Criminal Court of the City of New York, Queens County, April 30, 2019

The Legal Aid Society, Criminal Appeals Bureau, New York City (Elizabeth L. Isaacs of counsel), for defendant.

Richard A. Brown, District Attorney, Kew Gardens (Kathryn E. Mullen of counsel), for plaintiff.

From 2005 to 2013 defendant^[FN1] was arrested and charged in {**64 Misc 3d at 346}Queens County with prostitution (Penal Law § 230.00) in six cases^[FN2] and loitering for the purpose of engaging in a prostitution offense (Penal Law § 240.37) in another case.^[FN3] She was also charged in a separate case with one count of assault in the third degree (Penal Law § 120.00) and a count of harassment in the second degree (Penal Law § 240.26 [1]).^[FN4] Defendant was convicted in all eight cases by pleading guilty either to disorderly conduct,^[FN5] prostitution^[FN6] or loitering for the purpose of engaging in a prostitution offense.^[FN7] Defendant now moves under Criminal Procedure Law § 440.10 (1) (i) and (6) to vacate the judgments of conviction entered in each case and dismiss the filed accusatory instruments, arguing that she was compelled and coerced to engage in the charged crimes because she was a victim of sex trafficking [*3]under Penal Law § 230.34 for the entire period from 2005 through 2013.

The People consent to vacatur in only four of the cases (those between 2007 and 2013), conceding that the defendant was a victim of sex trafficking during that time period.^[FN8] The People contest vacatur of the cases commenced in 2005 and 2006 when defendant asserts that she was living with her first trafficker, "S," on the grounds that defendant has failed to establish that she was a victim of sex trafficking at the time of the underlying arrests.^[FN9] The People also contest vacatur of the judgment entered in a 2008 case based upon the fact that the arrest charges of assault in the third degree and harassment in the second degree in that case were not prostitution-related and therefore preclude the relief requested.^[FN10]

In 2010, New York became the first state in the country to pass a law that recognized the existence of sex trafficking victims and the harmful impact that their convictions for prostitution-related offenses had on their lives. New York's{**64 Misc 3d at 347} post-conviction statute, Criminal Procedure Law § 440.10, was amended to allow sex trafficking victims to vacate their convictions if they could establish that

"the arresting charge was under section 240.37 (loitering for the purpose of engaging in a prostitution offense . . . ) or 230.00 (prostitution) or 230.03 (prostitution in a school zone) of the penal law, and the defendant's participation in the offense was a result of having been a victim of sex trafficking under section 230.34 of the penal law [New York's sex trafficking statute], sex trafficking of a child under section 230.34-a of the penal law . . . , compelling prostitution under section 230.33 of the penal law, or trafficking in persons under the [federal] Trafficking Victims Protection Act (United States Code, title 22, chapter 78)" (CPL 440.10 [1] [i]).

Thus, in order to obtain the requested relief, the movant must establish that (1) she was arrested on a charge of loitering for the purposes of engaging in a prostitution offense, prostitution or prostitution in a school zone, (2) she was a sex trafficking victim at the time of her arrest and (3) her conduct or "participation in the offense" leading to her arrest resulted from her being trafficked (CPL 440.10 [1] [i]).

Under this amended statute, a person can be identified as a victim of sex trafficking under either the federal or state laws governing sex trafficking. The federal Trafficking Victims Protection Act (TVPA) defines a "victim of a severe form of trafficking" (22 USC § 7102 [16]) as someone who is induced to engage in a commercial sex act through force, fraud or coercion, or where the victim who is induced to perform a commercial sex act has not attained the age of 18 (22 USC § 7102 [11] [A]).

New York passed the sex and labor trafficking statutes in 2007, making each crime a B and D non-violent felony under Penal Law §§ 230.34 and 135.35 respectively. A person is guilty of sex trafficking if he or she "intentionally advances or profits from prostitution" by inducing another person to engage in prostitution activity by any number of means specified under New York's sex trafficking statute which involve force, fraud or coercion (Penal Law § 230.34 [1]-[5]). Although there is no legal definition of who constitutes a sex trafficking victim under the state statute, unlike the federal TVPA (22 USC § 7102 [11] [A]; [16]), any individual who is subjected to the acts [*4]defining this{**64 Misc 3d at 348} criminal offense under Penal Law § 230.34 would necessarily be considered a victim of sex trafficking.

If the court decides to grant a motion under CPL 440.10 (1) (i), then the court "must vacate the judgment and dismiss the accusatory instrument, and may take such additional action as is appropriate in the circumstances" (CPL 440.10 [6]).

A hearing was held before this court on October 5, 2018, to determine whether defendant was a victim of sex trafficking under Penal Law § 230.34 at the time she pleaded guilty to the three cases charging prostitution in 2005 and 2006 during her association with S, who operated a prostitution ring out of the house where defendant resided. As discussed below, this court found that defendant presented sufficient evidence to meet the definition of a sex trafficking victim under Penal Law § 230.34 at the time of those convictions.

Defendant also introduced evidence at the hearing addressing the circumstances that led to the 2008 case charging her with third-degree assault and second-degree harassment. As set forth below, because the conviction in this case did not stem from a prostitution-related arrest charge as required by CPL 440.10 (1) (i), relief must be denied under the clear language of the statute.

A. Motion to Vacate 2005 and 2006 Convictions Involving S's Prostitution Ring

During 2005 and 2006, defendant was arrested three times for prostitution. Two cases resulted in convictions for disorderly conduct (Penal Law § 240.20)^[FN11] and one case resulted in a conviction for prostitution (Penal Law § 230.00).^[FN12] The People contest vacatur of defendant's convictions in these three cases, arguing that defendant's participation in the offenses during her time with S was not a result of having been a victim of sex trafficking pursuant to either Penal Law § 230.34 or the federal TVPA (22 USC § 7102). Essentially, the People assert that these offenses occurred before she had become a victim of sex trafficking. The prosecutor's argument is based on an interview which they conducted with defendant to corroborate her asserted history as a victim of sex trafficking. The People state that they specifically questioned her about her life during the{**64 Misc 3d at 349} three-year period from about 2003 to 2006 in order to determine whether she was controlled or coerced by S at the time of her participation in the offenses during that time period. The People assert that during the interview, defendant failed to indicate that S victimized her. The People further argue that statements made by defendant during the interview are highly probative on the issue of trafficking because defendant knew the purpose of the interview, and therefore, she would have been greatly motivated to discuss any threats or coercion she experienced. Instead, defendant reported that she engaged in prostitution during that period because she needed money and a place to live, describing her transactions with S as being similar to that of paying rent. The People contend that although defendant's reply and supplemental motion papers contained additional allegations regarding S, those allegations are not credible in light of the initial answers that defendant gave in response to pointed questioning during her interview with their office.

Defendant responds that she was victimized by S at the time of her convictions in 2005 and 2006. She argues that the People failed to accept her effort to amplify and explain the responses that [*5]she gave during what she claimed to be an emotionally difficult and intimidating interview at the Queens District Attorney's Office concerning her history as a trafficking victim and her exploitation by S.^[FN13] Counsel argues that the People's rejection of defendant's subsequent attempt to put her responses in context reflected the People's failure to understand the psychology of trafficking victims and the ability of trauma survivors to recall and reflect on their traumatic experiences. It was only after the interview with the Queens District Attorney's Office that defense counsel herself engaged in further trauma-informed communication with defendant that allowed her to understand defendant's full experience as a trafficking victim.^[FN14]

{**64 Misc 3d at 350}1. Findings of Fact

Defendant was the only witness who testified at the hearing and the court finds her to be credible. Defendant testified that she had originally agreed to stay with S under a rental agreement for $500 per month for a room. Defendant stated, however, that upon her arrival, she was informed that the only way she could remain in the house would be if she engaged in prostitution for the benefit of S. These terms were common to all of the other residents at the house who, like defendant, were transgender women forced by S to engage in commercial sex work on the street at a location chosen by S. Defendant testified that she was required to work every night without exception, typically seeing six to eight clients each night while working from 6:00 p.m. until 6:00 a.m. Defendant was forced to surrender the money she earned to S, receiving a small amount back at the end of each night. As a result, defendant stated that she ultimately paid S more than the promised rent of $500, with the excess money coming from her earnings. S also provided the residents with hormones which the women could not obtain on their own. If defendant failed to earn the expected amount of money, S would threaten to kick her out and stop providing hormones, which was important to her gender identity. S's house rules and regulations were strict and oppressive, including a prohibition against visitors and the requirement that the residents work every day. On days when defendant was physically incapable of working, S threatened to throw her out onto the streets and call law enforcement. S's threats to call the police if defendant disobeyed her constantly placed defendant's immigration status in jeopardy.

When questioned about her other subsequent traffickers, defendant specifically noted that she viewed them differently from the way she viewed S. She stated that although S exploited her, her later two traffickers hurt her much more, both physically and emotionally. Defendant also felt that while she resided with S, she was also living with her friends who were the other similarly exploited transgender women.{**64 Misc 3d at 351}

2. Conclusions of Law

[1] Upon due consideration of defendant's testimony at the hearing, together with the sworn statement^[FN15] from her motion papers, the court holds that defendant has proved by a preponderance of the evidence (CPL 440.30 [6]) that she was a victim of sex trafficking from 2003 to 2006 as defined by Penal Law § 230.34 as well as under the TVPA. S ran a prostitution ring from her house and used a variety of tactics involving the threat of force, fraud or coercion (Penal Law § 230.34 [2], [4], [5]) to induce defendant to engage in prostitution. As the evidence shows, S used various coercive tactics to instill fear in defendant in order to keep her under her control:

1. S coerced defendant to work in commercial sex for extensive hours every night from 6:00 p.m. to 6:00 a.m., regardless of whether or not she was physically or emotionally capable of doing so, and required her to surrender her earnings at the end of the night. A modest sum was returned to defendant each day that was barely enough to buy food.

2. S's house rules were oppressive and coercive. For example, friends and family were not allowed to visit and each occupant was required to keep her room door open at all times.

3. S threatened to evict and report the residents to the police and immigration authorities if they did not work for her every night.

4. S was physically threatening. Although defendant never saw S follow through on physical violence, she heard of her extreme violence toward other women in the house.

5. S also controlled defendant's access to hormones that allowed her to physically transition and realize her true gender identity.

Thus, this court finds that defendant was a victim of sex trafficking from 2003 to 2006 while under S's coercive control. From childhood, defendant has suffered heavily at the hands of family, "friends" and a number of traffickers. As a minor in her country of birth, she found no acceptance due to her transgender identity. Those that did accept her, such as another transgender woman acquaintance, taught her that transgender individuals survive through commercial sex in exchange for basic essentials such as money, food and shelter.^[FN16] Further, she had been forced through an endless cycle of alternately openly{**64 Misc 3d at 352} expressing and then suppressing her true gender identity due to community harassment and family abuse. This harassment and abuse continued from her home country to her time in the United States. S entered defendant's life during this vulnerable time. Despite recognizing that S was abusive, defendant found herself in an environment with other transgender women with whom she could share her experiences. S was also a source of transitional hormones, something important to defendant. She had also become accustomed to the "normalization of exploitation" she had been taught about transgender individuals from a young [*7]age.^[FN17]

Based upon defendant's history, it is understandable that when she was questioned by the People to determine her status as a sex trafficking victim, she was unable to recognize S's form of coercive control in light of the more violent experiences she endured as a sex trafficking victim from her subsequent traffickers. During her interview with the People, defendant specifically distinguished her time with S from the far greater physical and emotional pain that she experienced at the hands of her two other exploiters. The use of physical violence is but only one example of the methods used by traffickers to exert control over a victim; other methods of coercion, manipulation, pressure or shame are equally effective, if not more so.

Thus, this court finds that defendant was a victim of sex trafficking pursuant to Penal Law § 230.34 from 2003 to 2006 while under the control of S. Accordingly, the court granted defendant's motion to vacate the pleas of guilty under docket numbers 2005QN060819, 2006QN010585, and 2006QN010628 pursuant to CPL 440.10 (1) (i) by order issued January 14, 2019.

B. Motion to Vacate 2008 Conviction

The remaining case involves a situation where defendant was arrested on charges of assault in the third degree (Penal Law § 120.00 [1]) and harassment in the second degree (Penal Law § 240.26 [1]), and subsequently convicted of disorderly conduct (Penal Law § 240.20) as part of a conditional plea.^[FN18] The issue presented by the parties is whether this type of case is eligible for vacatur under either CPL 440.10 (1) (i) or (6). Defendant{**64 Misc 3d at 353} asserts that the court should apply CPL 440.10 (1) (i) and (6) generously to promote the statute's ameliorative goal of providing vacatur relief to victims of sex trafficking by not limiting relief only to those arrested for prostitution or loitering for the purpose of engaging in a prostitution offense. Defendant further argues that regardless of the arrest charges, the language in CPL 440.10 (6), stating that the court "may take such additional action as is appropriate in the circumstances," grants the court discretionary authority to apply the remedy of vacatur to the instant case upon finding that defendant was a victim of sex trafficking regardless of the arrest charges. The People disagree, contending that defendant's conviction for disorderly conduct is not eligible for vacatur because it stemmed from an arrest for assault and harassment rather than any prostitution-related offenses found in section 440.10 (1) (i) of the Criminal Procedure Law. Their position is that the discretion granted to courts under section 440.10 (6) of the Criminal Procedure Law is available only after granting a motion under section 440.10 (1) (i).

1. Findings of Fact

The facts pertaining to defendant's arrest on March 3, 2008, under docket number 2008QN012069 were addressed at the aforementioned hearing held before this court on October 5, 2018. Defendant credibly testified that when she was arrested on the underlying charges she was [*8]under the direct control of another trafficker identified as A. Her trafficker was physically present at the time of the incident and watching her at the location where he required her to engage in sex work. As defendant approached a potential customer to meet A's earning quota, another sex worker tried to steal away the "john" by approaching the same individual. Fearing her trafficker's wrath, and the possibility of violence if she lost this potential client, defendant's altercation with the rival sex worker led to her arrest.

2. Conclusions of Law

CPL 440.10 (1) (i) was enacted to ameliorate the wrong caused by imposing convictions on persons who lacked agency over their acts due to their victimization by their traffickers. As this court previously recognized:

"Victims of trafficking into commercial sex are frequently arrested for prostitution-related offenses and are then saddled with the criminal record for life, long after they may be freed from exploitation.{**64 Misc 3d at 354} [This] record may prevent them from obtaining gainful employment and impair their ability to access or stay in public or private housing, advance their education, or participate in other important aspects of life. Trafficked persons should not suffer ongoing punishment for acts they committed unwillingly under coercion. This new legislation was thus intended to 'give victims of human trafficking a desperately needed second chance they deserve' " (People v L.G., 41 Misc 3d 428, 438 [Crim Ct, Queens County 2013], quoting Sponsor's Letter in Support, July 20, 2010, Bill Jacket, L 2010, ch 332 at 10 [NY Assembly Bill A7670], and citing People v G.M., 32 Misc 3d 274, 279 [Crim Ct, Queens County 2011]; see also People v Doe, 34 Misc 3d 237 [Sup Ct, Bronx County 2011] [new legislation designed to assist minor trafficking victims]).

The court should therefore construe the remedial provisions of CPL 440.10 (1) (i) liberally "in order that its beneficent purpose may, so far as possible, be attained" (People v Lexington Sixty-First Assoc., 38 NY2d 588, 595 [1976]; McKinney's Cons Laws of NY, Book 1, Statutes § 321).

[2] The problem, however, is that the stated intent of the amended statute is clearly at odds with the unambiguous and limiting language of CPL 440.10 (1) (i). Under the express terms of CPL 440.10 (1) (i), vacatur is only available to those defendants whose judgment of conviction was based on an "arresting charge" involving prostitution (Penal Law § 230.00), loitering for the purpose of engaging in a prostitution offense (Penal Law § 240.37) or prostitution in a school zone (Penal Law § 230.03) even when the ensuing convictions are for other crimes (People v L.G., 41 Misc 3d 428 [2013]).^[FN19] Here, because the defendant was not arrested for any prostitution-related charges under docket number 2008QN012069, the resulting conviction for disorderly conduct cannot be vacated under CPL{**64 Misc 3d at 355} 440.10 (1) (i). This is so despite the fact that defendant testified at the hearing that she was not only [*9]trafficked but was working for her trafficker at the time of the instant offense.

Defendant's reliance upon discrete language in subdivision (6) that the court "may take such additional action as is appropriate in the circumstances" to overcome the plain meaning of "the arresting charge" in subdivision (1) (i) is unpersuasive.^[FN20] Subdivision (6) authorizes the court to take appropriate action only after the court has granted the motion by vacating the judgment and dismissing the accusatory instrument.^[FN21]

These limitations of New York's vacatur statute had already been anticipated at the time of the statute's amendment in 2010. The tensions inherent in the wording of this vacatur bill were correctly observed by former Governor David Paterson in the signing memorandum when the bill was approved:

"First, the bill bases eligibility for relief on whether the defendant has prostitution-related 'arrest charges,' rather than convictions. This could create anomalous results due to the vagaries of the initial arrest processing. For example, a defendant arrested for prostitution, but ultimately convicted of assault or murder, could theoretically have his or her convictions vacated, while a defendant arrested for a non-prostitution offense but ultimately convicted of prostitution could not obtain relief. It is difficult to understand or justify this result, and I urge the Legislature to clarify this language to ensure that the intent of the bill is achieved" {**64 Misc 3d at 356}(Governor's Approval Mem, Bill Jacket, L 2010, ch 332 [NY Assembly Bill A7670] [emphasis added]).

Thus, despite its noble aims, the statute has had the unintended effect of depriving many trafficking victims from obtaining post-conviction relief (see e.g. People v Gonzalez, 32 Misc 3d 831, 835 [Crim Ct, NY County 2011] [court granted dismissal of 86 cases for trafficking survivor but denied vacatur for resisting arrest conviction lacking prostitution arrest charge]).

This court notes that, to this day, this flaw in an otherwise groundbreaking statute has not been rectified. New York passed the first sex trafficking vacatur statute in this country in 2010, but it now lags behind many other states that have followed New York's lead. Indeed, since 2010, a total of 44 states have enacted statutes providing some post-conviction relief for victims of sex [*10]trafficking,^[FN22] with states such as California, Florida, Idaho, Indiana, Nebraska and Utah going beyond the limitations imposed by our statute, by allowing for vacatur for non-prostitution-related arrest charges or convictions when a person has been trafficked.^[FN23]

While New York's current statute may result in inequitable outcomes, any change must originate from the legislature, because when "the wording of the statute has caused an unintended consequence, it is up to the legislature to correct it" (People v Golo, 26 NY3d 358, 362 [2015]). As Governor Paterson said, the legislature's work "to clarify this language to ensure that the intent of the bill is achieved" is not yet done. At the very least, a change in the law eliminating the requirement that the arrest charge be for prostitution or loitering would free courts from the constraints of this limiting statutory language which deprives identified victims of sex trafficking of{**64 Misc 3d at 357} the relief they deserve.^[FN24] Until then, this court is constrained to follow the dictates of this statute and deny the relief sought by the defendant.

Accordingly, defendant's motion for vacatur of the judgment of conviction under docket number 2008QN012069 is denied because CPL 440.10 (6) grants the court discretion to fashion a remedy only after vacatur is permitted on grounds provided in CPL 440.10 (1) (i).

Based upon the foregoing, by order issued on January 14, 2019, this court vacated the judgments of conviction and dismissed the accusatory instruments in seven cases under docket numbers 2005QN060819, 2006QN010585, 2006QN010628, 2007QN042669, 2009QN010099, 2010QN001097 and 2013QN012839. Additionally, the records of the dismissed cases were ordered sealed under CPL 160.50 (1) and (3) (f).

The motion to vacate the guilty plea of disorderly conduct (Penal Law § 240.20) under docket number 2008QN012069 is denied.