A judge will resentence Andre Brown later this year, opening the door for him to remain free despite his reinstated conviction. The Bronx-born father faced the possibility of resuming the now-vacated 40-year prison bid he was freed from in 2022 after already serving 23 years due to an initially successful ineffective assistance claim. The courts reinstated the conviction at the end of last year.
His time served could account for his entire revised sentence, preventing reimprisonment come the next hearing on Dec. 1.
He has long maintained his innocence for shooting two men in 1999. The Bronx District Attorney’s Office believes he did the crime, but also did the time. Although prosecutors stand by the conviction and previously pushed for the reinstatement, they do not seem keen on sending him back to prison either. Still, resentencing will not completely clear Brown’s name. The guilty verdict will remain under the resentencing but will allow the judge to adjust the legal penalties based on the case’s outlying factors like modern criminal justice standards.
Brown faced roughly 17 more years in prison and initially planned on surrendering himself this past March to resume his sentence before receiving a last minute stay for Gov. Kathy Hochul to review his clemency petition. He called the entire process “chaos” ever since the courts reinstated his conviction.
“So when the judge told me that the sentence was vacated, and [my lawyers] Jeff and Oscar were by my side it meant the world to me,” said Brown. “It just reinvigorated my spirit and my soul to allow me to know that although I faced a greater injustice by my wrongful conviction, some type of justice now can start as the wheels are turning towards that justice.”
While resentencing may favor Brown, there is no guarantee he will remain free. He could face a reduced sentence with enough time still on the books for reimprisonment, or even receive the same 40 years or more. However, resentencing will likely factor in outdated and disproven tough-on-crime policies, including draconian sentencing practices.
“The D.A. now has to look at what would a sentence be like today,” said his attorney Oscar Michelen. “Where we know more about mass incarceration, where we understand that these lengthy sentences do not rehabilitate, they’re merely punitive and create a cycle of recidivism and poverty. But if we want to be legally accurate, the judge could sentence him up to 50 years [of] incarceration.
“Obviously, I don’t think the judge would vacate the sentence if he’s gonna go right back and give him the same thing. And we do believe that after he reads our papers and the DA’s position, that he is going to sentence him to time served. But it’s totally within the discretion of the judge.”
Brown’s sentence stems from two consecutive 20-year sentences for attempted murder in the 1999 shooting which left two young men with lasting injuries. However, his previous attorney did not introduce significant evidence during the trial and focused his defense on attacking the teenage victims’ character, including calling them “drug dealing thugs.” At the time of the shooting, Brown walked with a limp from being shot himself and such a defense would directly counter witness testimony recounting the masked suspect sprinting.
His innocence claim points to the medical evidence and argues a case of mistaken identity, with his lawyers presenting an alternative suspect they say closely resembles Brown.
The Bronx D.A. maintains the conviction holds up and previously questioned why the evidence mentioned in the ineffective counsel claim was not previously introduced until 2019 by his current lawyers. In their filings, the prosecutors argued the limp would be detrimental to Brown’s defense during trial and was withheld strategically given his gunshot injury stemmed from his time dealing drugs, a fact he is now candidly open about.
However, the Bronx D.A. also argued if the conviction occurred today, the office would not pursue a lengthy 40-year sentence against Brown. “Mindful of the impact that defendant’s conduct had on the victims, including their enduring pain, we nevertheless believe that the defendant has served a just punishment and public safety and the interests of our community are not served by returning the defendant to prison,” wrote the prosecutors. They also pointed to post-release, where Brown not only avoided recidivism but is living a “productive life.”
In prison, Brown reconnected with his childhood friend Tameka, whom he later married. Today, they raise their son AJ and his stepdaughter Trinity. “These wonderful children, they [bore] the brunt of … the decision of the Appellate Division to reinstate the case and my life was turned upside down at that time. And throughout the course of the summer, it was a lot of despair, anger, frustration [and] stress.”
After returning home, Brown worked with at-risk youth as a credible messenger and founded a GED program and chess club at a nonprofit he worked for in New Rochelle. Letters and petitions calling for Hochul to grant him clemency poured in after his conviction was reinstated.
His lawyers firmly believe in Brown’s innocence, taking his case pro-bono (free) with the ultimate goal of exonerating him. Michelen, the lead counsel, boasts multiple exonerations under his belt and his co-counsel, Jeffrey Deskovic, is an exoneree himself who became a lawyer after establishing a nonprofit under his name to help challenge wrongful convictions. The two also work together representing John “Divine G” Whitfield, who Colman Domingo portrayed in an Oscar-nominated performance in the film “Sing Sing.”
“I have not paid Oscar Michelen a dime at all out of pocket,” said Brown. “Since 2016, he has been working for free [and] not getting sleep. Jeffrey Deskovic has been working for absolutely nothing, and they have gotten minimal hours of sleep.”
Editor’s Note: This story has been updated to clarify language on Brown’s sentencing based on information from the source.