A former nurse serving time for her role in the 2012 death of a Medford nursing home resident asked an appellate court justice in Brooklyn on Monday to reduce her nine-month sentence, saying the trial court made a mistake.
An attorney for the former nurse, Kimberly Lappe, 34, filed a motion with State Supreme Court Justice John M. Leventhal in the Appellate Division, Second Department, challenging her jail sentence and five years of probation, arguing that the maximum punishment the trial judge could have imposed was six months in jail and five years of probation.
“The law is clear on this,” Scott Gross, Lappe’s lawyer, said in an interview.
Gross also asked Leventhal to release Lappe on bail and allow her to remain free while she appeals her sentence and conviction.
Lappe, the mother of a toddler, is being held at the Suffolk County jail in Riverhead, where she has served four months of her sentence.
State Attorney General Eric T. Schneiderman, whose office prosecuted Lappe and nine co-defendants stemming from the death of resident Aurelia Rios, 72, of Central Islip, opposed Lappe’s requests for bail and for a reduction in her sentence.
The staff at the nursing home, Multicare Center for Living, told Rios’ family she died of a heart attack. However, state prosecutors said the respiratory therapist on duty did not attach Rios to her ventilator when she went to bed Oct. 25, 2012, putting in motion a chain of events that resulted in Rios’ death the following day.
Lappe, the nursing home and eight other former employees were indicted and convicted of various crimes. State prosecutors had said they failed to provide adequate care to Rios, which led to her death, then attempted to hide the circumstances that led to it.
A jury convicted Lappe on five charges and State Supreme Court Justice John B. Collins, who presided over the trial, sentenced her to:
- 5 years of probation and 6 months in jail for two counts of first-degree falsifying business records;
- 9 months in jail for endangering the welfare of an incompetent or physically disabled person;
- 9 months in jail for willful violation of health law and for neglecting Rios; and
- 30 days in jail for willful violation of heath laws and failure to report Rios’ neglect to authorities.
These sentences were to run concurrently.
Gross argued that Collins imposed a split sentence, one that involves probation plus jail time, for the crimes of falsifying business records, therefore the law prohibited Collins from sentencing Lappe to more than six months in jail for the other crimes.
“The defendant is mistaken,” said Matthew B. Keller, assistant attorney general, said in his motion opposing Lappe’s request.
Keller said the 9 months in jail and five years of probation is allowed under the law.
Leventhal said he would issue a ruling on Lappe’s request for bail this Friday, according to Gross and a spokesman for Schneiderman, but a decision on her request for a shorter sentence will take longer.
Kimberly Lappe’s co-defendants
- David Fielding, 58, of Lido Beach, former administrator, served 7-day sentence.
- Christine Boylan, 51, of Mastic, former director of respiratory therapy, serving a 6-month sentence at Suffolk County jail in Riverhead. She is scheduled to be released Tuesday.
- Kethlie Joseph, 63, of Brentwood, former respiratory therapist, remains free while she appeals her conviction. Joseph had served 9 days of her 9-month sentence.
- Victoria Caldwell, 52, of Medford, former licensed practical nurse, remains free while she appeals her conviction. Caldwell was sentenced to 45 days in jail.
- Marianne Fassino, 54, of Shirley, former registered nurse, remains free while she appeals her conviction. Fassino had served 9 days of her 9-month sentence.
- Patricia DiGiovanni, 65, of Port Jefferson Station, former nurse’s aide, is serving 840 hours of community service.
- Christina Corelli, 38, of East Patchogue, former nurse’s aide, is serving 3 years of probation.
- Leona Gordon, 36, of Medford, former nurse’s aide, serving 3 years of probation.