| People v Brenda WW. |
| 2023 NY Slip Op 06564 [222 AD3d 1188] |
| December 21, 2023 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Brenda WW., Appellant. |
Veronica Reed, Schenectady, for appellant.
William G. Gabor, District Attorney, Wampsville (J. Sam Rodgers of counsel), forrespondent.
McShan, J. Appeal from an order of the County Court of Madison County (Patrick J.O'Sullivan, J.), entered October 13, 2021, which denied defendant's motion forresentencing pursuant to CPL 440.47, after a hearing.
Defendant was indicted and charged in 2008 with manslaughter in the first degree,assault in the first degree and criminal possession of a weapon in the third degree. Thecharges stemmed from an incident wherein defendant stabbed her live-in paramour in theback with a butcher knife as he was kneeling on the floor. Defendant was convicted ascharged and was sentenced in August 2008, as a second felony offender, to prison termsof 20 years followed by five years of postrelease supervision upon the manslaughter andassault convictions and to a lesser term of imprisonment upon the weapon conviction, allsentences to run concurrently. Following a retrial, defendant again was convicted of thecharged crimes and was sentenced in January 2010 to the same concurrent terms ofimprisonment. Defendant appealed her conviction, and this Court affirmed.
In March 2020, defendant moved for resentencing pursuant to CPL 440.47 seekingto invoke the alternative sentencing provisions of the Domestic Violence SurvivorsJustice Act (hereinafter the 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). Following a hearing, County Court(O'Sullivan, J.) denied defendant's request finding, among other things, that any domesticabuse existing at or around the time of the underlying offense was neither substantial nora significant contributing factor in defendant's conduct on the night in question. Thisappeal by defendant ensued (see CPL 440.47 [3] [a]).
The DVSJA, intended to provide a means for ameliorating harsh sentences imposedupon survivors of domestic violence, "(1) allow[s] judges to sentence survivors toalternative sentences of imprisonment including determinate sentences and, in somecases, community-based alternative-to incarceration program[s] and (2) provid[es]survivors currently in prison the opportunity to apply for resentencing, grantingmuch-deserved relief for incarcerated individuals who pose no threat to public safety"(Assembly Mem in Support, Bill Jacket, L 2019, ch 31 at 6; see People v Burns, 207 AD3d646, 648 [2d Dept 2022]). In seeking to accomplish these goals, the DVSJAprovides an alternative sentencing scheme that the sentencing court may apply if itdetermines that a defendant has established, by a preponderance of the evidence, that "(a)at the time of the instant offense, the defendant was a victim of domestic violencesubjected to substantial physical, sexual or psychological abuse inflicted by a member ofthe same family or household as the defendant as such term is defined in CPL 530.11 (1);(b) such abuse was 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 and [*2]condition of the defendant, that asentence of imprisonment pursuant to Penal Law §§ 70.00, 70.02,70.06 or 70.71 (2) or (3) would be unduly harsh" (People v T.P., 216 AD3d 1469, 1471 [4th Dept 2023][internal quotation marks and brackets omitted]; see People v Burns, 207 AD3dat 648; People vAddimando, 197 AD3d 106, 111-112 [2d Dept 2021]). In accordance with thestatute, domestic violence may take the form of "substantial physical, sexual orpsychological abuse" (Penal Law § 60.12 [1] [a]), and a reviewing court"may consider any fact or circumstances relevant to the imposition of a new sentencewhich are submitted by the [defendant] or the district attorney" (CPL 440.47 [2][e]).
Defendant first assails County Court's determination that the abuse she suffered atthe time of her criminal behavior was not "substantial." In response, the People describethe abuse suffered by defendant as "moderate" and "mundane," and further point to themutually-abusive relationship between defendant and the victim as evidence thatdefendant was not abused within the meaning of the statute. In support of herapplication, defendant included various submissions that paint a picture of the physicalabuse she suffered at the hands of the victim, including references to being burned withcigarettes, pushed down a set of stairs, having her teeth chipped, neck stomped and nosebroken. At trial, defendant testified that, on one occasion, the victim threw a plate at hercausing a laceration to her temple, and hospital records corroborated that testimony.Defendant further testified that in 2005 the victim "beat [her] so bad" that she sustained abroken nose and black eyes. In addition to the foregoing, defendant testified that on morethan one occasion in 2006, she awoke to find a knife stabbed into the mattress next toher. At the resentencing hearing, defendant's granddaughter recounted an instance thatoccurred at some point in either 2006 or 2007 wherein the victim called defendantnames, pulled her hair and threw porcelain figurines at her. Defendant's son-in-law anddaughter also testified that they had witnessed a shoving match between defendant andthe victim in 2004 and that, on one occasion in the summer of 2006, the victim pulleddefendant's hair, threw her to the ground and stomped on her leg, which resulted in afracture. Defendant's daughter testified that she saw evidence of physical injuries todefendant at least once a week and that defendant sustained a broken nose at the hands ofthe victim on at least four occasions, and that account was consistent with herrepresentations to the probation officer when she was interviewed prior to defendant'ssentencing.
Beyond these specific examples, defendant had a lengthy history of exposure toabusive relationships, having witnessed her mother being abused by her father, and hersister dying from injuries that were attributable to domestic violence. Defendant was alsothe victim of abuse in her various relationships [*3]preceding her cohabitation with the victim. Defendant'smother's statement in the presentence report, as recounted by the probation officer, noteddefendant's history of abuse, indicating her belief that defendant had "snapped" aftersuffering for so long. Further, the mother stated that defendant's attempts to extricateherself from the victim's abuse prompted either threats of suicide on his part unlessdefendant returned home or further abusive conduct in the way of seeking defendant ather mother's home, where he would bang on the windows and yell expletives. As told bydefendant's mother, defendant would eventually acquiesce to this unrelenting pressure inorder to spare her mother any embarrassment.
Consistent with the foregoing assertions, a forensic report following an assessmentby Norman J. Lesswing, a clinical psychologist, that occurred prior to defendant's trial,opined that defendant "is a severely traumatized, depressed, and alcoholic woman whoessentially has been exposed to a continuous and unrelenting sequence of domesticallyviolent relationships, throughout her development and adult life." In her account of abuseto Lesswing, defendant noted that she initially had not fought back against the victim'sacts of violence, but eventually became defensive until such point in their relationshipwhen they were engaged in "knock-down, drag-out" altercations two to three times aweek up until the time of the victim's death. Lesswing concluded that defendant'srelationship with the victim "had been psychologically fused into a pattern of alcoholism,verbal and physical abuse, brief efforts by her to escape, and desperate attempts by him toreunite" and that "[t]heir roles of victim and perpetrator were deeply enmeshed, and [thevictim's] death came about as a consequence of [defendant's] singular action, which wasuncharacteristic, [without reflection], impulsive, and spontaneous."
Based on the foregoing, we disagree with County Court's determination thatdefendant's abuse was anything less than "substantial," as defendant's own account of thespecific acts of violence, which is largely corroborated by various witnesses in therecord, and the injuries suffered as well as the psychological abuse that came alongsidesuch violence was sufficient to fall under the ambit of the DVSJA. Although the courtaccurately concluded that the relationship between defendant and the victim wasmutually abusive, that does not foreclose a determination that defendant was a victim ofabuse (see generally People vChancey, 127 AD3d 1409, 1411-1412 [3d Dept 2015], lv denied 25NY3d 1199 [2015]; People vTheresa G., 78 Misc 3d 1139, 1141 [Sup Ct, Kings County 2023]).[FN1] Moreover, such conductis readily explained in Lesswing's report as typical of those persons suffering frombattered person syndrome, particularly in the case of defendant who had a lengthy historyof exposure to domestic violence over the course of her life (see generally 1Melissa L. Breger et al., New York Law of Domestic Violence[*4]§ 2:98 [3d ed 2013]). Accordingly, it is ourview that the record sufficiently established that defendant was routinely subjected tosubstantial physical and psychological abuse in various forms throughout her lengthyrelationship with the victim and that such abuse was ongoing at the time of her criminalbehavior (see People v Addimando, 197 AD3d at 115-117; compare People v Williams,198 AD3d 466, 467 [1st Dept 2021], lv denied 37 NY3d 1165 [2022]).
We also find that the record establishes that such abuse was a "significantcontributing factor" in defendant's criminal behavior (Penal Law § 60.12[1] [b]). At the outset, the People's contention that defendant's alcohol abuse and her ownviolent conduct toward the victim establish that her conduct could not be attributed to herhistory of abuse is misplaced, as such factors do not negate the aforementioned history ofabuse suffered by defendant and whether it played a significant role in her behavior(see People v Theresa G., 78 Misc 3d at 1141). Moreover, the fact that defendantwas not, as noted by County Court, in "imminent danger" at the time of her criminalbehavior is not dispositive to the inquiry pursuant to the DVSJA. Rather, thatconsideration speaks more specifically to defendant's entitlement to a justificationcharge, which is a distinct legal determination from the one at issue—i.e., whetherthe domestic violence suffered by defendant was a significant factor in her criminalconduct. Indeed, the DVSJA is clear that "[a] court may determine that such abuseconstitutes a significant contributing factor . . . regardless of whether thedefendant raised a [justification or duress] defense" at trial (Penal Law§ 60.12 [1]; see People v T.P., 216 AD3d at 1471; People vBurns, 207 AD3d at 648; see also NY Assembly Debate on 2019 NYAssembly Bill A3974, Mar. 4, 2019 [Assembly tr] at 12-13). In other words, entitlementto the compassionate relief afforded by the DVSJA is not predicated on whether adefendant's criminal conduct was justified; rather, the reviewing court must ask whethersuch conduct is significantly attributable to the ongoing abuse that the defendant hassuffered.
Under that framework, we note that defendant's trial testimony reflected that, on theday of the incident, the victim came home from work and began "slamming beers down,"calling her names, slapping her, pulling her hair and telling her that he wished that shewere dead. After defendant attempted to hide the remaining beer in their home, thevictim threw medicated foot powder in defendant's face. Under the particularcircumstances of this case, the lengthy history of abuse suffered by defendant cannot bedivorced from the victim's acts immediately preceding defendant's criminal behavior andmust be considered cumulatively (see People v Smith, 69 Misc 3d 1030, 1038 [Erie CountyCt 2020]). Moreover, although Lesswing's report was inadmissible at defendant's trialowing to her failure to establish entitlement to a justification [*5]defense, it is our view that the conclusions in the reportconcerning the connection between defendant's conduct and the criminal behavior areproperly considered as part of the DVSJA inquiry. Altogether, we find that suchevidence, considered alongside the various witness accounts, was sufficient to establishthe required nexus between the abuse suffered by defendant and her criminalbehavior.
As to the final prong of the analysis, the language of the statute is permissive interms of whether any individual circumstances warrant the compassionate exercise of asentencing reduction, and the decision as to whether to grant relief is discretionary ratherthan mandatory (see People v Addimando, 197 AD3d at 114). In this respect, thefinal prong in the DVSJA requires that the reviewing court determine whether the"nature and circumstances of the crime and the history, character and condition of thedefendant" render the sentence imposed "unduly harsh" (Penal Law § 60.12[1] [c]).[FN2]
We initially note that the legislative materials underpinning passage of the DVSJAreflect that consideration in its enactment was predicated in part on the understandingthat the alternative sentencing structure provided for in the statute "is particularlyappropriate [for women survivors of domestic violence,] as they most often have no priorcriminal records, no history of violence and extremely low recidivism rates" (AssemblyMem in Support, Bill Jacket, L 2019, ch 31 at 7). However, we note that the DVSJAdoes not exclude all individuals with felony convictions, such as defendant, as itspecifically identifies, in addition to those convicted of certain sex crimes, only thosedefendants who have been convicted as persistent felony offenders or second violentfelony offenders as those precluded from seeking relief (see Penal Law§ 60.12 [1]). In this respect, while we are mindful that defendant has anextensive criminal history prior to the criminal behavior under review, a close inspectionof that history reflects that the majority of her prior convictions were attributable to herlongstanding struggle with substance abuse, which is not uncommon for those personssubjected to substantial domestic violence (see generally Jane C. Murphy &Margaret J. Potthast, Domestic Violence, Substance Abuse, and Child Welfare: TheLegal System's Response, 3 J Health Care L & Pol'y 88, 94 [1999]). As to herpast conviction for filing a false report of domestic violence, we would note that,although defendant falsely reported being raped by her ex-husband, the ex-husband hadapparently acknowledged that there was "mutual physical contact" between the two. Thisis again consistent with the accounts that defendant was subjected to violence from herformer paramours on various occasions over the course of her life. We thereforeconclude that defendant's criminal history is not an impediment to granting herrelief.
Further considerations in this case militate in favor of the compassionate [*6]relief afforded by the DVSJA. The presentence report,sentencing transcript and Lesswing's report all reflect that defendant was genuinelyremorseful for her actions.[FN3] Moreover, defendant has no indicateddiscipline during her lengthy period of incarceration and, although the People focus onher failure to participate in sufficient programs or pursue furtherance of her education, itis our view that her involvement in domestic violence programming during her earlyyears of incarceration is a factor that inures in her favor (cf. People v S.M., 72 Misc 3d809, 815-816 [Erie County Ct 2021]). Altogether, we find that defendant establishedby a preponderance of the evidence that the facts and circumstances of her case warrantan alternative sentence, and we modify the judgment in accordance with Penal Law§ 60.12 (8) (a) and (c).[FN4] In so concluding, we note that ourdetermination is not intended to diminish the severity of defendant's criminal conduct orsuggest that her conduct was justified (see People v Burns, 207 AD3d at 648;People v Addimando, 197 AD3d at 117-118). To this point, although ourdissenting colleagues focus on whether defendant credibly recounted her actions at trialand at sentencing, which are now more than a decade old, that issue and the ensuingrepercussions stemming from the lack of any justification for her conduct areencompassed in the lengthy sentence she received, which has largely been served as ofthis point. The fact that defendant was not entitled to a justification defense does notdisqualify her from the compassionate relief afforded by the DVSJA. Defendant is not aperfect victim in any respect, and her own violent conduct certainly makes this inquiry aclose call. However, the record before us establishes by a preponderance of the evidencethat defendant has been repeatedly victimized by various individuals over the course ofher life, which, as we have already discussed, explains much of her conduct. Altogether,it is our view that the totality of circumstances presented specifically by this casewarrants relief pursuant to the DVSJA and its goal of providing sentencing alternativesfor victims of domestic violence (see People v T.P., 216 AD3d at 1469;People v Burns, 207 AD3d at 649).
Aarons and Mackey, JJ., concur.
Pritzker, J. (dissenting). Although we do agree with the majority that the evidencepreponderates in favor of defendant that (1) at the time of the offense, she was adomestic violence victim subjected to "substantial physical, sexual or psychologicalabuse" by her live-in paramour (hereinafter the victim) (Penal Law § 60.12[1]), and (2) this abuse was a "significant contributing factor" to her criminal behavior inthis incident (Penal Law § 60.12 [1]), it is our opinion that the nature andcircumstances of this crime and the history, character and condition of defendant do notrender defendant's original sentence unduly harsh. Specifically, the history of mutualviolence between the parties[*7], the volume of alcoholdefendant consumed the night of the incident, defendant's ever-changing story of theevents of that night and her failure to take responsibility and accept that her actionscaused the victim's death militate against the compassionate relief afforded by theDomestic Violence Survivors Justice Act (hereinafter the DVSJA) (see CPL440.47; Penal Law § 60.12, as amended by L 2019, ch 31, § 1;L 2019, ch 55, § 1, part WW, § 1). Accordingly, werespectfully dissent.
At the outset, we must be clear that it is not our position that an individual who wasin a mutually-violent relationship wherein drugs and alcohol were abused would never beentitled to be sentenced pursuant to the DVSJA. Nor is it our opinion that a defendantwhose version of events has changed during the course of the criminal prosecution is notentitled to compassionate relief. Similarly, we do not believe that a domestic violencevictim who intends to cause serious physical injury to his or her paramour is neverentitled to compassionate relief. To the contrary, domestic violence is not a "one size fitsall" situation; thus, sweeping characterizations or bright line rules as to whatcircumstances may or may not warrant a lenient sentence pursuant to the DVSJA wouldbe futile. Rather, it is our opinion that this sui generis inquiry requires that the totality ofthe circumstances of each case must be thoroughly examined prior to deciding whether togrant a defendant the compassionate relief afforded by the DVSJA.
To that end, the record on appeal does not contain the entirety of the testimony andexhibits from defendant's retrial. Rather, it only contains defendant's testimony at theretrial, as well as a few pages of her grand jury testimony. It also contains the forensicpsychological evaluation by Norman J. Lesswing, a licensed clinical psychologist whoperformed an evaluation of defendant five months after the incident.[FN1] These submissions paintthe picture that the victim's death occurred when, during a domestic violence incident,defendant, in an attempt to "scare" the victim, "poked" him in the back with a knife whilehe was bent over a hamper looking for beer defendant had hidden. According todefendant, the victim "reared up," which drove the knife into his back. This injury led,only a short time later, to the victim's death. On those facts alone, it would appear thatdefendant is a candidate for the compassionate relief offered by the DVSJA. However,the submissions from the People that are contained in the record make clear thatdefendant's version of events does not paint the whole picture.
Defendant's testimony at the retrial reveals that, on the day of the incident, she hadconsumed between 8 and 10 beers in the six or so hours prior to the incident.Specifically, she testified that at least the last three beers that she consumed in the hoursimmediately preceding the incident were "Ice House" beers. Defendant explained thatthose particular beers had a[*8]"higher concentration ofalcohol" than other beers. Nevertheless, because of her self-proclaimed "high tolerance,"defendant testified that she did not feel intoxicated. Indeed, defendant's own testimony,as well as her report to Lesswing, demonstrated that she had a history of consumingexcessive amounts of alcohol, "essentially [drinking] on a continuous basis during the. . . two or three years [prior to the incident]." Defendant also admitted tohaving used drugs, including crack cocaine, and that some of the arguments between herand the victim were fueled by drugs and alcohol.
In that vein, the record demonstrates that instances of violence and alcohol and druguse were commonplace in defendant and the victim's relationship. These domesticviolence incidents were not one-sided. In fact, defendant admitted during trial that therewere times when she started the arguments with the victim and there were times whenshe was the first to become physical. Additionally, in a sworn affidavit, the girlfriend ofthe owner of the home in which defendant and the victim's apartment was locatedaverred that defendant and the victim constantly fought and that defendant was "always. . . yelling and beating [the victim] up." In another affidavit submitted bythe People, the victim's boss swore that during the eight months prior to his death thevictim came to work "with all kinds of injuries." Indeed, one time, the victim had severeburns on his forearms and told his boss that defendant threw boiling water at him. Acoworker of the victim also signed an affidavit wherein he stated that the victim wouldcome to work with an injury on a weekly basis and said that defendant was "mean." Thiscoworker detailed the same instance wherein, the summer before his death, the victimclaimed burns on his arms were due to defendant throwing boiling water at him. Thecoworker also discussed a time that the victim came to work with a cut on the back ofone of his hands, which the victim attributed to defendant having stabbed him. Anothertime, in the months before the victim died, the coworker saw him walking down the roadin the snow. When the coworker stopped to inquire, the victim stated that defendant hadbeaten him with a log. The coworker explained that the victim had a fat lip and a cutabove his eye. Thus, although we do not, in any way, seek to diminish the seriousness ofthe domestic violence defendant endured, for the purposes of determining whether thenature and history of this case warrant the compassionate relief afforded by the DVSJA,it is important to consider that defendant was not the only victim in this tumultuousrelationship.[FN2]
As to the events of the night the victim died, there is no question that defendant is theonly person who was there that can explain what occurred. However, as the sole witness,it is troubling that defendant's credibility is, at best, questionable. To begin, defendanthas a history of perjuring herself, as is demonstrated by [*9]her prior conviction for the attempt to offer a falsestatement to police. At trial, when defendant testified about this prior conviction, it wasestablished that in the course of filing charges against her ex-husband, defendant signeda form wherein she claimed that her ex-husband had tried to "rape [her], and beat [her]up." Defendant admitted at trial that these allegations were "[a]bsolutely untrue" and thatis why she pleaded guilty. Unfortunately, in the case at bar, the victim is unable to offerhis side of the story.
Furthermore, defendant told an ever-changing story of the incident itself. Indefendant's initial 911 call, she reported that the victim had walked into something andcut himself. In a written supporting deposition, one of the first responders averred that itwas clear that the victim had been stabbed and was seriously injured. The first respondercontinued to ask defendant about an eight-inch butcher's knife with blood on the bladethat was laying on the bed. Defendant stated she had been in the kitchen using the knifewhen the victim called out for help and that the blood on the knife came from defendant'shands. While the first responder was trying to save the victim, defendant exclaimed thatshe did not stab him. Later that night, in a written statement made to law enforcement,defendant swore that she was in her bedroom watching television when the victimstaggered into the room with blood on his upper back near his right shoulder. She statedthat defendant said he hit the corner of a counter in the kitchen or a knife, and defendantrecalled leaving a knife pointing out on the counter while she was preparing dinner. Atthe retrial, defendant admitted that this statement was false. Indeed, a few hours aftergiving that statement, she gave another statement to law enforcement wherein sheclaimed that, after the victim poured medicated foot powder on her, he pushed her andcalled her names. Defendant was upset and then went into the kitchen and grabbed abutcher's knife. Defendant claimed that she did not know why she grabbed it. She thenwent into her bedroom where the victim was bent over defendant's dresser looking forbeer. Defendant "took the knife and . . . stuck it in [the victim's] back." Shestated that she did not realize the knife was going in, that it was "more of a jab" and thatshe thought it would "just scare him."
Eventually, defendant settled on the version of events that she gave to Lesswing,testified to at the retrial and provided to probation during the presentenceinvestigation,[FN3]but certainly her differing versions of events call into question the veracity of her trialtestimony. Significantly, the jury, in convicting defendant of manslaughter in the firstdegree, did not find defendant's version of events to be credible given that a convictionof this crime requires a determination by the jury that defendant, beyond a reasonabledoubt, acted with "intent to cause serious physical injury to [the victim[*10]]" (Penal Law § 125.20 [1]). This isimportant to recognize because now, in this Court's review, we do not have the benefit ofmaking credibility determinations, but the jury did. Moreover, here, in decidingdefendant's resentencing application, the matter was not before the trial judge, as therecord reflects that he had since retired. Thus, given that defendant opted not to testify atthe resentencing hearing, the resentencing court also did not have the benefit of assessingdefendant's credibility or, for that matter, defendant's remorse.
On that note, the majority opines that the presentence report, sentencing transcriptand Lesswing's report all reflect that defendant was genuinely remorseful for her actions.Given the comments made at sentencing by County Court (McDermott, J.), who presidedover both defendant's initial trial and the retrial at which defendant elected to testify, it isdifficult to agree with the majority's assessment of defendant's sincerity. At sentencing,after defendant expressed that she had no intent to harm the victim and that she was sorrythat he was no longer there, the court said, "[l]et me start by saying that that was probablythe most insincere statement I have ever heard from a defendant at the time ofsentencing. And I utterly and unequivocally reject your statement that you never intendedto harm [the victim] in any[ ]way. That is absolute nonsense." This statement issignificant given that this Court, in our review, does not have the benefit of hearingdefendant testify firsthand. County Court continued on to discuss the evidence that wasset forth regarding the stab wound, concluding that the evidence demonstrated that it"was more than a poke. [It] was a vicious, cruel, barbaric stab."[FN4] Again, this Court does not have thebenefit of the entirety of the evidence set forth at trial, but these comments of the judge,combined with what limited information regarding the victim's wound is contained in therecord on appeal, call into question defendant's insight into her role in the victim's death,and ultimately her remorse, as it does not appear that she has fully accepted responsibilityfor her actions.
In conclusion, it is our opinion that "the nature and circumstances of the crime andthe history, character and condition of [this] defendant" do not render her originalsentence "unduly harsh" (Penal Law § 60.12 [1]; see generally People v Fisher,221 AD3d 1195, 1197-1198 [3d Dept 2023]).[FN5] Accordingly, we would affirm thedenial by County Court (O'Sullivan, J.) of defendant's application for resentencingpursuant to CPL 440.47.
Lynch, J.P., concurs.
Ordered that the order is modified, on the law, by reducing the sentence imposed onthe conviction of manslaughter in the first degree to a prison term of eight years to befollowed by five years of postrelease supervision, the sentence imposed for assault in thefirst degree to a prison term of eight years to be followed by five years [*11]of postrelease supervision, and the sentence imposed forcriminal possession of a weapon in the third degree to a prison term of two years, whichsentences shall run concurrently; matter remitted to the County Court of Madison Countyfor further proceedings pursuant to CPL 470.45; and, as so modified, affirmed.
Footnote 1:As to the People'ssuggestion that defendant's physical injuries are attributable to her substance abuse issuesrather than any abuse on the part of the victim, we find that assertion is predicated onnothing more than speculation.
Footnote 2:We are mindful that ourprior review of defendant's sentence on direct appeal concluded that it was not harsh andexcessive in that it did not present extraordinary circumstances or constitute an abuse ofdiscretion; however, we must also note that our review of sentences pursuant to ourinterest of justice jurisdiction has evolved since that time (see People v Baldwin, 39NY3d 1097, 1098 [2023, Wilson, J., concurring]). To this end, it is our view that thelanguage utilized in the statutory scheme resulting from the DVSJA entails that areviewing court—whether that be the court that imposed the original sentence oran appellate court—engage in a review of the sentence imposed without deferenceto the sentence or resentence under review (see CPL 440.47 [3]; Penal Law§ 60.12 [1]; compare CPL 470.15 [6] [b]). Accordingly, we findthat our prior determination does not foreclose defendant's eligibility for relief pursuantto the since-enacted DVSJA and its goal of offering compassionate consideration todomestic violence survivors who can establish entitlement to such relief by apreponderance of the evidence (see generally NY Senate Debate on 2019 NYSenate Bill S1077, Mar. 12, 2019 [Senate tr] at 1569-1571).
Footnote 3:As pointed out by thedissent, County Court (McDermott, J.) found defendant's statement at her 2010sentencing hearing, which occurred over 13 years ago and focused on her lack of intentto harm the victim and her history of abuse, as insincere. However, that statement focusesmore on defendant's intent, which was squarely at issue during trial and is alreadyfactored into her conviction, rather than her remorse. Moreover, although the court notedthat it believed defendant could potentially qualify as a battered person, it made furtherstatements suggesting that defendant's proper recourse was to move out or to eject thevictim from the home. In our view, these statements demonstrate a fundamentalmisunderstanding of the struggles of domestic violence victims and their ability torealistically divorce themselves from their abusers. All told, in our view the record fairlyreflects that the various individuals who spoke to defendant in connection with this casecame away with the belief that she presented as remorseful for her actions.
Footnote 4:Defendant's time spentincarcerated in excess of the reduced sentences resulting from our decision should becredited toward her term of postrelease supervision (see Penal Law§ 70.45 [5] [d]). On this point, we are mindful of the concerns of ourdissenting colleagues concerning the lack of postrelease supervision that would resultfrom our determination. However, that result is entirely based upon defendant havingbeen incarcerated for more than 15 years at this point, nearly seven years more than themaximum allowable determinate resentence for her class B felony convictions under theDVSJA (see Penal Law § 60.12 [8] [a], [c]). Owing to her secondfelony offender status, the minimum sentence allowed without application of the DVSJAalready exceeds the maximum allowable resentence provided by the DVSJA (seePenal Law §§ 60.12 [8] [a], [c]; 70.06 [3] [b]), thus ensuring that herperiod of postrelease supervision would be diminished by any sentencing relief shereceived under the DVSJA. Accordingly, it is our view that giving consideration to thelack of postrelease supervision predicated on the length of time she has already beenincarcerated would be unjust under these circumstances and ignores defendant'sunremarkable prison record.
Footnote 1:Neither Lesswing'sreport nor his testimony were admitted at the retrial.
Footnote 2:Given this history, aswell as defendant's well-documented history of alcohol and drug abuse and relatedcrimes, it is concerning that granting defendant's application would have the effect of herimmediate release from incarceration without any supervision, including postreleasesupervision (see Penal Law § 70.45 [5] [d]).
Footnote 3:There are references inthe record that this was the same version of events defendant testified to at grand jury,but that portion of the grand jury trial transcript is not contained in the record on appeal.
Footnote 4:The record reflects thatthe medical examiner who performed the autopsy of the victim stated that the "minimumdepth of [the] wound was 3.4 inches with the maximum depth unable to be accuratelyascertained." The maximum depth could not be determined because the victim's lung wasremoved in an attempt to save his life. Additionally, at trial, one of the doctors whotreated the victim the night of the incident testified that the depth of the injury wasinconsistent with someone poking the victim with a knife and then letting go.
Footnote 5:We agree with themajority that this Court's determination on direct appeal that the sentence was not harshand excessive does not preclude us from now finding, pursuant to the DVSJA, that it is.While it is abundantly clear from the legislative history of this statute that the sentencing,or resentencing, court is afforded discretion when reaching its determination (seegenerally NY Senate Debate on 2019 NY Senate Bill S1077, Mar. 12, 2019 [Senatetr] at 1569-1571), given our broad interest of justice jurisdiction when reviewingsentences (see CPL 470.15 [6] [b]), this Court need not find that the sentencingor resentencing court abused its discretion to warrant the reduction of a sentence basedupon the exercise of our discretion in the interest of justice (see generally People vCruickshank, 105 AD2d 325, 335 [3d Dept 1985], affd 67 NY2d 625[1986]).