DEFENDANT PRESENTED SUFFICIENT EVIDENCE THAT HE WAS THE VICTIM OF ABUSE BY HIS GIRLFRIEND AT THE TIME OF THE OFFENSE TO WARRANT A HEARING ON HIS MOTION TO VACATE HIS SENTENCE AND FOR RESENTENCING PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his sentence and for resentencing pursuant to the Domestic Violence Survivors Justice Act (DVSJA) should not have been denied without a hearing. The court explained what a defendant must demonstrate to warrant a hearing:

The Domestic Violence Survivors Justice Act (DVSJA) “permits courts to sentence defendants to an alternative, less severe sentence if the defendant was a victim of domestic violence and convicted of certain eligible offenses” (… see Penal Law § 60.12). The DVSJA sets forth a three-prong test for entitlement to resentencing: “(a) at the time of the instant offense, the defendant was a victim of domestic violence subjected to substantial physical, sexual or psychological abuse inflicted by a member of the same family or household as the defendant . . . ; (b) such abuse was a significant contributing factor to the defendant’s criminal behavior; [and] (c) having regard for the nature and circumstances of the crime and the history, character[,] and condition of the defendant, . . . a sentence of imprisonment pursuant to [Penal Law §§ 70.00, 70.02, 70.06, 70.71(2), or (3)] would be unduly harsh” … .

A defendant’s motion for resentencing under the DVSJA “must include at least two pieces of evidence corroborating the . . . claim,” and “[a]t least one piece of evidence must be either a court record, pre-sentence report, social services record, hospital record, sworn statement from a witness to the domestic violence, law enforcement record, domestic incident report, or order of protection” (CPL 440.47[2][c] …).

Here, the defendant’s evidence in support of his motion included affidavits of his cousin and friend, as well as hospital records. Collectively, this evidence corroborated the defendant’s allegations that he was a victim of domestic violence subjected to substantial abuse inflicted by his girlfriend R.W. at the time that he committed the subject offense … . People v M.W., 2026 NY Slip Op 05815, Second Dept 10-7-26

Practice Point: Consult this decision for an explanation of the evidence a defendant must present to warrant a hearing on a motion vacate a sentence and for resentencing pursuant to the DVSJA.​