State Appeal

"A Judge who requires others to 'tell the truth, the whole truth, and nothing but the truth' must set an example by telling the truth herself in a legal proceeding."

-- Administrative Judge Robert Tembeckjian, State Commission on Judicial Conduct

Nickel's convictions and sentence were appealed to the Third Judicial Department. On January 20, 2005, a five-judge panel of that court (Presiding Justice Karen Peters , and Justices Spain, Carpinello, Kane, and Mugglin) issued a decision affirming all five of Nickel's felony convictions. The court did, however, reduce Nickel's total sentence from 54 to 32 years.

Astonishingly, given a veritable mountain of reasonable doubt (see 'Arthur' , two most serious counts, changed his stories , Nickel's home , and sexual photograph ), this court's decision, authored by Justice Kane, wrote: "The verdict was not against the weight of the evidence. Defendant's own statement, the photographic evidence and the victims' testimony established guilt." For one thing, Nickel's purported statement says nothing whatsoever about the two top charges -- oral sex and the 'finger' incident. The "photographic evidence," apparently referring to the central sexual photograph at issue, is even more demonstrative of Nickel's innocence: mismatched boys' eye colors; room depicted obviously not Nickel's bedroom -- the location the alleged victim claimed; adult in photo proven not to be Nickel.

The court goes on to write that: "[N]o witness's testimony was incredible as a matter of law..." If 'Arthur's' testimony does not meet this criterion, it is difficult to imagine what testimony ever would : He was wrong about literally every interior and exterior detail regarding Nickel's home about which he testified, a location he claimed to have visited numerous times, and where he supposedly engaged in sexual activity. (Photos of the home taken by the police themselves proved this beyond any doubt.) Moreover, 'Arthur' had actually changed his stories as to where the two most serious incidents supposedly took place. When this court then goes on to speak of "the overwhelming evidence of defendant's guilt," one has to wonder if it even read the trial record at all.

(For other wrongful conviction cases in which the courts had -- at one time -- characterized the evidnce of guilt as 'overwhelming,' see 'Overwhelming' section of this site.)

Justice Karen Peters wrote a separate opinion. Although she concurred with the affirmation of Nickel's convictions, she disagreed with the lowering of his sentence, arguing that it should have remained 54 years. It was, of course, her prerogative to do so. However, to quote Congressman Barney Frank of Massachusetts: "Although everyone has a right to his [or her] own opinion, no one has a right to his [or her] own facts ."

Peters writes in part: "These events were further compounded by defendant's photographing of himself sodomizing one of his nine-year-old victims." Firstly, Nickel was actually acquitted of the charge which related to the taking of that photograph. Second, even the most cursory examination of the record (see sexual photograph ) should have caused any responsible jurist to refrain from including such a reckless and baseless statement in a legal opinion. As happened with the trial court ( Judge Paul Czajka ), it would appear that hatred blinded her to the actual facts of this case.

In the very next paragraph, Peters writes: "Defendant's inability to conform his conduct to the restrictions imposed upon him was apparent even after he was arrested. When he was released on bail and placed on electronic monitoring, he corresponded with another known sex offender and told him that he continued to have contact with minors in violation of his conditions." This last allegation is absolutely false . Nickel did not violate any of the conditions of his release on bail. (If he had, his bail would have been revoked; but it was not.) Nickel was free to correspond with whomever he wished. If Justice Peters had bothered to actually read what Nickel's initial bail conditions were , she would have known that they did not state that he was to have no contact with minors. (In any event, aside from a Thanksgiving dinner to which a close friend [and former boss] of Nickel did bring her own son, Nickel's only contact with minors were those from his own family. Subsequently , Nickel was asked -- and agreed -- to not have contact with any minors. As with all of his bail conditions, he abided by this.)

She then writes: "He further professed his philosophical view that pedophilia is an 'acceptable expression of God's will for love and unity among human beings.' This is grossly misleading, in that Nickel was actually quoting someone else there, which is readily apparent from the letter itself.

For her questionable activities in other cases, see Judge Karen Peters section.

Moreover, it is instructive to note that whereas Justice Peters cherry- picked (out of context) one apparently inflammatory statement from these letters, she conveniently ignored the numerous times when Nickel talks about the falseness of the charges against him:

"This is actually the most pressing issue right now, this photograph the prosecution claims is me and this boy having sex. Well, it isn't -- I've never had sex with any child." (from letter dated 9/16/00)

"[A]lleged sexual pictures of me and ['Arthur'] are neither of me nor of ['Arthur']... and the way they interviewed these kids was so sloppy, these detectives have confused and mixed up what each of these boys have said." (from letter dated 10/17/00)

"The more they look at my case the more they must realize how weak the evidence against me really is. I know I didn't have sex with that (or any) boy...

"I am declining their ridiculous 'plea offer' involving several years in jail for things I didn't do.

"I've never had any kind of sex with a boy." (from letter dated 11/16/00)

"The judge forced the prosecutor to release on disk the picture they claim is of me and ['Arthur'] having sex. But of course it isn't, and our photo expert has now proven that conclusively. That's great of course, but the D.A. doesn't care. She says ['Arthur'] identified it as him and me. This just shows how confused he is.

"They offered me this ridiculous 'plea bargain' based on something I didn't do...

"My friend Cathy came over yesterday. She's a good person, a good Christian. I have told her there's some truth but mostly falseness to what I've been accused of.

"[I have been] sexually inactive for well over two years now..." (from letter dated 12/5/00) (Emphases original.)

Part of the reason for Peters' 'tough-on-crime' (albeit weak-on-the-facts) stance here is that she was just completing her first term as a judge, and had to run for re-election the following year. (See Judges -- Elected section.)

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In contrast to Justice Peters, Justice Carpinello wrote a separate opinion in which he advocated for even more of a sentence reduction -- to 25 years.

Besides the factors mentioned above, there were several other unusual aspects surrounding this appeal. Oftentimes, when a decision is late in coming (which Nickel's was), that is an indication that a court is preparing to issue a reversal -- that is, to overturn one's convictions. Second, it is rare enough for one judge to dissent from the majority as to the sentence ; for two judges to so dissent is virtually unheard of. (In the sentencing analysis conducted, there was not even one such case.) The foregoing may be an indication that (at least some members of) this court was considering reversing the convictions, but then backed off for some reason (perhaps Justice Peters' 'bullying'?), electing instead to grant the 'consolation prize' of a reduced sentence.

In order to assess Justice Karen Peters' record (and that of the Third Appellate Department generally) in greater detail, we consulted the following law review article:

"An Empirical Study of Dissent at the Supreme Court, Appellate Division, Third Department," by Christopher J. Stevens, 74 Albany Law Review 913 (2010-2011)

[920] "The Third Department has previously been described as 'the most agreeable' [i.e., the one least likely to contain dissents in its decisions] of the State's four Appellate Divisions -- a description that remains applicable ten years later...[O]ut of the 18,690 cases decided by the Third Department between January 1, 2000 and October 1, 2010, only 203 contained dissenting opinions. In other words, dissenting opinions are issued less than 1% of the time, which means that the Third Department is [unanimous] in an incredible 99% of all cases decided."

[This article's definition of 'dissent' does not appear to include dissents as to sentence modifications , which is what occurred in Nickel's case.]

"With respect to criminal cases, the data suggests that the Third Department is fairly 'pro-prosecution' -- at least more so than the Court of Appeals."

[Ain't that the truth.]

"[T]he Third Department [is] largely composed of former prosecutors..."

[Just like Judge Paul Czajka .]

[924] "[A] criminal defendant that loses an appeal in the Third Department should not conclude that his or her case is destined for the same fate if leave to appeal [to the Court of Appeals] is granted."

[Yes -- if...]

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In fact, the New York State Court of Appeals did not 'grant leave' to Nickel; meaning, it never heard his appeal.

The person who made the decision to deny leave was Justice George Bundy Smith , who was, ironically, a member of the New York State Task Force on Wrongful Convictions .

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The following are notes regarding and excerpts from appellate reviews of child sexual abuse trials , the guilty verdicts concerning which were reversed , based -- at least in part -- on issues similar to those which made Nickel's trial so problematic. They appear in reverse chronological order. Each entry lists the defendant's name, followed by the Vol. No. and page in which the decision appeared in the New York State Supplement (2nd), the department which issued it, year issued, and whether the original trial was jury or non-jury.

Robert Knapp 995 869 (4th '14) Jury

*The People failed to establish that the defendant knowingly and voluntarily waived his Miranda rights before giving a statement to law enforcement.

Nickel's allegation that he was never read his Miranda rights, and did not provide a 'voluntary' statement, is supported by the following facts: 1) numerous spelling and grammatical errors as well as phrasing choices in the supposed statement indicate that it was written by Detective Mark DeFrancesco , not Nickel; 2) DeFrancesco claimed he read Nickel his rights from a card written in the first person (" I have the right to remain silent," as opposed to, " you have the right..."), supposedly transposing each and every time; unlike the situation with other statements taken in this case, Nickel's alleged signature appears only on the last page of this supposed statement, as opposed to his initials being on every page; and last but not least, DeFrancesco did not read Brian Rarick his rights in that case either -- see Detective Mark DeFrancesco section.

*Alleged victim's physical exam was 'normal'; no vaginal tears or bruises.

In Nickel's case, the medical exam of 'Arthur' found "no apparent injury."

Naasir Mehmood 977 78 (2nd '13) Jury

*The cumulative effect of the prosecutor's improper comments during summation denied defendant a fair trial.

Rather than concentrating on actual evidence pointing to Nickel's commission of these alleged crimes, which he knew he did not have , Prosecutor Peter Torncello endlessly harped on Nickel's supposed status as a 'boy-lover.'

Wayne Mitchell 973 706 (2nd '13) Jury

*"The testimony of the prosecution's witnesses failed to provide a credible foundation for the defendant's convictions due to numerous inconsistencies and contradictions."

In Nickel's case, 'Arthur' changed his stories as to where the two most serious acts supposedly took place, and was wrong about each and every detail he provided about the exterior and interior of Nickel's home , where one or both of them allegedly happened.

Aaron Fisher 944 453 (Ct. of App. '12) Jury

*"The alleged abuse was not...medically confirmed during the physical examinations to which the children were subjected..."

Again, in the Nickel case, medical exam of 'Arthur' found "No apparent injury," which there almost certainly would have been if the most serious acts had actually occurred.

*"[T]he trial's outcome turned entirely on the jury's resolution of fairly pronounced witness credibility issues. Those issues should have been resolved by the jury dispassionately on the basis of properly admitted evidence. The prosecutor's summation, however, directed the jury's attention elsewhere..."

As is virtually always the case for convictions reversed due to prosecutorial misconduct, the prosecutor is not actually named here.

Even assuming the accuracy (and voluntariness) of Nickel's supposed statement, there was nothing in it about the two most serious charges; therefore, it was 'Arthur's' word alone that they ever happened. And, again, lacking any real evidence that these incidents occurred, the prosecutor went on and on about how Nickel was a 'boy-lover.'

Glen Goff 892 688 (4th '09) Jury

*"The complainant was unable to recall many details concerning the incident and gave conflicting testimony with respect to those details that he did recall, including defendant's position on the couch..."

Again, in the Nickel case, 'Arthur' changed his stories as to where the two most serious incidents supposedly took place, and was wrong about each and every interior and exterior detail he provided regarding Nickel's home .

Kason O'Neil 887 705 (3rd '09) Jury

Judge Karen Peters actually wrote this decision. This is the only time, in the modern era, the Third Department has ever reversed a child sexual abuse conviction due to weight of evidence . One would have to go all the way back to 1960 to find the next most 'recent' one. Ironically, Peters was also the only judge who sat on this panel and the one which decided Nickel's case some four years prior. Perhaps the difference was that, in the O'Neil case, Peters wasn't worried about having to run for re-election the following year. (See Judges -- Elected section of this site.)

*"[T]he victim's reliability is manifestly suspect...[T]he victim's testimony was laden with inconsistencies, contradicted other evidence, and, at times, strained credulity. For instance, although she initially reported that defendant had raped her 10 to 15 times and that most of the rapes occurred in defendant's car , her trial testimony differed dramatically, in that she claimed that she was raped and subjected to other related sexual contact on six separate occasions while in defendant's office ." [Emphases added.]

Again, in the Nickel case, 'Arthur' changed his stories as to where the two most serious acts supposedly happened, and was wrong about each and every detail he provided regarding Nickel's home .

*"It was also adduced...that the victim had a reputation for being untruthful."

In Nickel's trial, 'Arthur' acknowledged having said/believed numerous things regarding Nickel -- that he ('now') knew and admitted were not true.

Jason Madison 877 173 (2nd '09) Non-Jury

*"At trial, the complainants gave the only testimony that the alleged sexual assaults had been committed. Neither account was corroborated by other testimony or physical evidence."

Once more, at Nickel's trial, the only 'evidence' of the two most serious acts having occurred was 'Arthur's' confused and contradictory -- and contradicted -- testimony. Also note that, as with Nickel's, the above was a bench trial . This means that, in the Second Department as well as the Third, judges are apparently willing to convict people without proper evidence. And yet, the difference between the Second and Third Departments would appear to be that the former is at least willing to reverse such convictions.

Scott Ballerstein 860 718 (4th '08) Jury

*"Such appeals [by the prosecutor] to emotion tend to deflect the jurors' attention from issues of fact on the question of guilt or innocence."

State Appeal (4 of 6)

Again, as is virtually always the case for convictions reversed due to prosecutorial misconduct, the prosecutor is not actually named here.

Victor Hernandez 808 919 (1st '05) Non-Jury

*"While we are reluctant to substitute our own credibility judgment for that of the fact finder, we find that the prosecution evidence was arguably contrary to experience and self-contradictory...leading us to the conclusion that the trial court failed to give the evidence the weight it should have been accorded..." [Emphases added.]

Like the Second Department (just above), although the First Department apparently also has trial judges willing to convict people on these sorts of charges without proper evidence, unlike the Third Department, at least it's also willing to reverse such convictions.

Thomas Levandowski 780 384 (3rd '04) Jury

*"[P]rosecutor's misconduct during the course of the trial was so pervasive as to deprive defendant of a fair trial..."

Again, as is virtually always the case for convictions reversed due to prosecutorial misconduct, the prosecutor is not actually named here.

In the Nickel case, besides using the terms 'NAMBLA' and 'boy-lover,' over and over, despite having been told by the trial judge not to do so, Prosecutor Peter Torncello also buried evidence which tended to show that Nickel was not guilty.

Also note that the panel which decided the above appeal also included two judges who were on Nickel's panel: Justice Karen Peters , and Justice Kane.

Duane Wallace 760 702 (4th '03) Jury

*"[The alleged victim] gave conflicting testimony with respect to her position on the couch and with respect to whether she and defendant were playing a game called 'top of the mountain' when the alleged incident occurred...Upon review of the evidence, we find that the evidence is both contrary to experience and self-contradictory...and that the jury 'failed to give the evidence the weight it should be accorded'."

Erick Brown 752 347 (2nd '02) Jury

*Brown's attorney failed to properly prepare for trial, which was his first involving allegations of child sexual abuse; unable to effectively cross-examine 10-year-old compaining witness.

When Nickel (admittedly, belatedly) asked his attorney if he'd ever tried a child sexual abuse case before, he replied: "Not that I can recall." Even with Nickel continually suggesting questions to ask and lines of inquiry to pursue, his attorney often let 'Arthur' off the hook, probably because he simply did not know how to effectively cross-examine a child witness/alleged victim.

Darin Gioeli 733 242 (2nd '01) Jury

*"During the trial, the credibility of the [alleged victim] was seriously impeached."

*Hospital records indicated no bruising/swelling/injury to hymenal tissue. People's own expert conceded that penetration of an eight-year-old would cause the foregoing.

Argelis Mirabal 717 404 (3rd '00) Non-Jury

*"It was not the victim who informed anyone of what transpired, but the friend who informed the victim's mother who decided that the incident should be reported to the police."

'Arthur' had not complained about Nickel to anyone prior to the police interviewing him. (And when the did, 'Arthur's' first words were: "Didn't bother me." )

Mirabal was a Third Department decision overturning a bench trial sexual abuse conviction due to 'insufficiency of evidence,' which is not the same as 'against the weight of evidence.' Given that the alleged victim was apparently between fourteen and sixteen years of age, the decision came down to lack of proof of force being employed, a factor which does not apply to younger alleged victims.

Only Judge Mugglin was on the panels of both the Mirabal and Nickel cases.

Richard Bastow 630 432 (4th '95) Jury

*"Defendant contends that inconsistencies in the testimony of one of the complainants, along with the exculpatory evidence presented by the defense, warrant reversal of his conviction of counts one through five of the indictment. We agree...On cross-examination, complainant changed his testimony concerning when the sexual assaults occurred and what happened during the assaults...The record also shows that the testimony of complainant is inconsistent with a statement given by complainant to the police three days after the last of the alleged assaults...It was also adduced through the testimony of complainant's principal and teacher that the reputation of complainant for truthfulness was very poor."

Marc Elliott 619 68 (2nd '94) Jury

*"The complainant failed to testify with specificity as to times, dates and places, thus straining his credibility. In addition, the complainant's testimony was ladened with inconsistencies...With respect to the incident which gave rise to the conviction, the complainant gave conflicting evidence as to where the incident took place..."

Amine Baba-Ali 578 633 (2nd '92) Non-Jury

*Reversed due to ineffective assistance of counsel. Trial attorney never followed up on discovery demands (for medical records). Defense counsel then moved for authorization to take the deposition of the attending doctor. The Court denied this as untimely, but said lawyer could depose other doctors with knowldge of the case. Counsel did not pursue matter further, and simply entered the records into evidence.

*"[A]lthough there were significant inconsistencies in the medical evidence, counsel made no effort to secure independent medical testimony."

In Nickel's case, though medical records were sought in a discovery motion, his attorney never followed up on this. And when medical exam notes finally were turned over (too) late in the trial, Nickel's attorney made no effort to seek an adjournment to consult with a medical expert.

*The (Baba-Ali) Court characterized the People's withholding of medical records until the eve of trial as "inexcusable."

In Nickel's case, such records were not turned over until well after the trial had begun .

*Prosecution also knew full well these records were exculpatory; failed to turn them over earlier, even though they were under court order to do so -- and had them -- for months.

One can bet that in Nickel's case as well, had the medical records been inculpatory , the prosecution would have used them at trial as part of their own case, rather than attempting to bury them.

Note that this is a second time the Second Department reversed a child sexual abuse bench trial verdict.

The Baba-Ali case appears on the National Registry of Exonerations , as well as in the New York State Wrongful Convictions section of this site.

Antonio Guerra 577 296 (2nd '91) Jury

*Because evidence indicated that defendant's touching of victim occurred within the context of a game which was not sexual in nature, the People did not prove beyond a reasonable doubt that the defendant's intent was to obtain sexual gratification.

In Nickel's case as well, some of the alleged touching occurred within the context of a (non-sexual) game which took place in a pool, with both 'Arthur' and 'Brendan' (albeit at differing times/locations). Particularly with regard to the latter, there was no evidence whatsoever -- either from Nickel's alleged statement or from 'Brendan's' testimony -- that the touching was for the purpose of sexual gratification.

Morris Pinkas 548 767 (2nd '89) Jury

*Consolidated indictment charging defendant with Sexual Abuse along with indictment charging Attempted Rape violated his right to a fair trial.

*"Each of the two incidents which gave rise to the consolidated indictment in question was a separate and discrete criminal transaction. There was no testimony proffered that was common to both incidents. There was no factual representation that proof of either event would be material and admissible as evidence-in-chief upon the trial of the other..."

In Nickel's case as well, his attorney sought to sever the Sexual Abuse counts -- for which some 'confession' evidence arguably existed -- from the far more serious Sodomy and Aggravated Sexual Abuse counts. (If these counts had been severed, it would have meant separate trials for the less serious vs. more serious counts.) Whereas the Sexual Abuse counts involved ambiguous touching outside of clothing , the other two counts involved absolutely unambiguous, penetrative sexual acts. Therefore, trying all of these together meant a much higher chance of convicting on all based on unfair inference, which constitutes a violation of the constitutional right to due process of law.

Bob Cheatham 544 625 (2nd '90) Non-Jury

*"[I]n this case the finding of guilt is clearly unsupported by the evidence adduced at trial."

This is a third instance of the Second Department reversing a child sexual abuse bench trial conviction, and the second time it did so based on weight of evidence.

Going back to 1956, the First Department has reversed child sexual abuse convictions based on weight of evidence only twice; the Second Department has done so eleven times; the Third Department has done so just twice; and the Fourth Department has done so four times. Therefore, the Third Department is tied with the First Department in terms of having the lowest number of such reversals . But considering the fact that more than twice as many cases are appealed in the Third Department than in the First, the Third Department has by far the lowest child sexual abuse conviction reversal rate based on weight of evidence .

>Hubert Chin 525 673 (2nd '88) Jury

*Prosecutor's inflammatory summation required reversal, even though defense counsel did not object. "[T]he prosecutor sought to discredit both the defendant and his character witnesses by suggesting that defendant was someone who preyed on little girls...The issue in this case was simple: Did the defendant rape and sexually abuse the victim? Instead of concentrating on that issue during summation, the prosecutor sought to inflame the jury by arguing that the defendant and one of his character witnesses may have had a habit of molesting little girls. He tried to convey to the jury, by insinuation, suggestion, and speculation, that the defendant may have committed or may have been planning to commit offenses similar to the one for which he was being tried."

Again, as is virtually always the case for convictions reversed due to prosecutorial misconduct, the prosecutor is not actually named here.

Gary Ranum 506 105 (2nd '86) Non-Jury

*Trial court erred in permitting the alleged victim as well as another prosecution witness under the age of twelve to testify under oath, where Court failed to elicit evidence, in voir dire for witness competency, that child witness understood consequences of giving false testimony. "With regard to the testimony of the complaining witness, whose testimony was crucial to the defendant's conviction, the court never mentioned the word 'oath' and did not define the meaning of the word 'oath.' Indeed, having asked a number of appropriate background questions, the only relevant questions to the infant complainant as to the 'truth' were leading questions responded to by perfunctory answers, or by paraphrasing the court's own words."

At the time of both Ranum's and Nickel's trials, CPL 60.20(2) was in effect as follows: "A child witness less than twelve years old may not testify under oath unless the court is satisfied that he understands the nature of an oath." This means that prospective witnesses less than twelve years of age must undergo a preliminary examination by the Court ('voir dire'), to determine if the child will be permitted to provide sworn testimony.

In Nickel's case, despite 'Arthur's' voir dire answers often making no sense, and even changing in an obvious effort to please the person asking them, Judge Paul Czajka qualified 'Arthur' to give sworn testimony anyway. Czajka had invited defense counsel to submit questions of his own, which he promised he would ask. But Czajka broke that promise. Apparently, he was simply going through the motions, and was going to qualify 'Arthur' to give sworn testimony no matter what .

It's rare for the Appellate Division to reverse a trial court sexual abuse conviction based on improper voir dire for witness competency. Going back to at least 1956, the First Department has only done it once, and the Second Department has done it twice; the Third and Fourth Departments have never done so. (Nickel's appeal was heard in the Third Department.)

Francis X. McCann 455 134 (2nd '82) Jury

*"[T]he People's overall strategy was to impugn the defendant's character and cast him as one who might be likely to have committed a sexual offense."

Again, as is virtually always the case for convictions reversed due to prosecutorial misconduct, the prosecutor is not actually named here.