Supreme Court, Cayuga County, May 4, 2023

David Elkovitch, Auburn, for defendant.

Brittany Grome Antonacci, District Attorney, Auburn (Christopher Valdina of counsel), for the People.

On May 23, 2013, the defendant pleaded guilty before this court to murder in the second degree in violation of Penal Law § 125.25 (1) for the killing of her boyfriend Henry "Hank" Davis. At that time of the plea, the sentence promise was between 18 years to life and 22 years to life. Before imposing the sentence, this court reviewed the presentence investigation report, psychiatric examinations, and lengthy presentencing memoranda, and heard from the People, the defendant, and friends and family of the victim. Having considered all of that, this court imposed an indeterminate life sentence of 21 years to life. The defendant has served approximately nine years of that sentence. If the court grants the defendant's application, her sentence would be converted to a determinate sentence of between five years and 15 years (Penal Law § 60.12 [3]).

The defendant appealed, asserting inter alia that she was innocent and that the original sentence imposed was unduly{**79 Misc 3d at 745} harsh and severe. The Fourth Department rejected those [*2]arguments, finding that the defendant's claim of innocence was defeated by the fact "that she admitted the elements of murder in the second degree during the plea allocution and did not make any claim to the court at that time that she was innocent" (People v Newkirk, 133 AD3d 1364, 1364 [4th Dept 2015], lv denied 26 NY3d 1148 [2016]). The Court held that "[a]lthough the initial statements of defendant during the factual allocution may have negated the essential element of [her] intent to cause death, [her] further statements removed any doubt regarding that intent" (id. at 1365). Additionally, the Court found that "the sentence [was not] unduly harsh and severe" (id.).

Three years after that decision, the legislature enacted the Domestic Violence Survivors Justice Act (DVSJA), which allows certain domestic violence survivors to receive a reduced sentence if, after a hearing, a court determines 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, that a sentence of imprisonment pursuant to [the normal sentencing statutes] . . . would be unduly harsh" (Penal Law § 60.12 [1] [emphasis added]).

By way of an order issued on October 6, 2020, the court granted the defendant permission to apply for resentencing pursuant to CPL 440.47 (2) (a). On April 9, 2021, the defendant submitted this application for resentencing. The court held an evidentiary hearing on August 16, 2022, at which time the defendant testified on her own behalf and called two witnesses: psychiatrist Dr. Kelly Gill and the defendant's adult son. Both parties requested, and consented to, each other's presentencing memoranda and exhibits being considered exhibits for the hearing. The court granted that request. The court has considered all the testimony, proof, and argument adduced at the hearing, as well as the defendant's post-hearing memorandum.

The defendant alleged that she suffered domestic abuse by two people during her life: sexual abuse during her childhood{**79 Misc 3d at 746} at the hands of her stepfather, and physical and psychological abuse inflicted by Davis.^[FN1] The defendant stated that her stepfather repeatedly touched her [*3]sexually and made her touch him sexually until she was approximately 16 years old. Additionally, she claimed the following abuse by Davis:

1. Physical abuse by strangling her to prevent her from leaving the house minutes before the shooting. The defendant stated in multiple different sources that there were no other instances of physical abuse.

2. Psychological abuse by exerting financial control over her, limiting her social contacts, restricting her access to transportation, killing his own dogs when she was not present and showing her where he buried them, killing feral cats near their home, cutting himself to make her feel guilty, and, in the spring of 2011, threatening to kill her and hide her body. She also alleged that he verbally abused her by calling her names such as "crackhead" and "crazy" during their entire relationship.

The record for this hearing is voluminous and detailed. While the court has considered the entire hearing record and all the arguments from both sides, only those portions of the record which are most relevant to this court's decision will be discussed herein. The following constitutes the court's findings of fact and conclusions of law:

On Sunday October 28, 2012, at approximately 6:02 p.m., the defendant killed her boyfriend, Henry "Hank" Davis, by shooting at him five times with a shotgun, striking him thrice in the torso. The homicide occurred in Davis' rural home in{**79 Misc 3d at 747} Conquest, New York where the two cohabitated for approximately two years. The homicide was the culmination of a multiday domestic dispute between the defendant and Davis that stemmed from a disagreement over whether Davis was going to visit his ailing father in the hospital or stay at home and give the defendant a massage. The defendant spent the next day (Saturday) at her adult son's house.

While at her son's house, the defendant and Davis continued to argue. The defendant remarked to her son that she was going to kill Davis. As the argument progressed, Davis messaged the defendant via Facebook and told her to move out of the house. The defendant replied:

"First off you are NOT kicking me out. Second YOU asked for this! Third my broom don't fly very well these days so I don't think I'm going much of anywhere just yet.

"Excuse me . . . I said you are NOT kicking me out & I don't have transportation as you well know so don't ask me stupid questions.

"Listen buddy . . . [I] don't know what you are trying to pull here, but like I said I am NOT removing my stuff from that house, because that is MY home too! I am sorry to disappoint you with this news. You touch my stuff & yes the authorities will be involved because I know my rights! I told you I was going to visit my son. YOU told me I could use the Chevy & then . . . you played your dick card & never said a fucking word to me about taking it!" (People's exhibit M at 1-2, Facebook messages between defendant & Davis).

On Sunday, the defendant requested Davis pick her up and bring her home, which he did. The [*4]argument continued in-person. Davis told the defendant to leave his house, and the defendant patently refused:

"I'm not leaving the house . . . . I've put a lot of money and sweat and, you know, in that house . . . . I made that house a home" (People's exhibit J at 19-20, tr & video recording of defendant's police interview).

"I'm like, 'I'm not. I'm not. I'm not packing my stuff.' You know? I've already been down that road because I've moved out once, packed up all of my stuff, and moved down to the other edge . . . I've been down that road . . . . So I went back down to the{**79 Misc 3d at 748} house, went inside, took care of my stuff. Switched his laundry from the washer to the dryer. Folded my laundry and stuff, you know, just going about my business. Then I went in and sat in front of my computer. I figured I'll stay at my computer; I'll stay right out of his way" (id. at 26-27).

During the dispute, the defendant threw a bowl of noodles, which, according to the defendant, caused Davis to start verbally taunting her:

"He kept taunting me . . . he kept running his mouth and wouldn't leave me alone. So I kept throwing stuff from the top of my dresser. I wasn't hitting him. And he told me I throw like a girl. And he kept it up. So I went out to the kitchen and he followed me to the kitchen. I was by the door, right by the mud room door. And he kept following me and then got right in my face. He wouldn't let me go out the mud room door. He got right in my face and that's when I kept asking him to stop, to stop, and he wouldn't" (People's exhibit J at 29-31; see also 36-38).

At that point, the defendant "lost it" and began hitting Davis about the head and body (People's exhibit J at 29-31).

"Defendant: I was going to go outside. I needed to go away. He wouldn't leave me alone and I asked him to be alone. And he was right in my face and he just kept it up and kept it up—just everything, just taunting me . . . and . . . I snapped and I just starting hitting him. And he would come right back in my face again. He just wouldn't—

"Investigator: So that's what you're saying about your knuckles being a little swelled up. That's from hitting him?

"Defendant: [Inaudible] they're bruised . . . they hurt . . . . But he wouldn't back away. He just kept coming at me. Like I said, taunting me. And I'm like, 'Oh, that's a good one.' He wouldn't let me go. I couldn't—

"Investigator: Where were you—

"Defendant: He wouldn't move.

"Investigator: Where were you hitting him at?

"Defendant: Anywhere . . .

"Investigator: So you're swinging, hitting him, and that's what—you hit your hand and then, at some {**79 Misc 3d at 749}point, because of you hitting him? He does one of these [to] you [indicating]? You said he choked you?

"Defendant: Yeah, he choked me. He also told me he was going to f-ing kill me . . . . And there was a picture on my right-hand side . . . . And I grabbed it and smashed it on his head so he would back away and leave me the hell alone. And he still wouldn't back [*5]away . . . and then he called them [911] and he lied. He outright lied" (People's exhibit J at 35-37; see also 29-31).

After the defendant smashed a picture frame over Davis' head, he called 911 and reported what defendant had just done (People's exhibit J at 29-31; see also 36-38; People's exhibit A, tr of Davis' 911 call & audio recording of Davis & defendant's 911 calls).

Approximately an hour-and-a-half before the shooting, the defendant text messaged with her neighbor and friend, Kathy Leader, asking if she could carpool with Kathy's husband and the defendant's friend and coworker, Harold, to work the next day. Kathy offered that the defendant could stay at her house, and the defendant declined (People's exhibit D, text messages between Harold Leader & defendant). Twelve minutes before the shooting, at 5:50 p.m., the defendant asked Harold to come pick her up so she could spend the night at his house (People's exhibit D). Four minutes later, at 5:54 p.m., Harold told her to go outside and wait because he was on the way (id.). One minute before the defendant shot Davis, Harold text messaged the defendant, "U ready?" (Id.) At 6:02 p.m., the defendant drafted, but did not send, a text message saying, "Yes" (id.). Harold was waiting outside the house when the defendant shot Davis (People's exhibit E, Harold Leader grand jury testimony).

The audio recording of the 911 call (People's exhibit A) is approximately 10 minutes long, and Davis spoke to the 911 dispatcher almost continuously for the entire call. The defendant is audibly crying in the background almost the entire time. At one point, Davis gave the defendant the phone, and the defendant spoke directly to the 911 dispatcher. When asked, the defendant denied being hurt, and she refused to go outside to separate herself from Davis. There are no sounds of any kind of altercation between the parties during the 911 call. Approximately 15 seconds before the 911 call ended, the defendant suddenly was no longer audibly crying in the background, and this was when Davis said that she had just gone into the{**79 Misc 3d at 750} other room, and he was concerned she might hurt herself.^[FN2] A few seconds later, the following is audible on the 911 recording: Davis exclaimed, "Oh my God! Oh my God! Oh my God! Oh my God! Oh my God, it's [loud bang] oh shit! She's [loud bang] Oh! Oh, oh, oh," and then the call ended abruptly at approximately 6:02 p.m. (People's exhibit A at 9:58-10:10). In the 911 call, the defendant did not ask for help or report that Davis had done anything to her.

The ballistics report (People's exhibit B, ballistics rep) established that the defendant exited the bedroom with the shotgun, fired a first shot from the bedroom doorway at Davis, fired a second shot from near the doorway at Davis, fired a third shot from outside the bedroom door and struck Davis in the shoulder, and then fired a fourth and fifth shot 6-8 feet from the bedroom door as Davis crouched behind a half-wall. Of these last two rounds, one entered Davis through the mid-upper back, and the other entered on the right side of his back. All of the pellets from these shots struck Davis in the back (People's exhibit B; People's exhibit C, Medical Examiner's rep). This suggests that the defendant was shooting while pursuing Davis through the house, and it establishes that his back was turned to her for the last two shots, and she was at a relatively close range when firing into his back because the pellets did not scatter.[*6]

Approximately 10 minutes after the shooting, the defendant called 911 and spoke with the dispatcher again. The dispatcher asked the defendant why she shot him, and the defendant said that Davis did not do anything to hurt her, instead stating, "[Inaudible] beat the crap out of him he wouldn't leave me alone" (People's exhibit A; People's exhibit I, tr of defendant's 911 call).

During her police interview hours after the homicide, the defendant explained that she shot Davis because he was "lying" to 911, pretending that she hurt him,^[FN3] and because

"I was going to get in trouble. So I went and got the gun and I asked him to stop. And he was still{**79 Misc 3d at 751} telling her that I did it and that I was lying. And I pulled the trigger . . . . And it went off. And then I did it again. And then he fell. He wasn't saying anything anymore" (People's exhibit J at 29-31; see also 36-38).

The defendant said that she got the shotgun from the bedroom while Davis was in the living room on the phone with 911 (id. at 39, 41) because Davis "was trying to get me taken away" and "because he wanted me to leave the house and I wouldn't" (id. at 39). When she returned to the living room with the shotgun in hand, Davis was "looking right at me. I asked him to stop and he just wasn't. He kept—he just kept it up . . . [a]fter I had the gun" (id. at 41). After she had the gun, she pointed it at him and asked him to stop, and he still didn't stop talking (id. at 41), and "[h]e just won't be quiet" (id. at 42). "Even when I cocked it he didn't shut up" (id. at 48). Then, she said, "I just kept shooting until he fell and he was quiet . . . . I know I shouldn't have. And I can't take it back. But he wouldn't stop . . . . He wouldn't stop and I was going to go away"^[FN4] (id. at 44). She said that when she first pulled the trigger, Davis was not coming at her, but rather, "He was standing there [on the phone with 911] and he just wouldn't stop. He wouldn't shut up. He wouldn't, he wouldn't stop lying to [911]" (id. at 44, 71).

The defendant was 40 years old when she killed Davis. At that time, she had two adult children who lived in their own homes. Davis was 42 years old and had a 12-year-old daughter (People's exhibit J at 28, 20:07:20 [video] [defendant told police about Davis' "punk rotten little 12-year-old"]).

The contested issues in this case are: (1) whether there is sufficient proof that the [*7]defendant was a victim of substantial, qualifying domestic abuse at the time of the homicide, (2) if so, whether there is sufficient proof that abuse was a significant contributing factor to her killing Davis, and (3) whether, considering the nature and circumstances of the crime and the history, character, and condition of the defendant, a sentence of{**79 Misc 3d at 752} imprisonment under the normal sentencing statutes would be unduly harsh.

The DVSJA amended Penal Law § 60.12 and enacted CPL 440.47, which both govern the adjudication of DVSJA applications. The scope of a DVSJA hearing is broad: "[t]he court may consider any fact or circumstances relevant to the imposition of a new sentence which are submitted by [either party]" (CPL 440.47 [2] [e] [emphasis added]; NY Senate, Regular Sess, Mar. 12, 2019 tr at 1569-1574, available at https://www.nysenate.gov/calendar/sessions/march-12-2019/session-3-12-2019 [courts directed to consider the "full picture" and all the circumstances facing the defendant]; see People v Smith, 69 Misc 3d 1030 [Erie County Ct 2020]).

The burden of proof rests upon the applicant to prove by a preponderance of the evidence (People v Addimando, 197 AD3d 106, 112 [2d Dept 2021]) 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 . . . household . . . ; (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 [the normal sentencing statutes] . . . would be unduly harsh" (Penal Law § 60.12 [1] [emphasis added]).

At the hearing, "[r]eliable hearsay" is admissible (CPL 440.47 [2] [e]). Because of the danger of a defendant manufacturing evidence favorable to her own position, the long-standing rule in New York is that a defendant's self-serving statements, when offered in her own favor, generally do not constitute reliable hearsay (see Latimer v Burrows, 163 NY 7, 9-11 [1900]; Jerome Prince, Richardson on Evidence § 8-110 [Farrell 11th ed 1995, 2008 Supp]; People v Moses, 197 AD3d 951, 954 [4th Dept 2021], lv denied 37 NY3d 1097 [2021], denied reconsideration 37 NY3d 1163 [2022]; People v Oliphant, 201 AD2d 590, 590-591 [2d Dept 1994], lv denied 83 NY2d 875 [1994]).

The legislature intended that DVSJA relief would be awarded on the basis of "objective" evidence after the applicant satisfied a high standard of proof (see NY City Bar, Rep on Legislation by the Crim Just Operations Comm, Dom Violence Comm & Pro Bono & Legal Servs Comm, Bill Jacket, L 2019, ch 31 at 15{**79 Misc 3d at 753} ["the applicant would . . . have to satisfy a very high standard of proof to demonstrate objective eligibility for relief" (emphasis added)]; Assembly Mem in Support, Bill Jacket, L 2019, ch 31 at 6 ["an incarcerated survivor is . . . required to include evidence corroborating the claim she was, at the time of the offense, a victim of domestic violence"]). Most published decisions that have awarded DVSJA relief so far have done so in light of independent, objective evidence corroborating the applicant's allegations.^[FN5]

Additionally, this court, having been "in the best position to assess the credibility of the witnesses" as the finder of fact, has discretion to credit or "discredit the testimony of [a] defendant" (People v Contreras, 154 AD3d 1320, 1321 [4th Dept 2017]; see also People v St. John, 215 AD3d 1267 [4th Dept 2023]). Corroboration becomes even more important where "the testimony of the witness [was] . . . inconsistent with other testimony or evidence in the case"; where a witness has intentionally falsely testified regarding material facts, has omitted material facts, has given multiple inconsistent statements, and has a compelling motive to lie, corroboration becomes vital (see CJI2d[NY] Credibility of Witnesses at 3, https://www.nycourts.gov/judges/cji/1-General/CJI2d.Credibility.pdf [2023]).^[FN6]{**79 Misc 3d at 754}

a. Substantial Physical, Sexual, or Psychological Abuse at the Time of the Offense

i. Temporality

The first element in the DVSJA is that "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" (Penal Law § 60.12 [1] [a] [emphasis added]). In this case, it is not contested that the defendant and Davis were members of the same household. Thus, for purposes of this case, this first element breaks down into three prongs: temporality, substantiality, and a qualifying type of abuse.

[1] If credited, the defendant's claims of Davis abusing her satisfy the temporality prong because the allegedly abusive relationship with Davis was ongoing at the time of the homicide (see People v Williams, 198 AD3d 466, 466-467 [1st Dept 2021], lv denied 37 NY3d 1165 [2022]). However, the sexual abuse which she claims to have suffered during her childhood at the hands of her stepfather does not satisfy the temporality element. "Although the DVSJA does not require that the abuse occur simultaneously with the offense . . . , the 'at the time of' language must create some requirement of a temporal nexus between the abuse and the offense or else it is meaningless" (Williams at 466-467). Here, the alleged childhood abuse is far removed in time with no articulated nexus between it and the homicide. The alleged childhood abuse ended when [*8]the defendant was a teenager, and she was 40 years old when she killed Davis. The defendant did not establish that there was any continued relationship between the defendant and her stepfather at the time of the homicide (Williams at 467), and there was no other compelling nexus articulated linking the child abuse to the homicide. Thus, the claimed childhood abuse was too far removed in both time and causal relationship to qualify for purposes of this DVSJA application.

ii. Substantiality

The next prong is that the physical, sexual, or psychological abuse was "substantial." The legislature did not define "substantial." To the extent the defendant's arguments relied upon People v Addimando (197 AD3d 106 [2d Dept 2021]) and{**79 Misc 3d at 755} its progeny, the court declines to follow that standard because it omitted a core element from Penal Law § 60.12. In Addimando, the Second Department paraphrased section 60.12, saying that it established

"three factors for a court to consider, namely: (1) whether the defendant was a victim of domestic violence inflicted by a member of the same family or household [at the time of the offense]; (2) whether the abuse was a significant contributing factor to the defendant's criminal behavior; and (3) whether, having regard for the nature and circumstances of the crime and the history, character, and condition of the defendant, a sentence in accordance with the customary statutory sentencing guidelines would be unduly harsh" (People v Addimando, 197 AD3d 106, 111 [2d Dept 2021]; People v Burns, 207 AD3d 646, 648 [2d Dept 2022]).

When it reformulated the statutory language, Addimando jettisoned an entire element of the statute: that the defendant was "subjected to substantial physical, sexual or psychological abuse" (Penal Law § 60.12 [1] [a] [emphasis added]). By removing the substantiality requirement, Addimando drastically lowered the standard and departed from the black letter law enacted by the legislature. Subsequent decisions in the Second Department have relied upon Addimando's incorrect standard and have accordingly bypassed analysis—or, sometimes, even a passing mention—of the substantiality element (see e.g. People v Burns, 207 AD3d 646, 648 [2d Dept 2022]; Matter of Maria S. v Tully, 214 AD3d 988, 990-991 [2d Dept 2023]; People v Theresa G., 78 Misc 3d 1139 [Sup Ct, Kings County 2023]). However, "[i]n statutory interpretation cases, the Court's 'primary consideration "is to ascertain and give effect to the intention of the Legislature," ' " and "[t]he statutory text is the clearest indicator of legislative intent . . . 'meaning and effect should be given to every word of a statute' . . . and . . . an interpretation that renders words or clauses superfluous should be rejected" (Matter of Mestecky v City of New York, 30 NY3d 239, 243 [2017]).

To determine the meaning of "substantial," this court first considers the ordinary meaning of the statutory words, and then the court turns to the legislative history (see People v Holz, 35 NY3d 55, 59 [2020]; Riley v County of Broome, 95 NY2d 455 [2000]; People v Mitchell, 38 NY3d 408 [2022]; People v Brown, 214 AD3d 823, 825 [2d Dept 2023] ["the plain meaning {**79 Misc 3d at 756}of the statutory text is the best evidence of legislative intent"]). Merriam-Webster's Dictionary defines "substantial," in relevant part, as "consisting of or relating to substance"; "not imaginary or illusory"; "important, essential"; "considerable in quantity: significantly great" (Merriam-Webster.com Dictionary, substantial [https://www.merriam-webster.com/dictionary/substantial (last accessed Apr. 27, 2023)] [emphasis added]). Thus, it is not sufficient to merely prove any conduct which technically qualifies as[*9]"abuse." In a DVSJA application, the severity of abuse must be greater than that. Otherwise, the word "substantial" is superfluous (Mestecky, 30 NY3d 239).

The DVSJA's legislative history supports this interpretation. The bill was enacted to give relief to a small number of survivors who experienced severe, serious abuse of the worst kind. The legislative history states that the bill exists to redress the fallout from grave abuse: "9 out of 10 incarcerated women have experienced severe physical or sexual violence in their lifetimes; 6 out of 10 experienced serious physical or sexual violence during childhood; 75% suffered severe physical violence by an intimate partner during adulthood; and 37% were raped before their incarceration" (Assembly Mem in Support, Bill Jacket, L 2019, ch 31 at 5-6 [emphasis added]; see also NY Senate, Regular Sess, Mar. 12, 2019 tr at 1570-1571 ["When you have someone who has suffered in a marriage for 18 years—and for most of those years they have been abused in every which way possible—and they have committed a crime . . . because of what they were going through, we really need to take that into consideration. Sometimes it's because we have no choice" (emphasis added)]).

[2] This narrow construction is further supported by the fact that the legislature intended that the DVSJA would only apply to a very small pool of eligible applicants:

"The DVSJA . . . would afford the court the discretion to exercise lenity in fashioning a sentence in those cases it found meriting such relief . . . .

"It is estimated that the DVSJA would affect a relatively small number of offenders. . . . The applicant would . . . have to satisfy a very high standard of proof to demonstrate objective eligibility for relief . . . . Accordingly, the numbers of applicants for alternative sentencing and for re-sentencing under the DVSJA are expected to be a small fraction of the number of persons seeking relief under{**79 Misc 3d at 757} [other sentencing relief statutes]" (NY City Bar, Rep on Legislation, Bill Jacket, L 2019, ch 31 at 14-15).

The legislature estimated that, as of a mere four years ago in 2019, "the total pool of incarcerated women and men [across the entire state] eligible to apply for re-sentencing [under the DVSJA] has been estimated at 360, and the annual number of women and men eligible to seek alternative sentencing has been estimated at 480" (NY City Bar, Rep on Legislation, Bill Jacket, L 2019, ch 31 at 15). If "substantial" does not carry its ordinary dictionary meaning and require a DVSJA application to prove abuse which was "considerable in quantity" or "significantly great," then any abuse whatsoever qualifies, including a single insult or slap. Such a broad definition would capture nearly every inmate in the state, resulting in an exponentially larger pool of eligible inmates than the legislature explicitly contemplated. Thus, by using the word "substantial," the legislature intended to limit DVSJA's reach to those inmates who suffered the most serious physical, sexual, or psychological abuse—that which is comparable in severity to the crimes explicitly referenced by the legislature: rape or severe physical abuse.

This is the result reached in most of the published DVSJA decisions so far. For example, in People v D.M. (72 Misc 3d 960, 965 [Sup Ct, Queens County 2021]), the abuser regularly and violently assaulted the defendant and left bruises, hand marks, popped eye blood vessels, choke marks, scars, bite marks, and stab marks, and he regularly engaged in severe emotional abuse including checking her body for evidence of infidelity, urinating on her clothing, threatening to kill her and her family, and forcing her to abuse cocaine and heroin in order to keep her in an "altered state" of compliance.[*10]

In People v Smith (69 Misc 3d 1030 [Erie County Ct 2020]), the 71-year-old abuser severely sexually abused the 16-year-old defendant, including sexual abuse, rape, and forced prostitution. The abuser threatened to kill her with a gun he kept in the house if she did not have sex with him, and he slapped her across the face and pushed her toward the bedroom despite her refusals, triggering a physical fight in which the defendant strangled him because she was afraid he was going to get his gun.

In People v S.M. (72 Misc 3d 809 [Erie County Ct 2021]), the abuser physically abused the defendant daily by hitting her in the face, splitting her lip, dragging her by the hair, pinning her{**79 Misc 3d at 758} to the floor and headbutting her so badly that her eyes and forehead were partially swollen shut the following day. He dragged her down stairs and pistol-whipped her in the head to the point where she ended up in the hospital. He also severely emotionally abused her every day by calling her names, demanding she clean the blood off herself after he beat her, attempting to separate her from her child, threatening her, and taking her child from her after pistol-whipping her.

In People v Addimando (197 AD3d 106 [2d Dept 2021]), the abuser physically and sexually abused the defendant by burning her with a heated metal spoon, forcing her to have sex by strangling her, bruising her breasts, forcing her to watch violent pornography and then reenact the scenes, hitting her, forcibly vaginally and anally penetrating her with a wine bottle and plastic knives, forcibly and violently raping her, and threatening to kill her and make her children orphans.

Thus, this court finds that, to show "substantial" physical, sexual, or psychological abuse within the meaning of Penal Law § 60.12, a defendant must prove abuse of a kind, degree, and severity which is "considerable in quantity" and "significantly great." It must be severe enough to be deemed "important" or "essential."

1. Discussion

In the case at bar, the defendant has not offered sufficient reliable evidence of substantial physical, sexual, or psychological abuse. Given the many unexplained material contradictions between the defendant's narrative—including that testified to under oath before this court—and the objective proof in the record, the court does not find the defendant to be a veracious witness. Nevertheless, the court has considered the defendant's many allegations and examined the record for sufficient supporting proof.

[3] First, there is insufficient evidence of substantial physical abuse. The only physical abuse alleged was when Davis allegedly "strangled" the defendant to prevent her from leaving the house. She testified under oath that, as she was trying to leave the house, Davis stopped her—"he had me up against the cupboard and was choking me. He then put his forearm against my throat." That version omitted an essential fact the defendant herself voluntarily divulged in her police interview and 911 call: Davis pinned her with his forearm only after she "lost it" (People's exhibit J at 35-37) and "beat the crap out of him" (People's exhibit A; People's exhibit I at 3) by punching him{**79 Misc 3d at 759} about the face and body so severely that she complained of painful knuckles several hours later (People's exhibit J at 35-37, 52-53, 76). The defendant's testimony did not even address this omission, let alone attempt to explain it. The court does not find sufficient credible proof of this allegation. Additionally, it is unclear whether Davis pinning her was Davis physically abusing her or simply an attempt to restrain the defendant from abusing him further. [*11]On this record, the court cannot find that this allegation satisfies the defendant's burden of proving substantial physical abuse. The defendant clearly stated multiple times that Davis was never physical with her any other time (see n 1, supra).

[4] Second, there is insufficient proof of substantial sexual abuse. The defendant alleged that her stepfather sexually abused her during her childhood. Assuming, arguendo, that the temporal disconnect between the alleged child abuse and the homicide was not dispositive (discussed supra), there is insufficient reliable proof of substantial sexual abuse. There was no corroboration offered for this complaint other than the defendant's own self-serving statements that she made after being charged with murder (see e.g. defendant's exhibit B, presentence investigation; defendant's exhibit D, Gill & Walker psychiatric rep). The defendant testified that she told other people about this alleged abuse before she killed Davis, but there was neither testimony nor evidence offered from anyone but the defendant regarding those alleged disclosures. The defendant testified that she wrote about the abuse in her journal, but none of those journal entries were offered into evidence, and there was no explanation offered for their absence. The journal entries which were received into evidence contained no reference to this abuse.

As noted above (see n 1), the court does not find that the defendant has alleged sexual abuse by Davis. Thus, this court does not find that the defendant has offered sufficient proof of substantial sexual abuse.

[5] Third, there is insufficient proof of substantial psychological abuse. The defendant claimed that, in the spring of 2011, Davis threatened to kill her and showed her where he would leave her body. There is no evidence other than the defendant's self-serving statements to establish that this incident ever happened. In the police interview, the detective asked whether there was anything else "important" that occurred between her and Davis, and she did not mention this incident despite her{**79 Misc 3d at 760} attention being drawn specifically to this issue and despite her freely and openly discussing many other troubling incidents in her life with the detective over the course of the interview (see People's exhibit J at 81; see generally People v Bornholdt, 33 NY2d 75 [1973]). There is no mention of it in any of her diary entries, despite the fact that the entries encompassed the time frame from November 3, 2010, to September 19, 2012 (People's exhibit N, defendant's diary). It was not mentioned in the text message conversations between the defendant and Davis (People's exhibit M).

There is no evidence that the allegation was ever reported to anyone or recorded anywhere until after the homicide. The first time this allegation surfaced was the January 2013 interviews with defense psychiatrist Dr. Lazzaro when he was interviewing the defendant to determine whether she qualified for the defense of extreme emotional disturbance (defendant's exhibit C at 3). By that point, the defendant was already indicted for murder, she already had the benefit of legal counsel for months, and she was actively attempting to mitigate her dire legal situation by establishing that she was in an extreme emotional state at the time of the murder. Also, by the time of this initial complaint, she had months' worth of time for "studied reflection" and possible fabrication (see generally People v Johnson, 1 NY3d 302 [2003]; People v Haskins, 121 AD3d 1181 [3d Dept 2014]). Under these circumstances, the court does not find sufficient credible evidence of this complaint.

The defendant alleged other forms of psychological abuse, including claiming that Davis abused her by socially isolating her from family and friends. The record does not support this allegation. The defendant testified to having regular contact with her two adult children, [*12]neighbors, friends, and coworkers at her job. In the day-and-a-half leading up to the homicide, she visited her son and stayed overnight at his house. She testified that she maintained a friendship with her neighbors, visited them, gave them food, and carpooled with them to work. The defendant's Facebook profile included posts, photographs, and text message conversations depicting the defendant going on a family camping trip and socializing with friends and family (People's exhibit M). The defendant's diary (People's exhibit N) does not include any corroboration for the defendant's claims that Davis socially isolated her.

Even up to the time she shot Davis, the defendant was text messaging her friends and neighbors, Harold and Kathy Leader{**79 Misc 3d at 761} (People's exhibits D, F).^[FN7] The defendant even text messaged Harold 12 minutes before the homicide about the fact that Harold was on his way to pick the defendant up so she could stay at his house overnight and carpool to work with him in the morning (People's exhibit D). After she shot Davis, her first call was to her best friend "Susie" who "fixed me last time when I cut my wrist" (People's exhibit J at 31). Thus, there is insufficient proof of psychological abuse through social isolation.

The defendant also alleged that Davis abused her by exerting financial control and limiting her access to transportation. The defendant testified at length regarding the couple's varied financial and transportation problems. However, it is not clear whether the financial and transportation limitations which the defendant experienced were due to the couple's extremely limited finances or due to Davis' abuse. The defendant testified that their financial situation was so dire that she had sex with another man for money because "[w]e needed grain for the animals. I was at work on a break—it took a whole ten minutes." Additionally, the defendant testified that she "was required" to sell her house and give up many of her personal possessions when she moved in with Davis. The defendant's vague allegations of tight financial circumstances do not rise to the level of establishing financial control as a form of emotional abuse (compare People v D.M., 72 Misc 3d 960, 964-965 [Sup Ct, Queens County 2021] [defendant took control over defendant's bank accounts and withdrew from her Social Security to buy drugs, and she let him because she was afraid]). Thus, there is insufficient proof of psychological abuse through financial control and limiting access to transportation.

Defense counsel argued that Davis emotionally abused her by shooting and killing his own dogs outside of her presence and by shooting and killing "his mother's [feral] cats"^[FN8] and speculated that B.N. could have feared that she might have been next (defendant's post-hearing mem at 5). However, the defendant never testified that she actually had this fear, thus rendering defense counsel's argument speculative musings.{**79 Misc 3d at 762} Furthermore, the only evidence that these events ever happened is the defendant's wholly uncorroborated, self-serving statements.

More importantly, even if Davis did kill domestic animals, it is not at all clear that the conduct qualified as substantial abuse for purposes of the DVSJA. The defendant proudly admitted to slaughtering and butchering many of their animals alongside Davis (People's exhibit [*13]J at 79-81), so it is disingenuous for the defendant to now argue that she killed Davis because she was so traumatized by conduct that she happily participated in at the time.

The defendant also claimed that, minutes before the shooting, Davis cut his own arm as a form of psychological abuse, but the Medical Examiner did not locate any lacerations on his arm (People's exhibit C).

In sum, there is insufficient credible evidence that the defendant suffered substantial psychological abuse. Even if the defendant's allegations were assumed to be true, the defendant's allegations are not fairly comparable to the severe abuse contemplated by the legislature, such as being regularly beaten, bruised, bitten, burned, cut, pistol-whipped, stabbed, forced to use heroin and cocaine, raped or sodomized, forced into prostitution, having one's children kidnapped, being dragged down stairs, and being put in the hospital (see People v Addimando, 197 AD3d 106 [2d Dept 2021]; People v Smith, 69 Misc 3d 1030 [Erie County Ct 2020]; People v S.M., 72 Misc 3d 809 [Erie County Ct 2021]; People v Williams, 198 AD3d 466 [1st Dept 2021], lv denied 37 NY3d 1165 [2022]; People v D.M., 72 Misc 3d 960 [Sup Ct, Queens County 2021]).

[6] Finally, the court must address the defendant's expert proof. Psychiatrist Dr. Kelly Gill testified and opined that the defendant suffered substantial physical, sexual, or psychological abuse. The court does not find the defendant's expert testimony and proof persuasive. First, most of Dr. Gill's testimony and report duplicated the 2013 report of Dr. Thomas Lazzaro (defendant's exhibit C), which this court fully considered at the time of the original sentencing, and thus there is no compelling, new information that the court did not consider when imposing the original sentence nearly 10 years ago.

Second, the court does not find Dr. Gill's opinions and conclusions to be credible or reliable. Dr. Gill has never testified as an expert in any court. Dr. Gill testified in sweeping generalizations about patterns of domestic abuse without also engaging{**79 Misc 3d at 763} in a disciplined analysis of all of the facts and evidence in this case. Dr. Gill's findings and opinions wholly relied upon—and assumed the truth of—a version of events told to her by the defendant which was directly contradicted by abundant, objective evidence. For example,

• The defendant told Dr. Gill that, when Davis demanded she move out, the defendant passively obeyed and "ran to the bedroom to get some belongings" (defendant's exhibit D at 8, rep of Dr. Kelly Gill). However, the defendant said elsewhere that she patently refused to leave, and her refusal to leave was one of her main reasons for shooting Davis (People's exhibit J at 19-20, 26-27). There are numerous text messages between the defendant and Davis from hours before the shooting indicating that the defendant defiantly refused to leave (People's exhibit M at 1-2).

• The defendant told Dr. Gill that she attempted to leave the house, and Davis stopped her by strangling her (defendant's exhibit D at 8). The defendant omitted the material fact that Davis only pinned her by her neck after she "lost it," "beat the crap out of him," and punched him numerous times about the head and body so severely that, hours later during the police interview, she complained that her knuckles still hurt (People's exhibit J at 35-36, 52-53; People's exhibit A; People's exhibit I at 3).

• The defendant told Dr. Gill that, before the shooting, Davis was on the phone ridiculing her and that Davis "refused to indicate with whom he was speaking" (defendant's exhibit D at 8). But in the first recorded 911 call (People's exhibit A), the defendant spoke [*14]directly with the 911 operator for several minutes. Additionally, the defendant admitted that she shot Davis specifically because he was on the phone with 911 attempting to have her removed from the home and that she was going to "go away" because he was reporting her for assaulting him (People's exhibit J at 37-44).

• The defendant told Dr. Gill that she fired at the wall behind Davis "with the intent of getting him to back away from her. She has no memory of firing it more than one time" (defendant's exhibit D {**79 Misc 3d at 764}at 8). In the defendant's testimony before this court, the defendant admitted that she intentionally aimed the shotgun at Davis' body and intentionally "unloaded it," firing it at him five separate times. Dr. Gill testified that, before sitting in court listening to the defendant's testimony at this hearing, she did not know the defendant fired the gun five times.

This is only an illustrative list of the pervasive conflicts between the story the defendant told her psychiatrists—and this court—and the objective evidence elsewhere in the record.

Dr. Gill did not demonstrate that she was even aware of these material contradictions, let alone that she considered them when forming her conclusions and opinions. The doctor admitted that she never listened to Davis' 911 call, and she had no recollection of reading the transcript. She showed no knowledge of the defendant's 911 call. She admitted to never viewing the video of the defendant's police interview, and she demonstrated no knowledge of the transcript. She testified to having no recollection of the autopsy report, and she did not recall if she ever read it. She had no knowledge of the text messages between Davis and the defendant.

Dr. Gill testified that she relied heavily on Dr. Lazzaro's report (defendant's exhibit C), but that report suffered from the same flaws as Dr. Gill's analysis in that it took the defendant's self-serving narrative at face value. Finally, when asked on cross-examination, "How important . . . the objective established facts are" to her, Dr. Gill said that her attention was not "mainly focused" on those portions of the record because "those things are not disputed." Given that the expert proof failed to incorporate all of the relevant facts, information, and evidence and instead relied upon cherry-picked allegations from the defendant, the court cannot find that the expert proof in this case constituted objective, neutral, and reliable evidence. For all of these reasons, the court does not find the defendant's expert proof credible or reliable.

Having failed to tender sufficient proof that, at the time of the offense, the defendant was a victim of substantial physical, sexual, or psychological abuse, the defendant has thus failed to satisfy the first element of section 60.12.

b. Significant Contributing Factor

Even if there had been sufficient evidence of substantial physical, sexual, or psychological abuse, the defendant did not{**79 Misc 3d at 765} offer sufficient proof of the second element: that the "abuse was a significant contributing factor to the defendant's criminal behavior" (Penal Law § 60.12 [1] [b] [emphasis added]). The defendant did not testify as to what, if any, role the alleged abuse had in her killing Davis. Thus, the question before this court is: Under the DVSJA, what role (if any) must the alleged abuse have played in causing her to kill Davis? The legislature did not define "significant contributing factor." Prior to the DVSJA amendment, the statute required only that the "abuse was a factor in causing the defendant to commit such offense" (Penal Law § 60.12 [1] [b] [emphasis [*15]added]). Citing some trial court decisions,^[FN9] the defendant argued that the DVSJA eliminated any need whatsoever to show causation (defendant's post-hearing mem at 7 ["The language change eliminates the causal nexus requirement"]). The defendant argues that "significant contributing factor" means that "the effects of domestic violence were sufficiently important or meaningful to have likely helped bring about the defendant's criminal behavior" (id. at 6, quoting People v D.L., 72 Misc 3d 257, 264 [Columbia County Ct 2021]).

If no causation whatsoever is required, then that begs the question of what standard the court must apply. The parties proposed no answer, and the cases relied upon by defendant merely adopted the phrase "significant contributing factor" as the new standard without any analysis of what the new phrase means (see e.g. D.L., 72 Misc 3d at 264; D.M., 72 Misc 3d at 966). Those decisions simply compared the original, pre-DVSJA{**79 Misc 3d at 766} version of Penal Law § 60.12, observed that the DVSJA removed the word "causing," and, without considering the meaning or effect of any of the language that DVSJA added, concluded that the causation element was now eliminated (People v D.L., 72 Misc 3d 257, 264 [Columbia County Ct 2021]). Those decisions did not examine the plain meaning of the DVSJA's current language, and they did not consider the legislative history. When those factors are considered, it is clear that the legislature did not eliminate the causation requirement, and it did not lower the standard as the defendant argues. Rather, the legislature in fact raised the threshold to balance massive expansions the legislature made in other parts of the statute to obtain explicitly-stated objectives.

The ordinary meaning of the statutory words incorporates causation (see People v Eulo, 63 NY2d 341, 354 [1984]; People v Holz, 35 NY3d 55, 59 [2020]; People v Mitchell, 38 NY3d 408, 411 [2022]). According to Merriam-Webster's Dictionary, "significant" means "having or likely to have influence or effect: important"; "of a noticeably or measurably large amount"; "probably caused by something other than mere chance" (Merriam-Webster.com Dictionary, significant [https://www.merriam-webster.com/dictionary/significant (last accessed May 3, 2023)] [emphasis added]). "Contribute" means "to play a significant part in making something happen" (Merriam-Webster.com Dictionary, contribute [https://www.merriam-webster.com/dictionary/contribute (last accessed May 3, 2023)] [emphasis added]). "Contributing factor" means "something that helps cause a result" (Merriam-Webster.com Dictionary, contributing factor [https://www.merriam-webster.com/dictionary/contributing%20factor (last accessed May 5, 2023)] [emphasis added]). Thus, the plain language used in the statute did not dispose of causation. It incorporated it.

The legislative history requires causation. On the Senate floor, one of the sponsors said, "We have women who have spent 20 years or more in prison because they reacted to the violence that they were in—being a part of" (NY Senate, Regular Sess, Mar. 12, 2019 tr at 1569-1570 [emphasis added]). The DVSJA attempts to avoid the harsh results that can result from the justice system "punish[ing] domestic violence survivors who act to protect themselves from an abuser's violence" (Assembly Mem in Support, Bill Jacket, L 2019, ch 31 at 6 [emphasis added]). "All too often, when a survivor defends herself and her children, our criminal justice system responds with harsh punishment{**79 Misc 3d at 767} instead of with compassion and assistance" (id. [emphasis added]; see also NY Senate, Regular Sess, Mar. 12, 2019 tr at 1572-1573 ["when women are defending themselves against domestic violence . . . (w)e want to make sure that . . . the full picture is examined" (emphasis added)]).

"The consequences to children and society are especially severe when victims of domestic violence are incarcerated due to actions taken as a direct result of the violence they have experienced" (NY City Bar, Rep on Legislation, Bill Jacket, L 2019, ch 31 at 13 [emphasis added]). One of the sponsors also said, "When you have someone who has . . . committed a crime . . . because of what they were going through, we really need to take that into consideration" (NY Senate, Regular Sess, Mar. 12, 2019 tr at 1570-1571 [emphasis added]). The Bill Jacket stated,

"We are acutely aware of how abusers use fear and control to manipulate their victim, including manipulating victims to commit criminal activity directly leading to their present incarceration. Many incarcerated survivors have committed criminal activity to protect themselves from further violence, and others have convictions stemming from acts taken as a result of an abuser's coercion. One study [regarding female abuse victims] found that . . . nearly half had been coerced into committing crimes by their batterers as 'part of a structural sequence of actions in a climate of terror and diminished, violated sense of self' " (NY City Bar, Rep on Legislation, Bill Jacket, L 2019, ch 31 at 13 [emphasis added]).

Other parts of the Bill Jacket state that DVSJA includes "offenses committed due to coercion by, against or at the behest of an abuser" (Div of Budget Bill Mem, Bill Jacket, L 2019, ch 31 at 9 [emphasis added]).

Thus, the entire legislative history contemplates causation. It speaks of victims committing crimes because: they were "reacting" to abuse, "protect[ing]" or "defending" themselves or their children, acting "as a result of" abuse, or being "coerced" into committing crimes. There is no way to read this language and rationally conclude that causation has been "eliminated" as the defendant urges.

If "substantial contributing factor" does not require any degree of causation as the defendant urges, then any offender who has ever endured domestic abuse is eligible for DVSJA{**79 Misc 3d at 768} relief, even if there is no articulable link between the abuse and the criminal conduct. This would cast such a broad net that most offenders in the state would be eligible, not just the "small fraction" contemplated by the legislature.

Furthermore, a simple reading of the original statutory language alongside the amended text demonstrates that the legislature raised, not lowered, the standard. The original version required that the abuse merely be "a factor in causing the defendant to commit such offense" (Penal Law § 60.12 [1] [b] [emphasis added]). The current, amended version directs that the abuse was[*16]"a significant contributing factor to the defendant's criminal behavior" (id. [emphasis added]). By not including any modifying words between the word "a" and "factor," the original version did not give any description or limitation to what kind of factor the abuse must have been. Thus, before the DVSJA, the abuse could have been a minor factor or a major factor, significant or insignificant. It could be any kind of "factor" at all—so long as the abuse was "a factor in causing the defendant" to commit the crime.

[7] In contrast, the amended language added two modifying words: "significant" and "contributing." By adding those words, the statute now specifies what kind of "factor" the abuse must be under the new standard. No longer will any mere "factor" qualify. Minor factors are insufficient now, and insignificant contributing factors will not pass muster. Applying the plain dictionary meaning of the amended statutory words, the new standard is clear: the abuse must have been "likely to have [had an] influence or effect" on causing the defendant's criminal behavior. The abuse must have been "of a noticeably or measurably large amount," and it must have "play[ed] a significant part in making [the defendant's criminal behavior] happen."

This heightened standard was how the legislature balanced their primary objectives in enacting the DVSJA. As explained above, the legislature had two explicit goals in enacting the DVSJA: drastically expanding the category of offenses eligible for relief in order to obtain a more just result for victims of bona fide, severe domestic violence, but also ensuring that it would only be a low percentage of criminal offenders who would be eligible for DVSJA relief.

Thus, the DVSJA dramatically broadened the category of eligible offenses. Prior to the DVSJA, the only eligible offenses were certain homicides or assaults directed at the defendant's{**79 Misc 3d at 769} abuser (NY Assembly, Sess Proceedings, Mar. 4, 2019 tr at 10-11, 14-17; NY City Bar, Rep on Legislation, Bill Jacket, L 2019, ch 31 at 12). In contrast, under the DVSJA, the target or victim of the crime is irrelevant. Now, an inmate may seek relief for a crime committed against "a completely innocent third-party that has nothing to do with the abuse" (id. at 15). Similarly, except for a few enumerated offenses (Penal Law § 60.12 [1]), now it is irrelevant what crime a defendant committed: the DVSJA reaches crimes such as "hold[ing] up a liquor store," shooting, beating, or robbing an uninvolved third party, or breaking into a house (NY Assembly, Sess Proceedings, Mar. 4, 2019 tr at 16-17). Thus, this expansion reaches almost every offense in the penal system.^[FN10]

Considering that dramatic expansion, the question then was which offenders would be eligible for such expansive relief. The legislature intended that only a small number of criminal offenders would be eligible for DVSJA relief.

"The DVSJA . . . would afford the court discretion to exercise lenity in fashioning a sentence in those cases it found meriting such relief . . . .

"It is estimated that the DVSJA [*17]would affect a relatively small number of offenders. . . . The applicant would . . . have to satisfy a very high standard of proof to demonstrate objective eligibility for relief . . . . Accordingly, the numbers of applicants for alternative sentencing and for re-sentencing under the DVSJA are expected to be a small fraction of the number of persons seeking relief under the DLRA [drug offender resentencing] legislation" (NY City Bar, Rep on Legislation, Bill Jacket, L 2019, ch 31 at 14-15 [emphasis added]).

Given the expansive category of offenses eligible under the DVSJA, the only way to not have nearly every criminal offender in New York State eligible for DVSJA relief was to raise the standard those offenders must satisfy. Thus, the legislature{**79 Misc 3d at 770} added "significant contributing factor" to create a minimum threshold that did not exist in the prior version of the statute.

This construction is also in harmony with the outcomes reached in most of the existing DVSJA case law. In each case, there was a compelling, articulated causal nexus between the abuse and the crime in question. In People v Addimando (197 AD3d 106 [2d Dept 2021]), there was evidence of how the alleged abuse contributed to the crime. The abuse in that case was horrifically severe (discussed supra). The defendant "testified that she was 'pretty sure [the decedent] was going to kill' her" (id. at 116). The night of the shooting, the abuser made detailed threats to kill her, he described how he would do it, then he "pushed her down, shoved his penis into her mouth, pulled her by her throat, and raped her, causing her to bleed vaginally" (id. at 117). Immediately before she shot him, he said, "I'm going to kill you, I'm going to kill myself, and then your kids have no one" (id. at 117). That defendant testified, " '[a]s soon as he said that,' she 'took one last step towards him, . . . lunged, and . . . pulled the trigger' " (id.).

In People v S.M. (72 Misc 3d 809 [Erie County Ct 2021]), the abuser forced the defendant to act as a getaway driver for numerous robberies. He had severely physically beaten her many times in the past (discussed supra). When the defendant tried to stay home with her child instead of being a getaway driver, the abuser "grabbed her by the hair and dragged her back to the vehicle, insisting she drive" (id. at 812). She responded by getting into the passenger's seat, at which time the abuser "headbutted her and struck her in the face, causing her to bleed" (id.). While they were driving, the abuser "demanded [she] pull the car over when they identified someone they wanted to rob" (id.).

In People v D.M. (72 Misc 3d 960 [Sup Ct, Queens County 2021]), the defendant helped her abuser commit a murder/kidnapping because the abuser directed her and threatened her the entire time they were committing the homicide. In People v D.L. (72 Misc 3d 257 [Columbia County Ct 2021]), the court found that the sexual abuse the defendant endured "likely helped bring about the defendant's criminal behavior" (id. at 264). Similar causation has existed in nearly all of the cases that have addressed this element so far.

i. Discussion

[8] Here, the defendant has not met her burden of showing that the domestic abuse was a significant contributing factor to{**79 Misc 3d at 771} her killing Davis. Glaringly absent from the record is any [*18]explanation from the defendant^[FN11] of how the alleged abuse contributed to her shooting Davis. On the contrary, the evidence suggests that it was actually the defendant's abuse of Davis that caused the shooting. The court credits the defendant's initial voluntary statements made immediately after the shooting, as opposed to her current inconsistent statements made after years of reflection. The defendant said she shot Davis because she had just assaulted him, he was reporting her to 911 for assaulting him, and she wanted to silence him.

The defendant said that she shot him because he would not "shut up" while on the phone with 911 (People's exhibit J at 35-36, 41, 44, 48, 52-53, 71), because he was in the process of reporting her to 911 for just hitting and injuring him, and because he feared the defendant might use one of the weapons in the house to harm herself (id. at 48). She shot him because she feared she would "go away" due to violating her harassment, second degree adjournment in contemplation of dismissal when she hit him (id. at 29-31 ["he made like I hurt him. And he knew I was going to get in trouble. So I went and got the gun and I asked him to stop"], 35-38, 44, 53). She shot him because he was attempting to have her removed from the house after she refused to leave (id. at 39). She said, "I just kept shooting until he fell and he was quiet . . . . I know I shouldn't have. And I can't take it back. But he wouldn't stop . . . . He wouldn't stop and I was going to go away"^[FN12] (id. at 44 [emphasis added]). In stark contrast to the defendant in Addimando whom the decedent-abuser threatened to kill immediately before that defendant pulled the trigger (Addimando, 197 AD3d at 117), this defendant said that, even at the moment when she pulled the trigger for the first time, Davis was not doing anything more than talking to the 911 operator. The defendant said, at that moment, he was "looking right at me. I asked him to stop [talking] and he just wasn't. He kept—he just kept it up . . . [a]fter I had the gun . . . [h]e just won't be quiet" (People's exhibit J at 42, 71).

{**79 Misc 3d at 772}The defendant never claimed that she killed Davis because she feared he would hurt her, let alone kill her. Indeed, she did not testify that she ever feared he would kill or hurt her or someone else. The defendant was steadfast that, other than the previously-discussed strangulation allegation, Davis was never physically violent with her. In the 911 call, the operator directly asked if she shot Davis because he hurt her, and the defendant denied it, saying "[Inaudible] beat the crap out of him he wouldn't leave me alone" (People's exhibits A, I). When the probation officer conducting her presentence investigation "asked if she reached for the gun because she snapped or because she felt that he would not let her leave, she stated that she didn't know. When . . . asked what she was feeling when she shot him, she stated that she didn't know" (defendant's exhibit B at 3). Even her first psychiatric examiner noted only "humiliation" suffered by the defendant from Davis demanding she leave their home, stating [*19]that the defendant "only recalls being made fun of by the victim at the time of the offense while he was on the telephone" (defendant's exhibit C at 1).

The defendant never explained how the alleged abuse significantly contributed to her killing Davis. She never explained why she left the room—where Davis was actively speaking to 911—and walked into the other room, picked up the shotgun, returned to the room with Davis still on the phone with 911, and then cocked, aimed, and fired the gun five separate times with 911 still on the phone. When asked during her testimony before this court why she did not ask the dispatcher for help, she claimed under oath to this court that she did not know it was 911 on the phone. That explanation is not credible in light of the recorded 911 call where she spoke directly to the 911 operator mere minutes before (People's exhibit A at 6-8), the fact that she admitted numerous times to police that she knew Davis was talking to 911 (People's exhibit J at 29-41), and the fact that she shot him precisely because it was 911 he was speaking to (People's exhibit J at 44). Additionally, there was also no explanation of why, when she went into the bedroom to get the shotgun, she did not simply lock herself inside the bedroom with the gun and wait for police to arrive.

On this record, there is insufficient proof that the alleged abuse was a significant contributing factor to the defendant's criminal behavior, and the defendant has thus failed to satisfy paragraph (b) of section 60.12 (1).{**79 Misc 3d at 773}

c. Whether the Circumstances of the Crime and the History, Character, and Condition of the Defendant Render a Sentence under Normal Sentencing Statutes Unduly Harsh

[9] Finally, assuming arguendo that the defendant was able to satisfy the first two elements of the statute, which this court finds that she has not, paragraph (c) of Penal Law § 60.12 (1) requires a court to consider "the nature and circumstances of the crime and the history, character and condition of the defendant," and determine whether "a sentence of imprisonment pursuant to [normal sentencing statutes] would be unduly harsh" (Penal Law § 60.12 [1] [c]). In this case, the nature and circumstances of the crime are violent and egregious. The defendant racked, aimed, and fired a shotgun at an unarmed man five separate times, shooting him in the back multiple times. Davis was not verbally or physically threatening the defendant or behaving aggressively toward her when she shot him. Rather, he was on the phone with 911 honestly reporting that the defendant had just assaulted him and stating that he feared she was in an unstable state and might use some of the many weapons in the home. Along with the gruesome nature of the crime itself, the fact that the defendant shot Davis so many times while she knew he was actively speaking to 911 demonstrates an audacity and cognitive dissonance that bodes poorly for the defendant's prospects at rehabilitation.

The history, character, and condition of the defendant militate against reducing the defendant's sentence. The legislature intended that the DVSJA would provide relief to individuals who posed "no [risk] to public safety" and constituted an "extremely low [risk of] recidivism" (NY City Bar, Rep on Legislation, Bill Jacket, L 2019, ch 31 at 14). For that reason, the grant of a reduced sentence would pose "no compromise to public safety" (Bill Jacket, L 2019, ch 31 at 7, 14 ["The DVSJA would not mandate relief for eligible offenders, nor even presume their entitlement to it. Rather, it would afford the court the discretion to exercise lenity . . . where . . . the court determines that there is no threat to public safety"]). Although the defendant has successfully completed treatment programs while incarcerated, there are numerous aspects of the defendant's history, character, [*20]and condition that raise grave concerns regarding the risk she may pose to public safety if released early.

The defendant chronically refuses to take responsibility for her actions and habitually minimizes her behavior and shifts{**79 Misc 3d at 774} blame. During her testimony, the defendant repudiated her guilty plea by claiming that she did not intend to kill Davis, despite also admitting that she intended to shoot at his body five times with a shotgun. When the prosecutor confronted her with this inconsistency during cross-examination at the hearing, the defendant had a particularly troubling outburst:

Prosecutor: "But you did kill him—you fired the gun five times—"

Defendant: "I did sir, I unloaded it." (Emphasis added.)

The chilling, inhumane nature of the defendant's tenor when she said she "unloaded it" cannot be overstated. Her demeanor was unflinching, self-righteous, self-assured, and utterly devoid of remorse for having murdered Davis.

Since her conviction, the defendant's conduct within the Department of Corrections and Community Supervision (DOCCS) also raises concerns that the defendant has not been truly humbled by her conviction and incarceration and that she continues to lack insight into her conduct. Since her conviction, the defendant has been cited for multiple tier violations. In addition to repudiating her guilty plea, the defendant denied responsibility for multiple tier violations she received while incarcerated. She said she received "[t]he first [ticket] . . . for being a good person." She stated her second infraction was because she "has a shy bladder" and was physically incapable of urinating when directed to by DOCCS officers. She testified that her third ticket was because she "yelled at officers for letting me get violated by another inmate coming in [the stall] while I was peeing."

Courts "may, in addition [to the submissions of the parties,] consider the institutional record of confinement" of an applicant in determining whether an applicant warrants relief (CPL 440.47 [2] [e]). That review can include the "applicant's disciplinary history" (CPL 440.47 [2] [e]). This court is not troubled as much with the number or nature of tickets as her reactions to them. The court is cognizant that rehabilitation takes time and does not expect perfection once a person is incarcerated. However, the court needs to see personal, emotional, and moral growth and consistency. The defendant demonstrated the opposite. Indeed, the defendant's actions affirm that she continues to be either unwilling or unable to accept that she has engaged in improper conduct, raising concerns that she will continue to engage in troubling behavior on the streets without fear of repercussions since every adverse{**79 Misc 3d at 775} action taken against her was the fault of someone other than herself.

The defendant's minimization of her criminal actions, her lack of remorse for killing Davis, and her pervasive lack of candor to this court are poor indicators of her rehabilitation and her prospects for lawful behavior if released early (see People v White, 153 AD3d 1565, 1567 [4th Dept 2017] ["a defendant's failure to accept responsibility for . . . her actions is a factor upon which the court may rely in imposing sentenc(ing)"]; McKune v Lile, 536 US 24, 36 [2002] ["rehabilitation is a legitimate penological interest that must be weighed against the exercise of an inmate's liberty . . . . Acceptance of responsibility . . . demonstrates that an offender 'is ready and willing to admit his crime and to enter the . . . system in a frame of mind that affords hope for success in rehabilitation' "]; People v Wilson, 126 AD2d 970, 971 [4th Dept 1987] [court properly imposed the maximum sentence given "the heinous nature of the crime and the absence of an [*21]expression of remorse"]; People v Cottom, 207 AD3d 1243, 1244 [4th Dept 2022] [although defendant pleaded guilty, he "subsequently made statements . . . in direct contradiction to his guilty plea by denying that he had engaged in any illegal activity. Defendant's 'contradictory statements, considered together, do not reflect a genuine acceptance of responsibility' " (citations omitted)]; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006] ["An offender who does not accept responsibility . . . or minimizes what occurred is a poor prospect for rehabilitation" because "an offender's ability to identify and modify the thoughts and behaviors that are proximal" to her "misconduct is often a prerequisite to stopping that misconduct"]).

The defendant's lack of acceptance of responsibility is even more troubling given the amount of treatment she completed. Because she completed rehabilitative programs, she has had every opportunity to recognize the flawed thinking that made her kill Davis. However, it appears to have had little effect. The defendant testified that she credits the treatment and counseling programs with helping her realize that she was a victim of domestic abuse, but she utterly bypassed any realization or insight into her own role as a perpetrator.

Additionally, the defendant displayed fundamentally flawed thought patterns that constitute a continued danger to the community. During her testimony, she proudly admitted to{**79 Misc 3d at 776} pointing a shotgun at Davis and to intentionally aiming and "unloading it," firing five times at his body and striking him thrice. In the next breath, the defendant fervently claimed that she did not intend to kill him. The court has grave concerns about granting early release to a convicted murderer who believes that firing a shotgun at a living human five times can reasonably have any outcome other than death.^[FN13]

In light of all of the foregoing, the court finds that the sentence was not harsh or excessive (see People v Crispell, 203 AD3d 1393 [3d Dept 2022]; People v Miller, 160 AD3d 1040, 1044 [3d Dept 2018], lv denied 32 NY3d 939 [2018]; see also People v Newkirk, 133 AD3d 1364, 1365 [4th Dept 2015] ["We reject defendant's contention . . . that the sentence is unduly harsh and severe"], lv denied 26 NY3d 1148 [2016]).

Therefore, for the aforementioned reasons, the court does not find the defendant has met her burden under Penal Law § 60.12 and CPL 440.47 to warrant resentencing.

Accordingly, it is ordered that the defendant's motion for resentencing is denied in all respects.