Blog

By Jill K. Sanders, Esq.

In May of 2019, New York’s Domestic Violence Survivors Justice Act (DVSJA) was signed into law. Previously, we mentioned the new law in a blog, and now we’re detailing the nuts and bolts of how survivors of domestic violence may have their sentences reduced.

Why the DVSJA Was Passed

Past trauma can have lingering effects on a person. Moreover, such trauma can lead to criminal justice system involvement. In order to mitigate the harsh effects of punishment on those whose crimes can be linked to their history of trauma, New York passed the DVSJA.

Under the law, a judge has flexibility to sentence those who are survivors of domestic violence to shorter sentences or to alternative programs. In order to be eligible, the offense the person is convicted of must be related to their abuse.

What Must a Domestic Violence Survivor Show

In order to support a motion for sentencing consideration pursuant to the DVSJA, a person must show the following:

• At the time of the offense, the person was a victim of domestic violence (they were subjected to substantial physical, sexual, or psychological abuse inflicted by a member of the same family or household); and
• The domestic abuse was a significant contributing factor to the person’s criminal behavior; and
• Having regard for the nature and circumstances of the crime and the history, character, and condition of the person, a sentence of imprisonment would be unduly harsh.

However, that the abuser does not have to be the victim of the crime for which the person was convicted.

At the DVSJA sentencing hearing, the judge will hear testimony from witnesses and will review evidence. Usually, there are also written and oral arguments from the defense and the prosecution about the person’s eligibility for a reduced sentence and whether such is warranted.

Sentences Available Under the DVSJA

Under the DVSJA, most offenses are eligible for such sentencing consideration. However, there are several offenses which are excluded. According to the law, this excludes:

• First Degree Murder (Penal Law § 125.27)
• Aggravated Murder (Penal Law § 125.26)
• Second Degree Murder (Penal Law § 125.25(5)) (intentionally causing the death of a child less than 14 years old during a sexual act)
• Acts of terrorism (Penal Law Article 490)
• An attempt or conspiracy to commit any of the above-listed offense
• Any offense requiring registration pursuant to New York’s Sex Offender Registration Act

If a person is eligible for such sentencing, the amount of time they must spend in prison may be reduced. Additionally, the amount of time they must serve on parole/post-release supervision can be lessened. And in some cases, they may receive no prison or jail and may be placed on probation.

DVSJA Re-sentencing

For those who were sentenced prior to the law’s enactment, they also have a chance to apply for re-sentencing if they are survivors of domestic violence. In addition to the other criteria set-forth above, a person applying for such re-sentencing must show:

• Crime is an eligible offense and was committed before August 12, 2019; and
• Currently incarcerated and serving a sentence of 8+ years; and
• First-time felony offender, or second-time non-violent felony offender.

References:

• Penal Law § 60.12, “Authorized disposition; alternative sentence; domestic violence cases.” Available at: https://www.nysenate.gov/legislation/laws/PEN/60.12 (last accessed Feb. 9, 2022).
• Criminal Procedure Law § 440.47, “Motion for resentence; domestic violence cases.” Available at: https://www.nysenate.gov/legislation/laws/CPL/440.47 (last accessed Feb. 9, 2022).
• People v. Coles, 2022 NY Slip Op 00678 (2d Dept. 2022). Available at: https://nycourts.gov/reporter/3dseries/2022/2022_00678.htm (last accessed Feb. 9, 2022).

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