After Andre Brown spent 23 years behind bars, found guilty of shooting and wounding two men on a Bronx street in 1999, his conviction was overturned on the grounds that he had a shoddy trial lawyer.
Mr. Brown, who has long maintained his innocence, stepped out of prison more than two years ago, came home to his family and began working in a youth court mentoring program.
The family of O’Neil Virgo, one of the victims, was horrified. Mr. Brown was the gunman, they said, and his release had reopened wounds they had spent decades trying to heal. Officials with the Bronx district attorney’s office challenged the judge’s decision and questioned why Mr. Brown had waited roughly two decades to present this particular defense.
On Christmas Eve, prosecutors won an appeal to reinstate Mr. Brown’s original conviction. The decision would send Mr. Brown, 48, back to prison to resume his 40-year sentence, barring a judge’s last-minute intervention.
He is set to surrender on Friday.
“I never would have thought they would have reinstated this case,” Mr. Brown said on Tuesday, seated in a bright conference room in the Bronx offices of the Fortune Society, an outreach organization where he had been slated to start a job on Monday.
“I feel as if I’m being pushed back into a sepulcher,” he said.
His two consecutive 20-year prison terms for attempted murder were far more severe than what he would have been likely to receive today, said Oscar Michelen, one of Mr. Brown’s lawyers.
“It was his first violent offense, as a young man at 22,” Mr. Michelen said. “Back then, they just wanted to lock people up and throw away the key, but society has evolved and that’s not our sentencing approach anymore. Today we know that warehousing people doesn’t work, it doesn’t deter crime, it doesn’t rehabilitate people.”
A spokeswoman for Darcel Clark, the Bronx district attorney, said her office would not comment before Mr. Brown’s appearance in court on Friday.
Last month, Bronx prosecutors agreed to a monthlong delay while Mr. Brown asked Gov. Kathy Hochul for emergency clemency. But Mr. Brown was notified on April 14 that the clemency would not be immediately granted. A spokesman for Ms. Hochul said her office did not comment on such cases.
As a last-ditch effort, Mr. Brown late Wednesday night asked for a judge to resentence him to time served.
Mr. Brown admits that he began selling crack at age 15, but he quit in 1998 after being shot in the leg and then got a steady job and began taking community college classes, Mr. Michelen said.
Just after the 1999 shooting of the two young men by a masked gunman, Mr. Brown heard the police were looking for him and reported to a precinct house to clear his name, but was promptly arrested, the lawyer said.
He pleaded not guilty, but during his trial, one of the shooting victims identified him as the gunman, as did a bystander whose grand jury testimony was read into the record.
In prison, Mr. Brown was a regular in the law library and filed motions to have his conviction overturned. He described his two decades bouncing among upstate prisons as marked by despair and the constant threat of violence. But studying, he said, gave him something to live for.
In 2019, Mr. Brown filed a motion arguing that his legal team had new evidence that would have changed the verdict, including testimony from a witness who identified a different man as the gunman and another who said that there had been a turf war days before between dealers at the corner where the episode had taken place.
He also claimed that his trial lawyer, Thomas Lee, had failed to establish that he had a leg injury, which he says made it impossible to run and would have prevented him from chasing the victims.
Mr. Lee was arrested in 2005 for conveying messages from mob capos in prison to underbosses outside. He testified against the mob in return for leniency. Mr. Lee, who was disbarred but later reinstated, did not respond to messages seeking comment on Mr. Brown’s case.
In 2022, a state Supreme Court judge ruled that Mr. Lee had in fact been ineffective, but said the other new evidence was immaterial and false. Mr. Brown walked free.
“It was one of the most joyful times for me,” he said.
Two years later, in December, a judge in the Supreme Court’s Appellate Division approved Ms. Clark’s motion to send him back to prison.
Bronx prosecutors argued that Mr. Brown’s failure over two decades to report Mr. Lee for omitting the leg injury could suggest that he had recently fabricated the defense. The appeals court judge, Troy K. Webber, also questioned the delay.
“At the very least, it is curious that there is no explanation by defendant as to why he waited 19 years,” Justice Webber wrote in a footnote. And, the court ruled, it was reasonable to conclude that Mr. Lee had simply chosen not to use the leg injury defense.
“The evidence, the law and the circumstances — viewed in their totality and from the perspective at the time of representation — demonstrate that Lee provided meaningful representation,” the decision said.
Steven Zeidman, a CUNY Law School professor who helps run its Second Look Project advocacy program for people serving long sentences, said Mr. Brown “checks off all the boxes” for clemency.
“You have someone who’s been out and doing well for two years, worked for a judge, living with his family, working with kids, and you’re going to rip him away from that and put him back in?” Mr. Zeidman said.
But the family of Mr. Virgo, the victim, said in a statement on Wednesday that Mr. Brown’s release in 2022 was “deeply unsettling.” Mr. Virgo had maintained with “absolute certainty” that Mr. Brown was the shooter, the statement said.
Mr. Virgo’s family said he had spent the years after the shooting in a state of prolonged trauma, struggling to go outside for fear of reliving the episode. He died last month, which his family called a result of worsening medical problems caused by the shooting.
His family said that 23 years in prison did not feel like sufficient punishment. “What’s most painful,” the family wrote, “is that Mr. Brown has never shown remorse, empathy, or accountability for the pain he caused.”
After Mr. Brown’s release, he began working with youth in a high-school equivalency program run under the auspices of the New Rochelle court system, just north of New York City. He helped start a chess club and a book club.
Mr. Brown reconnected with a childhood friend while in prison. They married and had a son who is now 14. He also has a stepdaughter, Trinity, who is set to graduate from college next month.
Mr. Brown said he and his wife had worked hard to build a peaceful life for their children in suburban Connecticut.
“I haven’t slept,” Mr. Brown said. “I wake up almost every hour and go into their rooms just to look at them.” He added: “Just in case this all fails and I have to go back in on Friday, I want to remember my wife’s face fully in my head, and my kids’.”
Corey Kilgannon is a Times reporter who writes about crime and criminal justice in and around New York City, as well as breaking news and other feature stories.
Maia Coleman is a reporter for The Times covering the New York Police Department and criminal justice in the New York area.
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