County Court, Erie County, September 2, 2020

Kate Mogulescu, Brooklyn Law School Legal Services Corp. (Juli J. Kempner of counsel), for defendant.

John J. Flynn, District Attorney (Michael J. Hillery of counsel), for plaintiff.

Defendant moves pursuant to Criminal Procedure Law § 440.47 for an order vacating the sentence originally imposed in the matter and resentencing defendant pursuant to Penal Law § 60.12 on the grounds that: (1) at the time of the commission of the offense she was a victim of domestic violence 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 is unduly harsh. In opposition to defendant's motion, the People contend that defendant's belated claims of sexual abuse received little record corroboration, but even if the corroboration were considered adequate, defendant's motion fails to establish that the abuse she claims to have suffered was a significant contributing factor to her criminal behavior.

Defendant was indicted on three counts of murder in the second degree (Penal Law §§ 125.25 [1], [2], [3]; 20.00) and one count of robbery in the first degree (Penal Law §§ 160.15 [1]; 20.00) arising out of defendant's participation in the fatal strangulation and robbery of 71-year-old Robert Robinson. Defendant was convicted after jury trial of two counts of murder in the second degree (Penal Law §§ 125.25 [1], [3]; 20.00) and robbery in the first degree (Penal Law §§ 160.15 [1]; 20.00). On December 1, 1999, defendant was sentenced to concurrent indeterminate terms of 25 years to life on the murder counts and to a determinate term of [*2]imprisonment of 10 years on the robbery count. Defendant was resentenced pursuant to Correction Law § 601 (d) on November 7, 2011, at which time a five-year period of postrelease supervision was imposed on the robbery conviction.

Defendant's conviction was unanimously affirmed by the Appellate Division, Fourth Department (People v Smith, 299 AD2d 941 [4th Dept 2002], affd 1 NY3d 610 [2004]). Defendant's{**69 Misc 3d at 1032} subsequent CPL 440.10 motion and writ of error coram nobis also were denied, as was defendant's application for federal habeas corpus relief (Smith v Perez, 722 F Supp 2d 356 [WD NY 2010]).

Defendant was 16 years old at the time sentence originally was imposed. She is now 37 years old and has served nearly 21 years on her sentence.

On May 14, 2019, the Domestic Violence Survivors Justice Act (DVSJA) (L 2019, ch 31; L 2019, ch 55, § 1, part WW, § 1) was signed into law, amending Penal Law § 60.12 by authorizing the imposition of alternative sentences for survivors of domestic violence, and enacting Criminal Procedure Law § 440.47, providing a procedure by which these same survivors of domestic violence who are currently serving their sentences may apply to be resentenced. The legislation was born of the realization that "[d]omestic violence and women's incarceration are inextricably linked" and that

"[a]ll too often, when a survivor defends herself and her children, our criminal justice system responds with harsh punishment instead of with compassion and assistance. Much of this punishment is a result of our state's current sentencing structure which does not allow judges discretion to fully consider the impact of domestic violence when determining sentence lengths. This leads to long, unfair prison sentences for many survivors." (Sponsor's Mem in Support of 2017-2018 NY Assembly Bill A3110.)

The DVSJA was intended to give the courts discretion to ameliorate the harsh effects of lengthy, mandatory sentences for victims of domestic violence where that violence was a significant contributing factor to their criminal behavior. The legislation neither exonerates a defendant nor excuses her criminal conduct. It simply permits a court to impose, or in cases where a defendant already has been sentenced, to reduce a sentence in consideration of that defendant's status as a domestic violence victim.

Penal Law § 60.12 states in pertinent part:

"the court, upon a determination following a hearing that (a) at the time of the instant offense, the defendant was a victim of domestic violence subjected to substantial physical, sexual or psychological{**69 Misc 3d at 1033} abuse inflicted by a member of the same family or household as the defendant as such term is defined in subdivision one of section 530.11 of the criminal procedure law; (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 a sentence of imprisonment pursuant to section 70.00, 70.02, 70.06 or subdivision two or three of section 70.71 [of the Penal Law] would be unduly harsh may instead impose a sentence in accordance with this section.

"A court may determine that such abuse constitutes a significant contributing factor pursuant to [the provisions herein] regardless of whether the defendant raised a defense pursuant to article thirty-five, article forty, or subdivision one of section 125.25 [of the [*3]Penal Law].

"At the hearing to determine whether the defendant should be sentenced pursuant to this section, 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. Reliable hearsay shall be admissible at such hearings."^[FN1] (Penal Law § 60.12 [1].)

Criminal Procedure Law § 440.47 provides that a defendant currently confined in an institution operated by the Department of Corrections and Community Supervision (DOCCS), and serving a sentence with a minimum determinate term of eight years or more for an offense committed before August 12, 2019, who would have been eligible for an alternative sentence under revised Penal Law § 60.12, may apply for resentencing to the judge who imposed the original sentence. Defendant currently is confined at the Albion Correctional Facility, an institution{**69 Misc 3d at 1034} operated by DOCCS, serving a prison sentence of 25 years to life, for eligible offenses committed on December 15, 1998, and thus is eligible to apply for resentencing (see CPL 440.47 [1] [a]).

On the night in question, defendant, accompanied by codefendant Theoplish Mitchell and Mitchell's four-month-old child, took the bus to Robinson's house because the friends who had been at home with them had left, and they were bored.^[FN2] After watching TV for about half an hour, Robinson began demanding sex from defendant, and told her to go into his bedroom in the back of the house so they could "do it." When defendant refused to have sex with him, Robinson reminded defendant of all the things he had bought her. After defendant again told him she did not want to have sex, Robinson became enraged, demanding that defendant repay him for everything he had bought. He slapped defendant across the face and directed her to go to his room. Defendant resisted and tried to get to the front of the house but Robinson "kept pushing" her back toward the bedroom, threatening to kill her with the gun he kept in the house and previously had shown her. A physical fight ensued in the hallway as Robinson and defendant fell to the floor, struggling. Fearing Robinson was going to get his gun, defendant reached for a telephone cord and pulled it around his neck.^[FN3] Mitchell became involved in the melee, placing a [*4]pillow over Robinson's head. When defendant let go of the cord, Mitchell grabbed it and continued to pull it around Robinson's neck. Defendant and Mitchell left the scene in Robinson's car once the struggle was over. Later that same night, Robinson's daughter found him dead and items strewn about the house.

The evidence adduced at the hearing conducted in this matter pursuant to CPL 440.47 (2) (e) establishes that defendant{**69 Misc 3d at 1035} meets the eligibility requirements for resentencing and that resentencing pursuant to Penal Law § 60.12 is warranted.^[FN4]

Defendant is a victim of domestic violence subjected to substantial physical, sexual or psychological abuse.

The record establishes that beginning when defendant was 15 years old, she was subjected to abuse, coercion and exploitation at the hands of the decedent, Robert Robinson, a 71-year-old man with whom she had an eight-month sexual relationship. The trial record is replete with evidence of Robinson's abuse and exploitation of defendant, who testified that shortly after they had met, Robinson began taking her shopping and out to eat, remarking that defendant was "tender" because she was so young. They first engaged in sexual conduct while in Robinson's car while parked outside an abandoned train station; he offered defendant $50 to let him touch her. He touched her, masturbated and then gave defendant the money. As the months went on, Robinson continued to request sex acts from defendant in exchange for money; he gave her $100 to perform oral sex on him and asked her to "strut [her] stuff" and strip for him. Robinson also asked defendant to engage in sex with other adult males with whom he was friends, and asked defendant to bring other young girls to him for sex and to perform "sex shows." Robinson bought defendant food, school clothes, shoes, boots, marijuana and alcohol, and encouraged her to drink before having sex.^[FN5] Robinson promised to give defendant a car if she obtained her driver's license, and to buy her a house if she "could have his baby." Robinson also coerced defendant by threatening to disclose the nature of their relationship^[FN6] to defendant's [*5]father, who did not approve of Robinson spending time with defendant and previously had warned Robinson not to see her.{**69 Misc 3d at 1036}

Eight days after the crime, defendant, a high school freshman, was interviewed by a homicide detective at Buffalo Police headquarters. She described how she had met Robinson at a gas station months earlier when she and Mitchell were having car trouble; how Robinson had helped them start their car, given her his phone number and encouraged her to call; and how she had called him shortly thereafter, when she was "having trouble" with her father. She recounted how they began calling each other nearly every day, and when the weather started getting colder Robinson bought her a winter coat and boots. He also bought her a gold chain with an eagle on it and gave her the watch off his wrist when he realized she did not have one. The first time defendant went to Robinson's house was after she had called him, told him she "didn't have anything to eat and asked him if he would give [her] some food."

Approximately two hours later, while still at police headquarters, defendant was reinterviewed by homicide detectives and provided a second sworn statement in which she admitted to being at Robinson's house and participating in the altercation that led to his death.

Defendant's allegations of abuse are not without record support and corroboration. In affirming defendant's conviction, the Appellate Division, Fourth Department noted:

"The victim was a 71-year-old man with whom defendant had an eight-month relationship that began when she was 15. The evidence presented by the People included defendant's statement that the victim gave defendant money and gifts in return for sexual favors, and defendant gave similar testimony at trial." (People v Smith, 299 AD2d 941, 941 [4th Dept 2002].)

The federal district court also acknowledged defendant's sexual relationship with the victim, observing that they "had been involved [in] an eight-month sexual relationship that began when she was 15 years-old" (Smith v Perez, 722 F Supp 2d 356, 362 [WD NY 2010]). The trial testimony of the People's witnesses Norma Williams and Matricia Gaskin provided corroborative proof of the sexual relationship. Williams, who had been incarcerated with defendant while she was awaiting trial, testified that defendant referred to Robinson as a "guy she used to {**69 Misc 3d at 1037}date." Gaskin, a friend of defendant's who also had been asked out by Robinson, testified that she knew defendant had been having sex with him.

Finally, the People themselves have not contested, either at trial or on the instant motion, that a sexual relationship existed.^[FN7]

Defendant's abuse was a significant contributing factor to her criminal behavior.

In order to obtain relief under the DVSJA, a defendant need not establish that the abuse [*6]she suffered was the exclusive, or even the overriding factor to her criminal conduct. That it was a significant contributing factor will suffice. It is therefore entirely possible for a defendant to be motivated by any number of factors, including, as the People contend here, a desire to rob the victim, but to be entitled to the relief afforded by CPL 440.47 nonetheless. Neither is it required that a defendant be in the throes of an attack or that one be imminent. Instead, a court must evaluate a defendant's conduct in light of the cumulative effect of her abuse. A plain reading of the statute and consideration of its legislative history permits no other interpretation.

In support of her contention that her abuse was a significant contributing factor to her criminal conduct, defendant cites numerous reports, including those by the United States Department of Justice, the Centers for Disease Control and the United States Department of Health and Human Services, as well as various law review and journal articles that detail the ravaging effects of domestic violence on its victims and the effects of that trauma on victims' thought processes and behaviors.^[FN8] In the intervening decades since defendant's conviction, tremendous progress has been made with respect to our collective{**69 Misc 3d at 1038} understanding of the impact domestic violence has on its victims and the way in which we view victims' conduct in the context of a criminal prosecution. What we know now, but did not in 1999, is how profoundly the trauma of sexual abuse and exploitation affects a victim's behavior and choices, and how that trauma informs us and provides us with a new lens through which to view and assess a defendant's criminal conduct.

A court's evaluation with regard to whether the abuse a defendant suffered constitutes a significant contributing factor to her criminal behavior is not transactional. It is cumulative, requiring the court to consider the cumulative effect of the abuse together with the events immediately surrounding the crime, paying particular attention to the circumstances under which defendant was living and adopting a "full picture" approach in its review (see NY Senate Debate on Assembly Bill A3974, Mar. 12, 2019 at 1569-1572). The "full picture" here is one of a 16-year-old female who had been raped, abused and coerced by a man 55 years her senior, who had exploited and coerced her through escalating offers of money and gifts for sex and by threatening to expose the relationship to her father.

The repeated abuse defendant endured cannot be compartmentalized or separated from her actions on the night of the crime. They are inextricably interlinked. It is indisputable that had it not been for the illicit and abusive relationship Robinson cultivated, defendant would not have gone to his home and reacted the way she did. It is for this reason, as defendant notes in her papers, that it is of no consequence what exactly took place that night—a robbery gone awry. Robinson's refusal to give defendant the money she needed to hire a lawyer, or defendant's refusal to engage in sex—defendant would not have gone there and would not have reacted to the conflict in the manner she did were it not for the months of abuse she had endured. Research has shown that domestic violence exacts a heavy psychological toll on its victims, impacting their [*7]states of mind, making them "hypervigilent to cues of impending danger" that would go unrecognized by someone who had not suffered abuse, increasing their perception of danger and causing them to act impulsively (see Lenore E.A. Walker, Battered Women Syndrome and Self-Defense, 6 Notre Dame J L Ethics & Pub Pol'y 321, 324 [1992]).

{**69 Misc 3d at 1039}Whatever the immediate cause of the conflict that resulted in Robinson's death, defendant's repeated abuse was a significant contributing factor to her behavior, warranting resentencing for her crime.

Having regard for the nature and circumstances of the crime and the history, character and condition of the defendant, the sentence originally imposed is unduly harsh and excessive.

The fatal strangulation of Robert Robinson was a brutal crime—a crime for which defendant has been held accountable, and rightfully so. Yet, because of the circumstances present here, it is not a crime for which defendant should remain incarcerated for the rest of her natural life. Defendant's age at the time of the offense,^[FN9] the sexual abuse and exploitation she suffered, and her exemplary record while incarcerated compel her resentencing to a term that more effectively, and more justly, considers her circumstances and status as a victim of violence and abuse.

Defendant's achievements while incarcerated are nothing short of impressive and demonstrate to this court substantial personal growth and strong evidence of rehabilitation. Defendant has earned both her Associate's and Bachelor's degrees, achieving dean's list honors; successfully completed anger management and other counseling programs; volunteered in the Alternatives to Violence Project at the Bedford Hills Correctional Facility and was selected for and successfully completed an advanced course in conflict resolution. She has been trained as a sighted guide for the visually impaired; has worked as a nursery attendant and porter; and completed a training program for HIV/AIDS Peer Educators and HIV Test Counselors. She has made the best of her circumstances and the most of her opportunities.

Defendant also enjoys the support of her family and members of the community, many of whom wrote letters of support with respect to her 2011 clemency application, and have firsthand{**69 Misc 3d at 1040} knowledge of defendant's history, character and maturation while incarcerated. Defendant's plans, if she is released, are to use her experience, training and education to assist youth who are vulnerable to exploitation. Defendant certainly possesses the knowledge and personal experience to do so.

In light of the foregoing, it is this court's firm opinion that the sentence originally imposed is unduly harsh.

The DVSJA was never intended to hold a defendant blameless for her actions or excuse her criminal conduct. It instead both recognizes the severity of an offense while also affording some measure of mercy for the offender. Patrice Smith stands convicted of robbery and murder. Nothing in this decision changes that. What is changed, however, is the court's understanding of all the circumstances that impacted the decision defendant made on the night of the murder. A court must never be so rigid as to be unwilling to revisit a decision. This is especially so where, as here, new information is brought to light and a new perspective is in order.

What we have learned in the two decades since defendant's sentencing is that victims of domestic violence should be viewed by our criminal justice system in a manner that recognizes not only their status as offenders but also their status as survivors.

The serious nature of the crime and the pain caused the Robinson family are not lost on the court. Our system of justice requires that someone convicted of such a crime be held accountable and punished for her actions. But our system also allows for mercy—mercy where defendant herself is a victim, and where her victimization fueled the crime for which she was convicted.

Accordingly, for the foregoing reasons, and in consideration of the record and evidence before this court, it is hereby ordered that defendant should be resentenced in accordance with Penal Law § 60.12; and it is further ordered that upon resentencing, a determinate sentence of 12 years' imprisonment together with a five-year period of postrelease supervision would be imposed on each of defendant's convictions for murder in the second degree (Penal Law §§ 125.25 [1], [3]; 20.00), and a determinate sentence of five years' imprisonment together with a five-year period of postrelease supervision on defendant's conviction for robbery in the first degree (Penal Law §§ 160.15 [1]; 20.00), all such sentences to run concurrently with each{**69 Misc 3d at 1041} other; and it is further ordered that defendant has 10 days from the date of the within decision and order to inform the court whether she wishes to withdraw her application or appeal said decision and order; and it is further ordered that unless defendant so advises the court within said 10-day period, the matter will be set down for sentencing on September 17, 2020, at 10:00 a.m., at which time the court will vacate the sentence originally imposed and impose a determinate sentence of 12 years' imprisonment together with a five-year period of postrelease supervision with respect to each of defendant's convictions for murder in the second degree (Penal Law §§ 125.25 [1], [3]; 20.00), and a determinate term of five years' imprisonment together with a five-year period of postrelease supervision on defendant's conviction for robbery in the first degree (Penal Law §§ 160.15 [1]; 20.00), all such sentences to run concurrently with each other.

"[We] concede that defendant meets certain of CPL 440.47's criteria, namely that she is serving a prison sentence of at least eight years—a twenty-five year to life sentence—for eligible offenses, and, if her testimony is believed, she was the victim of domestic violence by a person unrelated to her and with whom she was intimately involved" (People's opposing aff ¶ 19).