ALBANY (LN) — New York's Court of Appeals ruled Wednesday that prosecutors cannot condition plea deals on a domestic violence survivor's waiver of a Penal Law § 60.12 sentencing hearing, reversing an Appellate Division decision that had allowed the practice. The decision, issued as a plurality opinion, was seen by advocates as a significant development for defendants who argued the condition was gutting the Domestic Violence Survivors Justice Act for the overwhelming majority of defendants who never go to trial.
The case centered on N.H., who was charged with attempted murder in the second degree and two counts of first-degree assault after she struck her sister's girlfriend with her car three times during a block party outside her home, dragging the victim down the street before fleeing. The victim survived but is permanently paralyzed.
While the case was pending, N.H.'s counsel submitted a DVSJA application supported by a psychologist's report diagnosing her with PTSD and detailing years of physical and verbal abuse by her ex-boyfriend R.L. According to N.H., R.L. first physically assaulted her when she was 20 years old and five months pregnant, and his physical and verbal abuse escalated thereafter. The psychologist found that N.H.'s account of the night — that she was trying to escape R.L., who had jumped on top of her and punched her at the party — was credible, detailed, and highly consistent with her sister's report and other available sources.
Before any hearing could be held, prosecutors offered N.H. a plea to first-degree assault carrying five years in prison and five years of post-release supervision — a significant reduction from the 25-year maximum she faced on the attempted murder count — in exchange for her waiver of the DVSJA hearing and her right to appeal. Defense counsel argued at the plea proceeding that requiring the waiver went against the spirit of why the law was created. The trial court, acknowledging the absence of caselaw, accepted the plea anyway.
Writing for the plurality, Judge Rivera held that the DVSJA's statutory framework and legislative purpose establish that the Legislature did not intend for such waivers to be permissible plea conditions. The Legislature enacted the DVSJA in 2019, Rivera wrote, in recognition of what the Assembly Memorandum described as the national epidemic of domestic violence and the failure of prior law to allow judges discretion to fully consider the impact of domestic violence in making sentencing determinations. Allowing prosecutors to extract a waiver as the price of a plea deal, the plurality concluded, would hand that gatekeeping function to prosecutors rather than judges — precisely the outcome the statute was designed to prevent.
The plurality also warned that permitting waivers would hollow out the statute entirely. Because criminal justice in New York is predominantly a system of pleas rather than trials, allowing waiver would eviscerate this alternative sentencing pathway for the vast majority of domestic violence survivor defendants who plead guilty rather than proceeding to a trial. A footnote in Judge Halligan's concurrence cited a 2021 report by the New York State Association of Criminal Defense Lawyers finding that as of 2019, 96 percent of felony convictions and 99 percent of misdemeanor convictions in New York were the result of guilty pleas.
Judge Halligan concurred in the result but wrote separately to ground the holding in statutory mandate rather than public policy, cautioning that treating a legislative sentencing choice as equivalent in weight to constitutional rights could create complications if the Legislature ever chose to reverse course.
Judge Cannataro dissented, joined by Judges Garcia and Singas, arguing that the DVSJA's permissive language — the statute uses may rather than must — signals that the Legislature left the decision to pursue a hearing entirely to the defendant. Cannataro pointed to CPL 245.25(2), enacted by the same legislature at virtually the same time, which expressly prohibits conditioning a plea on waiver of automatic discovery rights, and argued the absence of similar language in the DVSJA was a deliberate choice. A right is not unwaivable simply because some members of this Court subjectively think the purpose behind it is more important than the value they personally assign to plea bargaining, Cannataro wrote.
The dissent also warned that the ruling may backfire on N.H. herself: with the plea vacated on remand, prosecutors are entitled to withdraw their offer, leaving her once again exposed to trial on 16 serious offenses and a potential 25-year sentence.
According to the prosecution, N.H. was conditionally released and placed on post-release supervision during the pendency of the appellate proceedings — a status that now hangs in the balance as the case returns to Kings County Supreme Court.