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?
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?
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.