00:00:01
There was no cops following us the whole night. Like it would have been no need for it. We
00:00:07
wasn't speeding. Wasn't doing anything criminal. It it it it just was It came out the clear blue sky.
00:00:20
On Friday, [music] April 1st, 2016, 34-year-old Silvon Simmons was planning to have a barbecue at his next-door
00:00:28
neighbor's house in Rochester, New York. >> [music] >> Just before 9:00 p.m. Silvon and his
00:00:34
neighbor went to the store. His neighbor drove them in a Chevy Impala with Silvon
00:00:39
in the passenger seat. Went to the store. Came back from the store. Everything was
00:00:45
good on the way there, on the way back. And um >> [music] >> Shortly after we pulled in the driveway,
00:00:51
went totally wrong. What happened? We got out the car. Police officer came. Like literally and just hopped out the
00:01:02
car. No sirens. No nothing. He >> [music] >> It was a a spotlight. He hopped in front
00:01:10
of and That's it. All you seen was a gun. According to Silvon the officer did not identify himself or
00:01:22
say anything at all. No sirens, no flashing lights, just one bright spotlight and a man coming toward him
00:01:30
with a gun. And you started running. Absolutely. Where do you run? Away. Which is the only way to run away was
00:01:41
towards the back of my house. As I'm getting close to my back door I hear the shot. I feel the shot.
00:01:50
I don't believe that he actually shot me, but I know I'm shot. And then he shot again.
00:01:57
Then he shot again. Then I dove over a fence. I get on the ground and um play dead.
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>> [music] >> Officer Joseph Ferrigno fired his gun [music] four times. Three of the four
00:02:16
shots made contact with the back of Silvon's body. When you actually [music] there
00:02:23
the person getting shot you don't know what to think. Like the the first thing that come in your mind
00:02:30
is I got shot, I'm about to die. Like that's the first thing that come to your mind. Like
00:02:35
You don't think I got shot, I'm about to survive. Like all I wanted to do was get out the line
00:02:41
of fire. Like it was one, two, three. Like they kept coming. It was going to keep coming. Like like
00:02:46
That's all I'm thinking is that I can't believe that somebody is really trying to kill me
00:02:52
right now. Like Like I I I see the gun, but I I don't I don't have problems with
00:02:58
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
00:03:06
right now. Like like We We ain't got time to talk right now. Why you got that gun and you chasing me?
00:03:12
What What do you remember next? Um I'm just trying to be as still and quiet as I possibly can be.
00:03:23
So he think I'm dead. Next thing you know um my leg like start killing me. Like it's literally killing me. Like
00:03:34
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 I do make
00:03:40
sound. >> [sighs] >> So he come over to me. Start kicking me, pointing the gun in the face, telling me
00:03:47
to shut up. I play dead again. Officer Ferrigno declined to speak with us. We can confirm that medical records show
00:03:57
bruising on Silvon's rib cage and broken ribs. He was handcuffed and then searched.
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More officers arrived. I just want to survive. Want to know where the ambulance at.
00:04:10
So a thousand things a second going through my mind. My kids, my family, parents, friends.
00:04:18
Just people who care about me. Like what Like what they going to think? How this story going to
00:04:25
go? Like it's all type of stuff that's going through my head at the time. Later that night, the Rochester Police
00:04:32
Department's Jackie Shuman gave this statement to reporters. Officers were conducting an investigation involving a
00:04:39
vehicle in the area of Emerald Street near Jay Street. Uh during the investigation, shots were
00:04:45
exchanged between the officer and a suspect. The suspect was struck. He's in serious condition, but he's
00:04:53
alert. And at this point we are um still conducting our investigation. It's still
00:04:58
preliminary at this time. Officer was unhurt? Yes. Officer No officers are hurt.
00:05:06
I first heard about it in the morning on the news. Liz Riley is a special assistant public defender at the Monroe
00:05:12
County Public Defender's Office. The news was reporting that an individual had shot at a police officer and that he
00:05:19
was shot in return. Um My first instinct, to be honest, was they shot this guy and now there's a
00:05:28
cover-up. >> [music] >> I'm Phoebe Judge. [music] This is Criminal. What happened when you got to the
00:05:44
hospital? I had um tubes in my lungs and tubes in my throat. Cuz I was actually awake. So
00:05:53
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.
00:05:59
It's a lot of police around me. And like I could feel a bad vibe. I'm like writing notes asking for my
00:06:07
parents, asking somebody to call them. When Silvon arrived at the hospital, they made an incision all the way down
00:06:15
his torso to check for internal injuries. The bullet that hit his thigh went through him and out the other side of
00:06:22
his leg. But he still had a bullet near his pelvis and another one in his mid back
00:06:28
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
00:06:35
that's why he was trying to communicate by writing notes. Yeah, I got to write notes. I don't wrote a thousand notes.
00:06:41
Like I need to see my parents. I need to see my kids. I need to see my family. I
00:06:46
need to see a lawyer. Like I need to see a lawyer for this because y'all doing something wrong
00:06:52
right now. He had been writing notes asking to see a lawyer, asking to speak to his father,
00:06:57
asking to have a phone call, asking to know what was going on, to see the news. And he was he wasn't getting any
00:07:04
answers. So he's very frustrated. He wasn't arraigned, so he was held. So he wasn't entitled to an attorney. They
00:07:10
waited until the breathing tube was taken out of him. And within hours after his breathing tube was removed today,
00:07:18
went in and spoke with him and interviewed him. Um while he was drugged up and had been
00:07:25
kind of out of it for days. >> [sighs] >> Um So when he was actually arrested, I
00:07:30
have no idea if even they knew what they were charging him with. The investigators tried to tell me like,
00:07:35
"Oh yeah, well something happened earlier in the neighborhood." And they started off with okay at 9:00. When
00:07:42
they started questioning me, they started off like 9:00. What happened? I'm telling them like we
00:07:47
went to the store. We come back from the store. Spotlight pop up. See a gun. Run from
00:07:54
it. Get shot. Come to find out police shot me. But then he come up with this story like and try to lead me
00:08:02
through the story. Like, "Yeah. Something happened earlier. Some people came back. It was gunshots fired in
00:08:08
front of your house. You went and got a gun so you could protect yourself. And when you seen the police officer, you
00:08:14
were scared." Something No. Um But he so sure it went like that. And I'm like, "That's not how it went." So
00:08:21
I'm like, "What am I getting charged with?" He was like, "Well there's going to be some assault
00:08:26
charges." I'm Assault charges for what? He was like, "Well you did shoot at the police." I I did
00:08:33
not shoot at the police. Did you have a gun? No, ma'am. >> [music] >> According to the Rochester Police
00:08:43
Department, a 9-mm handgun was found at the scene, 4 to 10 feet from Silvon. Police Chief Michael Simmonelli held a
00:08:52
press conference in which he said if someone fires a gun at an officer the ability to return fire is certainly
00:08:59
legally justified. The officer is entitled to protect himself. Silvon says he begged to be [music]
00:09:07
checked for gunpowder residue. Like I'm constantly like we can get to the bottom of this right now. Like if if
00:09:14
it went the way [music] if I actually shot somebody, like my hands. So like like it it it was
00:09:22
it [music] was a scary feeling. It was terrifying. It was like the worst thing ever. Like
00:09:29
cuz the officer was white. I am black. I was in the inner city when I got shot. [music] Except for I didn't have a gun.
00:09:35
And since I didn't have a gun and I survived, all of a sudden there's a gun [music]
00:09:39
involved just to justify me getting shot. Silvon Simmons was transferred from Strong Medical Hospital to the Monroe
00:09:48
County Jail. He was facing four felony charges. One count of criminal possession of a
00:09:54
weapon with the intent to use it unlawfully against another person. One count of criminal possession of a
00:10:00
weapon outside of his home or place of business. One count of attempted aggravated
00:10:06
assault on a police officer. And one count of attempted aggravated murder of a police officer.
00:10:15
One person remains in serious condition after exchanging gunfire with a Rochester police officer. Police say
00:10:21
[music] Sylvon fired at Officer Ferrigno on Immel Street when the officer approached Sylvon and someone else in
00:10:27
their car. Police say Sylvon missed and the officer returned fire hitting Sylvon
00:10:33
three [music] or four times. I would say it's it's typically not our practice to ask somebody
00:10:48
"Did you do it?" Assistant public defender Katie Higgins. She and Liz Riley were assigned to
00:10:54
defend Sylvon Simmons. We don't start conversations by saying "Oh, they're saying you shot at a cop. Did you do
00:11:00
it?" Usually it takes time to build trust. Um normally you want to talk to the client about what
00:11:08
the charges are, what the government is saying they did. But I do remember with Sylvon that he
00:11:15
was very confused for many days about why he was arrested and why they um why he was in police custody.
00:11:22
So when we went and met with him, he was pretty adamant from that very first meeting onward that he
00:11:30
did not do that. One of the first things Sylvon asked for was to see his parents.
00:11:36
Here's Liz Riley. We later came to know that his parents are just about the nicest people the world has ever seen.
00:11:43
And they had come up from Tennessee where they had basically retired to. And um no one could no one would let them see
00:11:52
their son. They knew he had been shot. They didn't know his condition. And so one of the first things that we
00:11:57
focused on was getting them into see their son. Their next step was to go to Sylvon's street and begin to talk to his
00:12:05
neighbors. Many of whom had been outside that night and had information about what they'd seen and heard. Katie
00:12:13
Higgins. We had extremely limited information. We knew what the charges were. We knew
00:12:19
the date and time that they had occurred. And that was it. We didn't know what evidence there was or wasn't. We
00:12:28
didn't know if the officer was actually injured. Uh we didn't know if there had been
00:12:33
you know, a bullet recovered that they were saying Sylvon had fired at the officer. I mean, we had very very
00:12:40
very little information about how strong the case was or wasn't. So certainly just seeing the charges and knowing that
00:12:48
the government was going to show up with a victim being an officer, a police officer that certainly
00:12:57
was intimidating. According to Katie Higgins and Liz Riley as other attorneys in Rochester learned
00:13:06
about the case and learned that it involved Officer Ferrigno they came forward with information. Probably at
00:13:13
least half a dozen lawyers came to me immediately telling me, "You got to know about this.
00:13:17
You got to know about that." And gave me little anecdotes of times that they had
00:13:23
had cases where he was involved. Uh I started collecting as much information as I could as to different
00:13:29
cases that I could perhaps use where he had been accused of using excessive force against other people's clients
00:13:36
because there was going to be some ability to build uh a background as to his temperament. In addition to
00:13:46
excessive force complaints, Officer Ferrigno has been named in multiple civil lawsuits against the city of
00:13:53
Rochester. As Sylvon's trial date approached, the district attorney offered him a plea
00:13:59
deal. Here's Liz Riley. He was offered um Let me back up just a second by saying
00:14:06
that if he had lost trial, he was looking at a sentence that ended in life. So any sentence he could have gotten had
00:14:14
he been convicted of attempted aggravated murder of a police officer would have been a potential life
00:14:21
sentence. In other words, it could have been anywhere from 25 to life. I think it went up to 40 to life.
00:14:29
And he was offered a plea to attempted aggravated assault with a flat sentence of 15 years plus 5 years of post-release
00:14:40
supervision. And he would not hear of it. I wonder if that's always stressful for you in your
00:14:47
position to be thinking, "Oh >> [sighs] >> I mean, it must be the most stressful
00:14:52
thing in how you offer advice about taking a plea deal if you if you think this guy really didn't do it?" It it is.
00:15:00
Yeah, absolutely. Because we can't guarantee results, you know? I mean, I'm I'm sometimes have said to people, "I'm not
00:15:09
magic, you know?" And 12 people that we don't know and we don't know what the pool of people is
00:15:16
going to be. We could get a a fabulous group of people that come in that are open-minded and and willing to
00:15:22
listen to things or we could get um [snorts] a jury where we have no choice but to put
00:15:30
people that you know, we would be less than happy with hearing a case for our client.
00:15:38
On a jury, you know, you can only strike so many people. And so you never know. And you never
00:15:42
know what's going to happen at trial. And the difference between a guarantee of 15 years, which you serve on a little
00:15:49
more than 10, or spending the rest of your life in prison is a decision I wouldn't want to make.
00:15:56
I probably would have taken the plea. First of all, [music] I didn't want to be in jail
00:16:04
for the 11 months that I was in jail before the plea deal came to me. So I I I just knew in my heart that
00:16:13
whatever evidence that they said they had was not the evidence >> [music] >> against me. Like I I I knew that I was
00:16:20
not wrong. Like I knew I was right. Like Now you're trying to like ruin my life for
00:16:28
15 [music] 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
00:16:35
I'm I'm not going to do that. I I try to be a man of my word. I I couldn't do it.
00:16:39
Like I just couldn't do [music] it. Was there anyone asking you to take the plea deal? Did your parents just say,
00:16:46
you know, did anyone >> No. No. No. No. Absolutely not. They they they [music] told me it was my
00:16:50
decision. But when I told them no, I'm not taking that deal. They rolled with me. Like everybody I
00:16:58
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
00:17:04
of. I didn't lose my mind or like I wasn't on drugs. Like it it it wasn't any My life wasn't bad to say, "Oh, eff
00:17:13
it. Tonight I'm about to have a shootout with the police." Like that that's not in my character. Like I have I had a
00:17:18
good life. So people who know me they could feel the truth. But knowing that the jurors
00:17:26
out of 12 people, I know 12 people ain't going to think exactly the same. So it it was that was terrifying.
00:17:32
>> [music] >> That that was super terrifying. Scary. The trial began October 2nd, 2017,
00:17:41
a year and 6 months after Sylvon was shot. In her opening statement, Julie Hahn of
00:17:47
the Monroe County District Attorney's office said >> [music] >> "This case is not about taking sides on
00:17:52
a hot topic in our society. As tempting as it may be to make the case about [music] that, that's not your job as
00:17:58
jurors." Officer Ferrigno testified along with his partner who'd been with him that
00:18:04
night. They testified they'd been in the area looking for a suspect [music] who had quote "menaced someone, threatened
00:18:12
them with a gun." That person was thought to have a Chevy Impala. Sometime after Sylvon was shot, a report
00:18:20
was created where the individual who had been looking for the suspect in [music] the menacing case
00:18:28
wrote a report and gave a description of the vehicle as being somewhat similar to the car that Sylvon was riding in.
00:18:36
Um so this guy, his name is Ivory Golden. He was believed to have menaced somebody and he was supposed to be
00:18:42
driving an Impala. And the color of the car changed from reports anywhere from silver to gray to
00:18:50
tan to gold. Um and the report that designated what Ivory Golden's car actually looked like was written after
00:18:58
Sylvon was shot. So they kind of went back and made that report after the fact. Which was very troubling to me.
00:19:06
Um so they said that they saw this car and that it was um speeding. Which both Sylvon and uh
00:19:14
the driver of the car, guy by the name of Tron, deny happened. Um There were people out on the street at
00:19:23
the time that both Tron's car and then Ferrigno's car came down Immel Street who say that
00:19:31
there was nothing unusual about the way Tron drove his car. He backed into the driveway like he normally does. His
00:19:37
girlfriend had a a bum knee and it was easier for her to get in on the driver's side when it was positioned right by her
00:19:43
door. So there was nothing unusual about that. They didn't drive in in any kind of way. But Officer Ferrigno says that
00:19:50
they were speeding. That they banked the corner, that they sped up Immel Street, slammed on the
00:19:56
brakes, shot off the lights, uh and then backed into the driveway very quickly. Officer
00:20:04
Ferrigno testified that he saw both the driver and passenger lean down, {quote} as if trying to conceal something or
00:20:13
reach for something. He claims he identified himself and he approached, at which time he says that there was a
00:20:21
figure that got out of the passenger side that moved up the driveway. He says that he ordered the driver to
00:20:29
stay where he was and that he followed the individual down the driveway and then at some point
00:20:39
he saw what he believed to be a turn and then he saw a muzzle flash. A muzzle flash is is a gun kind of going
00:20:46
off. Correct. Yep. So, it was very dark in the backyard, um and there's this tree at the corner.
00:20:53
There's There's a little shed, then there's a tree, and then there's a little cut through, and then there's a
00:20:57
chain link fence. And right around that area is where Officer Ferrigno says that
00:21:04
he saw the muzzle flash and he agreed, he admits that he could not see anything that was going on in the
00:21:10
backyard, um and he took a few steps further and then he just started firing into the
00:21:18
dark. District Attorney Julie Hahn asked Ferrigno why he returned fire. And Ferrigno testified, {quote}
00:21:27
because I was scared he was going to kill me. The state also presented audio from
00:21:32
ShotSpotter, a gunshot detection technology that uses sensors to alert police when shots are fired.
00:21:41
The manager for forensic services for ShotSpotter testified that the audio sensors initially only detected four
00:21:49
shots. And that they changed the report to indicate [music] five shots. Three hours after Sylvon was shot,
00:21:58
somebody from the Rochester Police Department contacted ShotSpotter. [music] A Rochester Police Department officer
00:22:05
said during the trial that ShotSpotter found a fifth gunshot after this request.
00:22:12
ShotSpotter claims [music] that the original audio file is lost. Liz Riley and Katie Higgins argued that
00:22:20
it wasn't possible for Sylvon to shoot Officer Ferrigno because >> [music] >> he didn't have a gun.
00:22:26
His fingerprints and DNA were not on the gun recovered in his backyard. >> [music]
00:22:32
>> His repeated requests to be tested for residue were ignored. >> [music] >> No gun was found inside his home.
00:22:40
Only four shell casings were found at the scene consistent [music] with the four shots Officer Ferrigno fired.
00:22:47
Liz Riley says they also focused on the conflicting reports offered by Officer Ferrigno and his partner.
00:22:54
The version of events that Ferrigno's partner put in didn't make sense logically and I think we did a good job
00:23:02
of breaking down how his claim that he was there and he saw it happen was not accurate. It was just
00:23:09
physically impossible. He claimed to have been uh at the base of the driveway and witnessed the shot.
00:23:16
He also saw claimed that he heard a uh bullet pass over his head, um there was a lot of things that he said
00:23:25
that just didn't make any logical sense and I think that that was something that
00:23:29
helped us. The other thing that helped us is that that officer's brother >> [music]
00:23:34
>> was one of the first people that arrived on scene, so it helped it certainly helped solidify for me
00:23:41
>> [music] >> that there was a cover-up going on and I think it was it was facts that we could
00:23:46
use to show the jury that this was possible. What was it like watching Ferrigno take
00:23:52
the stand? Describe that scene. Officer Ferrigno is a pretty imposing figure. He's pretty
00:24:00
tall, he's pretty muscular. And he took the stand and the officers are trained to look at
00:24:06
the jury when they're testifying. And what really struck me during his testimony was
00:24:14
here was the prosecution's star witness. Here was their victim of an attempted homicide. He was a police
00:24:22
officer. He'd been on the force many years. You would think that the jury would be
00:24:30
absolutely all eyes, all ears, fascinated with his testimony. And instead watching him testify and
00:24:40
then watching the jury's reactions, that really was the first time that I started
00:24:45
feeling really optimistic in the middle of trial. Because the jury members were not making eye contact with
00:24:53
him. A lot of them were looking at their hands, at their feet, at the floor. They
00:24:58
were looking at um Sylvon, they were looking at the prosecution table, um but not at Officer Ferrigno as he was
00:25:07
testifying. All of them had already heard just very briefly that he had um had a
00:25:14
number of excessive force complaints against him. That was part of the jury selection process that they were all
00:25:19
informed about that um to ensure that they could still be impartial even having that information.
00:25:25
So, they may have had a little bit of background information that he was a an officer who had excessive force
00:25:31
complaints in the past. But their reactions to his testimony were really um quite eye-opening.
00:25:40
The trial lasted for nearly a month. After four days of deliberation, the jury came back with their verdict. They
00:25:47
found Sylvon not guilty of attempted aggravated murder of a police officer, attempted aggravated assault of a police
00:25:54
officer, and of criminal possession of a weapon with the intent to use it unlawfully against another person.
00:26:01
But he was convicted of being in possession of a gun that he didn't have a permit for outside of his home or
00:26:08
place of business. Katie Higgins. I remember Sylvon's mother breathing out this huge sigh after
00:26:19
the first not guilty, which was the attempted aggravated murder. And as soon as the foreperson said not
00:26:24
guilty, I remember hearing her kind of gasp and sigh and it was like all this air being let out of a balloon.
00:26:30
Like there was all of this air in the room and it just kept getting smaller and smaller as everyone's just kind of
00:26:35
all of a sudden being able to breathe again until the very end where Sylvon was so shocked by what had
00:26:41
happened that he he couldn't speak. And when Judge Chacho agreed to release him and give him some time out for the
00:26:49
holidays with his family before he was planning to sentence him on the one remaining count,
00:26:54
um he had asked him things like you know you have to come back to court and you understand your
00:27:00
you know you have to come back in the state for sentencing. And Sylvon was not able to to speak and
00:27:06
to say yes, I understand. And he ended up knocking on the table as his way of showing that he he heard and he
00:27:13
understood. And we walked back into the hallway at the end of that and Sylvon finally was able to kind of catch
00:27:21
his breath and he remember he looked at both of us and he said, I don't understand what just happened in there.
00:27:27
And Liz turned to him and said, you just got the rest of your life back. I I I was just thankful. I was super
00:27:34
thankful. I was just thankful for the people who believed in me and the people who was rooting for me and the people
00:27:39
who bust they who worked real hard to make sure that I had a a chance. Like I just I
00:27:47
can't wrap my head around it to this day. Like it's still overwhelming to this day.
00:27:52
Everyone went back to court after the holidays for Sylvon's sentencing on the possession conviction.
00:27:58
It was mandatory that he would be sentenced to three and a half years. But that's not what happened.
00:28:06
A stunning ruling today during the sentencing of a man accused of shooting at a Rochester [music] police officer.
00:28:14
In a highly unusual decision, Judge Chacho did not sentence Sylvon Simmons today.
00:28:19
>> [music] >> He overturned his conviction to the shock of all of the police officers in
00:28:22
attendance and to the prosecution. The judge said that ShotSpotter technology was not reliable enough without other
00:28:29
evidence. >> [music] >> Therefore, he granted the defense's motion to overturn the conviction.
00:28:34
Immediately after the ruling, there was an outburst from Officer Ferrigno and his family [music] who could be heard
00:28:39
saying that Simmons was lucky and that he should watch himself. Today Sylvon is back at work. Before all
00:28:56
of this, >> [music] >> he worked for a company called ABR Wholesalers delivering HVAC equipment.
00:29:02
The owners have known him since he was a little boy because his father used to work for them, too.
00:29:09
They stood by his side the whole time. He's back at work with them. He can't do the same physically
00:29:15
demanding labor he used to because of his injuries. He still has two bullets inside his
00:29:21
body. But he's there trying to get back to normal. If you could have a very simple
00:29:29
uh conversation with Officer Ferrigno, >> [gasps] >> w- what would you say to him?
00:29:39
I don't want to say no words to him. I'm I'm I'm I'm suffering. Like you hear what I'm saying? So, like
00:29:49
I don't know. I I need to I I know he I don't know. I I just need to I I I don't know what I'll say to him. I I
00:29:56
probably wouldn't even want to say nothing to him. That'll probably be the best thing, not
00:30:01
to say nothing to him. He know what really happened. Like he know that he know what really happened.
00:30:08
Like he know. [music] >> [music] >> Criminal is created by Lauren Spor [music] and me. Needy Wilson is our
00:30:25
senior producer. Audio mix by Rob Byers. Julian Alexander makes original illustrations for each episode [music]
00:30:32
of Criminal. You can see them at thisiscriminal.com. We're on Facebook and Twitter at
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Criminal Show. >> [music] >> Criminal is recorded in the studios of North Carolina Public Radio WUNC.
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We're a proud member of Radiotopia from PRX, a collection of the best podcasts around.
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I'm Phoebe Judge. This is Criminal. >> [music] >> Radiotopia [music] from PRX