People v. T.P.

DAVIS POLK & WARDWELL LLP, NEW YORK CITY (NIKOLAUS J. WILLIAMS OF COUNSEL), FOR DEFENDANT-APPELLANT.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. MATTLE OF COUNSEL), FOR RESPONDENT.

DUANE MORRIS LLP, NEW YORK CITY (ERIC R. BRESLIN OF COUNSEL), FOR SEVENTEEN LEGISLATORS, AMICI CURIAE.

PRESENT: WHALEN, P.J., PERADOTTO, BANNISTER, MONTOUR, AND GREENWOOD, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the facts and as a matter of discretion in the interest of justice by reducing the sentence imposed to a determinate term of incarceration of four years and a period of postrelease supervision of 2½ years and as modified the judgment is affirmed and the matter is remitted to Supreme Court, Erie County, for proceedings pursuant to CPL 470.45.

Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of manslaughter in the first degree ( Penal Law § 125.20 [1] ). Defendant contends that Supreme Court erred in its charge on justification by failing to include the "reputation evidence" addendum to the CJI charge for Justification: Use of Deadly Force in Defense of a Person (see Penal Law § 35.15 [2] ). Defendant failed to preserve that contention for our review (see CPL 470.05 [2] ; People v. McWilliams , 48 A.D.3d 1266, 1267, 852 N.Y.S.2d 523 [4th Dept. 2008], lv denied 10 N.Y.3d 961, 863 N.Y.S.2d 145, 893 N.E.2d 451 [2008] ) and, in any event, we conclude that it lacks merit. "In evaluating a challenged jury instruction, we view the charge as a whole in order to determine whether a claimed deficiency in the jury charge requires reversal" ( People v. Medina , 18 N.Y.3d 98, 104, 936 N.Y.S.2d 608, 960 N.E.2d 377 [2011] ). Here, although the court did not read the addendum, the jurors were appropriately instructed that they "should assess the reasonableness of defendant's belief that [s]he was in deadly peril by judging the situation from the point of view of defendant as though they were actually in [her] place" ( People v. Wesley , 76 N.Y.2d 555, 559-560, 561 N.Y.S.2d 707, 563 N.E.2d 21 [1990] ). Further, nothing in the CJI reputation evidence addendum alters or negates the court's instruction that defendant "would not be justified if she was the initial aggressor of deadly physical force" (see CJI2d[NY] Justification: Use of Deadly Physical Force in Defense of a Person, https://www.nycourts.gov/judges/cji/1-General/Defenses/CJI2d.Justification.Person.Deadly_Force.pdf). Inasmuch as the trial evidence regarding the victim's capacity for violence consisted almost entirely of direct evidence of his acts of violence toward defendant specifically, a charge addressing reputation evidence was unwarranted and, contrary to defendant's further contention, counsel was not ineffective for failing to request it (see People v. Daggett , 150 A.D.3d 1680, 1682, 54 N.Y.S.3d 803 [4th Dept. 2017], lv denied 29 N.Y.3d 1125, 64 N.Y.S.3d 675, 86 N.E.3d 567 [2017] ; see e.g. People v. Johnson , 136 A.D.3d 1338, 1339, 25 N.Y.S.3d 474 [4th Dept. 2016], lv denied 27 N.Y.3d 1134, 39 N.Y.S.3d 116, 61 N.E.3d 515 [2016] ).

Defendant's contention that she was denied a fair trial by prosecutorial misconduct during summation is unpreserved (see CPL 470.05 [2] ; People v. Fick , 167 A.D.3d 1484, 1485, 90 N.Y.S.3d 421 [4th Dept. 2018], lv denied 33 N.Y.3d 948, 100 N.Y.S.3d 173, 123 N.E.3d 832 [2019] ) and, in any event, without merit. In light of defendant's acknowledgment at trial that she lied to the police, the prosecutor's remarks highlighting defendant's untruthfulness and disagreeing with defense counsel's assertion that defendant was now telling the truth were fair comment on the evidence (see People v. Russo , 201 A.D.2d 512, 513, 607 N.Y.S.2d 413 [2d Dept. 1994], affd 85 N.Y.2d 872, 626 N.Y.S.2d 51, 649 N.E.2d 1195 [1995] ; People v. Mastowski , 155 A.D.3d 1624, 1625, 65 N.Y.S.3d 388 [4th Dept. 2017], lv denied 30 N.Y.3d 1117, 77 N.Y.S.3d 342, 101 N.E.3d 983 [2018] ; People v. Sinclair , 231 A.D.2d 926, 926, 647 N.Y.S.2d 896 [4th Dept. 1996] ). Further, even if certain other comments made by the prosecutor were improper, they were not so egregious as to deny defendant a fair trial (see People v. Burton , 175 A.D.3d 1847, 1847-1848, 107 N.Y.S.3d 757 [4th Dept. 2019], lv denied 34 N.Y.3d 1075, 116 N.Y.S.3d 165, 139 N.E.3d 823 [2019] ; People v. Sweney , 55 A.D.3d 1350, 1351, 864 N.Y.S.2d 634 [4th Dept. 2008], lv denied 11 N.Y.3d 901, 873 N.Y.S.2d 277, 901 N.E.2d 771 [2008] ), especially given the court's instructions to the jurors that their recollection of testimony would control and that the attorneys’ summations were merely argument, not evidence (see People v. Burke , 197 A.D.3d 967, 968, 153 N.Y.S.3d 338 [4th Dept. 2021], lv denied 37 N.Y.3d 1159, 160 N.Y.S.3d 688, 181 N.E.3d 1116 [2022] ; People v. Warmley , 179 A.D.3d 1537, 1538, 118 N.Y.S.3d 866 [4th Dept. 2020], lv denied 35 N.Y.3d 945, 124 N.Y.S.3d 284, 147 N.E.3d 554 [2020] ; People v. Morgan , 148 A.D.3d 1590, 1591, 50 N.Y.S.3d 699 [4th Dept. 2017], lv denied 29 N.Y.3d 1083, 64 N.Y.S.3d 173, 86 N.E.3d 260 [2017] ; see generally People v. Ashwal , 39 N.Y.2d 105, 109-111, 383 N.Y.S.2d 204, 347 N.E.2d 564 [1976] ).

However, we agree with defendant that a reduction in her sentence is warranted pursuant to the Domestic Violence Survivors Justice Act ([DVSJA] L 2019, ch 31; L 2019, ch 55, § 1, part WW), which amended Penal Law § 60.12. As noted in the amicus brief filed by members of the New York State Senate and Assembly who sponsored or supported its passage, the DVSJA resulted from the legislature's second attempt "to provide a more compassionate sentencing scheme for survivors of domestic violence who committed offenses related to that abuse," even where a jury has rejected a justification defense (see generally People v. Addimando , 197 A.D.3d 106, 109-110, 152 N.Y.S.3d 33 [2d Dept. 2021] ). As noted during the bill's enactment, "all too often in our court system when women are defending themselves from domestic violence, instead of being met with ... compassion and assistance and help," they are met with punishment (NY Senate Debate on 2019 NY Senate Bill S1077, March 12, 2019 at 1572 [statement of Senator Carlucci]). Penal Law § 60.12 (1) thus provides an alternative sentencing scheme that the sentencing court may apply where it determines that "(a) at the time of the instant offense, 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 as such term is defined in [ CPL 530.11 (1) ]; (b) such abuse was a significant contributing factor to the defendant's criminal behavior; [and] (c) having regard for the nature and circumstances of the crime and the history, character and condition of the defendant, that a sentence of imprisonment pursuant to [ Penal Law §§ 70.00, 70.02, 70.06 or 70.71 (2) or (3) ] would be unduly harsh."

Here, we conclude that a preponderance of the evidence supports both a finding that defendant was a victim of domestic violence during her relationship with the victim and was subjected to "substantial physical, sexual or psychological abuse" and a finding that "such abuse was a significant contributing factor to the defendant's criminal behavior" ( Penal Law § 60.12 [1] [a], [b] ; see Addimando , 197 A.D.3d at 111-112, 152 N.Y.S.3d 33 ). We further conclude that sentencing defendant pursuant to the normal sentencing guidelines would be "unduly harsh" in light of the "nature and circumstances of the crime and the history, character and condition of the defendant" ( § 60.12 [1] [c] ). We therefore modify the judgment on the facts and as a matter of discretion in the interest of justice (see CPL 470.15 [5], [6] [b] ; Addimando , 197 A.D.3d at 118, 152 N.Y.S.3d 33 ; see generally People v. Nicholas G. , 181 A.D.3d 1273, 1274, 118 N.Y.S.3d 496 [4th Dept. 2020] ) by reducing defendant's sentence to a determinate term of incarceration of four years to be followed by 2½ years of postrelease supervision (see Penal Law §§ 60.12 [2] [a] ; 70.45 [2] [f]).