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A DEFENDANT, AS PART OF A NEGOTIATED PLEA AGREEMENT, MAY WAIVE A HEARING SEEKING A REDUCED SENTENCE PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dowling, affirming defendant’s sentence after a guilty plea, determined that a hearing pursuant to the Domestic Violence Survivors Justice Act (DVSJA) seeking a reduced sentence can be waived. Therefore defendant’s negotiated plea agreement, which required her waiver of a DVSLA hearing, was valid:

… Penal Law § 60.12 contains no language requiring a sentencing court to hold a DVSJA hearing in every case containing allegations that the defendant is a victim of domestic violence, regardless of whether a hearing was requested, prior to announcing sentence. A defendant wishing to avail himself or herself of the possibility of a reduced sentence must instead request a DVSJA hearing to determine his or her eligibility before the sentencing court … . Where a DVSJA hearing is held, Penal Law § 60.12 provides that the court “may” apply the alternative sentencing scheme if the stated factors are established by the defendant. This permissive language reflects the Legislature’s intent that sentencing under Penal Law § 60.12 be an option exercised in the sentencing court’s discretion … . People v Hudson, 2024 NY Slip Op 04571, Second Dept 9-25-24

Practice Point: As part of a negotiated plea agreement, a defendant may waive a DVSJA reduced-sentence-eligibility hearing.

 

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