New York Criminal Procedure Law § 440.47(1), known as the Domestic Violence Survivors Justice Act (DVSJA), allows the sentencing criminal court to resentence a domestic violence survivor who suffered sexual, psychological or physical abuse that contributed to his or her conviction if certain, specific criteria are met. Seven factors determine eligibility, and the application process differs slightly for applicants who are represented by their court-appointed appellate attorney, and applicants who are not. Eligibility is as follows:
(1) Incarceration/Prison Sentence: applicant must currently be incarcerated and serving a sentence of at least 8-years;
(2) Sentencing Status: only applicants who were sentenced as first or second felony offenders are eligible; applicants sentenced as second violent felony offenders or persistent violent felony offenders are not qualified; sentence and commitment sheet and/or sentencing minutes should contain this information;
(3) Conviction: the underlying conviction upon which resentencing is sought cannot be for any of the following crimes:
- Second-degree murder under P.L. § 125.25 (5) (killing of a child under 14 years old by a person over 18 years of age during a sexual act).
- First-degree murder under P.L. § 125.27.
- Aggravated murder under P.L. § 125.26 –Acts of terrorism under P.L. Art. 490.
- The attempt or conspiracy to commit any of the above-listed crimes – Any offense requiring registration under the Sex Offender Registration Act.
(4) Crime Date: the alleged crime must have been committed before August 12, 2019;
(5) Domestic Abuse: applicant must have been the victim, or suffering from the effects, of domestic violence in that he or she was subjected to substantial physical, sexual or psychological abuse;
(6) Abuser: applicant’s abuser must have been a family member or someone who lived in the same household or foster home; that includes someone the applicant was or is married or engaged to, someone related by blood or adoption (for example, a parent, sibling, aunt/uncle, cousin), someone who usually lived in the same home, someone the applicant has a child with, or someone the applicant has or had an intimate relationship with even if they never lived together;
(7) Relationship of the Crime to the Abuse: the abuse must have been a “significant contributing factor” to the alleged criminal behavior. However, the abuser does not have to be the alleged victim of the crime of which the applicant was convicted.
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