THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DANIEL DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from an order that denied his application for resentencing pursuant to the Domestic Violence Survivors Justice Act (DVSJA) (see CPL 440.47; Penal Law § 60.12). Defendant contends that Supreme Court erred in determining that he failed to meet his burden of proof. We affirm.

Defendant—then 22 years old, with his infant son in his arms and while attempting to evade Child Protective Services—broke into an apartment and, upon being confronted by the occupant, took out a pocket knife and slashed the occupant's throat, seriously injuring him. Defendant pleaded guilty to burglary in the first degree (Penal Law § 140.30 [2]) and endangering the welfare of a child (§ 260.10 [1]). Defendant thereafter requested and was granted permission from the court to apply for resentencing pursuant to the DVSJA (see CPL 440.47 [1] [a]). After defendant submitted evidence pursuant to CPL 440.47 (2) (c), the court conducted a hearing pursuant to CPL 440.47 (2) (e) and, thereafter, denied defendant's application for resentencing, determining that he failed to establish by a preponderance of the evidence that he met any of the three conditions stated in Penal Law § 60.12 (1). We affirm.

Pursuant to Penal Law § 60.12 (1), the sentencing court may, in its discretion, apply an alternative sentence if it determines following a hearing that the defendant has established, by a preponderance of the evidence, that: (1) “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”; (2) “such abuse was a significant contributing factor to the defendant's criminal behavior”; and (3) “having regard for the nature and circumstances of the crime and the history, character and condition of the defendant, ․ a sentence of imprisonment [in the original sentencing range] would be unduly harsh” (id.; see People v Felix E., 244 AD3d 1815, 1816 [4th Dept 2025], lv denied 45 NY3d 970 [2026]; People v Krista M.G., 228 AD3d 1300, 1301 [4th Dept 2024], lv denied 42 NY3d 1036 [2024]).

With respect to the first element, “[a]lthough the DVSJA does not require that the abuse occur simultaneously with the offense or that the abuser be the target of the offense ․ the ‘at the time of’ language must create some requirement of a temporal nexus between the abuse and the offense or else it is meaningless” (People v Williams, 198 AD3d 466, 466-467 [1st Dept 2021], lv denied 37 NY3d 1165 [2022]). Here, although defendant testified to a history of childhood abuse and violence, there is nothing in the record establishing that the abuse continued into his adulthood. Based on our review of the record, defendant had no contact with either his father or stepfather in the years leading up to the incident, and defendant moved out of his mother's home at age 20. Thus, defendant failed to meet his burden of establishing by a preponderance of the evidence that he was “a victim of substantial abuse during the years leading up to the [offense]” (Felix E., 244 AD3d at 1817). Where a defendant fails to establish their burden of proof as to the first element, the second and third elements fail automatically, inasmuch as there is no substantial physical, sexual or psychological abuse that could contribute to the offense or be considered in regard to the defendant's condition (see generally Penal Law § 60.12 [1]; Krista M.G., 228 AD3d at 1301). The court therefore did not err in denying defendant's request for a lesser sentence pursuant to Penal Law § 60.12 (see § 60.12 [1] [a], [b]; Krista M.G., 228 AD3d at 1302).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court