Decided and Entered:September 3, 2026

CR-22-2359

Calendar Date: May 27, 2026

Before: Aarons, J.P., Pritzker, Ceresia, Fisher And Mcshan, JJ.

[*1]

Pritzker, J.

Appeal from an order of the County Court of St. Lawrence County (Gregory Storie, J.), entered October 4, 2022, which dismissed defendant's request to apply for resentencing pursuant to CPL 440.47.

In 2022, three years into serving a 12-year term of imprisonment, defendant filed a request for permission to apply for resentencing pursuant to the Domestic Violence Survivors Justice Act (see CPL 440.47; Penal Law § 60.12, as amended by L 2019, ch 31, § 1; L 2019, ch 55, § 1, part WW, § 1 [hereinafter the DVSJA]). County Court dismissed defendant's request without prejudice. Defendant appeals.

At the outset, the People contend that defendant's request at step one of the resentencing process is not appealable.^FN1 Given that the dismissal of defendant's request to apply for resentencing without prejudice at step one is not appealable to this Court as of right or by permission (see CPL 450.10, 450.15), his "right to appeal is strictly limited to whether CPL 440.47 granted such a right" (People v Melissa OO., 234 AD3d 101, 103 [3d Dept 2024]). To that end, as relevant here, CPL 440.47 (3) states that "[a]n appeal may be taken as of right . . . from an order denying resentencing" (emphasis added). Thus, in this case, the question of appealability turns on whether a step one dismissal order falls under that definition.^FN2 We find that it does not.

"The primary consideration of courts in interpreting a statute is to ascertain and give effect to the intention of the Legislature. As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof" (People v N.H., ___ NY3d ___, ___, 2026 NY Slip Op 02437, *4 [2026] [internal quotation marks and citations omitted]). "[I]t is a well-settled principle of statutory construction that a statute . . . must be construed as a whole and that its various sections must be considered together and with reference to each other" (People v Hernandez, 44 NY3d 630, 634 [2025] [internal quotation marks and citation omitted]). "Where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded" (Town of Aurora v Village of E. Aurora, 32 NY3d 366, 372-373 [2018] [internal quotation marks, brackets and citations omitted]; see also People v Melissa OO., 234 AD3d at 106).

CPL 440.47 is a procedural vehicle that allows "presently incarcerated persons serving sentences of at least eight years . . . to apply for resentencing pursuant to the framework established in Penal Law § 60.12 (1)" (People v Brenda WW., 44 NY3d 594, 598 [2025]). CPL 440.47 (1) details the pre-application phase, which is step one of the resentencing process. At step one, the defendant must request permission to apply for resentencing in accordance with Penal Law § 60.12 and demonstrate his or her eligibility [*2]for same. To do so, there are two simple criteria: such person "[(1)] must include in his or her request documentation proving that she or he is confined in an institution operated by the [D]epartment of [C]orrections and [C]ommunity [S]upervision serving a sentence with a minimum or determinate term of eight years or more for an offense committed prior to [August 12, 2019] and [(2)] that she or he is serving such sentence for any offense eligible for an alternative sentence under section 60.12 of the [P]enal [L]aw" (CPL 440.47 [1] [a]). If the court finds that the defendant satisfies these criteria, it must notify the defendant that he or she may submit an application for resentencing (see CPL 440.47 [1] [c]). After the court notifies the defendant, he or she can request the appointment of an attorney to assist with the next steps (see CPL 440.47 [1] [c]). However, if the court finds that the defendant has not met the requirements to apply for resentencing, it must notify the defendant of same and dismiss the request without prejudice (see CPL 440.47 [1] [d]).^FN3 It is evident from the plain language contained herein that such dismissal cannot constitute "an order denying resentencing" (CPL 440.47 [3] [a]). Of note, step one, as far as we can tell, is completely unique to the DVSJA as it asks that a defendant request permission to make the CPL 440.47 motion.^FN4 To that end, at step one, the defendant is merely considered a "person" rather than an "applicant" and, as such, has not actually asked the court to grant resentencing (compare CPL 440.47 [1], with CPL 440.47 [2]). By virtue of this simple distinction, it is apparent that the pre-application procedure does not implicate the merits of resentencing (compare CPL 440.47 [1] [a], with Penal Law § 60.12 [1]). Moreover, the inquiry at step one does not require rigorous analysis in assessing whether a person meets the statutory threshold eligibility requirements to apply for relief under the DVSJA. That much is reflected by the content in the available forms published by the Unified Court System (see Application for Permission to Apply for Resentencing [Short Form], available at https://www.nycourts.gov/forms/application-permission-apply-resentencing-short-form [last accessed Aug. 28, 2026]; Application for Permission to Apply for Resentencing [Long Form], available at https://www.nycourts.gov/forms/application-permission-apply-resentencing-long-form [last accessed Aug. 28, 2026]), particularly, the Short Form, which restates the eligibility requirements contained in CPL 440.47 (1) (a) and asks that the defendant sign and date the form, nothing more. To that end, if a person can truthfully attest to meeting those requirements, he or she is clearly eligible and must be allowed to proceed to step two.

The dissent raises the issue that our interpretation risks creating indefinite cycles of erroneous dismissals and resubmissions with no opportunity for correction. At this juncture, we have no reason to [*3]believe that this scenario is occurring with any measurable frequency, as this appears to be the first appeal from a step one dismissal that has come before this Court. To that, defendant can again request permission to apply for resentencing because the dismissal, as explicitly stated in CPL 440.47 (1) (d), is without prejudice. The legislation as plainly written allows for this simple procedure at step one. For example, in the instant case, but for his failure to specify his conviction as required, defendant appears to be qualified, but for reasons unknown he failed to reapply, even after being assigned counsel for this appeal. There is nothing to indicate that this defendant — or any other defendant, for that matter — was or would be thwarted after multiple attempts at step one to obtain resentencing after further requests to apply. Indeed, in our view the legislation places the trial judges in their proper and well-deserved gatekeeping roles and trusts that they will "appropriately apply the statute" (People v Welch, 246 AD3d 1411, 1419 [4th Dept 2026, Montour, J., dissenting]). Simply put, there is no reason for this Court to speculate at this juncture on potential outcomes that have not come to pass and are exceedingly unlikely.

However, acknowledging the People's concession that "defendant would have met the base eligibility requirements to apply," and noting that the order does not clearly specify the reason for dismissal, we would merely note that it is the best practice for a trial court, when dismissing a request to apply for resentencing at step one, to provide the unrepresented incarcerated individual with a brief explanation for the dismissal. Certainly, this would be the most expeditious way to ensure that such unrepresented incarcerated individuals, who face unique and daunting challenges, be successful in at least processing their requests for resentencing under the DVSJA. While we cannot abide by the dissent's view on appealability, we must not create obstacles through indifference or inattention which frustrate the intent of the remedial legislation and prevent prompt review on the merits by a trial court. For example, rather than simply citing a statute, a trial court should state with particularity in clear language what information or documentation is needed to demonstrate eligibility to apply for resentencing. In addition, it may be wise to consider whether providing more detailed instructions could aid these individuals in properly filling out the necessary forms, and define the term "without prejudice" in plain non-legalese by stating that the individual has the right to reapply. Such basic steps do not require legislation and may potentially decrease the possibility of repeated dismissals during the pre-application phase at step one.

Given the foregoing, the order dismissing defendant's request to file an application for DVSJA relief is not appealable. Accordingly, we dismiss defendant's appeal.

Ceresia, Fisher and McShan[*4], JJ., concur.

Aarons, J.P. (dissenting).

County Court found defendant ineligible for resentencing under the Domestic Violence Survivors Justice Act (see CPL 440.47; Penal Law § 60.12, as amended by L 2019, ch 31, § 1; L 2019, ch 55, § 1, part WW, § 1 [hereinafter the DVSJA]). The People acknowledge that the court's finding was error, but the majority holds that the error is unreviewable because it arrives here in an order that is unappealable. I do not agree. The order conclusively determines defendant's "[m]otion for resentenc[ing]" (CPL 440.47), terminating it without resentencing him. Accordingly, the order before this Court is "an order denying resentencing" within the meaning of the DVSJA and, as such, appealable to this Court as of right (CPL 440.47 [3]). I respectfully dissent.

The "[m]otion for resentenc[ing]" under the DVSJA proceeds in three steps (CPL 440.47). Pursuant to CPL 440.47 (1) (a), the first step requires a "person" — i.e., a defendant — to submit to the sentencing court a "request to apply for resentencing in accordance with" Penal Law § 60.12 and "include in his or her request documentation proving that she or he is confined in [a state correctional institution] serving a sentence with a minimum or determinate term of eight years or more for an offense committed prior to the effective date of" the DVSJA (CPL 440.47 [1] [a]; see People v James NN., 224 AD3d 1014, 1014-1015 [3d Dept 2024], lv denied 42 NY3d 927 [2024]). Penal Law § 60.12, in turn, sets the threshold conditions of eligibility for alternative sentencing by defining the sentences and predicate-offender statuses that qualify, and excluding certain offenses (see Penal Law § 60.12). Finding that the defendant has met those requirements results in the defendant's advancement to step two. If, on the other hand, "the court finds that such person has not met the requirements to apply for resentencing in [CPL 440.47 (1) (a)], the court shall notify such person and dismiss his or her request without prejudice" (CPL 440.47 [1] [d]).

At step two, the defendant — now an "applicant" — submits a resentencing application, including at least two pieces of corroborating evidence (CPL 440.47 [2] [c]; see People v Croney, ___ AD3d ___, ___, 251 NYS3d 71, 75 [1st Dept 2026], lv denied ___ NY3d ___ [July 13, 2026]). If the court determines that the defendant has complied with the step-two requirements, the matter proceeds to step three (see CPL 440.47 [2] [e], [f], [g]; Penal Law § 60.12). If the court determines otherwise, "the court shall dismiss the application without prejudice" (CPL 440.47 [2] [d]).

Step three requires the defendant to establish, by a preponderance of the evidence, that he or she "was a victim of domestic violence inflicted by a member of the same family or household at the time of the offense, that such abuse was a significant contributing factor to [his or] her criminal behavior and that, having regard for the nature and circumstances of the crime and [*5]the history, character, and condition of the defendant, a sentence in accordance with the customary statutory sentencing guidelines would be unduly harsh" (People v Niquasia MM., 230 AD3d 1473, 1474 [3d Dept 2024] [internal quotation marks and citation omitted]). As relevant here, if the court determines the defendant should not be resentenced, it notifies the defendant and "enter[s] an order to that effect" (CPL 440.47 [2] [f]; see CPL 440.47 [2] [g]).

CPL 440.47 (3) provides a right to appeal from, as relevant here, "an order denying resentencing." Because the right to appeal in a criminal proceeding exists only where a statute confers one (see People v Bautista, 7 NY3d 838, 838-839 [2006]; People v De Jesus, 54 NY2d 447, 449 [1981]), the issue is whether "an order denying resentencing" includes an order dismissing a request to apply for resentencing upon a finding that a person is ineligible for resentencing under Penal Law § 60.12 (CPL 440.47 [3] [a]; compare CPL 450.10, 450.15). I would hold that it does.

"The primary consideration of courts in interpreting a statute is to ascertain and give effect to the intention of the Legislature" (People v Galindo, 38 NY3d 199, 203 [2022] [internal quotation marks and citations omitted]; accord People v N.H., ___ NY3d ___, ___, 2026 NY Slip Op 02437, *4 [2026]). "As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof" (People v N.H., ___ NY3d at ___, 2026 NY Slip Op 02437, *4 [internal quotation marks and citation omitted]). "Furthermore, a statute or legislative act is to be construed as a whole, and all parts of an act are to be read and construed together to determine the legislative intent" (People v Boone, 41 NY3d 573, 581 [2024] [internal quotation marks, brackets and citations omitted]; see People v Hernandez, 44 NY3d 630, 634 [2025]). "[W]here a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded" (People v Page, 35 NY3d 199, 206-207 [2020] [internal quotation marks and citation omitted], cert denied 592 US 1010 [2020]). "As a remedial statute, the DVSJA should be liberally construed to carry out the reforms intended and to promote justice" (People v Welch, 246 AD3d 1411, 1413 [4th Dept 2026] [internal quotation marks and citations omitted]). Through the DVSJA, "the Legislature intended to expand, not contract or eliminate, remedial sentencing for survivors" (People v N.H., ___ NY3d at ___, 2026 NY Slip Op 02437, *6).

The statute is unqualified — "an order denying resentencing" is appealable (CPL 440.47 [3]). Except, neither CPL 440.47 nor its counterpart Penal Law § 60.12 instructs a sentencing court to deny resentencing (see People v Nymeen C., ___ AD3d ___, ___, 249 NYS3d 547, 550 [2d Dept 2026]). The commonly [*6]understood definition of "deny" does not resolve the issue, as no provision can be read as an express directive "to refuse to grant" resentencing (Merriam-Webster.com Dictionary, deny [https://www.merriam-webster.com/dictionary/deny]). Even the provision mandating the posthearing order is silent, instead directing the sentencing court that concludes resentencing is not warranted, to enter an order "to that effect" (CPL 440.47 [2] [f]). The broad and unique language defining the appellate right signals that "an order denying resentencing" refers to any order that operates as a denial of the ultimate relief sought in the "[m]otion for resentenc[ing]" by terminating the motion procedure without resentencing the defendant (CPL 440.47).

An order finding a defendant ineligible to apply for resentencing fits that description. Step one assesses a defendant's eligibility for relief, and there is no provision allowing a court to resentence an ineligible defendant. Nor does the DVSJA require a denial of resentencing to be based on the merits of the defendant's claim, as opposed to a procedural or eligibility defect (see People v Welch, 246 AD3d at 1414). Insofar as step one is an integral part of the "[m]otion for resentenc[ing]," a step-one dismissal operates as a denial of resentencing on procedural grounds (see People v Nymeen C., ___ AD3d at ___, 249 NYS3d at 551; cf. CPL 440.10 [2], [3]; 440.30 [1], [2]).

The source of the language supports that interpretation. The DVSJA closely tracks resentencing procedure created by the Drug Law Reform Act of 2004 (L 2004, ch 738, § 23 [codified at CPL 440.46 (3)] [hereinafter the DLRA]). Both schemes impose threshold eligibility requirements and both authorize an appeal from "an order denying resentencing," but neither scheme calls any order by that name (L 2004, ch 738, § 23; accord CPL 440.47 [3]). Under the DLRA, the court issues "an order denying the application" whether that order rests on a determination of the defendant's ineligibility or, after a hearing, on substantial-justice grounds (L 2004, ch 738, § 23). Thus, "an order denying resentencing" describes the effect of the order on the relief sought in the motion. That the Legislature placed the DVSJA eligibility inquiry in a "pre-application" request-to-apply stage is not dispositive (majority op at 3-4): despite that bifurcation, the DVSJA reproduces the DLRA appeal provision's relevant language without alteration. An order dismissing a DVSJA step-one request does the same work as an order denying a DLRA application on eligibility grounds, and therefore a step-one dismissal order is "an order denying resentencing" (CPL 440.47 [3]; L 2004, ch 738, § 23; see People v Coleman, 24 NY3d 114, 120 [2014]; People v Overton, 86 AD3d 4, 13 [2d Dept 2011], lv denied 17 NY3d 820 [2011]).

That a step-one dismissal is without prejudice does not suggest that a step-one appeal is inconsistent with the Legislature's intent. In passing the DVSJA, the Legislature sought [*7]to bring relief to domestic violence survivors serving "long, unfair prison sentences that overestimate their threat to public safety" (People v Brenda WW., 44 NY3d 594, 596 [2025] [internal quotation marks and citation omitted]). Given the small group of eligible and qualified domestic violence survivors still incarcerated for crimes committed in 2019 and earlier (see CPL 440.47 [1] [a]; People v Devon Y., 247 AD3d 1367, 1370 [3d Dept 2026], lv granted 45 NY3d 1000 [2026]), the reading that reflects the DVSJA's remedial purpose is the one where the right to resubmit and to appeal coexist.

The varying rationales for prehearing dismissals illustrate that point. When a dismissal is based upon a curable paperwork defect, resubmission will usually be the faster route to relief, and an appeal would be wasteful. Sometimes resubmission may be a viable option for some defendants and not for others — as where a court determines that the evidence submitted at step two is insufficient to corroborate the defendant's claim of past abuse (see People v Welch, 246 AD3d at 1414; People v Nymeen C., ___ AD3d at ___, 249 NYS3d at 552). In still other instances, resubmission is the wasteful route — as where a court determines that the defendant is not eligible for resentencing based upon step-one criteria such as the crime or sentence (see People v Mimms, 239 AD3d 891, 891-892 [2d Dept 2025], lv denied 44 NY3d 1012 [2025]; People v Shawn G.G., 225 AD3d 1246, 1246-1247 [4th Dept 2024], lv denied 42 NY3d 940 [2024]). In each scenario, the motion terminates without resentencing the defendant, and he or she may resubmit if circumstances permit or appeal if they do not. Providing that option ensures that a qualified survivor barred from relief at the threshold might still obtain it without unnecessary delay.

Relatedly, "courts should construe [statutes] to avoid objectionable, unreasonable or absurd consequences" (Long v State of New York, 7 NY3d 269, 273 [2006]; see People v N.H., ___ NY3d at ___, 2026 NY Slip Op 02437, *4). Reading CPL 440.47 to provide an appeal from a step-one dismissal order avoids the absurdity of leaving a qualified survivor to overcome a court's legal error through futile resubmissions with no opportunity for correction (see People v Welch, 246 AD3d at 1414; People v Nymeen C., ___ AD3d at ___, 249 NYS3d at 552; see also People v Melissa OO., 234 AD3d 101, 106 n 5 [3d Dept 2024]). The possibility that the majority's reading will produce that consequence cannot be dismissed as speculative. As the majority also concedes, this is the first step-one appeal to come before the Court, and no "wait and see" canon permits us to adopt an interpretation of CPL 440.47 that invites absurd consequences and then revise that interpretation once those consequences materialize.

The rest of the majority's reasoning is unpersuasive. To start, the majority never addresses the People's only relevant argument: that People v Melissa OO. (234 AD3d 101) controls. There, [*8]this Court held that a prehearing dismissal order at step one or step two is categorically unappealable because the Legislature omitted language authorizing an appeal from an order dismissing an application for resentencing or a request for such application (see id. at 105). The majority appropriately declines to apply that rule (majority op at 2 n 2): Melissa OO.'s logic would equally bar an appeal from a step-three order, since the Legislature likewise did not provide for an appeal from an order "determin[ing]" that the defendant "should not be resentenced" under Penal Law § 60.12 (CPL 440.47 [2] [f]). Melissa OO. never reckons with that problem, declaring instead, without elaboration, that a prehearing order is not appealable because it is not "an order denying an application on the merits after a hearing" (People v Melissa OO., 234 AD3d at 106).

Perhaps recognizing Melissa OO.'s infirmity, the majority presents its own new theory that no appeal lies from a step-one order because, at that point, the defendant is "a 'person' rather than an 'applicant' and, as such, has not actually asked the court to grant resentencing," and observing that step one does not speak to the "merits" of resentencing (majority op at 4).^FN5 That reasoning does not follow from the statute's "plain language" (majority op at 3-4): "an order denying resentencing" describes what the order does, not what the defendant did to get it, the label the defendant had when it was issued, or the basis for the denial. Despite giving the DVSJA motion procedure a pre-application stage that the DLRA lacks,^FN6 the Legislature did not limit the right to appeal to "an order denying an application for resentencing" (see CPL 440.47 [3]; L 2004, ch 738, § 23), and the person/applicant distinction does not support reading into the statute a limitation that the Legislature chose to omit (see People v Page, 35 NY3d at 206-207).

Moving on, defendant confirmed on both his short-form (UCS-447/SF) and long-form (UCS-447/LF) pro se requests that he is not a disqualified second violent felony offender or persistent violent felony offender, that he was not convicted of an excluded offense and that he is confined in a state prison serving an eligible sentence (see Penal Law § 60.12 [1]).^FN7 The People represent that defendant was convicted of burglary in the second degree committed in 2017, which is not a disqualified offense (see Penal Law § 140.25 [2]). Consequently, the order dismissing defendant's request should be reversed and the matter remitted for further proceedings pursuant to CPL 440.47.

ORDERED that the appeal is dismissed.