Post-Conviction Victory on Direct Appeal

On April 14, 2021, the Appellate Division, Second Department reversed the conviction of Portale Randazzo client, Elvis Moreno, and dismissed the indictment against him. Although Mr. Moreno was merely an unwitting and innocent passenger in a car where a drug sale took place, he was wrongfully convicted after a jury trial in 2015 of one count of criminal sale of a controlled substance in the third degree and one count of conspiracy in the fourth degree. The sentencing court had labeled him a “drug kingpin” and had sentenced him to seven (7) years in prison despite Moreno having no criminal record.

On appeal, a unanimous Court agreed that the evidence against Mr. Moreno was legally insufficient to establish his guilt because mere presence during the sale did not prove beyond a reasonable doubt that he shared his co-defendant’s state of mind to knowingly and unlawfully sell drugs. As the court recognized, there was zero evidence that Mr. Moreno participated in arranging the drug sale on that date or had any prior discussion with his co-defendant about selling drugs on that date. There was also zero evidence showing that Mr. Moreno was aware of an imminent drug sale nor was there any evidence that he intended to aid in the commission of the sale. We are relieved that the Appellate Division has corrected this unlawful conviction and that Mr. Moreno has been vindicated after losing Three (3) years of his liberty. Vivian Shevitz, of counsel to the firm wrote and argued an incredibly persuasive brief.