DECISION & ORDER The Defendant was arrested on four separate occasions, and now stands having pled to various criminal offenses on five separate indictments and one docket number, including, amongst other things, several counts of Burglary in the Second Degree, and Several Counts of Grand Larceny in the Fourth Degree. On May 9, 2023, the Defendant appeared before this Court and pled guilty to four counts of Burglary in the Second Degree, two counts of Grand Larceny in the Fourth Degree, two counts of Forgery in the Second Degree, and one count of Possession of a Forged Instrument, along with promised sentences under each pled count, including a determinate sentence of eight (8) years imprisonment and five (5) years of post-release supervision on each of her burglary pleas, set to run concurrently. The Defendant now moves pursuant to Penal Law Section §60.12 for a reduced sentence under the Domestic Violence Survivor Justice Act (hereinafter “DVSJA”). Penal Law §60.12 allows a court to reduce a defendant’s sentence where it has been demonstrated that: (a) the defendant was the victim of an abuse relationship at the time of the offense; (b) such abuse was a significant contributing factor in the commission of the offense; and (c) the sentence is unduly harsh considering the circumstances of the crime and the character of the defendant. The DVSJA requires a court to make highly individualized determinations under each of its three elements. See People v. Theresa G., 78 Misc. 3d 1139, 1140 (Sup. Ct. Kings County 2023). In this case, the court finds that the Defendant has met her burden of proving each element by a preponderance of the evidence and the motion is granted. The People concede that the Defendant was a victim of domestic violence at the time of the offenses, perpetuated by her then boyfriend, Thor Guenther, who the Defendant asserts orchestrated many of the acts the Defendant has pled to. Therefore, the first element under §60.12 is met. The People further concede that the domestic violence suffered by the Defendant was a significant factor in the commission of these offenses. Although the People made a record regarding the lack of explicit evidence before the Court that would demonstrate that domestic violence was the driving force behind the Defendant’s commission of these crimes, the People ultimately conceded this point in oral argument. The Court has reviewed the evidence presented in this case, including various Domestic Incident Reports, letters sent from the Defendant’s ex-boyfriend to her, the Pre-Sentencing Report, progress notes from Silver Lake Support Services, and various medical records. After reviewal of this evidence and upon consideration of the arguments of Defense counsel and the Prosecution, this Court finds that the second element under §60.12 is also met. There is ample evidence before this Court that a significant motivating factor behind the Defendant’s commission of these crimes was the influence of Thor Guenther, and the pressure on the Defendant to financially provide for him. This brings us to the third element, and whether sentencing the Defendant without the benefit of the DVSJA would be unduly harsh considering the crime and character of the Defendant. The People contend that given the potential exposure the Defendant faces across all five of her criminal cases, particularly as a mandatory predicate felon, that the Defendant would already be receiving a benefit in only being sentenced to eight (8) years in prison. Taking this into consideration, the Court finds that sentencing the Defendant without the benefit of the DVSJA would be unduly harsh. The Court has reviewed the evidence presented, and although the actions here are not the Defendants only criminal history, this Court is satisfied that the Defendant has demonstrated that she has suffered various forms of domestic abuse and substance abuse from a young age. She has come to court each and every time that this case has been before this Court, and the Court has had various opportunities to access her demeanor. She has made strides to improve herself while these cases have been pending, as demonstrated by the record. As this Court finds that the Defendant qualifies for re-sentencing under Penal Law §60.12, the Court must determine what reduced sentence is appropriate under these circumstances. In determining this sentence, the Court is mindful of the potential exposure the Defendant would have faced had she not pled, and nature of the various C Violent felonies the Defendant admitted to having committed. In light of the facts and circumstances presented in this case, the Court is sentencing the Defendant to the maximum possible sentences after the application of the DVSJA. Therefore, the reduced sentence of the Defendant is as follows: five years imprisonment with two years of post-release supervision, along with final orders of protection on counts 1, 2, 3, and 22, of indictment number 00070-2021, all four Burglary in the Second Degree; three years imprisonment with one year of post-release supervision on count 1 of indictment number 000123-2021 and count one of indictment number 000130-2021, both Forgery in the Second Degree; one and one-half years imprisonment with one year of post-release supervision and final orders of protection on count 16 of indictment number 00070-2021 and count 1 of indictment number 00099-2021, both Grand Larceny in the Fourth Degree. These sentences are to run concurrently. The Defendant’s sentence of a one-year conditional discharge under SCR-07088-2019 is unchanged, and shall run consecutively to the aforementioned sentences of imprisonment. This constitutes the decision and order of the Court. Dated: September 8, 2023
