The People of the State of New York v. TB (2026)

Defendant moves to be resentenced pursuant to CPL 440.47 and Penal Law § 60.12. The People oppose. For the reasons set forth herein, defendant's motion is denied.¹

I. HISTORY

On May 8, 2004, defendant  ² took a taxi to the Capri Whitestone Motel in the Bronx with Cardell Speight, Yusef Russell, and three female acquaintances. While there, defendant, Speight, and Russell robbed Anthony Lowe of three gold chains. After Russell grabbed Lowe's arm and Speight ripped the chains from Lowe's neck, defendant put a gun to Lowe's back and fired a single shot. At some point, defendant also shot Speight, though he was not seriously injured. After shooting Lowe, defendant, Speight, and Russell left the scene of the crime with the three women in the same taxi in which they had arrived. Defendant placed the gun he had used to kill Lowe against the taxi driver's head and ordered him to drive to a location in Manhattan. Lowe survived long enough to tell responding police officers what had happened, but later succumbed to his injuries at a local hospital.

On May 9, 2004, an autopsy performed on Lowe determined that his cause of death was a gunshot wound to the trunk with perforations of the liver and kidney. The medical examiner determined that a bullet entered the lower right side of his back, causing a "blast injury" to his right kidney, tearing it apart, then traveled through the large intestine and the liver, causing bleeding and pain before exiting near Lowe's right hip. The medical examiner also observed evidence of residue around the entrance wound, which displayed a muzzle stamp that was consistent with a tight contact entrance wound, which is caused when a gun's muzzle is pressed against the body. The medical examiner also noted a pattern injury on Lowe's skin that was consistent with a gun sight.

On May 27, 2004, defendant was arrested for killing Lowe.

On June 16, 2004, the Bronx County grand jury voted the instant indictment against defendant and Speight. Defendant was charged with murder in the first degree, in violation of Penal Law § 125.27(1)(a)(vii). Defendant and Speight, acting in concert with each other and "another" (Russell), were charged with two counts of murder in the second degree, robbery in the first degree, and criminal possession of a weapon in the second, in violation of Penal Law §§ 125.25(1), 125.25(3), 160.15(1), and 265.03(2), respectively.

On June 23, 2004, the Bronx County grand jury voted indictment number 2950/2004 against Russell, charging him, acting in concert with "others" (defendant and Speight), with two counts of murder in the second degree, robbery in the first degree, and criminal possession of a weapon in the second, in violation of Penal Law §§ 125.25(1), 125.25(3), 160.15(1), and 265.03(2), respectively. This indictment was later consolidated with the instant indictment.

On April 24 and 25, 2006, Bronx County Supreme Court (Stadtmauer, J.) conducted a pre-trial Wade/Huntley/Mapp/Dunaway hearing.

On April 26, 2006, in separate proceedings in Bronx County Supreme Court (Stadtmauer, J.), both Speight and Russell pled guilty to murder in the second degree, in violation of Penal Law § 125.25(3), conditioned on their agreements to make themselves available to testify as witnesses for the People at defendant's trial, and to testify truthfully if called, with the understanding that, if this condition was met, each would be allowed to withdraw his plea on this case and plead guilty to robbery in the second degree, in violation of Penal Law § 160.10(1), and receive a determinate sentence of twelve years imprisonment with five years post release supervision. Russell also pled guilty to promoting prison contraband in the first degree, in violation of Penal Law § 205.25(2), on an unrelated case

On April 27, 2006, defendant's trial commenced in Bronx County Supreme Court (Stadtmauer, J.). At trial, the taxi driver and all three of the women who were present testified as to their observations. The taxi driver specifically testified that he had seen defendant put a gun to Lowe's back and shoot him during the robbery.

On May 11, 2006, the jury returned its verdict, acquitting defendant of murder in the first degree under Penal Law § 125.27(1)(a)(vii), but finding him guilty of murder in the second degree under Penal Law § 125.25(3).Since the jury convicted defendant of second degree felony murder, they did not render a verdict on second degree intentional murder, per the trial court's instructions. No robbery charges were submitted to the jury.

On June 8, 2006, defendant appeared in Bronx County Supreme Court (Stadtmauer, J.) for sentencing. Wendy Lowe, the decedent's mother, Quanetta Perry, the decedent's great great aunt, and Paul Miller, the decedent's uncle, made victim impact statements. The sentencing court also received letters from defendant's mother GB and two of her care givers, his brother JB and sister IB, and from dozens of defendant's family members, friends, and former classmates and coworkers, many of whom recounted their belief that defendant was innocent or was simply in the wrong place at the wrong time, and none of whom related anything about a history of abuse. Indeed, quite to the contrary, many attested to defendant's loving and supportive home and family. The People requested the maximum sentence, an indeterminate term of imprisonment of from twenty-five years to life. Defendant admitted being present when Lowe was killed, but denied pulling the trigger. Defendant also submitted twenty-one letters to the Court, including one from his mother, and asked the Court to "fashion a sentence that's neither the minimum nor the maximum, yet, nevertheless, addresses all the issues that the Court has to deal with," and to "consider all the people who wrote letters . . . because they saw something good in [him, and] if there is . . . then perhaps he deserves something less than the maximum possible sentence." CT, defendant's Aunt, also spoke on his behalf, saying that "as far as [she could see, defendant] was just at the wrong place at the wrong time," that he had "always tried to do the right thing," that she did not think defendant "hurt anyone intentionally," and that she "believe[d] him to be innocent." Defendant also addressed the Court, sending his condolences to Lowe's family and friends, but adding that "god only knows that I'm innocent," and "humbly asking that you please have mercy, please have mercy for me in this matter." The Court then sentenced defendant to an indeterminate term of incarceration of twenty-five years to life.

On June 13, 2006, in separate proceedings in Bronx County Supreme Court (Stadtmauer, J.), both Speight and Russell withdrew their guilty pleas to second degree murder, pled guilty to second degree robbery, and were each sentenced to a determinate term of twelve years imprisonment and five years post release supervision, in accordance with the promises that were made when they pled guilty. Russell was also sentenced to a determinate term of two years imprisonment and three years post release supervision on the promoting prison contraband conviction, to run concurrently with the sentence imposed on this case.

On direct appeal to New York State Supreme Court, Appellate Division, First Department (herein "the First Department"), defendant raised two claims: first, that he was deprived of due process and his right to present a defense by the trial court's refusal to admit a co-perpetrator's declaration against penal interest, which allegedly inculpated the co-perpetrator as the gunman and excluded defendant, and which would have entitled defendant to have the jury instructed as to the affirmative defense to felony murder; and second, that defendant's constitutional confrontation rights were violated by the introduction of an excited utterance by a non-testifying witness. See People v [TB], 2009 WL 7196684 (1st Dept 2009) (defendant's brief); see also 2008 WL 8169180 (respondent's brief).

On February 19, 2009, the First Department affirmed defendant's judgment of conviction, finding that the trial court "properly exercised its discretion in precluding defendant from introducing a prosecution witness's testimony about an alleged declaration against penal interest made by a codefendant," that the trial court "properly rejected defendant's argument that his constitutional right to present a defense required admission of the declaration," that there was "no reason to believe that the cryptic declaration at issue would have had any likelihood of establishing the affirmative defense, or undermining, in any other manner, the evidence establishing that defendant committed felony murder," and that "the overwhelming evidence of defendant's guilt" rendered any error in excluding the declaration harmless. The First Department further found that defendant's "challenges to the People's introduction of an excited utterance [were] without merit." People v [TB], 59 AD3d 272 (1st Dept 2009).

On April 23, 2009, the Court of Appeals (Pigott, J.) denied defendant's application for leave to appeal. People v [TB], 12 NY3d 814 (2009).

On April 12, 2010, defendant submitted a petition for a writ of habeas corpus in United States District Court, Southern District of New York (herein "the Southern District"), raising the same claims he had raised on appeal.

On November 28, 2011, the Southern District (Buchwald, DJ) denied defendant's habeas corpus petition, declined to issue a certificate of appealability, and certified that any appeal would not be taken in good faith. [TB] v Lee, 2011 WL 5979530 (SDNY 2011).

On October 15, 2015, the First Department denied defendant's pro se writ of error coram nobis, in which he had alleged that appellate counsel had rendered ineffective assistance by failing to argue that trial counsel had rendered ineffective assistance.³

On September 9, 2016, the Second Circuit (Buchwald, J.) denied defendant's motion seeking relief under Federal Rule of Civil Procedure 60(b)(6). [TB] v Lee, 2016 WL 4733155 (SDNY 2016).

On July 18, 2017, the First Department denied defendant's second pro se writ of error coram nobis, in which he alleged that appellate counsel had rendered ineffective assistance by failing to argue that trial counsel had rendered ineffective assistance for other reasons.

On November 2, 2017, the First Department denied defendant's motion to reargue the denial of his second pro se writ of error coram nobis.

On November 15, 2017, defendant's appeal of the First Department's denial of his second pro se writ of error coram nobis was denied.

On September 28, 2018, defendant filed a pro se motion in Bronx County Supreme Court seeking to vacate his judgment of conviction pursuant to CPL 440.10, contending that his trial counsel had rendered ineffective assistance by failing to properly prepare a defense, failing to contact or interview potential witnesses, neglecting to include vital or critical material evidence, and failing to conduct a thorough or intelligently comprehensive cross-examination of the People's expert medical witness, which negatively affected the outcome of his case.

On December 4, 2018, defendant filed a pro se motion in Bronx County Supreme Court seeking a default judgment on his CPL 440.10 motion, contending that the People had conceded the merits of his motion by failing to file opposition papers in a timely manner.

On January 27, 2019, in pro se correspondence with Bronx County Supreme Court regarding his pending CPL 440.10 motion, defendant expressed gratitude that he was able to attend his mother's funeral, whom he described as his "best friend, [his] biggest supporter, [his] everything," and lamented that he would not be able to fulfill his "biggest dream . . . to make it home early, to tell her 'mommy I finally made it back to you.' "

On February 8, 2019, the People filed their affirmation in opposition to defendant's pro se CPL 440.10 motion.

On February 28, 2019, defendant submitted a pro se reply to the People's affirmation in opposition.

On June 20, 2019, Bronx County Supreme Court (Clancy, J.) denied defendant's pro se motion to vacate his judgment of conviction pursuant to CPL 440.10, finding that his claim that the trial court erred in summarily denying his request for new counsel was procedurally barred pursuant to CPL 440.10(2)(c), and that his claim that trial counsel had rendered ineffective assistance by failing to adequately and effectively cross-examine the People's witnesses, by failing to object to highly prejudicial and damaging hearsay, and by failing to introduce vital and material evidence to establish an alternate cause of death for Lowe was also procedurally barred pursuant to CPL 440.10(2)(c), and was unsubstantiated and unsupported pursuant to CPL 440.30(1), (4)(b), and (4)(d).

On January 3, 2020, the First Department (Oing, AJ) denied defendant's application for leave to appeal Justice Clancy's decision denying his CPL 440.10 motion.

Defendant is currently incarcerated pursuant to the judgment of conviction rendered in this case, has an initial release appearance in January 2029, and will be eligible for parole release on May 26, 2029. See https://nysdoccslookup.doccs.ny.gov/ (DOCCS website as of July 23, 2026).

II. INSTANT MOTION

In a pro se application dated January 18, 2022, defendant sought permission to apply for CPL 440.47 resentencing, and assignment of counsel. Defendant's application was submitted on a pre-printed form, on which some entries required him to fill in blanks, while other entries required him to check boxes from a pre-printed list. In pertinent part, defendant's application states that he "was a victim of substantial physical, sexual, or psychological abuse" (though he does not specify which), that the person who abused him was "someone related to [him] by blood or adoption," "someone [he] lived in the same home with," and "someone [he] had an intimate relationship with regardless of whether [he] lived with them," and that "the abuse was a significant contributing factor in [his] behavior." Defendant's application then goes on to specify that he is currently incarcerated and serving an indeterminate sentence of twenty-five years to life, that he committed the instant crime before August 12, 2019, and that he was not convicted of any crimes that would preclude eligibility for relief. Defendant's application concludes with a request for assignment of counsel, in which he contends that he cannot afford to pay an attorney because he is in prison and unemployed.

On March 2, 2022, Bronx County Supreme Court (Clancy, J.) granted defendant's application to submit a motion for resentencing under CPL 440.47, and assigned the Legal Aid Society to represent him on the motion.

On August 11, 2025, defendant submitted the instant CPL 440.47 motion. Defendant contends that at the time he murdered Lowe he was a victim of ongoing domestic violence, "primarily at the hands of his mother," although he was also victimized by his father, and he relates a history of abuse that goes back to his early childhood. Defendant recounts a life that was "shaped and surrounded by violence," with his father inflicting horrific abuse on defendant, his mother, and his siblings whenever he was not in prison, and making threatening telephone calls when he was. Defendant also contends that his mother was a "constant abusive presence" in his life, who "coerced him into making money to fund her drug addiction" and "routinely hurt and degraded" him.

According to defendant, the day he murdered Lowe he had received telephone calls from his girlfriend, who was breaking up with him, and from his father in prison, who told defendant that he would be getting out soon and that when he did he was going to come home, "reclaim his position," and infect defendant with HIV. To cope with this stress, defendant took the last beer in the house, infuriating his mother, who "drove him out of the apartment" and threw a beer bottle at him when he left to meet up with Speight and Russell.

Speight picked up defendant, Russell, and three women in a taxi, and they went to the Capri Whitestone Motel. One of defendant's friends convinced him to carry a gun he had, which made him "feel safer from his father's looming threats." At the motel, defendant exchanged cigarettes with Lowe, a stranger, whom his friends decided to rob. Though it was not his idea, defendant "followed along with the plan," and wound up shooting Lowe in the back, killing him.

Defendant contends that his mother was a significant contributing factor to his murder of Lowe, and urges this Court to look at the cumulative effect of his abuse together with the events immediately surrounding the robbery and murder of Lowe, and to pay particular attention to the circumstances in which he was living. Defendant describes his mother as "violent and erratic," and alleges that she "lost all their money to gambling and drugs, did not provide food or a clean environment, and encouraged and taught violent behavior." In this environment, defendant was "routinely de-sensitized to violence, encouraged to break laws and cause others harm, and often the victim of his mother's wrath." Defendant's mother relied on him to provide her money and drugs and was violent when those needs were not met, and he "was previously criminally involved at [her] behest." As a result, defendant "learned to cope with such abuse through alcohol and drugs."

Defendant notes that his mother had threatened to harm him as he went to go meet his friends, and that defendant "continued to drink and use drugs that night, in part, because of the trauma he carried from his mother." Thereafter, when defendant was "confronted with a potentially violent situation, [his] life-long desensitization to violence, coupled with his traumatic response from the years of abuse and impairment from his alcohol consumption, significantly contributed to his actions the night of the crime."

Based on the foregoing, defendant contends that the sentence imposed is unduly harsh.⁴

Defendant contends that this motion is corroborated by affidavits from his sister, brother, and half-brother, who attest to their experiences growing up in the same household as defendant and the abuses inflicted by defendant's mother and father. Defendant also provides medical records, which he contends corroborate "hospital visits for his broken nose, stabbed hand, and mental health visits," which he in turn attributes to domestic violence. Finally, defendant relies heavily on a psychiatric evaluation report prepared by Dr. Jemour Maddux, which "details the cumulative domestic violence [defendant] suffered throughout his lifetime, how such domestic violence shaped [his] life, the effect of domestic violence on his criminal behavior, and collateral interviews [whereby] Dr. Maddux found that [defendant] was a victim of domestic violence at the time of the offense, and such abuse significantly contributed to the underlying offense."

In support of his motion, defendant attaches the following exhibits, comprising 146 pages: (A) the order from Bronx County Supreme Court (Clancy, J.) granting permission to submit the instant motion; (B) the sentence transcript; (C) an affidavit of Eric Atherton, defendant's half-brother; (D) an affidavit of IB, defendant's sister; (E) the psychological evaluation by Dr. Jemour Maddux; (F) an affidavit of JB, defendant's brother; (G) docket search results for New York County Supreme Court indictment numbers 4769/88 and 4600/91 (pertaining to defendant's father); (H) DOCCS records for defendant's father; (I) Metropolitan Hospital Center records; (J) a letter from Prisoners for Aids Counseling and Education verifying defendant's completion of "English Basic," a DOCCS IPA evaluation record, Alternatives to Violence Project certificates of completion for a "community building" workshop and a "basic course in nonviolent conflict resolution," SUNY Albany General Equivalency Degree transcripts and diploma, an Osborne Association certificate of completion for "Basic HIV/AIDS Curriculum," a NAACP certificate of participation in "Black Awareness/Breaking the Cycle class," a Rehabilitation through the Arts certificate of achievement for participating in the stage crew of "1776 — A Musical," and three DOCCS commendable behavior reports; and (K) letters of "reasonable assurance" from the Osborne Association, Exodus Transitional Community, Inc., Exponents' Building Communities of Recovery program, the Fortune Society, and The Doe Fund, Inc., two letters in support of defendant's parole applications from Columbia University, and letters from Center for Employment Opportunities and the Regional Action Community Program, Inc., acknowledging defendant's interest therein.

On November 7, 2025, the People submitted their affirmation in opposition to defendant's instant motion. They contend that "since defendant has never acknowledged his criminal behavior, his application necessarily fails to establish that any domestic violence that he suffered was a significant contributing factor to that criminal behavior." Additionally, the People contend that defendant's claim that he was a victim of domestic violence subjected to substantial physical, sexual or psychological abuse when he murdered Lowe is not properly corroborated by any court record, presentence 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, in derogation of CPL § 440.47(2)(c) and (d). Finally, the People contend that defendant's application should be dismissed because he has failed to submit sworn evidence that any abuse that he suffered was a significant contributing factor to his murder of Lowe. Accordingly, the People ask that defendant's motion be denied without a hearing, and oppose any reduction of sentence that would be afforded under CPL 440.47 and Penal Law § 60.12.

In support of their opposition, the People submit Justice Clancy's decision on defendant's CPL 440.10 motion.

On November 25, 2025, defendant submitted a reply. In it, defendant contends that contrary to the People's contentions, he provided sufficient evidence to corroborate his claim that he was experiencing substantial abuse at the time he murdered Lowe, consisting of two sworn statements of witnesses to his lifetime of domestic abuse and an expert report that corroborates his status as a victim of ongoing abuse at the time of Lowe's murder, and that he made a preliminary showing that this abuse was a significant contributing factor to Lowe's murder. Thus, defendant urges this Court to order a hearing.

In support of his reply, defendant submits exhibit L, comprising 742 pages, containing: Bellevue Hospital Center records; DOCCS disciplinary, medical, and mental health records; Upstate University Health System records; Metropolitan Hospital Center records; "Case Plan" records; and duplicate copies of the submissions in his prior Exhibits B, H, I, and J, enumerated above.⁵

On December 26, 2025, Bronx County Supreme Court (Hornstein, J.) (herein, "this Court") determined that defendant had met his initial burden under CPL 440.47 and ordered that a hearing be held to assess his claim for relief.

On May 5, 2026, this Court commenced the hearing. The defense called Dr. Maddux, whom the parties stipulated as an expert in psychology. He defined "child abuse" as spurning, rejection, neglect, maltreatment, corruption, and omissions that occurred from birth through the age of seventeen, and described the psychological effects of child abuse as attachment, and emotional, psychological, and behavioral issues. He defined "trauma" as a psychological injury which is related to post traumatic stress disorder, though not as nuanced, and which lasts a lifetime. He related that hypervigilance — which he described as being on guard, looking over your shoulder, and waiting for the next shoe to drop — is a criteria associated with both post traumatic stress disorder and trauma. He noted his reliance on the Adverse Childhood Experiences Study in making his evaluation of defendant. He testified that his assessment of whether a given patient is a "bona fide survivor of child maltreatment" by looking at the specific harm that the patient has endured, and the ramifications of that harm. He indicated that he has been trained to assess a patient's credibility and reliability.

Dr. Maddux testified that he was retained by the defense to determine whether defendant was a victim of domestic violence at the time of the instant offense, and whether that was a significant contributing factor to defendant's commission of the crime, but that his compensation was not dependant on the outcome of his conclusion. He related that he first met defendant on September 26, 2024, and had multiple meetings with him thereafter, and that he found defendant to be reliable to a reasonable degree of psychological certainty. In addition to observing defendant's behavior during their meetings, Dr. Maddux interviewed defendant's siblings JB and IB, and also reviewed records from DOCCS, Bellevue and Metropolitan Hospital, and the Department of Education, as well as defendant's sentencing records, the instant motion submissions, the appellate briefs, and the affidavits of defendant's siblings.

Dr. Maddux analyzed the timeline of the abuse and the criminal conduct, and explained how domestic violence related to functioning and known indicators. He also analyzed anything thematic to domestic violence that was present during the crime, such as over-indexing perceived threats, and weighed other external factors.

Dr. Maddux based a large portion of his report on his interviews with defendant, who related how he endured both physical and psychological abuse by his father in his childhood, including incidents from his childhood that were corroborated by interviews with his siblings. Defendant also told Dr. Maddux that he had observed his father abuse his mother on several occasions, and had observed his mother pull a knife on his father, after which he subdued her and hung her out of the window. Additionally, defendant recounted how his father had made him clean up a significant amount of blood after defendant's father had got into a knife fight with one of defendant's uncles inside their home.

Defendant also told Dr. Maddux about the physical, psychological, and emotional abuse inflicted by his mother, whose drug and alcohol abuse left her zombie-like and led her to neglect her children, which at one point led to their placement in foster care. Defendant indicated that his mother hit him with a variety of objects, including a stick and a cables, had thrown knives and bottles at him, resulting in facial injuries, and on one occasion tried to stab him, which resulted in a defensive injury to his hand. Many of these allegations were corroborated by defendant's siblings.

Defendant told Dr. Maddux that, on the day defendant murdered Lowe, he was living with his mother, who called him names and threw a beer bottle at him, which missed.

Defendant recounted his mother's addictions to PCP and alcohol to Dr. Maddux, remarking that she was like a zombie much of the time, was oblivious to the gas on the stove being left on on one occasion, neglected her children's nutritional needs, and engaged in violent acts with defendant, his siblings, and members of the community, one of whom she assaulted with a knife, which she asked defendant to conceal. Defendant also related how his mother would spread cleaning powder on the floor in front of her door so she would know if anyone had walked near her bedroom, and threatened to squirt him with bleach if he did. Defendant recounted living in a house that was so filthy that child protective services had to intervene to protect the children, resulting in defendant and his siblings being placed in foster care for about a year. Defendant's siblings corroborated some of these observations.

Defendant related how his mother taught him to react violently, going so far as to help him "practice using an instrument to stab certain objects." He further recounted how his mother would reward him with praise, ice cream, and attention when he would get sent home from school for acting violently, and that when he brought home money that he had earned through illegal activity such as gambling, or when be brought home drugs for her, her spurning and emotional unresponsiveness decreased. Defendant also related that, from an early age, his mother would exhort him to "go out and bring back money," which Dr. Maddux labeled as "coercion."

During an interview with defendant, Dr. Maddux noted that defendant had short fingernails, which defendant attributed to nail biting. Defendant also indicated that he had experienced incidents of bedwetting and sleepwalking, which further informed Dr. Maddux' opinion that defendant was a victim of domestic abuse.

As a result of defendant's chronic exposure to domestic violence throughout his life, Dr. Maddux concluded that defendant was impacted by physical and psychological abuse, and that as a result of this abuse defendant started developing violent behavior of his own, began using substances, had issues with judgment and anger, engaged in avoidance, and associated with "high risk people in the community."

Dr. Maddux further concluded that defendant was a victim of domestic violence at the time of the crime, as evidenced by several different events that defendant contended happened on the day he killed Lowe. For example, defendant related that his father had called him from jail that morning and had told him that he would be returning home soon to reclaim his place in the family, and that when he did he was going to stab defendant with an AIDS needle. Additionally, defendant claimed that his mother had thrown a bottle at him that day, as she had done on previous occasions, had called him a "piece of trash," and had exhorted him to "bring home money."

Finally, Dr. Maddux also concluded that defendant's status as a victim of domestic violence significantly contributed to his criminal behavior in the case, opining that defendant "was receiving harassing calls from his father terrorizing him from prison," combined with his mother's conduct that day, and "in the context of stress he was experiencing [that was] unrelated to domestic violence," defendant "went to drink with friends . . . in an effort to escape his family home due to domestic violence." Dr. Maddux opined that defendant's "stress level was already elevated when this domestic violence was occurring, and upon picking up his phone and expecting it to be his father, which it wasn't . . . it was actually one of his co-defendants laughing, saying come out, [which was] almost perfect timing for [defendant] who [was] experiencing acute distress and trauma wanting to drink," which explains "how this incident happened with his mother on the day he drank one of her beers." This left defendant feeling "overwhelmed, trapped, helpless, [angry, terrorized, and fearful]." Thus, "domestic violence . . . puts him in concert with these youth at the location where this shooting occurred." Then, while at the motel, the violence defendant saw when one of his co-defendants put his hands on Lowe and the scuffle that ensued "was triggering."

Notably, Dr. Maddux indicated that he did not have "any data suggesting [defendant] went out to get a gun to try to deal with his abuse," and instead attributes defendant's decision to carry a gun that evening to peer pressure. However, according solely to defendant, "upon holding the gun, [defendant] felt things that improved the stress he was experiencing in his mind," making him feel "more protected" and "less fearful of his father coming home and assaulting him."

Dr. Maddux also opined that defendant was "experiencing hypervigilance at the time of his crime, and would likely demonstrate reactions that would strike people as odd, overdone, too much" because "his own psychological state of trauma . . . skewed his perception of things, including his own behavior in a way that departs from more objective observers."

Dr. Maddux conceded that defendant's use of alcohol that evening — which defendant related made him more intoxicated than he recalls from similar consumption in the past, and made him suspect that "maybe there was something else in addition to alcohol put in his drink," and left him "very disoriented" — also played a "significant role" in defendant's murder of Lowe, and noted that alcohol is known to negatively affect the "braking system in our brains that are supposed to tell us not to do things that are harmful or in bad judgment." Dr. Maddux also conceded that the news that defendant had received that day from girlfriend that she had perhaps infected him with a sexually transmitted disease was a "stressful thing that can make someone want to drink," and thus could also have "had an impact" in defendant's murder of Lowe. Finally, Dr. Maddux further conceded that "community disadvantage" may also have been a contributing factor in defendant's murder of Lowe, though he did not think it was a significant one.

Nevertheless, after "go[ing] through [his] methods," Dr. Maddux concluded, since there was a domestic violence timeline that had been corroborated and that had a cumulative, compounding and disproportional impact, since defendant said that domestic violence affected his functioning that night, since defendant "described experiencing trauma symptoms at the time" such as hypervigilance, and since defendant reported "experiencing flashbacks at the time, all on top of being disoriented due to his alcohol use" and experiencing "acute distress because he was having a bad day," he could rule out the "alternative hypothesis" that something other than domestic violence was a significant contributing factor to defendant's murder of Lowe. While there may have been other factors at play, Dr. Maddux determined that it "would be difficult" to attribute defendant's murder of Lowe to entirely those other factors, without including domestic violence as a significant contributing factor as well.

Dr. Maddux testified that he believed defendant felt remorseful about what happened that night, and that he had taken responsibility for the shooting, insofar as he acknowledges that there is no way Lowe would have died that day "but for what [defendant] indicates he did."

Dr. Maddux described the testing that he had performed on defendant that influenced his evaluation, relying chiefly on a personal assessment inventory as an objective measure of personality functioning, which indicated to him that defendant's psychological symptoms, even years after his murder of Lowe, were indicative of domestic violence victimization. Dr. Maddux compared defendant's results against a validity scale and determined that they were reliable and responsive,and that defendant had neither over-reported nor under-reported his symptoms of domestic abuse. Thus, Dr. Maddux concluded that defendant was experiencing hypervigilance, that he took offense easily, and was somewhat suspicious, though he did not find evidence of psychotic symptoms or the presence of a mental health disorder.

Dr. Maddux related his opinion that defendant is now functioning well, and that he appeared to be bright, rather cheerful, and cooperative during their meetings, though at time he became weepy and tearful, which is uncommon behavior for an incarcerated person to display in the presence of other inmates. He concluded that, although he interviewed defendant twenty years after Lowe's murder, he was able to assess defendant's mental health because people tend to remember horrible things that happened to them when they were very young for the rest of their lives.

Dr. Maddux acknowledged that defendant's interview was conducted with an eye towards obtaining re-sentencing, and thus defendant had a stake in Dr. Maddux's findings, but noted that this did not necessarily mean that defendant was lying or malingering, and reasoned that the methods that he used, the information he collected from multiple sources including defendant's prison records (which show that defendant is still experiencing symptoms of domestic violence such as hypervigilance and acute emotional distress while incarcerated), the significant amount of time he spent with defendant, the "degree of reliability across the data gathered," and the absence of contradictory facts was sufficient for him to conclude that domestic violence impaired defendant's functioning on the day he killed Lowe.

Dr. Maddux also noted that defendant participated in treatment programs while in prison, had access to community and family support, and had plans to obtain shelter and continue his education when he was released.

On cross-examination, Dr. Maddux testified that defendant has taken responsibility for killing Lowe, though he acknowledged that he had seen presentence report and sentencing transcript in which defendant denied his guilt, and that his trial defense was that somebody else shot Lowe. Dr. Maddux related that defendant had told him he had shot and killed Lowe, though he did not intend to, that he "was involved but not trying be," that he only became involved after Speight and Russell jumped Lowe, that he did not foresee them doing that, and that he was unaware that a robbery was going to happen. Dr. Maddux also noted that defendant related that when he grabbed the gun from his waist he had difficulty handling it, and that as the gun was falling he grabbed it and "the pressure of [his] hand hit the button causing a shot." Dr. Maddux found defendant's reference to pushing a button unusual, but he attributed this to defendant's "relative naivety of the events he was involved in that evening," rather than an effort to minimize his conduct. Defendant also told Dr. Maddux that as Speight and Russell were attacking Lowe and stealing his chain, he approached the scuffle, but conceded that defendant did not tell him that he had put the gun directly to Lowe's back, nor that he had also shot Speight. Dr. Maddux also related that defendant had told him that somone had accused him of putting a gun to the taxi driver's head during his flight from the crime scene, though he never admitted to doing that, instead claiming simply that he ran, and Dr. Maddux did not follow up on that particular point.

Dr. Maddux indicated that defendant attributed his lack of clarity about certain details that night to acute distress and heavy inebriation, due to his consumption of "most of" a one-gallon bottle of Hennessy, which defendant speculated might have been spiked because he felt more intoxicated than he usually did after drinking similar quantities of alcohol. Dr. Maddux noted that defendant had developed a serious drinking problem before the night he murdered Lowe, at one point requiring hospitalization for alcohol poisoning, and that defendant's drinking problem continued through his incarceration, as evidenced by correctional records showing that defendant had been disciplined on multiple occasions for having alcohol in cell. Defendant also related that marijuana and prescription pills were "present" that evening, though he did not say whether he actually had any of either, and Dr. Maddux agreed that intoxication could have been a contributing factor to defendant's murder of Lowe, though he believed that domestic violence was the driving force behind defendant's alcohol consumption that day. Dr. Maddux conceded that the conversation between defendant and his girlfriend that day — in which she told defendant that she had been cheating on him and may have given him chlamydia — could also have been a contributing in defendant's decision to go out with his friends and drink heavily that night, and thus could have been a significant contributing factor to defendant's murder of Lowe.

Dr. Maddux testified that he had reviewed the briefs submitted in defendant's direct appeal, but was not aware of any of defendant's other post-conviction motions and writs. Dr. Maddux also allowed that he had not reviewed any police reports, any grand jury transcripts, the trial transcript, or the medical examiner's report, and that he only learned that the injury defendant inflicted to Lowe was a contact wound after he had issued his report.

Dr. Maddux explained that his understanding of what happened at the motel the night Lowe was shot and killed came solely from defendant and from the documents and written materials that he reviewed in conjunction with the issuance of his report, all of which had been provided by defendant's counsel on the instant motion, though he had requested additional documents on his own, including the presentence report, which he only received after his report was completed, and records from the Administration for Childrens Services, which he never received.

Dr. Maddux conceded that although he interviewed defendant's brother and sister, certain details they related were things they had only heard about but had not directly observed, including the specific allegations defendant had made about his mother's conduct on the day he murdered Lowe. Neither of them was present to see defendant's mother throw a bottle at him that morning, nor heard their mother tell defendant not to come home until he had some money that day, and Dr. Maddux admitted that defendant is the only person he spoke to who claimed to have firsthand knowledge that these events took place.

Dr. Maddux explained that he found defendant's mother's alleged exhortation for defendant not to come back without money significant in three important ways: because his mother had "historically exploited him financially, facilitating his commission of crime to support her financially," which his siblings corroborated; because it established an "unbroken chain of domestic violence" that continued into his adulthood; and because "one of [defendant's] theories for why he may have approached the scuffle . . . is perhaps he had in the back of his mind that he had to come home with some money."

Finally, Dr. Maddux conceded that defendant's claim that during the robbery and murder of Lowe he had had a flashback to his mother being assaulted by his father when he was around ten years was made wholly by defendant, completed uncorroborated by any other source, and while it was consistent with defendant being a victim of domestic abuse, it could have been tailored to fit the instant motion.

On May 15, 2026, the hearing continued. The defense called JB, defendant's brother, and IB, defendant's sister. JB, who is four years younger than defendant, testified that their mother was a hoarder whose house was always cluttered and dirty, and who did not provide meals for them, ultimately resulting in her children being placed in foster care for about a year. When they returned after about a year, their father was no longer in the picture. JB recalled that their father was violent and abusive to everyone, at one point dangling their mother out of an eighth-floor window by her feet until defendant pulled her back inside. JB recalled their father beating defendant because of a MacDonald's cup, and noted that he would often go to jail, come home for a week, and go back to jail for years. At one point, when JB asked his father if he was going to be around for more than a week, his father punched him. JB recounted that defendant would try to protect his mother and him. When their father was about to get released from jail, he would call and threaten to stab JB with an "AIDS needle." "That was his thing."

JB testified that their mother used crack cocaine and angel dust, which made her like a zombie or a venus fly trap, and was really erratic depending on who was around. He described her as a paranoid schizophrenic who always carried a kitchen knife and might snap at him or cut him if he asked for food. She would frequently wake up from a stupor and ask her children which of them had been cutting her. She was violent with all three of her children, beating them with cords and broomsticks, throwing things at them, punching and scratching them, and calling them names, though defendant bore the brunt of her violence because he was the oldest. JB testified that the children had to cook and clean to make their mother happy, and gave their mother the money from the jobs they worked. The kids would collect free lunches from different schools because they never had any food in the house, which they thought was normal. While he was living with his mother, he would race to get out of the house before she awoke because she would go off over trivial things, such as a poster being ripped, and become violent.

JB recalled that defendant continued to lived at home after he turned eighteen, and was always drinking. There was always alcohol in the house, and defendant had started drinking as a child. JB related that defendant and his mother had a weird bond. Defendant would buy his mother drugs, and they could be close, but they also were constantly arguing, which led to punching, slapping, and spitting. At one point, when defendant was fourteen, defendant's mother punched him in the nose when he called her a crackhead, and on another occasion had cut his hand with a knife. JB indicated that the violence did not increase over time, but never stopped. He recounted that defendant was still living with his mother in 2004, when defendant killed Lowe.

JB testified that defendant would drink and smoke to cope with the abuse, sometimes along with his mother, and that he would bring his mother beer and pick up drugs for her. Defendant worked three jobs to support himself and his mother.

JB indicated that, on the day defendant killed Lowe, he saw defendant and his mother arguing. JB said he gave defendant fifty dollars to stay out of trouble, and that it seemed like any other day. He recalled that his father was calling a lot around then.

JB indicated that he currently has no relationship with defendant, with whom he last spoke last year, and that he was only testifying because his sister asked him.

On cross-examination, JB testified that he was still in high school when his brother murdered Lowe, and that he left in the morning before noon. He recalled that defendant and his mother were still home when he left, but he was not sure whether his sister was also home. He did not recall defendant getting a call from Cardell.

IB testified that her mother had mental health issues, that she used angel dust and alcohol, and that she was a roller coaster who had episodes pretty often, in which defendant was his mother's main victim. Defendant's mother would tell him that she was trying to make him a man, and would beat defendant more than her brother or her because he had darker skin so the bruises would not show as well. Her mother often carried kitchen knives in her bag and around her waist under her coat, and concealed switchblades in her shoes, boots, and socks. IB recalled one instance where defendant cut his hand when he grabbed a knife from his mother, and another incident where their mother beat defendant after he had cursed, leaving defendant gasping for air, and his mother responded by telling IB to get defendant's inhaler. She related that her mother would encourage the children to drink on New Year's Eve. IB feared that she would end up like her mother, who was verbally abusive to her, but never physically abusive.

IB recalled that defendant was his mother's favorite, and that they became drinking buddies, but that she did not see defendant too often in 2004 because she had just left college and was working and spending most of her time with her boyfriend in Brooklyn. Since she "had one foot half way out the door" and was focused on trying to escape, she did not know whether their mother was still physically violent with defendant at that time, or how they were getting along. She also did not know whether defendant's father was in contact with defendant then. The day before defendant murdered Lowe, IB recalled telling him to be careful of the company he keeps, because she had heard that Speight was running around in the neighborhood with a gun, but that defendant had brushed her off because he was older. She also recalled that her mother had slipped into a coma at one point in 2004, and that defendant had been hospitalized that year for alcohol poisoning.

IB testified that she now talks with defendant as often as she can, that she thinks he has matured, and that she is proud of him for completing his general equivalence degree and taking college courses and exploring different religions while incarcerated.

The parties rested after the testimony of defendant's brother and sister, and the Court heard oral argument. The defense acknowledged that Lowe's murder was "unspeakably devastating," and emphasized that they were not seeking relief under CPL 440.47 to excuse defendant's actions. Rather, they asked this Court "to take into account a more complex understanding of the circumstances around [defendant's] crime and whether the maximum sentence of twenty-five years to life that was handed down reflected the full reality of who [he] was then, what shaped him, and who he is now." The defense argued that they have proved by a preponderance of the evidence that defendant's "life was defined by severe violence, neglect, fear, instability, and maltreatment from childhood all the way until the day" he murdered Lowe, and that abuse was a significant contributory factor to crime. The defense emphasized defendant's acquittal for first degree murder and intentional murder, and while they candidly recognized that there were other contributory factors to Lowe's murder, which might also be significant, they noted that the presence of these other factors do not preclude this Court from finding that the ongoing domestic abuse defendant allegedly suffered at the time he killed Lowe was also a significant contributing factor to his conduct.

In the People's closing argument, they urged the Court not "to forget what this case about," and highlighted the taxi driver's trial testimony about the events of the night defendant murdered Lowe to make their point, specifically noting his account of defendant shooting Lowe in the back, then placing the same gun to his own head and telling him to drive away from the crime scene. They also emphasized the medical examiner's trial testimony that the Lowe's fatal injury was a contact wound. Thus, the People argued, defendant's conduct was not accidental or the result of a mistake, as Dr. Maddux's report and testimony had suggested. The People further submitted that defendant had failed to meet his burden of proof, contending that he had failed to provide testimony or reliable hearsay that established he was a victim of substantial domestic violence that was ongoing at the time of the crime and played a significant contributing factor to its commission. They noted that defendant's self-serving statements to Dr. Maddux do not constitute reliable hearsay, such that they only testimony in support of defendant's claims regarding what happened and what he was thinking on the day he killed Lowe are his own unsworn allegations "filtered through Dr. Maddux." The People conceded that Dr. Maddux was allowed to use his interview with defendant to help him formulate his opinions, but argued that Dr. Maddux' inclusion of defendant's statements in his report and testimony do not convert the allegations defendant makes into reliable hearsay. The People commented on defendant's election not to testify, noting that while he was under no obligation to do so, his choice left this Court without any evidence to consider the extent to which alleged domestic violence he endured played a significant factor in Lowe's murder. The People also highlighted Dr. Maddux' testimony that he could only determine that defendant's reported history was consistent with abuse, but could not actually determine that abuse had occurred, insofar as he can only provide an opinion based on the information that has been provided to him, but cannot determine whether that information was true or accurate. Thus, the People contended, this Court was left with no evidence to support defendant's claim that any abuse defendant suffered was a significant contributing factor to Lowe's murder, no evidence that defendant's mother had screamed at him, thrown a beer bottle at him, and told him not to come back home without money that day, and no evidence that defendant had experienced a flashback to an episode of domestic violence from his childhood during the commission of the instant crime. The People also contended that defendant's denial of his guilt further undermines his motion, insofar as "there is simply no way that the abuse [defendant alleges] can be a significant contributing factor" to his criminal conduct. The People then challenged the credibility of defendant's claims, contending that they were "tailored to fit the needs of the DVSJA . . . and not supported by any other testimony or evidence in this case."

Finally, the People argued that, given the horrific nature of defendant's murder of Lowe, the sentence imposed is not unduly harsh.

The following evidence was received at the hearing:

• Defendant's Exhibits:

(A) Defendant's motion.

(B) Defendant's reply to the People's opposition.

(C) Dr. Maddux' curriculum vitae.

(D) Defendant's New York State Department of Corrections and Community Supervision (herein, "DOCCS") commendable behavior reports.

(E) Defendant's transcript from Bard College.

(F) DOCCS records of defendant's updated disciplinary history.

(G) A letter from Bard College.

• People's Exhibits

(1) The People's affirmation in opposition to defendant's motion.

(2) The trial transcript.

(3) The Office of the Chief Medical Examiner's report of Lowe's autopsy.

• Court Exhibit

(I) A stipulation by the parties regarding excerpts from Dr. Maddux' notes of conversations with defendant.

After oral argument, over the People's objection, defendant made an unsworn statement, reading a letter of apology that he had written to express his "sincere remorse and to say how sorry [he is] for the death of Mr. Lowe." Defendant also apologized to Lowe's family "for [his] act of violence and for the pain and suffering that [he has] caused," and articulated "since that night [he has] never been the same," that he "understand[s] that Lowe's family has experienced more pain than [he] could ever imagine," and he is "left with profound feelings of hurt, grief, regret, and sorrow." He related how, during his imprisonment, he has "taken time to accept the severity of [his] wrongdoings and the harm that [he has] caused," noting that he has been "living in shame" ever since. He concluded by saying that he is now "much older," that he has "repented for his past criminal conduct," and that he is "deeply sorry for the suffering that [he has] caused that can never be undone."

The Court also heard a victim impact statement from Wendy Lowe, the decedent's mother, who told the Court that she wakes up every morning grieving for her son, and "will carry this grief for the rest of [her] life because no parent should bury their child."

Lowe's mother also read a moving letter from Jasmine Lowe, the decedent's sister, who wrote that her "life was forever changed the day [her] brother Anthony Lowe was taken from [her'," and that before his "life was stolen, he was more than just a name on a case file, he was a son, a brother, a friend, and a person who mattered deeply to everyone who loved him." She related that Lowe "had dreams, plans, and a future that he never got a chance" to pursue," and that "every birthday, every holiday, and every family gathering now carries an empty space" that serves as "a reminder of what was taken from [the Lowe family] permanently." She noted that "the pain of this crime did not end on the day [her] brother died, it lives with [the Lowe family] every single day," that her "family wakes up each morning with the wake of grief," and that they endure "lifelong trauma that cannot be undone, repaired, or reduced." She lamented that there is "no sentence reduction that can give [her] brother back" nor "make this loss easier to carry." She urged the Court not to reduce defendant's sentence, contending that "granting a reduction in [defendant's sentence] will serve as a message that the suffering of [Lowe's] family can somehow be measured and minimized, but the truth is, [their] pain is permanent, [their] loss is permanent, and the consequences of this crime are permanent, and the punishment should reflect that permanency." She contended that "justice is not about revenge, justice is about accountability [and] about recognizing the value of life that was taken and the damage that was done," and that leaving defendant's sentence intact is "about honoring the life that was lost and protecting the integrity of justice." She urged this Court to consider that Lowe did not "get a second a chance" or "more time," that he did not live to see his daughter, who was born six weeks after he died, and build his own family, and concluded that "it would be deviant to give [defendant] a second chance at freedom before fully serving his full time."

III. ANALYSIS

In May 2019 the legislature enacted the Domestic Violence Survivors Justice Act, which enacted CPL 440.47 and amended Penal Law § 60.12, "to give the courts discretion to ameliorate the harsh effects of lengthy, mandatory sentences for victims of domestic violence where that violence was a significant contributing factor to their criminal behavior." People v Smith, 69 Misc 3d 1030, 1032 (Erie County Court 2020). While the legislation does not exonerate a defendant or excuse his criminal conduct, it "permits a court to impose, or in cases where a defendant already has been sentenced, to reduce a sentence in consideration of that defendant's status as a domestic violence victim." Id.

To be eligible for relief, defendant must show that, at the time he murdered Lowe, he was a victim of domestic violence who was subjected to substantial physical, sexual, or psychological abuse inflicted by a member of defendant's family or household, and that such abuse was a significant contributing factor to Lowe's murder. CPL 440.47(1)(a); Penal Law § 60.12(1)(a) and (b); People v White, 226 AD3d 1054, 1055 (2d Dept 2024); People v Coles, 202 AD3d 706, 706-707 (2d Dept 2022). This Court should evaluate defendant's murder of Lowe "in light of the cumulative effect of [his] abuse." Smith at 107. Defendant does not need to establish that the abuse he suffered was the exclusive factor behind his conduct, or even an overriding one, as long it was a significant contributing factor, and he is not required to show that he was "in the throes of an attack or that one was imminent." Id.

In support of his motion, defendant must submit two pieces of corroborating evidence, one of which must be a court record, presentence report, social services record, hospital record, sworn statement of a witness to the domestic violence, law enforcement record, domestic incident report, or order of protection. CPL 440.47(2)(c). If defendant's motion is properly corroborated, a hearing is required, in which reliable hearsay  ⁶ is admissible, and the Court can consider oral and written arguments and "any fact or circumstances relevant to the imposition of a new sentence," including defendant's "institutional record of confinement" and his "participation or willingness to participate in programming such as domestic violence, parenting, and substance abuse treatment," as well as his disciplinary history. CPL 440.47(2)(e). Defendant must prove that he is entitled to relief by a preponderance of the evidence. People v Addimando, 197 AD3d 106, 112 (2d Dept 2021).

After the hearing, the Court must then, with regard for the nature and circumstances of the crime, and the history, character, and condition of defendant, determine whether it was unduly harsh to have sentenced defendant under the regular statutory scheme, or whether it would be more appropriate to resentence him pursuant to Penal Law § 60.12. CPL 440.47(1)(c). Here, since defendant was convicted of second degree murder — a class AI felony — the Court would be required to resentence him to a determinate term of imprisonment of at least five years and not to exceed fifteen years, and to impose a five year period of post-release supervision. Penal Law §§ 60.12(3), 70.45(1) and (2). Insofar as defendant has already served twenty-two years, this would result in his immediate release and relieve him of his lifetime parole obligations.

Here, as set forth more fully below, defendant has failed to properly corroborate his motion, and has failed to prove by a preponderance of the evidence that he is entitled to the relief he seeks. In the alternative, upon considering the nature and circumstances surrounding defendant's murder of Lowe, this Court does not find that the sentence imposed was unduly harsh.

A. Defendant Was a Lifelong Victim of Domestic Violence

Defendant identifies two abusers — his mother and father — who are blood relatives, and relates a lifetime of abuses he endured that were inflicted by both of them. This history of abuse is properly corroborated by the affidavits and testimony of his siblings. Additionally, although defendant's father was incarcerated when defendant murdered Lowe, defendant was living with his mother at the time, and this allegation is also properly corroborated by the affidavits and testimony of his siblings. Accordingly, defendant has established that his abusers were members of his family or household. Penal Law §§ 60.12(1)(a) and 530.11, CPL 440.47(2)(c).

B. Insufficient Corroboration

As set forth above, CPL 440.47(2)(c) requires that defendant's motion include two pieces of evidence that corroborate his claim that he was, at the time he murdered Lowe, a victim of domestic violence subjected to substantial physical, sexual, or psychological abuse inflicted by a member of his family or household, one of which must be a court record, presentence report, social services record, hospital record, sworn statement of a witness to the domestic violence, law enforcement record, domestic incident report, or order of protection.

Defendant identifies the affidavits from siblings, his own medical records, and Dr. Maddux psychiatric evaluation report as his corroborative evidence.

1. Affidavits of Siblings

While the affidavits of defendant's sister, brother, and half-brother establish that defendant — and they themselves — endured a lifetime of abuse while they were growing up with their parents, they fall critically short of establishing that this abuse was ongoing at the time defendant murdered Lowe, and of establishing that these alleged abuses were a significant contributing factor to defendant's murder of Lowe, inasmuch as their affidavits and testimony reveal that none of them were actually present to observe any of the abuses that defendant alleges occurred the day he murdered Lowe.

2. Medical Records

While defendant contends that the medical records he provides corroborate "hospital visits for his broken nose, stabbed hand, and mental health visits," the allegation that these injuries were the result of domestic violence is completely unsupported. While these records show that defendant was in the hospital on various dates, they contain no substantive information about why he was there, and make no reference to treatment for a broken nose or a stabbed hand. While one record indicates that defendant complained of pain to his right hand, it also relates that defendant stated that this injury was the result of him punching a wall, and contains no information regarding treatment, nor any indication that the injury was the result of domestic violence.

Moreover, even if these records did corroborate prior instances of domestic abuse, they fail to establish that this abuse was ongoing at the time defendant murdered Lowe, or that any such abuse was a significant contributing factor to defendant's murder of Lowe.

3. Dr. Maddux' Report

Defendant relies heavily on Dr. Maddux' psychiatric evaluation report to corroborate his motion. This report, which was prepared specifically for the instant application, "details the cumulative domestic violence [defendant] suffered throughout his lifetime, how such domestic violence shaped [his] life, the effect of domestic violence on his criminal behavior, and collateral interviews [whereby] Dr. Maddux found that [defendant] was a victim of domestic violence at the time of the offense, and such abuse significantly contributed to the underlying offense."

However, as the People aptly note, defendant's statements to Dr. Maddux are "the only source of information that purport to establish that defendant was a victim of domestic violence at the time of the offense." Moreover, since defendant does not include his own sworn affirmation or affidavit describing the domestic violence he claims to have suffered, Dr. Maddux' evaluation "relies on unsworn information provided by the defendant to establish that Defendant was a victim of domestic violence at the time of the incident."

Although Dr. Maddux also interviewed defendant's siblings, who reportedly related that defendant was still living with his mother when he murdered Lowe, and that they had heard that defendant and his mother had had an altercation that morning, neither was actually present in the home when it allegedly occurred. Thus, their accounts of that altercation are clearly based on statements that defendant had made to them.

Similarly, defendant's claim that he had suffered a flashback to prior incidence of domestic violence in which his father struck his mother during the robbery and murder of Lowe is made by defendant alone, and is not corroborated by any affidavit or testimony, including his own.

Thus, Dr. Maddux's report does not actually corroborate defendant's allegations — it merely serves as the only conduit for them. Since defendant's self-serving statements contained therein do not constitute reliable hearsay, he cannot corroborate his instant motion with claims made therein that are solely attributable to him. See People v BN, 79 Misc 3d 740, 752 (Cayuga County Supreme Court 2023); see also Mingo, 12 NY3d at 574.

Finally, even if this Court were to construe Dr. Maddux' report as corroborating evidence, it does not qualify as a "court record, presentence 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," and thus fails to satisfy CPL 440.47(2)(c).

C. Insufficient Evidence

Defendant has not proved by a preponderance of the evidence that the lifetime of abuse inflicted by his parents was ongoing when he murdered Lowe, and has not proved by a preponderance of the evidence that his parents' abuse was a significant contributing factor to Lowe's killing. This lack of evidence is exacerbated by the absence of an affidavit from defendant in support of his motion and his decision not to testify at the hearing.

1. Absence of Defendant's Affidavit or Testimony

The Court notes that defendant is not required to submit an affidavit in support of his motion, nor to testify at the hearing that was ordered to determine his motion, and does not fault him or his attorneys for not doing so. Indeed, this Court recognizes that not presenting defendant's affidavit or testimony may have been good strategy. The Court believes, however, that it is nevertheless required to consider defendant's failure to submit an affidavit or testify at the hearing as a lack of evidence that is relevant to its determination. See People v A.L., 85 Misc 3d 616, 632 (New York County Supreme Court 2024). After all, defendant is in the best position to articulate how his parents' domestic abuse impacted his killing of Lowe, yet this Court has not received an affidavit nor any testimony directly from him. Rather, this Court was left to consider only the report and testimony of Dr. Maddux, who "served as a conduit for unrecorded, paraphrased, non-cross-examined statements made by [defendant]" during their meetings, which were directly linked to the submission of defendant's instant motion. Id.

2. Insufficient Evidence That Abuse Was Ongoing When Defendant Killed Lowe

While the affidavits and testimony of defendant's siblings amply support a finding that defendant (and they themselves) endured a lifetime of abuse by their parents, none of his siblings can sufficiently attest to any abuse that had a temporal nexus to Lowe's murder. None of his siblings were present when defendant's father allegedly called and threatened him from prison the day he killed Lowe, leaving only defendant's statements — as related by Dr. Maddux — as proof that this call actually happened. Similarly, none of his siblings were present when defendant's mother allegedly threw a beer bottle at him and forced him out of the house earlier that same day, again leaving only defendant's statements — as related by Dr. Maddux — as proof that these interactions actually took place. Additionally, while defendant's siblings affidavits, testimony, and statements to Dr. Maddux corroborate a history of exploitation by defendant's mother, they were not present when their mother allegedly told defendant not to return home without money the day he killed Lowe, once more leaving only defendant's statements — as related by Dr. Maddux — that this actually occurred. Finally, defendant's claim to Dr. Maddux that he had a flashback during the crime to an incidence of abuse from his childhood where his father was violent with his mother is also completely uncorroborated. Indeed, there is no sworn testimony — including from defendant himself — that establishes that any of these incidents actually occurred.

Thus, defendant has failed to establish by a preponderance of the evidence that there was a temporal nexus between his murder of Lowe and the allegations of abuse he levies against his mother and father. People v Williams, 198 AD3d 466, 467 (1st Dept 2021); People v Fisher, 221 AD3d 1195, 1197 (3d Dept 2023).

D. Insufficient Evidence That Abuse Was a Significant Contributing Factor

Dr. Maddux' opinions contained in his psychological evaluation of defendant and elaborated at the hearing testimony are the only evidence before this Court that the abuse inflicted by defendant's parents constituted a significant contributing factor to his murder of Lowe. These opinions — which as previously noted are largely based on defendant's unrecorded, paraphrased, non-cross-examined statements — are not compelling.

To the contrary, several factors contributed to defendant's murder of Lowe that are unrelated to his allegations of domestice abuse including his own intoxication, the fact that his girlfriend had told him that she was cheating on him and had given him Chlamydia, peer pressure from Speight and Russell, and community disadvantage. Thus, even if this Court were to accept defendant's uncorroborated allegations that his father had called him that morning and told him that he would be coming home from jail soon and would stab him with an AIDS needle upon his return, that his mother threw a beer bottle at him and drove him out of the house that day, and that his mother had told him not to come home without money when he left, and that defendant had a domestic violence flashback during the commission of the crime, it cannot conclude that these factors significantly contributed to defendant's murder of Lowe.

E. Conclusion

Defendant has failed to properly corroborate his motion, and has failed to establish by a preponderance of the evidence that he is entitled the relief his instant motion seeks.

F. Alternative Holding

While this Court commends defendant's efforts to better himself while incarcerated, and credits his expressions of remorse, it also notes that he has continually minimized his participation in Lowe's murder, telling Dr. Maddux that he was "involved [in Lowe's robbery] but not trying to be," and that the gun "went off" when he tried to prevent it from falling out of his pants and accidentally "pushed the button." Tellingly, he never told Dr. Maddux that the shot that killed Lowe inflicted a contact wound, nor that he placed the gun to the taxi driver's head when fleeing the murder.

Although defendant maintains that he "has been living in shame" since the crime, that he has taken the time while incarcerated "to accept the severity of [his] wrongdoings and the harm that [he has] caused," and that he has "repented for his past criminal conduct and [is] deeply sorry for the suffering [he has] caused that can never be undone," he has never fully acknowledged the full extent of his participation in Lowe's murder. Moreover, despite his long incarceration, defendant has been able to maintain contact with his siblings and even has a good relationship with his sister, and is eligible for parole release in less than three years. Lowe's family and friends, on the other hand, grieve his loss every day and will never see him again.

Thus, even if defendant did qualify for CPL 440.47 relief, upon considering the nature and circumstances surrounding defendant's murder of Lowe, this Court does not find the sentence imposed under the regular statutory scheme was unduly harsh. Penal Law § 60.12(1)(c). To the contrary, were this Court to resentence defendant pursuant to Penal Law § 60.12(3) — immediately releasing him from custody and relieving him from his lifetime parole obligations — the result would be manifestly unfair to the People and to Lowe's family and friends, whom even defendant acknowledges have "experienced more grief than [he] ever could imagine."

Accordingly, defendant's motion is also denied pursuant to CPL 440.47(2)(f).

IV. CONCLUSION

For the reasons set forth above, defendant's motion to be resentenced pursuant to CPL 440.47 and Penal Law § 60.12 is denied.

This shall constitute the Decision and Order of the Court.

Dated: August 4, 2026

Bronx, New York

SO ORDERED,

HON. STEVEN HORNSTEIN, AJSC

FOOTNOTES

1.   The Court has granted defendant's motion to caption this decision with defendant's initials, rather than his full name, and to use the initials of his family members when referring to them, insofar as this decision discusses highly sensitive matters.

2.   In deciding the instant motion, this Court has relied on the submissions of the parties and the exhibits attached thereto, the hearing transcript and exhibits, the Court file, and the decisional history of the case as cited herein, including the appellate briefs of the parties.

3.   Defendant's coram nobis history is gleaned from the decision issued by Bronx County Supreme Court (Clancy, J.) denying defendant's CPL 440.10 motion (see below).

4.   Defendant submits several documents in support of the proposition that he "is invested in his successful re-entry" into society, which are indeed admirable, but which have absolutely no bearing on the merits of defendant's instant motion.

5.   Many of the hospital records contained in this exhibit pertain to "Daniel St. Hubert" and "Dante White."

6.   Addressing "reliable hearsay" in the context of SORA proceedings, the Court of Appeals enumerated factors which should be considered in evaluating the reliability of proffered hearsay, such as "the age of the conviction and the efforts made to locate relevant documents; whether the proof is corroborated either by the nature of the conviction or other evidence in the record; whether the declarant was under oath or was acting under a duty to accurately report, record or convey information; and whether the circumstances surrounding the making of the statement otherwise bear indicia of reliability," and held that "SORA courts must have the flexibility to make reliability determinations on a case-by-case basis." People v Mingo, 12 NY3d 563, 574 (2009).

Steven Hornstein, J.