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A HEARING ON A DEFENDANT’S ELIGIBILITY FOR AN ALTERNATIVE SENTENCE PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) CANNOT BE WAIVED AS A CONDITION OF A PLEA AGREEMENT; SENTENCE VACATED AND MATTER REMITTED (FOURTH DEPT). ​

The Fourth Department, vacating defendant’s sentence and remitting the matter, determined defendant’s waiver of a hearing on whether he was eligible for an alternative sentence pursuant to the Domestic Violence Survivors Justice Act (DVSJA) was invalid:

Defendant appeals from a judgment convicting him, upon his plea of guilty, of two counts of manslaughter in the first degree (Penal Law § 125.20 [1]). As a condition of his plea, defendant waived his right to a Penal Law § 60.12 hearing to determine his eligibility for an alternative sentence under the Domestic Violence Survivors Justice Act. Inasmuch as “section 60.12 hearings are not waivable as a condition of a plea agreement” … , we agree with defendant that this matter must be remitted for further proceedings, including a Penal Law § 60.12 hearing should defendant request one … . We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for further proceedings…. . People v Jones, 2026 NY Slip Op 03527, Fourth Dept 6-5-26

Practice Point: A defendant cannot waive a hearing on eligibility for an alternative sentence pursuant to the DVSJA as a condition of a plea agreement. Here defendant’s sentence was vacated and the matter was remitted for a hearing if defendant requests it.

 

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