (Alaska 2011) : ("We hold that when a criminal defendant dies after filing an appeal, or a petition for hearing which has been granted, the defendant's conviction will stand unless the defendant's personal representative elects to continue the appeal."); Arizona (2020): State v. Reed , 248 Ariz. 72, 81, 456 P.3d 453 (2020) (Holding that a defendant's pending appeal would be dismissed upon his death, but the underlying conviction would stand, further holding that a substitute defendant could continue the appeal on the defendant's behalf, finding that "[t]his approach respects both victims’ rights and interests held by society and the defendant's family and estate."); Connecticut (1998): State v. Trantolo , 209 Conn. 169, 549 A.2d 1074 (1988) (dismissing appeal as moot but allowing the underlying conviction to stand); Hawai'i (1995): State v. Makaila , 79 Haw. 40, 45, 897 P.2d 967, 972 (1995), opinion after reinstatement of appeal , 83 Haw. 411, 927 P.2d 419 (1996) ("When a criminal defendant dies pending a discretionary petition to this court, the petition will be dismissed as moot, and the conviction will stand."); Idaho (2005): State v. Korsen , 141 Idaho 445, 450, 111 P.3d 130 (2005) ("Thus, by virtue of the substantial changes brought about by the above-referenced provisions, particularly the victims’ rights provisions, we hold that a criminal conviction and any attendant order requiring payment of court costs and fees, restitution or other sums to the victim, or other similar charges, are not abated, but remain intact, in the event of the defendant's death following conviction and pending appeal. Such provisions are compensatory in nature and public policy does not favor their abatement. Provisions of the judgment of conviction pertaining to custody and incarceration are necessarily abated upon death without the necessity of a court order."); Louisiana (2022): State v. Gleason , 2021-01788 (La. 11/10/22), 349 So. 3d 977, 982—83, reh'g denied , 2021-01788 (La. 2/15/23), 362 So. 3d 339 ("The abatement ab initio doctrine is obsolete and inconsistent with our positive law. To abate a conviction would be as to say there has been no crime and there is no victim. Accordingly, we abandon the doctrine and hold that when a defendant dies during the pendency of an appeal, the appeal shall be dismissed and the trial court shall enter a notation in the record that the conviction removed the defendant's presumption of innocence but was neither affirmed nor reversed on appeal due to the defendant's death. Notwithstanding our decision to overrule Morris , we urge the legislature to address this issue considering the competing interests of the positive law discussed in this opinion, the wealth of authorities from other jurisdictions, and input from the relevant stakeholders in the criminal justice system."); Massachusetts (2019): Commonwealth v. Hernandez , 481 Mass. 582, 599, 118 N.E.3d 107, 121 (2019) ("As we have been unable to discern a reasoned analysis for the adoption of the abatement ab initio doctrine, and in any event, we are presented with substantial reasons it should be changed, we conclude that we will no longer follow the doctrine when a defendant dies during the pendency of a direct appeal as of right challenging a conviction. Instead, upon the death of the defendant, the appeal shall be dismissed as moot and the trial court shall be instructed to place in the record a notation stating that the defendant's conviction removed the defendant's presumption of innocence, but that the conviction was appealed from and it was neither affirmed nor reversed on appeal because the defendant died while the appeal was pending and the appeal was dismissed."); Maryland (2006): Surland v. State , 392 Md. 17, 36, 895 A.2d 1034, 1045 (2006) ("We opt for the following: Upon notice of the death of the appellant [ ], all time requirements applicable to the deceased defendant and the setting of the case for argument (if that has not already occurred) will be automatically suspended in order to allow a substituted party (1) to be appointed by the defendant's estate, and (2) to elect whether to pursue the appeal. If a substituted party is appointed and elects to continue the appeal, counsel of record will remain in the case, unless the substituted party, contemporaneously with the election, obtains other counsel. If no substituted party comes forth [ ] and elects to continue the appeal, it will be dismissed, not for mootness but for want of prosecution, and, as with any appeal that is dismissed, the judgment will remain intact."); Michigan (1995): People v. Peters , 449 Mich. 515, 537 N.W.2d 160, 163 (1995) ("The conviction of a criminal defendant destroys the presumption of innocence regardless of the existence of an appeal of right."); Mississippi (2019): Payton v. State , 266 So. 3d 630, 640 (Miss. 2019) ("Because of the increased recognition of crime victims in both our Constitution and statutory law, we find that departure from the abatement ab initio doctrine is necessary to avoid the perpetuation of pernicious error. The abatement ab initio doctrine tramples upon victims’ rights by denying victims "fairness, respect and dignity." Moreover, we find that the policies undergirding stare decisis—consistency and definiteness in the law—are not served by continued application of the abatement ab initio doctrine.") (internal citations omitted) ; Nevada (2014): Brass v. State , 130 Nev. 318, 322, 325 P.3d 1256 (2014) ("We now adopt the position articulated in Makaila and allow a deceased criminal defendant's direct appeal to continue upon proper substitution of a personal representative [ ] when justice so requires. This approach allows all parties to present arguments, and then, the court can make an informed decision regarding the validity of the deceased appellant's conviction.") (internal citations omitted) ; North Dakota (2023): State v. Isaak , 988 N.W.2d 250, 253 (N.D. 2023) ("We conclude the common law doctrine of abatement ab initio is inconsistent with N.D. Const. art. I, § 25. Although a criminal defendant may have enjoyed a statutory right to appeal before his death, deceased individuals’ statutory rights cannot prevail over the constitutional rights of the living. Abatement of criminal convictions would foreclose victims’ rights to fair treatment under the law and to meaningfully participate in the criminal justice system."); Ohio (1987): State v. McGettrick , 31 Ohio St. 3d 138, 144, 509 N.E.2d 378 (1987) ("Accordingly, we determine that if a convicted defendant in a criminal case dies prior to filing a notice of appeal, the decedent's personal representative or, if he has no personal representative, his attorney of record, may file the notice of appeal on his behalf. Absent such timely notice of appeal, the original judgment of conviction shall stand with full force and effect as a valid, subsisting judgment of the trial court."); Oklahoma (2020): Majors v. State , 2020 OK CR 5, ¶ 7, 465 P.3d 223, 225 ("Oklahoma has no statutory or constitutional provision defining a course of action to be taken when a defendant dies pending resolution of a direct appeal in a criminal matter. After reviewing the briefs of the parties and the various procedures and approaches taken by the individual States in addressing the abatement issue, this Court will no longer abate appeals ab initio."); South Dakota (1997): State v. Hoxsie , 1997 S.D. 119, 14, 570 N.W.2d 379, 382 (" Hoxsie, by his death, may gain no greater rights than any other appellant to this Court, therefore his judgment of conviction stands."); Texas (2002): State v. McCaffrey, 76 S.W.3d 392, 393 (Tex. Crim. App. 2002) ("We agree that the proper disposition is dismissal of the appeal rather than permanent abatement."); Tennessee (2019): State v. Al Mutory , 581 S.W.3d 741, 750 (Tenn. 2019) ("We conclude that the doctrine of abatement ab initio must be abandoned because it is obsolete, its continued application would do more harm than good, and it is inconsistent with the current public policy of this State, as reflected in the constitution, in statutes, and in recent judicial decisions. Changes to Tennessee law in the arena of victims’ rights have expanded the purpose of the criminal justice system well beyond the cardinal principle of punishment. Furthermore, abatement ab initio prioritizes the reputation of a deceased criminal and the financial interests of the criminal's estate over society's interest in the just condemnation of a criminal act and a victim's right to restitution."); Utah (1993): State v. Christensen , 866 P.2d 533, 535 (Utah 1993) ("In Fanalous, we stated the issue to be decided as "Has the appeal abated?" and we concluded that it had. We did not go further, as we are now urged to do, and wipe out the conviction as if the defendant had never been charged. As will be seen infra , a number of courts have declined to so rule. Some older cases from other jurisdictions state that the conviction abates "ab initio. " We have never subscribed to that extreme and now discredited theory, however, and we do not adopt it now. More recent cases reject the abates-ab-initio theory and instead simply abate or sometimes dismiss the appeal."); Washington (2006): State v. Devin, 158 Wash.2d 157 , 142 P.3d 599, 605-606 (2006) (Holding that abatement ab initio "conflicts with modern laws that compensate crime victims for their suffering").
Michel Jr., supra note 2, at 11.
National Victims’ Constitutional Amendment Passage: Map of State Victim Rights Amendments. Available at: http://www.nvcap.org/states/stvras.html. (last visited Aug. 3, 2023)
Office of the New York State Attorney General, Index of Key Victim-Oriented State Statutes 2006 , Available at: https://ag.ny.gov/resources/individuals/policing-issues/victims-rights (last visited Aug. 3, 2023).
Colina, supra note 2.
The practice of abatement ab initio seems to have first hit national headlines in 1994, when John Salvi was tried, found guilty, and sentenced to two consecutive life terms of imprisonment following his attacks on two abortion clinics in Brookline, Massachusetts that left two women dead and five others seriously injured. The defendant committed suicide while incarcerated, after having filed an appeal of his conviction. The appellate court dismissed the defendant's appeal and remanded the case to the trial court to dismiss the defendant's conviction and the indictment, because the defendant's appeal had not been, and could not be, resolved. In addition to the impact this abatement had on the victims and their families, the abatement of Salvi's conviction was then used by the Bureau of Alcohol, Tobacco and Firearms, Planned Parenthood Federation of America, Inc., and the National Abortion Federation as an excuse to try and deny Richard J. Seron, a security guard at Preterm Health Services, the $100,000 reward that they had placed on the case. On the day of Salvi's second attack, Seron disregarded directives not to confront Salvi in order to try to save as many staff members and patients as possible. Seron was shot four times in the process and was credited with saving the lives of at least nine others present in the clinic that day.
Cavallaro, supra note 1 at 943.
Barry A. Bostrom, J.D., et al., John Salvi III's Revenge from the Grave: How the Abatement Doctrine Undercuts the Ability of Abortion Providers to Stop Clinic Violence , 5 NY City L. Rev. 141, 150 (2002), quoting letters from attorney John H. Henn, Foley, Hoag & Eliot LLP, Boston, MA, and Jennifer Blasdell, Esq., Staff Attorney, NAF, to attorney Barry A. Bostrom (Jan. 28, 2000) ("In Massachusetts, it has also been the law that the death of the accused pending appeal from a judgment of conviction vacates the judgment ab initio. That is precisely what happened in the case of Salvi, whose counsel filed a motion to vacate, which was granted under well-established law. Consequently, there was no ‘conviction’ and the conditions to reward described in your letter were not met.").
Abatement again made headlines in 2003 in relation to the Catholic Church Sex Abuse Scandal, when defrocked Roman Catholic Priest John Geoghan was murdered in his prison cell by a fellow inmate while he was serving a sentence on child sexual abuse charges. Geoghan's case was highly publicized as it was "the first successful prosecution of a priest many considered to be protected by an epidemic of cover-ups by the Catholic Church." At the time of his death, Geoghan stood convicted of only one count of abuse; there were still hundreds of outstanding allegations by other survivors. Following Geoghan's death, the Massachusetts appellate court dismissed Geoghan's appeal as abated by death and remanded the case to the trial court to be vacated and dismissed ab initio, restoring Geoghan to the status equivalent to "presumed innocence."
Staggs, supra note 1.
Id. at 507-08.
Id. at 508.
Three years later, in 2006, Enron CEO Kenneth Lay was convicted of multiple counts of fraud, conspiracy and related crimes which led to the collapse of the company and losses of $2 billion to various pension plans. United States v. Lay , 456 F. Supp. 2d 869, 870 (S.D. Tex. 2006). While awaiting his sentence, Lay died of a heart attack. Id. at 870. Following the doctrine of abatement ab initio, the United States District Court for the Southern District of Texas vacated Lay's conviction and dismissed the indictment. Id. at 875 .
Abatement next entered the realm of public debate in 2016, when David H. Brooks, the CEO of military supply company DHB Industries, died of a heart attack in prison after being convicted of several securities fraud charges and sentenced to 17 years in prison along with fines and restitution fees totaling over $10 million, not including restitution that had yet to be calculated on Brook's outstanding charges. At the time of his passing, Brooks had not yet perfected his appeal, thus allowing his estate to move to dismiss the conviction as abated by death. Based on the abatement, the United States Court of Appeals for the Second Circuit would later hold that "when a criminal conviction abates upon the death of a defendant, any restitution ordered as a result of that conviction must also abate." United States v. Brooks , 872 F.3d 78, 89 (2d Cir. 2017). However, the Second Circuit noted that this might frustrate Congress’ intent to provide restitution to victims of crime, and through its decision invited Congress to amend the language of the victim's compensation laws to account for cases where the conviction is abated by death:"
Colina, supra note 2.
Id.
Congress's purpose may seem especially frustrated by the abatement ab initio doctrine for restitution
ordered under the MVRA ["Mandatory Victims Restitution Act"], which requires restitution to be ordered for victims of certain crimes who have suffered as a result of a defendant's conduct. Yet, because the language of the statute requires restitution in cases only where a defendant has been "convicted of an offense," we cannot separate restitution from conviction. Without a valid conviction, the statute-based restitution order must be vacated." Id. at 89—90 (internal citations omitted ).
One year later in 2017, abatement rocked the sports world in connection to former New England Patriots tight end Aaron Hernandez's death by suicide following his 2015 conviction for the first-degree murder of Odin Lloyd, which was pending appeal at the time of Hernandez's death. At that time, the state of Massachusetts still employed the doctrine of abatement ab initio , meaning that per Massachusetts law, the court had no option but to dismiss the indictment, conviction, and appeal in their entirety. Commonwealth v. Hernandez , 2017 WL 2115360 at 5 (Mass. Super. Ct., May 09, 2017). The Commonwealth appealed, asking the appellate court to instead abolish abatement ab initio from state practice. Commonwealth v. Hernandez , 2018 WL 4859904, Commonwealth's Appellate Brief, at 6-7 (Sup. Ct. Mass., June 5, 2018). After years of controversy surrounding the application of the abatement doctrine in the state of Massachusetts, the appellate court agreed, finding that, "the doctrine of abatement ab initio is outdated and no longer consonant with the circumstances of contemporary life, if, in fact, it ever was. Rather, when a defendant dies irrespective of cause, while a direct appeal as of right challenging his conviction is pending, the proper course is to dismiss the appeal as moot and note in the trial court record that the conviction removed the defendant's presumption of innocence, but that the conviction was appealed from and neither affirmed nor reversed because the defendant died." Commonwealth v. Hernandez , 481 Mass. 582, 583, 118 N.E.3d 107 (2019). Just two years later in 2019, disgraced financier and convicted child sex offender Jeffrey Epstein committed suicide while he was in federal custody facing additional child sex trafficking charges. Following his death, Epstein's pending federal case was dismissed as abated by death, but in a unique gesture, the Court invited Epstein's victims to provide statements on the record before the matter was formally dismissed "as a measure of respect that we have for the victims’ difficult decisions to come forward" and as part of "the [C]ourt's responsibility [ ] to ensure that the victims in this case are treated fairly and with dignity." United States v. Jeffrey Epstein, 19 CR 490 (S.D. NY, 2019) Abatement Proceeding Minutes at 6-7.
See, e.g. , Eric Levenson and Holly Yan, Aaron Hernandez's Murder Conviction Cleared After Suicide, Published May 9, 2017. Available at https://www.cnn.com/2017/05/09/us/aaron-hernandez-murder-conviction-abated/index.html (last visited Aug. 3, 2023).
Available at: https://docplayer.net/153402820-V-19-cr-490-rmb-new-york-n-y-august-27-30-a-m-hon-richard-m-berman-district-judge-appearances.html (last visited Aug. 7, 2023).
A mere five months before this Court's decision was issued, abatement was litigated in this very courthouse in almost an identical scenario. In People v. Ricardo Cruciani , IND-01734-20 (Sup. Ct., NY County) (Rodney, J.), the defendant, a pain management doctor, was charged with multiple sex crimes in relation to assaults he had perpetrated on six of his female patients. Following a seven-week trial during which all six victims testified, the defendant was found guilty. The defendant died by apparent suicide prior to his sentencing date. Although the Court was ultimately forced to dismiss the case as abated by death, the Court allowed each of the victims to provide an impact statement on the record. In addition to addressing the lasting trauma that they were forced to endure due to the defendant's sexual abuse, each of the victims spoke to the effect that the dismissal of the case would have on them. People v. Ricardo Cruciani , IND-01734-20 (Sup. Ct., NY County) (Rodney, J.), Decision and Order on Defendant's Motion to Vacate His Conviction and Dismiss the Indictment , at 2-3. The victims described the practice of abatement as "cruel," "unfair," and revictimizing. Id. One victim stated that, "she could not ‘imagine a scenario where [she was] being told that the last five years of her life and the damage done to [her] health would have been for nothing." Id.
Absent a change in the law, this case is next to be added to the list of seemingly unjust outcomes. Here, this child complainant, after years of being abused and subsequently emotionally neglected by her own family members, took the brave step of coming forward with the aide of her aunt and disclosed the sexual abuse she endured at the hands of the defendant. She then went on to endure the traumatizing effects of recounting these events not only to police officers, but then to prosecutors, grand jurors, and likely prepared to recount her story yet again to a trial jury before the defendant pled guilty on the eve of opening statements. Rewarding this child's bravery by dismissing the criminal case against her abuser, who had already pled guilty, equates to a miscarriage of justice that is inconsistent with societal trends relating to victim's rights.
IV. Abating Abatement: Alternatives To Abatement that Preserve Defendant's Rights to Appeal while Taking into Account Victim's Rights
There must be a better way to balance the appellate rights of a defendant with the rights of complainants, especially the rights of survivors of sexual abuse. But how do we abate abatement? Courts and legal scholars have presented several alternatives that would preserve the defendant's appellate rights as well as the rights of the victims. These options include: (1) allowing for a "substitute defendant" who can bring the appeal on the defendant's behalf; (2) allowing courts to hold abatement hearings where the court would be able to weigh the varying factors and make a decision as to whether the case should or should not be abated; (3) making a notation in the trial court record that the defendant's conviction removed his presumption of innocence but the conviction never had an opportunity to be appealed because the defendant died.
Alexander F. Mindlin, Abatement Means What It Says: The Quiet Recasting of Abatement , 67 N.Y.U. Ann. Surv. Am. L. 195, 232—33 (2011) ; see also Commonwealth v. Hernandez , 481 Mass. 582, 583, 118 N.E.3d 107 (2019) ; see also Razel, supra note 2 at 2211.
A. Substitute Defendants
The first alternative to abatement suggested by scholars and implemented in other jurisdictions is considered the "moderation" approach, wherein a substitute party is permitted to continue and resolve an unperfected appeal. This approach attempts to balance the rights of the victims as well as the rights of a decedent defendant. For the victims, it protects their right to not only the satisfaction of a criminal conviction but also their right to restitution ordered as part of the criminal case. It also protects their interests in any related civil lawsuits that might still be pending against the defendant and his estate. In this situation, a family member or legal representative would be allowed to perfect the defendant's appeal as a "substitute defendant," thus preserving the defendant's right to appeal and absolving the court of the need to vacate the conviction and dismiss the indictment. "This doctrine, currently recognized in [over a dozen] states, affords defendants their right to post-trial review, gives defendants’ families the opportunity to appeal the conviction and thus the restitution orders without unjustly forcing them to pay compensation to anyone, and mitigates the problems caused to third parties in subsequent civil proceedings. [ ] Substitution also ensures that victims maintain the possibility of receiving restitution, allows the record to legally reflect the conviction's existence for subsequent civil proceedings (like insurance payments), and mimics what might have happened if the defendant lived to see his appeal through."
Razel, supra note 2 at 2217, citing State v. McGettrick , 31 Ohio St.3d 138 , 509 N.E.2d 378 (1987) and State v. Makaila , supra note 3.
Sabrina Margret Bierer, The Importance of Being Earned: How Abatement After Death Collaterally Harms Insurers, Families, and Society at Large , 78 Brook. L. Rev. 1699, 1702 (2013).
However, scholars note that this approach does have its downfalls. As an initial matter, the substitute defendant may not have the same interests as the defendant. For example, were a family member to request permission to perfect the appeal, they would arguably look to the decedent defendant's estate to fund the appeals process, which would run the risk of going against the family member's pecuniary interest as it relates to the division of the estate. Even if a substitute defendant were to perfect an appeal on the defendant's behalf, how can the court be sure, without word from the defendant, that the substitute defendant is following the decedent defendant's wishes? Finally, the result of the appeal would be mostly academic in nature, "[n]o judgment could be effected (barring fines or restitution) if the appeal were upheld. Thus, except in those cases that involve fines or restitution, there is no practical reason to have an appeal anyway." B. Abatement Hearings
Razel, supra note 2 at 2218.
Id.
Id.
Id. at 2219.
A second alternative to the abatement doctrine would be to permit the trial court to hold an abatement hearing. In Dying to Get Away with It: How the Abatement Doctrine Thwarts Justice-and What Should Be Done Instead , 75 Fordham L. Rev. 2193, 2223—29 (2007), Timothy A. Razel proposes that the trial court be permitted to conduct a hearing to determine whether the case against the defendant should be abated ab initio or whether the conviction should be allowed to stand. Id. at 2223. Razel opines that courts should consider and balance four main factors when making their determination: (1) restitution (and this court would add ongoing civil litigation to this consideration); (2) the heinousness of the crime; (3) the involvement of victims; and (4) the effect on the decedent's family, heirs, and next of kin. Id. at 2224. Upon hearing evidence and balancing the abovementioned factors, the court would then arrive at a determination as to whether the case should be abated ab initio or to preserve the conviction while dismissing any undecided appeals. Id. at 2226-27. Should the Court preserve the conviction, a substitute defendant could then appeal the trial court's decision, as outlined supra. Id. at 2227.
Razel goes on to explain that abatement hearings would offer courts the flexibility to take into consideration the unique circumstances of each case in order to come to the fairest result in each situation, efficiently resolve of the case upon the defendant's death, and provide finality to the case. Alternatively, they allow a significant degree of judicial discretion, might create a conflict between the attorney's interests and the defendant's wishes (similar to the substitute defendant proposal), and additional strain on the court system (as opposed to a blanket abatement rule). Id. at 2227-28.
C. "A Mean Between the Two Extremes": Notations in the Court Record
A minority of states, namely Alabama, Massachusetts and Louisiana employ a third alternative to abatement in which the court dismisses any pending appeals, allowing the underlying conviction to stand with a notation in the record that the defendant did not have an opportunity to appeal the conviction due to his death. In Wheat v. State, 907 So. 2d 461 (Ala. 2005), a death row defendant appealed his conviction for five counts of capital murder and later passed away while the case was pending appeal. The appellate court initially abated the defendant's case ab initio , but the state petitions the Supreme Court of Alabama for review. Upon review, the Supreme Court held:
["T]he Court of Criminal Appeals shall instruct the trial court to place in the record a notation stating that the fact of the defendant's conviction removed the presumption of the defendant's innocence, but that the conviction was appealed and it was neither affirmed nor reversed on appeal because the defendant died while the appeal of the conviction was pending and the appeal was dismissed." Id. at 464.
Understanding that these alternatives are, by no means, perfect solutions to the problems posed by abatement ab initio, at the very least they would provide courts with a mechanism to implement a more just outcome that balances the defendant's right to appeal and the victim's rights based on a review of the facts and circumstances of each case.
V. Victim Impact Statement
There is one final, important matter to address: the Victim Impact Statement. Because there is no other source of relief available to the complaining witness in this case, prior to the Court's decision on this motion, this Court inquired as to whether the victim or a representative would like to provide a statement on the record. This complainant understandably chose not to, which is her right, one of the few she seems to retain at this point in the case.
Conclusion
Absent a change in the legislation or an alternative ruling from a higher Court, this Court is bound by the existing caselaw surrounding abatement. For these reasons, this Court is required to dismiss this case as abated by death. However, the Court will dismiss the matter pursuant to CPL §§ 210.20(1)(h), on the grounds that there "exists some jurisdictional or legal impediment to conviction of the defendant for the offense charged," therefore providing the People an opportunity to appeal this matter to a higher Court.
This constitutes the Decision and Order of the Court.