| People v T.P. |
| 2023 NY Slip Op 02479 [216 AD3d 1469] |
| May 9, 2023 |
| Appellate Division, Fourth Department |
[*1](May 9, 2023)
| The People of the State of New York,Respondent, v T.P., Appellant. |
Davis Polk & Wardwell LLP, New York City (Nikolaus J. Williams ofcounsel), for defendant-appellant.
John J. Flynn, District Attorney, Buffalo (Daniel J. Mattle of counsel), forrespondent.
Duane Morris LLP, New York City (Eric R. Breslin of counsel), for SeventeenLegislators, Amici Curiae.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia,A.J.), rendered September 5, 2019. The judgment convicted defendant upon a juryverdict of manslaughter in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe facts and as a matter of discretion in the interest of justice by reducing the sentenceimposed to a determinate term of incarceration of four years and a period of postreleasesupervision of 2
Memorandum: Defendant appeals from a judgment convicting her upon a juryverdict of manslaughter in the first degree (Penal Law § 125.20 [1]).Defendant contends that Supreme Court erred in its charge on justification by failing toinclude the "reputation evidence" addendum to the CJI charge for Justification: Use ofDeadly Physical Force in Defense of a Person (see Penal Law§ 35.15 [2]). Defendant failed to preserve that contention for our review(see CPL 470.05 [2]; People v McWilliams, 48 AD3d 1266, 1267 [4th Dept2008], lv denied 10 NY3d 961 [2008]) and, in any event, we conclude that itlacks merit. "In evaluating a challenged jury instruction, we view the charge as a wholein order to determine whether a claimed deficiency in the jury charge requires reversal"(People v Medina, 18 NY3d98, 104 [2011]). Here, although the court did not read the addendum, the jurors wereappropriately instructed that they "should assess the reasonableness of defendant's beliefthat [s]he was in deadly peril by judging the situation from the point of view of defendantas though they were actually in [her] place" (People v Wesley, 76 NY2d 555,559-560 [1990]). Further, nothing in the CJI reputation evidence addendum alters ornegates the court's instruction that defendant "would not be justified if she was the initialaggressor of deadly physical force" (see CJI2d[NY] Justification: Use of DeadlyPhysical Force in Defense of a Person,https://www.nycourts.gov/judges/cji/1-General/Defenses/CJI2d.Justification.Person.Deadly_Force.pdf). Inasmuch as the trial evidence regarding the victim's capacity forviolence consisted almost entirely of direct evidence of his acts of violence towarddefendant specifically, a charge addressing reputation evidence was unwarranted and,contrary to defendant's further contention, counsel was not ineffective for failing torequest it (see People vDaggett, 150 AD3d 1680, 1682 [4th Dept 2017], lv denied 29 NY3d1125 [2017]; see e.g. People vJohnson, 136 AD3d 1338, 1339 [4th Dept 2016], lv denied 27 NY3d1134 [2016]).
Defendant's contention that she was denied a fair trial by prosecutorial misconductduring [*2]summation is unpreserved (see CPL470.05 [2]; People v Fick,167 AD3d 1484, 1485 [4th Dept 2018], lv denied 33 NY3d 948 [2019]) and,in any event, without merit. In light of defendant's acknowledgment at trial that she liedto the police, the prosecutor's remarks highlighting defendant's untruthfulness anddisagreeing with defense counsel's assertion that defendant was now telling the truthwere fair comment on the evidence (see People v Russo, 201 AD2d 512, 513 [2dDept 1994], affd 85 NY2d 872 [1995]; People v Mastowski, 155 AD3d 1624, 1625 [4th Dept2017], lv denied 30 NY3d 1117 [2018]; People v Sinclair, 231 AD2d926, 926 [4th Dept 1996]). Further, even if certain other comments made by theprosecutor were improper, they were not so egregious as to deny defendant a fair trial (see People v Burton, 175AD3d 1847, 1847-1848 [4th Dept 2019], lv denied 34 NY3d 1075 [2019];People v Sweney, 55 AD3d1350, 1351 [4th Dept 2008], lv denied 11 NY3d 901 [2008]), especiallygiven the court's instructions to the jurors that their recollection of testimony wouldcontrol and that the attorneys' summations were merely argument, not evidence (see People v Burke, 197 AD3d967, 968 [4th Dept 2021], lv denied 37 NY3d 1159 [2022]; People v Warmley, 179 AD3d1537, 1538 [4th Dept 2020], lv denied 35 NY3d 945 [2020]; People v Morgan, 148 AD3d1590, 1591 [4th Dept 2017], lv denied 29 NY3d 1083 [2017]; seegenerally People v Ashwal, 39 NY2d 105, 109-111 [1976]).
However, we agree with defendant that a reduction in her sentence is warrantedpursuant to the Domestic Violence Survivors Justice Act (DVSJA) (L 2019, ch 31; L2019, ch 55, § 1, part WW), which amended Penal Law§ 60.12. As noted in the amicus brief filed by members of the New YorkState Senate and Assembly who sponsored or supported its passage, the DVSJA resultedfrom the legislature's second attempt "to provide a more compassionate sentencingscheme for survivors of domestic violence who committed offenses related to thatabuse," even where a jury has rejected a justification defense (see generally People vAddimando, 197 AD3d 106, 109-110 [2d Dept 2021]). As noted during thebill's enactment, "all too often in our court system when women are defendingthemselves against domestic violence, instead of being met with . . .compassion and assistance and help," they are met with punishment (NY Senate Debateon 2019 NY Senate Bill S1077, Mar. 12, 2019 at 1572 [statement of Senator Carlucci]).Penal Law § 60.12 (1) thus provides an alternative sentencing scheme thatthe sentencing court may apply where it determines that "(a) at the time of the instantoffense, the defendant was a victim of domestic violence subjected to substantialphysical, sexual or psychological abuse inflicted by a member of the same family orhousehold as the defendant as such term is defined in [CPL 530.11 (1)]; (b) such abusewas a significant contributing factor to the defendant's criminal behavior; [and] (c)having regard for the nature and circumstances of the crime and the history, character andcondition of the defendant, that a sentence of imprisonment pursuant to [Penal Law§§ 70.00, 70.02, 70.06 or 70.71 (2) or (3)] would be undulyharsh."
Here, we conclude that a preponderance of the evidence supports both a finding thatdefendant was a victim of domestic violence during her relationship with the victim andwas subjected to "substantial physical, sexual or psychological abuse" and a finding that"such abuse was a significant contributing factor to the defendant's criminal behavior"(Penal Law § 60.12 [1] [a], [b]; see Addimando, 197 AD3d at111-112). We further conclude that sentencing defendant pursuant to the normalsentencing guidelines would be "unduly harsh" in light of the "nature and circumstancesof the crime and the history, character and condition of the defendant"(§ 60.12 [1] [c]). We therefore modify the judgment on the facts and as amatter of discretion in the interest of justice (see CPL 470.15 [5], [6] [b];Addimando, 197 AD3d at 118; see generally People v Nicholas G., 181 AD3d 1273, 1274[4th Dept 2020]) by reducing defendant's sentence to a determinate term of incarcerationof four years to be followed by 2