Deep Dives

He Was Shot in the Back By a Cop…Then Spent 18 Months in Jail

After Silvon Simmons was shot by a police officer, he was the one charged with attempted murder. Now he’s piecing his life back together.

He Was Shot in the Back By a Cop…Then Spent 18 Months in Jail

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Silvon Simmons gets out of the Chevy Impala, turns and sees a burly police officer coming briskly up the driveway, .40-caliber service revolver drawn. Simmons runs for his life. The cop squeezes the trigger again and again. Simmons falls to the ground. As he lies there, helplessly, the cop towers above him, screaming, threatening to finish the job. To blow Simmons’ head off.

With minor variations, this is the nightmare that awakens Simmons every night. It’s a replay of the evening of April 1, 2016, when he was shot multiple times in his Rochester, New York, backyard by a white police officer in pursuit of the wrong black man.

“The only difference,” says Simmons, “is that in my dreams I don’t feel any pain.”

Sometimes he manages to fall back to sleep; other nights Simmons will get up for a smoke, turn on the TV, and aimlessly flip through the channels.

A deep fear of police follows Simmons, 37, in his waking hours, too, like the morning his father gave him a ride to work and a patrol car whipped out in front of them, cutting them off. His dad immediately slowed, widening the space between his car and the cruiser. But even after the officer drove off, Simmons’ heart continued to pound, his legs itched to run.

The night that derailed Simmons’ life began with a routine trip to the store for beer and cigarettes. He rode alongside his next-door neighbor, Detron Parker, who was driving his girlfriend’s Chevy Impala, the same model car owned by a suspect in the neighborhood wanted for threatening a woman with a handgun. Simmons says it wasn’t until they were pulling back into their driveway that he spotted the white-and-blue patrol car.

“The cruiser was still rocking from being stopped so fast when [the cop] hops out with his gun in his hand, pointing it at me,” recalls Simmons. “All I could think is, ‘He’s here to kill me.’” 

Simmons says he ran because he feared for his life, because “police are shooting black people all the time.”

He tried to reach his unlocked backdoor, but before he could, one, two, three bullets, pierced his back, buttocks and thigh. Their impact drove him further into Parker’s yard. He dove over the fence separating their properties and played dead.

“I believed he would shoot me again if I moved,” Simmons recalls, sitting with his lawyers in the Monroe County Public Defender’s offices. “I thought, ‘Please don’t let me die. This isn’t how my life is supposed to end.’ I said my prayers.”

Simmons says he heard the officer tell his partner about how he’d shot Simmons, got him “real good,” and that he believed Simmons was dead.

“I told him I wasn’t dead,” Simmons says. “He said, ‘Shut up or I’ll blow your head off,’ so I played dead again.”

Intense stabbing pains began to shoot through Simmons’ left foot — a bullet had struck his sciatic nerve, which delivers signals to and from the muscles and skin of the lower body. Now, those signals were going haywire. Simmons also had a collapsed lung.

“I couldn’t yell,” Simmons recounts. “I was going in and out. I woke asking for an ambulance. They told me to shut the fuck up. I asked why they shot me. They said, ‘Shut the fuck up.’”

A kick to his upper torso jerked Simmons back to consciousness. (Hospital X-rays confirmed he sustained a broken rib.) He remembers feeling the cold night air on his skin — an EMT cutting off his clothes. In the ambulance, a woman’s voice reassured him: “You’re going to be all right.”

Silvon Simmons after he was shot and handcuffed in his backyard. (Photo courtesy Rochester Police Department, via Simmons’ attorney)

Simmons underwent surgery that night. When he regained consciousness, he was in the intensive care unit, on a ventilator, handcuffed to a chair. Officers from the Rochester Police Department kept a 24-hour vigil outside his room. No visitors were allowed — not even his parents, Frank and Sharlene Simmons, who came north from their home in Memphis, Tennessee, as soon as they learned that their youngest had been shot. As he recuperated, Simmons kept asking why he was in handcuffs, what the charges were against him, but no one was talking. The police had taken his phone and he was not allowed to watch TV or read the newspaper.

If he had access to the local news, he would have learned that Rochester Police Officer Joseph Ferrigno II had alleged that Simmons fired first and that the officer returned fire in self-defense. At pretrial hearings and at trial, Ferrigno testified that he chased a dark figure into the unlit backyard. At one point, Ferrigno claimed, the figure slowed and turned toward him and shot at him. After taking cover, Ferrigno said, he fired his revolver four times.

Ferrigno and his partner also stated they found a .9-millimeter gun a few feet from where Simmons lay. He denies having a gun. Mike Mazzeo, the president of the RPD union, the Locust Club, says that departmental rules bar Ferrigno from being interviewed about a case he is involved in.

In the hospital, Simmons’ body began to heal, but his future looked bleak. An indictment was filed on April 26, 2016. A grand jury determined that no charges would be brought against Ferrigno for shooting Simmons.

Simmons had worked 16 years for ABR Wholesalers, a Rochester-based distributor of heating, ventilation and cooling equipment. He’d been raising two sons and a stepson, ages seven, 11, and 15, with his partner of 13 years. He had never been convicted of a felony. Now he found himself facing four felony charges: two counts of criminal possession of a weapon in the second degree (one count of gun possession alleged that he possessed a loaded, operable firearm with the intent to use it unlawfully against another; the other count alleged that he possessed a loaded, operable firearm outside his home or place of business), attempted aggravated assault on a police officer, and aggravated attempted murder of a police officer, which carries a minimum sentence of 25 years to life, and a maximum sentence of 40 years to life.

Officer Joseph Ferrigno shortly after the shooting, April, 2016. (Photo courtesy Rochester Police Department, via Simmons’ attorney)

During the 18 months and 26 days Simmons spent in the Monroe County Jail awaiting trial, his relationship unraveled, he lost his house, his job, and his truck was repossessed.

He doesn’t like to dwell on or discuss the details of what happened in his relationship, saying only, “Most people who go to jail for six months or more, it doesn’t go right. People get lonely.”

Simmons, a broad-shouldered man with delicate features and a neat, closely trimmed beard, says it was his parents that kept him going. “They visited me twice a week. They gave me their prayers, words of encouragement,” he says. “They made sure I didn’t go crazy.”

They bought him a phone card so he could call whenever he wanted. On weekends, they brought Simmons’ sons to visit. They would all pray together for Simmons’ release.

“It was empowering for the boys,” recalls his mother, Sharlene. “Silvon would tell them, ‘Daddy’s just here for a while. I’m coming home. We just have some things to straighten out.’”

Most importantly, says Simmons, his parents never doubted his innocence. “They knew there was no other way it could have went, because they knew me.”

The Simmons’ have several cops in their extended family, including a detective in the RPD. “In my heart I knew he couldn’t shoot at a police officer,” says Silvon’s father, Frank, a 75-year-old Vietnam veteran. “He’s not the type of person who would take a life.”

As Simmons awaited trial, the district attorney offered a plea deal that would knock his sentence down to 15 years.

“We advised him it was a good offer,” says Katie Higgins, one of his lawyers. “Given the charges, it was a huge decision.”

Simmons turned it down.

“I was not going to throw away 15 years of my life for something I didn’t do,” he says. “I didn’t think God was going to let them blame me for it. I had my parents, my children, and all the people who supported me to think about.”

It was a daring move, and it paid off. Heading into trial last October, the prosecution had no physical evidence connecting Simmons to the shooting. Simmons’ DNA was not on the Ruger the officers said they found a few feet from his body. The RPD scoured his house, property and car, but found no signs of criminal activity. Nor did they locate a bullet that could be traced to the Ruger. At trial, Julie Hahn, the Monroe County assistant district attorney prosecuting the case, dismissed the significance of this, stating that a bullet can travel the “length of five football fields.”

The items police found in the front seat of the Impala seemed to support Simmons’ account: beer, two cell phones and cigarettes.

In her opening arguments, Hahn told the jury that Ferrigno acted responsibly, drawing his gun in his belief that he was pursuing a suspect named Ivory Golden, a man known to be armed and dangerous.

Monroe County Assistant Public Defender Elizabeth Riley depicted Ferrigno and his partner, Sam Giancursio, as reckless at best, reactive and deceitful, at worst. She described how they pursued Parker and Simmons without calling in to dispatch or radioing other officers in the area that they might be entering a dangerous situation. Nor did they run the license plates on the Impala before taking chase. And it was not until 22 seconds after Ferrigno fired his fourth and last shot that he called the Office of Emergency Communications to report, “Shots fired.” He made no mention that he had been fired at.

As the powerfully built cop took the witness stand and looked out on the jury, Higgins began to feel hopeful. “When he testified, they were looking at their hands, the floor, anything to avoid eye contact,” she recalled. “He was the victim. You would have thought they’d be captivated by his story.”

In the longest summation of her 18-year career — two-and-a-half hours — Riley pointed to the inconsistencies in the officers’ testimonies, both with each other and in their earlier depositions. Giancursio could not have watched an “exchange of fire” in the Immel Street driveway, as he swore under oath, she said, because the entire incident lasted seconds and he had taken a less direct route than Ferrigno. A neighbor directly across the street testified she saw one patrol car when the gunshots rang out.

If Giancursio was a liar, Ferrigno was a volatile cop known for brutalizing the African Americans on his beat, Riley told the jury. In his eight years on the force, Ferrigno amassed about two-dozen citizen complaints, several for excessive force. He is named in multiple civil suits against the city of Rochester. In 2013, he and another officer were accused of pulling a man from his wheelchair to the ground and striking him repeatedly for resisting arrest. In 2012, Ferrigno allegedly attacked a man, “throwing him to the ground, punching and kicking him.” And in 2010, a Rochester woman alleged that Ferrigno retaliated against her for complaining about him to a 911 operator by “slamming her body to the ground and dragging her about 10 feet, breaking one of her ribs.” All three alleged victims are black.

On October 26, 2017, after four days of deliberation, the jury acquitted Simmons of attempted aggravated murder of a police officer and attempted aggravated assault of a police officer. He was also found not guilty of one count of criminal possession of a weapon in the second degree – the count requiring the jury to find that Silvon possessed a gun with the intent to use it unlawfully against another. He was found guilty on the other count of criminal possession of a weapon in the second degree, which carries a sentence of three-and-a-half to 15 years in prison. His attorneys surmised the jury might have decided Simmons accidentally discharged a gun, a theory he steadfastly denies. “There was definitely no gun in my backyard until after I was shot.”

(L-R) Charlene Simmons, lawyer Katie Higgins, Silvon Simmons, lawyer Elizabeth Riley and Frank Simmons, taken after Simmons’ case was dismissed, May, 2018. (Photo courtesy Donna Jackel)

Simmons was released on his own recognizance until his sentencing, and tried to resume life as best he could.

Before his arrest, he drove all over Western and Central New York delivering HVAC equipment for ABR Wholesalers. That job was filled while he was in jail. The owners of ABR, Jody and Matthew McGarry, rehired Simmons as a salesman in the company store. The couple has known Simmons since he was a boy, when his dad, then an employee, brought his family to the annual company picnic and Christmas party. Jody McGarry describes Simmons as a hard worker “with a smile that lights up a room.” “The customers love him,” she adds.

When Simmons was arrested, his co-workers took it personally, says McGarry. “There was not one employee who wasn’t pro-Silvon, asking after him, praying for him. We all couldn’t imagine him doing it,” she says. The McGarrys attended the trial as often as they could. One of Simmons’ customers took a week off from work to be there.

“Silvon is greatly loved,” agreed Pauline Muehleisen, who has worked at ABR for 30 years. While he was in jail, she wrote Simmons eight-page letters.

“Pauline knew I was coming back,” says Simmons.

He returned to court January 11, 2018, for sentencing. In addition to his coterie of family, friends and supporters, dozens of uniformed Rochester police officers filled the courtroom, including the chief, Michael Ciminelli.

Simmons’ lawyers had filed a motion for a new trial on the basis that a key piece of evidence — an eight-second audiotape recorded by ShotSpotter, a Newark, California-based company — should never have been permitted into evidence. Pretrial, Riley and Higgins had unsuccessfully attempted to keep the tape out. Now at the sentencing hearing, Monroe County Court Judge Christopher Ciaccio addressed their motion. The jury, he noted, seemed to dismiss the testimony of the police officers, instead listening repeatedly to the ShotSpotter audiotape recorded the night of the shooting. The gunfire detection system tries to locate gunfire through audio sensors placed in high-crime areas. The sensors record abrupt, loud noises. If a potential gunshot is identified by the system, the data is sent to SST employees – usually in real time – to alert the local police department. The analysts try to confirm whether the sounds originated from a gun, or another source, like a firecracker exploding or a car backing up. Some police departments have discontinued the service citing too many false positives — and negatives.

The night of the shooting, ShotSpotter detected several loud noises in Simmons’ neighborhood, but initially determined they were from an overhead helicopter. After the RPD informed ShotSpotter there had been an officer-related shooting, company analysts reviewed the audio again, at first deciding there were three shots, then four, then five shots. The RPD pays $130,000 a year for the use of its technology.

Ciaccio told the courtroom he was troubled that the analysis was subjective, that he didn’t believe the technology was reliable enough to stand as the sole evidence in a criminal trial. But what concerned him most, he said, was that ShotSpotter provided only eight seconds of audio, which began with the first impulse and ended with the fifth. Not knowing what sounds may have occurred before or after those five impulses prevented the defense from conducting a “meaningful cross examination,” said the judge. The defense had also been unable to access key information about the system, such as how often it was maintained.

For these reasons, Ciaccio set aside the verdict. Simmons would have a new trial, this time on the remaining gun charge alone.

Simmons and his lawyers sat frozen in their seats. Then Riley whispered in her client’s ear and the three rose and hugged one another. The only sound that could be heard in those moments was Sharlene Simmons praising the Lord.

“Clear the courtroom,” ordered the bailiff.

As everyone filed out, an officer called, “You should have finished him while he was on the ground.”

Ferrigno, walking behind Simmons, told him, “You’re lucky. You’re lucky.”

Ferrigno’s father, a retired member of the RPD, asked Riley, “How do you sleep at night?”

Simmons turned to face the men, but Riley guided him back into his chair. By the time he faced the TV cameras set up outside the courtroom, Simmons was composed enough to smile for the reporters.

“This has all been nonsense from the beginning,” he told them. “Ferrigno shot me in the back for nothing and the judge saw through it.”

As he awaited a second trial, scheduled for June 11, Simmons laid low, his life consisting of work, watching cooking shows on PBS, and spending time with family. He kept a journal to “encourage himself that everything will be all right.”

As the trial date neared, Judge Ciaccio held several hearings to determine what prosecutorial evidence would be admitted. Ultimately, the judge ruled he would not allow any police testimony that the officers saw a gun flash, heard a gunshot or saw a “dark figure” holding a gun. Such testimony would be “extremely prejudicial,” he said, because it crossed over onto crimes Simmons had already been acquitted of.

On May 31, more than two years after Simmons was shot in his backyard, his case was dismissed. “Without testimony that a shot was seen or heard, there was no evidence that the gun had been loaded, a necessary element of the remaining charge,” says Riley.

The moment was oddly anticlimactic. There were no whoops of joy. No shouting cops. Simmons slipped out of the courtroom to gather himself. While his family and lawyers waited for him to return, his mother began to weep. “I’m overwhelmed with joy,” was all she could say.

When Simmons rejoined his family about 10 minutes later, he was subdued, incredulous.

“I don’t have any words right now,” he said. “It’s still sinking in.”

Silvon Simmons playing with his two children at home.

There remains one last legal hurdle for the Simmons family – the district attorney’s office filed an appeal last winter challenging Ciaccio’s decision to overturn the jury’s verdict.

Even if the appeal fails, Simmons carries physical reminders of the shooting: he has one bullet lodged in his pelvis, another in his chest. “When I grab a box or something, I can feel the bullet pressing against my chest and bones.” The toes of his left foot no longer bend and a portion of that foot is always cold.

With freedom, Simmons quickly realized it was time to consider his future, now that he has one. “I need to clamp down – get a lot of things done,” he says. At the top of his list are his finances – he lost 18 months’ salary while in jail. A local lawyer has already filed a civil suit on Simmons behalf against the city of Rochester.

Simmons has begun saving for a car – Rochester is not a place you can easily live without one. “If I could drive, it would make everything better for me,” he says. “I could do more with my kids.” Before the shooting, Simmons would take his sons on day trips to amusement parks, hiking, whatever they wanted to do.

“I’m super cool to my boys,” he says, smiling. “They just want to be around me all the time.”

Sharlene and Frank Simmons are ready to stop living out of a suitcase and in one room of a relative’s home.

“The shooting changed our lives so drastically – financially. We gave up our freedom; we gave up our friends in Memphis and family, vacations,” says Sharlene. “We were in crisis mode for a long time. We didn’t know what was going to happen or how long it would last.”

What got them through was their firm belief in their son’s innocence and their deep faith. They prayed before and in court during the two-week trial. They prayed for the judge and their son’s lawyers. “Our faith didn’t change. It made us have more faith.”

Portrait of Silvon Simmons at his home.

Despite being cleared of all charges, Simmons still lives in fear of the RPD – that one night he could be stopped by the wrong cops. “They are supposed to be the law in this city,” he says. “I have to be very careful.”

It is a fear that has been transmitted to his children, his parents. “Every time I go out, my mother tells me she is worried the police will mess with me,” he says. “I don’t want to hear it every time. It’s kind of scary. They shot me, but they put fear in my parents.”

Simmons is not interested in counseling to heal from his trauma, at least not right now. Instead, he manages his anxiety by limiting the size of his world. He’s become a homebody and when he does go out, it’s to places he feels safe, family functions, the state fair.

“I don’t want to leave my comfort zones,” he says. “It’s a fear I have to get over.”

He tries to focus on the good stuff, like his sons and work.

“I take a lot of deep breaths,” Simmons admits. “I smoke a lot. I do a lot of praying. It’s the only thing I can do.”

His emotions are a complex mix of relief, happiness, and anger. He tries to keep it all in perspective.

“This isn’t the time to be angry. It’s the time to be grateful. I could be in prison. I could be dead. I could stay angry the rest of my life, but where would it get me?”