Supreme Court, Queens County, July 6, 2021

Legal Aid Society (Jonathan McCoy and Jorge Santos of counsel) for defendant.

Melinda Katz, District Attorney (Timothy Regan and Katherine Triffon of counsel), for plaintiff.

On or about January 8, 2015, defendant D.M. and codefendant L.D. were indicted on charges of murder in the second degree (Penal Law § 125.25) and kidnapping in the first degree (Penal Law § 135.25), among other charges, in connection to the death of F.M. that occurred on or about November 19, 2013. Upon her guilty plea on February 13, 2018, the defendant was convicted of manslaughter in the first degree (Penal Law § 125.20 [1]), and on March 15, 2018, she was sentenced to a term of imprisonment of 15 years with five years of postrelease supervision.

After having served almost seven years on her sentence, the defendant moved, pursuant to Criminal Procedure Law § 440.47, to vacate her original sentence and to be resentenced in accordance with Penal Law § 60.12, which authorizes the court to impose an alternative sentence for defendants who were victims of domestic violence. The People opposed the defendant's motion, and by decision and order dated January 25, 2021, this court ordered a hearing to determine whether the defendant should be resentenced in accordance with Penal Law § 60.12 (see CPL 440.47 [2] [e]).

In 2019, the New York State Legislature passed, and the Governor signed into law, 2019 NY Senate-Assembly Bill S1077, A3974, known as the Domestic Violence Survivors Justice Act (DVSJA) (L 2019, ch 31). This amended Penal Law § 60.12 and added section 440.47 to the Criminal Procedure Law, authorizing the courts to impose an alternative sentence for eligible defendants who were victims [*2]of domestic violence. Upon a resentencing motion made pursuant to CPL 440.47 by an eligible^[FN1] defendant, the court may vacate the original {**72 Misc 3d at 963}sentence and impose a less harsh sentence authorized under Penal Law § 60.12 where the court has determined, upon a hearing,^[FN2] that: (a) the defendant was a victim of domestic violence at the time of the offense, subjected to substantial physical, sexual or psychological abuse by a member of the same family or household as defined in CPL 530.11; (b) such abuse was a significant contributing factor to the defendant's commission of the offense; and (c) upon consideration of the nature and circumstances of the crime as well as the history, character and condition of the defendant, the original sentence imposed was unduly harsh (CPL 440.47; Penal Law § 60.12 [1]). At such hearing, the court must determine "any controverted issue of fact relevant to the issue of sentencing" (CPL 440.47 [2] [e]), and may consider "any fact or circumstances relevant to the imposition of a new sentence" submitted by the parties (id.).

The hearing upon the instant motion commenced on May 13, 2021, and continued on May 17, 2021. At the hearing, the defendant called two witnesses: Dr. Eric Goldsmith, a forensic psychiatrist, and B.M., the defendant's mother. The People called retired Detective Patrick Roach to testify. Before the hearing concluded on June 2, 2021, the People, after consideration of the evidence presented at the hearing, withdrew their opposition and consented to the defendant's resentencing motion. The People conceded that the defendant met her burden at the hearing and should be resentenced in accordance with Penal Law § 60.12 (tr at 224-225). Upon the following findings, this court agrees.^[FN3]

A. At the time of the offense, the defendant was a victim of domestic violence subjected to substantial physical, sexual or psychological abuse inflicted by codefendant L.D., an individual with whom she had an intimate relationship.

Dr. Eric Goldsmith, certified in psychiatry and in the subspecialty of forensic psychiatry [*3]by the American Board of Psychiatry and Neurology,^[FN4] conducted a psychiatric evaluation of the defendant during the pendency of the underlying criminal action and prepared a report dated August 4, 2016 (People's exhibit 1). Dr. Goldsmith also prepared two additional reports, dated April 20, 2020 (People's exhibit 2), and March 25, 2021 (defendant's exhibit B), in connection with the defendant's resentencing motion, and testified as an expert witness in the field of forensic psychiatry.

During Dr. Goldsmith's initial interview with the defendant in 2016, the defendant reported a long history of physical and sexual abuse, inflicted by family members during her childhood, and later, by others with whom she had intimate relationships. Dr. Goldsmith found that the defendant had a "[c]omplicated, complex trauma history" (tr at 89); she developed post-traumatic stress disorder (PTSD) symptoms and turned to crack cocaine as a way to cope (see People's exhibit 2 at 2). The "cumulative impact" of her trauma "left her vulnerable to enter into . . . unhealthy[,] abusive relationships with men" (tr at 50), as she did with L.D.

The defendant described to Dr. Goldsmith several instances of extreme physical and sexual abuse by L.D. during their relationship, including physical beatings, forcing heroin on her, and subjecting her to unwanted, nonconsensual sexual acts (defendant's exhibit B at 3-4; People's exhibit 1 at 10). Dr. Goldsmith testified that L.D.'s "repeated acts of harm" met the criteria for coercive control (tr at 47): he wanted to know her whereabouts at all times, did not permit her to be alone at any moment, locked her in their apartment when he left, frequently checked her body for evidence of infidelity, and urinated on her clothes. He took control over her finances, invading her bank account and withdrawing her Social Security disability money to buy drugs, and she let him because she was afraid (see{**72 Misc 3d at 965} People's exhibit 1 at 10; defendant's exhibit B at 4; tr at 47). He frequently threatened to kill her, and he threatened to kill her family if she ever left him—she believed him, as she had seen him "behave aggressively, impulsively [and] violently multiple times through the course of their relationship" (see tr at 49; People's exhibit 1 at 10; defendant's exhibit B at 4). He also pressured her to abuse cocaine and heroin "to keep her in a kind of altered state to assist in" maintaining her compliance (tr at 47). Dr. Goldsmith had diagnosed the defendant as having crack cocaine use disorder (People's exhibit 1 at 1; tr at 46).

The defendant's mother, B.M., testified at the hearing and described instances of L.D.'s violent temperament and physical aggression, including violently assaulting the defendant in front of her family and others (see tr at 137-139, 142-146). B.M. also testified that the defendant's relationship with her drastically changed once the defendant began a relationship with L.D.—he did not want the defendant to maintain contact with her family, and she became isolated from them (tr at 148-149). Approximately a week before the defendant turned herself into law enforcement following the killing of F.M., she fled L.D. and sought refuge with her mother. The defendant arrived with injuries inflicted by L.D., which were memorialized in photographs taken by her mother that same day (defendant's exhibits G1-G10). B.M. described the defendant's injuries as "a whole bunch of hand marks on her that discolor[ed] her skin," a bloodshot eye from a popped vessel, choke marks around her neck, scarring on her shoulder, a bite [*4]mark on her hand, a stab mark on her face, and "her teeth were through her lip" (tr at 152). The defendant reported to the police and to Dr. Goldsmith that L.D. had attacked and choked her (People's exhibits 10, 11; defendant's exhibit B at 7).

Dr. Goldsmith opined, to a reasonable degree of psychiatric certainty, that the defendant suffered from "specific trauma at the hands of L.D. . . . that she was subject to repeated acts of physical abuse, sexual abuse [and] psychological harm" (tr at 46), that she was under his coercive control throughout the relationship, and that the effects of such abuse were cumulative (id.; defendant's exhibit B at 8).

[1] Accordingly, this court finds that the evidence presented at the hearing established that the defendant was the victim of domestic violence at the time of this offense, subjected to substantial physical, sexual and psychological abuse inflicted by L.D., her codefendant on the underlying criminal prosecution{**72 Misc 3d at 966} and an individual with whom she had an intimate relationship (see CPL 530.11 [1]).

B. Such abuse was a significant contributing factor to the defendant's criminal behavior.

The DVSJA made substantial amendments to Penal Law § 60.12, recognizing that the effects and consequences of domestic violence reach farther and beyond that abusive relationship. Notably, the victim of the defendant's crime need not be the defendant's abuser, and the abuse need only be a significant contributing factor, rather than the causal factor, to the defendant's criminal behavior (compare former Penal Law § 60.12, with Penal Law § 60.12, as amended by L 2019, ch 31).

"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" (People v Smith, 69 Misc 3d 1030, 1037 [Erie County Ct 2020, DiTullio, J.]).

The principles behind these legislative amendments resonate deeply with this defendant's circumstances.

The defendant reported to the police and to Dr. Goldsmith that on the day of the crime, L.D. stabbed and choked the victim, F.M., during an argument over drugs. L.D. instructed the defendant to tie the victim up; he wrapped a cord around the victim's neck and made the defendant hold it. He put a T-shirt in the victim's mouth and repeatedly struck the victim's head with a brick. When the defendant voiced any objections, L.D. told her to keep quiet and threatened to kill her family. She did as he instructed because she was traumatized and afraid (see People's exhibits 9-13; defendant's exhibit B at 6, 8; People's exhibit 1 at 11).

The cumulative effects of the physical, sexual and psychological abuse inflicted by L.D. over the years had taken their toll. Dr. Goldsmith had diagnosed that the defendant suffered from PTSD (see tr at 46), and opined that at the time of the offense, the defendant suffered from "an impairment in judgment with weakened psychological defenses" (People's exhibit 1 at 16). She told Dr. Goldsmith, "at that time, I do what he says. I hold a cord and taped his hands" (People's exhibit 1 at 11). As Dr. Goldsmith described at the hearing:{**72 Misc 3d at 967}

"They were together for a number of years and Ms. [M.'s] resistance and will will be broken. Her self image was essentially shattered. She was not resisting his demands. She was complying with his needs which often . . . were in the service of assisting him in getting crack cocaine to get high and any resistance that she put toward those efforts would be met with threats or physical violence and she stopped resisting. She was in a situation of diminished will. Diminished autonomy. Diminished independence at the [*5]time of the crime and it was as a result[,] to a reasonable degree of psychiatric certainty[,] from the intimate partner violence . . . by L.D." (tr at 48; see also tr at 56-57).

[2] Based upon the foregoing, this court finds that the evidence presented at the hearing established that the physical, psychological and sexual abuse endured by the defendant was a significant contributing factor to the defendant's participation in the killing of F.M.

C. Having regard for the nature and circumstances of the crime, and the history, character and condition of the defendant, the original sentence imposed was unduly harsh.

At the hearing, Dr. Goldsmith also testified about the impact that incarceration had on the defendant as a victim of domestic violence. He explained that "[t]he conditions of incarceration can mimic coercive control" (tr at 64), and that the defendant, who had been subjected to coercive control and the feeling of powerlessness in her past relationships, had to constantly cope with relationship imbalances and feelings of powerlessness in the prison setting as well, reminding her of her past traumas and potentially triggering PTSD symptoms (tr at 63-64). He concluded, to a reasonable degree of psychiatric certainty, that "[c]ontinued incarceration in someone with a post-traumatic stress disorder like Ms. [M.] could have negative effects on her physical and mental health, particularly in situations [that] occur in prison which serve to re-traumatize her. She can once again experience her psychiatric condition" (tr at 65).

The DVSJA acknowledges the need for the courts to have the discretion to address the impact of domestic violence (see Assembly Mem in Support of 2019 NY Assembly Bill A3974), and enables the courts to consider, for example, the psychological consequences that lengthy mandatory incarceration can have on a traumatized domestic violence survivor. In giving due consideration to factors such as the nature of the crime, accountability,{**72 Misc 3d at 968} public protection, deterrence and rehabilitation (see generally Penal Law § 1.05; People v Farrar, 52 NY2d 302, 305 [1981]), the DVSJA adds to the court's duty an additional layer of analysis when contemplating the appropriate sentence for a victim of domestic violence. It calls on the courts to take a more compassionate, problem-solving approach rather than one driven by retribution, and highlights the goals of rehabilitation and "successful and productive reentry and reintegration into society" (see Penal Law § 1.05 [6]; see generally Assembly Mem in Support of 2019 NY Assembly Bill A3974). The goals of public safety, deterrence and rehabilitation (see Penal Law § 1.05 [6]) are not achieved by a lengthy sentence of incarceration for an individual whose criminal conduct was borne out of trauma from severe domestic violence.

[3] Upon consideration of the above, as well as the nature and circumstances of the crime and the history, character and condition of the defendant, this court finds that the original sentence of a term of imprisonment of 15 years with five years of postrelease supervision is unduly harsh. The court further finds that alternative sentencing in accordance with Penal Law § 60.12 is appropriate. The defendant had no criminal history prior to her participation in this crime. As Dr. Goldsmith opined, the defendant's "behavior at the time of the crime was trauma based" and "[i]f not for the abusive relationship with L.D., she would not have been involved in the crime" (defendant's exhibit B at 9; see also tr at 55). The court notes that during her more than seven years of incarceration, the defendant availed herself of counseling and received psychiatric and trauma treatment (see tr at 62-63). She also completed substance [*6]abuse treatment and maintained her sobriety while incarcerated^[FN5] (defendant's exhibit H; tr at 228-229). She took college courses (defendant's exhibit D), participated in the Peer Supporter Program (defendant's exhibit C), and worked on a project developing a business plan to establish a foundation that helps children of incarcerated individuals (see tr at 44; defendant's exhibit E). The court further notes that a community-based program which includes transitional housing, mental health services, education and job training support, and other{**72 Misc 3d at 969} services has been identified by the defendant's attorney and would be immediately available to the defendant upon her release (see tr at 226-228; defendant's exhibit I).

Moreover, the defendant has already served half of her original incarceratory sentence, which well exceeds the maximum term of imprisonment that can be imposed under Penal Law § 60.12. A reduced sentence would decrease the defendant's risk of continued re-traumatization in the prison setting and provide the opportunity for community-based programming to address the abuse and trauma that contributed to her criminal behavior. Indeed, by giving the courts the discretion to impose less harsh incarceratory sentences, the DVSJA saw that "[c]ommunity-based alternative programs are far more effective than prison in allowing survivors to rebuild relationships with their families, recover from abuse, and take responsibility while positively participating in their communities" (Assembly Mem in Support of 2019 NY Assembly Bill A3974).^[FN6]

In arriving at this decision, the court certainly does not disregard the nature and severity of the defendant's crime and its impact on the victim's family. The DVSJA "neither exonerates a defendant nor excuses her criminal conduct. It simply permits a court to . . . reduce a sentence in consideration of that defendant's status as a domestic violence victim" (People v Smith, 69 Misc 3d at 1032), recognizing that the cumulative effect of her abuse was a significant contributing factor to her criminal conduct. The court cannot overlook the fact that this defendant's case is a prime example of one which the DVSJA was intended to address and affect. A refusal to exercise discretion and apply the DVSJA when, as here, the circumstances are appropriate is to ignore the very purpose of that law's existence.

While both parties agreed that the new sentence in accordance with Penal Law § 60.12 should be a term of imprisonment of five years, the parties disagreed on the length of postrelease supervision that should be imposed—the defendant requested a period of 21/2 years, the minimum term, while the People argued that the maximum term of five years is appropriate.

Counsel for the defendant explained that a sentence of imprisonment of five years with a period of 21/2 years of postrelease {**72 Misc 3d at 970}supervision would "fold together" and essentially be deemed satisfied by the 71/2 years that the defendant has already served on her original sentence (tr at 233-234). This would result in her immediate release [*7]without any actual postrelease supervision remaining (tr at 234-235). Counsel asserted that any greater term of postrelease supervision imposed would result in a delay of one to four months in the defendant's release because of the requirements by DOCCS (see tr at 230-231).^[FN7] Counsel further argued that the conditions of postrelease supervision would take away some of her autonomy, mimicking what she experienced in her abusive relationship and in prison (tr at 241-242).

The People objected to a period of postrelease supervision of just 21/2 years, arguing that some period of actual postrelease supervision is warranted based upon the serious nature and circumstances of the crime. The People pointed out that the defendant's participation in the community-based program is completely voluntary, and there would be no supervision or any oversight of the defendant should she decide to leave the program (see tr at 232-233, 235, 240-241).

Upon careful consideration of all the foregoing findings, the nature and circumstances of the underlying crime, and the arguments presented by both parties, this court finds that a period of actual postrelease supervision is appropriate and necessary for the defendant's successful reentry into society. Generally, a court has limited insight into a defendant's personal history. Here, however, where the court has held a full and meaningful hearing that revealed details about the defendant's life, her trauma and struggles with addiction, an opportunity exists to implement the intent of the DVSJA. In light of all that this court has heard and learned about the defendant, it would be injudicious to release the defendant without any period of actual postrelease supervision. While the court cannot mandate services, it is the sincere hope of the court that the defendant takes advantage of all the voluntary services available to her upon release. A period of postrelease supervision would certainly encourage the defendant to remain engaged in such community-based programming, ensure the availability of any additional programs and services that the defendant may need, and provide supervision as the defendant adjusts to her reentry into the community.{**72 Misc 3d at 971}

The court recognizes the courage it takes for a domestic violence survivor to reveal such personal, sensitive and difficult details of the trauma that one has endured. This court commends the Queens District Attorney's Office for their careful evaluation of the evidence presented at this hearing in reaching their decision to consent to the defendant's motion under the DVSJA. The court equally commends the Legal Aid Society for working so diligently, utilizing all its resources in assigning a social worker, and linking the defendant to meaningful and relevant services to address the trauma and abuse that she has endured.

Accordingly, this court finds that the defendant should be resentenced in accordance with Penal Law § 60.12, and the defendant's application to vacate her original sentence is granted without objection by the People. The new sentence of the court, in accordance with Penal Law § 60.12, is five years of incarceration with four years of postrelease supervision.