Thursday, April 3, 2008

Appellate Division Rubber Stamp Denies Nowicki Appeal; Nowicki Family Remains Devastated By Wrongful Conviction

By Jeff Deskovic

In an issue of this newspaper some weeks ago, I wrote about the Steven Nowicki case. Nowicki, a former schoolteacher in Westchester, had been convicted of four counts of Sodomy In the First Degree, sixteen counts of Sexual Abuse In the First Degree, and two counts of Endangering the Welfare Of A Child. He was sentenced to 16 years in state prison. I wrote in my previous article that Nowicki’s conviction was extremely questionable, and that his case had all of the earmarks of a wrongful conviction.

I based my conclusion on several factors: 1) that one of the victims gave two accounts, which alternately depicted Nowicki as innocent and guilty; 2) that prosecutorial misconduct infected the trial; 3) that the Prosecution’s theory was implausible, running contrary to common experience and common sense, and; 4) that Nowicki’s attorney was clearly ineffective. One boy gave two different accounts of what happened; and one of them cleared Nowicki by not mentioning any criminal conduct on his part, while the other implicated him, making
the story seem contrived because truthful witnesses don’t do that. The accounts they gave of a traumatic event might have contained minor differences because of memory not having been perfect, particularly given the trauma, shock, and the inability to recall everything down to the very last detail. But, those elements do not normally lead to alternately characterizing an assailant as innocent, and then guilty.

Prosecutorial misconduct occurred in that the Prosecutor was aware that it was improper to elicit hearsay testimony by introducing the alleged victim’s story through each and every witness, improperly bolstering their account. As I previously wrote, the trial judge was even concerned about this factor, stating, “I’m getting disturbed here, because, first of all, you’re bringing in the victim’s stories through every
single witness, and no objection.” Similarly, it was improper for the Prosecutor to preempt any of Nowicki’s defenses before he even asserted them by asking police officer witnesses if Nowicki ever mentioned this or that, in effect heading off any defense before he even got a chance to raise it.

The reason that this is unfair is that it would require somebody to set forth every fact that they could before they were ever arrested. The Prosecution’s theory was implausible in a variety of ways. The notion that Nowicki feigned being drunk by stumbling out of the door, and then again in his car putting his face on the steering wheel pretending to sleep, in hopes that Peter Losee will come out and invite him back inside the house so that he could molest the children, is ludicrous. Further, the notion that while in bunk beds, one boy was molested by Nowicki, and then as Nowicki climbed up the ladder and molested the other one, the first victim did not get up and run to his parents,
scream or holler, is highly improbable. And, finally, the report that Nowicki, had he committed such acts, would be found sleeping in the doorway of the boys’ room is totally absurd.

Nowicki’s trial attorney was ineffective in that:

• He failed to object to inadmissible and highly prejudicial hearsay testimony concerning prior consistent statements made by child witnesses to each other, their parents, police, and medical personnel;

• He failed to object to inadmissible expert testimony that Nowicki’s DNA was found on one of the children’s genitals, because no foundation had been laid to establish the integrity of the samples tested, and the existence of an unaccounted for saliva sample
that could have cross-contaminated the tested samples;

• He conceded that Nowicki’s saliva was on the child’s genital area when the evidence did not establish that any saliva was found there;

• He failed to object to the Prosecutor’s repeated and improper efforts on direct examination and cross-examination of Nowicki, to adduce otherwise inadmissible evidence regarding his post-Miranda silence;

• He failed to object to inadmissible lay opinion testimony from party guests that Nowicki was involved in inappropriate behavior with an alleged child victim prior to the alleged sexual contact;

• He failed to object to a jury charge request made by the Prosecutor, which thereby shifted the burden of proof from the prosecution to the defendant. As also noted previously, the Prosecution countered the challenges to the ineffective assistance of counsel issue on appeal by arguing that:

• The failures to object were based upon strategy;

• The fact that his trial attorney told the judge that there was a reason that he was not objecting and therefore letting it in was proof that it was strategy, in that by allowing all of these accounts to be testified to showed discrepancies;

• That the DNA had proper foundation, and that this, too, was strategy;

• That the Defendant chose to waive his Miranda Rights and answer some questions, and therefore that he could be cross-examined about his failure to inform the police about exculpatory circumstances;

• That the questioning of the lay witnesses was within the limit of what the Judge allowed, and to the extent that it went beyond it, it was a strategic decision by the lawyer;

• That the People had a right to request the jury instruction.

To summarize my analysis of the arguments on both sides, I had drawn the common-sense conclusion that for Nowicki’s attorney to allow all of the unobjected events to go on, he was not protecting his client’s rights, nor affording him the counsel that all of us are
entitled to as guaranteed by the Sixth Amendment, and there was no strategy or strategic benefit to his not objecting and his general failure to act. And thus, the jury verdict could not be relied upon. The prosecutorial misconduct made the verdict of guilty even less reliable.

The Appellate Division decision is reprinted here as follows: The People, etc., Respondent, v Steven Nowicki, Appellant. Scott B. Tulman, New York, N.Y., for Appellant. Janet DiFiore, District Attorney, White Plains, N.Y. Lois Cullen Valerio, Richard Longworth Hecht, Anthony J. Servino, of counsel, for Respondent. DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Westchester County (Smith, J.), rendered January 24, 2001, convicting him of sodomy in the first degree (4 counts), sexual abuse in the first degree (16 counts), and endangering the welfare of a child (2 counts), upon a jury verdict, and imposing sentence. ORDERED that the judgment is af-firmed. The defendant’s contention that he was denied the effective assistance of counsel is without merit. The record demonstrates that defense counsel effectively cross-examined the People’s witnesses, delivered a cogent opening and closing statement, and presented a plausible defense (see People v Dolan, 2 AD3d 745, 747; People v Groonell, 256 AD2d 356, 357). The specific errors of defense counsel raised by the defendant either reflect the defendant’s disagreement with reasonable trial tactics and strategies, or are not so serious as to deprive the defendant of a fair trial (see People v Rose, 307 AD2d 270, 271). Thus, the defendant was provided with meaningful representation (see People v Baldi, 54 NY2d 137, 147). SKELOS, J.P., FISHER, DILLON and McCARTHY, JJ., concur.

• • •

The Appellate Division has long been in the practice of rubber stamp denying defendants’ appeals and writing perfunctory opinions that do not address the merits of the issues raised. Such decisions amount to little more than the appellate version of a show trial. Their opinion, in the Nowicki case, is a clear example of that practice. For example, rather than addressing the Defendant’s specific challenges to his former lawyer’s deficiencies, to wit, the failure to object to all of the errors as well as conceding to the Defendant’s alleged saliva on the alleged victim’s genitals when the evidence did not establish it, they instead state that his lawyer cross-examined witnesses and delivered an opening and closing statement, as if these things, by themselves, meant that the lawyer was competent regardless of whatever else he did or did not do.

The failure of his lawyer to object clearly hurt Nowicki and doubtlessly impacted the verdict, in effect, depriving him of a fair trial because it allowed prosecutorial misconduct to go on unchallenged. There was nothing strategic about his lawyer virtually sitting on his hands throughout much of the trial. The Appellate Division then went on to say, as if in an attempt to cover themselves from being reversed by a
higher court, that even if some of the things were not strategy, they “were not so serious as to deprive the defendant of a fair trial”. How can a court, with a straight face, sit there and say that an error that happened in a trial as close as this one, in which the jury deliberated
for four days, did not render the verdict unreliable and thus deprive him of a fair trial? This conclusion, along with the relative shortness of their opinion which failed to deal with each and every issue he raised on the merits, is powerful evidence that they did not really consider his issues.

Steven Nowicki’s wrongful conviction has had a powerful impact on the Nowicki family. I recently visited his parents in order to discuss the all too- often neglected subject of family impact following wrongful conviction. Understandably, his elderly parents have been devastated as a result of his circumstances and the failure thus far of any court to do justice in his case. Both of Nowicki’s parents are still alive, and he has a sister as well. Rita and Stanley Nowicki are 73 and 78 years old respectively. Rita had a stroke in 2001, which has put her in a wheelchair, and Stanley has macular degeneration, which leaves him unable to see except a little bit of peripheral vision. Their medical condition prevents
them from traveling on their own to visit Steven. Instead, they get to see him twice a year, when his sister is able to take time off from work to drive them to Great Meadow Correctional Facility, where he is currently incarcerated. The two and half hour trip the facility is from their house doesn’t make things any easier. As elderly people, it requires them to stay overnight at a hotel near the prison because traveling there and back in one day would be too much of a strain on them. Difficult as it is, this long trek is shorter than what they had to deal with when he was incarcerated in Clinton, which was a 5-6 hour trip each way. When they were healthier, and he was housed in the County Jail in Valhalla, and then later on at the Downstate Correctional Facility in Fishkill, they used to travel to see him several times a week.

Holiday times are particularly hard for them, for although they have family gatherings, Steven’s absence has them feeling as though something is missing and thus it is an occasion for sadness, rather than a warm, loving and happy family time that other families enjoy. They suffered financially because of the inflated costs that prisoner’s families were charged for collect calls under Governor Pataki, an arrangement by
which the state got financial kickbacks from the phone company, who charged $7 for three minutes for collect calls that would be free to anyone else. To his credit, former Gov. Spitzer changed that policy.

Nowicki’s parents’ grandchildren, to whom Steven is an uncle, have also been affected. The knowledge of what Steven is incarcerated
for, child molestation, is kept hidden from the grandchildren, who simply have been told that he was incarcerated for “drinking too much”. The grandchildren really miss Steven and complain about it periodically. They get excited whenever they happen to be at their grandparents’ house and Steven calls, saying “Hi, Hi” and trying to get on the phone. However, if they do manage to get on the phone, he hangs up, because it is too painful for him to talk to them.

One can understand his perspective. In a way, it is a lot like receiving visits, in that afterwards, once you get past the positive emotion of seeing someone familiar, sadness, depression, and the reality of what you are missing sets in. Like many family members of the wrongfully
convicted, the Nowicki family has been caught up in a desperate attempt to understand the legal system in which their son is fighting to get a new trial and prove his innocence. They have somewhat of a grasp and an understanding about legal procedures, courts, and legal arguments, although not fully comprehending every nuance.

As I sat with them and listened to them recount the legal history of the case and some of the issues, I couldn’t help but think how sad it was that at their age, while not being involved in law, they nonetheless have had to acquire a knowledge of it, albeit one that is less than perfect. I could hear in their voices that they were motivated by their need to gain some understanding of the system that had so clearly disrupted their lives. Observing their medical infirmities, the thought crossed my mind that if Steven Nowicki were free, he would be able to tend to the needs of his parents. By all accounts that I received, he had been a good teacher, liked by parents and children alike, and was an upstanding citizen. It didn’t take much imagination to picture him caring for his parents were he free. I sincerely hope that at some point the judicial system will do the right thing in his case, exonerating him before his parents pass away.

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