New York Domestic Violence Survivors Justice Act (NY DVSJA) was passed in May 2019. This recently enacted law permits the courts to sentence victims of domestic violence to lower alternative sentences if the individuals meet certain statutory requirements. This charge is codified in the recently enacted Penal Law Section 60.12.
Additionally, as of August 12, 2019, New York Criminal Procedure Law allows for resentencing of domestic violence victims previously convicted of crimes before the New York Domestic Violence Survivors Justice Act was passed. The new CPL provision that allows for the resentencing is Criminal Procedure Law Section 440.47.
Importantly, in order to qualify for a sentence reduction under the New York Domestic Violence Survivors Justice Act, individuals must meet strict statutory requirements, which are discussed in great detail below.
What Are the Criteria For An Alternative Sentence Under New York Domestic Violence Survivors Justice Act?
In order to qualify for a reduced sentence under New York Domestic Violence Survivors Justice Act, the Court must conduct a hearing and make the following findings of fact:
- 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; AND
- Such abuse was a significant contributing factor to the defendant’s criminal behavior; AND
- Having regard for the nature and circumstances of the crime and the history, character and condition of the defendant, that a sentence of imprisonment pursuant to Criminal Procedure Law Sections 70.00, 70.02, 70.06, and 70.71(2) or (3), would be unduly harsh may instead impose a sentence in accordance with this section.
What Evidence Can Be Presented At The Hearing to Determine Eligibility for A Lower Sentence Under Domestic Violence Survivors Justice Act?
At the hearing, the Court will hear testimony from witnesses presented either by the prosecution or the defense. The Court will allow oral arguments and written arguments regarding the individual’s eligibility for a reduced sentence pursuant to the New York Domestic Violence Survivors Justice Act. Furthermore, the court will allow reliable hearsay at the hearing.
Which Charges Are Eligible for A Reduced Sentence?
Not all charges are eligible for a reduced sentence under the the Domestic Violence Survivors Justice Act. The following charges are not eligible for sentence reduction:
- Second Degree Murder under P.L. Section 125.25 (5) (killing of a child under 14 years old by a person over 18 years of age during a sexual act)
- First-degree Murder under P.L. Section 125.27
- Aggravated murder under P.L. Section 125.26
- Acts of terrorism under P.L. Article 490
- The attempt or conspiracy to commit any of the above-listed crimes
- Any offense requiring registration under the Sex Offender Registration Act (SORA)
Unless the charge is listed above, it is eligible for a sentence reduction under the Domestic Violence Survivors Justice Act.
What Is the Reduced Sentencing Range Under New York Domestic Violence Survivors Justice Act?
Each felony degree has a different sentencing range under New York Domestic Violence Survivors Justice Act. All of which are significantly lower than what is otherwise authorized by statute on these felony charges:
|Class Felony||Determinate Sentence Term||Post-Release Supervision||Probation Permitted||Alternative Definite Sentence Permitted|
|B First Offense||1 – 5 years||2.5 – 5 years||Yes / 3-5 years||Yes – 1 year or less|
|B Prior Non-Violent||3 – 8 years||2.5 – 5 years||No||No|
|C First Offense||1 – 3.5 years||2.5 – 5 years||Yes / 3-5 years||Yes – 1 year or less|
|C Prior Non-Violent||2.5 – 5 years||2.5 – 5 years||No||No|
|D First Offense||1 – 2 years||1.5 – 3 years||Yes / 3-5 years||Yes – 1 year or less|
|D Prior Non-Violent||2 – 3 years||1.5 – 3 years||No||No|
|E First Offense||1 – 1.5 years||1.5 – 3 years||Yes / 3-5 years||Yes – 1 year or less|
|E Prior Non-Violent||1.5 – 2 years||1.5 – 3 years||No||No|
How Does One Qualify and Apply for a Resentencing Under CPL 440.47 and Domestic Violence Survivors Justice Act?
There is a recent provision in the Criminal Procedure Law under Section 440.47, which allows for resentencing of domestic violence victims on the cases which occurred prior to the enactment of New York Penal Law Section 60.12.
Qualifications for Resentencing Under CPL 440.47
In order to qualify for a resentencing, a domestic violence victim must meet the following criteria of CPL Section 440.47. Specifically:
- The crime must have been committed before August 12, 2019; AND
- The crime must be for an eligible offense; AND
- Applicant must be currently incarcerated and serving a sentence of at least 8 years; AND
- Applicants must be first time felony offenders, or second-time non-violent felony offenders. Applicants sentenced as second violent felony offenders or persistent violent felony offenders are not eligible to be considered for a reduced sentence under CPL Section 440.47; AND
- Applicant must have been the victim, or suffering from the effects, of domestic violence in that he or she was subjected to substantial physical, sexual or psychological abuse; AND
- The applicant’s abuser must have been a family member or someone who lived in the same household or foster home, or someone the applicant has or had an intimate relationship with even if they never lived together.
- The applicant’s abuse must have been a “significant contributing factor” to the alleged criminal behavior. However, the abuser does not have to be the alleged victim of the crime of which the applicant was convicted.
Application for Resentencing of Domestic Violence Victims under CPL 440.47 and New York Domestic Violence Survivors Justice Act:
1. Request Appellate Attorney
If the applicant does not have an appellate attorney, the first step under New York Domestic Violence Survivors Act is to request one. First, you need to submit an affidavit requesting an appellate attorney and certifying that the applicant meets the requirements of CPL Section 440.47. A blank copy of the affidavit can be downloaded here. The form should be completed and returned to the courthouse where you were sentenced. For convictions outside New York City, you should also include a print out showing that you are serving a term of over 8 years. Your DOCCS inmate locator printout will suffice for this purpose.
Where to Mail the Form Requesting An Attorney for CPL Section 440.47 Application?
Send form to the judge that imposed the sentence the applicant is currently serving. * You should also include supporting documents showing that the sentence is at least 8 years
Hon. Robert E. Torres, Administrative Judge Criminal Term, Bronx County Supreme Court 265 East 161st Street
Bronx, NY 10451
New York County:
The CAP Unit – Criminal Term, New York County Supreme Court
100 Centre Street Courthouse, 10th Floor
New York, NY 10013
* You should also send a courtesy copy to sentencing judge as well
Kings County Supreme Court, Criminal Term Motions Department
320 Jay Street
Brooklyn, New York 11201
Honorable Joseph A. Zayas Administrative Judge
Queens County Supreme Court, Criminal Term 125-01 Queens Boulevard
Kew Gardens, New York 11415
Richmond County Supreme Court, Criminal Term Motions Department
26 Central Avenue
Staten Island, New York 10301
2. Receive Approval from the Court for Appointment of Counsel
If the Court approves your request for counsel to assist with a CPL 440.47 motion for resentencing under the Domestic Violence Survivors Justice Act, you will be notified in writing. If your application for counsel under Domestic Violence Survivors Justice Act is rejected because of an error, you should reapply again. If, however it is rejected for another reason, you should contact:
For Applicants Convicted in New York City:
Center for Appellate Litigation
120 Wall Street, 28th Floor
New York, NY 10005 ATTN: Domestic Violence Survivors Justice Act Information
For Applicants Convicted Outside of New York City:
Cynthia Feathers NYS Office of Indigent Legal Services Alfred E. Smith Building
80 S. Swan Street, Suite 1147
Albany, NY 12210
3. Submit Motion for Resentencing Under Domestic Violence Survivors Justice Act
Your assigned appellate attorney, or retained private counsel will file a motion seeking a resentencing on your behalf under the Domestic Violence Survivors Justice Act.
What should be included in my resentencing motion under Domestic Violence Survivors Justice Act?
To qualify for a sentence reduction pursuant to the Domestic Violence Survivors Justice Act, you must show that (1) you were a victim of domestic violence and (2) the abuse was a substantial contributing factor in your criminal behavior.
1. Proof That You Were Subjected to Domestic Violence
Under CPL Sentencing 440.47, your motion for resentencing under the New York Domestic Violence Survivors Justice Act must include that you were subjected to domestic violence. At least one of the documents submitted for proof must be:
- A court record;
- A pre-sentence report;
- A social services record;
- A hospital record;
- A sworn statement from a witness to the domestic violence;
- A law enforcement record;
- A domestic incident report;
- An order of protection.
2. Explain How The Abuse Substantially Contributed to the Crime
The motion for resentencing under New York Domestic Violence Survivors Justice Act and CPL 440.47, should also explain how the abuse was a substantial contributing factor to the criminal behavior in your case. Furthermore, it is helpful to include other mitigating information that will show the Court why the applicant is a good candidate for resentencing. Examples of mitigating information are:
- Behavioral record of your confinement, such as your disciplinary history;
- Participation in parenting, substance abuse, and domestic violence programs, or an explanation of why you are yet to avail yourself of these opportunities;
- Progress toward a GED or completion of any other schooling requirements or technical certifications;
- Maintaining a job while incarcerated.
Contact Experienced New York Domestic Violence Survivors Act Sentencing Attorneys Today
If you have questions about the New York Domestic Violence Survivors Justice Act, or need assistance with preparing a petition for sentencing or re-sentencing, please contact us to schedule a consultation.