| People v Fisher |
| 2023 NY Slip Op 05764 [221 AD3d 1195] |
| November 16, 2023 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Brandon P. Fisher, Appellant. |
Theresa M. Suozzi, Saratoga Springs, for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (John B. Latella III of counsel), forrespondent.
Aarons, J. Appeal from an order of the County Court of Saratoga County (Chad W.Brown, J.), entered June 29, 2022, which denied defendant's motion for resentencingpursuant to CPL 440.47, after a hearing.
In 2015, defendant, then 20 years old, attacked her father with a baseball bat as hewas lying in bed, resulting in fractures to his face and skull and the loss of an eye, amongother injuries.[FN1]Upon fleeing the bedroom, defendant encountered and attacked her mother, causingmultiple injuries and fracturing her arm. Defendant was thereafter charged in afour-count indictment with assault in the first degree, two counts of assault in the seconddegree and criminal possession of a weapon in the fourth degree. While in jail, defendantwas charged by a separate indictment with assault in the second degree stemming fromher conduct in kicking another incarcerated individual. Defendant thereafter pleadedguilty to all counts in both indictments in exchange for a promise by County Court(Murphy III, J.) as to sentencing on the first indictment.[FN2] Following a three-day sentencinghearing, and consistent with the terms of the plea, defendant was sentenced to a prisonterm of 10 years on her assault in the first degree conviction, to be followed by five yearsof postrelease supervision, and to lesser concurrent sentences on her remainingconvictions. Defendant challenged the severity of the sentence upon direct appeal, andthis Court affirmed (People vFisher, 181 AD3d 1051, 1052-1053 [3d Dept 2020]). In 2021, defendant filedan application for resentencing pursuant to the Domestic Violence Survivors Justice Act(hereinafter the DVSJA) (see CPL 440.47; Penal Law § 60.12, asamended by L 2019, ch 31, § 1; L 2019, ch 55, § 1, part WW,§ 1). Following a hearing, County Court (Brown, J.) denied defendant'smotion, and this appeal ensued (see CPL 440.47 [3]).
The DVSJA, without diminishing the gravity of an offense, permits courts to imposealternative, less severe sentences in certain cases involving defendants who are victims ofdomestic violence (see CPL 440.47 [1] [a]; [2] [c]; see also Penal Law§ 60.12 [1]). Where a defendant meets certain threshold eligibilityrequirements based upon, among other things, evidence of having been subjected todomestic violence, such defendant may apply for resentencing (see CPL 440.47[1], [2]). If an applicant complies with the requirements of CPL 440.47 (2) (c), a "courtshall conduct a hearing to aid in making its determination of whether the applicantshould be resentenced in accordance with [Penal Law § 60.12]" (CPL440.47 [2] [e]). Pursuant to Penal Law § 60.12 (1), a court may apply analternative sentencing scheme where it determines, following a hearing, that, "(a) at thetime of the instant offense, the defendant was a victim of domestic violence subjected tosubstantial physical, sexual or psychological abuse inflicted by a member of the samefamily or household[,]" "(b) such abuse was a significant contributing factor to the [*2]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 unduly harsh.""Reliable hearsay shall be admissible at such hearings" (CPL 440.47 [2] [e]; seePenal Law § 60.12 [1]).
In support of her application, defendant relied upon her own sworn affidavit, as wellas the presentence report and the psychological evaluation that had been previouslyconducted in preparation for sentencing. Taken together, this evidence corroborateddefendant's allegations that she had been subjected to substantial physical andpsychological abuse by her father. Notwithstanding these troubling circumstances,defendant stated in her sworn affidavit that, although her father remained "cold" andthere was "occasional verbal bullying," her father's abuse had essentially stopped by herearly teenage years. Significantly, in her affidavit, defendant did not allege that abuse hadoccurred at or near the time of her attack upon her parents. Rather, defendant admitted tohaving attempted to "blackmail" her father with evidence of his marital infidelity prior tothe incident and that, when this attempt failed, she "couldn't bury or control the pain andemotions any longer" and "confronted him." Sworn statements to police given bydefendant's sister and a close friend similarly indicate that defendant's violent attack uponher parents was fueled by her increasing anger over her father's extramarital affairs. Therecord further reflects that defendant messaged friends on social media following theattack, explaining that she had confronted her father about his infidelity and "attackedhim in a blind fury rage[,]" and then "turned on [her mother]" when she attempted tointervene.
In view of the foregoing, the record supports County Court's finding that defendantfailed to demonstrate that she was subjected to substantial abuse "at the time of theinstant offense" or that the abuse she had previously suffered was a "significantcontributing factor" to her criminal behavior (Penal Law § 60.12 [1] [a],[b]; see People v Williams,198 AD3d 466, 466-467 [1st Dept 2021], lv denied 37 NY3d 1165 [2022];compare People vAddimando, 197 AD3d 106, 115-118 [2d Dept 2021]). Contrary to defendant'scontention, although nothing in the DVSJA requires a finding that the abuse and theoffense occur contemporaneously, the statutory language requiring that the abuse occur"at the time of the instant offense" would be rendered meaningless unless it created arequirement that a temporal nexus exist between the abuse and the offense (seePeople v Williams, 198 AD3d at 466-467). Moreover, in view of the horrific natureand the circumstances surrounding defendant's conduct, despite her health conditions andhistory of abuse, the sentence of imprisonment, which was within the standard statutorysentencing [*3]range, is not "unduly harsh" (Penal Law§ 60.12 [1] [c]; see People v Fisher, 181 AD3d at 1053).Accordingly, the court did not err in denying defendant's application for resentencingpursuant to CPL 440.47.
Clark, J.P., Reynolds Fitzgerald, Fisher and McShan, JJ., concur. Ordered that theorder is affirmed.
Footnote 1:In correspondencesubmitted to this Court, defense counsel confirmed that defendant uses the pronounsshe/her/hers.
Footnote 2:Defendant entered anAlford plea as to count 3 of the first indictment (see North Carolina vAlford, 400 US 25 [1970]).