| People v Liz L. |
| 2023 NY Slip Op 06008 [221 AD3d 1288] |
| November 22, 2023 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Liz L., Appellant. |
Gibson, Dunn & Crutcher LLP, New York City (Karin Portlock of counsel) andMichael T. Baker, Public Defender, Binghamton and Brooklyn Law School LegalServices Corp., Brooklyn, for appellant.
Mary E. Saitta, Special Prosecutor, Binghamton, for respondent.
Fisher, J. Appeal from an order of the County Court of Broome County (Joseph F.Cawley, J.), entered August 29, 2022, which denied defendant's motion for resentencingpursuant to CPL 440.47, after a hearing.
In March 2017, defendant stabbed and killed her paramour during an altercation intheir home. Defendant thereafter pleaded guilty to manslaughter in the first degree andwas sentenced, pursuant to the terms of the plea agreement, to 10 years in prison, to befollowed by five years of postrelease supervision. In December 2019, defendantrequested permission from County Court to file an application for resentencing pursuantto the Domestic Violence Survivors Justice Act (hereinafter the DVSJA) (seeCPL 440.47; Penal Law § 60.12, as amended by L 2019, ch 31,§ 1; L 2019, ch 55, § 1, part WW, § 1). Havingfound that defendant met the statutory threshold eligibility requirements, permission wasgranted and defendant thereafter applied for resentencing under the DVSJA. Following ahearing, the court denied defendant's application. Defendant appeals.
The DVSJA, in recognition of the profound and pervasive trauma suffered byvictims of substantial abuse, permits courts to impose more lenient sentences in certaincases where a victim of domestic violence commits crimes against his or her abuser or asa result of that abuse (see CPL 440.47 [1] [a]; [2] [c]; see also Penal Law§ 60.12 [1]). The justification for the DVSJA was to align therealities—that 93% of women convicted of killing an intimate partner had beenabused by such partner in the past—with compassion, assistance and appropriatejustice, affording judges discretion to "fully consider the impact of domestic violencewhen determining sentence lengths" in order to avoid long, unfair prison sentences"when a survivor defends herself and her children" (Assembly Mem in Support, BillJacket, L 2019, ch 31 at 6). This shift was required, as acknowledged during the bill'senactment, because "all too often in our court system when women are defendingthemselves against domestic violence, instead of being met with compassion andassistance and help, they are met with punishment" (People v T.P., 216 AD3d 1469, 1471 [4th Dept 2023][internal quotation marks, ellipsis and citation omitted]). Accordingly, as pertinent here, adefendant who meets certain threshold eligibility requirements may apply forresentencing under the DVSJA pursuant to CPL 440.47 (see CPL 440.47 [1],[2]). In considering such an application, a "court shall conduct a hearing to aid in makingits determination of whether the applicant should be resentenced in accordance with[Penal Law § 60.12]" (CPL 440.47 [2] [e]). Pursuant to Penal Law§ 60.12 (1), a court may apply an alternative sentencing scheme where itdetermines, following a hearing, that, "(a) at the time of the instant offense, the defendantwas a victim of domestic violence subjected to substantial physical, sexual orpsychological abuse inflicted by a member of the same family or household[*2]. . . ; (b) such abuse was a significantcontributing factor to the defendant's criminal behavior; [and] (c) having regard for thenature and circumstances of the crime and the history, character and condition of thedefendant, that a sentence of imprisonment pursuant to [Penal Law§§ 70.00, 70.02, 70.06 or 70.71 (2) or (3)] would be unduly harsh."For the reasons that follow, we conclude that County Court misapplied the DVSJA anderred in denying defendant's application for resentencing.
In addressing the first prong of the statutory analysis, County Court found thatdefendant had been a victim of domestic violence perpetrated by the paramour, withwhom she had lived. Significantly, however, the court expressly noted that "no evidencewas presented that, at the time of [the paramour's] death, he and . . .defendant were involved in an episode of domestic violence." We agree with defendantthat, in so finding, the court misapplied the language of Penal Law § 60.12(1) (a) by requiring that the abuse occur "at the time of the instant offense." Indeed, suchtemporal argument would inherently invoke the defenses of duress or justification,however, the legislative history makes it clear that the DVSJA was enacted to addressshortfalls in each of those defenses, "as victims of abuse may not be psychologically orsocially capable of invoking such defenses at the time of their trials, due to theirvictimization and its impact on them" (Rep of NY City Bar Crim Just Operations Comm,Dom Violence Comm & Pro Bono & Legal Servs Comm, Bill Jacket, L 2019,ch 31 at 14). Rather, to be considered eligible for resentencing, a survivor is "required toinclude evidence corroborating the claim she was, at the time of the offense, a victim ofdomestic violence" (Assembly Mem in Support, Bill Jacket, L 2019, ch 31 at 6). It doesnot require that a survivor prove she was defending herself in an episode ofdomestic violence like either of those defenses. To be sure, the statutory language mustcreate the requirement that some temporal nexus exist between the abuse and the offense,otherwise it would be rendered meaningless (see Penal Law § 60.12[1] [a]; Matter of Mestecky vCity of New York, 30 NY3d 239, 243 [2017]; People v Williams, 198 AD3d466, 466-467 [1st Dept 2021], lv denied 37 NY3d 1165 [2022]). However,nothing in the DVSJA requires a finding that the abuse and the offense occurcontemporaneously, and to hold otherwise would be tantamount to requiring that adefendant make a showing akin to a justification defense in order to be entitled to itsameliorative sentencing scheme, which is inapposite to the legislative history (seeRep of NY City Bar Crim Just Operations Comm, Dom Violence Comm & ProBono & Legal Servs Comm, Bill Jacket, L 2019, ch 31 at 14). Turning to the merits,upon our review, the record evidence amply demonstrates that defendant was subjectedto years of substantial abuse by the paramour and that this abuse had been [*3]ongoing up to and including the underlying incident(see Penal Law § 60.12 [1] [a]).
As to the second prong of the analysis, County Court found that the abuse sufferedby defendant "was a factor" in her commission of the crime, but failed to conclude as towhether it was a "significant contributing factor" as is required under the statute.Moreover, the court did not articulate a factual basis for its finding in this regard. Therecord reveals that, at the hearing, defendant testified that the incident occurred after shewoke the paramour and he became "aggressive, . . . arguing. . . , screaming and pushing" and "cornered" her in a room. At that time,defendant felt "like [she] was going to lose [her] life" and that she "had no escape."Defendant could not recall the events thereafter, or whether she "had a knife[,]" only thatshe "snapped out of it" upon hearing her child's voice. She then realized that theparamour was injured and bleeding on the floor, and she called the police for help. Shedid not deny that she caused his injuries. Defendant acknowledged that she initially toldthe responding police officers that the paramour had slipped and injured himself,however, her repeated admissions thereafter were largely consistent with her hearingtestimony. Relevantly, in a prior, police-reported domestic violence incident, theparamour had pulled a knife on defendant and her sister, threatening to stab the sister ifshe attempted to intervene while he dragged defendant by her hair. Upon this record, wefind that the abuse suffered by defendant was a significant contributing factor to heroffense (see Penal Law § 60.12 [1] [b]).
Turning to the final prong of the analysis, County Court's finding that a sentencewithin the standard statutory guidelines was appropriate was improperly based solelyupon its belief that defendant's status as a victim of domestic violence had already been"factored into" her plea, as well as its comparison of her sentence with her potentialsentencing exposure. Such findings are not relevant to the application of the DVSJA(see CPL 440.47; Penal Law § 60.12). Rather than merely weighingthe merits of the original sentence and plea agreement in light of a defendant's domesticviolence history, in reviewing an application under the DVSJA, Penal Law§ 60.12 (1) (c) expressly provides that a determination as to whether astandard sentence would be "unduly harsh" is to be made in consideration of the "thenature and circumstances of the crime and the history, character and condition of thedefendant." Although the court's written decision notes defendant's age, lack of criminalhistory and the fact that she is the mother of two children, no discussion is devoted tothese circumstances or what weight they should be afforded in considering herresentencing application.
Our review of the record reveals that defendant had been subjected to years ofongoing and substantial physical and psychological abuse by the paramour, including[*4]in the presence of their children, up to the date of theincident. Prior to the incident, there are several police-reported incidents in the recordnoting various injuries to defendant, including lacerations, bruises and other physicalharm for which she sought medical attention, as well as testimony from defendant andothers who observed physical injuries on defendant. At the time of the offense, defendantwas the 28-year-old mother of two young children. Her relationship with the paramourbegan when she was just 18 years old—while still in high school—andwhile her decision-making skills were still developing from adolescence through youngadulthood. Her efforts to maintain employment had been frustrated by the paramour'srepeated misconduct, who, according to defendant, would cause a "scene" at her place ofemployment requiring coworkers to intervene, excessively calling or messaging her orotherwise alleging that she was "cheating" on him while at work and compelling her toquit. Defendant's meaningful relationships with her family were also frustrated by theparamour's controlling conduct, as he forebade her from spending time with her familyand at times limited her contact with her family by confiscating her cell phone. Whendefendant was able to visit her family, the paramour sometimes accompanied her andstayed near her; one witness testified that defendant would appear "scared" during hervisit with family when the paramour was present. The record further reveals thatdefendant had no prior criminal history and successfully participated in variouseducational and therapeutic programs during her period of incarceration, has familysupport and has expressed sincere remorse for her actions resulting in the paramour'sdeath. She has also served over six years of her sentence, which is above the maximumallowed under the DVSJA for a class B felony such as defendant's conviction formanslaughter in the first degree (see Penal Law §§ 60.12 [2][a]; 70.45 [2] [f]). Based on the foregoing, defendant's application for resentencingpursuant to CPL 440.47 should have been granted and a sentence pursuant to the DVSJAis warranted.
Accordingly, upon consideration of the appropriate factors and under thecircumstances presented here, where defendant has already served the maximumpermissible term of incarceration under the DVSJA, we modify the judgment ourselves(see Penal Law §§ 60.12 [2] [a]; 70.45 [2] [f]; People v Burns, 207 AD3d646, 649 [2d Dept 2022]; People v Addimando, 197 AD3d 106, 117-118 [2d Dept2021]).[FN*]
Lynch, J.P., Clark, Ceresia and Mackey, JJ., concur. Ordered that the order isreversed, on the law and the facts, motion granted, and defendant's sentence imposed onthe conviction of manslaughter in the first degree is reduced to a term of incarceration offive years to be followed by 2
Footnote *:Defendant's time spentincarcerated in excess of the reduced sentence imposed by this Court should be creditedtoward her term of postrelease supervision (see Penal Law § 70.30[5]; CPL 440.47 [4]).