A Bronx man who spent 23 years in prison and has been free for two years after his attempted murder conviction was overturned, has filed an emergency clemency petition with Gov. Hochul following a decision by an appeals panel to reinstate the judgment, records show.
Andre Brown, 48, now faces the unusual situation of upending a life he has been building since his release amid the looming possibility he will be sent back to prison for shooting and wounding two people in January 1999 — a crime he steadfastly maintains he did not commit.
Brown had already served 23 years of a 40-year sentence before he was freed in December 2022.
Bronx DA Darcel Clark has declined thus far to support a resentencing that might take into account the many years he has already served, troubling questions about the case evidence and documented errors by Brown’s trial lawyer — leading to the request for Hochul to intervene, said Jeffrey Deskovic, one of Brown’s lawyers.
On Wednesday afternoon, Clark agreed to a one-month stay in proceedings so the clemency review can take place, the DA’s office confirmed. A court hearing slated for Thursday has been postponed until April 17.
“Andre has already served 23 years in prison, and it’s doubtful he would have received a 40-year sentence today,” said Deskovic.
“This case is not like someone is granted clemency while on the inside. Here, he’s been home for two years and has done extraordinary work in the community. What is there to be gained by reincarcerating him? He’s an asset to society and we’re going to lose out because of it.”
The clemency plea also has the backing of the Innocence Project, which investigates wrongful convictions.
Matt Janiszewski, a spokesman for Hochul, declined to comment on the clemency petition. Brown and his lawyers met with an official in Hochul’s clemency office on Tuesday.
Since his release, Brown has worked at a Westchester County-based nonprofit, where he founded a GED program and a chess club, Deskovic said. He has also worked with at-risk youth, in part running a book club, in New Rochelle City Court. He is married with a stepdaughter and a stepson.
Before he went to prison his only work experience was a brief stint at Crate & Barrel, he said. He was a model prisoner, took a range of business classes and got a certificate as a paralegal behind bars and when he was freed he says he wanted to give back.
“One of my goals was to go back into Black and Brown communities and help give them a new way of life and a new way of thinking,” he told The News.
“I am totally innocent of this crime. There is a third party shooter, and we have the identity of this person,” Brown said. “There are two individuals who were shot, but I am also a victim because I am an innocent person who was caught up in this.”
Case beginnings
In 1998, Brown, faced with having to help raise his siblings, “turned to the street” and dealt crack cocaine until he was shot in the leg and nearly bled out, his clemency petition states. He quit dealing and enrolled in community college.
On Jan. 15,1999, O’Neil Virgo and Shawn Nicholson, two drug dealers who had been involved in a turf war, were shot. Virgo was shot six times, but survived. Nicholson became a paraplegic.
Brown heard cops wanted to speak to him and turned himself in with his lawyer at a police precinct and fully expected to be cleared, he said Wednesday.
“I walked right into the precinct because I was an innocent man who had nothing to hide,” he said.
Brown was convicted in 1999 and sentenced to 40 years in prison.
Once in prison, Brown filed a series of pro se appeals and then obtained lawyers who filed a 440 motion to vacate the conviction.
On Dec. 1, 2022, Judge David Lewis issued the decision that set Brown free. Witnesses said the attacker had run away, and Lewis found that his trial lawyer, Thomas Lee, didn’t present evidence that Brown had been previously shot in the leg one year earlier in January 1998, which prevented him from running from the scene.
“Counsel for Brown never addressed the issue that the injury to the leg made it impossible for him to run,” Lewis wrote in his 92-page decision. “If he could not run, he could not be the gunman and thus could not be convicted.”
Lee was later convicted of racketeering for being an associate of the Lucchese organized crime family. He was sentenced to time served in 2019 or three days in a federal holding cell and went into the witness protection program. His law license was reinstated in 2021.
But in a Christmas Eve, 2024 ruling on Bronx DA Clark’s appeal motion, the state Appellate Division rejected the decision of the lower court, suggesting the choice not to present the medical evidence could have been strategic.
“It is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel’s failure” to introduce evidence, wrote appellate Judge Troy Webber.
The New York Court of Appeals, the state’s highest court, declined to grant permission to appeal, blocking further appeals.
But, as the clemency plea details, Brown’s lawyers also showed that according to two witnesses, Shonda “Bonkers” Tyrell, a man the “spitting image” of Brown, had been in a shootout with the victims at the same spot four days earlier. Tyrell died in 2000.
The witnesses never testified because the trial judge refused to issue subpoenas without an address for the men, the plea states.
Deskovic and Brown noted Clark has agreed to a resentencing in at least one other similar case. “The real question is why she hasn’t done it already — why with so much evidence are you not dismissing this indictment?” Brown said.
“This is destroying my family,” added Brown, whose son is 14. “My daughter is graduating from college in May with a psychology degree. I will not be able to attend. My son who has NBA aspirations may become just a statistic.
“I don’t believe DA Clark is putting any humanity into this. That’s a heartless way to go about it.”