Defendant now moves this court under CPL 440.10 (1) (i) and (6) to vacate the judgment of conviction and dismiss the accusatory instrument in each case on the merits because defendant's participation in the charged offenses was a result of having been a victim of sex trafficking. Defendant also moves to consolidate all of her cases for determination by the instant motion. For the reasons that follow, the motion is granted in its entirety.

From 1997 through 2001 defendant was arrested in Queens County and charged in 11 cases with loitering for the purpose of engaging in a prostitution offense (Penal Law [PL] § 240.37). In ten of those cases she was charged with disorderly conduct (PL § 240.20). One case also charged attempted assault in the third degree (PL § 110/120.00 [1]) and harassment in the second degree (PL § 240.26 [1]). The most recent case additionally charged assault in the third degree (PL § 120.00 [1]) and resisting arrest (PL § 205.05).

Defendant pleaded guilty to loitering for the purpose of engaging in a prostitution offense in ten of the cases brought against her in Queens County. However, in the most recent case under docket number 2001QN012478 she pleaded guilty to assault in the third degree (PL § 120.00 [1]), resisting arrest (PL § 205.30) and loitering for the purpose of engaging in a prostitution offense (PL § 240.37).

Defendant was also convicted in four cases brought in New York County. In 2000 and in 2001 she pleaded guilty in one case to prostitution and in another to loitering for the purpose of engaging in a prostitution offense.

The New York County District Attorney's Office consents to vacatur of defendants four convictions in New York County on the basis that defendant was a victim of sex trafficking at the time of her participation in the offenses charged. The Queens County District Attorney's Office consents to vacatur of ten of defendant's convictions, but contests vacatur of her eleventh conviction under docket number 2001QN012478 for the counts of assault in the third degree (PL § 120.00 [1]) and resisting arrest (PL § 205.30).

Defendant moves under CPL 440.10 (1) (i) (iii) to consolidate her New York County convictions with her Queens County cases in the instant motion for vacatur relief. The Queens County and New York County District Attorneys' offices have consented to defendant's request and [*2]the court hereby consolidates defendant's Queens County and New York County cases for the purposes of determining the instant motion.

Defendant asserts that she is entitled to have her convictions vacated and the cases dismissed pursuant to CPL 440.10 (1) (i) and (6) because the offenses were the result of her having been a victim of a severe form of trafficking pursuant to federal law and a victim of sex trafficking under New York state law. Defendant explains that she was kidnapped and forced to engage in commercial sex from 1997 to 2003, starting as a minor at the age of 16, during which period she was arrested and convicted in the 15 cases for which post-conviction relief is sought.

The New York County District Attorney's Office consents to vacatur and dismissal of the four New York County convictions.

The Queens County District Attorney's (QCDA) Office does not oppose vacatur of defendant's convictions for loitering for the purpose of engaging in a prostitution offense (PL § 240.37). However, QCDA does oppose vacatur of defendant's convictions for assault in the third degree (PL § 120.00 [1]) and resisting arrest (PL § 205.30) under docket number 2001QN012478. QCDA argues that those offenses were not the result of having been a trafficking victim engaged in prostitution related acts compelled by her trafficker but rather her actions reflect distinct and independent acts to strike an officer during her arrest that were not made at the direction of her trafficker.

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. However, the 2010 amendment to New York's post-conviction statute which enacted criminal procedure law 440.10 (1) (i) limited vacatur relief to sex trafficking victims arrested and charged with loitering for the purpose of engaging in a prostitution offense (PL § 240.37) or penal law article 230 prostitution offenses. In 2021 New York enacted the Survivors of Trafficking Attaining Relief Together (START) Act which expanded access to vacatur relief under CPL 440.10 (1) (i) for victims of sex trafficking by removing the predicate requirement that a movant must have been arrested on a prostitution related charge (L.2021, c. 629 [A. 459]). This change was prompted by recognition that numerous other states had enacted post-conviction laws that allowed vacatur for trafficking victims who were forced to commit a range of offenses by their traffickers.^[FN3] The 2021 START Act also made filing a post-conviction motion easier and less re-[*3]traumatizing for trafficking victims by rendering their motions confidential and authorizing consolidation of cases from disparate jurisdictions into one motion to be filed in one county, with the consent of each prosecutor's office (CPL 440.10 [1] [i] [ii] and [iii]). The court notes that the charge used to arrest defendant eleven times in Queens County, loitering for the purpose of engaging in a prostitution offense ([PL] § 240.37), was repealed in 2021 (L.2021, c. 23, § 2, eff. Feb. 2, 2021).

CPL 440.10 (1) (i) now provides that the court may vacate a judgment of conviction

where 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, sex trafficking of a child under section 230.34-a of the penal law, labor trafficking under section 135.35 of the penal law, aggravated labor trafficking under section 135.37 of the penal law, compelling prostitution under section 230.33 of the penal law, or trafficking in persons under the Trafficking Victims Protection Act (United States Code, title 22, chapter 78)

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]). Alternately, determining whether defendant qualifies as a victim of sex trafficking requires reference to PL § 230.34, which provides that 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 (PL § 230.34 [1 - 5]). Accordingly, any individual who is subjected to acts defining the criminal offense of sex trafficking under PL § 230.34 would necessarily be considered a victim of sex trafficking. Official documentation of a defendant's status as a victim of sex or labor trafficking at the time of the offense from a federal, state or local government agency creates a presumption that the defendant's participation in the offense at issue was a result of having been a victim of trafficking (CPL 440.10 [1] [i] [i]).

If the court decides to grant a motion under CPL 440.10 (1) (i), then the court must vacate the judgment on the merits because the defendant's participation in the offense was a result of having been a victim of trafficking, dismiss the accusatory instrument, and may take such additional action as is appropriate in the circumstances (CPL 440.10 [6]). The 2021 amendment added that all papers and documents pertinent to the motion shall be confidential (CPL 440.10 [1] [i] [ii]) and enabled a defendant to consolidate convictions from various counties into one motion with the consent of all of the state and local prosecutorial agencies that prosecuted each matter (CPL 440.10 [1] [i] [iii]). Additionally, an order vacating a judgment under CPL 440.10 is deemed the termination of a criminal action or proceeding against a person in favor of such person under CPL 160.50 (1) and (3) (f) and therefore the record of each action or proceeding shall be sealed.

The court's determination is based on the factual account set forth in defendant's affidavit. The People do not contest defendant's personal account of her experience as a victim of sex trafficking.

Defendant was born in Guyana in 1981 and was brought to the United States by her father in 1988 for open-heart surgery to correct heart disease caused by Rheumatic fever. Her father was angry at defendant for needing to leave his family in Guyana. He subsequently became physically and sexually abusive to defendant. In 1995 defendant communicated her father's abuse to her teachers. A close family friend then revealed that her father had withheld letters from her mother, gave them to defendant and instructed her to leave her home and move in with the friend. In 1996 when defendant was 15 years old, her father was arrested and prosecuted for abuse. His family was very angry at defendant and the family friend could no longer provide a home for her. Defendant entered one foster family for a year and then another at age 16 in Queens County.

In 1997 when defendant was 16 years old, she was kidnapped by T.C., known as T., who was 11 years older than her. She had seen him speaking with other female students near her high school building and one day stopped to speak with him and he bought sodas for her and her friend. A few days later he offered her a ride home, and she entered his vehicle. T.C. stated that he needed to stop by a friend's house, but when they entered the premises, he punched defendant in the face and stated that she now belonged to him. He then raped her and threatened to kill her. A second women was present who did not respond. T.C. then threw revealing clothing at defendant and told her that she must pay him back for what he gave her. He then beat defendant and forced her to engage in commercial sex on the street at age 16 years old. T.C. forced defendant to reside with him and either he or the other woman in the apartment watched her constantly. A few weeks later defendant attempted to escape while working on the street in Long Island City in Queens County. T.C. found her hiding, dragged her into his car, beat her and threatened to "sell" her to someone worse. He then cut her face and raped her again.

T.C. forced defendant to work every day and earn a set quota of money before she came home. He changed the amount of money she must earn daily and responded violently if she failed to earn her quota or violated his arbitrary rules. In 2000 T.C. decided to take defendant to work in Manhattan. T.C. informed defendant that she owed him for everything he gave her, whether food, clothing or shelter and time lost when arrested. Defendant stated that she lost count of how many times she was arrested while under T.C.'s control. T.C. instructed defendant to give the name L. M. when she was arrested and a false birth date because she was a minor.^[FN4] When defendant was arrested, she was afraid to request help because she feared that T.C. would rape or kill her. T.C. told defendant that she owed him for lost working time while she was under arrest. During court proceedings, T.C. usually sat in the courtroom to intimidate her.

In 2000 defendant became pregnant by T.C. but loved the baby and felt a reason to survive. In 2001 defendant was arrested for the last time in Queens County. She recalls being in a van when two officers started pulling her body. She was pregnant and scared and told them to stop pulling. The event occurred quickly, and she did not intend to injure the officer. Bail was set and she was incarcerated for a week until T.C. posted bail. She claims to have been pressured to plead guilty to avoid a jail sentence.

Defendant's daughter was born in 2001 and defendant required heart surgery again in 2002. Afterwards, T.C. resumed yelling and hitting defendant and threatening to take her daughter if she did not return to commercial sex work. One day, T.C. tied defendant up and took her daughter. He [*4]returned and told her that if she tried to flee with their child, she would never see her child again. With the help of two friends, defendant and her daughter finally escaped in 2003.

Defendant never saw T.C. again. She reconnected with her mother in 2004 and became a United States citizen in 2022.

Penal Law § 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 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. 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 2013], quoting Sponsor's Mem in Support, Bill Jacket, L 2010, ch 332, §§ 1—5 at 13 [NY Assembly Bill A7670], citing People v G.M., 32 Misc 3d 274, 279 [Crim Ct, Queens County 2011]). 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]; NY Stat § 321). In construing the application of CPL 440.10 (1) (i) and (6), "[t]he governing rule of statutory construction is that courts are obliged to interpret a statute to effectuate the intent of the Legislature, and when the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words used" (People v Williams, 19 NY3d 100, 103 [2012] quoting People v Finnegan, 85 NY2d 53, 58 [1995] [internal quotation marks and brackets omitted]).

The People assert that the legislative history of the 2021 START Act amendment to CPL 440.10 (1) (i) indicates the legislature's intention to limit vacatur relief to those crimes committed directly in the service of sex traffickers and provided a transcript for the New York State Assembly debate on May 5, 2021 to support their argument. However, the court holds that the statute requires a broader understanding of a person's participation in an offense as a result of being a victim of sex trafficking, particularly in recognition of the trauma that sex trafficking inflicts on its victims, and agrees with defendant's reading of the debate and memoranda of support leading to the enactment of the amending bill. As discussed during the debate, despite the removal of predicate arrest charges, the statute retains "guardrails" because the defendant must have participated in the offenses for which relief is sought as a result of having been a victim of sex trafficking and the court must exercise discretion to grant vacatur. Assembly Member Catalina Cruz stated of sex trafficking victims, "We as government owe them the opportunity to restart their life" (NYS Assemble Debate Transcript May 5, 2021 at 36).^[FN5] Following passage of the START Act bill by both the state senate [*5]and assembly, sponsor Assembly Member Richard N. Gottfried observed that "[t]his bill removes the limitation to prostitution-related offenses so that trafficking victims have the opportunity to seek criminal record relief and fully move on with their lives. The bill strengthens confidentiality protections for victims. The bill does not change the fact that it is up to the judge to evaluate each case individually and exercise discretion to determine whether relief is appropriate in a given case" (Sponsor's Mem in Support, Bill Jacket, L. 2021, ch. 629 [NY Assembly Bill A459]).

The uncontested sworn factual statement provided by defendant clearly establishes that from 1997 to 2003 she was a "victim of a severe form of trafficking" under the TVPA because T.C. induced her to engage in commercial sex from the age of 16 years old and used acts of force and coercion to cause her to continue to engage in commercial sex until she was about 22 years old (22 USC § 7102 [16]). Additionally, defendant has shown that she was a victim of sex trafficking by T.C. because he made false statements, required repayment of purported debt, and induced defendant to continue to engage in prostitution activity by instilling fear of physical injury or death through acts of rape and violence (PL § 230.24 [2, 4 and 5]).

The court must determine whether defendant's participation in the offenses that she committed on March 14, 2001 in docket 2001QN012478, which led to her conviction for loitering for the purpose of engaging in a prostitution offense, assault in the third degree and resisting arrest, was the result of her having been a victim of sex trafficking. The misdemeanor information alleges that at the corner of 41st Avenue and 23rd Street between 6:10 a.m. and 6:25 a.m. in Queens County, the deponent police officer observed defendant stop several motor vehicles driven by men and engage in conversations with them. She then entered a green van with two males. When the deponent officer stopped the van and attempted to place defendant under arrest she used profanity, screamed, failed her arms and kicked and pushed the deponent and Officer P. Officer P. sustained a laceration and swelling to the right hand which caused him substantial pain, annoyance and alarm.

Defendant has established by her uncontested affidavit that on March 14, 2001 she was under the continuing control of her pimp and sex trafficker, T.C., who compelled her to engage in commercial sex acts through threats, debt bondage and acts of physical violence (PL § 230.34). The People have acknowledged that she was trafficked and accordingly agreed to the dismissal of the loitering charge. Their contention, however, is that the charges for assault and resisting arrest were distinct and attenuated acts unrelated to her trafficking situation for which she should be held criminally liable.

The issue in dispute is whether defendant's actions which led to these charges can be divorced from the trauma she encountered as a victim of trafficking, including its effect on her perceptions and responses to her physical arrest. The parties agree that trafficking victims often fear law enforcement and that this fear can lead to negative encounters with police. Defendant correctly links this recognized fear of law enforcement by her as a trafficking survivor with the trauma she experienced through her life of victimization and exploitation.

Trauma is well recognized as a powerful force afflicting the mental and physical well-being of people subjected to sex trafficking.^[FN6] "[T]rauma results from an event, series of events, or set of circumstances that is experienced by an individual as physically or emotionally harmful or threatening and that has lasting adverse effects on the individual's functioning and physical, social, [*6]emotional, or spiritual well-being."^[FN7] The traumatic humiliation and sexual violence experienced by survivors of sex trafficking may negatively affect a person's mental health for their entire life. "For victims of sex trafficking, trauma is unavoidable; the experiences of being groomed, commodified, abused, and dehumanized in addition to the violent acts of exploitation, serve to compound the trauma."^[FN8] The length of time that a person is trafficked and exploited correlates to heightened levels of Post-Traumatic Stress Disorder (PTSD), depression and anxiety that the individual will experience.^[FN9] "The consequences of human trafficking on mental health cannot be overstated. Victims of human trafficking have experienced considerable trauma, some of which does not present itself until years later."^[FN10]

In the instant case defendant was subjected to multiple forms of trauma over an extended period of time which were persistent, ongoing and cumulative. Not only was she a victim of child sex abuse, but she was also subjected to sexual violence, rape, threats against her by her trafficker, violations against her body by johns, and deprived of any agency or independence while under T.C.'s control. This trauma was heightened by the fact that she was kidnapped and trafficked as a child while prosecuted as an adult when her trafficker forced her to lie about her age. Thus, it is safe to say that "[r]epetitive exposure to traumas can have a cumulative effect over one's lifetime."^[FN11]

Persons who have experienced trauma often exhibit changes in their thought processes in response to situations they encounter, including cognitive errors that may cause them to misinterpret situations that even remotely resemble a previous trauma as dangerous.^[FN12] They may also exhibit hyperarousal, a biological change in which the body remains prepared for self-protection and renders [*7]the person likely to overreact to situations perceived as dangerous.^[FN13] The hyperarousal experienced by traumatized persons may result in an overreaction to perceived threats in the form of violence.^[FN14] Defendant was exposed to trauma around the age of seven or eight when her father started physically and then sexually abusing her and she continued to experience repeated trauma throughout her history of sex trafficking.^[FN15] It is therefore understandable that her later reactions to situations, including her encounters with the police, were triggered by the cumulative trauma she had experienced over several years. "Sex trafficking yields traumatic responses in victims and trauma can drastically alter a victim's perception of reality."^[FN16] Persons, such as defendant here, who experience the world through the lens of trauma may be particularly prone to interpret police interactions as threatening. Aggressive police conduct can exacerbate the situation because interventions meant to curb aggression may actually provoke the traumatized person to respond with aggression.^[FN17]

Additionally, defendant was taught to mistrust and avoid law enforcement by her exploiter. Traffickers often teach their victims to fear law enforcement, which fear is reinforced by traumatic arrests and detentions.^[FN18] Defendant's trauma was compounded by having been arrested fifteen times over approximately six years, the first four of which occurred when she was still a minor. In each arrest, she was subject to the trafficker's order to provide a false name and birth date when arrested because she was initially a minor, and to plead guilty so that she could quickly resume earning money through commercial sex or face violent repercussions for lost income. Her trafficker also imposed an additional debt on defendant for earning time lost while she was under arrest. She did not seek help from the police because she was afraid that her exploiter would rape or kill her. "[A] [*8]victim's mistrust is often compounded by fears that connections with law enforcement and/or service providers can compromise their physical safety (e.g., the trafficker will find them, they will be deported, or they will be sent back to an abusive home.)"^[FN19] At the time of her final arrest on March 14, 2001 under docket 2001QN012478, defendant already had a long history of negative encounters with the police including her prior arrests for her involuntary prostitution-related activity. She was also scared when the officers pulled her from the van because she was pregnant and feared for her physical safety, thus intensifying her trauma response.

The court finds that defendant's actions leading to her convictions for assault and resisting arrest do not constitute distinct acts attenuated from the loitering charge which the People have agreed to dismiss, but rather, were the result of her being trafficked. Defendant was undeniably trapped between the constant threat of violence by her exploiter, on the one hand, and her fear of persecution and criminalization by the police on the other. Accordingly, the court finds that defendant's actions of flailing and kicking the arresting officers to resist arrest which caused Officer P. to suffer a laceration was an understandable trauma response based on her long history of trafficking as well her sense of physical vulnerability because of her pregnant condition. Therefore, the court holds that defendant's participation in the offenses of assault and resisting arrest charged under docket number 2001QN012478 was the result of having been a victim of sex trafficking under PL § 230.34 and the TVPA (22 USC § 7102) and therefore the judgment of conviction must be vacated and the case dismissed under CPL 440.10 (1) (i) and (6).

Based upon the foregoing, it is hereby

ORDERED that defendant's motion for relief under CPL 440.10 (1) (i) is granted in its entirety, the judgments of conviction are vacated on the merits and the accusatory instruments dismissed in each case under CPL 440.10 (6) because defendant's participation in the offenses charged was a result of having been a victim of trafficking, and it is further

ORDERED that the record of each case shall be sealed and the clerk of the court shall immediately notify the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies that each case has been terminated in favor of the accused and that the record of each case shall be sealed under CPL 160.50 (1) and (3) (f).

This opinion constitutes the decision and order of the court.