| People v Angela VV. |
| 2024 NY Slip Op 03851 [229 AD3d 955] |
| July 18, 2024 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Angela VV., Appellant. |
Mitchell S. Kessler, Cohoes, for appellant.
Elizabeth M. Crawford, District Attorney, Malone (Alyxandra Stanczak of counsel),for respondent.
Ceresia, J. Appeal from an order of the County Court of Franklin County (Timothy J.Lawliss, J.), entered October 31, 2022, which denied defendant's motion for resentencingpursuant to CPL 440.47, after a hearing.
Defendant was indicted and charged with murder in the second degree and assault inthe first degree. The charges stemmed from an incident occurring in November 2013wherein defendant beat the victim—with whom she had been in an intimaterelationship—with a baseball bat and stabbed him with a knife. Following interimproceedings, defendant elected to plead guilty to manslaughter in the first degree and wassentenced in February 2018 to a prison term of 15 years followed by five years ofpostrelease supervision. In July 2022, defendant applied to be resentenced pursuant toCPL 440.47, seeking to invoke the alternative sentencing provisions of the DomesticViolence Survivors Justice Act (hereinafter DVSJA) (see CPL 440.47; Penal Law§ 60.12, as amended by L 2019, ch 31, § 1; L 2019, ch 55,§ 1, part WW, § 1). After a hearing, County Court denieddefendant's application. This appeal ensued.
The DVSJA, as embodied in Penal Law § 60.12, was amended in 2019"to provide a more compassionate sentencing scheme for survivors of domestic violencewho committed offenses related to that abuse, even where a jury has rejected ajustification defense" (People vT.P., 216 AD3d 1469, 1471 [4th Dept 2023] [internal quotation marks omitted];see generally People vBurns, 207 AD3d 646, 648 [2d Dept 2022]). To that end, the statute "sets forththree factors for a court to consider, namely: (1) whether the defendant was a victim ofdomestic violence inflicted by a member of the same family or household at the time ofthe offense; (2) whether the abuse was a significant contributing factor to the defendant'scriminal behavior; and (3) whether, having regard for the nature and circumstances of thecrime and the history, character, and condition of the defendant, a sentence in accordancewith the customary statutory sentencing guidelines would be unduly harsh" (People vBurns, 207 AD3d at 648; see Penal Law § 60.12 [1]; People v Brenda WW., 222AD3d 1188, 1189 [3d Dept 2023]; People v Fisher, 221 AD3d 1195, 1196 [3d Dept 2023],lv denied 41 NY3d 1001 [2024]; People v Addimando, 197 AD3d 106, 111 [2d Dept 2021]).A defendant seeking such relief bears the burden of proving by a preponderance of theevidence the facts necessary to support the motion (see People v Addimando, 197AD3d at 112; see also People v T.P., 216 AD3d at 1471-1472; People vBurns, 207 AD3d at 648).
We preliminarily observe that, in denying defendant's application for resentencing,County Court indicated that it was affording "very little weight" to her hearing testimony,expressly finding that much of it was "incredible, irrelevant, evasive, self-serving,non-responsive, or equivocal." County Court, of course, was in a vastly superior positionto make such an assessment, having had the benefit [*2]of observing defendant's testimony firsthand, including herdemeanor and the manner in which she answered questions. Recognizing this, and notingthat our independent review of the transcript supports many of County Court'scharacterizations of her testimony, we hereby defer to County Court's credibilitydeterminations as they pertain to defendant. In reaching this conclusion, we would beremiss if we did not additionally acknowledge that defendant has provided ever-changingstories throughout this case, with her more recent versions greatly minimizing herculpability as compared to her earlier versions (see People v Brenda WW., 222AD3d at 1198-1200 [Pritzker, J., dissenting]). To that point, the fact that defendant hasconsistently alleged that she was acting in defense of herself when she committed thekilling does not demonstrate that her testimony was believable. It is hardly surprising thata person attempting to deflect blame for her own culpable conduct would take such aposition. Even more importantly, however, the conduct that defendant confessed to in herstatement to the State Police—which will be discussed more fullybelow—expressly disproves the idea that she was acting in self-defense when shekilled the victim, thereby highlighting the fallacy of her self-serving claim. Thus, withdefendant's testimony being rejected, it is our view that the remainder of the hearingevidence was insufficient for defendant to satisfy her burden of establishing the requisitesecond and third factors referenced above, regardless of whether she met her burden onthe first factor (see People v Fisher, 221 AD3d at 1197-1198).
Regarding factor two, defendant failed to prove that domestic abuse was a significantcontributing factor to her criminal conduct. In an effort to make this showing, defendantrelied upon her own testimony—which as just indicated was notcredible—as well as the forensic psychological evaluation report authored byclinical psychologist Norman J. Lesswing. This report, however, does not provide thenecessary support for this factor. To begin, Lesswing's knowledge of the incident inwhich defendant killed the victim appears to be based solely upon defendant'sself-reporting to him. Even overlooking that, what is truly problematic relative toLesswing's understanding of the events in issue is that he concludes that the past traumasuffered by defendant has impacted her subsequent memory of and ability to recollectwhat happened at the time of the killing. Indeed, he states that defendant has "a lack ofclarity and reliability in reporting exactly what took place" and has "difficulty withprecise, factually based articulation of experiences." Such an opinion is directly belied bythe comprehensive statement that defendant gave to a State Police investigator on the dayof the killing, which statement Lesswing acknowledges reviewing in his report. In thatstatement, defendant recalled and explained in a highly detailed fashion and [*3]with an exacting chronology everything that occurred inconnection with her killing of the victim. This inherent and inexplicable inconsistency inLesswing's report, by itself, calls into question the reliability of his opinions.
That said, the most concerning aspect of Lesswing's report and its relation to factortwo is the complete absence of any causal nexus between the domestic violence sufferedby defendant and her actions in killing the victim. After discussing defendant's historyand opining that she is a battered woman, Lesswing turns his attention to the events onthe morning of the killing. In so doing, he merely recounts what defendant hasself-described to him, including her subjective beliefs. Critically, however, Lesswingnever opines or concludes that defendant's prior trauma had any impact on or caused hercriminal conduct in this case. This stands in contrast with the forensic report thatLesswing furnished in People v Brenda WW. (222 AD3d at 1191), wherein hedescribed an abusive relationship that led the defendant therein to spontaneously kill thevictim. For all of the reasons just discussed, the record lacks credible evidence that thevictim's abuse of defendant was a significant contributing factor to her criminal behavior(see People v Fisher, 221 AD3d at 1197).
Moving on, defendant also failed, under factor three, to establish that the prisonsentence imposed is unduly harsh in light of the particular circumstances of this case anddefendant's history, character and condition. Given the untrustworthy nature ofdefendant's hearing testimony, a determination of what actually transpired on themorning in question is best gleaned from a reading of the aforementioned writtenstatement that defendant gave to the State Police investigator on the date of the killing.Not only was this statement given when the events were fresh in defendant's mind, but,as previously mentioned, it is replete with intricate details that lend an air of legitimacy tothe statement and totally undermine any self-serving claim of blacking out or notrecalling what had occurred. Defendant's statement reflects the following.
Defendant awoke at approximately 9:00 a.m. when she heard a sound at the door ofthe apartment she shared with the victim. She stood up and saw the victim with a knife inhis hand. The victim came at her, stating, "I am going to kill you." Defendant pushed thevictim, causing him to fall backwards to the floor and drop the knife. Defendant then ranpast the victim to the front door but did not think she could open it in time, recalling thatthere had been problems with the door. Instead, and despite the fact that the victim nolonger had the knife, defendant grabbed an aluminum baseball bat, turned back around toface the victim and "went after" him. Defendant then "started attacking" the unarmedvictim. The victim defended himself by trying to block and grab the bat. Defendantcontinued to circle the victim and repeatedly struck him [*4]with the bat in the head, the face, the arms and the hands.Defendant knew that she was connecting because she "could hear it and feel it."Ultimately, defendant hit the victim on the top of the head, causing him to fall to thefloor in the corner of the room. From that position, the victim covered his head, tellingdefendant to stop hitting him. Unmoved, defendant hit the victim in the head three orfour more times. Although not set forth in defendant's statement, other hearing evidenceestablished that, as a result of these actions by defendant, the victim sustained a fracturedskull and two fractured forearms.
Still with the bat in her hand, defendant noticed the knife on the floor and grabbed it.She turned back around, again approached the victim—who remained on the floor,unarmed, with "blood everywhere"—and stabbed him five or six times in the head,the face, the neck and the chest. After that, defendant took a break by walking over to thecomputer and sitting down for about five minutes. As she sat there, the victim continuedto lie on the floor, "making noises" and not moving.
Even with the victim in this condition and after having taken time to reflect on heractions, defendant chose to move forward with more violence. Realizing that the knifeblade had become bent, defendant took efforts to put the blade under her boot and"straighten[ ] it the best [she] could." She then proceeded to walk back over to the victimfor the final time and stabbed him twice in his right eye. Defendant waited more than anhour before eventually calling 911 for assistance. Additional hearing evidence revealedthat the victim died from multiple stab wounds "that penetrated the protective sac aroundhis heart, pierced the main blood vessel leading to the heart, and sliced into a lung."
In view of this chilling account rendered by defendant in the hours following thecrime, which was corroborated by objective evidence of the victim's extensive injuries, itis clear that a reduction of defendant's sentence is not justified. Defendant, who almostimmediately faced no imminent threat from the victim, acted in a deliberate and relentlessmanner in carrying out the brutal killing. Indeed, notwithstanding the fact that the victimwas lying on the floor and covered in blood with a fractured skull and two fracturedforearms, and despite defendant having paused to think about what she had already done,she resumed her attack. Although we are mindful that the absence of an imminent threatdoes not necessarily foreclose the proper application of the DVSJA, as the statute may beapplied regardless of whether the defendant was entitled to a justification charge (seePenal Law § 60.12 [1]; People v Brenda WW., 222 AD3d at1192), it is equally true that such an absence may appropriately be considered whenassessing whether the particular circumstances of a case render the imposed sentenceunduly harsh.
In addition to the circumstances of defendant's criminal conduct, her [*5]history, character and condition weigh against the grantingof her motion for resentencing. Evidence in the record establishes that both defendantand the victim abused drugs and alcohol extensively and demonstrates that the domesticviolence was not solely one-sided. In that regard, defendant wrote a letter to the victim atone point in their relationship in which she asked him not to fear her and said that shehad never hit him on a sober day. Also, in the days leading up to the killing, the victimtexted defendant, stating that he did not know how to handle her attacks on him, anddefendant responded by apologizing for her behavior. Further, there was testimony andwritten statements from a man with whom defendant was romantically involved bothbefore and during her relationship with the victim. This man stated that he observeddefendant and the victim physically fighting on more than one occasion. He alsoindicated that defendant had slapped and punched him during the course of theirrelationship, causing him in one instance to suffer a detached retina. This latter evidencedemonstrates that defendant possessed violent tendencies separate and apart from theabuse that she claimed to have suffered from the victim.
The record also supports a finding that defendant has not fully acceptedresponsibility for her actions. As recently as her testimony during the underlying hearing,defendant refused to acknowledge that she had killed the victim, allowing only that hehad "passed away" while she was defending herself. In the face of follow-up questioning,defendant persisted in her refusal to concede that she had killed the victim. Such a refusalto accept even the most basic level of accountability is not only troubling on its own, butit also makes any prior supposed showing of remorse ring hollow at best, and appearfeigned at worst.
Defendant's anything-but-admirable behavior while incarcerated sheds additionallight on her character and condition. She received numerous disciplinary tickets coveringa variety of offensive conduct. In that regard, defendant was ticketed and punished for,among other things, sexual harassment, making fun of an officer's physical appearance,and calling guards names such as "a**hole" and "piece of sh**." She also threw a cup ofwater at a guard. Defendant's conduct was severe enough that it earned her a 15-daylockdown on one occasion and a 30-day lockdown on another.
Given the foregoing, it cannot be said, upon a fair consideration of the circumstancesof defendant's crime as well as her history, character and condition, that the sentencereceived by her is unduly harsh. Put another way, we do not conclude, as our dissentingcolleagues do, that defendant's heinous actions in this case, refusal to acceptresponsibility for her behavior, history of violence and disturbing record whileincarcerated are outweighed by a questionable claim of remorse, a minimal criminalhistory and the fact that she has the support of [*6]herown family.
In conclusion, we find that this case does not warrant "the compassionate exercise ofa sentencing reduction" (People v Brenda WW., 222 AD3d at 1193), whichwould result in a maximum sentence of between one and five years in prison (seePenal Law § 60.12 [2] [a]). Accordingly, defendant's application forresentencing was properly denied (see generally People v Fisher, 221 AD3d at1197-1198). Defendant's remaining contentions have been examined and found to belacking in merit. Pritzker, J.P. and Mackey, J., concur.
Lynch, J. (dissenting). We respectfully dissent and would grant defendant'sapplication for compassionate resentencing under the Domestic Violence SurvivorsJustice Act (hereinafter DVSJA) (see CPL 440.47; Penal Law§ 60.12). This matter was previously before the Court on direct appeal,where we vacated a jury verdict convicting defendant of the crimes of murder in thesecond degree and assault in the first degree due to several significant trial errors,including the trial court's denial of defendant's request for a justificationcharge.[FN1] Fromour perspective, it is important for purposes of this resentencing matter to recognize howwe recounted the underlying facts in the prior appeal, as follows: "On [a] morning [in]November . . . 2013, defendant called 911 and reported that 'she had beenattacked and needed [police] assistance.' When . . . law enforcement. . . arrived at defendant's apartment, the . . . body of the victim[, who] defendant had been in an intimate relationship [with,] was discovered covered bya sheet and a blanket on the floor inside the apartment. At the scene and at the policestation, defendant gave oral and written statements . . . claim[ing] that thevictim had approached her aggressively with a knife and that she reacted in self-defenseby hitting him with a . . . baseball bat and, [thereafter], by stabbing him withthe knife. An autopsy determined that the victim suffered [extensive injuries]." Uponremittal, defendant opted to plead guilty to manslaughter in the first degree, resulting inthe 15-year term of imprisonment from which she seeks relief under the DVSJA.
Pursuant to Penal Law § 60.12, a court may impose an alternativesentence under the DVSJA when a defendant has established by a preponderance of theevidence 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 as thedefendant as such term is defined in [CPL 530.11 (1)]; (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"(Penal Law § 60.12 [1]; see CPL 440.47[*7]). At such a hearing, "the court shall consider oral andwritten arguments, take testimony from witnesses offered by either party, and considerrelevant evidence to assist in making its determination" (Penal Law § 60.12[1]). "Reliable hearsay shall be admissible at such hearings" (Penal Law§ 60.12 [1]; CPL 440.47 [2] [e]). "The court may consider any fact orcircumstances relevant to the imposition of a new sentence which are submitted by theapplicant or the district attorney," including "the institutional record of confinement ofsuch person" (CPL 440.47 [2] [e]). "The court's consideration of the institutional recordof confinement of such applicant shall include, but not be limited to, such applicant'sparticipation in or willingness to participate in programming such as domestic violence,parenting and substance abuse treatment while incarcerated and such applicant'sdisciplinary history" (CPL 440.47 [2] [e]).
In People v BrendaWW. (222 AD3d 1188 [3d Dept 2023]), we recently observed that "the statutoryscheme resulting from the DVSJA entails that a reviewing court . . . engagein a review of the sentence imposed without deference to the sentence or resentenceunder review" (id. at 1193 n 2). Although a trial court's credibility determinationsshould not be lightly cast aside, we need not defer to County Court's determination in thiscontext particularly where, as here, it is not supported by the record (see id. at1191; People v Addimando,197 AD3d 106, 116-117 [2d Dept 2021]). The record demonstrates that from themoment of her 911 call requesting help, through her testimony at the September 22, 2022resentencing hearing, defendant has been consistent in her claim that she acted inself-defense after the victim entered her residence with a knife and attacked her.Defendant has also been steadfast in her claim that she endured months of physical,emotional and sexual abuse perpetrated by the victim prior to the underlying crime.Nevertheless, County Court, in addressing the first prong of the analysis under theDVSJA, concluded that defendant failed to establish that she was a domestic violencevictim, finding her testimony to be "incredible" and "self-serving." Contrary to CountyCourt's determinations, it is our view that defendant presented compelling evidence inthis regard, both in the form of her hearing testimony and through corroborative evidencefrom independent sources. We do not share the majority's observation that "ourindependent review . . . supports many of County Court's characterizationsof [defendant's] testimony" (majority at 957). To the contrary, we find County Court's critique unfair and unwarranted.Defendant did, at times, endeavor to explain the context in responding to specificquestions, but her doing so is not fairly described as evasive and certainly did not warrantthe trial court's dismissive criticism.
During the hearing, defendant explained that she and the victim had been in arelationship for a little [*8]over a year at the time of thesubject incident. Around seven months into their relationship, the victim—whowas 65 years old while defendant was 28—became verbally, sexually andphysically abusive. Defendant, who was financially dependent on the victim, detailed"almost daily" acts of violence perpetrated against her during their relationship, includingthreats to her life and instances in which the victim "slam[med] his fist into the side of[her]head," "s[u]nk his nails into [her]," punched her, slapped her and scratched her.Defendant also testified that the victim bragged about having previously killed someone,sexually assaulted her while she was bound with a rope and drugged her withhallucinogens. In other statements contained in the record, defendant recounted thevictim telling her: "I own you" and "If you leave, I'll kill you." He also attempted tocontrol her weight and isolated her from friends and family, taking away her vehicle andphone and leaving her alone for "days on end" at the camp where they resided. Shefurther explained that October 2013—the month before the incident—wasthe worst month she had ever experienced in her entire relationship. As for defendant'sassertion that the victim isolated her, defendant's mother confirmed that, for almost a yearbefore the subject incident, there had been "no communication between [defendant] andher."
Defendant also presented independent corroborative evidence in this regard,including an excerpt from the transcript of the underlying jury trial wherein the victim'sformer employee confirmed that he had observed defendant with a black eye andscratches on her neck during the summer of 2013. That employee also witnessed thevictim display classic hallmarks of abusive behavior, recounting an instance in which thevictim became very angry with him when he made defendant laugh. Defendant's formerparamour also confirmed that he had witnessed defendant "with many marks on her"body during her relationship with the victim and recalled an instance when he arrived ather residence and found her "pinned to the ground" by the victim. This witness revealedthat the victim, who was a heavy drinker, was also violent toward him, recounting acircumstance where the victim tried to attack him with a bottle of liquor. He furthercorroborated defendant's claim that the victim would brag about killing people. As forthe nature of his relationship with defendant, the paramour stated she hit him "aboutthree times during separate incidences." He specifically recalled one situation whendefendant returned home after an argument, only to find his former girlfriend present.Another argument ensued and when the paramour stated that he "deserved to be hit,"defendant punched him in the "left temple," injuring his eye. This witness also recountedcircumstances in which defendant was forced to defend herself in altercations with thevictim, where he observed her with fresh scratches and blood on her face. [*9]Defendant's mother also recalled seeing her with marks onher face during her relationship with the victim, recounting a circumstance in which sheencouraged defendant to go to the hospital because she looked "physically horrible andseemed unstable" but the victim told her "not to go."
If this evidence was not compelling enough, the record also contains a statementfrom the victim's own brother confirming that he was a violent person.[FN2] The brother explainedthat, during their childhood, the victim "would provoke him to the point that he neededto retaliate" and was "very aggressive when intoxicated." Like the victim's employee, hisbrother also recalled the victim displaying classic abusive behavior, noting that the victim"did not want [defendant] around him alone, as a result of totally unfounded jealousy."The brother revealed that, in August 2013, defendant informed him that the victim was"raping her, tearing her clothes, and choking her." In response, the brother suggested thatdefendant move.
Consistent with the foregoing, defendant also submitted a forensic report authored byNorman J. Lesswing, a psychologist who evaluated her on three different occasionsduring September 2014, just 10 months after the underlying event.[FN3] In his report, Lesswingconcluded that defendant "was a victim of domestic violence within her relationshipwith" the victim and a "battered woman." Lesswing provided specific examplessupporting "classic hallmarks of domestic violence and battering," including the victim'scontrol and power over defendant as evidenced by his desire to keep her isolated,statements like "I own you" and "you'll never get away from me," his "sadomasochistictreatment of [defendant]"—which graduated into bondage leaving "her tied up forextended periods of time"—and "coercive vaginal and anal intercourse." Lesswingalso highlighted the victim's "extreme jealousy," repeated threats to kill defendant,several occasions where he drugged defendant "without her knowledge," and defendant'sfinancial dependency on him, explaining that defendant felt "like a prisoner."Notwithstanding this detailed analysis, County Court found Lesswing's findings "to be oflittle value," stating that he had relied "almost exclusively upon [d]efendant as the sourcematerial for [his] evaluation." This is an incorrect characterization of the report, asLesswing's report cited several different sources for his conclusions, including interviewswith the victim's brother and defendant's former paramour. Lesswing also administeredpsychological testing and based his clinical assessment on approximately 20 hours ofobservation and interview over the course of three days. In our view, there was noreasonable basis for County Court to discount Lesswing's report and the foregoingindependent proof, which amply corroborated defendant's testimony that she had beensubjected to months of "substantial abuse by the [victim] and that this abuse had beenongoing up to and including [*10]the underlyingincident" (People v Liz L.,221 AD3d 1288, 1291 [3d Dept 2023]; see Penal Law § 60.12[1] [a]; People v Addimando, 197 AD3d at 118).
County Court also erred in concluding that this abuse was not a significantcontributing factor to defendant's criminal conduct. During the hearing, defendanttestified about the events precipitating the underlying incident, revealing that, a few daysprior, the victim had visited her at the camp where she was residing and "smashed [her]in the side of the head with a piece of firewood." She explained that, at that time, she andthe victim were in a "chaotic state of drinking," describing their relationship as "likewar." Defendant thereafter left the camp and hitch-hiked into town, where she stayed atan apartment they maintained. She testified that, a few days later, the victim "burst intothe house with a knife in his hand" and "came at [her] with [the] kitchen knife screaminghe was going to kill [her], like a madman on alcohol and other drugs." Defendanttestified that she "absolutely thought he was going to kill [her] because . . .of our behavior for the past year and a half." Hoping to dislodge the knife from thevictim's hand, defendant grabbed a baseball bat and "str[u]ck[ ]" his arm and hand,causing him to drop the knife. She recovered the knife and thereafter repeatedly stabbedhim in the chest and eye.
We are mindful that defendant's initial statements to police relayed a more brutalaccount of the events, including that she sat at her computer desk for some time beforestraightening the bent blade of the knife and stabbing the victim in the right eye when hewas already on the ground severely wounded and incapacitated. There was also evidencethat defendant waited to call police. Even so, defendant has been consistent in her claimthat she was acting to protect herself during an altercation in which the victim wasthreatening her with a knife—a claim that was generally corroborated by the maleDNA found on the knife's handle, the physical evidence of a struggle in the apartmentand pictures taken by police after the incident, which show defendant with a scratch nextto her right eye and bruises on her body. The inconsistences regarding the specific detailsare readily explained by defendant's consistent assertion, made as early as her 911 callover 11 years ago, that she was in a state of "shock" and had a stress-induced"blackout"—a claim that is hardly surprising given the traumatic nature of theencounter (see generally 1 NY Law of Domestic Violence § 3:21[4th ed]). Tellingly, defendant's initial police statement was replete with qualifiers thatshe "th[ought]" certain of the details she was giving were correct but cautioned that shewas not certain. In his forensic report, Lesswing confirmed that defendant's "lack ofclarity and reliability in reporting exactly what took place" stemmed from, among otherthings, the "impact of trauma" upon memory, "wherein recall is partial, hazy[*11], and incomplete" (see generally Mary AnnDutton, Understanding Women's Responses to Domestic Violence: A Redefinition ofBattered Woman Syndrome, 21 Hofstra L Rev 1191, 1221 [1993] [detailingevidence that "memory problems such as amnesia and dissociation" can arise frompsychological distress resulting from physical and sexual violence]). Considered incontext, the majority's observation "that defendant has provided ever-changing storiesthroughout this case" (majority at 957) does not comport with the record (compare People v Brenda WW., 222AD3d at 1198-1199 [Pritzker, J., dissenting]). Under all the circumstances, we find thatdefendant established, by a preponderance of the evidence, that the abuse she enduredwas a significant contributing factor to her criminal conduct (see People v BrendaWW., 222 AD3d at 1193; People v Liz L., 221 AD3d at 1291; Penal Law§ 60.12 [1] [b]).
Having found that defendant failed to meet her burden on the first two prongs of theanalysis, County Court never rendered a finding on the third factor—namely,whether a standard sentence would be "unduly harsh" under the circumstances presented.This factor requires a consideration of "the nature and circumstances of the crime," aswell as "the history, character and condition of the defendant" (Penal Law§ 60.12 [1] [c]). First and foremost, unlike the encounter in People vBrenda WW. where the victim was neither the aggressor nor armed with a deadlyweapon (222 AD3d at 1196-1197 [Pritzker, J., dissenting]), by defendant's account, thevictim entered the apartment threatening to kill her with a knife. The brutality ofdefendant's conduct is certainly relevant to the analysis; however, it is one of severalfactors to consider and does not disqualify her from obtaining compassionateresentencing under the DVSJA (see Penal Law § 60.12 [1]). Afteraccounting for the totality of the relevant circumstances, we conclude that the brutality ofthe crime does not outweigh the other factors supporting a reduction in the sentence(see People v Brenda WW., 222 AD3d at 1195; People v Addimando,197 AD3d at 118). Although the record does contain evidence that defendant previouslyengaged in a few instances of violent and aggressive behavior even outside of herrelationship with the victim, "a close inspection of that history [indicates] that [thisbehavior] w[as] attributable to her longstanding struggle with substance abuse"(People v Brenda WW., 222 AD3d at 1194).[FN4] Significant to this point, defendant hasengaged in various educational and therapeutic programming during her incarceration,including in the areas of alcohol abuse and domestic violence. Aside from one,nonviolent, alcohol-related conviction for driving while ability impaired (a noncriminaltraffic infraction), defendant has no prior criminal record, further indicating that herconduct toward the victim stemmed from the abuse she endured at his hands rather thanany inherently violent disposition. Similarly, although [*12]defendant received a series of disciplinary tickets while inlocal jail pending trial more than a decade ago, which the majority cites in detail, herdisciplinary record from Bedford Hills Correctional Facility, where she had beenincarcerated for approximately eight years by the time of the hearing, is stellar.[FN5] She has family supportand intends to move in with her parents if released, hoping to go back tocollege—where she only needs a few credits to obtain a degree. Defendant showedremorse for her actions during the sentencing hearing on her plea to the manslaughtercharge and apologized to the victim's family. She was "tearful" during her interview withLesswing and also expressed concern for the victim's family in a 2018 probation report.Her friends and family, as well as the victim's own brother, universally described her as acaring person. In these circumstances, we find that a standard sentence is "unduly harsh"and that defendant's application for compassionate resentencing under the DVSJA shouldbe granted. In closing, we note that defendant has already served 11 years of hersentence, "which is above the maximum allowed under the DVSJA for a class B felony. . . for manslaughter in the first degree" (People v Liz L., 221 AD3dat 1292; see Penal Law §§ 60.12 [2] [a]; 70.45 [2] [f]). Absentrelief here, defendant will be eligible for parole in only two years and her maximumexpiration date is set for November 2028. Based on all the foregoing, continuingdefendant's incarceration runs counter to the objective and spirit of the DVSJA, whichseeks to ameliorate the "unjust ways in which the criminal justice system responds to andpunishes domestic violence survivors who act to protect themselves from an abuser'sviolence" (Assembly Mem in Support, Bill Jacket, L 2019, ch 31 at 6). A resentencingunder CPL 440.47 is warranted. Fisher, J., concurs.
Ordered that the order is affirmed.
Footnote 1:In an effort to maintaindefendant's anonymity as a domestic violence survivor, we are not utilizing her surnamein this decision or providing the citation to our prior determination.
Footnote 2:This statement iscontained in a forensic report authored by a psychologist who engaged in a clinicalassessment of defendant.
Footnote 3:The report wasstipulated into evidence at the resentencing hearing.
Footnote 4:The majority notes thatthe record contains a letter that defendant wrote to the victim during their relationship inwhich she asked him not to fear her and said that she never hit him on a sober day.Tellingly, in the same letter, defendant expressed the following: "I [know] you['re] a verysmart man. I don't show you the appr[ecia]tion you deserve . . . . I need toshow [you] more respect . . . . I do respect you. I just need to show it [and]shut my mouth." These are classic statements of abuse victims, who often internalize theabuse they endure (see generally 1 NY Law of Domestic Violence§ 3:21 [4th ed]). We further note that a mutually-abusiverelationship—if that is what occurred here—"does not foreclose adetermination that defendant was a victim of abuse" or disqualify her from obtainingsentencing reduction under the DVSJA (People v Brenda WW., 222 AD3d at1191).
Footnote 5:During the hearing,defendant revealed that she had received a tier II disciplinary ticket a month prior formaking a duffle bag out of a Vietnam War jacket. This ticket was dropped by thesergeant.