New York Law Watch
Appealing a Domestic Violence Survivors Justice Act dismissal: the departments divide
Updated September 3, 2026 · 4 decisions
First Department (Croney) and Second Department (Nymeen C.) hold that a prehearing dismissal of a resentencing application is appealable as of right; the Third Department (Shawn A.) holds it is not, over a dissent; the Fourth Department (Sean S.) addressed the “significant contributing factor” standard on the merits with a concurrence and dissent.
Edited by Eric McAvey.
The decisions
People v Shawn A.
Appellate Division, Third Department · September 3, 2026
Law Watch record: 2026 NY Slip Op 05216
Holding The court held that a step one dismissal of a request to apply for resentencing under the Domestic Violence Survivors Justice Act is not appealable as of right because it does not constitute an order denying resentencing. The majority reasoned that the pre-application phase is distinct from the merits of the resentencing application and does not trigger the statutory right to appeal.
It is evident from the plain language contained herein that such dismissal cannot constitute an order denying resentencing
2026 NY Slip Op 05216, at the official text
People v Sean S.
Appellate Division, Fourth Department · July 24, 2026
Law Watch record: 2026 NY Slip Op 04678
Holding The court affirmed the denial of the defendant’s application for resentencing under the Domestic Violence Survivors Justice Act, finding that he failed to establish by a preponderance of the evidence that his childhood abuse was a significant contributing factor to his criminal behavior. The majority held that the defendant’s proof did not sufficiently link his past trauma to the specific acts of robbery and murder, which were instead attributed to other factors such as drug use and a desire to escape.
his submissions fell short of establishing by the requisite preponderance of the evidence that his childhood trauma was a significant contributing factor in his criminal behavior against the victims
2026 NY Slip Op 04678, at the official text
People v Croney
Appellate Division, First Department · February 10, 2026
Law Watch record: 251 AD3d 168
Holding The court held that a defendant has a right to appeal a prehearing dismissal of a DVSJA resentencing application under CPL 440.47. However, the court affirmed the dismissal because the defendant failed to meet his evidentiary burden to establish a temporal nexus between the domestic abuse and the underlying offense.
Nothing in CPL 440.47 (3)’s statutory text limits a defendant’s right to appeal from ‘an order denying resentencing’ whether made without a hearing or after a hearing.
251 AD3d 168, at the official text
People v Nymeen C.
Appellate Division, Second Department · January 14, 2026
Holding An order dismissing an application for resentencing pursuant to the Domestic Violence Survivors Justice Act without prejudice is appealable as of right because it constitutes an order denying resentencing. The court affirmed the dismissal because the defendant failed to provide evidence corroborating that she was a victim of domestic violence at the specific time of the offense.
an order ‘‘dismiss[ing]’’ an application for resentencing pursuant to the Domestic Violence Survivors Justice Act (DVSJA) ‘‘without prejudice’’ pursuant to CPL 440.47 (2) (d) is appealable
252 AD3d 1, at the official text
Where the departments stand
| Court | Position | Decision |
|---|---|---|
| Appellate Division, First Department | Prehearing dismissal is appealable as of right. | 251 AD3d 168 |
| Appellate Division, Second Department | Prehearing dismissal is appealable as of right. | 252 AD3d 1 |
| Appellate Division, Third Department | Prehearing dismissal is not appealable as of right. | 2026 NY Slip Op 05216 |
| Appellate Division, Fourth Department | The court reached the contributing-factor standard on the merits. | 2026 NY Slip Op 04678 |
Statute
CPL 440.47.
Published September 3, 2026. Updated September 3, 2026.