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DISAGREEING WITH THE THIRD DEPARTMENT, THE SECOND DEPARTMENT HELD THAT THE “DISMISSAL WITHOUT PREJUDICE” OF A MOTION FOR A REDUCED SENTENCE PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) FOR FAILURE TO PROVIDE SUFFICIENT EVIDENCE CORROBORATING THAT DEFENDANT WAS A VICTIM OF DOMESTIC VIOLENCE IS APPEALABLE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice LaSalle, disagreeing with the Third Department, determined that the “dismissal without prejudice” of a motion for a reduced sentence pursuant to the Domestic Violence Survivors Justice Act (DVSJA) constitutes a denial of the motion which is appealable:

… [W]e disagree with the Third Department and conclude that under the plain language of CPL 440.47(3)(a), an order “dismissing” a resentencing application at step two pursuant to CPL 440.47(2)(d) is an order “denying resentencing” … , rendering it appealable as of right pursuant to CPL 440.47(3)(a). This is because the effect of an order “dismissing” a resentencing application is that the defendant has been denied resentencing. We conclude that the fact that the statute uses the word “dismiss” in CPL 440.47(2)(d) (when indicating what the court shall do with an application for resentencing that does not contain evidence corroborating the defendant’s claim that he or she was a victim of domestic violence at the time of the offense) and “denying” in CPL 440.47(3)(a) (when indicating what orders an appeal may be taken from) does not mean that the Legislature did not intend for a defendant to be able to appeal from an order determining that a defendant has failed to provide evidence … corroborating the defendant’s claim that he or she was a victim of domestic violence at the time of the offense. People v Nymeen C., 2026 NY Slip Op 00144, Second Dept 1-14-26

Practice Point: There is a split of authority on the question whether the “denial without prejudice” of a defendant’s motion for a reduced sentence pursuant to the Domestic Violence Survivors Justice Act (DVSJA) is appealable. It is not appealable in the Third Department but is appealable in the Second Department.

 

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