THE PEOPLE OF THE STATE OF NEW YORK v. ALBERT (2026)

MEMORANDUM AND ORDER

Calendar Date:  September 16, 2026

Appeal from an order of the Supreme Court (Richard Sise, J.), entered July 31, 2025 in Saratoga County, which denied defendant's motion for resentencing pursuant to CPL 440.47, after a hearing.

In April 2019, defendant was convicted of manslaughter in the first degree and tampering with physical evidence related to the fatal stabbing of his spouse's relative (hereinafter the victim).  He was thereafter sentenced to a prison term of 20 years, to be followed by five years of postrelease supervision, for the manslaughter conviction and a prison term of 1 to 3 years for the tampering with physical evidence conviction, with the sentences to run concurrently.  This Court affirmed the judgment of conviction upon defendant's subsequent appeal.  In April 2025, defendant moved for resentencing pursuant to the Domestic Violence Survivors Justice Act (see CPL 440.47;  Penal Law § 60.12, as amended by L 2019, ch 31, § 1;  L 2019, ch 55, § 1, part WW, § 1 [hereinafter the DVSJA] ), alleging that he was abused by his father during childhood and, more recently, by his spouse and the victim, and this abuse was a significant factor in his criminal conduct.  Following a hearing, Supreme Court denied the application, findingthat defendant failed to prove that he suffered substantial abuse at the time of the offense.  Defendant appeals.

“The DVSJA, as embodied in Penal Law § 60.12, was amended in 2019 to providea more compassionate sentencing scheme for survivors of domestic violence whocommitted offenses related to that abuse” (People v. Angela VV., 229 AD3d 955, 956 [3dDept 2024] [internal quotation marks and citation omitted], affd 44 NY3d 1061 [2025];  see People v. Duane MM., 248 AD3d 1570, 1570 [3d Dept 2026], lv denied 46 NY3d 927 [2026] ).  To obtain relief under the DVSJA, a defendant must demonstrate by a preponderance of the evidence “that he or she was the victim of substantial physical, sexual or psychological abuse inflicted by a family or household member at the time of the offense, that such abuse was a significant contributing factor to the underlying crime, and that an otherwise authorized sentence would be unduly harsh in light of the nature of the crime and the defendant's history, character and condition” (People v. Isiah RR., 251 AD3d 1279, 1280 [3d Dept 2026];  see Penal Law § 60.12[1];  CPL 440.47[1][a];  [2][e] ).  Pertinent here, “[t]he first of those factors explicitly involves both the timing as well as the nature and severity of the abuse and, although nothing in the DVSJA requires a finding that the abuse and the offense occur contemporaneously, the statutory language requiring that the abuse occur at the time of the instant offense would be rendered meaningless unless it created a requirement that a temporal nexus exist between the abuse and the offense” (People v. Devon Y., 247 AD3d 1367, 1369 [3d Dept 2026] [internal quotation marks and citations omitted];  see People v. Liz L., 221 AD3d 1288, 1290 [3d Dept 2023] ).

In support of his application for resentencing, defendant relied upon his own sworn affidavit and those of his two siblings.  This evidence corroborated defendant's allegations that he was subjected to substantial physical abuse by his father during childhood until he left home at the age of 17.  Nevertheless, notwithstanding the severity of the abuse suffered, defendant failed to demonstrate any temporal connection between his father's abuse during his childhood and his underlying criminal offense some 40 years later.  Although we are mindful of the pervasive and detrimental nature of abuse, “the statutory language requiring that the abuse occur at the time of the instant offense would be rendered meaningless unless it created a requirement that a temporal nexus exist between the abuse and the offense” (People v. Fisher, 221 AD3d 1195, 1197 [3d Dept 2023] [internal quotation marks and citation omitted], lv denied 41 NY3d 1001 [2024] ).  As to defendant's allegations that he suffered ongoing abuse by his spouse who would “slap” him and that she and the victim would also frequently verbally threaten him, we agree with Supreme Court that the alleged condemnable behavior did not constitute substantial abuse as is contemplated by the DVSJA (see Penal Law § 60.12[1];  People v. Rivera, 230 AD3d 517, 519 [2d Dept 2024], lv denied 43 NY3d 965 [2025];  compare People v. Ava OO., 233 AD3d 1186, 1187–1188 [3d Dept 2024] ).

In view of defendant's failure to demonstrate that he suffered substantial abuse “at the time of the instant offense” (Penal Law § 60.12[1][a];  compare People v. Isiah RR., 251 AD3d at 1281;  People v. Devon Y., 247 AD3d at 1370;  People v. Boyd P., 232 AD3d 1000, 1002 [3d Dept 2024], lv denied 43 NY3d 1006 [2025];  People v. Liz L., 221 AD3d at 1290–1291;  see also People v. Niquasia MM., 230 AD3d 1473, 1475 [3d Dept 2024] ), Supreme Court did not err in denying defendant's application for resentencing pursuant to the DVSJA.

Reynolds Fitzgerald, J.P., Fisher, McShan and Corcoran, JJ., concur.

ORDERED that the order is affirmed.

Mackey, J.