Defendant was convicted of Loitering for the Purpose of Engaging in a Prostitution Offense (Penal Law § 240.37) on January 31, 2006. She now moves for an order vacating judgment pursuant to Criminal Procedure Law § 440.10 (1) (i) on the ground that she was a victim of a severe form of sex trafficking pursuant to the Trafficking Victims Protection Act, 22 USC § 7101 et seq., and a victim of sex trafficking under Penal Law § 230.34.

Criminal Procedure Law 440.10 was amended in 2010 to provide for the vacating of judgment in cases where defendant's participation in a prostitution offense was a result of having been a victim of sex trafficking under Penal Law § 230.34 or trafficking in persons under the Trafficking Victims Protection Act, supra.

Penal Law § 230.34 (5) defines sex trafficking, in part, as

using force or engaging in any scheme, plan or pattern to compel or induce the person being patronized to engage in or continue to engage in prostitution activity by means of instilling a fear in the person being patronized that, if the demand is not complied with, the actor or another will...cause physical injury, serious physical injury, or death to a person...or engage in conduct constituting a felony or unlawful imprisonment in the second degree in violation of [Penal Law § 135.05].

22 USC § 7102, in relevant part, defines sex trafficking as "the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act". It defines severe forms of trafficking in persons as "sex trafficking in which a commercial sex act [*2]is induced by force, fraud or coercion...".

Defense Counsel has provided the Court with an exhaustive history of defendant's experiences of being coerced into a life of prostitution. Defendant's traffickers fraudulently induced defendant to come to the United States from her home country. Once here, she was forced to engage in prostitution by her traffickers in order to repay them for having arranged her entry into the United States. Her traffickers subjected her to rape and other forms of abuse, instilled in her fear for her life and the lives of her family members, threatened her with blackmail, withheld her immigration documents and held her in debt bondage.

Defendant has been found by the Federal Government to have been a victim of a severe form of trafficking and, as a result of this finding, she now holds a T-Visa. Her application for this special visa was supported by the Office of the New York County District Attorney. This finding creates a statutory presumption under CPL § 440.10 (i) that defendant's participation in the charged offence was a result of having been a victim of sex trafficking.

Even without this presumption, defendant clearly meets the New York State statutory definition of a victim of sex trafficking and the Federal statutory definition of a victim of a severe form of sex trafficking. Defendant has rebuilt her life and is now well on her way to being a truly productive, law-abiding person. This defendant presents precisely the type of case that the 2010 amendment to Criminal Procedure Law § 440.10 was enacted to address.

Accordingly, defendant's motion is granted, the accusatory instrument is dismissed and the record is sealed.

This constitutes the decision and order of the Court.

Dated:___________________________

New York, New YorkRichard M. Weinberg

Judge of the Criminal Court