New York State Appellate Division Reverses Wrongful Criminal Conviction Resulting from Consolidated Indictments

On February 13, 2024, the New York State Appellate Division, First Department, reversed the convictions of Tommy Davis, who was simultaneously prosecuted for two unrelated incidents involving firearms. Cravath represented Mr. Davis on a pro bono basis alongside co‑counsel at the Office of the Appellate Defender.

Mr. Davis was charged in a 2011 indictment with, among other crimes, attempted murder, although no gun was recovered and the alleged victim was uninjured. He was later charged in a 2012 indictment with criminal possession of a weapon that was recovered from someone else in an unrelated incident. Over defense counsel’s objection, the trial court consolidated the two indictments on the grounds that the charged offenses were “the same or similar in law” and because “the evidence of possession of a firearm” during the first incident “would be relevant and admissible to prove the defendant’s possession of a weapon” during the second incident. The jury convicted Mr. Davis on five of six counts, including attempted murder in the second degree, attempted assault in the first degree and three counts of criminal possession of a weapon in the second degree, and the trial judge sentenced him to a term of 25 years to life imprisonment.

On appeal, Mr. Davis argued that the trial court should not have consolidated the two indictments, as they pertained to different events, involved different weapons and had minimal overlapping facts and witnesses, and because there was a significant risk that the jury would infer from the second incident that he had possessed a weapon during the first. Mr. Davis also contended that the risk of unfair prejudice was magnified because the trial court had failed to give the jury a standard instruction to consider separately the evidence of each offense. The Appellate Division agreed and reversed all counts of conviction.

The Cravath team included partners Antony L. Ryan and Benjamin Gruenstein and associate Scott B. Cohen, who briefed and argued the appeal at the First Department.

The case is The People of the State of New York v. Tommy Davis, Appeal No. 639 (App. Div. 1st Dep’t Feb. 13, 2024).