NY appeals court vacates restitution in murder conviction

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In a split decision, a state appeals court has modified the restitution part of the sentence in a murder case.

Defendant Jazmine Simmons was convicted in July 2020 before state Supreme Court Justice Alex R. Renzi, of second-degree murder.

The Appellate Division of state Supreme Court, Fourth Department, recently affirmed the conviction, but vacated the restitution part of the sentence, and sent the case back to the lower court.

Simmons stabbed the victim 76 times. He was found several weeks later.

Simmons admitted that she stabbed the victim, but claimed he was still alive when she left his apartment.

Simmons’ appellate attorney, Jane I. Yoon, argued that the trial judge should not have allowed a police witness to narrate surveillance footage that was played for the jury.

“We conclude that any error in allowing the narration was harmless because the evidence of defendant’s guilt was overwhelming and there is no significant probability that the jury would have acquitted defendant if the witness’s testimony was excluded,” the Fourth Department wrote.

Yoon also argued that the judge did not adequately instruct the jury to disregard statements made by a police officer during an interview with Simmons that was played for the jury.

The Fourth Department concluded that the judge adequately conveyed to the jury the proper standards.

And the court also rejected the defense argument that the judge should have sentenced Simmons under the Domestic Violence Survivors Justice Act (DVSJA).

A judge can impose an alternative sentence when a preponderance of the evidence shows that the defendant was a victim of domestic violence “subjected to substantial physical, sexual or psychological abuse.”

A professor of psychiatry specializing in interpersonal violence testified that, based on Simmons’ prior history as a victim of abuse, and her relationship with the victim, that “domestic violence played a role” on the night of the murder.

The judge found that defendant’s testimony about her relationship with the victim “lacked credibility and that there was otherwise no evidence of abuse in her relationship with the victim,” the Fourth Department wrote.

The panel concluded that Simmons “failed to meet her burden of establishing that substantial physical, sexual or psychological abuse was a significant contributing factor to her criminal behavior.”

But the Fourth Department justices agreed that there was insufficient evidence to establish the amount of restitution imposed.

“We therefore modify the judgment by vacating that part of the sentence ordering restitution, and we remit the matter to Supreme Court for a hearing to determine restitution,” according to the decision.

Justice E. Jeannette Ogden found the 21-years-to-life sentence “unduly harsh and severe.”

“Defendant had a traumatic childhood, which included physical and sexual abuse. The presentence investigation report reveals that defendant was removed from her mother’s care when she was approximately seven years old and that she was sexually abused by her mother’s friend when her mother tried to trade sex with defendant and defendant’s sister for money and drugs,” Ogden wrote.

“After committing the crime, defendant ultimately confessed, accepted responsibility for her actions, and showed remorse at sentencing,” Ogden wrote.

“I would therefore further modify the judgment as a matter of discretion in the interest of justice by reducing the sentence of imprisonment imposed to an indeterminate term of 15 years to life in prison,” Ogden wrote.

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