Background
Dilena Delarosa pleaded guilty in Supreme Court, Bronx County to assault in the second degree and was sentenced to 3½ years in prison. As a condition of her guilty plea, Delarosa waived her opportunity to be considered for sentencing under the Domestic Violence Survivors Justice Act (DVSJA) — the alternative sentencing framework codified at Penal Law § 60.12. On appeal, Delarosa argued that this waiver was improper.
The DVSJA, enacted in 2019, amended Penal Law § 60.12 to create an alternative sentencing pathway for certain defendants who are themselves survivors of domestic violence. At a § 60.12 eligibility hearing, a defendant must establish three elements: (a) at the time of the 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”; (b) that “abuse was a significant contributing factor to the defendant’s criminal behavior”; and (c) that imposing a standard sentence would be “unduly harsh” in light of the nature and circumstances of the crime and the defendant’s history and character. If the court finds all three elements satisfied, it may impose a reduced, alternative sentence rather than the otherwise applicable mandatory or presumptive term.
The Court’s Holding
The First Department unanimously reversed the sentence, vacated it, and remanded for a determination of whether Delarosa is entitled to a Penal Law § 60.12 eligibility hearing. Even assuming Delarosa’s appeal waiver was valid, the People conceded — consistent with the Court of Appeals’ 2026 decision in People v N.H. — that using waiver of a DVSJA hearing as a condition of a plea deal was improper.
In N.H., the Court of Appeals held that although Penal Law § 60.12 “does not expressly point in either direction,” the statutory structure and the animating purpose of the DVSJA establish that the Legislature did not intend for waiver of such a hearing to be a permissible plea condition. The Court of Appeals reasoned that the Legislature had “balanced the need to hold defendants accountable with the need to recognize and address a pervasive societal problem,” and had determined that consideration of defendants’ domestic abuse histories and rehabilitation potential “must factor into sentencing determinations” — a legislative judgment that cannot be bargained away by a prosecutor as a condition of accepting a guilty plea.
Key Takeaways
- Conditioning a guilty plea on waiver of a DVSJA / Penal Law § 60.12 eligibility hearing is per se improper — even a valid appeal waiver does not save the condition, and the People cannot legitimately seek or accept such a waiver.
- The DVSJA three-prong test requires the defendant to show: (a) victim of domestic violence at the time of the offense, (b) the abuse significantly contributed to the criminal behavior, and (c) a standard sentence would be unduly harsh — all three prongs must be satisfied at the hearing.
- On remand, the sentencing court must determine whether defendant is entitled to a § 60.12 hearing; if so, the hearing proceeds on the statutory criteria before any resentencing.
- This decision is a direct application of People v N.H. (Court of Appeals 2026) and signals systematic reversal of DVSJA waivers improperly built into plea agreements across New York.
Why It Matters
The Domestic Violence Survivors Justice Act represents one of New York’s most significant recent criminal justice reforms, recognizing that survivors of intimate partner violence often commit crimes as a direct consequence of that abuse. Delarosa — decided in the wake of the Court of Appeals’ landmark N.H. ruling earlier this year — makes clear that prosecutors cannot use the plea-bargaining process to foreclose a survivor defendant’s access to this alternative sentencing framework.
For criminal defense attorneys across New York, the implications are immediate: any plea agreement in which the People required waiver of a DVSJA hearing as a condition of the plea should be reviewed. Where a DVSJA-eligible defendant (who is a domestic violence survivor and whose abuse contributed to the offense) pled guilty under such a condition, a motion to vacate or a direct appeal challenging the sentence may be viable. The People’s concession in this case — mirroring the position already taken by the Court of Appeals — suggests that such challenges are likely to succeed statewide.