| People v Burns |
| 2022 NY Slip Op 04638 [207 AD3d 646] [207 AD3d 646] |
| July 20, 2022 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Thomas Burns, Appellant. |
Kate Mogulescu, Brooklyn, NY (Laurette D. Mulry [Felice Milani] and Cravath,Swaine& Moore LLP [David M. Stuart, Andrew Wiktor, and Matthew Nussbaum], ofcounsel), forappellant.
Raymond A. Tierney, District Attorney, Riverhead, NY (Kathleen Becker Langlan ofcounsel), for respondent.
Appeal by the defendant from so much of an order of the Supreme Court, SuffolkCounty(William J. Condon, J.), dated January 12, 2021, as, after a hearing, denied that branch ofhismotion which was pursuant to CPL 440.47 to vacate the sentence imposed upon hisconviction ofmurder in the second degree, and to be resentenced on that conviction in accordance withPenalLaw § 60.12.
Ordered that the order is reversed insofar as appealed from, on the law, on the facts,and as amatter of discretion in the interest of justice, that branch of the defendant's motion whichwaspursuant to CPL 440.47 to vacate the sentence imposed upon his conviction of murder inthesecond degree, and to be resentenced on that conviction in accordance with Penal Law§ 60.12 is granted, and the matter is remitted to the Supreme Court, SuffolkCounty,for further proceedings consistent herewith, to be conducted with all deliberatespeed.
The issue on this appeal is whether the Supreme Court properly applied the DomesticViolence Survivors Justice Act (L 2019, ch 31, § 1; L 2019, ch 55,§ 1, part WW, § 1 [eff May 14, 2019] [hereinafter DVSJA]),whichamended Penal Law § 60.12.
In December 1996, when the defendant was 19 years old, he killed his father and hisfather'sgirlfriend, Antoinetta Johnston, during an altercation which occurred in the father's homewhereall three individuals had resided. The defendant pleaded guilty to manslaughter in thefirst degreefor the death of his father and murder in the second degree for the death of Johnston. Thedefendant was sentenced to consecutive terms of imprisonment of 3 to 6 years on themanslaughter conviction and 25 years to life on the murder conviction, for an aggregatesentenceof 28 years to life imprisonment.
In 2020, after having served more than 23 years in prison, the defendant submitted anapplication for resentencing pursuant to the newly enacted DVSJA. After a hearing, theSupremeCourt granted that branch of the defendant's motion which was to vacate the sentenceimposedupon [*2]his conviction of manslaughter in the firstdegree and tobe resentenced on that conviction in accordance with Penal Law § 60.12,but deniedthat branch of the defendant's motion which was to vacate the sentence imposed upon hisconviction of murder in the second degree and to be resentenced on that conviction inaccordancewith Penal Law § 60.12. The court determined that the defendant met hisburden ofestablishing that he was a victim of domestic violence by his father at the time of theoffense, thatthe abuse by the father was a significant contributing factor to the defendant's act ofkilling hisfather, and that the sentence of imprisonment was unduly harsh. The court furtherrecognized theexemplary behavior of the defendant in the correctional facility during his 23 years ofimprisonment. The court resentenced the defendant pursuant to Penal Law§ 60.12on the manslaughter conviction to a term of 364 days in jail. However, the courtdetermined thatthe defendant failed to meet his burden of demonstrating that the abuse suffered at thehands ofhis father was a significant contributing factor to the murder of Johnston, and that thesentence of25 years to life imprisonment was not unduly harsh under the circumstances of thiscase.
The DVSJA permits courts to impose reduced alternative, less severe, sentences incertaincases involving defendants who are victims of domestic violence (see People v Addimando, 197AD3d106, 109 [2021]). The DVSJA sets forth three factors for a court to consider,namely: (1)whether the defendant was a victim of domestic violence inflicted by a member of thesamefamily or household at the time of the offense; (2) whether the abuse was a significantcontributing factor to the defendant's criminal behavior; and (3) whether, having regardfor thenature and circumstances of the crime and the history, character, and condition of thedefendant,a sentence in accordance with the customary statutory sentencing guidelines would beundulyharsh (see Penal Law § 60.12). The preponderance of the evidencestandardapplies (see People v Addimando, 197 AD3d at 112). The DVSJA permits thecourt toimpose a less punitive and less harsh sentence without diminishing the seriousness of theoffenseor finding the crime to have been justified (see People v Addimando, 197 AD3dat117-118; People v Smith,69 Misc3d 1030 [Erie County Ct 2020]).
Here, as the Supreme Court determined, the record amply established that thedefendant wasa victim of domestic violence inflicted by his father, with whom he lived, at the time oftheunderlying offenses. The record also supports the court's determination that the father'sabuse ofthe defendant was a significant contributing factor to the defendant's act of killing hisfather.Contrary to the court's further determination, however, the record also showed that thefather'sabuse of the defendant was a significant contributing factor to the murder of Johnston.Considering the cumulative effect of the defendant's abuse at the hands of his father,togetherwith the events immediately surrounding the crimes, and paying particular attention tothecircumstances under which the defendant was living, the preponderance of the evidencedemonstrates that the father's abuse was a contributing factor to the murder of Johnston(seePeople v Addimando, 197 AD3d at 116-117).
Further, under the particular circumstances of this case, including the nature of theunderlying crime, the age of the defendant at the time of the crime, his record andaccomplishments during his lengthy period of imprisonment, and his family support, thesentenceimposed upon the defendant's conviction of murder in the second degree was undulyharsh, andhe should be re-sentenced on that conviction in accordance with Penal Law§ 60.12(see People v Addimando, 197 AD3d at 117-118; People v S.M., 72 Misc 3d 809, 814 [Erie County Ct 2021];People v Smith, 69 Misc 3d at 1039). In light of the foregoing, the SupremeCourt shouldhave granted that branch of the defendant's motion which was pursuant to CPL 440.47 tovacatethe sentence imposed upon his conviction of murder in the second degree, and to beresentencedon that conviction in accordance with Penal Law § 60.12.
The People's contention that the defendant's arguments are unpreserved for appellatereviewis without merit.
Accordingly, we reverse the order insofar as appealed from, and remit the matter totheSupreme Court, Suffolk County, for resentencing pursuant to CPL 440.47 on thedefendant'sconviction of murder in the second degree, in accordance with Penal Law§ 60.12,with all deliberate speed. Iannacci, J.P., Miller, Genovesi and Ford, JJ., concur.