County Court, Erie County, July 9, 2021

Alexandra Harrington for defendant.

John J. Flynn, District Attorney (David A. Heraty of counsel), for plaintiff.

The defendant (S.M.) filed a request pursuant to Criminal Procedure Law § 440.47 to apply for resentencing in accordance with section 60.12 of the Penal Law and this court granted{**72 Misc 3d at 811} the request by order dated December 3, 2020. This court found S.M. eligible for resentencing since at the time of the request she was confined in an institution operated by the Department of Corrections and Community Supervision (DOCCS) serving a sentence with a minimum or determinate term of eight years or more for an offense committed prior to the effective date of CPL 440.47 and eligible for an alternative sentence pursuant to Penal Law § 60.12.

S.M. then filed an application for resentencing pursuant to CPL 440.47 dated February 9, 2021, alleging that she is eligible for resentencing because (1) at the time of the instant offense she was a victim of domestic abuse 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 was unduly harsh. In opposition to S.M.'s motion, the People contend that since S.M.'s application she is no longer confined in a correctional facility or serving a sentence of incarceration and therefore is not eligible for [*2]resentencing. The People also contend in their opposition that S.M. fails to establish that the abuse was a significant contributing factor to her criminal behavior or that her sentence was unduly harsh. It should be noted that following the hearing the People submitted written correspondence to the court withdrawing their opposition to S.M.'s application for resentencing. However, this court must still make written findings of fact and state the reasons for granting the application and issuing the resentencing order pursuant to CPL 440.47 (2) (g).

S.M. pleaded guilty to one count of robbery in the first degree under superior court information No. 37736 in connection with events which occurred on May 9, 2012. S.M. was sentenced to 91/2 years' imprisonment followed by five years' postrelease supervision on November 18, 2013. She appealed her conviction to the Appellate Division, Fourth Department, and it was unanimously affirmed. S.M. completed her sentence on February 11, 2021, and was released to postrelease supervision.

The Domestic Violence Survivors Justice Act (DVSJA) (L 2019, ch 31) was signed into law on May 14, 2019, permitting survivors of domestic violence to apply for resentencing and authorizing the imposition of alternative sentences provided these survivors of domestic violence meet the requirements of CPL 440.47. The intent of the DVSJA was to give courts discretion to reduce lengthy sentences for victims of domestic violence{**72 Misc 3d at 812} where that violence was a significant contributing factor to their criminal behavior. Penal Law § 60.12 requires the court to conduct a hearing and following that hearing the court may impose an alternate sentence after a determination that (a) at the time of the instant offense, the defendant was a victim of domestic violence subjected to substantial physical, sexual or psychological abuse inflicted by a member of the same family or household as the defendant; (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, the sentence was unduly harsh. A court may determine that the abuse was a significant contributing factor to the defendant's criminal behavior whether or not the defendant raised a defense pursuant to article 35, article 40, or subdivision (1) of section 125.25 of the Penal Law. At the hearing 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, including the admission of reliable hearsay (Penal Law § 60.12 [1]).

Under CPL 440.47 (1) (a) defendants that are currently incarcerated may submit a request to apply for resentencing. When S.M. made her request to apply for resentencing she was incarcerated and when her application for resentencing was received she was still incarcerated. She was released while the application was pending, which the People originally contended affects her eligibility for resentencing pursuant to CPL 440.47, then subsequent to the hearing withdrew their opposition to S.M.'s application for resentencing.

On May 9, 2012, S.M. drove Mr. S. and a third individual around the city. Mr. S. instructed her to pull over at which time he robbed a pedestrian on the street, taking money and other valuables. Mr. S. and the other individual robbed several people during the course of the day, demanding S.M. pull the car over when they identified someone they wanted to rob. S.M. pleaded with Mr. S. to let her stay at his sister's house with her child but he grabbed her by the hair and dragged her back to the vehicle, insisting she drive because she was the one with a driver's license. S.M. did not want to drive so she got into the passenger seat, at which time Mr. S. headbutted her and struck her in the face, causing her to bleed. S.M. then{**72 Misc 3d at 813} complied with his [*3]demands to drive. At some point during the commission of several robberies, they encountered the victim at which time Mr. S. shot him and instructed S.M. to drive off. S.M. pleaded guilty to robbery in the first degree (Penal Law § 160.15 [4]) and testified against Mr. S. in the murder trial.

In consideration of the testimony offered at the hearing along with voluminous exhibits stipulated into evidence on consent by both parties, the court makes the following findings of fact:

1. S.M. was physically abused as a child by her mother and other adults charged with her care while in alternative placements after being abandoned by her mother by the age of five.

2. S.M. met Mr. S. when she was 30 years old and he moved into her apartment after only dating a few weeks. While their relationship was initially positive, it quickly turned abusive and continued to be abusive, including on and after the date of the crime in question.

3. S.M. did not initially know Mr. S. was involved in a gang but learned that he was a high-ranking gang member and once she learned this information she noticed a change in Mr. S.'s behavior. He became cold, abusive, controlling. He would get drunk, call her names and physically abuse her on a daily basis.

4. One specific instance of violence occurred on New Year's Eve of 2010 while at a family party. S.M. loaned one of her vehicles to Mr. S.'s brother which caused Mr. S. to become angry, hit her in the face and order her not to let anyone borrow her car without his permission. When she was struck by Mr. S., he split her lip and caused her nose to bleed. Mr. S. dragged her by the hair into the bathroom and demanded she clean the blood from her face.

5. Mr. S. beat S.M. after she caught him cheating on her with another woman. An argument resulted when S.M. attempted to confront Mr. S. about his infidelity wherein he pinned her down on the floor and headbutted her. The next day her eyes and forehead were so swollen she could not see properly.

6. In 2011, Mr. S. was drinking and became angry and violent. S.M. walked to a nearby store and called the police. When she returned home to wait for the police, he grabbed her at the top of the stairs, continued to assault her and dragged her out{**72 Misc 3d at 814} to the front lawn. The police arrived and Mr. S. was charged with a parole violation.

7. S.M. attempted to separate herself and her child from Mr. S. and she was threatened by Mr. S.'s brothers and fellow gang members not to testify against Mr. S., and forced to visit him in jail and send money to his prison account.

8. On August 6, 2012, S.M. ended up in the hospital after he pointed a pistol at her, demanding she return his child to him and when she refused out of fear for the child's safety, he hit her on the head with the pistol. She fell to the floor disoriented and bleeding and Mr. S. left with his child. The police came, she was taken to the hospital and a domestic violence report was taken. S.M. was discharged from the hospital to a domestic violence shelter. After this incident she obtained an order of protection against Mr. S.

9. S.M. was also subjected to abuse by Mr. S.'s fellow gang members at his direction.

A. Defendant is a victim of domestic violence subjected to substantial physical, sexual or [*4]psychological abuse at the time of the offense.

[1] The record establishes that S.M.'s allegations of abuse are supported by records and corroboration. S.M. testified credibly regarding instances of abuse she suffered at the hands of Mr. S. prior to and on the date of the crime in question. S.M. submitted several pieces of evidence of the abuse, including at least one piece of evidence required by CPL 440.47 being either a court record, presentence report, social services record, hospital record, sworn statement from a witness to the domestic violence, law enforcement record, domestic incident report, or order of protection. The People have not contested that S.M. was a victim of domestic violence at the hands of Mr. S.

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

S.M. need not establish that the abuse was the exclusive or even the overriding factor for her criminal conduct to be eligible for a reduced sentence under the DVSJA. It is sufficient to show that the abuse was a significant contributing factor to the crime. Significant contributing factor does not mean the trauma has to be the causal factor of the crime as the language of Penal Law § 60.12 was changed in 2019 to change the standard from one of causation to one of contributing factor. This{**72 Misc 3d at 815} lowered the standard to include a broader array of offenses, including conduct toward non-abusing third parties. In support of her contention that the abuse she sustained was a significant contributing factor to her criminal conduct, S.M. filed a memorandum of law citing the New York City Bar in support of the DVSJA and the New York State Coalition Against Domestic Violence that detail the ways in which abusers use fear and control to manipulate their victims into committing criminal activity to protect themselves from further violence.

"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" (People v Smith, 69 Misc 3d 1030, 1038 [Erie County Ct 2020]).

In considering the full picture here, S.M. was repeatedly abused physically and psychologically by Mr. S. up to and including the date of the crime in question and such abuse was clearly a significant contributing factor to her criminal conduct on the date in question. The People do not dispute that the domestic violence played a role in her commission of the crime. The abuse S.M. suffered cannot be separated from her actions on the day in question as that trauma affected S.M.'s functioning and behavior and is therefore a significant contributing factor to her criminal behavior.

C. 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.

While S.M. was not charged with the murder of the victim, the robbery that she pleaded guilty to occurred on the same day under similar circumstances and that was likely taken into consideration when the original sentence was imposed. However, in support of her request for resentencing, S.M. presented several pieces of evidence that were not available at the time of sentencing regarding her history, character and condition. This court has taken this evidence into consideration in determining the present application and is impressed by her institutional record as well as her postrelease plan. S.M. completed a high school equivalency course while incarcerated{**72 Misc 3d at 816} and received her Associate's degree in 2020 from Medaille College. S.M. worked for Chaplain Services as an administrative clerk and also held positions of porter, greenhouse [*5]laborer, recreation aide, and hospital porter. S.M. completed several programs including the Phase III program designed to assist with transition into the community, the Inmate Program Associate training, Pathstone Peer Facilitator training, Basic Skills parenting program, Alternatives to Violence Facilitators workshop, courses in nonviolent conflict resolution, additional parenting workshops, the Family Violence Program's Child Victim Group and Phase 1 of the ACE program. S.M. also presented a number of positive inmate progress reports from DOCCS. With respect to her postrelease plan, S.M. has a full-time job, volunteers, and has reunited with her son, who is now 16 years old. She has also secured appropriate housing for herself and her child. All within a few short months of being released from prison. She also has the support of her family as well as friends she has made through her volunteering. S.M. testified that she wished for the court to resentence her so that she can live a normal life with her child.

It is well documented that postrelease supervision is a burden, especially for women who are domestic violence survivors. The strict constraints of postrelease supervision can mimic the abusive relationships that domestic violence survivors experienced in their relationships prior to incarceration. The risk of reincarceration for a technical violation is inconsistent with the intent of the DVSJA. Statistically, S.M. is unlikely to reoffend and most recidivism occurs within the first few months of reentry. While the People originally opposed S.M.'s request, contending that the sentence was not harsh or excessive, following the hearing the People withdrew their opposition and conceded that S.M. gave truthful testimony against Mr. S. at his trial, served just short of eight years in prison with an impeccable record, and is now leading a productive law-abiding life.

The purpose of the justice system is to deliver justice for all which means protecting the innocent, convicting criminals and keeping citizens safe. Requiring S.M. to spend an additional five years on postrelease supervision does not serve any of those purposes. In considering S.M.'s history, condition and character, while having regard for the nature and circumstances of the crime, this court believes the original sentence imposed is unduly harsh.{**72 Misc 3d at 817}

[2] The purpose of sentencing under the Penal Law is to "insure the public safety by preventing the commission of offenses through the deterrent influence of the sentences authorized, the rehabilitation of those convicted, the promotion of their successful and productive reentry and reintegration into society, and their confinement when required in the interests of public protection" (Penal Law § 1.05 [6]). Based upon all the evidence presented at the hearing, a determinate sentence of four years plus 21/2 years' postrelease supervision is a more appropriate sentence than the 91/2 years plus five years' postrelease supervision that was imposed on her in 2013. S.M.'s release from prison prior to the hearing on her application does not affect her eligibility for resentencing as this court is of the opinion that the postrelease supervision is a required portion of the sentence that makes her eligible for resentencing under the DVSJA. Postrelease supervision is a mandatory period that is included in calculating the expiration date of a determinate sentence of imprisonment; therefore if the legislature intended postrelease supervision to be distinct from the determinate sentence, it would not have described a determinate sentence to include, as a part thereof, a period of postrelease supervision (Penal Law § 70.45 [1]). Additionally, when a defendant is released on postrelease supervision, the remaining portion of any maximum or aggregate maximum term is held in abeyance until the successful completion of the period of postrelease supervision (Penal Law § 70.45 [5] [a]). Here, S.M. was confined in an institution operated by DOCCS in excess of seven years; therefore she has more than satisfied the maximum determinate sentence under this order of four years. Based upon the foregoing, S.M. shall no longer be subject to postrelease supervision as she completed the maximum term of the new sentence to be imposed. Furthermore, the time she remained in custody after serving the maximum term of the sentence of imprisonment shall be credited to the period of postrelease supervision pursuant to Penal Law § 70.45 (5) (d).

Accordingly, for the foregoing reasons and in consideration of the evidence and record before this court, it is hereby ordered that the defendant should be resentenced in accordance with Penal Law § 60.12; and it is further ordered that upon sentencing, a determinate sentence of four years' imprisonment plus a period of 21/2 years of postrelease supervision would be imposed on defendant's conviction of robbery in the first degree in violation{**72 Misc 3d at 818} of Penal Law § 160.15 (4); and it is further ordered that in calculating the new term to be served by the applicant pursuant to Penal Law § 60.12, S.M. should receive credit for all jail time credited towards the subject conviction, all periods of incarceration credited toward the sentence originally imposed, and all time served on postrelease supervision. As S.M. served in excess of seven years' imprisonment, she has completed the maximum term of the new sentence to be imposed and the additional time she remained in custody after serving the maximum term of the sentence of imprisonment shall be credited to the period of postrelease supervision pursuant to Penal Law § 70.45 (5) (d). S.M. is thereby no longer subject to postrelease supervision; and it is further ordered that the 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 July 29, 2021, at 2:00 p.m., at which time the court will vacate the sentence originally imposed and impose a determinate sentence of four years' imprisonment together with a 21/2 year period of postrelease supervision with respect to defendant's conviction for robbery in the first degree in violation of Penal Law § 160.15 (4); and it is further ordered that defendant shall appear with counsel on July 29, 2021, at 2:00 p.m. for the purpose of resentencing.