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Domestic Violence Survivor's Justice Act

New York Domestic Violence Survivor’s Justice Act

Prosecutors, judges and domestic violence attorneys recognize that the Domestic Violence Survivor’s Justice Act, also known as DVSJA, was a long time coming. While the law does not address every issue associated with victims of DV abuse who later commit crimes against their assailants, the legislation remedies what to date has been certain miscarriages of justice where courts did not have the ability to break from statutory sentencing guidelines and take past abuse into consideration. While there are many components to this law, when a defendant – either a man or a woman – is a victim of domestic or sexual violence and he or she is convicted of a crime against their abuser, certain circumstances would allow a NY judge to set aside the codified sentencing “chart” and deviate to a penalty that would otherwise be impermissible. In fact, assuming eligibility, a court can offer an accused upon his or her conviction alternatives to incarceration and order them to community-based programs. For those eligible inmates who are already in prison or jail, there is even an opportunity to apply for early release.

Eligibility Requirements for Resentencing or Deviation

Not every man or woman charged with a crime can avail themselves of the protections afforded under this law even if they did suffer sexually or physically at the hands of their abuser. Penal Law 60.12(1) requires that

  • when the offense occurred, the defendant was not merely a domestic violence victim, but the complainant in the current case, aka, his or her victimizer, subjected the defendant to substantial physical, sexual, or psychological abuse. Further, the abuser must be a member of the same family or household as defined in CPL 530.11 that would provide jurisdiction under the Family Court Act;
  • the defendant’s criminal actions did not merely relate to the abuse, but it was a significant contributing factor; and
  • the sentencing guidelines for the offense in question would be unduly harsh.

Additionally, the conviction for which the defendant stands for sentencing cannot be for a second violent felony pursuant to Penal Law 70.04, First Degree Murder, Penal Law 125.27; Aggravated Murder, Penal Law 125.26; Second Degree Murder, Penal Law 125.25(5), Terrorism, Penal Law Article 490, or a sexual offense requiring registration as a sex offender (SORA) pursuant to six-C of the Correction Law. It is important to recognize even a finding of guilt for an attempt to commit any of the above crimes makes a DV victim ineligible. However, if these requirements are met, a defendant could find him or herself punished by a shorter determinate prison sentence, a possible definite sentence, probation or even something far different.

Limiting Sentencing and Downward Departures

Prior to its passage, a Supreme Court Judge in NYC or County Court Judge elsewhere in the state could only consider the past impact of domestic violence on a defendant’s sentence in a limited capacity. For example, if the crime had a minimum mandatory sentence of three- and one-half years and maximum of fifteen years in prison, the court could hand down anything in that range but lacked the power to step below the mandatory minimum. Now, with taking into account the past abuse, a judge can break from the rigidity of the law and sentence a convicted individual - whether after trial or as part of a plea - to a lesser sentence that is either determinate or indeterminate as well as one that does not place that person in custody at all. These potential sanctions are set forth in Penal Law 60.12(4) through 60.12(11).

Your Case, Your Life, Your Future

In a very limited number of convictions, the law going may provide some relief but by no means does it enable a court to summarily dismiss charges nor mandate that a conviction be vacated because the accused is a DV survivor. Further, a judge has the discretion, but is not required, to examine a conviction within this framework. Assuming the court did utilize this authority and believed a defendant was not a further threat to the public, prosecutors would have the right, should they disagree, to conduct a hearing where each side could call witnesses.

For those who can secure the benefits codified within the DVSJA, the value cannot be overstated. Even for those who cannot, your counsel may be able to use these parameters to influence a District Attorney’s pre-indictment or pre-trial offer or mitigate the sentence that is allowable within the “regular” guidelines. No matter the circumstances of your arrest, you owe it to yourself to examine how the DVSJA may help you.

To learn more about the DVSJA, New York Domestic Violence crimes, and Family Court Orders of Protection, or if you need the services of either a criminal defense lawyer or victim advocate, contact the former Manhattan prosecutors at Saland Law to protect yourself, your family and your future.

Call the New York criminal lawyers former Assistant District Attorneys at (212) 312-7129 or contact us online today.

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