People v. Nymeen C.: A CPL 440.47(2)(d) “Dismissal Without Prejudice” Is an Appealable “Denial of Resentencing”

Introduction

In People v Nymeen C. (2026 NY Slip Op 00144), the Appellate Division, Second Department addressed a threshold, recurring procedural issue arising under the Domestic Violence Survivors Justice Act (DVSJA): whether an order that “dismiss[es]” a resentencing application “without prejudice” under CPL 440.47(2)(d) is appealable.

The defendant, convicted in 2010 of manslaughter in the first degree and sentenced to 20 years’ imprisonment plus postrelease supervision, sought retroactive relief under CPL 440.47 to be resentenced pursuant to Penal Law § 60.12. The Supreme Court, Kings County, dismissed the motion without a hearing and “without prejudice” for failure to supply the corroboration required by CPL 440.47(2)(c). The People moved to dismiss the appeal, contending that the order was not appealable because it was a “dismissal without prejudice,” not an order “denying resentencing” within CPL 440.47(3).

The Second Department (1) held the order is appealable as of right and declined to follow the Third Department’s contrary view, then (2) affirmed on the merits because the defendant did not submit evidence corroborating domestic violence “at the time of the offense.”

Summary of the Opinion

New procedural rule (Second Department): An order “dismiss[ing]” a DVSJA resentencing application “without prejudice” under CPL 440.47(2)(d) constitutes an order “denying resentencing” under CPL 440.47(3)(a) and is therefore appealable as of right.
Disposition: The People’s motion to dismiss the appeal was denied; the underlying order was affirmed because the defendant failed to provide any corroborating evidence that she was subjected to domestic violence in 2008, when the offense was committed.

Analysis

Precedents Cited

People v Melissa OO. (234 AD3d 101)

The Second Department’s central move was to reject the Third Department’s holding in People v Melissa OO., which concluded that a CPL 440.47(2)(d) “dismissal without prejudice” is not appealable (either as of right or by permission). The Second Department explicitly parted ways, framing the disagreement as one of statutory interpretation and legislative design.

The opinion also engaged Melissa OO.’s policy concern (noted there in footnote 5) that nonappealability could “insulate from appellate review” certain determinations once an applicant has exhausted possible evidentiary submissions. The Second Department treated that concern as reinforcing its own conclusion: the Legislature could not have intended to deprive litigants of appellate review of dispositive DVSJA eligibility and compliance rulings.

People v Brenda WW. (_ NY3d _, 2025 NY Slip Op 03643)

The court relied on People v Brenda WW. for an authoritative description of the DVSJA’s purpose and structure: expanding judicial discretion at initial sentencing and creating retroactive mechanisms for incarcerated persons to obtain alternative sentencing where domestic violence substantially contributed to the offense and the original incarceration would be “unduly harsh.” This background helped frame why appealability matters: DVSJA applications are a legislatively created remedial pathway, and procedural gatekeeping rules should not be read to undercut that pathway.

People v Flores (30 NY3d 229) and Matter of 381 Search Warrants Directed to Facebook, Inc. [New York County Dist. Attorney's Off.] (29 NY3d 231)

These cases supplied the jurisdictional baseline: “No appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute.” The Second Department accepted that premise, then used it to sharpen the interpretive question: whether CPL 440.47(3)(a)’s authorization of an appeal “from an order denying resentencing” encompasses a CPL 440.47(2)(d) “dismissal without prejudice.” The court answered yes by reading “deny” functionally—by effect—rather than by label.

Matter of Rivera v Vergara (_ AD3d _, 2025 NY Slip Op 05241) and Matter of Williams v Panzarino (226 AD3d 916)

These matters supported the proposition that “without prejudice” does not defeat appealability. The Second Department invoked them for a simple but important procedural point: a dismissal “without prejudice” can still be reviewed on appeal; it remains a denial of the relief sought in the current proceeding, even if re-filing is theoretically permitted.

People v Mimms (239 AD3d 891)

The court used People v Mimms to illustrate the “absurd” consequences of nonappealability. If CPL 440.47(1)(d) step-one “dismiss[als]” were unreviewable, a defendant could be permanently denied DVSJA access by an erroneous ineligibility ruling (e.g., that the sentence is not eight years or more, or the offense is not eligible), with no appellate correction. That practical consequence was integrated into the court’s reading of CPL 440.47(3)(a).

DVSJA corroboration and timing cases: People v Martinez (234 AD3d 874); People v White (226 AD3d 1054); People v Coles (202 AD3d 706); People v Rivera (230 AD3d 517); People v Williams (198 AD3d 466)

The court cited these cases to confirm two related propositions:

Second Department practice already treats step-two dispositions as reviewable: The court noted that it has previously decided appeals on the merits where trial courts denied DVSJA applications without a hearing for failure to satisfy CPL 440.47(2)(c), including modifying orders to specify they were “without prejudice” under CPL 440.47(2)(d) (as in People v Martinez and People v White). This practice-based point supported the court’s conclusion that step-two “dismissals without prejudice” fit within “orders denying resentencing.”
Corroboration must connect to domestic violence “at the time of the offense”: On the merits, the court relied on these cases to reinforce the temporal requirement embedded in CPL 440.47(2)(c) and Penal Law § 60.12(1)(a): evidence must corroborate domestic violence contemporaneous with the offense conduct, not merely earlier-life abuse.

Legal Reasoning

1) Interpreting “denying resentencing” to include step-two “dismissals without prejudice”

The court’s statutory reasoning proceeds from effect and structure:

Plain-language/function approach: An order that “dismiss[es]” the application under CPL 440.47(2)(d) results in the defendant being denied resentencing in that proceeding. Therefore, it is an order “denying resentencing” within CPL 440.47(3)(a).
Terminology mismatch is not dispositive: The court emphasized that CPL 440.47 uses “dismiss” at steps one and two, while reserving “denying resentencing” as the appellate trigger. The Legislature’s use of different words did not, in the Second Department’s view, signal an intent to create an unreviewable class of dispositive orders.
“Without prejudice” does not erase finality for appellate purposes: While “without prejudice” preserves the possibility of a renewed filing, it does not change the present reality: the application was rejected and no resentencing will occur unless the defendant starts over (and may not be able to improve the proof). Thus, “without prejudice” is compatible with an appeal right.

2) Avoiding insulation of eligibility and compliance determinations from review

The opinion treats appellate review as essential to the DVSJA’s remedial scheme. Two practical concerns drove this conclusion:

Step-one errors would be uncorrectable: If a CPL 440.47(1)(d) dismissal “without prejudice” were unappealable, a defendant could be wrongly barred at the threshold with no appellate remedy—an “absurd” result highlighted by the court’s discussion and footnote 1.
Step-two errors could be outcome-determinative: A court might rule that, even taking allegations as true, domestic violence was too remote in time (or otherwise outside the statute’s reach). Such determinations can be effectively final, particularly where the applicant has no additional corroboration to offer.

3) Merits: failure to corroborate domestic violence “at the time of the offense”

Having found jurisdiction, the court affirmed because the defendant did not meet CPL 440.47(2)(c)’s corroboration requirement as to timing. Evidence of childhood abuse and abuse by a husband ending in 2004 did not corroborate that she was subjected to domestic violence in 2008, when the crime was committed. Because the step-two evidentiary threshold was not satisfied, the court held the Supreme Court properly dismissed the application without a hearing pursuant to CPL 440.47(2)(d).

Impact

1) Immediate procedural consequence: appealability in the Second Department

The decision establishes (within the Second Department) that defendants may appeal as of right from CPL 440.47(2)(d) dismissals without prejudice. Practically, this:

Creates appellate oversight of step-two corroboration rulings.
Strengthens review of step-one eligibility determinations by analogy (since both are “dismissed without prejudice” under the statute’s wording).
Reduces the risk that trial-level interpretive errors effectively foreclose DVSJA relief.

2) Departmental conflict and potential higher-court clarification

The Second Department’s explicit disagreement with People v Melissa OO. creates an interdepartmental split on appealability. Such splits often prompt litigants to seek Court of Appeals review to unify statewide practice under CPL 440.47(3)(a).

3) Substantive lesson for DVSJA applicants: corroboration must be temporally tethered

On the merits, People v Nymeen C. underscores a recurring barrier in DVSJA litigation: corroboration must speak to abuse “at the time of the offense.” Historical abuse evidence may contextualize a survivor’s life, but it will not substitute for proof connecting domestic violence to the offense period required by CPL 440.47(2)(c) and Penal Law § 60.12(1)(a).

Complex Concepts Simplified

DVSJA (Domestic Violence Survivors Justice Act)

A New York statute recognizing that domestic violence can shape a survivor’s conduct and culpability. It authorizes alternative, less severe sentencing, including retroactive resentencing for certain incarcerated people, if statutory criteria are met.

Penal Law § 60.12

The substantive standard for an alternative sentence: the defendant was a domestic violence victim at the time of the offense; the abuse significantly contributed to the criminal behavior; and the ordinary prison sentence would be “unduly harsh” considering the crime and the defendant’s history and condition.

CPL 440.47’s “step” structure

Step one (request): shows basic eligibility to apply (sentence length, offense eligibility, timing).
Step two (application): must include at least two corroborating pieces of evidence of domestic violence at the time of the offense.
Step three (hearing): if step two is satisfied, the court holds a hearing and decides whether to resentence under Penal Law § 60.12.

“Dismissed without prejudice”

The court is not making a final determination “on the merits” that forever bars a renewed filing; the applicant may try again. But it is still a present denial of relief. The Second Department held that such a denial is appealable under CPL 440.47(3)(a).

“Appealable as of right”

A party does not need permission to appeal; the statute itself authorizes an appeal from specified orders. Here, CPL 440.47(3)(a) was interpreted to include step-two dismissals without prejudice.

Conclusion

People v Nymeen C. makes two points of lasting significance. First, it announces (in the Second Department) a concrete procedural safeguard: a CPL 440.47(2)(d) “dismissal without prejudice” is an appealable “order denying resentencing” under CPL 440.47(3)(a), directly rejecting the contrary view in People v Melissa OO. Second, it reiterates the rigorous evidentiary gatekeeping embedded in CPL 440.47(2)(c): DVSJA applicants must corroborate domestic violence “at the time of the offense,” not merely earlier abuse. Together, these holdings expand access to appellate review while emphasizing the statute’s temporal and corroborative requirements as the price of entry to a resentencing hearing.