COUNTY COURT DID NOT CORRECTLY APPLY THE CRITERIA OF THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) WHEN CONSIDERING DEFENDANT’S MOTION FOR RESENTENCING; THE THIRD DEPARTMENT DETERMINED DEFENDANT WAS ENTITLED TO A MORE LENIENT SENTENCE UNDER THE ACT AND RESENTENCED HER TO TIME SERVED (THIRD DEPT).

The Third Department, reversing County Court and resentencing defendant to time served, determined County Court did not comply with the criteria of the Domestic Violence Survivors Justice Act (DVSJA) when considering defendant’s motion for resentencing under the act. Defendant had been convicted of killing her paramour and was sentenced to ten years in prison:

The DVSJA, in recognition of the profound and pervasive trauma suffered by victims of substantial abuse, permits courts to impose more lenient sentences in certain cases where a victim of domestic violence commits crimes against his or her abuser or as a result of that abuse … . * * *

… [T]he court misapplied the language of Penal Law § 60.12 (1) (a) by requiring that the abuse occur “at the time of the instant offense.” Indeed, such temporal argument would inherently invoke the defenses of duress or justification, however, the legislative history makes it clear that the DVSJA was enacted to address shortfalls in each of those defenses, “as victims of abuse may not be psychologically or socially capable of invoking such defenses at the time of their trials, due to their victimization and its impact on them” … . * * *

… County Court found that the abuse suffered by defendant “was a factor” in her commission of the crime, but failed to conclude as to whether it was a “significant contributing factor” as is required under the statute. Moreover, the court did not articulate a factual basis for its finding in this regard. * * *

… [T]he DVSJA, Penal Law § 60.12 (1) (c) expressly provides that a determination as to whether a standard sentence would be “unduly harsh” is to be made in consideration of the “the nature and circumstances of the crime and the history, character and condition of the defendant.” Although the court’s written decision notes defendant’s age, lack of criminal history and the fact that she is the mother of two children, no discussion is devoted to these circumstances or what weight they should be afforded in considering her resentencing application. People v Liz L., 2023 NY Slip Op 06008, Third Dept 11-22-23

Practice Point: The criteria for resentencing under the Domestic Violence Survivors Justice Act (DVSJA) discussed in some detail.