The defendant (S.M.) filed a request pursuant to Criminal Procedure Law (CPL) §440.47 to apply for resentencing in accordance with §60.12 of the Penal Law (PL) and this Court granted the request by order dated December 3, 2020. This Court found S. M. eligible for resentencing since at the time of the request she was confined in an institution operated by the Department of Correction and Community Supervision (DOCCS) serving a sentence with a minimum or determinate term of eight years or more for an offense committed prior to the effective date of CPL §440.47 and eligible for an alternative sentence pursuant to PL §60.12.

S.M. then filed an application for resentencing pursuant to CPL §440.47 dated February 9, 2021 alleging that she is eligible for resentencing because (1) at the time of the instant offense she was a victim of domestic abuse subjected to substantial physical, sexual and psychological abuse; (2) such abuse was a significant contributing factor to her commission of the offense, and; (3) the original sentence imposed in this matter was unduly harsh. In opposition to S.M.'s motion, the People contend that since S.M.'s application she is no longer confined in a correctional facility or serving a sentence of incarceration and therefore is not eligible for [*2]resentencing. The People also contend in their opposition that S.M. fails to establish that the abuse was a significant contributing factor to her criminal behavior or that her sentence was unduly harsh. It should be noted that following the hearing the People submitted written correspondence to the Court withdrawing their opposition to S.M.'s application for resentencing. However, this Court must still make written findings of fact and state the reasons for granting the application and issuing the resentencing order pursuant to CPL §440.47(2)(g).

S.M. pleaded guilty to one count of robbery in the first degree under Superior Court Information Number 37736 in connection with events which occurred on May 9, 2012. S.M. was sentenced to nine and one-half years imprisonment followed by five years post-release supervision on November 18, 2013. She appealed her conviction to the Appellate Division, Fourth Department, and it was unanimously affirmed. S.M. completed her sentence on February 11, 2021 and was released to post-release supervision.

The Domestic Violence Survivors Justice Act (DVSJA) was signed into law on May 14, 2019 permitting survivors of domestic violence to apply for resentencing and authorizing the imposition of alternative sentences provided these survivors of domestic violence meet the requirements of CPL §440.47. The intent of the DVSJA was to give courts discretion to reduce lengthy sentences for victims of domestic violence where that violence was a significant contributing factor to their criminal behavior. PL §60.12 requires the court to conduct a hearing and following that hearing may impose an alternate sentence after a determination that (a) at the time of the instant offense, the defendant was a victim of domestic violence subjected to substantial physical, sexual or psychological abuse inflicted by a member of the same family or household as the defendant; (b) such abuse was a significant contributing factor to the defendant's criminal behavior; (c) having regard for the nature and circumstances of the crime and the history, character and condition of the defendant, that the sentence was unduly harsh. A court may determine that the abuse was a significant contributing factor to the defendant's criminal behavior whether or not the defendant raised a defense pursuant to article thirty-five, article forty, or subdivision one of §125.25 of the Penal Law. At the hearing the court shall consider oral and written arguments, take testimony from witnesses offered by either party, and consider relevant evidence to assist in making its determination, including the admission of reliable hearsay. (PL §60.12[1]).

Under CPL§ 440.47 (1)(a) defendants that are currently incarcerated may submit a request to apply for resentencing. When S.M. made her request to apply for resentencing she was incarcerated and when her application for resentencing was received she was still incarcerated. She was released while the application was pending, which the People originally contended affects her eligibility for resentencing pursuant to CPL §440.47, then subsequent to the hearing withdrew their opposition to S.M.'s application for resentencing.

UNDERLYING CRIME

On May 9, 2012 S.M. drove Mr. S. and a third individual around the city. Mr. S. instructed her to pull over at which time he robbed a pedestrian on the street, taking money and other valuables. Mr. S. and the other individual robbed several people during the course of the day, demanding S.M. pull the car over when they identified someone they wanted to rob. S.M. pleaded with Mr. S. to let her stay at his sister's house with her child but he grabbed her by the hair and dragged her back to the vehicle, insisting she drive because she was the one with a driver license. S.M. did not want to drive so she got into the passenger seat, at which time Mr. S. headbutted her and struck her in the face, causing her to bleed. S.M. then complied with his [*3]demands to drive. At some point during the commission of several robberies, they encountered the victim at which time Mr. S. shot him and instructed S.M. to drive off. S.M. pleaded guilty to Robbery in the First Degree (PL §160.15[4]) and testified against Mr. S. in the murder trial.

FINDINGS OF FACT