DECISION & ORDER The defendant entered a plea of guilty before the Westchester County Court (Angiolillo, J.) on February 9, 2001, to murder in the second degree, two counts of criminal use of a weapon in the first degree, and criminal possession of a weapon in the first degree, based upon an incident where he shot his wife at the Tarrytown Hilton in 1991. He was sentenced on March 22, 2001, to an indeterminate sentence of 25 years to life on the count of murder in the second degree, to an indeterminate sentence of 12 ½ to 25 years on each count of criminal use of a weapon in the first degree, and to an indeterminate sentence of 5 to 15 years on the count of criminal possession of a weapon in the first degree, to run concurrently. He now makes this motion pursuant to CPL §440.47 to vacate the originally imposed sentence, and to be resentenced pursuant to P.L. 60.12 to a reduced sentence, on the basis that he was a victim of physical and psychological abuse committed against him by his wife1. The People oppose the motion, arguing that the defendant has not met the requirements for a hearing on his application, and that the motion should therefore be summarily denied. They further contend that in any event, he has not met his burden of demonstrating that he suffered substantial abuse, or that any alleged abuse took place at the time of the offense. They contend his abuse allegations are belied by sworn and reliable hearsay evidence, and that he is not entitled to a reduced sentence in light of the manner in which he killed his wife, his lack of remorse, and his flight from two jurisdictions to evade capture. Factual and Procedural Background The defendant entered a plea of guilty before the Westchester County Court (Angiolillo, J.) on February 9, 2001, to murder in the second degree, two counts of criminal use of a weapon in the first degree, and criminal possession of a weapon in the first degree, based upon an incident where he shot his wife at the Tarrytown Hilton in 1991. Immediately after this incident, the defendant fled the jurisdiction to his native country, the Dominican Republic. An indictment was filed against him with the above charges on December 16, 1991, and a warrant was issued for his arrest. He remained at large for nearly 10 years, and was ultimately apprehended in Panama, where he was extradited to the United States in 2001. Upon his return to the United States, the defendant entered a plea to the charges as noted above in the indictment, and was sentenced, on March 22, 2001, to an indeterminate sentence of 25 years to life on the count of murder in the second degree, to an indeterminate sentence of 12 ½ to 25 years on each count of criminal use of a weapon in the first degree, and to an indeterminate sentence of 5 to 15 years on the count of criminal possession of a weapon in the first degree, to run concurrently. His conviction, and sentence, was affirmed on appeal (People v. Grullon, 26 AD3d 904 (2d Dept 2006)). The defendant then made a number of post-conviction motions. The defendant’s first CPL 440.10 motion, which alleged ineffective assistance of counsel for his attorney’s failure to pursue a defense of extreme emotional disturbance, was denied by the County Court (Walker, J.) on January 28, 2009. Leave to appeal that Decision and Order was denied by the Appellate Division, Second Department on April 23, 2009 (People v. Grullon, 2009 NY Slip Op. 70449(U)). The defendant made a second CPL 440.10 motion, arguing that his counsel was ineffective for failing to provide immigration advice, which was denied by the County Court (Zambelli, J.) on February 22, 2012. His motion to reargue that motion was also denied, on October 2, 2012. Leave to appeal the February 22, 2012 Decision and Order was denied by the Appellate Division, Second Department on June 20, 2012 (People v. Grullon, 2012 NY Slip Op 76934U (2d Dept 2012)). The defendant later brought a motion to renew his second CPL 440.10 motion, in which he had contended that his counsel was ineffective for failing to provide immigration advice, based upon a change in the law with the Court of Appeals’ decision in People v. Peque (22 NY3d 168 (2013)). The defendant’s renewed motion was denied by the County Court (Zambelli, J.), by Decision and Order dated January 23, 2015. Leave to appeal that Decision and Order was denied by the Appellate Division, Second Department (People v. Grullon, 2015 NY Slip Op. 80769 (U)). The defendant now brings this motion pursuant to CPL 440.47, seeking a reduced sentence on the basis that he was a victim of domestic violence at the time of the offense. The Domestic Violence Survivors Justice Act In recognition of the direct correlation between domestic violence and women’s incarceration, including that 93 percent of women convicted of killing an intimate partner were abused by an intimate partner in the past, the Domestic Violence Survivors Justice Act (“DVSJA”) was enacted on May 14, 2019 by the New York Legislature (see DVSJA, NYS Assembly Bill Memorandum in Support of Legislation, 2019 NY A.B. 3974; People v. Smith, 69 Misc3d 1030 [County Ct., Erie Co. 2020)). The DVSJA has a dual purpose, first, of expanding upon the existing provisions of alternative sentencing for domestic violence cases, and second, to allow judges the opportunity to resentence currently incarcerated persons for offenses in which certain domestic violence criteria was a significant element of the offense (DVSJA, NYS Assembly Bill, supra). As part of this legislation, Penal Law §60.12 was revised to expand the authorization for a court to impose an alternative, less severe, sentence for a victim of domestic violence who is convicted of certain felonies (Donnino, Practice Commentaries to P.L. §60.12). A separate provision, CPL 440.47, was enacted to make the alternative sentences retroactive to defendants who were previously convicted and sentenced and who would meet the criteria of Penal Law §60.12. The initial requirement for relief under the DVSJA is that the defendant is in the custody of the state [DOCCS], serving a sentence with a minimum or determinate term of 8 years or more with respect to an offense that would be eligible for resentence under P.L. 60.12 (CPL 440.47(1)(a); Donnino, Practice Commentaries to P.L. §60.12). Pursuant to P.L. 60.12, a court may impose a reduced sentence, as specified in the statute, upon a defendant who stands convicted of an eligible felony, when that person, following a hearing, meets three criteria: (1) the defendant, at the time of the offense, was subjected to substantial physical, sexual or psychological abuse inflicted by a member of the same family or household [as defined by CPL 530.11]; (2) the abuse was a significant contributing factor to the defendant’s criminal behavior; and (3) upon consideration of the standard sentencing factors, it would be unduly harsh to impose the otherwise applicable sentence of imprisonment. At a hearing on these issues, “reliable hearsay” is admissible (P.L. 60.12 (1); Donnino, Practice Commentary to P.L. 60.12). Discussion/ Findings In making an application for resentence pursuant to CPL 440.47, as the defendant is here, the statute requires that such application: “must include at least two pieces of evidence corroborating the applicant’s claim that he or she was, at the time of the offense, 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 applicant as such term is defined in subdivision one of section 530.11 of this chapter. At least one piece of evidence must be either 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 protection2. (CPL 440.47 (2) (c)). CPL 440.47 further states that if the court finds that the applicant has not complied with the provisions of paragraph (c) of this subdivision, as set forth above, the court shall dismiss the application without prejudice. Alternatively, if the court finds that the applicant has complied with the provisions of paragraph (c) of this subdivision, the court shall then conduct a hearing to aid in making its determination of whether the applicant should be resentenced in accordance with Penal Law 60.12. If such hearing is held, reliable hearsay shall be admissible (CPL §440.47(2)(d)). In support of his application, the defendant has submitted the affidavits of two individuals, German Lopez, a Spanish translator for the Legal Aid Society who spoke with a number of defendant’s family members by telephone, and Willy Grullon, the defendant’s nephew, who acted as a translator for his own mother from Spanish to English. Significantly, neither of these affidavits are based upon observations or knowledge of the affiants themselves. Rather, each affidavit contains statements made to the affiant by another person or persons, in Spanish, and translated into English by each affiant. Neither affidavit constitutes a “sworn statement from a witness to the domestic violence,” since none of the witnesses who were interviewed gave sworn statements to the person translating, and neither affiant claims to themselves be a witness to any domestic violence. Accordingly, the court finds that the defendant has not complied with the provisions of CPL 440.47 (2) (c), since he has failed to submit at least one piece of evidence that is 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, in support of his application. The defendant’s application is therefore dismissed, without prejudice (CPL §440.47(2)(d)). In any event, even if the statements of the witnesses had been sworn, it is notable that none of these witnesses stated they witnessed domestic violence “at the time of the offense,” as provided in the statute. While there need not be actual physical abuse at the time of the homicide to satisfy Penal Law §60.12, the defendant must be affected by the abuse before the criminal event, and within a reasonable amount of time during which he or she would still be under the influence of such abuse (see People v. Addimando, 67 Misc3d 408 (County Ct, Dutchess County 2020) [resentencing under DVSJA denied where it was not clear that the abuse alleged was carried out by the victim and when it may have occurred in relation to the crime]; People v. Smith, supra [resentencing under DVSJA granted where the victim, a 71 year old man who was having a sexual relationship with the 16 year old defendant, slapped defendant and threatened to kill her with a gun on the night of the murder], cf. People v. Lagas, __ N.Y.S.3d___; 2021 NY Slip Op. 21086 [Defendant resentenced under DVSJA although his sexual abuse occurred remote in time to offense, where he was still suffering its effects at the time of the crime]). The defendant committed this offense on October 26, 1991, at which time he had been in the United States for approximately 7 months, according to his presentence report. Each of the witnesses who gave unsworn statements to German Lopez recounted observations they made while the defendant and victim had lived in the Dominican Republic, which last occurred in 1990 or earlier3. The one witness who gave an unsworn statement to Willy Grullon similarly did not recount any alleged domestic violence that she witnessed in the United States. Thus, even if these statements had been sworn, none of the witnesses stated they witnessed domestic violence “at the time of the offense.” Further, the Court notes that there was no documented history of domestic violence by the victim against the defendant in this case, and he did not mention any such abuse in his interview for the presentence report. In his lengthy statement made at sentencing, the defendant expressed no remorse for killing his wife and did not refer to, or mention, any abuse. Rather, the victim’s sister, in her statement offered at sentencing, made reference to the years of domestic violence suffered by the victim at the hands of the defendant. Accordingly, for the above stated reasons, the defendant’s application is dismissed, without prejudice (CPL §440.47(2)(d)). This constitutes the Decision and Order of this Court. Dated: June 10, 2021
