Taking Another Look: How the Domestic Violence Survivors Justice Act Works in Practice

By Jennifer Andrus

February 26, 2024

Taking Another Look: How the Domestic Violence Survivors Justice Act Works in Practice


By Jennifer Andrus

In 2019, Governor Andrew Cuomo signed the Domestic Violence Survivors Justice Act, which allows both prosecutors and defense attorneys to look back at cases where a defendant was a documented victim of abuse. Alexandra Harrington of the University of Buffalo Criminal Justice Advocacy Clinic outlined the provisions of the new law during a panel sponsored by the Criminal Justice Section at the New York State Bar Association’s Annual Meeting.

The panel included attorneys from the prosecution, defense and judiciary who share their experience in using the law. Panelists outline how the new law works and what can and cannot be granted under it. They also dispelled some inaccuracies that are common when discussing the new law.

“This is not intended to be a second bite at the apple,” said Harrington. “It is an opportunity for a reduced sentence for survivors of domestic violence prior to 2019.”

Harrington said the law expands protections for domestic violence victims in limited circumstances. The applicant must show that they were a victim of abuse at the time of their criminal offense. Abuse may be physical, sexual, or psychological committed by a family member or person in the household. The abuse must be a significant contributing factor in the criminal conduct. Lastly, the original sentencing guidelines are reviewed based on these factors along with the nature of the crime and the condition of the applicant.   Harrington says the cumulative traumatic effect of incarceration and post release supervision are also considered.

How to Use the Law

Using this law to resentence a case takes time and extensive research according to the panelists. “These applications are taking months to complete. Getting the full story from the client about their crime and abuse takes time to unravel over several visits,” said Harrington. “Some clients may not identify as a domestic violence survivor, or think the abuse was not so bad. They think [the abuse] is normal.”

The process involves poring over case notes and finding old records from hospitals, schools, or social services. Setbacks should be expected including missing or destroyed records and finding that witnesses are deceased.

Risa Gerson, chief of the Conviction Integrity Unit at the Bronx District Attorney’s office, says her office has received 17 petitions with four now under review since the law went into effect.

“We have joined a little over half of the applications,” she said. “Those others have gone to a contested hearing in court, where the court agreed with the prosecutor and did not find the sentence to be harsh.”

Gerson shared insight into how the application process works in her office. After receiving a draft of the application from the defense before it is filed, her office opens its own investigation. Her team analyzes the case to see if they feel the inmate meets the criteria. If they do, the DAs office will join the application and avoid a trial.

“We read the trial transcript to get a full picture of what happened and talk to the prosecutor to get their input,” Gerson said.

In some cases, the original prosecutor is not on board with a resentencing or believes that the jury rejected the justification defense. Gerson reminded the panel that the defendant does not have to show they are innocent of the crime. If there was a plea bargain at the outset, the district attorney’s office must justify asking for a further reduction in sentence.

“It is a case-by-case analysis. We try to give benefit to the defendant if they are a domestic violence victim and have suffered trauma,” she said. “We do trauma informed interviews where the defendant tells the story in a nonconfrontational way. My advice to counsel is – allow us to do this – it’s less traumatizing than a contested hearing. If we agree [with the application], there will be no hearing.”

Gerson said the most difficult part of this process is reaching out to the victim’s family.

“A victim’s family typically knows the defendant and it’s a complicated relationship,” she said. “The defendant is often resentenced and released due to time served. It is a very difficult part to navigate.”

The Case of Patrice Smith

Erie County Acting Supreme Court Justice Sheila DiTullio joined the panel to offer her experience. She was the trial judge in the well-publicized murder trial of Patrice Smith in Erie County in 1999. She was still on the bench when adjudicating the resentence of Smith using the new law in 2022.

Smith was 16 years old at the time of her conviction for second-degree murder and robbery in the strangulation death of Rev. Robert Robinson, Sr., in 1998. Smith had an eight-month relationship with the minister, who had groomed, sexually abused and trafficked her. Smith was also forced to coordinate trafficking of other girls for Rev. Robinson.

DiTullio explained that a defense of extreme emotional distress was not available to the defense at the time of trial due to the timing of the crime. She went on to describe how the defense application shed new light on the case.

“Given the full picture of the case: rape, abuse, threatened by a man who exploited her, plus the repeated abuse Patrice Smith endured, could not be separated from the acts of the crime,” she said.

DiTullio said taking on cases like Smith’s is a big ask, and one that judges do not take lightly. She admitted that DVSJA motions are very difficult and require a judge to pause and reflect.

“In the end after much thought, I concluded that our system allows for mercy where the defendant herself was also a victim.  Smith was released from prison and justice was done. I learned so much from this case, namely that justice comes in a lot of shapes and forms.” Justice DiTullio vacated the 25 years to life sentence to a 12-year sentence for murder and robbery.

During her 21 years in state prison, Smith earned an associate degree, participated in counseling and earned other accomplishments. During resentencing, Smith, now 37, thanked the court for its mercy.

“I will never get back my childhood, but because of you, your honor, I will leave prison knowing that what he did to me mattered and that someone cared about it. So, I thank you for that,” she said.

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