Supreme Court, Kings County, March 31, 2023

Appellate Advocates, New York City, for defendant.

Eric Gonzalez, District Attorney, Brooklyn (Lisa Perlman of counsel), for the People.

On June 25, 2017, the defendant was arrested for stabbing her boyfriend. She was subsequently indicted for, among other things, attempted murder in the second degree. On December 19, 2018, she entered a negotiated plea to assault in the first degree and received the promised sentence of eight years in prison and five years postrelease supervision on January 31, 2019.

The defendant now moves, pursuant to Criminal Procedure Law § 440.47, to vacate her sentence and for resentence under Penal Law § 60.12 which allows a court to reduce a sentence where it has determined (a) the defendant was the victim of an abusive relationship at the time of the offense; (b) such abuse was a significant contributing factor in the commission of the offense; and (c) the sentence is unduly harsh considering the circumstances of the crime and the character of the defendant.

By their nature, these criteria are subjective and require a highly individualized determination. In this case, the court finds that the defendant has met her burden of proving each of the criteria by a preponderance of the evidence and the motion is granted.

As the People correctly concede, the defendant was in an abusive relationship at the time of the offense and was the victim of domestic violence, subjected to substantial physical and psychological abuse inflicted by her boyfriend, the victim in this case. Thus, the first criterion is established.

The hearing testimony of Dr. Cheryl Paradis, the forensic psychologist who examined the defendant in preparation for trial, was that she was the victim of extreme abuse at the hands of the victim. She recounted how collateral sources she interviewed witnessed his beatings, choking and burning of the defendant with cigarettes. Defendant's daughter as well{**78 Misc 3d at 1141} witnessed the abuse and, in her testimony, told of a particularly brutal beating a week before the offense, prompting her to take photographs of her mother's injuries introduced as evidence at the hearing.

The defendant herself testified as to this beating as well as other incidents of physical abuse, including burning with cigarettes, and psychological abuse, where, without notice, the [*2]victim would rage on for hours over perceived slights. He would, for example, punch holes in walls and act out with suicidal gestures.

In fact, on the date of the offense, the defendant came home to an angry boyfriend entering an apartment of physical and psychological tumult, establishing the second criterion that the victim's abuse was a significant contributing factor to the defendant's criminal behavior.

The defendant testified that the victim repeatedly called her at work that day demanding that she come home. The couple were arguing all day—continuing when she arrived home and escalating over hours until her boyfriend started "to go crazy" and "psychopathic." After several hours she testified that she grabbed a knife from the kitchen and "poked" him three times. This is consistent with the statement of Dr. Anthony Masi who found the victim had three wounds, two to the back left shoulder and a one centimeter (approximately one-quarter inch) wound at the base of his skull. (See petitioner's exhibit C.)

The People contend that this element is not met because the defendant stabbed the victim from behind as a result of anger and excessive drinking. Even if true, it does not negate the relentless abuse by the victim which is certain to have provoked anger as well as fear of dangerous escalation. As such, the victim's conduct was a significant contributing factor to the defendant's criminal behavior.

Prior to this incident the defendant had lived crime free for 43 years. She had "no misdemeanor convictions, no YO adjudications and no pending cases in New York State. . . . no prior probation or parole violations, no outstanding warrants and no active orders of protection." (See petitioner's exhibit C.) Despite suffering childhood abuse and trauma herself, she had a long and steady employment history with the New York City Housing Authority. She has the support of her daughters and many friends. While in prison she has been infraction free and taken advantage of beneficial programs offered to her. There is no doubt that but for the abuse that night she would not be in prison.{**78 Misc 3d at 1142}

Therefore, the third statutory criterion of having regard for the nature and circumstances of the crime and the history, character and condition of the defendant, the sentence was unduly harsh, is met.

The defendant having met the required statutory criteria for resentencing under Penal Law § 60.12 is entitled to have her original sentence vacated. In determining the sentence to be imposed the court is mindful of the severe consequences of her crime which resulted in the immediate and total paralysis of the victim, excruciating pain and suffering for him and his family and his premature death. The court is also mindful of the fact that the victim and his mother agreed to the plea with the understanding that the defendant would serve her full term and must balance those considerations with those of the statutory intent.

In doing so, the court is mindful that the traditional rationales for imprisonment are incapacitation, deterrence and retribution. Under the circumstances here—that this is the only crime this defendant has ever committed—retribution is the only reason for keeping her in prison, and under that rationale the defendant has served sufficient time.

Based on the foregoing, the court finds that a determinative sentence of four years plus 2½ years postrelease supervision is appropriate.