For the reasons that follow, the court holds that defendant is not eligible for sentencing under PL § 60.12.

In a felony complaint dated April 26, 2019, the People alleged that Detective Michael Viana reviewed surveillance video that showed defendant repeatedly stabbing Stephen Nipitella ^[FN1] all over the body including the neck, abdomen and face. As a result, Nipitella suffered "numerous injuries including an abdominal evisceration in which the victim's intestines were visible outside of his body, a stab wound to the neck from which he lost a significant amount of blood, and a slash wound to the face which extends from the victim's temple to their chin." At the time of the drafting of the felony complaint, Nipitella was being treated at Bellevue Hospital, where he remained intubated and sedated.

On May 23, 2019, defendant was arraigned in New York County Supreme Court, Part 51, before the Honorable Erika Edwards, on the instant indictment, which charged him with Attempted Murder in the Second Degree (PL §§ 110/125.25[1]), two counts of Assault in the First Degree (PL §§ 120.10[1], [2]) and Criminal Possession of a Weapon in the Fourth Degree (PL § 265.01[2]).

At trial, Dr. Michael Klein testified that when Nipitella arrived at the hospital, he was in critical condition, meaning that he was at risk of severe injury or death (T 86).^[FN2] Klein observed that Nipitella "was actively bleeding and had what we call life-threatening hemorrhage and needed to be operated on immediately to stop that bleeding" (T 81). Niptella had a

slash wound to the side of his face with bleeding from the superficial temporal artery, which is an artery - - the largest artery up in that part of the face.

He had a slash wound to his neck. He had a stab wound to his abdomen with, as I mentioned, evisceration, meaning his intestines were outside of his body.

He had a slash wound to his left forearm and a wound to his left leg as well.

(T 82.) Nipitella underwent three surgeries the night he was admitted to the hospital and Klein opined that it was unlikely that Nipitella would have survived if he had not received treatment and undergone the surgeries (T 85, 86). Nipitella remained hospitalized until May 14, 2019 (T 80).

At the time of the trial, approximately four and one-half years later, Nipitella had scars on his face, lip, arm, head, shoulder, leg and stomach and had no feeling in part of his mouth (T 569, 570, 575, 576).

Defendant's credibility was severely undermined by his trial testimony. Police encountered defendant on the train at the West 125th Street station, where he was bleeding from his arm (T 1111). Defendant told those officers that he was injured after he fell down the stairs (T 1112). Defendant provided the responding EMT's the same false story and also provided them was a false name, date of birth and address (H 1112, 1113, 1114, 1115). Defendant repeated this false story a third time to medical personnel at St. Luke's Hospital (T 1115, 1116, 1117). After defendant's arrest by the police, he waived his Miranda rights and told the police that Nipitella attacked him from behind as Renee S was holding defendant back from behind, that he was unarmed but was able to grab the knife away from Nipitella and that he then used that knife to slash Nipitella (T 1120, 1126, 1127, 1128, 1129, 1131, 1132). Defendant also made post-arrest statements to an ADA, claiming again that only Nipitella had a knife but that defendant was able to get it away from him (T 1142). Defendant conceded that once he was able to do that the fight could have ended and it was unnecessary for him to stab Nipitella. Defendant also told this ADA that Nipitella was unarmed when he stabbed him (T 1144).

At trial, defendant told a very different story. He testified that he actually was armed with a knife but that Nipitella was, too, and had shown him a blade (T 1160, 1163, 1164, 1165).^[FN3] Defendant conceded that in the video surveillance immediately after what he said was Nipitella showing him a blade, Renee S could be seen holding defendant back and physically restraining him until he managed to get around her and run, with a knife in his right hand, after Nipitella, who was walking away (T 1165, 1167-73, 1174-75). Defendant told the jury that after he caught up with Nipitella, and while still holding a knife in his right hand "like towards his side," he pushed Nipitella with his left arm (T 1087, 1173, 1174, 1176-77). According to defendant, after he shoved Nipitella, Nipitella swung his blade and cut defendant on the wrist; defendant swung at Nipitella but missed; then Nipitella hit defendant, who tried to dodge but fell back towards the floor; Nipitella then punched defendant "like to [his] temple region" and then "kept slashing" him. Defendant told the jury on his direct examination that while he was on the ground he raised his arm to block Nipitella, who was trying to cut his face. When defendant was able to get to his knees, Nipitella was still on top of him swinging at him; according to defendant, that was when [*2]defendant "started slashing at him with my knife. . . . trying to get him off of me. He kept slashing at me, so I kept slashing at him" (T 1087-90, 1180-81, 1183-84). At trial, defendant also claimed for the first time that the knife Nipitella used to cut his arm became lodged there and defendant discarded it at the corner of 45th Street and 9th Avenue (T 1187).^[FN4] However, the only knife defendant was seen discarding on video surveillance was his own (T 153-61).

On October 4, 2023, after a jury trial before this court, the jury rejected defendant's justification defense. The jury acquitted defendant of Attempted Murder in the Second Degree but found him guilty on all of the remaining counts. The case was adjourned for sentence to November 15, 2023 and again to December 6, 2023.

On November 30, 3023, defense counsel filed a motion for a hearing to determine whether defendant should be sentenced pursuant to PL § 60.12. Counsel stated that after receiving reports prepared by Dr. Sanford Drob, a clinical and forensic psychologist, and Gabrielle Falcone, a social worker, they became aware for the first time that defendant was a victim of serious physical and sexual abuse inflicted by a member of his household (Def Aff 11/30/23 ¶ 5). This court held a hearing on February 1, 2024 and February 29, 2024. Defendant called three witnesses, Jamie H, himself and Dr. Sanford Drob. The People did not call any witnesses.

The Hearing Testimony

Defendant is the youngest in a family of five siblings. His brothers and sisters are Alvero Alejandro (hereinafter "Alejandro"), Jennifer, Jamie, and Janet (H 5, 27).^[FN5] Defendant's older sister sister, Jamie H, lives in Queens, New York with her husband and her three children (H 4). According to Jamie, "as kids, we grew up in a home filled with domestic violence, neglect and also sexual abuse from people we were close to" (H 4). When Jamie was five years old and defendant was two or three years old, the H family was living in Pennsylvania. At that time, there was a

lot of corporal punishment. My father. Like. He had horse straps, and he would hit us with that. Neglect, we were left alone, home alone by ourselves a lot without any supervision.

. . .

So in our house growing up, if one did something, everybody got punished. So there was a lot of beatings going on for all of us, especially, you know, he was really small, so he would get hit just as bad as we did.

(H 6.)^[FN6] Around the same time, Jamie's older brother Alejandro began sexually abusing her on a daily basis (H 6, 7, 11). Alejandro would tell her to sit in the closet and "then he would go and inappropriately touch me in there" (H 6). Jamie was not aware of any sexual abuse of defendant at that time (H 7). After the family moved to Florida, the H children were still living with their parents and

it was just more aggressive corporal punishment all the time. We were left alone more frequently. And the sexual abuse because we were left alone more. And it even got to the point where my parents were home while I was being sexually abused. And my brother would just catch me whenever I was alone by myself.

At that time Jamie was not aware of any sexual abuse occurring to defendant. However, [*3]defendant was physically abused (H 10). Their father would line up the children and hit them in the hands with the horse strap belt until they were all asking him to stop (id.). As a result of the abuse, Jamie observed that defendant was "very quiet" and "by himself" (id.).^[FN8] Jaime described Alejandro as a "bully" who would "hit us, you know, put us down a lot. And the sexual abuse" (H 11). Jamie did not tell anyone about Alejandro's abuse at that time (id.). The abuse ended was Jamie was approximately 11 or 12 years old, when Alejandro "got sent" to live with their grandparents in New York City (H 12). The abuse began again when they moved to New York City "two years or a year after [Alejandro] left" and Jamie had just turned 12 years old (H 12). At that time, Jamie tried to avoid being at home as much as possible so there "was still a little bit of sexual abuse" but less than there was in Florida (H 13).

In New York, they were living in a two bedroom apartment (H 13). Jamie slept in one bedroom with both of her sisters and defendant slept with Alejandro on a pullout couch in the living room. Their grandparents slept in the other bedroom (id.). Alejandro made a hole in the bathroom door "so that he could look at us when we were in the bathroom" (H 13). The inappropriate touching and penetration were occurring in the bedroom but not on a daily basis (H 14). At that time, Jamie was not aware of any sexual abuse occurring to defendant, but Alejandro was beating him up "all the time" (H 14).^[FN9] Alejandro was much bigger than defendant at the time and would slap, punch and wrestle defendant (H 14). If defendant tried to fight back against him, Alejandro only became more aggressive (H 15). Jamie never observed Alejandro sexually abuse defendant (H 22). However, she observed "inappropriate touching" (H 22). Whenever Alejandro wrestled with defendant, Jamie observed that Alejandro would grab defendant's private parts a lot and "constantly rub up against his behind" (H 22).

Alejandro stopped abusing Jamie when she was 13 years old and she became pregnant by her then-boyfriend (H 15). Around the same time Jamie told her older sister, Jennifer, about the abuse and Jennifer shared that Alejandro had been sexually abusing her as well "[e]ver since Pennsylvania" (H 16). Jamie also shared the fact that she had been abused in therapy. In 2009, Jamie and Jennifer were talking about the abuse and Jonathan shared that Alejandro also sexually abused him, "especially when we came to New York and [defendant] was sleeping on the couch with . . . Alejandro, is when a lot of it would happen" (H 16, 17). At the time of that disclosure, Jamie described defendant as "[q]uiet, you know, hard to make eye contact with us. We were all heartbroken and just to know that we were all going through the same thing" (H 18). Defendant remains "very quiet" and "very reserved" today (H 18, 22).

Alejandro spent approximately 10 years in prison and Jamie did not really keep in contact with him. She described Alejandro as a "showoff-y type of person. Always felt like he needed to be acknowledged as a man" (H 19). Jamie confronted Alejandro about the abuse and he [*4]apologized.^[FN10] However, the abuse left Jamie feeling "sometimes invalid, unloved and abandoned" and resulted in several suicide attempts (id.). When Jennifer told their grandmother that she had been abused by Alejandro, she had Jennifer committed to a mental facility in Elmhurst Hospital (H 20, 21). Jamie and Jennifer knew they could not trust any adult because every time they went to an adult, they did not get the help they needed (H 21).

Jamie has never seen defendant get into a fight or "hurt or be aggressive to someone without provocation" (H 18, 23). Jamie and defendant spent almost everyday together until she moved upstate about four or five years ago (H 19). In 2019, Jamie was living in the Bronx (H 24). She knew that defendant was homeless and that he and his girlfriend were being harassed by someone in the shelter where he lived, but does not know who Stephen ^[FN11] Nipitella is (H 20, 24). Jamie wanted the court to know,

My brother's never been somebody to get in a fight. He's always been somebody to avoid conflict. Even when he, you know, had people coming up to him looking to fight, he would - - he wouldn't engage, he would go away. You know, there was a time period where he would, you know, not leave the house to avoid that conflict. And I just - - I would like them to know that he's just not a - - he is not a person that looks for problems.

Defendant testified that between the ages of five and approximately 11, he was subjected to "a lot of touching, sexual penetration" by his brother Alejandro (H 26, 27, 28, 51). While living in a three bedroom trailer home in Florida, where he shared a bedroom with Alejandro, the abuse

[s]tarted off with, like, him playing around, but I wasn't really aware of what he was doing. And then it became more of a forcible thing.

(H 28.) Alejandro would force defendant to put his private parts on Alejandro and penetrate him and Alejandro would force himself on and penetrate defendant (H 29). This occurred approximately three to four times a week, mostly during the night. Defendant did not report this abuse at the time because Alejandro threatened to beat him up if he said anything (H 29, 30). Defendant did not sustain any injuries as a result of the abuse, but it made him feel scared and despite the fact that it happened may years ago defendant remembers "vivid details of this abuse" (H 30). The abuse in Florida ended when Alejandro moved to New York to live with his grandparents and defendant remained in Florida (H 31). At approximately the age of seven or eight, defendant began drinking alcohol, stealing it from liquor cabinets in the house and filling up soda cans (H 31).

When he was approximately eight or nine years old, defendant moved to New York, where the sexual abuse continued.^[FN12] Alejandro and defendant slept in the same bed every night and Alejandro abused defendant one to three times a week during this time (H 40, 46).^[FN13] In addition, at that time defendant's uncle, Rodrigo H, would get drunk and beat him and Alejandro (H 32).^[FN14] Defendant's grandmother would see Rodrigo drink and beat up defendant and Alejandro but did not do anything about it (H 33, 34). Defendant's grandfather would "get into it" with Rodrigo if he saw the abuse (H 33). At that time, defendant "was always scared, you know, I was always getting abused, hit, beat up, bullied" (H 33). Rodrigo "walked in on" defendant and Alejandro (H 34). Rodrigo "didn't really see much . . . [b]ut . . . suspected something" and beat up Alejandro. But Rodrigo was drunk at the time and defendant could not say if Rodrigo would have remembered what he saw the next day or told anyone about it (H 34). Alejandro's abuse ended when defendant was approximately 12 or 13 years old and Alejandro was arrested (H 35).^[FN15] As a result of the abuse, defendant found it hard to trust people (H 35, 37). Defendant stayed to himself and did not really play with other kids (H 38).

When defendant was approximately 13 or 14 years old he moved back to Florida (H 36). Defendant told his mother that Rodrigo abused him but did not disclose that Alejandro had sexually abused him (H 36).^[FN16] Years later, when defendant moved back to New York, he learned [*5]that Alejandro had sexually abused his two older sisters and defendant revealed to them that Alejandro had sexually abused him, too (H 37). Defendant also told his girlfriend Renee about the abuse and then, later, Dr. Drob and Gabby Falcone (H 38). To deal with the abuse, defendant abused alcohol for the "better part" of his 20s (H 38); he did not want to think about the abuse (H 39). After Alejandro was released from prison, they never discussed the fact that Alejandro had sexually abused defendant. They did not have much of a relationship and after they fought a few times, Alejandro stopped trying to bully defendant (H 39).

While they were living in Florida, defendant saw Alejandro smoke "weed" and drink alcohol (H 48). In New York, Alejandro began using cocaine (H 48). The drugs made Alejandro more abusive (H 48). Alejandro died of an overdose in 2019 (H 40). Rodrigo hung himself (H 41).

Defendant described Alejandro as an abusive bully and stated that he "wasn't a good person" (H 48). Defendant described Stephen Nipitella as

abusive, like my brother. He was also arrogant. He would get away with everything he was doing to me, just like my brother was getting away with everything he was doing to me.

(H49.) Nipitella threatened defendant on multiple occasions and threatened to rape Renee (H 49). Defendant perceived those as "real" threats (H 49). Defendant testified that while interacting with Nipitella he felt the effects of being having been abused by Alejandro "[l]ike, the bullying, the tormenting, feeling like you're cornered, feeling like nobody's helping you. . . . the name calling, the threats" (H 41, 42).^[FN17]

Prior to his arrest, defendant had "no prior history of contact with mental health professionals" (DX B p 5). Defendant is currently taking Zoloft for depression, hydroxyzine for anxiety and mood disorders, prazosin for PTSD and nightmares and suboxone for opioid addiction (H 42).^[FN18] He suffers from nightmares, cold sweats and sleeplessness as a result of his PTSD. Defendant was incarcerated at Riker's Island for approximately 18 months before he was released pending trial (H 43). During that time defendant suffered from PTSD, specifically, insomnia and panic attacks (H 44). Defendant had had "some" panic attacks before April 2021 (H 49, 50). The first day defendant returned to prison after his conviction, he walked past a dead body on the bridge in the housing unit after that person died from an overdose (H 44-45). There are also a lot of slashings (H 45).

A couple of years before defendant met his girlfriend, Renee, she was

brutally raped by four members of the Blood gang. It was on 52nd Street in Brooklyn, train station. They broke her spinal cord, fractured her discs, they stabbed her in the neck, [*6]and they all took turns raping her.

Defendant acknowledged that he testified at trial that he was acting in self-defense, that Nipitella had threatened to cut him, had threatened him in the past, and had thrown a box fan at him (H 52). Defendant also testified that Nipitella had a blade on April 25, 2019, and that he was defending himself from that blade (H 53). Nipitella never sexually abused defendant (H 53).

Dr. Sanford Drob is a clinical forensic psychologist (H2 4).^[FN19] He has a doctorate in philosophy with a specialty in "philosophy, psychology" and received a second doctorate in clinical psychiatry in 1987 (H2 5). Drob has been licensed as a clinical psychologist in New York since 1987 (H2 4).

Clinical psychiatry is the application of psychological science principles and knowledge to the lives of every-day people and their psychological difficulties, mental illness. Forensic psychiatry is the application of clinical psychiatry in various legal contexts.

(Id.) Drob has published approximately 30 peer reviewed articles (H2 6; DX A [Drob CV]). Drob had an internship at Bellevue in 1981 and 1982 and was thereafter hired to be the psychologist on the forensic psychiatry service in 1983. He remained there until 2003 (H2 5, 9). Drob was the senior psychologist on the prison ward and the director of psychological assessment for Bellevue (H 2 9). While at Bellevue, Drob conducted a large number of clinical evaluations on patients sent from Riker's Island, including 730 exams, competency exams and 320 [sic] exams requested by the court for sentencing (H2 9, 10). In addition, Drob did examinations concerning people's mental state at the time of the crime, extreme emotional disturbance and sentencing mitigation (H2 10). Drob's clinical experience at Bellevue included psychology therapy and running groups for individuals on the prison ward (H 10-11).

Since 2005, at Fielding Graduate University, Drob was the director of the psychiatry concentration program, taught psychological assessment and testing and positive and humanistic psychology and gave courses on the philosophy of psychology and the history of psychology (H2 8). He was a member of the faculty at Fielding Graduate University until July 2022 and is now a professor emeritus there, supervising student dissertations (H2 8). He is also on the faculty of CG Jung Institute in Manhattan (id.). The main source of Drob's income comes from private practice in clinical and forensic psychiatry (id.). In the course of his career, he has conducted approximately 60 forensic evaluations a year since 1983 (H2 11). Drob has previously been deemed an expert in clinical and forensic psychology in all five boroughs in New York as well as in the Southern and Eastern Districts of New York and several times in other states (H2 11, 12). He has testified approximately 80 percent of the time for the defense but has testified for the prosecution as well (H 2 12). However, Drob has only testified approximately 10 times in the past five years (H2 12). Drob was deemed an expert in clinical forensic psychology at the hearing (H 12, 13).

Drob conducted an in person forensic evaluation of defendant on October 18, 2023 for [*7]approximately three to four hours for "mitigation and sentencing" (H 13, 14, 59, 60, 61, 62). Drob was not asked to evaluate domestic violence as the focus of his evaluation (H2 60). Prior to his interview with defendant, Drob reviewed a videotape of the incident, trial testimony, specifically, that of defendant, Stephen Nipitella's mother and "some" of Stephen Nitella's testimony, as well as text messages sent to defendant by Nipitella and records of defendant's medical and psychiatric treatment from Riker's Island (H2 14, 79). Drob did not review the entire trial transcript, did not review the police officers' or doctor's testimony, did not see all of the video in the case, and never met with or spoke to Stephen Nipitella, Kimberly Nipitella, or Teresa Thorson (H2 65, 66, 71). Indeed, Drob did not know who Thorson, a third party eye-witness to the crime, was (H2 67, 69). Drob could not remember if he reviewed police reports and shelter complaints before or after he interviewed defendant (H2 14). After Drob interviewed defendant, he reviewed records from the Child Protection Agency in Florida (H2 14).^[FN20]

A forensic evaluation is a "comprehensive clinical evaluation" (H2 14). The forensic psychological report Drob prepared after his evaluation of defendant was completed was introduced into evidence as DX B (H2 15-17). Drob conceded that the only person he spoke to in order to develop the "current case" narrative in DX B was defendant; Drob noted in his report that he was "not in a position to judge the veracity of [defendant's] report of the specific provocations directed to him by the victim in this case"(H2 63, 64, 65). Drob administered

a comprehension subtest of the Wechsler Adult Intelligence Test, fourth edition. I administered the trauma symptom inventory 2, second edition. I administered the brief form of the personality inventory for DSM-5 ^[FN21]and the cross-cutting symptom measure for DSM-5.

provide an understanding of an individual's verbal abilities, cognitive abilities but also because the test involves reasoning and rather lengthy responses it provides a good index of whether or not the individual is suffering from what we call a thought-disorder, a thinking disturbance in which we see certain mental illness.

(H2 18-19.) Defendant received an average score on the Wechsler Adult Intelligence test; "there was no evidence of a thought disorder and there was significant evidence that [defendant] has the capacity to think logically and coherently" (H2 19). Drob described the trauma symptom inventory testing as follows:

I think it's 144 items testing which an individual is asked if they have had certain symptoms; feelings or behaviors over the prior six months. The test involves all of the symptoms and behaviors that are diagnostic of PTSD but also a wide range of related symptoms that we often see in individuals who have been traumatized, such as depression [*8]problems and intra-personal relationships[,] problems in self esteem identity, etc.

consistent with the history of posttraumatic stress disorder as well as anxiety, depression and a history of suicide ideation. There were also indications that while on the one hand [defendant] has experience[d] intrusive thoughts and images what we call flashbacks but he also makes a concerted effort to suppress them.

tends to be socially isolated and restricted that he is troubled by constant worry and gets emotional easily based upon his responses to the test. There were no indications of chronic impulsivity or loss of self-control but he did indicate that he had problems regulating his affect, his emotion. He also indicated that he had disassociative experiences; these are experiences; these are experiences where a person feels distant from their environment from others and even from themselves.

Based on Drob's assessment and a review of defendant's records from Riker's Island, defendant has symptoms of post-traumatic stress disorder, depression and general anxiety (H2 22, 60). In Drob's expert opinion, defendant's PTSD stems from

several sources based upon my review of the materials and what he told me and also subsequently I've learned since I examined him he reports and there appears to be significant evidence that he was traumatized both sexually and physically as a child. I also believe that the incident in question is the reason why we are here today was traumatic to him even though he was a participant in it; it was traumatic. I think that his PTSD symptoms were re-signified as a result of that incident so the PTSD diagnosis he gets the diagnosis he gets at Rikers Island probably results in a combination early childhood history and the trauma of this incident which he reported to me. He continues to be disturbed by it on a daily basis.

(H2 25-26, 78.)^[FN23] Defendant's uncle's suicide was also a traumatic event that could cause or [*9]contribute to PTSD; however, Drob does not believe that defendant's uncle's suicide is the primary source of his PTSD (H2 74, 82). Defendant also suffered other traumatic events which would not contribute to or cause PTSD but which could lead to increased stressful situations, increased anxiety and increased depression, including homelessness and long periods of incarceration (H2 74, 76, 77). Drob also believes that defendant suffers from "complex PTSD" (H2 26), a term that does not appear in the DSM-5 and is not a DSM-5 diagnosis, meaning it is not part of the APA's standard diagnostic manual in terms of evaluating psychological conditions (H2 61).

Complex PTSD is a term that has come to refer to a condition in which individuals experience protracted abuse, neglect or disattunement ^[FN24]in early childhood; they have trauma. The statician [sic] for PTSD diagnosis over a long period of time it's in childhood and usually accompanied by parental disattunement or neglect; a failure of adequate attachment. These individuals in addition to suffering some or all of the symptoms of post-traumatic stress disorder have chronic problems in adeptation [sic] throughout their life; they have difficulties with intimacy relating to others, problem, serious problems in social regard; social esteem, serious problems in interpersonal relationships and often times their functioning occupationally, academically is impaired; they may even experience symptoms such as hallucinations that are associated with psychosis; these individuals are in contrast to people who just have PTSD even if you treat the PTSD symptoms there is something that remains that is more chronic and needs to be addressed.

in addition to reporting flashbacks and ideation he began to experience only after the abuse was over but has experienced since that time. His efforts to suppress those feelings and then his emotional conviction, the limitations in his emotional ranges, his avoidance of social relationships, his insecurity, his failure to achieve at anywhere near the level he appeared to be capable of, are all indications that in addition to being - - suffering from straight out you know intrusive ideation and suppression of that ideation his trauma also has affected his overall functioning over a long period of time.

suffering from efforts to curtail intrusive ideation about his past; he was at that point very anxious, extremely anxious. He was somewhat depressed; he had lost a pregnancy with his wife I think several weeks prior to the incident. And he had the symptoms of social anxiety, emotional constriction that I have associated with complex PTSD so those were [*10]in my opinion to a reasonable degree of certainty all present in the period leading up to the incident. Of course the stressor prior to the incident make many of those symptoms particularly anxiety much worse.

(H2 27, 78.) Drob's testing enabled him to conclude, however, that defendant is not "historically or chronically a dangerous person but who because of his suppressed anger and repressed anger could become volatile or lose control under extremely stressed circumstances" (H2 28). Drob conceded that defendant "was clearly angry and violent in this incident" (H2 29).

As a forensic clinical doctor, Drob has evaluated countless people who have been the victims of domestic violence and many who have been perpetrators of domestic violence (H2 29, 30). Drob is

constantly doing evaluations of individuals who have been charged with crimes; typically violent crimes who have a history of early childhood abuse or domestic or adult abuse in there [sic] intimate relationships and I am asked to draw the conclusion as to whether those traumas and abuse that they experienced was a contributing factor in their current offense, conduct.

(H2 36.) The psychological symptoms of domestic violence include anxiety, depression, low self esteem, intra-personal problems and "often symptoms with post traumatic stress" (H2 35-36). Individuals who experience childhood physical and sexual abuse as well as other "adverse experiences in childhood" tend to suffer, as compared to others who did not suffer such childhood abuse, from medical and psychological problems, difficulties with the law and have a much higher chance of having a criminal record later in life (H2 30, 37). Drob has also reviewed literature on

more intimate current domestic violence, in other words, when a person experiences violence in the setting in which they are living, there is a huge literature on the impact of that violence on their capacity for autonomy; there is a course of control in which an individual who has been chronically abused loses their capacity to make rational decisions and also how it impacts their capacity to control their impulses and their emotions.

Defendant told Drob that he had been sexually abused by his older brother Alejandro and was "physically beaten on a large number of occasions" by his uncle (H2 31, 73). Drob also read Jamie H's testimony describing that defendant had been physically abused by his father during his early childhood (H2 31). Around the time defendant was 11 or 12 years old, the abuse ended (H2 73). To the extent that the physical and sexual abuse of defendant occurred the way it was described, in Drob's expert opinion it would be "very substantial" (H2 32).

Drob opined,

I believe that the abuse that he reported experiencing in which his sister indicated that he experienced and in which while not documented in the child records from Florida indicate there was at least certainly neglect in his life. I believe that abuse sensitized [defendant] to the stresses that he experienced in the days and weeks prior to the incident [*11]that led to his charges in the following manner: He experienced both physical and sexual abuse in his early childhood home and the stress that he experienced in the days and weeks prior to his offense conduct was the stress that involved sexual and threats of sexual and physical violence and as a result it's my opinion to a reasonable degree of psychological certainty that those threats re-ignited or resignified the anxiety that he experienced earlier in his life and made him more prone to reacting in an irrational manner in response to that extreme stress and thus, it's my opinion, that the stress he experienced although he may have been a contributor to it, I wasn't there in that shelter, but that the stress that was going on between him and the complaining witness was of such a severity as to cause an imbalance in the psychology of anyone who's experiencing it but I believe that because of his unique experiences of violence in the home in early childhood he was particularly prone to lose his psychological equilibrium and control of his behavior under those circumstances.

said that he had written those texts but that they didn't contain his exact words and that there had been exchanges from [defendant] on the other side that you know would change the context of that so I did take that and I also wrote that I can't conclude that the only party to this dispute who is to blame for the stress in the dispute was Mr. Nipitella. I suggest that perhaps both of them were involved but I faulted based on my analysis, the shelter administration for not taking firmer action with regard to this conflict between the two of them so I don't simply take [defendant's] word that he was faultless in this, no.

Defendant also told Drob that his girlfriend, Renee S, had been brutally raped and beaten a couple of years before the the incident and that this "was on his mind and very stressing to" him (H2 42). The complainant's threats to rape Renee S

could have contributed to what I would describe as the perfect psychological storm in which his personal history of sexual and physical abuse came together with an experience of physical and sexual threats both to himself and his fiancé[e] who herself had experienced physical and sexual abuse to create overwhelming stress in [defendant's] mind or psyche.

the events [in the] days and weeks prior to the incident in which [defendant] experienced sexual and aggressive threats to his well being, the well being of his fiancé[e] were such as to reinvoke psychologically whether consciously or subconsciously the sexual and physical trauma he experienced in his childhood and as a result and these combined in a way that I can't specify with percentages but in a way as to create a psychological stress that resulted in his offense conduct and it's my view that the childhood abuse he experienced was a substantial contributing factor combined with the similar recent stress that he experienced in producing his offense conduct.

Drob also testified that defendant experienced a catathymic event on April 25, 2019. A catathymic event is "an event in which a individual experiences a sudden emotional reaction that causes them to lose reasoning and control" (H2 50, 51). Because defendant and Nipitella lived in the same shelter the stress that resulted from their exchanges would have been more acute and more likely to "reflect the abuse and trauma [defendant] experienced in a home environment earlier in life" (H2 57).

The fact that defendant lied to the police and medical staff after the incident did not impact Drob's opinion that the prior childhood abuse, coupled with the abuse by Stephen Nipitella, was a significant contributing factor to defendant's behavior on April 25, 2019, because while the lying was not justified it was psychologically understandable (H2 57, 58, 83).^[FN25]

Incarceration of individuals who have a history of sexual abuse "typically makes them more anxious in an incarceration setting, where sexual abuse is unfortunately likely to be prevalent" (H2 83). Similarly, individuals who have experienced domestic violence are "more anxious about the possibility of experiencing violence and threats in general" so incarceration "could be quite difficult for them" (H 83)

Defendant's Arguments

After reviewing the hearing testimony, defendant claims that his history of abuse was a significant contributing factor to this criminal conduct in this case. He claims first that he "suffered from physical and sexual harassment, threats, and violence from Stephen Nipitella from January 2019 through April 15, 2019" (Guliano and Burse Affirm ¶ 21). He continues, "[t]o say that Stephen Nipitella was a bully, would not do justice to the impact that Stephen Nipitella had on" him (id.). While conceding that he and Nipitella "did not share an intimate relationship," defendant argues that they "were domiciled together on the same floor of an apartment building. The two shared a bathroom. They shared a kitchen space. They shared the same entrance and exit out of their homes" (id. ¶ 22). Defendant argues that the trial record contains "abundant" corroboration of his account that Nipitella abused him physically and [*13]psychologically (id. ¶ 24), and that he corroborated the ongoing harassment in real time, not in anticipation of a sentencing hearing (id. ¶ 25).

Defendant argues that he tolerated Nipitella's "persistent, escalating, and petrifying aggression for a remarkably long time" but "[o]n April 25, 2019, something was different" (id. ¶ 28). According to defendant, he

did not come out of the building and charge at Stephen Nipitella with a knife. Something horrible was threatened during their heated exchange as Stephen Nipitella's friends tried to pull him away and Stephen was unrelenting. What was said in this moment caused [defendant] to have an overwhelming emotional experience unlike what most people will experience in a lifetime.

becomes a victim of unthinkable psychological and physical violence in his home, in the shelter where he lives, right outside his bedroom door, at the hands of Stephen Nipitella.

(Id.) Defendant claims that Nipitella's abuse of him "cultivated an unfathomable circumstance that mirrored the abuse that [defendant] suffered as a child, and [sic] the hands of aggressive, dangerous men, who told [him] he was nothing and thought no one could stop them" (id. ¶ 31).

Defendant then argues that the court should credit Dr. Drob's conclusion that defendant's prior substantial physical and sexual trauma "was a significant psychological factor in his actions on April 25, 2019" (id. ¶ 33). Dr. Drob believes that defendant "experienced a catathymic event which resulted in extreme stress and loss of control over his emotions and his behavior" (id. ¶ 36). Moreover, Dr. Drob believes that defendant believed "that the threats made to him could actually be acted upon based upon his real experiences and because there was no intervention from authority figures" (id. ¶ 39). In Dr. Drob's view, by residing in the same shelter defendant and Nipitella

were essentially living in the same space and so the stress that resulted from their exchanges and threatened (sic) that were made by Stephen Nipitella would have been more acute and troubling to him and also . . . more likely to reflect the abuse and trauma he experienced in a home environment earlier in his life.

Defendant argues finally that a sentence of imprisonment under PL §§ 70.00, 70.02 and 70.06 would be unduly harsh considering his history, character and condition. He has no prior criminal history, and both before and after April 25, 2019 was "a working and contributing member of society, despite his unexpected struggles with homelessness and his psychosocial conditions" (id. ¶ 49). Moreover, as a victim of sexual abuse, incarceration will be quite difficult for him (id. ¶ 47). Defendant cites two cases in support of the motion, People v. D.L., 72 Misc 3d 257 (County Court, Colombia County 2021), and People v. Brenda WW, 222 AD3d 1188 (3d [*14]Dept 2023).

The People's Initial Arguments

The People argue that all of three of the conditions set forth in PL § 60.12 must be satisfied for a defendant to be entitled to relief under the DVSJA. Under the statute,

(1) the defendant must establish that at the time he committed the crime, he was a victim of domestic violence who was subjected to substantial physical, sexual, or psychological abuse inflicted by a member of the same family or household; (2) the defendant must establish that this abuse was a "significant contributing factor" to the criminal actions for which he stands convicted; and (3) he must prove that taking into account the nature and circumstances of his crime as well as the history, character, and condition of the defendant, that the sentence authorized by law would be unduly harsh. While it is true that the victim of the offense does not necessarily have to be the offender's abuser, this multi-pronged set of requirements makes it clear that the application of the DVSJA in making sentencing determinations is rigorous and subject to strict application.

The evidence at the hearing did not satisfy these requirements. The first prong of the statute was not met for several reasons. The abuse of defendant by his brother "ended, in his own words, when he was 12 years old," but at the time of the crime he was 31 years old "and his older brother who had inflicted the childhood abuse had been deceased for some time" (id. ¶ 18). Defendant's sister Jamie corroborated that Alejandro

had been deceased long before April 25, 2019. This is simply too remote in time to the offense that the defendant has been convicted of to meet this required prong of the DVSJA statute. See People v. B.N., 79 Misc 3d 740, 754 (Sup. Ct. Cayuga Co., May 4, 2023).

(Id.) Moreover, at no time during the hearing "were any allegations made, nor any credible evidence submitted, that the defendant and Stephen Nipitella were in an intimate or family relationship" (id. ¶ 19). Therefore, there is no reasonable view of the hearing testimony that defendant was "a victim of domestic violence at the time of his offending conduct" (id., emphasis in original).

Next, "there was little to no evidence produced that established the necessary causal link between the childhood abuse of the defendant and his actions on April 25, 2019" (id. ¶ 20). The People argue that Dr. Drob failed to provide "the necessary causal link that would satisfy the legal requirement" that the abuse of defendant in his childhood was a "significant contributing factor" to his assault on Nipitella.

In fact, Dr. Drob identified several sources for the stress and anxiety symptoms the defendant allegedly suffers from, including the assault itself and the resulting incarceration. His testimony established a general assessment of anxiety and stress, but he did not ultimately conclude that the primary reason for why the defendant stabbed and slashed Stephen Nipitella on April 25, 2019, was because he was abused as a child. People v. B.N., 79 Misc 3d at 763-64.

(Id. ¶ 21.) Moreover, Dr. Drob did not appear "to have a full grasp on the totality of the circumstances at the Aladdin Hotel shelter" and the full relationship between defendant and Nipitella and the events of April 25, 2019, since he relied solely on defendant's version of events and did not speak with any witnesses who contradicted him (id.). Defendant's own trial testimony undermines his present claims, because rather than claiming that he was acting out due to childhood sexual abuse that he suffered at the hands of his older brother, he claimed for the first time since his arrest that he was defending himself against Nipitella's use of a blade against him.

The People argue next that imposing a sentence within the range for a conviction of a B violent felony offense would not be unduly harsh after balancing the crime and the circumstances leading up to it against the history, condition and character of defendant. Defendant perpetrated "an incredibly vicious assault that left the victim . . . for dead on a sidewalk," with his "intestines . . . hanging out of his abdomen and a major artery in his face and neck . . . completely severed, among other injuries" (id. ¶ 24). Indeed, but for life-saving medical attention from a police officer who was also a paramedic and from the trauma surgeons at Bellevue Hospital, the victim would have died. And

[i]n the face of the damage he had just inflicted [after breaking away from his girlfriend's efforts to hold him back and charging after the victim, who was walking away], the defendant chose to turn around and calmly walk away . . . ironically leaving behind the girlfriend he claimed he was trying to protect.

(Id.) Defendant then discarded the knife and gave several false accounts of what had happened, including when he testified at trial that Nipitella had a blade in his hand. Nothing about a sentence within the range authorized by PL § 70.02 would be unduly harsh. After all, Dr. Drob testified that the very fact of incarceration can be highly stressful for anyone, regardless of background or history, and "[t]here is no evidence that during his incarcerations [defendant] has suffered to any greater extent psychologically than any other similarly situated person who is facing their first significant period of upstate incarceration" (id. ¶ 26).

The People's Reply

Although the court gave both sides time to respond to each other's arguments, only the People submitted a reply.

The People distinguish defendant's two cases. Regarding People v. D.L., the court there "[did] not appear to actually rule on the question of whether the sexual abuse at issue was, in fact, a significant contributing factor" to the crime for which D.L. was being sentenced or the 2008 conviction that was also before the court (Donato Reply Aff ¶ 3). In any event, the record in D.L. established facts not present here: D.L. had been addicted to crack cocaine since the age of 16; he said he used crack cocaine because it "took away" the sexual abuse he suffered as a child; he was still addicted through the times of the crimes he committed but was actively engaged in recovery from that addiction, id. ¶¶ 2-3. Although it is not clear from the decision what subsection of the Burglary statute applied to the crimes to which he pled guilty,

the court's discussion of the facts strongly implies that the burglaries committed by D.L. were for the purposes of stealing from homes to fund a crack cocaine habit. That is a far cry from the vicious and repeated stabbing of the victim committed by the defendant in [*15]this case, which nearly killed the victim.

The People argue that People v. Brenda WW "is even more distinguishable" (id. ¶ 6). First, the victim in that case was the same person who had subjected Brenda WW to "severe and ongoing domestic violence" (id.). What the People do not note, but what the decision makes clear, is that that person was Brenda WW's "live-in paramour," 222 AD3d at 1188. The People argue that Brenda WW was therefore plainly eligible for sentencing under the DVSJA. But for defendant here to "argue that Stephen Nipitella is somehow analogous to a domestic abuser in an attempt to bring his situation under Brenda WW . . . would completely distort any definition of domestic violence this court opts to use in analyzing the DVSJA in this case" (Donato Reply Aff ¶ 6).

Domestic violence is defined as violen[ce] perpetrated by either an intimate partner, whether married or not or whether they have children or not, or a family member. Attempting to pull Stephen Nipitella under that umbrella simply ignores the actual definition of domestic abuse.

(Id.) The People argue that "[a]ttempts to analogize what the defendant claims Stephen Nipitella said and did to him in the months leading up to the defendant's [crime] are completely inconsistent with both the clinical and legal understanding of what domestic violence is and how it is defined," id. ¶ 9.

Moreover, Brenda WW had suffered severe and brutal abuse by the victim, including "'being burned by cigarettes, [being] pushed down a set of stairs, having her teeth chipped, neck stomped, and nose broken'" (id. ¶ 7, quoting People v. Brenda WW, 222 AD3d at 1190). At her trial, she testified that the victim threw a plate at her and caused a laceration to her temple; that in 2005 he beat her so badly that she sustained a broken nose and black eyes; and that more than once in 2006 she awoke to find a knife stabbed into the mattress next to her, id. At her sentencing hearing, her daughter and son-in-law also testified to physical abuse they witnessed, including seeing the victim pulling the defendant's hair, throwing her to the ground and stomping on her leg, thus fracturing it. The court found that this history of abuse was a significant contributing factor to her killing of the victim, id. ¶ 8. Here, by contrast, even accepting as true defendant's claim that Nipitella had thrown a box fan at him,

[o]ne alleged incident of the victim throwing a box fan at the defendant approximately a month and a half prior to the defendant nearly stabbing him to death, and allegations of various threats and statements made by the victim toward the defendant. . . . are nowhere close to the same playing field as what the defendant in Brenda WW experienced in the years leading up to her crime.

For all of these reasons, the People argue that defendant is not eligible for sentencing under the DVSJA.

While the court credits the testimony of Jamie H and defendant that they were both victims of sexual abuse by their older brother, defendant does not qualify for sentencing under PL ¶ 60.12 because, at the time of this crime, he was not a victim of domestic violence subjected to substantial physical or psychological abuse inflicted by a member of the same family or same household as that term is defined in CPL § 530.11.^[FN26]

Under CPL § 530.11(1)(e), members of the same family or household include

persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time. Factors the court may consider in determining whether a relationship is an "intimate relationship" include but are not limited to the following: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an "intimate relationship."

Defendant concedes that "[t]hese two individuals did not share an intimate relationship" (Burse and Guliano Aff ¶ 22); unless he is using the term "intimate" colloquially, that concession would seem to exclude his case from the ambit of the DVSJA. But even if he is using the term colloquially, rather than the way CPL § 530.11(1)(e) defines it, this court holds that defendant and Nipitella were not members of the same household.

While defendant claims that "they were domiciled together on the same floor," sharing an entrance and exit from the building, a bathroom and kitchen space (id.; see also id. ¶ 31 [defendant "was trapped in a domiciled setting"]), he and Nipitella were adults who slept in separate rooms that had doors that locked. And while defendant claims that Nipitella abused him "in the communal areas of [their shared shelter] home" (id. ¶ 23), defendant has not cited, and this court has not found, a case that stands for the proposition that adults who live in the same homeless shelter are members of the same household as that term is used in the statute.

At the hearing, defense counsel argued that

the abuse [defendant] suffered at the hands of Ste[ph]en Nipitella . . . is a parallel [with domestic violence], there is a power [and] control dynamic . . . that Stephen Nipitella was threatening Jonathan H on an ongoing basis.

to explore the power and control [ ] dynamic[ ] that is evaluated throughout that principle [of intimate partner violence] but domestic domicile is far more expansive than just intimate partner violence. That is one example. It could be roommates that are living theoretically next door to each other in a shelter.

(H 54-55.) But under the DVSJA case law as it has developed so far, even roommates do not necessarily qualify as members of the same household under PL § 60.12. See J.M. v. M.F., 77 Misc 3d 1213(A), * 3 (Family Court, New York County 2022) (parties who were roommates from December 2021 till the end of May 2022 had business relationship rather than close, intimate friendship); Coleman v. McKenzie, 75 Misc 3d 1215(A), ** 2, 3 (Family Court, New York County 2022) (roommates who lived together in 1,000 square foot apartment for past eight years had business relationship, even though petitioner testified that respondent was familiar with her "habits, comings and goings, and associations"); contrast People v. Michael Williams, New York County Indictment No. 4728-2012 (Sup Ct, New York County 2021) (Best, J.) (ordering CPL § 440.47 hearing upon finding that The Mission of the Immaculate Virgin for the Protection of Homeless and Destitute Children at Mount Loretto, a group home for boys, qualified as a "household" under CPL § 530.11[1][e]).^[FN27] If the legislature had intended the DVSJA to include adults living in single-room occupancy residences, it could have said so specifically. This court agrees with the People that it would stretch the statute beyond its plain meaning to hold that defendant and Nipitella were members of the same household.

Defendant also has not established by a preponderance of the evidence that there was a temporal nexus between the childhood abuse he suffered at the hands of his brother and the crime he committed against Nipitella. Alejandro's abuse of defendant ended when defendant was eight or 11 or 12 or 13, and defendant assaulted Nipitella some 20 years later. See People v. Fisher, 221 AD3d 1195, 1197 (3d Dept 2023) (where father's abuse of defendant had essentially stopped by her early teenage years and she did not allege that abuse had occurred at or near time of her attack on her parents, defendant failed to demonstrate that she was subjected to substantial abuse "at the time of the instant offense" or that abuse she previously suffered was a "significant contributing factor" to her criminal behavior); People v. B.N., 79 Misc 3d at 754 (there was no nexus between defendant's alleged childhood abuse and crime, where "[t]he alleged childhood abuse ended when the defendant was a teenager, and she was 40 years old when she killed Davis"). Defendant's hearing testimony that he felt that Nipitella was abusive and a bully like his brother, and Drob's testimony that Nipitella's conduct towards defendant "reinvoke[d] psychologically . . . the sexual and physical trauma he experienced in childhood," are insufficient to establish this required temporal connection between abuse by a member of defendant's family and this crime.

The court also finds that defendant has not established that the sexual abuse he endured as a child and young teenager was a significant contributing factor to his almost fatal assault on Nipitella decades later. Defendant testified at the sentencing hearing that he felt that Nipitella was abusive and a bully like his brother, but he told the jury that he stabbed Nipitella only in self-defense, a claim the jury rejected. While defendant told Drob that he felt he had to stand up to Nipitella (Def Exh B p 9; see also id p. 11 ["Mr. H said (at trial) that he felt that because nothing he had done previously had worked, he wanted to stand up for himself and not be intimidated, bullied and disrespected."]; H2 73), this would be understandable for anyone who had been subjected to threats of extreme violence and text messages containing language "rooted in hatred and racism" like the evidence in this case showed. Although the court has read Drob's report and reviewed his hearing testimony, the court simply does not find the connection established between Nipitella's conduct towards defendant and defendant's childhood sexual abuse such that the abuse by Alejandro was a "significant contributing factor" to this crime.

Finally, the court does not find that sentencing defendant within the range established for a Class B violent felony offense would be unduly harsh. While defendant led a law-abiding life for many, many years despite having been sexually abused as a child, completed almost two dozen educational and training programs while incarcerated pending trial, and may again be a contributing member of society when he completes his sentence, this crime almost took a man's life. Although the jury found that defendant did not intend to kill Nipitella, in fact he almost did. Accordingly, a sentence greater than five years but no greater than 25 years in prison will serve the goals of a penal sanction, namely, "societal protection, rehabilitation and deterrence," People v. Wright, 217 AD3d 973, 974 (2d Dept 2023).

For all of these reasons, defendant has not demonstrated that he was a victim of domestic abuse by a member of his household at the time of this crime. Accordingly, his motion to be sentenced within the sentencing range for a Class B violent felony offense set forth in PL § 60.12(2)(a) is denied. The court will consider the evidence from the sentencing hearing in determining the sentence from the sentencing range for a Class B violent felony offense set forth in PL § 70.02.

The foregoing constitutes the decision and order of this court.