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Briefs in Simmons appeal reveal very different views of facts and law for defense and prosecution

Jacquetta Simmons

In their vigorous effort to keep their client out of state prison, the attorneys for Jacquetta B. Simmons have presented arguments to the Appellate Division, Fourth District of the NY Supreme Court that challenge both her sentence and her conviction.

SImmons is the young woman who hit Grace Suozzi, then a 70-year-old cashier at Walmart on Christmas Eve 2011, and was later convicted of felony assault based on the injuries sustained by Suozzi and her age relative to Simmons, who was 26 at the time.

A year later, following a jury trial in Genesee County Court, Simmons was sentenced by Judge Robert C. Noonan to five years in prison and three years probation.

The defense contends that the sentence is harsh and excessive, that the evidence presented at trial doesn't support the finding of the jury, and even if it did, the law used to convict Simmons is unconstitutional.

District Attorney Lawrence Friedman has a differing view of the facts and the law and filed an answering brief.

Friedman said the attorneys will likely make oral arguments before the appellate court sometime in September and a ruling isn't likely before the end of the year.

Meanwhile, Simmons, now a mother, is out of prison with her sentence stayed until a decision is rendered.

Here's a summary of the defense's appeal:

The sentence is harsh and excessive.
The defense contends that under the current justice system, a judge is charged with selecting a sentence that will be best suited for rehabilitation of each defendant.

The judge should consider: 1) the nature of the offense; 2) the community's condemnation of the defendant's conduct; 3) the necessity of protection of the community; 4) the deterrent effect on others; 5) the potential for rehabilitation; and, 6) the defendant's previous record.

The defense leans heavily on the lack of criminal history for Simmons and her record of as a productive member of society, who had a job, an education and a history of volunteering in her community.

The defense contends that what Simmons did Dec. 24, 2011 -- whether it was a punch (as the prosecution maintains), a hit (the defense version) or an accident (the defense's argument at trial) -- it was "out of character" for a young woman admired by those who really know her.

While the prosecution maintained at sentencing and in its answering brief that Simmons has shown no remorse, the defense -- attorneys Earl Key and Anne Nichols -- are adamant in briefs that Simmons truly regrets her actions that busy shopping day in Walmart.

They state that at trial, Simmons admitted that she had opportunities to tone down the conflict at Walmart, but proceeded in a manner that eventually led to a harmful result.

"I still hold no hate or bitterness for Grace," Simmons said at trial. "I wish I had stop(ped) my movements before I pulled away then maybe there would have been no harm to her. I would take back that moment a million times."

The defense notes that the Probation Department, in its pre-sentence report, recommended a community-based (no jail time) sentence for Simmons.

The defense also cites several convictions in New York where defendants convicted of more serious crimes were given no more than five years in prison, or were given harsh sentences that were later reduced by the appellate court.

The verdict went against the weight of the evidence.
The defense has a different version of events and sees the testimony differently than the prosecution.

Whereas the prosecution argued at trial that Simmons planted her foot, swung back her arm and took a round-house punch that knocked Suozzi across the floor and caused facial fractures, the defense argues there is a different narrative that the jury did not fully consider.

The defense says the evidence presented at trial shows that Simmons was attempting to leave the store when Suozzi stepped in front of her and another Walmart employee grabbed the arm of Simmons, causing Simmons to swing it forward, striking Suozzi unintentionally.

According to the defense brief, Suozzi and other witnesses either forgot key facts or changed their testimony from their original statements to police in a manner that exaggerated events (Dylan Phillips, for example, was the only witness who testified that Simmons used the C-word at trial and was 15-20 feet away from the altercation).

On the other hand, according to the defense, Simmon's has remained consistent in her statements from the time of her arrest through her testimony.

"She maintained from day one that someone grabbed her arm from behind as she was pulling away as Ms. Suozzi came out from her register to confront her when she was struck," the defense states in its brief.

The defense contends also that Suozzi overstated the nature of her injuries at trial. The brief says that medical records provided to the jury show that her doctor wrote the month after the incident that her fractures were healed and that doctors' notes state that she said she wasn't taking pain medication (at trial, she said she took prescription pain pills for two weeks before switching to Tylenol).

The defense concludes, "... even in viewing the evidence in a light most favorable to the People, that the verdict of guilt is against the weight of the evidence and should be overturned."

The statute is unconstitutional.
After the basic felony assault charge against Simmons was thrown out because Noonan ruled that the grand jury had not received sufficient evidence that Simmons intended to cause serious physical injury, the prosecution was left with only one felony count to try.

That count is a relatively new law that makes it a felony for a person much younger than a person over 65 to cause injury to an older person.

It's often referred to as an elder abuse law.

The dispute between the defense and the prosecution over the law hangs on an arcane legal term, "strict liability."

Think of getting a speeding ticket: If you are driving in Corfu, going 55 mph in a 35 mph zone, it's no defense that you didn't know the posted speed limit was 35. You were going 55 in a 35 mph zone. You're guilty. Period.

In the Simmons case, the prosecution -- and Noonan agreed -- that Simmons need not have knowledge of her victim's exact age to violate the law. That's strict liability.

The defense contends the Legislature, in passing the law, did not intend strict liability, that in order to violate the law, the defendant would need to have knowledge of the victim's age.

"The grammatical construction," the defense writes, "of the statute couples the culpable mental state with the requirement that the actor cause injury to 'such person' which literally reads as an intent element requiring the defendant to have intended to assault a person age 65 years or older, which thereby requires knowledge of the victim's age."

Also, the legislation was enacted, the brief states, to deal with predatory attacks on seniors.

"The case of Ms. Simmons and Ms. Suozzi is certainly not one of a predatory attack," the defense states.

That statute as written, the defense contends, denies a defendant due process under the Fifth and Fourteenth amendments.

The prosecution answers.
The brief from the District Attorney's office, written by ADAs Will Zickl and Melissa Cianfrini, argues that the defense is wrong on both the law and the facts.

Key to the prosecution's case is what Simmons knew and when she knew it, and that isn't a matter of Suozzi's age, but whether Simmons intended to strike her.

While the defense has portrayed the act of Simmons hitting Suozzi as an accident, the prosecution states that in testimony and evidence, Simmons clearly knew what she was doing and why she did it, and has never shown remorse for her actions.

When Simmons was interviewed by Trooper James Baines the night of Dec. 11, 2011, Simmons waived her Miranda rights. Simmons asked to review the surveillance footage from Walmart.

Baines testified that Simmons then said, "someone grabbed her. She doesn't remember what happened. She just punched."

According to Baines, Simmons knew Suozzi was taken to a hospital, but never asked about her well being.

At trial, under cross-examination, Simmons admitted she was angry when a Walmart cashier asked her for a receipt for a prior purchase.

In a series of questions by Friedman, Simmons was asked about punching Suozzi, with Friedman repeatedly using to the word punch, and Simmons never corrected his use of that word.

At the end of the series of questions:

Q. She was a foot away from you, right in front of you, when you punched her, isn't that what you just said?
A. Yes.

Simmons also testified overhearing a woman in the Walmart parking lot after she and her brother ran out of the store saying, "You can't hit a white woman like that." 

Under questioning from Friedman, Simmons said that contrary to the testimony of Baines, she did ask if Suozzi was hurt.

Q. You asked how she was before he showed you the video?"
A. Yes, I did.
Q. So, before you ever knew you hit her, you asked Trooper Baines how she was, right?
A. Yes.

When it comes to the conviction, the prosecution states, "the testimony of the People's witnesses was essentially harmonious and, together with the video evidence offered by the People, painted a clear picture of the case. The defendant was hostile and increasingly aggressive during the incident, and the vicious punch the defendant administered evinced her intent to cause physical injury to the victim."

As for the constitutional question, the prosecution contends that the trial court ruled correctly that the Legislature intended strict liability under the law and that state of mind about the age of the victim was not necessary to win conviction.

As for the sentence, the prosecution continues to maintain that Simmons has never expressed sincere remorse or any real concern for the injuries inflicted on Grace Suozzi, therefore, the five-year prison sentence should stand.

"Despite the fact that the defendant's behavior would have justified an even greater sentence, the court demonstrated lenity by imposing considerably less than the maximum amount of incarceration available to it."

In response to the prosecution's brief, Nichols filed a response with the court that argues strenuously that Simmons expressed remorse.

"At sentencing," Nichols writes, "Ms. Simmons stood up in an open court and stated, 'I just want to say how truly sorry I am about the incident that happened. I hate that Grace and her family had to endure all the things that they are going through right now."

That's remorse, Nichols said.

"Plantiff-Respondent and the sentencing court have simply chosen to not accept Ms. Simmons' statements of remorse, which is different than Ms. Simmons not showing remorse at all."

It will be up to a group of justices in Rochester to sort through these contradictory views, decide which facts hold the most weight and how the law should be properly applied.

Whatever their decision, the case won't necessarily be over, with an appeal to the state's top appeals court possible.

For previous coverage of the Simmons case, click here.

Doug Yeomans
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She punched Grace in the face. It's clear on the video. What's not to understand?

RICHARD L. HALE
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This woman hasn't served a DAY in prison? You gotta be #$%&*# ' kidding me !!

Nice justice system !!

Doug Yeomans
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It's great to be remorseful, but when you punch an elderly woman in the face, punishment is also involved..sheesh.

Peter O'Brien
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I agree that the elder abuse law is unconstitutional. No person deserves more protections under the law than anyone else.

But that doesn't mean I support Simmons in any shape or form. Just show your receipt then leave.

John Woodworth JR
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Really, I disagree with you Peter. Grace is in no shape to protect herself against Simmons, who is a large 26 years old woman and has a clear and dominate advantage over a 70 years old woman. The elderly should have more protection since; their bodies are deteriorating, loss of muscle mass and more prone to injuries. Unconstitutional? How about the right to live in which Simmons' actions risked Grace's life? If you think it is unconstitutional, "no person deserves more protections under the law than anyone else." Do you also believe it is unconstitutional that, the elderly (senior citizen) get a reduce costs at restaurants, department stores, etc... over younger patrons? I mean why should they get a break over younger individuals? Why, the elderly tend to earn less than a younger working patron. The elderly have a distinct disadvantage against a younger and more powerful aggressor.

Bob Heininger
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The elderly have also spent their lives contributing to society in one way or another. They EARNED their price breaks and extra protections they receive by law.

On the other hand, an ever growing percentage of the ("I want" or "Me") generations behind them believe that they are somehow entitled to drain from society without giving anything back.

This incident and following trials can be held up as a model example of a member of said generations completely failing to take responsibility for her own actions by choosing to blame others for them.

Bob Harker
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I submit that Simmons "remorse" is of being caught, tried, convicted, and sentenced rather than for her abhorrent actions.

John Roach
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Richard,
I still bet she will State prison time. It might not be the five year, but she'll so time.

The only thing that could get her off is the court agreeing with Peter and throwing out the elder law. But we have all sorts of laws now that give different sentences for crimes involving special groups and none have been thrown out yet.

Fred GUNDELL
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OK, Lets all agree she was wrong. The five year sentence in my opinion was way too harsh. Let face it, physical assaults happen in Batavia all the time. None of them got five years in prison. The fact that the victim was elderly should not enter into the severity of the punishment, UNLESS it was premeditated. In a moment of emotion a serious mistake was made. She should be required to pay for any medical expenses, loss of work(wages) and punitive damages. As well as some maybe a month jail time and probation. And I am one of those elderly.

Doug Yeomans
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5 years is way too harsh for punching an elderly woman in the face which resulted in broken facial bones? I'd say 5 years is minimal.

Doug Yeomans
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Fred, do you honestly believe that Grace Suozzi posed such a threat to Ms Simmons that Ms Simmons was semi-justified in taking a swing at her? C'mon. There was no reason to perceive Grace as a physical threat and to react with anger and physical force.

tom hunt
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And the lawyers are getting rich on this one. Who is paying the bills for the defense?? I know who is footing the prosecution.

Kyle Couchman
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I attended this trial and I have to say. I heard (barely) Jaquetta 's statement, there was no remorse in it at all. Sorry to pick on your opinion Fred but from what I have seen, this is what people like Jaquetta depend on, I don't mean people of color but people of an entitlement frame of mind. I have seen friends of my own stepson in the 20 -30 yr old range say they will beat the hell outta someone because when they go to court, their record is ok so they will AOC or get probation and a fine. Big deal they say. So not upholding the sentence in THIS case which had so much publicity and such just undermines all the justice system stands for.

This same attitude is also applied to children, 12 to 14 yr olds start commiting crimes and when they enter the court system they aren't treated like they did anything wrong, they get a scolding and sent on their way. Then they begin doing more serious crimes til they reach that magical age of 17 then they are treated like adults, by then its way to late. I say go back to prosecuting the crime based on the crime, not the age of the perpetrator. Shoplifting and fighting?...ok then age can be a factor, armed robbery, stabbings and shootings?, nope treat them like adults, murder? well again treat them like adults based on the circumstances of the murder.

Otherwise all we are doing is undermining the the whole system and showing the offenders that if they play games they can get away with quite a bit. Which leads to them being more bold in the nature of their crimes. As it is now decent people turn their heads in neighborhoods small time or nuisance crimes, because if they get involved they risk reprisals from the accused and no help from the police until after things have happened, hurts have been done. This stuff isn't the circles of behavior that experts describe them as.... they are downward spirals. Slowly eroding our basic rights of life, liberty and the persuit of happiness.

Kyle Couchman
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By the way, what constitutional right does the law that elevates violent crime committed against the elderly violate? Isnt statutory rape a similar situation in the opposite direction? Maybe there should be laws to elevate crimes against children by adults, everyone seems to be agreeable when a child molester or child killer ends up in court? Sounds like a good poll question to try out.

Peter O'Brien
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So now we as a society are going to start classifying victims by their weakness to determine if a crime was committed?

Let's say it was a 22 year old football linebacker who was working that night instead, same injuries occur. Why should he not expect the same sentence for his abuser?

We are either viewed equally by the law or we continue to be a country of social groups where preferred groups are elevated above others. Doesn't sound like equality to me.

Mark Brudz
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I would agree with you as far as 'Hate Crimes' go Peter, Because to me they amount to double jeopardy, after all, all violent crimes are a display of some kind of hate.

That said, if a nation doesn't protect it's young and it's elderly from violent crime, exactly who are to be then?

Kyle Couchman
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You must not be reading the same laws I am Peter. the crime is still there. The elevation to a felony is being based on the lopsided bullyish decisionmaking of the offender.

I'd be willing to bet, that if Jaquetta's cashier was a 22yr old linebacker, of whatever race she would not have been as mouthy, nor would she have taken a swing at him.

But because her cashier was and older and slight of build woman she felt more confident of her mouth and taking a swing having less consequences to her personal well being and safety so she let loose.

I see it as a perfectly aggravating factor, unless you are saying it's ok for 22 yr old men and women to push around the elderly, take their money or even just shove them out of grocery lines. And be treated as if it were other 22 yr olds they were bullying around like this.

Kyle Couchman
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It is a form of equality, its equalizing the offensiveness of the punitive consequences with the offensiveness of the action.

Jeff Allen
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Peter is 100% right on this one. Just as we demand that our rights are given without regard to distinctions (that all men are created equal, that they are endowed by their Creator with certain unalienable Rights), we should expect that the violations of those same rights are adjudicated and punished without regard to distinctions.
If we rightfully reversed laws making black people 3/5 of a person and women unrepresented by vote, then why would we then tolerate same premise when it comes to laws regarding assault? If the standard is that assaulting, raping, or murdering someone is wrong, then elevating certain victim groups either makes the them 7/5 of a person or the rest of us 3/5 of a person. The reason Lady Justice is blindfolded is that ALL parties in our justice system are to be treated without regard to distinctions.

John Roach
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Fred, five years in prison is harsh compared to child molesters not getting any prison time in the same court.

Five years for what she did to a defenseless elderly lady is more than fair.

Kyle Couchman
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BS Jeff.....your arguments aren't really valid. You mention reversal of laws concerning blacks, and women regarding voting rights well that's not the same because first of all we are speaking about criminal activities not voting activities. When a person commits a crime they have already decided to disregard their victims rights and even endanger their right to live. Next you'll be telling us its unconstitutional to strip convicted felons of 2nd amendment rights or their right to vote.

We are talking about a law that elevates the punitive measures for violent crimes. It doesn't guarantee they are applied or invokablily written in stone. The judge and jury in a trial can dismiss them just as the felonious assault charge was dropped in Jaquetta's case. The law gives tools to the judge and DA to effectively punish these scum that think it's ok to victimize the elderly because of diminished physical, and psychological capacity that age brings on. I guess by your definition then all disability laws should be revoked because they violate the Constitutional right of equality.....its the same argument replacing just changing age with disability.

Richard Richmond II
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The so called “Hate Crime” laws are nothing more than political pandering to placate.

Prosecute on the brutality of the crime...period.

It is not enforced equally; case in point this link I found when I punched in black teenagers kill white baby for fun. But on example.

http://topconservativenews.com/2013/03/black-teens-murder-white-baby-for...

This is but one example of the hypocrisy of the so called hate crime laws and this available on numerous websites on the internet. It was once posted on YouTube, however it was taken down.

We have provisions in the law for self defense dealing with disparity of force.

Jacquetta B. Simmons’s case is not a self defense case; this is a brutal case of assault caught on camera.

I’m against special protections and/or rights based on race/ethnicity, gender/sex or sexual orientation.

But damn it! Not protecting our elderly from the likes of Jacquetta B. Simmons flies in the face of all logic or decency; particularly when the disparity of physical strength and age is so apparent.

Jeff Allen
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Kyle, you are certainly welcome to consider my argument BS but it does not invalidate it. My argument is based solely on the premise of equality without distinction. We have tried to have it both ways but the bottom line is that when we create laws that either elevate or denigrate certain groups, we abandon the notion that all men are created equal. Hate crimes, elder and juvenile laws are popular because they appeal to the emotion of protecting the oppressed and disadvantaged but our legal system is supposed to operate outside of emotion. If we simply applied our laws based on the fact that hurting, raping, murdering ANYONE is wrong and should be punished regardless of distinction then we would be adhering to that foundational premise and all those who choose to willfully hurt others would be rightfully punished . I am a healthy middle-aged white Christian male of mixed ethnicity, why should a crime against me be charged any differently from another victim of the same crime simply because they are different, it is the antithesis of equality.

Kyle Couchman
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So then Jeff it would be safe to say that the alcohol consumption laws are wrong by your definition. Senior Communities and retirement communities are wrong because they discriminate based on age. I guess by your definition then my 24 yr old son in law should get the senior discounts offered at various places because otherwise it's age discrimination. How about disability laws we should just wipe them off the books as they are discriminatory based on your opinion.

I guess you missed the distinction I made earlier as well that this law is used to make the punishment fit the crime, where it is applicable the charge is made, the evidence supporting it is considered in front of a judge or grand jury, then weighed against the law as it is written, then it is either dismissed or prosecuted as the court decides, it's just not applied willy nilly to every single case where it could be. In Jaquetta's case it is justified as I see it. Even look at Jaquetta's actions after the incident, bystanders had to make an effort to keep her from fleeing, why? Because she not only knew what she did was wrong but knew the consequences were going to be severe. That shows the "intent" in her mind after the fact.

As stated before if a 24yr old decided to beat up another 24 yr old and take his money, that's one thing. But a 24 yr old goes to beat up some 87 yr old man and take his money, just because he's an easy target that a whole different crime. Just as accidentally hitting a person with a vehicle is still murder but it's called manslaughter because there was no intent. But a man deliberately runs over his wife, then that's murder. This law addresses intent, not just the crime. Therefore is completely justified in elevating it to the level of a felony.

There is no antithesis of equality here, you are speaking in generalizations and applying it to specifics, it just doesn't work nor does it make sense.

Peter O'Brien
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"Senior Communities and retirement communities are wrong because they discriminate based on age. I guess by your definition then my 24 yr old son in law should get the senior discounts offered at various places because otherwise it's age discrimination. How about disability laws we should just wipe them off the books as they are discriminatory based on your opinion."

Ladies night at bars has been outlawed.... There is precedent.

But what the government does and what private businesses and organizations do are separate categories.

Disability laws like parking and handicapped accessible entrances should not be on the books regarding private business and organizations. There is no reason that government should be able to tell me how I must allow people into my establishment. That being said I would expect businesses who actively try to stop people from giving them money for goods to go out of business and possibly be demonstrated against.

Back to Simmons, should she go away? Hell Yes. But no under the felony elder abuse law. The prosecution failing to give reason for other felony charges is an issue in itself. Based on that she should serve misdemeanor time for what she did, and thank God that the district attorney's office screwed up.

Herbert Neal
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I wonder if the following statement by the defense is true? "The defense notes that the Probation Department, in its pre-sentence report, recommended a community-based (no jail time) sentence for Simmons."

Tim Howe
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If that is true Herb its dis"grace"ful and not even remotely close to "justice".

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