People v. B.N.

• Citation: 2023 NY Slip Op 23136
• Decision Date: 04 May 2023
• Docket Number: Indictment No. 2015-0692
• Parties: The People of the State of New York, v. B.N., Defendant.
• Court: United States State Supreme Court (New York)

2023 NY Slip Op 23136

The People of the State of New York, v. B.N., Defendant.

Indictment No. 2015-0692

Supreme Court, Cayuga County

May 4, 2023

For the People:

HON BRITTANY GROME ANTONACCI

CAYUGA DISTRICT ATTORNEY

By Christopher Valdina, Esq.

For the Defendant:

DAVID ELKOVITCH, ESQ.

THOMAS G. LEONE, ACTING SUPREME COURT JUSTICE

On May 23, 2013, the Defendant pled guilty before this Court to Murder in the Second Degree in violation of Penal Law § 125.25(1) for the killing of her boyfriend Henry "Hank" Davis. At that time of the plea, the sentence promise was between eighteen years-to-life and twenty-two years-to-life. Before imposing the sentence, this Court reviewed the pre-sentence investigation report psychiatric examinations, lengthy pre-sentencing memoranda and heard from the People, the Defendant, and friends and family of the victim. Having considered all of that, this Court imposed an indeterminate life sentence of twenty-one years-to-life. The Defendant has served approximately nine years of that sentence. If the Court grants the Defendant's application, her sentence would be converted to a determinate sentence of between five years and fifteen years (PL § 60.12[3]).

The Defendant appealed, asserting inter alia that she was innocent and that the original sentence imposed was unduly harsh and severe. The Fourth Department rejected those arguments, finding that the Defendant's claim of innocence was defeated by the fact "that she admitted the elements of murder in the second degree during the plea allocution and did not make any claim to the court at that time that she was innocent" (People v. Newkirk 133 A.D.3d 1364 [4th Dept. 2015], lv. app. den. 26 N.Y.3d 1148 [2016]). The Court held that, "[a]lthough the initial statements of defendant during the factual allocution may have negated the essential element of her intent to cause death, her further statements removed any doubt regarding that intent" (Id. at 1365). Additionally, the Court found that "the sentence [was not] unduly harsh and severe" (Id.)

Three years after that Decision, the Legislature enacted the Domestic Violence Survivors Justice Act ("DVSJA") which allows certain domestic violence survivors to receive a reduced sentence if, after a hearing, a court 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...; (b) such abuse was a significant contributing factor to the defendant's criminal behavior; (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 [the normal sentencing statutes]... would be unduly harsh (Penal Law § 60.12[1] [ emphasis added ]).

By way of an Order issued on October 6, 2020, the Court granted the Defendant permission to apply for resentencing pursuant to CPL § 440.47(2)(a). On April 9, 2021, the Defendant submitted this application for resentencing. The Court held an evidentiary hearing on August 16, 2022, at which time the Defendant testified on her own behalf and called two witnesses: psychiatrist Dr. Kelly Gill and the Defendant's adult son. Both parties requested, and consented to, each other's pre-sentencing memoranda and exhibits being considered exhibits for the hearing. The Court granted that request. The Court has considered all the testimony, proof, and argument adduced at the hearing, as well as the Defendant's Post-Hearing Memorandum.

The Defendant alleged that she suffered domestic abuse by two people during her life: sexual abuse during her childhood at the hands of her stepfather, and physical and psychological abuse inflicted by Davis. ^[1] The Defendant stated that her stepfather repeatedly touched her sexually and made her touch him sexually until she was approximately sixteen years old. Additionally, she claimed the following abuse by Davis:

(1) Physical abuse by strangling her to prevent her from leaving the house minutes before the shooting. The Defendant stated in multiple different sources that there were no other instances of physical abuse.

(2) Psychological abuse by exerting financial control over her, limiting her social contacts, restricting her access to transportation, killing his own dogs when she was not present and showing her where he buried them, killing feral cats near their home, cutting himself to make her feel guilty, and, in the Spring of 2011, threatening to kill her and hide her body. She also alleged that he verbally abused her by calling her names such as "crackhead" and "crazy" during their entire relationship.

The record for this hearing is voluminous and detailed. While the Court has considered the entire hearing record and all the arguments from both sides, only those portions of the record which are most relevant to this Court's decision will be discussed herein. The following constitutes the Court's findings of fact and conclusions of law:

I. Findings of Fact

On Sunday October 28, 2012, at approximately 6:02 PM, the Defendant killed her boyfriend, Henry "Hank" Davis, by shooting at him five times with a shotgun, striking him thrice in the torso. The homicide occurred in Davis' rural home in Conquest, New York where the two cohabitated for approximately two years. The homicide was the culmination of a multi-day domestic dispute between the Defendant and Davis that stemmed from a disagreement over whether Davis was going to visit his ailing father in the hospital or stay at home and give the Defendant a massage. The Defendant spent the next day (Saturday) at her adult son's house.

While at her son's house, the Defendant and Davis continued to argue. The Defendant remarked to her son that she was going to kill Davis. As the argument progressed, Davis messaged the Defendant via Facebook and told her to move out of the house. The Defendant replied:

"First off you are NOT kicking me out. Second YOU asked for this! Third my broom don't fly very well these days so I don't think I'm going much of anywhere just yet."

"Excuse me I said you are NOT kicking me out & I don't have transportation as you well know so don't ask me stupid questions."

"Listen buddy i don't know what you are trying to pull here, but like I said I am NOT removing my stuff from that house, because that is MY home too! I am sorry to disappoint you with this news. You touch my stuff & yes the authorities will be involved because I know my rights! I told you I was going to visit my son. YOU told me I could use the Chevy & then you played your dick card & never said a fucking word to me about taking it!" (People's Exhibit M, Facebook Messages Between Defendant and Davis, at 1-2).

On Sunday, the Defendant requested Davis pick her up and bring her home, which he did. The argument continued in-person. Davis told the Defendant to leave his house, and the Defendant patently refused:

I'm not leaving the house.... I've put a lot of money and sweat and, you know, in that house.... I made that house a home (People's Exhibit J, Transcript and Video Recording of Defendant's Police Interview, at 19-20).

I'm like, 'I'm not. I'm not. I'm not packing my stuff. You know? I've already been down that road because I've moved out once, packed up all of my stuff, and moved down to the other edge... I've been down that road.... So I went back down to the house, went inside, took care of my stuff. Switched his laundry from the washer to the dryer. Folded my laundry and stuff, you know, just going about my business. Then I went in and sat in front of my computer. I figured I'll stay at my computer; I'll stay right out of his way (Id. at 26-27).

During the dispute, the Defendant threw a bowl of noodles, which, according to the Defendant, caused Davis to start verbally taunting her:

He kept taunting me... he kept running his mouth and wouldn't leave me alone. So I kept throwing stuff from the top of my dresser. I wasn't hitting him. And he told me I throw like a girl. And he kept it up. So I went out to the kitchen and he followed me to the kitchen. I was by the door, right by the mud room door. And he kept following me and then got right in my face. He wouldn't let me go out the mud room door. He got right in my face and that's when I kept asking him to stop, to stop, and he wouldn't (People's Exhibit J at 29-31; see also 36-38).

At that point, the Defendant "lost it" and began hitting Davis about the head and body (People's Exhibit J at 29-31).

Defendant: I was going to go outside. I needed to go away. He wouldn't leave me alone and I asked him to be alone. And he was right in my face and he just kept it up and kept it up - just everything, just taunting me... and... I snapped and I just starting hitting him. And he would come right back in my face again. He just wouldn't -

Investigator: So that's what you're saying about your knuckles being a little swelled up. That's from hitting him?

Defendant: [ Inaudible ] they're bruised... they hurt.... But he wouldn't back away. He just kept coming at me. Like I said, taunting me. And I'm like, 'Oh that's a good one.' He wouldn't let me go. I couldn't -

Investigator: Where were you -

Defendant: He wouldn't move.

Investigator: Where were you hitting him at?

Defendant: Anywhere

...

Investigator: So you're swinging, hitting him, and that's what - you hit your hand and then, at some point, because of you hitting him? He does one of these two you [ indicating ]? You said he choked you?

Defendant: Yeah, he choked me. He also told me he was going to f-ing kill me.... And there was a picture on my right-hand side.... And I grabbed it and smashed it on his head so he would back

...