The People, etc., respondent, v. M. W., appellant. (2026)

Argued—September 17, 2026

DECISION & ORDER

K/

Appeal by the defendant from an order of the Supreme Court, Queens County (Ushir Pandit–Durant, J.), dated February 4, 2025, which, without a hearing, denied his motion pursuant to CPL 440.47 to vacate his sentence and to be resentenced in accordance with Penal Law § 60.12.

ORDERED that the order is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith.

In 2011, the defendant pleaded guilty to manslaughter in the first degree and was sentenced to a determinate term of imprisonment of 25 years plus 5 years of postrelease supervision.  In March 2023, the defendant moved pursuant to CPL 440.47 to vacate his sentence and to be resentenced in accordance with Penal Law § 60.12. The defendant alleged that he was a victim of domestic violence which was a significant contributing factor in his participation in the subject crime.  The Supreme Court denied the defendant's motion without a hearing, finding that the defendant failed to submit sufficient evidence corroborating his allegations as required by CPL 440.47(2)(c).  The defendant appeals.

The Domestic Violence Survivors Justice Act (DVSJA) “permits courts to sentence defendants to an alternative, less severe sentence if the defendant was a victim of domestic violence and convicted of certain eligible offenses” (People v. Brenda WW., 44 NY3d 594, 598;  see Penal Law § 60.12).  The DVSJA sets forth a three-prong test for entitlement to resentencing:  “(a) at the time of the instant offense, the defendant was a victim of domestic violence subjected to substantial physical, sexual or psychological abuse inflicted by a member of the same family or household as the defendant ․;  (b) such abuse was a significant contributing factor to the defendant's criminal behavior;  [and] (c) having regard for the nature and circumstances of the crime and the history, character[,] and condition of the defendant, ․ a sentence of imprisonment pursuant to [Penal Law §§ 70.00, 70.02, 70.06, 70.71(2), or (3) ] would be unduly harsh” (Penal Law § 60.12[1];  see People v. Brenda WW., 44 NY3d at 598).

A defendant's motion for resentencing under the DVSJA “must include at least two pieces of evidence corroborating the ․ claim,” and “[a]t least one piece of evidence must be either a court record, pre-sentence report, social services record, hospital record, sworn statement from a witness to the domestic violence, law enforcement record, domestic incident report, or order of protection” (CPL 440.47[2][c];  see People v. Latouche, 248 AD3d 1138, 1140).

Here, the defendant's evidence in support of his motion included affidavits of his cousin and friend, as well as hospital records.  Collectively, this evidence corroborated the defendant's allegations that he was a victim of domestic violence subjected to substantial abuse inflicted by his girlfriend R.W. at the time that he committed the subject offense (see People v. Danielle C., 202 AD3d 706, 707).

As the defendant met his burden pursuant to CPL 440.47(2)(c), the Supreme Court was required to “conduct a hearing to aid in making its determination of whether [he] should be resentenced in accordance with [Penal Law § 60.12]” (id. § 440.47[2][e] ).  Accordingly, we remit the matter to the Supreme Court, Queens County, for a hearing and a new determination thereafter of the defendant's motion.

The parties' remaining contentions either are without merit or need not be reached in light of our determination.

BARROS, J.P., WOOTEN, VENTURA and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court