Brian Rivera, an abuse victim, is in prison for murder. A law protecting domestic violence survivors could mean he and others are released.
Police at the home of Dr. Joseph Kazigo in Westbury in 2005, who was fatally beaten by his son. Credit: Howard Schnapp
Brian Rivera of Holbrook was 18 years old when he shot and killed former classmate Thomas Herzberg during a drug-related robbery in 2006.
Now Rivera, who suffered and witnessed domestic physical abuse at the hands of his NYPD officer father, hopes to become the fourth inmate from Long Island released from prison under a 2019 law granting sentence relief to abuse survivors.
The Domestic Violence Survivors Justice Act, which has led to the release of two Suffolk County men and one from Nassau since its inception, provides sentencing relief to eligible incarcerated defendants who suffered a documented history of abuse that factored into their criminal behavior.
The case of Rivera, who is serving the 16th year of a 25-years-to-life sentence for second-degree murder, is one of about two dozen pending applications across the state being tracked by Kate Mogulescu of Brooklyn Law School, the director of Survivors Justice Project, which works with people whose experience with abuse and violence led to their own criminalization and incarceration. They are all what Mogulescu describes as “extreme sentences.”
“The ability to work on an application like this with someone who has already been prosecuted, already been sentenced, is a gift,” Mogulescu said. “To go back and understand through a deeper dive into what happened in someone's life in a way that was never presented originally, you learn so much from the process.”
While no public database exists to track DVSJA relief, Mogulescu said her group has collected its own data showing 49 inmates from across the state have been granted some form of relief under the law. Motions filed by 51 other individuals have been denied, the Survivors Justice Project reports.
“It’s hard sometimes to get the evidence you need for this type of case,” said Scott Banks, attorney-in-chief for the Legal Aid Society of Nassau County, which worked with Mogulescu and students at Brooklyn Law to secure relief for the second New York State inmate released under the law. “This is more of a history that you’re looking at. The result of a continuous barrage of abuse.”
For Rivera, the impacts of violence in his home date back to infancy, according to Suffolk County police and family court records shared with Newsday. Rivera was a 1-year-old when his mother, also a city cop, was shot by his father, as he and his older sister lay in the same bed as his mom. His father was never charged with a crime, and the persistent abuse and bitter custody disputes continued throughout adolescence, according to reports and corroborating statements from family members and friends, including several retired NYPD officers who have written in support of Rivera’s request for resentencing.
If relief is granted by Suffolk County Supreme Court Justice Timothy Mazzei or later under his right to appeal, Rivera would join Zachary Gibian of Hauppauge and Tommy Burns of East Islip, both of whom were convicted of killing abusive parents, as the first inmates from Suffolk to benefit from the DVSJA.
The Domestic Violence Survivors Justice Act, signed into law by former Gov. Andrew M. Cuomo on May 14, 2019, has multiple components: granting sentence reductions at the time of conviction for certain new felony offenders, and the opportunity for resentencing for certain individuals sentenced before the law went into effect.
“This isn't like we're saying these people did not commit the crime,” said Felice Milani, appeals bureau chief for the Legal Aid Society of Suffolk County, which is representing Rivera and previously worked on Burns’ case. “They did commit it, but their sentence should be less, as the law says right now.”
To qualify for a sentence reduction, inmates must have been sentenced to at least 8 years in prison for convictions of crimes other than first-degree murder, aggravated murder, second-degree murder involving a youth, terrorism, or a sex-offender offense. The abuse, which could be physical, sexual or psychological, must have been committed by a spouse, intimate partner or someone the inmate shares a child with, a blood relative or adoptive parent, or a person living in the same home.
A key component of the law requires the abuse to be a contributing factor in the criminal conduct, though the victim of the crime does not need to be the perpetrator of the abuse.
“Many of the people in these situations have been victims of abuse,” Milani said of individuals serving lengthy sentences. “And that's why, unfortunately, you end up with a life where you're committing all sorts of crimes.”
Of the 49 sentence reductions so far, 70% have been granted to nonwhite inmates, according to the Survivors Justice Project. Twenty-three of the sentence reductions have been granted in counties outside New York City.
The law, which has its roots in an advocacy campaign by the Coalition for Women Prisoners, largely has benefited female inmates who suffered abuse, with 44 women having their sentences reduced, four men and one nonbinary person.
“These sentence reductions have saved over 118 years of incarceration from what would have been their earliest possible release date,” Mogulescu said. “If people had been sentenced under the DVSJA initially, it would have avoided over 340 years of incarceration.”
While the District Attorneys Association of New York opposed the legislation when the earliest version of the bill was introduced in 2011, citing “victims rights” and “the impact on public safety,” prosecutors since have consented to resentencing in 38 of the 49 cases where relief was granted, the Survivors Justice Project reported.
That has not yet been the case in Suffolk County, where defense attorneys handling these cases spoke of “long battles” to find relief for their clients under the law.
In a statement, Suffolk County District Attorney Ray Tierney said he believes the post-conviction relief under DVSJA “jeopardizes public safety by imposing a one-size-fits-all legislatively determined limit on dispositions that were imposed by Courts with full knowledge of the details of individual cases.”
“It supports vigilantism,” said Tierney, who took office in 2022. “It arbitrarily imposes limitations on sentencing even for intentional murder. This is yet another example of the impact of poorly constructed criminal justice ‘reforms’ that focus solely on criminals and do not allow courts to consider the rights of victims.”
Joseph Ferrante, who represented Gibian during resentencing and assisted in his defense following his February 2005 arrest for killing his abusive stepfather with a samurai sword at age 19, said he did not view Suffolk’s opposition to his client’s sentencing relief as “anything untoward.”
Ferrante said he understands the perspective of prosecutors, who he said feel they have a “duty to try and keep their convictions.”
“They have to report back to families, and it stirs up emotions,” he said.
As part of the resentencing process, Gibian had a forensic psychological evaluation performed by both defense and prosecution experts, with each “clearly establishing [Gibian] suffered substantial abuse at the hands of his stepfather [retired NYPD Officer Scott Nager],” according to acting Suffolk Supreme Court Justice Stephen Pilewski’s decision in the case.
Pilewski resentenced Gibian, who already had served 14 years of a 25-year sentence for manslaughter, to 5 years in November and he was released.
“When considering the nature and circumstances surrounding the crime, the abuse the defendant suffered leading up to the defense, and the defendant’s condition and character, the court finds that the defendant’s previously imposed sentence is unduly harsh,” Pilewski wrote.
Mulumba Kazigo was 41 and already had served 14 years in prison when his 20-year manslaughter sentence was reduced to 5 years by Nassau Supreme Court Justice David Sullivan in August 2020. Kazigo admitted in 2006 to fatally beating his abusive physician father, Dr. Joseph Kazigo, with a baseball bat and slicing his throat with a knife in Westbury. He is one of eight inmates convicted in the homicide of an abusive parent or stepparent granted sentence relief under DVSJA, according to Survivors Justice Project data.
Then-Nassau County District Attorney Madeline Singas said her office agreed Kazigo should be resentenced and released “given the overwhelming evidence of sustained abuse, and that the abuse was a contributing factor to the killing of his father.”
Banks said Kazigo has "done well" since leaving prison. He described him as an accomplished musician who has worked with inmates teaching them how to fix and play instruments.
“He’s gone on with his life,” Banks said. “And that’s amazing.”
In interviews, attorneys who worked on the three prior DVSJA resentencing cases on Long Island described the men as model prisoners who have worked to get college degrees and improved their lives. Mogulescu said that's common in these types of cases.
“The work that people do in prison, on their own, often with very little support, to become educated, to grieve, to atone; there's real work being done by people in these long sentences,” Mogulescu said. “To be able to acknowledge that and bring that to the surface is critical.”
Gibian is now living out of state where he has the support of his biological father. He is working for a restaurant and “doing well,” his attorney said.
“There was no chance of this ever happening unless the governor passed that new bill,” Ferrante said.
Burns was 19 when he killed his abusive father and stepmother, who was not accused of abuse, in 1996. He pleaded guilty to second-degree murder and was sentenced to 28-years-to-life, a term reduced by a Brooklyn-based appeals panel last July. He filed his appeal after being informed by Suffolk Supreme Court Justice William Condon that he would not be resentenced for the killing of his stepmom. He served 24 years in prison before his release and requested privacy when contacted through an attorney.
Tierney continues to oppose the relief granted to Gibian and Burns.
“Taking prior domestic abuse into account in sentencing is a laudable goal,” the district attorney said. “When legislation dictates mandatory results, however, leaving no discretion for our experienced judges to consider the facts, this law negatively impacts public safety and does not lead to just results. A five-year sentence for an intentional samurai sword killing of a sleeping victim is not justice. Limiting the sentence for the brutal intentional murder of an innocent woman to a flat 15 years when court had determined a sentence of 25 years to life was appropriate, is not justice."
Mogulescu said there has been zero recidivism in DVSJA cases and the people released under the law are “absolutely thriving.”
“They come back in a very different place and ready to contribute, and actively advocate for others,” she said. “They also just desperately want to work and spend time with family. That's what everyone is focusing on.”
Kazigo recently told his story in an opinion piece supporting similar legislation in Oklahoma that was published in the Tusla World newspaper. He said he was freed because of a law that “enabled a court to take into account that I was defending myself — and more importantly, my family — from further physical abuse.”
“I am not claiming what I did was right,” he wrote. “But I am claiming that sentencing practices should take into account the context in which a crime is committed, especially if it is to defend oneself from physical abuse.”
Rivera's case is different from the three that played out in Long Island courtrooms before his.
Thomas Herzberg and a friend were looking to buy the prescription painkiller OxyContin from Rivera and three other men when they attempted to rob him on Oct. 23, 2006. Herzberg died after being shot in the neck and crashing his Jeep as he tried to escape.
"Brian Rivera got what he deserved," Herzberg's father, Lawrence, told reporters the day of the sentencing. "We always hope our little guy will come through the door, and it will never be."
Herzberg’s parents have both since died. His brother, Tim, did not respond to phone messages seeking comment.
Mogulescu said that while in some cases victims' families actively push to keep the perpetrator of the crime behind bars, in others they have come around to offer support.
“We’ve had some families who didn't even really know the full context [of the defendant’s history] and when learning that took a very different position,” she said.
Rivera, now 35, has received support for relief from many people in his own life, including an older sister and his mother, who have both given statements describing the abuse he suffered and witnessed before turning to a life of drugs and crime as a teen.
In a statement submitted to the court and shared with Newsday, Rivera called the discipline he faced at the hands of his father “pure violence.” Mazzei will be tasked with determining if that abuse was a contributing factor in Herzberg’s death.
The Survivors Justice Project reports that of the 49 inmates to have their sentence reduced under DVSJA to date, 25 committed crimes against someone other than their abuser.
While she conceded his case is a “tricky one,” Milani said Rivera should be granted relief under the law.
“I wouldn't do this if I didn't think he had a chance,” she said.
Brian Rivera of Holbrook was 18 years old when he shot and killed former classmate Thomas Herzberg during a drug-related robbery in 2006.
Now Rivera, who suffered and witnessed domestic physical abuse at the hands of his NYPD officer father, hopes to become the fourth inmate from Long Island released from prison under a 2019 law granting sentence relief to abuse survivors.
The Domestic Violence Survivors Justice Act, which has led to the release of two Suffolk County men and one from Nassau since its inception, provides sentencing relief to eligible incarcerated defendants who suffered a documented history of abuse that factored into their criminal behavior.
An undated photograph of Brian Rivera.
The case of Rivera, who is serving the 16th year of a 25-years-to-life sentence for second-degree murder, is one of about two dozen pending applications across the state being tracked by Kate Mogulescu of Brooklyn Law School, the director of Survivors Justice Project, which works with people whose experience with abuse and violence led to their own criminalization and incarceration. They are all what Mogulescu describes as “extreme sentences.”
WHAT TO KNOW
- The Domestic Violence Survivors Justice Act, signed into law by former Gov. Andrew M. Cuomo on May 14, 2019, has afforded New York inmates who meet certain criteria the opportunity to apply for sentencing relief if the abuse they suffered was a contributing factor to their crime of conviction.
- To date, three Long Island men convicted of killing abusive fathers or stepfathers have been released from prison after being granted sentence reductions. They are among 49 inmates statewide to receive relief under the law, according to the Survivors Justice Project.
- While the office of former Nassau County District Attorney Madeline Singas supported sentencing relief in the first case in her county, Suffolk County District Attorney Ray Tierney opposed the first two cases in his county, saying the law "supports vigilantism."
- Brian Rivera, 35, of Holbrook is scheduled on July 10 to be the third person convicted of a violent crime in Suffolk County to have a hearing for relief.
“The ability to work on an application like this with someone who has already been prosecuted, already been sentenced, is a gift,” Mogulescu said. “To go back and understand through a deeper dive into what happened in someone's life in a way that was never presented originally, you learn so much from the process.”
While no public database exists to track DVSJA relief, Mogulescu said her group has collected its own data showing 49 inmates from across the state have been granted some form of relief under the law. Motions filed by 51 other individuals have been denied, the Survivors Justice Project reports.
“It’s hard sometimes to get the evidence you need for this type of case,” said Scott Banks, attorney-in-chief for the Legal Aid Society of Nassau County, which worked with Mogulescu and students at Brooklyn Law to secure relief for the second New York State inmate released under the law. “This is more of a history that you’re looking at. The result of a continuous barrage of abuse.”
For Rivera, the impacts of violence in his home date back to infancy, according to Suffolk County police and family court records shared with Newsday. Rivera was a 1-year-old when his mother, also a city cop, was shot by his father, as he and his older sister lay in the same bed as his mom. His father was never charged with a crime, and the persistent abuse and bitter custody disputes continued throughout adolescence, according to reports and corroborating statements from family members and friends, including several retired NYPD officers who have written in support of Rivera’s request for resentencing.
Zachary Gibian at home in Hauppauge in 2005. He was one of the first Suffolk inmates to benefit from the Domestic Violence Survivors Justice Act Credit: Newsday/Michael E. Ach
If relief is granted by Suffolk County Supreme Court Justice Timothy Mazzei or later under his right to appeal, Rivera would join Zachary Gibian of Hauppauge and Tommy Burns of East Islip, both of whom were convicted of killing abusive parents, as the first inmates from Suffolk to benefit from the DVSJA.
Domestic Violence Survivors Justice Act
The Domestic Violence Survivors Justice Act, signed into law by former Gov. Andrew M. Cuomo on May 14, 2019, has multiple components: granting sentence reductions at the time of conviction for certain new felony offenders, and the opportunity for resentencing for certain individuals sentenced before the law went into effect.
“This isn't like we're saying these people did not commit the crime,” said Felice Milani, appeals bureau chief for the Legal Aid Society of Suffolk County, which is representing Rivera and previously worked on Burns’ case. “They did commit it, but their sentence should be less, as the law says right now.”
To qualify for a sentence reduction, inmates must have been sentenced to at least 8 years in prison for convictions of crimes other than first-degree murder, aggravated murder, second-degree murder involving a youth, terrorism, or a sex-offender offense. The abuse, which could be physical, sexual or psychological, must have been committed by a spouse, intimate partner or someone the inmate shares a child with, a blood relative or adoptive parent, or a person living in the same home.
A key component of the law requires the abuse to be a contributing factor in the criminal conduct, though the victim of the crime does not need to be the perpetrator of the abuse.
“Many of the people in these situations have been victims of abuse,” Milani said of individuals serving lengthy sentences. “And that's why, unfortunately, you end up with a life where you're committing all sorts of crimes.”
Of the 49 sentence reductions so far, 70% have been granted to nonwhite inmates, according to the Survivors Justice Project. Twenty-three of the sentence reductions have been granted in counties outside New York City.
The law, which has its roots in an advocacy campaign by the Coalition for Women Prisoners, largely has benefited female inmates who suffered abuse, with 44 women having their sentences reduced, four men and one nonbinary person.
“These sentence reductions have saved over 118 years of incarceration from what would have been their earliest possible release date,” Mogulescu said. “If people had been sentenced under the DVSJA initially, it would have avoided over 340 years of incarceration.”
Facing opposition
While the District Attorneys Association of New York opposed the legislation when the earliest version of the bill was introduced in 2011, citing “victims rights” and “the impact on public safety,” prosecutors since have consented to resentencing in 38 of the 49 cases where relief was granted, the Survivors Justice Project reported.
That has not yet been the case in Suffolk County, where defense attorneys handling these cases spoke of “long battles” to find relief for their clients under the law.
In a statement, Suffolk County District Attorney Ray Tierney said he believes the post-conviction relief under DVSJA “jeopardizes public safety by imposing a one-size-fits-all legislatively determined limit on dispositions that were imposed by Courts with full knowledge of the details of individual cases.”
“It supports vigilantism,” said Tierney, who took office in 2022. “It arbitrarily imposes limitations on sentencing even for intentional murder. This is yet another example of the impact of poorly constructed criminal justice ‘reforms’ that focus solely on criminals and do not allow courts to consider the rights of victims.”
Joseph Ferrante, who represented Gibian during resentencing and assisted in his defense following his February 2005 arrest for killing his abusive stepfather with a samurai sword at age 19, said he did not view Suffolk’s opposition to his client’s sentencing relief as “anything untoward.”
Ferrante said he understands the perspective of prosecutors, who he said feel they have a “duty to try and keep their convictions.”
“They have to report back to families, and it stirs up emotions,” he said.
As part of the resentencing process, Gibian had a forensic psychological evaluation performed by both defense and prosecution experts, with each “clearly establishing [Gibian] suffered substantial abuse at the hands of his stepfather [retired NYPD Officer Scott Nager],” according to acting Suffolk Supreme Court Justice Stephen Pilewski’s decision in the case.
Pilewski resentenced Gibian, who already had served 14 years of a 25-year sentence for manslaughter, to 5 years in November and he was released.
“When considering the nature and circumstances surrounding the crime, the abuse the defendant suffered leading up to the defense, and the defendant’s condition and character, the court finds that the defendant’s previously imposed sentence is unduly harsh,” Pilewski wrote.
The first local cases
Mulumba Kazigo was 41 and already had served 14 years in prison when his 20-year manslaughter sentence was reduced to 5 years by Nassau Supreme Court Justice David Sullivan in August 2020. Kazigo admitted in 2006 to fatally beating his abusive physician father, Dr. Joseph Kazigo, with a baseball bat and slicing his throat with a knife in Westbury. He is one of eight inmates convicted in the homicide of an abusive parent or stepparent granted sentence relief under DVSJA, according to Survivors Justice Project data.
Former Nassau District Attorney Madeline Singas, said her office agreed Mulumba Kazigo should be released “given the overwhelming evidence of sustained abuse, and that the abuse was a contributing factor to the killing of his father.” Credit: James Carbone
Then-Nassau County District Attorney Madeline Singas said her office agreed Kazigo should be resentenced and released “given the overwhelming evidence of sustained abuse, and that the abuse was a contributing factor to the killing of his father.”
Banks said Kazigo has "done well" since leaving prison. He described him as an accomplished musician who has worked with inmates teaching them how to fix and play instruments.
“He’s gone on with his life,” Banks said. “And that’s amazing.”
In interviews, attorneys who worked on the three prior DVSJA resentencing cases on Long Island described the men as model prisoners who have worked to get college degrees and improved their lives. Mogulescu said that's common in these types of cases.
“The work that people do in prison, on their own, often with very little support, to become educated, to grieve, to atone; there's real work being done by people in these long sentences,” Mogulescu said. “To be able to acknowledge that and bring that to the surface is critical.”
Gibian is now living out of state where he has the support of his biological father. He is working for a restaurant and “doing well,” his attorney said.
“There was no chance of this ever happening unless the governor passed that new bill,” Ferrante said.
Burns was 19 when he killed his abusive father and stepmother, who was not accused of abuse, in 1996. He pleaded guilty to second-degree murder and was sentenced to 28-years-to-life, a term reduced by a Brooklyn-based appeals panel last July. He filed his appeal after being informed by Suffolk Supreme Court Justice William Condon that he would not be resentenced for the killing of his stepmom. He served 24 years in prison before his release and requested privacy when contacted through an attorney.
Suffolk County District Attorney Ray Tierney continues to oppose the relief granted Zachary Gibian of Hauppauge and Tommy Burns of East Islip, both of whom were convicted of killing abusive parents. Credit: Randee Daddona
Tierney continues to oppose the relief granted to Gibian and Burns.
“Taking prior domestic abuse into account in sentencing is a laudable goal,” the district attorney said. “When legislation dictates mandatory results, however, leaving no discretion for our experienced judges to consider the facts, this law negatively impacts public safety and does not lead to just results. A five-year sentence for an intentional samurai sword killing of a sleeping victim is not justice. Limiting the sentence for the brutal intentional murder of an innocent woman to a flat 15 years when court had determined a sentence of 25 years to life was appropriate, is not justice."
Mogulescu said there has been zero recidivism in DVSJA cases and the people released under the law are “absolutely thriving.”
“They come back in a very different place and ready to contribute, and actively advocate for others,” she said. “They also just desperately want to work and spend time with family. That's what everyone is focusing on.”
Nassau detectives escort Mulumba Kazigo to be arraigned on second-degree murder charges for the murder of his father in 2005. He was released after serving 14 years of a 20-year sentence under DVSJA. Credit: Howard Schnapp
Kazigo recently told his story in an opinion piece supporting similar legislation in Oklahoma that was published in the Tusla World newspaper. He said he was freed because of a law that “enabled a court to take into account that I was defending myself — and more importantly, my family — from further physical abuse.”
“I am not claiming what I did was right,” he wrote. “But I am claiming that sentencing practices should take into account the context in which a crime is committed, especially if it is to defend oneself from physical abuse.”
A new opportunity
Rivera's case is different from the three that played out in Long Island courtrooms before his.
Thomas Herzberg and a friend were looking to buy the prescription painkiller OxyContin from Rivera and three other men when they attempted to rob him on Oct. 23, 2006. Herzberg died after being shot in the neck and crashing his Jeep as he tried to escape.
"Brian Rivera got what he deserved," Herzberg's father, Lawrence, told reporters the day of the sentencing. "We always hope our little guy will come through the door, and it will never be."
Herzberg’s parents have both since died. His brother, Tim, did not respond to phone messages seeking comment.
Mogulescu said that while in some cases victims' families actively push to keep the perpetrator of the crime behind bars, in others they have come around to offer support.
“We’ve had some families who didn't even really know the full context [of the defendant’s history] and when learning that took a very different position,” she said.
Rivera, now 35, has received support for relief from many people in his own life, including an older sister and his mother, who have both given statements describing the abuse he suffered and witnessed before turning to a life of drugs and crime as a teen.
In a statement submitted to the court and shared with Newsday, Rivera called the discipline he faced at the hands of his father “pure violence.” Mazzei will be tasked with determining if that abuse was a contributing factor in Herzberg’s death.
The Survivors Justice Project reports that of the 49 inmates to have their sentence reduced under DVSJA to date, 25 committed crimes against someone other than their abuser.
While she conceded his case is a “tricky one,” Milani said Rivera should be granted relief under the law.
“I wouldn't do this if I didn't think he had a chance,” she said.
Grant Parpan covers Suffolk County courts and federal courts for Newsday. A Long Island native, he joined Newsday in 2022.
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