Criminal - Silvon Simmons

Episode Date: March 29, 2019

In 2016, Silvon Simmons was shot in the back by police officer Joseph Ferrigno. The Rochester Police Department said Silvon fired first, and charged him with attempted aggravated murder of a police officer. “My first instinct, to be honest, was they shot this guy and now there’s a coverup.” - Liz Riley, Special Assistant Public Defender, Monroe County Public Defender’s Office. Say hello on Twitter, Facebook and Instagram. Sign up for our occasional newsletter, The Accomplice. Follow the show and review us on Apple Podcasts: iTunes.com/CriminalShow. We also make This is Love and Phoebe Reads a Mystery. Artwork by Julienne Alexander. Check out our online shop.  Episode transcripts are posted on our website. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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involving homicide detectives, ghost hunters, and even psychic mediums, and leads him to a dark secret about his own family. Check out Ghost Story, a series essential pick, completely ad-free on Apple Podcasts. It was no cops following us the whole night.

There would have been no need for it. It wasn't speeding. It wasn't doing anything criminal. It just was, it came out to clear blue sky. On Friday, April 1st, 2016, 34-year-old Sylvan Simmons was planning to have a barbecue at his next-door neighbor's house in Rochester, New York. Just before 9 p.m., Sylvan and his neighbor went to the store. His neighbor drove them in a Chevy Impala with Silvan in the passenger seat. Went to the store, came back from the store.

Everything was good on the way there, on the way back. And shortly after we pulled in the driveway, it went totally wrong. What happened? We got out the car. Police officer came. Like literally just got out the car. Police officer came, like literally just hopped out the car. No sirens. No nothing. It was a spotlight he hopped in front of and that's it.

All you seen was a gun. According to Sylvan, the officer did not identify himself or say anything at all. No sirens, no flashing lights, just one bright spotlight and a man coming toward him with a gun. And you started running. Absolutely. Where do you run? Away, which is the only way to run away was towards the back of my house. As I'm getting close to my back door, I hear the shot. I feel the shot.

I don't believe that he actually shot me, but I know I'm shot. And then he shot again. Then he shot again. And I dove over a fence. I get on the ground and played dead. Officer Joseph Ferrigno fired his gun four times. Three of the four shots made contact with the back of Sylvan's body. When you actually there, the person getting shot, you don't know what to think. Like,

the first thing that come to your mind is, I got shot, I'm about to die. Like, that's the first thing that come to your mind. Like, you don't think I got shot, I'm about to survive. Like, all I wanted to do was get out the line of fire like it was one two three like they kept coming they was gonna keep coming like like that's all I've been thinking is that I can't believe that somebody is really trying to kill me right now like like I I see the gun but I don't I don't have problems with people to want to roll up and just shoot me down. So that was another shock of the story. Like, I'm really getting shot right now.

Like, we ain't got time to talk right now while you got that gun and you chasing me. What do you remember next? I'm just trying to be as still and quiet as I possibly can be. So he think I'm dead. Next thing you know, my leg like start killing me. Like it's literally killing me. Like, it's like my lung collapsed so I can't scream.

I can't really do nothing, but my leg is killing me, but's like my lung collapsed, so I can't scream. I can't really do nothing, but my leg is killing me, but I do make sound. So he come over to me, start kicking me, pointing the gun in the face, telling me to shut up. I played dead again. Officer Ferrigno declined to speak with us. We can confirm that medical records show bruising on Sylvan's rib cage and broken ribs. He was handcuffed and then searched. More officers arrived. I just want to survive, want to know where the ambulance at. So a thousand things a second going through my mind. My kids, my family, parents, friends, just people who care about me. Like,

what they gonna think? How this story gonna go? Like, it's all type of stuff that's going through my head at the time. Later that night, the Rochester Police Department's Jackie Schumann gave this statement to reporters. Officers were conducting an investigation involving a vehicle in the area of Emil Street via J Street. During the investigation, shots were exchanged between the officer and a suspect. The suspect was struck. He's in serious condition, but he's alert. And at this point, we are still conducting our investigation.

It's still preliminary at this time. Officer was unhurt? Yes. No officers are hurt. I first heard about it in the morning on the news. Liz Riley is a special assistant public defender at the Monroe County Public Defender's Office. The news was reporting that an individual had shot at a police officer and that he was shot in return. My first instinct, to be honest, was they shot this guy and now there's a cover-up. I'm Phoebe Judge. This is Criminal.

What happened when you got to the hospital? I had tubes in my lungs and tubes in my throat because I was actually awake. So I was like writing notes. So I'm writing notes to nurses. I'm writing notes to the police that's there in front of me. It's a lot of police around me and like I could feel a bad vibe. I'm like writing notes, asking for my parents, asking somebody to call them. When Sylvan arrived at the hospital, they made an incision all the way down his torso to check for internal injuries. The bullet that hit his thigh went through him and out the other side of his leg, but he still had a bullet near his pelvis

and another one in his mid-back that had come very close to his heart. He had a punctured lung. He had a chest tube as well as a breathing tube, and that's why he was trying to communicate by writing notes. Yeah, I gotta write notes. I done communicate by writing notes. Yeah, I got to write notes. I done wrote a thousand notes. Like, I need to see my parents. I need to see my kids. I need to see my family. I need to see a lawyer.

Like, I need to see a lawyer for this because y'all doing something wrong right now. He had been writing notes, asking to see a lawyer, asking to speak to his father, asking to have a phone call, asking to know what was going on, to see the news. And he wasn't getting any answers, so he was very frustrated. He wasn't arraigned, so he was held, so he wasn't entitled to an attorney. They waited until the breathing tube was taken out of him and within hours after his breathing tube was removed today went in and spoke with him and interviewed him while he was drugged up and had been kind of out of it for days. So when he was actually arrested I have no idea if even they knew what they were charging him with.

The investigators tried to tell me like oh oh, yeah, well, something happened earlier in the neighborhood. And they started off with, OK, at nine o'clock when they started questioning me, they started off like nine o'clock. What happened? I'm telling them like we went to the store. We come back from the store. Spotlight pop up, see a gun run from it, get shot, come to find out police shot me. But then he come up with this story and try to lead me through the story like, yeah, something happened earlier. Some people came back. It was gunshots fired in front of your house. You went and got a gun so you could protect yourself. And when you seen a police officer, you were scared. No. But he's so sure it went like that. And I'm like, that's not how it went. So I'm like, what am I getting charged with? He was like, well, there's going to be some assault charges. Assault charges for what? He was like, well,

you did shoot at the police. I did not shoot at the police. Did you have a gun? No, ma'am. According to the Rochester Police Department, a 9mm handgun was found at the scene, 4 to 10 feet from Sylvan. Police Chief Michael Simonelli held a press conference in which he said, if someone fires a gun at an officer,

the ability to return fire is certainly legally justified. The officer is entitled to protect himself. Sylvan says he begged to be checked for gunpowder residue. Like, I'm constantly, like, we can get to the bottom of this right now. Like, if it went the way, if I actually shot somebody, like, my hands. So, like, it was a scary feeling. It was terrifying. It was, like, the worst thing ever, like, because the officer was white.

I am black. I was in the inner city when I got shot, except for I didn't have a gun. And since I didn't have a gun and I survived it, all of a sudden there's a gun involved just to justify me getting shot. Sylvan Simmons was transferred from Strong Medical Hospital to the Monroe County Jail. He was facing four felony charges. One count of criminal possession of a weapon with the intent to use it unlawfully against another person. One count of criminal possession of a weapon with the intent to use it unlawfully against another person, one count of criminal possession of a weapon outside of his home or place of business,

one count of attempted aggravated assault on a police officer, and one count of attempted aggravated murder of a police officer. One person remains in serious condition after exchanging gunfire with a Rochester police officer. One person remains in serious condition after exchanging gunfire with a Rochester police officer. Police say Simmons fired an officer for Rignaud on Immel Street when the officer approached Simmons and someone else in their car. Police say Simmons missed and the officer returned fire, hitting Simmons three or four times. Story, a seven-part series that follows journalist Tristan Redman as he tries to get to the bottom of a ghostly presence in his childhood home. His investigation takes him on a journey involving homicide detectives, ghost hunters, and even psychic mediums, and leads him to a dark secret

about his own family. Check out Ghost Story, a series essential pick, completely ad-free on Apple Podcasts. Hey, it's Scott Galloway, and on our podcast, Pivot, we are bringing you a special series about the basics of artificial intelligence. We're answering all your questions. What should you use it for? What tools are right for you? And what privacy issues should you ultimately watch out for? And to help us out, we are joined by Kylie Robeson,

the senior AI reporter for The Verge, to give you a primer on how to integrate AI into your life. So, tune into AI Basics, How and When to Use AI, a special series from Pivot sponsored by AWS, wherever you get your podcasts. I would say it's typically not our practice to ask somebody, did you do it? Assistant public defender Katie Higgins. She and Liz Riley were assigned to defend Sylvan Simmons. We don't start conversations by saying, oh, they're saying you shot at a cop, did you do it? It usually takes time to build trust.

Normally you want to talk to the client about what the charges are, what the government is saying they did. But I do remember with Sylvain that he was very confused for many days about why he was arrested and why he was in police custody. So when we went and met with him, he was pretty adamant from that very first meeting onward that he did not do that. One of the first things Sylvan asked for was to see his parents. Here's Liz Riley. We later came to know that his parents are just about the nicest people the world has ever seen. And they had come up from Tennessee, where they had basically retired to. And no one would let them see their son.

They knew he had been shot. They didn't know his condition. And so one of the first things that we focused on was getting them in to see their son. Their next step was to go to Sylvan's street and begin to talk to his neighbors, many of whom had been outside that night and had information about what they'd seen and heard. Katie Higgins. We had extremely limited information. We knew what the charges were. We knew the date and time that they had occurred. And that was it. We didn't know what evidence there was or wasn't. We didn't know if the officer was actually injured. We didn't know if there had been, you the government was going to show up with a victim being an officer, a police officer, that certainly was intimidating. According to Katie Higgins and Liz Riley, as other attorneys in Rochester learned about the case and learned that it involved Officer Ferrigno, they came forward with information.

Probably at least half a dozen lawyers came to me immediately telling me, you've got to know about this, you've got to know about that, and gave me little anecdotes of times that they had had cases where he was involved, and I started collecting as much information as I could as to different cases that I could perhaps use where he had been accused of using excessive force against other people's clients because there was going to be some ability to build a background as to his temperament. In addition to excessive force complaints, Officer Ferrigno has been named in multiple civil lawsuits against the city of Rochester. As Sylvan's trial date approached, the district attorney offered him a plea deal. Here's Liz Riley. He was offered, let me back up just a second

by saying that if he had lost trial, he was looking at a sentence that ended in life. So any sentence he could have gotten had he been convicted of attempted aggravated murder of a police officer would have been a potential life sentence. In other words, it could have been anywhere from 25 to life, I think going up to 40 to life. And he was offered a plea to attempted aggravated assault with a flat sentence of 15 years plus five years of post-release supervision. And he would not hear of it. I wonder if that's always stressful for you in your position,

to be thinking, oh, I mean, it must be the most stressful thing and how you offer advice about taking a plea deal if you think this guy really didn't do it. It is. Yeah, absolutely. Because we can't guarantee results. You know, I mean, I'm, I'm sometimes have said to people, I'm not magic. And 12 people that we don't know, and we don't know what the pool of people is going to be, we could get a fabulous group of people that come in that are open-minded and willing to listen to things, or we could get a jury where we have no choice but to put people that, you know, we would be less than happy with hearing a case for our client on a jury. You know, you can only strike so many people. And so you never know.

And you never know what's going to happen at trial. And the difference between a guarantee of 15 years, which you serve on a little more than 10, or spending the rest of your life in prison is a decision I wouldn't want to make. I probably would have taken the plea. First of all, I didn't want to be in jail for the 11 months that I was in jail before the plea deal came to me. So I just knew in my heart that whatever evidence that they said they had was not the evidence against me. Like I knew that I was not wrong. Like I knew I was right. Like now you trying to like ruin my life for 15 years and have me agree to something that I never did. Like I'm not going to I'm not going to do that.

I'm not going to do that. I try to be a man of my word. I couldn't do it. Like I just couldn't do it. Was there anyone asking you to take the plea deal? Did your parents just say, you know, did anyone? No, no, no, no, absolutely not. They told me it was my decision.

But when I told them, no, I'm not taking that deal, they roll with me. Like, everybody I knew just rolled with me. Like, people who know me know me. So they know that that's not nothing that I'm, like, capable of. I didn't lose my mind or I wasn't on drugs. My life wasn't bad to say, oh, F it, tonight, I'm about to have a shootout with the police. That's not in my character.

I had a good life, so people who know me, they could feel the truth. But knowing that the jurors, out of 12 people, I know 12 people ain't going to think exactly the same. So that was terrifying. That was super terrifying. Scary. The trial began October 2, 2017, a year and six months after Sylvan was shot.

In her opening statement, Julie Hahn of the Monroe County District Attorney's Office said, this case is not about taking sides on a hot topic in our society. As tempting as it may be to make the case about that, that's not your job as jurors. Officer Ferrigno testified, along with his partner who'd been with him that night. They testified they'd been in the area looking for a suspect who had, quote, menaced someone, threatened them with a gun. That person was thought to have a Chevy Impala. Sometime after Sylvain was shot, a report was created where the individual who had been looking for the suspect in the menacing case, wrote a report and gave a description of the vehicle as being somewhat similar to the car that Savan was riding in. So this guy, his name is

Ivory Golden. He was believed to have menaced somebody and he was supposed to be driving an Impala. And the color of the car changed from reports anywhere from silver to gray to tan to gold and the report that designated what Ivory Golden's car actually looked like was written after Sylvain was shot so they kind of went back and made that report after the fact which was very troubling to me. So they said that they saw this car and that it was speeding, which both Sylvain and the driver of the car, a guy by the name of Tron's car and then Ferrigno's car came down Immel Street, who say that there was nothing unusual about the way Tron drove his car. He backed into the driveway like he normally does. His girlfriend had a bum knee, and it was easier for her to get in on the driver's side when it was positioned right by her door. So there was nothing unusual about that. They didn't drive in in any kind of way. But

Officer Ferrigno says that they were speeding, that they banked the corner, that they sped up Immel Street, slammed on the brakes, shut off the lights, and then backed into the driveway very quickly. Officer Ferrigno testified that he saw both the driver and passenger lean down, quote, as if trying to conceal something or reach for something. He claims he identified himself and he approached, at which time he says that there was a figure that got out of the passenger side that moved up the driveway. He says that he ordered the driver to stay where he was and that he followed the individual down the driveway. And then at some point, he saw what he believed to be a turn. And then he saw a muzzle flash. A muzzle flash is a gun kind of going off. Correct. Yep. So it was very dark in the backyard, and there's this tree at the corner.

There's a little shed, and then there's a tree, and then there's a little cut-through, and then there's a chain-link fence. And right around that area is where Officer Ferrigno says that he saw the muzzle flash. And he agreed. He admits that he could not see anything that was going on in the backyard. And he took a few steps further, and then he just started firing into the dark. District Attorney Julie Hahn asked Ferrigno why he returned fire. And Ferrigno testified, quote,

because I was scared he was going to kill me. The state also presented audio from ShotSpotter, a gunshot detection technology that uses sensors to alert police when shots are fired. The manager for forensic services for ShotSpotter testified that the audio sensors initially only detected four shots, and that they changed the report to indicate five shots. Three hours after Sylvan was shot, somebody from the Rochester Police Department

contacted ShotSpotter. A Rochester Police Department officer said during the trial that ShotSpotter found a fifth gunshot after this request. ShotSpotter claims that the original audio file is lost. Liz Riley and Katie Higgins argued that it wasn't possible for Silvan to shoot Officer Ferrigno because he didn't have a gun. His fingerprints and DNA were not on the gun recovered in his backyard. His repeated requests to be tested for residue were ignored. No gun was found inside his home.

Only four shell casings were found at the scene, consistent with the four shots Officer Ferrigno fired. Liz Riley says they also focused on the conflicting reports offered by Officer Ferrigno and his partner. The version of events that Ferrigno's partner put in didn't make sense logically, and I think we did a good job of breaking down how his claim that he was there and he saw it happen

was not accurate. It was just physically impossible. He claimed to have been at the base of the driveway and witnessed the shot. He also claimed that he heard a bullet pass over his head. There was a lot of things that he said that just didn't make any logical sense, and I think that that was something that helped us. The other thing that helped us is that that officer's brother was one of the first people that arrived on scene,

so it helped, it certainly helped solidify for me that there was a cover-up going on, and I think it was facts that we could use to show the jury that this was possible. What was it like watching Ferrigno take the stand? Describe that scene. Officer Ferrigno is a pretty imposing figure. He's pretty tall, he's pretty muscular. And he took the stand, and the officers are trained to look at the jury when they're testifying. And what really struck me during his testimony was here was the prosecution's star witness.

Here was their victim of an attempted homicide. He was a police officer. He had been in the force many years, you would think that the jury would be absolutely all eyes, all ears, fascinated with his testimony. And instead, watching him testify and then watching the jury's reactions, that really was the first time that I started feeling really optimistic in the middle of trial, because the jury members were not making eye contact with him. A lot of them were looking at their hands, at their feet, at the floor. They were looking at Sylvain. They were looking at the prosecution table, but not at Officer Fregno as he was testifying. All of them had already heard just very briefly that he had had a number of excessive force complaints against him.

That was part of the jury selection process, that they were all informed about that to ensure that they could still be impartial even having that information. So they may have had a little bit of background information that he was an officer who had had excessive force complaints in the past, but their reactions to his testimony were really quite eye-opening. The trial lasted for nearly a month. After four days of deliberation, the jury came back with their verdict.

They found Sylvan not guilty of attempted aggravated murder of a police officer, attempted aggravated assault of a police officer, and of criminal possession of a weapon with the intent to use it unlawfully against another person. But he was convicted of being in possession of a gun that he didn't have a permit for outside of his home or place of business. Katie Higgins. I remember Sylvain's mother breathing out this huge sigh after the first not guilty, which was the attempted aggravated murder.

And as soon as the foreperson said not guilty, I remember hearing her kind of gasp and sigh. And it was like all this air being let out of a balloon, like there was all of this air in the room, and it just kept getting smaller and smaller as everyone's just kind of all of a sudden being able to breathe again until the very end, where Sylvain was so shocked by what had happened that he couldn't speak. And when Judge Chacho agreed to release him and give him some time out for the holidays with his family before he was planning to sentence him on the one remaining count, he had asked him things like, you know, you have to come back to court and you understand, yes, I understand. And he ended up knocking on the table as his way of showing that he heard and he understood. And we walked back into the hallway at the end of that.

And Sylvain finally was able to kind of catch his breath. And I remember he looked at both of us and he said, I don't understand what just happened in there. And Liz turned to him and said, you just got the rest of your life back. I was just thankful. I was super thankful. I was just thankful for the people who believed in me and the people who was rooting for me and the people who worked real hard to make sure that I had a chance. I can't wrap my head around it to this day. It's still overwhelming to this day. Everyone went back to court after the holidays

for Sylvan's sentencing on the possession conviction. It was mandatory that he would be sentenced to three and a half years. But that's not what happened. A stunning ruling today during the sentencing of a man accused of shooting at a Rochester police officer. In a highly unusual decision, Judge Chacho did not sentence Silvon Simmons today. He overturned his conviction.

To the shock of all of the police officers in attendance and to the prosecution, the judge said that shot spotter technology was not reliable enough without other evidence. Therefore, he granted the defense's motion to overturn the conviction. Immediately after the ruling, there was an outburst from Officer Ferrigno and his family who could be heard saying that Simmons was lucky and that he should watch himself. Today, Sylvain is back at work. Before all of this, he worked for a company called ABR Wholesalers, delivering HVAC equipment. The owners have known him since he was a little boy,

because his father used to work for them, too. They stood by his side the whole time. He's back at work with them. He can't do the same physically demanding labor he used to because of his injuries. He still has two bullets inside his body, but he's there, trying to get back to normal. If you could have a very simple conversation

with Officer Ferrigno, what would you say to him? I don't want to say no words to him. I'm suffering. Do you hear what I'm saying? So, like, I don't know. I saying? So, like, I don't know. I need that. I know he—I don't know.

I just need that. I don't know what I'd say to him. I probably wouldn't even want to say nothing to him. That would probably be the best thing, not to say nothing to him. He know what really happened. Like, he know that. He know what really happened. Like, he know what really happened. Like, he know that. He know what really happened.

Like, he know. Criminal is created by Lauren Spohr and me. Nadia Wilson is our senior producer. Audio mix by Rob Byers. Julian Alexander makes original illustrations for each episode of Criminal. You can see them at thisiscriminal.com. We're on Facebook and Twitter at Criminal Show. Criminal is recorded in the studios of North Carolina Public Radio, WUNC. We're a proud member of Radiotopia from PRX, a collection of the best podcasts around. I'm Phoebe Judge. This is Criminal. Radiotopia from PRX. selling product of its kind with over 20 years of research and innovation. Botox Cosmetic, Adabotulinum Toxin A, is a prescription medicine used to temporarily make moderate to severe frown lines,

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