DECISION & ORDER Defendant J.M. moved for an order granting a reduction of her sentence pursuant to Criminal Procedure Law §§440.47(1)(a) and 530.11. The defendant’s motion was granted to the extent that a hearing was held to aid the Court in determining whether the defendant should be re-sentenced in accordance with §60.12 of the Penal Law. The hearing was held on December 15, 2021, December 16, 2021, December 17, 2021, and February 28, 2022. Defendant called the following witnesses: Dr. Evan Stark, Jacqueline Garcia, and J.M.; and she offered the following exhibit into evidence: Dr. Stark’s forensic assessment report. The People called the following witness: Dr. Stuart M. Kirschner; and they offered the following exhibits into evidence: Pine Bush Central School District records, J.M.’s written statement, J.M.’s videotaped statement, printed text messages between J.M. and D.G., printed text messages between J.M. and Rashaad Williams, 14 New York State Police photographs of J.M., the booking photograph of J.M., Dr. Kirschner’s Psychological Legal Report, records from the Orange County jail, records from Bedford Hills Correctional Facility, transcripts of defendant’s plea/sentencing minutes, the pre-sentence investigation report, the grand jury minutes and the exhibits received into evidence during the grand jury proceedings. The following Court exhibits were received into evidence: an Affirmation of Lizette Rosario, an Affirmation of Jacqueline Garcia, an Affirmation of J.M., and an Affirmation of Yesenia Arias. Defendant was indicted under Orange County Indictment 2014-526, dated August 14, 2014, on 14 counts: Murder in the Second Degree [two counts], Burglary in the First Degree, Burglary in the Second Degree, Arson in the Second Degree, Arson in the Third Degree, Tampering with Physical Evidence [four counts], Criminal Possession of Stolen Property in the Fifth Degree, Petit Larceny, and Conspiracy in the Fourth Degree [two counts]. The charges arise from an incident which occurred on August 2, 2014 in the Village of Goshen, Orange County, New York. The defendant and co-defendant D.G. broke into a residence occupied by 81-year-old Helen Mills. The defendant entered the residence through a window, then opened the door to let the co-defendant into the victim’s home. Upon entering the residence, the co-defendant put the defendant’s hands on the victim’s throat and told the defendant to squeeze. The defendant did squeeze the victim’s throat while her co-defendant went through drawers looking for money and jewelry. After the victim was no longer moving, the co-defendant threw the victim onto a bed, covered her with a blanket, and poured gasoline on her. Gasoline was also poured in other rooms of the house. A match was lit causing the victim and the house to be set on fire. On February 25, 2015, the defendant pled guilty before the Hon. Nicholas DeRosa to one count of Murder in the Second Degree in satisfaction of the 14-count Indictment. On May 17, 2017, the Court (DeRosa, J.) sentenced the defendant to an indeterminate term of 19 years to life. Now, the defendant moves for a reduction of her sentence pursuant to CPL §440.47, commonly referred to as the Domestic Violence Survivors Justice Act (“DVSJA”). The DVSJA sets forth three factors for a court to consider, namely: (1) whether 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 at the time of the offense;1 (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 (see Penal Law §60.12; People v. Addimando, 197 AD3d 106, 112 [2nd Dept. 2021]). The standard of proof is a preponderance of the evidence-that appropriate evidentiary burden must be borne by the defendant, as the movant (see Penal Law §60.12 [1]; People v. Addimando, 197 AD3d at 112). Under the appropriate circumstances, the DVSJA permits a court to impose a less punitive and less harsh sentence without diminishing the seriousness of the offense or finding the crime was justified (see People v. Addimando, 197 AD3d at 117-118; People v. Smith, 69 Misc 3d 1030 [Erie Co. Ct. 2020]). DEFENDANT’S ARGUMENT THAT THE DVSJA APPLIES Defendant asserts that her relationship with her co-defendant D.G. qualifies as member of the same family or household.2 She claims that she was subjected to substantial physical, sexual, and psychological abuse, which was a significant contributing factor to her criminal behavior. Defendant offers her own testimony, as well as the testimony and observations of her mother (Jacqueline Garcia), her sister (Yesenia Arias) and her cousin (Lizette Rosario) in support of her claims. The witnesses support defendant’s claim of physical abuse through their observations of bruises on defendant’s body, and they recounted their observations that D.G. isolated her from her family and friends in support of the claim she endured psychological abuse. Dr. Stark testified that defendant was under the coercive control of D.G. from shortly after she met D.G. through the date of the crime and beyond. Dr. Stark opined that this coercive control was not only a significant factor to the defendant’s criminal acts, but it was “the singular casual factor” that led to the commission of the crime. He asserted that the incident itself (the burglary, robbery and murder) was provoked by the possibility that defendant was going to enter a drug rehab and D.G. was going to be separated from her. Since that separation was going to result in D.G. losing control over the defendant, he had her participate in the crime as a desperate act to hold onto his power and control over her. Dr. Stark opined that D.G.’s coercive control over defendant rendered her unable to extricate herself from D.G. PROSECUTION’S ARGUMENT THAT THE DVSJA DOES NOT APPLY The People contend that the nature, extent, and length of the defendant’s relationship with D.G. is not consistent with a re-sentencing under the DVSJA, and that the defendant has failed to demonstrate she was the victim of “substantial” physical abuse or that she was under D.G.’s coercive control rendering her unable to extricate herself from D.G. The People claim that defendant was not even certain when her relationship with D.G. began, and it lasted only approximately three months. She offered vague and inconsistent testimony regarding the dates, times, and degree of physical abuse. Specifically, the defendant testified as to a single incident of D.G. choking her, and she claimed he pinched her, gave her Indian burns on her arms and spanked her. In an effort to explain the absence of visible bruising, she reasoned that D.G. avoided her face and other areas where bruises could be readily observed, a claim which is inconsistent with the testimony of the purported observations of bruising by her mother and other witnesses. The People further note there were no reports of physical abuse, and defendant’s mother never took any action despite having access to resources through her employment with the NYS court system. Further, the People suggest that the defendant’s booking photograph and the photographs taken by the NYS Police at the time of her arrest contradict defendant’s allegations of substantial physical abuse. The People also assert that defendant failed to demonstrate psychological abuse. While she claims D.G. increased her drug use and isolated her from her family, there was extensive and escalating drug use by defendant which started well before her relationship with D.G., and defendant retained independence from D.G. through her job, telephone, and consistent communications with her friends and family. Furthermore, defendant’s contact with her family and friends before the crime, as well as almost immediately after the commission of the crime undermines her claim that she was so isolated as to render her incapable of extricating herself from D.G. The People contend that the testimony of Mrs. Garcia ignored realty and the expert testimony of Dr. Stark was facially absurd. The credible testimony of Dr. Kirschner established there is no clear nexus between defendant’s criminal conduct and the alleged abuse, and that she has offered various escalating accounts as to how D.G.’s abusive conduct caused her to engage in the instant offense. Based upon the credible evidence established at the hearing in viewing the history, character and condition of the defendant it is evident that she had demonstrated antisocial conduct both in the community and while incarcerated and it is clear that her participation in the crime was not committed solely, or even in part, because she was under the coercive control of D.G. EXPERT TESTIMONY AND REPORTS Dr. Evan Stark testimony/report Two factors Dr. Stark claimed he considered and found particularly relevant were the defendant’s relationships prior to D.G. and how she managed those relationships, and the defendant’s separation from her friends and family.3 Jaylin was the defendant’s first real boyfriend. He was rich because his father made a fortune selling drugs. There was no evidence of physical abuse. Despite a 3-year relationship with the defendant, she ultimately broke up with him because they fought all the time about his drug use. Tyler, her boyfriend in the Bronx, was extremely physically abusive — punching and kicking her. She broke it off with him because of the physical abuse. Those two boyfriends were the only noteworthy relationships prior to D.G. As far as her separation from family and friends, defendant continued to sleep at her mother’s home or at a friend’s home and she had a job as a waitress. Despite defendant claiming D.G. paid for her drugs, Dr. Stark recognized that defendant was not being truthful about that claim as her family reported she was stealing things and selling them for money for drugs and she was working as a waitress. Defendant’s own sister (despite having taken on a mother role due to their biological mother working and commuting) indicated that defendant had been deceptive in that she acknowledged that the defendant’s use of hard drugs, such as cocaine and heroin, were earlier and more often than defendant admitted in her statements to Dr. Stark. Dr. Stark conceded that he limited his interviews to defendant’s family and treatment providers and that he did not interview any of the defendant’s friends. He never attempted to interview D.G. and never considered any statements made by him regarding defendant’s conduct. Despite defendant identifying multiple friends who would support her story regarding factors considered by Dr. Stark to be relevant to his coercive control theory, he did not conduct secondary interviews in an attempt to corroborate those purported facts. Defendant acknowledged there were significant “gaps” in her memory due to drug-induced blackouts. Dr. Stark testified he was not interested in whether the defendant was telling him the truth because whether she was telling the truth would not impact his opinion. He noted defendant was a problematic teenager. After a lengthy suspension for drinking alcohol on a bus and other identifiable substance abuse, defendant transferred to an academic program designed for troubled youth (STARS). Apparently, the defendant spent her time hanging out and doing drugs, and she dropped out of STARS because of drinking and drug use. She also got into fights with her mother and sister about her use of drugs and alcohol. After defendant moved to the Bronx with her father, she started hanging out with a group that could provide her with marijuana and pills, and her sister reported that she thinks defendant also was using cocaine and heroin during this time period. Dr. Stark also noted evidence of a psychiatric report dated May 14, 2012, which diagnosed defendant with Intermittent Explosive Disorder (“IED”) for which she was prescribed drugs. Dr. Stark discounted the diagnosis of IED, despite that it was as a result of the defendant being brought to the hospital after an altercation with her sister. He opined that defendant’s “temper issues” could have been drug related, if not drug induced, but he appeared to reluctantly acknowledge that it is impossible to determine whether defendant’s continued fluctuation between angry outbursts and happy were drug related or a byproduct of a psychiatric condition such as IED. A second record from the same hospital less than a week before the murder did not identify any bruising consistent with defendant being physically abused. Dr. Stuart M. Kirschner’s testimony/report Dr. Kirschner observed that defendant had a tendency to tell partial truths depending upon with whom she was speaking. Kirschner interviewed the defendant twice in 2021. Defendant advised that she had been mistreated and abused by other boys as early as eighth grade when her boyfriend would “push her around and smack her a lot.”4 She further advised that she and her boyfriend from the Bronx, Tyler, would “fully fight each other” and that during these episodes he would punch her in the face. Tyler was very possessive and physically abusive, and her relationship with him lasted approximately six months. In a separate interview she indicated she only lived in the Bronx for a few months (2-3 months) and that Tyler would degrade her by spitting on her, and she claimed that there was only one physical altercation in which he smacked her. Defendant ended the relationship with Tyler because of his abuse. Dr. Kirschner noted the defendant had disciplinary problems in the orange county jail, including a number of physical altercations, which defendant claimed were a result of officers and inmates hating her. After being transferred to state prison, defendant committed a number of inmate infractions as well, however, more recently her disciplinary record has improved with her participation in educational programs, counseling, and baby sitting. Dr. Kirschner found defendant was irritable and aggressive towards others. Her loss of friends is easily attributed to her own behavioral issues and drug use, rather than attributed to D.G. She misused her money, stole from family and friends in order to purchase drugs, and she relied on friends to purchase her drugs (most of whom were males who also used drugs, including both Rashaad Williams, “Williams” and Jaystar Toussaint, “Toussaint”). LEGAL ANALYSIS In considering 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, it is clear that despite the brief nature of the relationship between defendant and D.G., defendant does qualify as a member of the same family or household as that term is defined under CPL §530.11, however, the defendant must also establish by a preponderance of the evidence that she was subjected to “substantial” physical, sexual or psychological abuse at the time of the offense.5 Photographs taken by the state police at the time of her arrest, including her booking photograph do not corroborate the purported physical abuse outlined by the defendant’s witnesses at the hearing, nor do the defendant’s hospital records from shortly before the crime. Apparently, in order to address the lack of corroboration regarding physical abuse, the defendant testified D.G. would strike her in a manner and location in order to avoid detection. Interestingly, that testimony was at odds with her mother’s testimony, which claimed she saw bruises. Defendant claimed D.G. pinched her, gave her indian burns on her arms and spanked her, and while those actions are denigrating, inappropriate and unacceptable, they do not rise to the level of “substantial” physical abuse. The relationship with D.G. only lasted approximately 3 months. Defendant primarily lived at home, continued to work, and was not financially dependent on D.G. The testimonial evidence and exhibits reflect that she had full access to her own telephone and continued to keep in contact with her friends and family even after dating D.G., despite her testimony to the contrary. In fact, defendant was hanging out with two of her friends, Williams and Toussaint, the night of the crime. It is clear that defendant retained independence from D.G. through her job, telephone, and communications with others. Her contact with her family and friends shortly before and immediately after the commission of the crime undermines the claim that she was isolated from them. Dr. Stark professed he was not concerned whether the defendant’s statements in support of her claims were truthful or accurate because that was not relevant to his opinion, nor did he believe the defendant breaking off her prior relationships with boyfriends due to drug use and physical abuse were relevant to his opinion.6 This Court does not credit Dr. Stark’s opinion. Based upon the credible evidence, this Court credits Dr. Kirschner’s opinion that the “isolation factor” frequently associated with coercive control was absent due to the defendant’s access to and communications with friends and family. The defendant has failed to meet her burden to establish that she was subjected to “substantial” physical, sexual or psychological abuse at the time of the offense. Even if she could establish she was, she also would have to establish such abuse was a significant contributing factor to the defendant’s criminal behavior. Dr. Stark concluded one of the factors in defendant committing the crime was her “chronic and often disabling drug addition”, and he attributes that addiction to D.G. Dr. Kirschner claimed there is no clear nexus between defendant’s criminal conduct and the alleged abuse, noting that she has offered various conflicting accounts as to how D.G.’s abusive conduct caused her to engage in the instant offense. In viewing the history, character and condition of defendant it is evident that she demonstrated antisocial conduct both in the community and to a lesser degree while incarcerated, and it is clear that her participation in the crime was not due in any significant degree to any abuse she suffered by D.G. The credible evidence demonstrates that defendant’s behavioral issues and drug use were present long before she ever met D.G., and it was abundantly evident to this Court that the evidence presented by the defendant at the hearing was tailored to the instant application. Defendant claims she wanted to use her telephone to call her mother before she participated in the murder, but she couldn’t because D.G. smashed it. Yet, there are text messages sent from that phone after the murder. After the murder defendant went to Williams’ house, then went to her mother’s home, but she testified at the hearing that she was isolated from her family and friends. While she told her sister the morning after the murder, essentially, that D.G. forced her to commit the crime, she told Dr. Stark that she knew she would go to jail for D.G. because she wanted to protect him. Defendant argues to this Court that during the commission of the murder she complied with D.G. for fear that he would have killed her if she did not obey his directives, despite that he didn’t threaten her that night. Dr. Stark opined that the incident itself was provoked by the possibility that defendant was going to enter a drug rehab and D.G. was going to be separated from her. Dr. Stark reasoned that the separation was going to result in D.G. losing control over the defendant, so he had her participate in the crime as a desperate act to hold onto his power and control over her and that D.G.’s coercive control over defendant rendered her unable to extricate herself from D.G. The facts are contrary to that analysis in that while defendant was hanging out with Williams and Toussaint the night of the murder, D.G. first recruited them to join him. It was only after each of them refused to participate in the crime that he asked the defendant. Defendant allegedly told her sister the morning after the murder before she spoke to the police that D.G. had instructed her in detail what to do, including that D.G. directed her to put her hands on the victim’s neck, then D.G. came over and squeezed her hands until the victim was dead. However, in her initial statement to the police she took primary responsibility for punching and strangling Ms. Mills to death, then setting her home on fire. Shortly thereafter, she provided a hand-written statement wherein she claimed all of her actions were directly ordered by D.G., and she claimed he placed her hands over hers and squeezed the victim’s neck until she was dead. Despite Dr. Stark’s coercive control theory, her written statement to the police “conformed” to what she purportedly told her sister. Those versions of her participation in the crime are inconsistent with her trying to protect D.G., and constitute a quick turnaround — her first attempt to manipulate the facts to engender sympathy and fit her ever-evolving narrative. Those statements blaming D.G. undermine Dr. Stark’s claim defendant was under the coercive control and needed to protect D.G. from shortly after she met him through the date of the crime and beyond. Under the particular circumstances of this case, including the heinous nature of the underlying crime, the age of the defendant at the time of the crime, her record and accomplishments during her period of imprisonment, and her family support, the sentence imposed upon the defendant’s conviction of murder in the second degree was not unduly harsh, and she should not be re-sentenced on that conviction in accordance with Penal Law §60.12. It is important to recognize that the person killed was not the defendant’s domestic partner. Defendant actively participated in a brutal murder-admitting participation, which was corroborated by blood under her fingernails, as well as the defensive scratches observed on her hands and the blood on her discarded shirt. Certainly, this Court recognizes the concept of coercive control and appreciates how it can play an intricate role in domestic violence, leading to Post-Traumatic Stress Syndrome and Battered Woman Syndrome. Isolation can lead to traumatic bonding and total fear and dependence, resulting in an inability or limited ability to exercise independent thought. These concepts are readily available in literature accessible to a counselor (like defendant’s cousin), by court personnel (like defendant’s mother), and by defendants who are incarcerated with other defendants who have successfully appealed their sentences under the DVSJA. Courts must be cognizant that defendants can change or tailor their stories “to fit” the factors a court is required to consider in evaluating applications for re-sentencing under the DVSJA. Defendant’s statements in interviews with police, family and evaluators over time changed and the differences in her statements appeared to start aligning with her new and improved narrative: first towards the mitigation report submitted by Dr. Stark for her initial sentencing, then more specifically tailored to her application under the DVSJA. Defendant’s “proof” lacks independent, objective evidence corroborating defendant’s allegations of abuse. Corroboration is critically important in considering re-sentencing under the DVSJA, especially when there is inconsistent testimony and contrary evidence. Many conclusory statements were made by the defendant and were “corroborated” by her family. The primary historians detailing the purported abuse are the defendant and her mother, both of whom have a significant interest in the outcome of this application, as well as a motive to exaggerate the degree of abuse. While defendant made claims that D.G.’s mother and other friends observed abusive conduct and told her to end the relationship with D.G., Dr. Stark made no attempt to interview any of those people and none were called by the defendant at the instant hearing to provide independent, objective evidence corroborating her claims. Additionally, the medical records from less than a week before the murder do not provide any corroboration of any signs of physical abuse. In contrast to her demeanor in court, Dr. Stark observed defendant to appear “peppy” and had no trouble making eye contact during his interview with her in 2017. The defendant’s demeanor, body language, and manner/cadence of speech observed by the Court during her hearing testimony, coupled with her ever-changing facts, were deceptive and appeared to be tailored to her instant application in an attempt to manipulate the court.7 Her statements in interviews changed and the differences in those newly tailored statements appeared to align more and more consistently with her new and improved narrative in support of her applications. However, the newly tailored testimony offered only vague generalities and conclusory statements that were not supported or corroborated by any credible evidence. Dr. Stark seemed to avoid seeking secondary corroboration by any source that was not a family member of the defendant. The legislative history reveals that the DVSJA statute sought to address harsh punishment received by victims of domestic violence who commit crimes against their abusers because “[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” (People v. Addimando, 197 AD3d at 112 citing NY Senate Debate on Senate Bill S1077, Mar. 12, 2019 [Senate tr] at 1572 [statement of Senator Carlucci]). The DVSJA provides the court with discretion to impose a less punitive and less harsh sentence, however, in doing so courts must ensure that it is done in a manner that does not diminish the seriousness of the offense. Inherent in such a determination is to consider the circumstances of the crime, including whether the victim against whom the crime was committed was an innocent, vulnerable victim: like an 81-year-old woman. The DVSJA is analogous to a victims right statute, so it is critically important not to undermine the rights of an innocent victim by imposing a disproportionately lesser or lenient sentence for a heinous crime. The victim here was a totally innocent victim who had absolutely no connection to the purported abuse suffered by the defendant. To permit this defendant to take advantage of the significantly reduced sentences available under the DVSJA under these circumstances would shock the conscience of this Court. As such, Defendant’s application is denied. The foregoing constitutes the Decision and Order of this Court. So Ordered. Dated: April 12, 2024
