Decision after Hearing For Resentencing Pursuant to CPL §§440.47 & 60.12 Decision after Hearing For Resentencing Pursuant to CPL §§440.47 & 60.12 Defendant, Glen Campbell, moved to be resentenced pursuant to CPL §§440.47 and 60.12 alleging that he was/is a victim of domestic violence and that the trauma he suffered was a significant factor in his having committed a home invasion robbery in November 2010. Counsel was assigned to assist the Defendant with this motion and a hearing was conducted related to same. Defendant’s application for resentencing is denied for the reasons stated herein. Background related to Motion: Defendant is serving a 25-year sentence for his conviction after trial of Robbery in the First Degree and other crimes based on his participation in a heinous, armed, home invasion robbery. At the time of the trial, Defendant testified and denied his involvement in the home invasion. After conviction and sentence, Defendant began the process of appealing his conviction. Throughout the appellate process, Defendant consistently denied his involvement in the crimes for which he was convicted and proclaimed to be wrongly convicted. Defendant exhausted every appellate avenue without success. With all appellate options closed, Defendant turned to a newly enacted statute, CPL §440.47, which permits courts to impose reduced alternative, less severe sentences in certain cases involving defendants who are victims of domestic violence. This Court received a request from Defendant for an attorney to assist him in filing a motion pursuant to CPL §440.47 in late August 2022. Defendant had this request notarized in the detention facility where he was housed on August 12, 2022. Ms. Golombek was assigned, pursuant to 18B, in September 2022. Evidence/Documents reviewed: In addition to the hearing transcript, the Court received into evidence and reviewed the following documents: People’s/Respondent A = Trial Transcript People’s/Respondent B = Post judgement motions People’s/Respondent C = Affirmation & Memorandum of Law in Opposition to Defendant’s motion for Resentence pursuant to CPL §440.47 filed, December 14, 2022 Defendant’s/Petitioner 1a = Affirmation in Reply to People’s Affirmation in Opposition, filed December 26, 2022 Defendant’s/Petitioner 1b = Motion for resentencing pursuant to CPL §§440.47 and 60.12, filed October 31, 2022 Defendant’s/Petitioner 3 = Defendant’s counseling records Defendant’s/Petitioner 4 = Defendant’s disciplinary records A review of the counseling records shows an enrollment date of July 11, 2022, and an intake date of August 9, 2022. They likewise reveal that Defendant wrote a letter detailing his “trauma history” dated June 27, 2022. Additional letters were received by the counseling unit on July 25, 2022, wherein Defendant shared a “recent trigger re being double-bunked, disclosure to father, impact of CSA on life.” Another letter was received on July 29, 2022, wherein Defendant shared “distress re mother being in medical crisis, impulse to use drugs though does not current [sic] have access to them.” Two more letters were received on August 1, 2022, dated July 16, 2022, and July 26, 2022, sharing “further details of trauma history” and news of his mother’s passing. Intake occurred on August 9, 2022, and two additional letters dated August 1, 2022, and August 2, 2022 were received on August 11, 2022 “sharing more about trauma history, feelings and symptoms since mother’s death.” Two additional letters were received from Defendant. The letter received on August 16, 2022, was in response to the intake appointment and expressed the Defendant’s “excitement to begin therapeutic work.” The final letter was received on August 17, 2022, wherein Defendant included “further reflections on trauma and addiction history.” A further review of the records shows that Defendant had his first therapeutic telephone session on September 1, 2022, with a “final call” on June 6, 2023. The document details the following related to the closure of this case: “service provided — engagement complete.” Witness Testimony: Marcus Ragbirsingh, the brother of Defendant, testified that he currently does gig work because of a back injury and is mainly supported by his parents. He remembers being protected from bullies by Defendant. He observed Defendant interact with a woman named Tiffany Darby (hereinafter, “Darby”) with whom Defendant had a relationship from 2002 until Defendant’s arrest in 2010. Defendant and Darby shared four children together: Samya, Tamira, Shahira and Myesha. Marcus testified that the relationship was very volatile and Darby verbally abused the Defendant, destroyed personal belongings and threw items, sometimes in the direction of Defendant. Marcus believed that Defendant left Darby two to three times between 2002 and 2008 but he always came back for the children. The following incidents of domestic abuse were recounted by this witness: In 2007/2008 he saw Darby cut the tires on the car belonging to Defendant. In 2008, although not in a relationship, Defendant would see Darby when going to visit with his children. Marcus was present. On one occasion, Darby got on the telephone and called the police whom the witness believes showed up at Defendant’s home in Queens to ask about the telephone call. The witness advised that, in April 2010, Darby would often ask to use his cell phone. On one occasion, he heard Darby on the phone yelling at someone for harassing the children. Also in April 2010, the witness was on Staten Island with Defendant and observed Darby destroying the personal items of Defendant after learning he was leaving her again. Samya, the oldest child, was also observed destroying Defendant’s property. The witness further recounted that in September 2010, while in Queens, Darby used the witness’ cell phone to call a man. She placed the call on “speaker” for Defendant to hear the conversation and proceeded to tell the unidentified person on the other end that she was bringing the children to see him. It should be noted that the People objected to this line of questioning and defense counsel responded that this was part of the psychological abuse endured by Defendant. In September/October 2010, the witness recounted that Darby was in the basement living area with Defendant and the children. He observed her call a man on a cellphone in the presence of Defendant so that Defendant could hear the call. She then went upstairs to the kitchen with Samya and grabbed a knife. The witness also went to the kitchen and observed Defendant come up the stairs to the kitchen. An argument ensued between Darby and Defendant, and Defendant was cut by the knife. This witness says Darby was “jabbing” at Defendant and cut him on his chest and hands. He observed blood on Defendant’s white shirt. The witness saw Darby “egging” Defendant on to engage in a physical altercation. An ambulance was called and Darby left the house. In 2010, Defendant took his children to Florida. Darby called the police and said he took them without permission. This witness does not recall if he ever gave a statement to the police or anyone about the abuse. He says he was never asked to do so until June 2023 when Defendant asked him to write a statement. The witness does recall talking/testifying in Family Court against Darby for abusing the children. SD, the daughter of Defendant and Darby, also testified. She is 19 years old, in college studying nursing and works part time. As a child, she remembers a rocky relationship between her mother (Darby) and father (Defendant) and specifically recalls a Halloween when she was 5 or 6 when Darby put on the witness’ costume and was ripping it. When her father confronted her mother, her mother grabbed a knife and cut her father on his arms. She remembers this incident happening in the back yard of her grandfather’s house. The witness also testified about the abuse her mother inflicted on her and her siblings and Defendant questioning Darby about her behavior towards the children. The witness observed Darby verbally abusing and hitting Defendant during those arguments. S testified in Family Court about the abuse her mother inflicted on her and her siblings. The witness also remembers an incident when she was 6 years old where her mother and father were fighting over her mother selling the witness’ video game console for drug money and the mother yelling at the father for not giving her money. Mark Leonida is a licensed staff therapist at the Crime Victim’s Treatment center since October 2015. He works with all survivors of domestic violence and has known Defendant since September 2022 but has never seen nor met Defendant. His therapeutic work with Defendant took place over the telephone. The witness advised that in his professional opinion, Defendant has a substantial trauma history with the mother of his children and was also abused as a child. This opinion was culled from the self-reported information by Defendant which was not confirmed as true nor corroborated. The witness spoke to Defendant twenty-two (22) times since September 2022. Defendant’s treatment records were placed into evidence. In those records, Defendant never recounted a stabbing by Darby; however, Defendant did advise that Darby “roofied” him to have sex and as a result became pregnant with at least one of his children. The witness advised the Court that Defendant expressed self-blame, shame, and difficulty entering and staying in relationships. He further stated that individuals subject to early childhood adverse experiences are vulnerable to later abuse in relationships. The witness opined that Defendant engaged in “trauma bonding” to keep his kids safe which forced him to stay in an abusive relationship. He believes that Defendant has “taken on a lot” to be a provider for his kids and has “shown progress” by speaking to his daughter. Startayza Hartley is the younger sister of Darby. Hartley has not spoken to, nor seen Defendant, in over ten (10) years. She was asked to testify by S and asked to talk about the abuse she observed between Darby and Defendant. She recounted the following incidents: When the witness was five (5) years old, Darby tried to poison Defendant by feeding him seafood knowing he was allergic to same because Darby was mad at Defendant. She remembers an ambulance coming to the house. On July 4, 2006, the witness was at a BBQ in Prospect Park, Brooklyn, New York. She observed Defendant ask her sister, Darby, to fix him a plate of food. Darby refused, got mad and threw charcoal at Defendant. When the Defendant asked another family member to fix his plate, Darby picked up a rock and hit Defendant in the back of the head with the rock. At another point in 2006, the witness, Darby and Defendant were with other family members at a Red Lobster restaurant. Defendant’s cell phone was ringing but he did not pick up the phone as they were all at the dinner table. Later that evening, the witness observed Darby hit Defendant with a pot because of his actions at Red Lobster. She also is alleged to have grabbed a knife and attempted to stab the Defendant. This witness did not observe any abuse after 2006. JR, Defendant’s father, appeared virtually with the consent of all parties. It was difficult to understand the witness as he would often talk over the attorneys, speak softly, or not understand a question. However, he advised the court that his son recently told him that he was the victim of sexual abuse but didn’t say who sexually abused him. He recounted how he won custody of his children and took them from foster care when Defendant and his two siblings were young. He further advised the Court that he observed an incident in 2010 wherein Darby had a knife in the kitchen and Defendant was coming into the kitchen from the basement. The witness took his grandchildren up to his room and threatened to call the police (but didn’t) and told his son to take a walk. On another occasion, the witness did call the police when Darby and Defendant were fighting in the back yard. The witness testified that he stepped between them but was not sure if either of them had a weapon. The police came and Defendant had left the house before their arrival. When this witness was questioned about the abuse Defendant said he suffered at the hands of this witness and the witness’ daughters, the witness, after admitting to disciplining Defendant by spanking him with the palm of his hands, spoke to a lawyer provided by the Court and invoked his 5th Amendment right not to incriminate himself regarding allegations of his own sexual abuse towards his children. Glenn Campbell Defendant, 44 years old, also testified. He stated that he has completed thirteen (13) years of a twenty-five (25) year sentence for a conviction after trial to Robbery in the First Degree and related charges. Childhood Abuse Defendant recounted his early childhood and advised the Court that at about the age of six, he witnessed his mother’s rape and began being sexually abused by his babysitter. About a year later, Defendant was again sexually abused while in foster care. After foster care, Defendant’s father won custody of him and his siblings. Defendant viewed his father as his protector until his father began to sexually abuse Defendant’s sister and forced Defendant to help the father pin his sister down. Two days later, Defendant and his sister returned to foster care, during which time Defendant claims he was subject to more sexual abuse. When Defendant again returned to his father, after about three months in foster care, his father and his father’s girlfriend would beat him. After one such occurrence when Defendant was eight or nine, Defendant was taken to the hospital, received unspecified treatment, and was sent home. Later, when Defendant was about nine or ten years old, his two sisters made him their “sex slave” for approximately two years (although Defendant “forgot” about one of his sisters’ involvement when he was cross examined about that testimony). Defendant stated that he turned to drugs to hide his pain. Defendant further advised the Court that he “started doing stupid things like burglary and stealing from stores and smoking marihuana and stuff” when he was approximately twelve (12). Defendant stated that he had “more common sense” at this time, and stood up to his sister, threatening to expose the abuse. Defendant admitted, that even before he met Darby, he committed “burglaries for fun” and turned to a destructive life because he wanted to belong. He was convicted and on parole for those crimes by 1999. Relationship with Darby Defendant stated that he met Darby in 1999 when he left home. He admitted to having a “relationship with her until 2006 after Tamira was born” and all the following years “he was trapped” in the relationship. During the time Defendant and Darby were together, Defendant was “in and out” of jail on parole violations. He advised that in addition to his time with Darby, he was with a woman named Melissa from 2007-2008; a woman named Felicia in 2010 whom he married in 2011 and divorced in 2018; a woman named Melissa for three (3) months in 2004 and is currently married to a woman named Melanie whom he married one (1) year ago. The Defendant recounted the following incidents of abuse: In 2002, Defendant was on parole for a 1996 burglary charge. After sleeping with Darby at her apartment in Brooklyn, Defendant needed to get back home for his parole curfew. Defendant and Darby had an argument about his desire to leave. Darby hid his keys and wallet, containing his Metrocard. During this argument, according to Defendant, Darby stabbed him three times in the back of the neck with an unspecified object. According to Defendant, it did not puncture his skin because he had a leather jacket on, but it did make him late for curfew. As a result, he received a parole violation and lost his job. In 2003, Darby cut his wrist after giving birth to Samaya out of fear that he was going to leave her. He stated he received stitches from a hospital in the Prospect Park neighborhood of Brooklyn, although no medical documentation was provided. He advised the Court that this came on the heels of Darby trying to poison him by giving him seafood. He says that she “took it as a joke” but that he could have died. Defendant testified that two incidents occurred in 2009. First, the Defendant advised the Court that Darby “roofied” him to engage in sexual intercourse and that the intercourse was observed by Samya. Second, he alleged that one night his three-year-old daughter Tamira drank a 22-ounce beer. Defendant stated that he cursed at Darby and asked her to let him keep his kids. Darby cursed back at Defendant. Defendant turned around and felt something hit him in the back of his head, which he realized was an ashtray. Defendant went to the hospital and received 16 stitches in his head. Defendant did not call a doctor/ambulance for his daughter because he feared they would take his children away from him. Defendant repeatedly stated that he did or did not do certain things because he did not trust anyone. When his counsel asked him if this lack of trust was due to Darby, Defendant responded that it was due to his father. Sometime between 2007 and 2009, while Defendant was on parole, Darby called him and told him that he had to take the kids. Defendant claimed that he rushed to Darby in Queens. When he arrived, Darby was outside with “the kid” Darby lived with and his friend, who had a gun. Darby was holding the stroller with Tamira and “the kid” was holding on to the bottom of the stroller, refusing to let her leave. Defendant decided not to intervene and took off in his car, apparently leaving his child with the man with the gun. Defendant further testified that as a result of this incident, he lost his job, although he did not explain the connection. After the incident, Defendant moved with Darby to Staten Island to keep a watch over the kids. On April 12, 2010, Defendant confronted Darby about why she called the police on him and said he took the children without permission to Florida. During that argument, Defendant cut his finger when he “grabbed the little knife” Darby was holding. He refused medical attention. Also in April 2010, Defendant attempted to get his things from the house in Staten Island where they had been living. He stated that Darby had thrown everything he owned outside and cut up a lot of his belongings. Defendant alleged another incident in September 2010, which he claimed was “the worst” incident of domestic abuse by Darby. Darby used the Defendant’s cell phone to call another man and Defendant saw his children in that person’s car. Darby told the Defendant to come and take the kids but advised that the Defendant had to take Darby too or she would not let him have the children. Also in September of 2010, the Defendant testified that Darby attacked him with knife. Defendant did not elaborate on the facts of that incident but testified that the “real assault” came in October 2010. During Halloween, 2010, Darby was wearing Samya’s costume and ripping it. When confronted by the Defendant, Darby grabbed a knife. The Defendant attempted to get the knife away from Darby and when he grabbed it, the knife cut his hand. The Defendant advised that he received stitches (without medical documentation) and then proceeded to get high while telling himself that he had to get his kids away. The Crime for Which Defendant Stands Convicted Two days after Halloween, his friend told Defendant about a robbery in Nassau County that he said was his family and that no one would get hurt, but it would be $2 million. Defendant thought that this was an opportunity to get his kids away from Darby because in 2009 he served her Family Court papers but she counter filed stating that Defendant was a robber, stealer and drug dealer, so Defendant dismissed his case because he thought the Court would find them both unfit and take the kids away from both of them. Defendant thought that if he committed the $2 million robbery, he would be able to get a lawyer to help him get custody of his kids. The day of the robbery, Defendant went to Long Island with a bunch of people. Defendant smoked angel dust/PCP and claims that he does not remember anything else until he was at the precinct. Defendant then helped the police apprehend two of the suspects, even though he was still delusional and still in denial. Defendant testified that he committed the crime because he was heavily on drugs, had lost two jobs (which he blames on Darby), had his back against the wall and needed to get his kids away from Darby. He stated that he is very remorseful. On cross-examination about the crime, Defendant agreed that on November 19, 2020, he and other men forced their way into a home in Woodbury at gunpoint. Defendant claimed that he does not remember anything else because he was high on PCP. Although he gave a statement to the police at the time, he was delusional. He does recall helping the police try to apprehend some of the other participants of the crime. In doing so, Defendant called several people, including calling Darby about five times to ask her for help to find one of the participants. Darby helped Defendant locate that participant. Defendant advised the Court that despite having been attacked by Darby just a few weeks before this crime, he was not afraid of her. He was afraid because he knew he had to protect his children. Defendant further recounted that although he does not remember much of what occurred, he pled guilty, got his plea back, proclaimed his innocence and went to trial. Defendant testified in his own defense and denied participating in the crime. He did not testify as to any abuse he now claims to have suffered because it “[d]idn’t have anything to with my abuse or anything like that.” Defendant then backtracked and stated that the crime did have to do with the abuse that “it wasn’t their business.” Defendant also maintained that he didn’t have the strength to talk about the abuse at that time. He also admitted that at the time of his trial, he was still “doing drugs and crack” while incarcerated. He subsequently has his then girlfriend/wife Felicia make up a story to testify at trial with this conversation related to same being captured on the jail recordings. The Defendant did not remember that because he was too high. The Defendant admitted to lying to everyone because he was delusional and on drugs yet never admitted to drug use or childhood abuse when he testified at trial, in the presentence report or upon admission to state prison. This Application The Defendant said he started to mentally process his prior abuse after he learned that his daughter was raped in 2019 which caused Defendant to attempt suicide. He received counseling and was transferred to another correctional facility after completing a program. While there, a correction’s officer grabbed the Defendant’s crotch. Defendant then reached out for help and was eventually put in touch with Mr. Hutchinson in 2021 but had previously received counseling from Ms. Moore in 2015. He stated that he voluntarily entered NA, AA and CASAT between 2016 and 2019. At some point, he completed ART and AUP for anger and violence. Despite all of this, the Defendant said that he continued not to trust anyone and felt helpless until Mr. Leonida began counseling him in 2022. When questioned about his tier infractions contained in his disciplinary records, the Defendant provided excuses. He was “accused of smuggling” while detained in the Nassau County jail and brought a lawsuit for being falsely accused of same. He did not follow through with the lawsuit “because [he] was doing other things.” Regarding his 2019 Tier 3 weapons charge, he advised the Court that a gang member and his co-defendant on the home invasion case, gave him a knife and told him to stab someone. A family member called the prison, at the request of Defendant, and advised of this situation. Defendant believes this happened because everyone thought he was a “snitch” from what happened after the home invasion. The knife was recovered by prison personnel and the Defendant advised that he still had to be put “in the box” even though he caused the knife to be found. Regarding his 2022 Tier 3 weapons charge, the Defendant advised that a gang member made him carry “his stuff” while in prison and that the Defendant voluntarily gave the weapon to a sergeant but was nevertheless sent further upstate as a result of this infraction. During Defendant’ lengthy appeal process, he had his then girlfriend send an affidavit which she signed that she ultimately admitted was a lie. The Defendant stated that someone else asked her to do that, not him. When filing another motion, the Defendant sent an edited version of an attorney’s letter to the court which the attorney then corrected in her response. However, he doesn’t remember what part of the letter he excluded and said it was for brevity and not anything nefarious. He likewise advised the Court that he had Darby arrested between three (3) and four (4) times, but he decided not to press charges each time because it was upsetting the children. He believes there is no proof of this because the records are all sealed and the current attorney had no ability to obtain them. He admitted that every appeal filed prior to this motion, never mentioned abuse during childhood or by Darby. Moreover, Defendant never admitted to being part of the crime between 2010 and 2022. Defendant stated that, although he did talk to/testify at Family Court about Darby’s abuse of the children, he was only able to recount these (and other) events that happened to him with the help of Mr. Leonida. However, Defendant initially sought counseling in about July 2022, filed the motion which triggered this hearing, seeking to be resentenced as a victim of domestic violence, in August 2022, and started meeting with Mr. Leonida in September 2022. Legal Analysis: Defendant seeks resentencing under the Domestic Violence Survivors Justice Act (hereinafter “DVSJA”). The language of the DVSJA “clearly and unambiguously sets forth three factors for a court to consider, namely: (1) whether the defendant was a victim of domestic violence inflicted by a member of the same family or household at the time of the offense; (2) whether the abuse was a significant contributing factor to the defendant’s criminal behavior; and (3) whether, having regard for the nature and circumstances of the crime and the history, character, and condition of the defendant, a sentence in accordance with the customary statutory sentencing guidelines would be unduly harsh.” People v. Addimando, 197 AD3d 106, 111 (2d Dept. 2021); see also Matter of Maria S. v. Tully, 214 AD3d 988 (2d Dept. 2023); People v. Burns, 207 AD3d at 648. Penal Law §60.12 further specifies that to qualify for reduced sentencing under that section, the alleged domestic violence must have been “substantial physical, sexual or psychological abuse.” In People v. Addimando, supra, the Second Department stated that it’s decision “appears to be the first time that an appellate court has the opportunity to address the [DVSJA]” and noted that “ the statute does not expressly set forth the standard of proof or the appropriate evidentiary burden that must be borne by the defendant, as the movant.” The Addimando Court utilized as comparison the evidentiary standard applicable on a motion to vacate a judgment and set aside a sentence, in which “the defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion.” The Court then held that the preponderance of the evidence standard was the appropriate standard for review and analysis of the motion to be resentenced pursuant to the DVSJA. People v. Addimando, supra, at 112; see also, People v. Burns, 207 A.D.3d 646 (2d Dept. 2022) . “The preponderance of the evidence standard requires enough evidence to ‘produce a reasonable belief in the truth of the facts asserted”. Id. at 112 quoting Jarrett v. Madifari, 67 AD2d 396 (1st Dept. 1979). “A party who has the burden of proof by a preponderance of the evidence must prove his or her contention by the greater weight of evidence.” People v. Addimando, supra at 112, quoting 8 Carmody-Wait 2d §56:14). As noted by the Second Department, the legislative history of the DVSJA is “relevant and is not to be ignored, even if words are clear” People v. Addimando, supra at 112 quoting People v. Badji, 36 NY3d 393, 399 (2021). Here, “the legislative history reveals that the statute sought to address harsh punishment received by victims of domestic violence who commit crimes against their abusers. “[A]ll too often in our court system when women are defending themselves against domestic violence, instead of being met with a judge with compassion and assistance and help, the judge is just putting forth punishment” (Stenographic Record at 1572, NY Senate Bill S1077, Mar. 12, 2019 [statement of Senator Carlucci]).” People v. Addimando, at 112. (emphasis added). As an initial matter, determinations as to the credibility of witnesses are the purview of the finder of fact — in this case, this Court — as it saw and heard the witnesses. “[C]redibility determinations of a hearing court are accorded great deference on appeal, and will not be disturbed unless clearly unsupported by the record.” People v. Glenn, 53AD3d 622 (2d Dept. 2008). See, also, People v. Dantzler, 208 AD3d 590 (2nd Dept. 2022). Having seen and heard the witnesses, the Court finds that Defendant and Darby had a volatile relationship for many years. The Court credits the testimony of Defendant and his witnesses to the extent that the Court finds that Defendant met his burden of proof by a preponderance of the evidence to establish that: 1) Darby cut Defendant’s tires on one occasion in 2007 or 2008; 2) Darby destroyed some of Defendant’s personal property in April 2010 in a fit of anger; 3) also in April 2010, Darby and Defendant had an argument, Darby was holding a small knife, which Defendant grabbed and cut his finger; 4) on Halloween 2010, Darby and Defendant had an argument about Darby trying on and ripping their daughter’s costume, Darby grabbed a knife, Defendant grabbed the knife from her and cut his hand; Defendant then proceeded to get high. To the extent that Defendant testified to additional alleged acts of abuse, which are not corroborated, the Court finds this testimony to not constitute abuse and/or not to be credible. The Court finds that Defendant has a self-admitted history of lying when he perceives it to be to his benefit. Further, many of Defendant’s answers were evasive, unsupported by other evidence, contradictory to each other, and/or belied by other evidence. Based on this record, the Court finds that Defendant did not sustain his burden of proving that he was the victim of substantial domestic violence by Darby at the time of the offense, in November 2010. The evidence is insufficient to support a finding that Darby’s behavior toward Defendant rose to the level of “substantial physical, sexual or psychological abuse” as mandated by the statute. See Penal Law §60.12[1][a]; see also, People v. Williams, 198 AD3d 466-67 (1st Dept. 2021). Both instances where Defendant alleged to have been cut by Darby involved Defendant grabbing the small knife that Darby was holding — Defendant does not establish in either instance that Darby attacked Defendant. That Defendant himself did not view these incidents, even if true, as abuse is evidenced by the fact that he failed to tell the one counselor he’s ever trusted, Mark Leonida, about either of these events or about any history of violence from Darby. Defendant told Mr. Leonida about an alleged history of childhood abuse and trauma but as to Darby, only told him that they had a bad relationship. Thus, even if the Court credits the testimony that on two occasions Darby had a knife which Defendant grabbed thereby cutting himself, this testimony does not establish that Defendant suffered substantial physical abuse. The evidence was also insufficient to establish that Defendant was the victim of any such abuse “at the time of” the criminal offense. Defendant established one incident in the six months prior to his commission of the crime — the Halloween incident during which Defendant started an argument with Darby and then grabbed a knife that was in her hand — which occurred almost three weeks prior to the home invasion. This is insufficient to meet his burden of establishing he suffered substantial abuse at the time of the criminal offense. Defendant also claims that he suffered psychological abuse from Darby because she tried to make him jealous with other men. Yet, Defendant also testified that he had a succession of three girlfriends while he was in a relationship with Darby. Clearly Defendant and Darby had a toxic relationship. Defendant, however, has failed in meeting his burden of establishing that he was the victim of substantial abuse in that relationship. Even if Defendant could (although on this record, he did not), establish that Darby subjected him to substantial abuse in the past, this is not sufficient to warrant resentencing. “Although the DVSJA does not require that the abuse occur simultaneously with the offense or that the abuser be the target of the offense, and applies even in the context of nonviolent and drug offenses, the ‘at the time of’ language must create some requirement of a temporal nexus between the abuse and the offense or else it is meaningless.” People v. Williams, supra at 466-467. Moreover, abuse allegedly suffered by Defendant, during his childhood does not satisfy the temporality element. See, People v. B.N., 79 Misc.3d 740 (S.Ct. Cayuga Cty. 2023). Here, the alleged childhood abuse he suffered from a variety of sources over a decade prior to the home invasion he committed “was too far removed in both time and causal relationship to qualify for purposes of this DVSJA application.” People v. B.N., supra. Additionally, even if the Court were to find that Defendant suffered substantial abuse at the time of the offense (which it does not), Defendant fails in his burden of proving by a preponderance of the evidence that the abuse was a significant contributing factor to the defendant’s criminal behavior. Defendant testified that he knowingly agreed to become part of this planned crime because it would be a lot of money and he thought no one would get hurt. To the extent that Defendant testified that he felt he needed the money to hire a lawyer to help him get custody of his kids, the Court finds this testimony to be incredible. Defendant testified that he had previously filed a petition with Family Court to gain custody of his kids, but withdrew it after Darby threatened to bring to light his prior criminal history. There is no rational basis for the Court to believe that Defendant felt that committing an even more serious crime to the ones which he believed would disqualify him from obtaining custody of his children would somehow further this goal. Moreover, in his initial motion seeking relief, Defendant claimed that he committed this crime at least partially as a result of his substance abuse, which he blamed on Darby, because he planned to use the proceeds from the home invasion to buy more drugs and alcohol. The Court finds that the Defendant was presented with an opportunity to make a lot of money quickly and he gave in to that temptation without regard to the consequences for the victims or his children and that substantial abuse was not a significant contributing factor in his decision. Finally, the Court finds that, having regard for the nature and circumstances of the crime and the history, character, and condition of the defendant, a sentence in accordance with the customary statutory sentencing guidelines is not unduly harsh. Defendant has a lengthy criminal record. He testified that he began committing burglaries at a young age “for fun.” In fact, Defendant was convicted in 1996 of Burglary in the Second Degree and other charges, as well as for Grand Larceny in the Third Degree for another incident, for which he was sentenced to concurrent periods of 2-6 years incarceration. After his release, Defendant had several more convictions including a 1999 conviction for Criminal Possession of a Weapon in the Fourth Degree, a 2004 conviction for Grand Larceny in the Fourth Degree, and a 2004 conviction for Grand Larceny in the Third Degree, for which he received sentences of 1 ½-3 years incarceration. He has additionally received numerous parole violations, as well as disciplinary charges while incarcerated. As for the crime for which Defendant seeks to be resentenced, Defendant claims that he first learned about the planned crime two days after Halloween. The crime itself was committed on November 19, 2020, giving Defendant well over two weeks to reassess his desire to participate in it. Defendant provided no evidence of having suffered any continued abuse during that period. Nonetheless, on that date, defendant and his coconspirators forced their way into a private home at gunpoint. Once inside, the participants tied up and held down men, women and children. Defendant himself pulled a teenage girl out of her room by her hair, dragged her down the stairs and held her at gunpoint with the rest of her family. After his arrest, Defendant made controlled phone calls, which were admitted into evidence, to his coconspirators but also to Darby, asking her for help. Defendant testified at the hearing that he was not afraid of Darby and that his motive for participating in the home invasion was to “protect [his] kids.” The Court finds Defendant’s claim that he committed this home invasion in order to protect his kids to be devoid of credibility and just another in a long line of excuses Defendant has offered in order to avoid taking responsibility for his actions. After he took back his guilty plea, Defendant attempted to suborn perjury, asking potential witnesses to lie on his behalf both at trial and during the appellate process. Although Defendant claimed to be remorseful for his actions, his testimony evinced a pattern of Defendant refusing to take responsibility for his own actions. The Court finds that Defendant has amnesia of convenience, having trouble remembering facts and events that he seeks to avoid. Defendant also demonstrated a pattern of minimizing his own role in the volatility of his relationship with Darby, even though by his own admission he frequently started arguments, yelled at her publicly for things such as not fixing him a plate of food at a family picnic, and cursed at her. Most obvious of all, Defendant repeatedly testified to alleged childhood abuse which he claimed he had not discussed with anyone or come to terms with until he started meeting with his counselor Mark Leonida. The facts are clear, however, that Defendant began the process of seeking to be resentenced on the basis of being a victim of domestic abuse before he ever met Mr. Leonida. The sentence imposed by this Court after trial is warranted based on Defendant’s role in the crime; the heinous nature of the crime; Defendant’s criminal history; the history, character and condition of Defendant; and his lack of acceptance of responsibility. Based on the above, Defendant’s application to be resentenced is hereby DENIED in its entirety. Dated: October 16, 2023
