NIAGARA FALLS – A new trial has been ordered for a Jamaican man who was convicted eight years ago of slashing a man’s neck during a fight in a Niagara Falls auto repair shop.
Germaine V. Brown, 30, who has completed his six-year prison sentence, could have been deported as a result of the felony conviction, but an immigration court stayed the deportation order a year ago because of the appeal that succeeded Friday. He is still living in Niagara Falls.
The Appellate Division of State Supreme Court in Rochester ruled unanimously that the judge at the original assault trial, now-retired Niagara County Judge Peter L. Broderick Sr., erred in not giving the jury the option of convicting Brown of a misdemeanor third-degree assault count. Broderick was going to do so, according to Friday’s ruling, but Brown opposed the idea after Broderick told him that such a conviction would violate his probation on a drug conviction. Defense attorneys Herbert L. Greenman and James J. Faso Jr. said in open court that Brown was making “the wrong decision.”
Friday, the Appellate Division cited a Court of Appeals ruling that when it comes to seeking optional charges for a jury to consider, which attorneys call “lesser included offenses,” the decision is solely up to the defense attorney, not his client.
In the original Brown trial, the jury was asked to consider only a felony charge of second-degree assault. It found Brown guilty, and Broderick sentenced him to six years. The Appellate Division upheld the conviction in 2008, and the Court of Appeals refused to take the case.
But Brown kept fighting, even after his release from prison. In 2013, he said he was denied the right to effective assistance of counsel because his original appellate attorney didn’t bring up the issue of lesser included offenses.
The Appellate Division agreed and reopened the appeal. The five judges decided Friday that the evidence in the assault case made it look to them as if a misdemeanor conviction, not a felony, might have been the jury’s choice, if given the option.
The new appellate brief was written by Buffalo attorney Thomas J. Eoannou, whose associate, Jeremy D. Schwartz, argued the case in Rochester. Eoannou and his law clerk, Kevin J. Muscoreil, said the assault case arose after an employee of an auto repair shop who was a friend of Brown’s allowed him to drive his vehicle into the shop near closing time. Another employee objected, and soon he and Brown were fighting. Muscoreil said the victim fell into a display rack and cut his neck.
Brown was convicted of assault with a dangerous instrument, a box cutter. But the victim testified he never saw Brown with a box cutter or any other weapon, and a witness agreed.
Eoannou said he’s trying to get the drug conviction overturned, too. State Supreme Court Justice Richard C. Kloch Sr. is considering the matter, in which a special prosecutor from Erie County had to be appointed. That was because Niagara County District Attorney Michael J. Violante was Brown’s defense lawyer at the time of the drug case.