OSVALDO HERNANDEZ : Indictment number DEFENDANT : JAMES D. HARMON, JR., an attorney duly admitted to practice law in the State of New York,

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS: Part K2...x PEOPLE OF THE STATE OF NEW YORK : - against - : AFFIRMATION OSVALDO HERNANDEZ : Indictment number DEFENDANT :...x JAMES D. HARMON, JR., an attorney duly admitted to practice law in the State of New York, hereby affirms the truthfulness of the following under penalties of perjury: 1. I am the attorney for defendant Osvaldo Hernandez in this matter. I have personal knowledge of the facts set forth herein, except as set forth to the contrary. 2. I submit this affirmation and the affidavits of Osvaldo Hernandez and Randy Jurgensen, annexed as Exhibits A and B respectively, in support of the defendant s motion for an order granting defendant Osvaldo Hernandez a Certificate of Relief from Civil Disabilities in the form to be submitted to the Court pursuant to Section 701 of the Correction Law. 3. On November 22, 2002, before he joined the Army, defendant Hernandez who is now 26 years old, was arrested in Queens County for possession of a loaded gun found in a car in which he was riding. This was and is his only arrest. 4. On September 19, 2003, he pleaded guilty to Criminal Possession of a Weapon in the Third Degree in violation of Penal Law section (a D felony) and was sentenced to a term of imprisonment of one year. As a result, he was incarcerated in Rikers Island for eight months. Upon his release, defendant Hernandez then voluntarily joined the United States Army because he wanted to change his life through military service, which is precisely what

2 he did. 5. This Court has the discretion to issue the Certificate of Relief because: a. Specialist Hernandez is an eligible offender; b. The relief to be granted by the certificate is consistent with the rehabilitation of the eligible offender; and c. The relief to be granted by the certificate is consistent with the public interest. Correction Law 702(2). 6. The Correction Law renders defendant Hernandez eligible for a Certificate of Relief from Civil Disabilities because he has been convicted of a felony, but no other offenses. Correction Law 701(1)(a). 7. This Court is respectfully requested to exercise its discretion and to issue the Certificate of Relief from Civil Disabilities in light of the defendant s exemplary more than three years of service in the United States Army, including a fifteen month tour of duty in Afghanistan. 8. The voluntary and exceptional military service of Specialist Hernandez is documented in his own affidavit, by the awards bestowed upon him and the verification of his commanding officers. 9. Specialist Hernandez received the following in recognition of his military service: a. Combat Infantryman Badge b. 2 Army Commendation Medals c. 3 Army Achievement Medals 10. The Combat Infantryman Badge is an award of the United States Army which is presented 2

3 to those officers, warrant officers and enlisted soldiers, in the grade of Colonel and below, who participate in active ground combat, to close with and destroy the enemy with direct fires, while assigned as a member of an infantry or special forces unit, brigade or smaller size. The Combat Infantryman Badge was created with the primary goal of recognizing the sacrifices of the infantrymen who were disproportionately likely to be killed or wounded during combat operations. 11. The Army Commendation Medal is a military award which is presented for sustained acts of heroism or meritorious service. 12. The Army Achievement Medal is a military award for meritorious service or achievement in either combat or non-combat based on sustained performance or specific achievement of a superlative nature. See Exhibit D. 13. The citation for one Army Commendation Medal summarizes Specialist Hernandez service in Afghanistan in these words: For exceptionally meritorious service while deployed in support of Operation Enduring Freedom, Afghanistan. Your personal courage, devotion to duty, and commitment to mission accomplishment in a combat zone, under the most extreme circumstances, greatly contributed to the success of Operation Enduring Freedom. Your performance reflects great credit upon you, Combined Task Force Fury, Combined Joint Task Force-82 and the United States Army. See Exhibit E. 14. The citation for the second award of the Army Commendation Medal, covering Specialist Hernandez entire period of service with the 82 nd Airborne Division, recognizes that his professionalism was in keeping with the highest traditions of military service as follows: Meritorious service while assigned to the Fourth Brigade Combat Team. Your professionalism and dedication to duty was critical to 3

4 mission accomplishment. Your actions are in keeping with the highest traditions of military service and reflect great credit upon you, the Fourth Brigade Combat Team, the 82 nd Airborne Division, and the United States Army. See Exhibit F. 15. CPT Christopher DeMure, his company commander and a West Point graduate, provides a first hand assessment of Hernandez performance of duty while in the 82 nd Airborne as follows: SPC Hernandez is one the best Paratroopers in this Company and one of the largest team players that I have observed in 36 months of company command. He has tremendous leadership ability and outstanding interpersonal skills. * * * I believe SPC Hernandez will be an outstanding asset to any organization he becomes a part of. His values and integrity are beyond reproach and I am confident that any employer, school or organization will be better off for having him as a member of the team. See Exhibit G. 16. CPT DeMure s assessment is endorsed by LT Mordecai Sorokin, who summarized Hernandez service during the twenty months that LT Sorokin served as his infantry platoon leader, as follows: SPC Hernandez has performed exceptionally during my 20 months as his Platoon Leader. His selfless service and discipline have made him a model Paratrooper in the Platoon. He has always impressed me with his outstanding maturity and judgment which have always been a hallmark of his performance. * * * I am confident that SPC Hemandez will succeed in whatever occupation he pursues. He has been a tremendous asset to this 4

5 Platoon as both a professional Paratrooper and a mentor for his peers and subordinates. He will make an immediate impact wherever he goes next, and I would feel fortunate to serve with him again. See Exhibit H. 17. CPT DeMure and LT Sorkin are aware of this motion and have authorized me, on their behalf, to urge this Court to grant the Certificate of Relief from Civil Disabilities. 18. A DD 214 is a document of the United States Department of Defense issued upon a military service member's retirement, separation or discharge from active-duty military, which attests to the fact and quality of Specialist Hernandez military service. See DD 214 and Honorable Discharge annexed as Exhibit I. 19. In addition to representing Specialist Hernandez, I am a West Point graduate and former paratrooper who served as an Infantry platoon leader in Vietnam. I also served six years as an Assistant District Attorney in New York County, principally in the Homicide Bureau. As a result, I believe that Hernandez military service does have a direct correlation with effective performance of duties as a police officer. In other words, Specialist Hernandez verified extensive training and exercise of sound judgment in dealing with civilians in an ambiguous environment in Afghanistan will serve both him and the community well, were he to become an NYPD police officer. WHEREFORE, this Court is respectfully requested to grant the defendant s motion for an order granting defendant Osvaldo Hernandez a Certificate of Relief from Civil Disabilities in the form to be submitted to the Court pursuant to Section 701 of the Correction Law, together with such other relief as this Court may deem just and proper. 5

6 Dated: October, 2008 James D. Harmon, Jr. 6