The defendant moved pursuant to CPL §440.10 for an order vacating the judgment of conviction on this indictment. On April 25, 2014 the Court conducted a hearing on the defendant's motion which consisted of oral argument by defense counsel and the People.

The defendant was convicted in 1984 after a jury verdict of the crime of criminally negligent homicide (PL§ 125.10) for causing the death of her husband. A prior application for similar relief under CPL §440.10 was made before the trial judge, that application was denied.

The quantum of the defendant's present application is that she was abused by her husband and that this defense was not fully set forth at the time of her trial. She further alleged that her conviction is impairing her ability to obtain gainful employment.

It is clearly evident to the Court that the defendant was the victim of domestic [*2]violence at the hands of her husband. Claims that the defendant failed to report the alleged abuse to proper authorities, fails to understand the hell that a victim of domestic violence endures.

Nonetheless, as the matter stands before the Court the defendant's application is being brought pursuant to CPL §440.10 and as such the Court is limited to the following inquires, regarding, the underlying conviction.(A) Lack of jurisdiction;

(B) Duress, misrepresentation or fraud;

(C) Knowingly false material evidence;

(D), (H) Material evidence and or judgment in violation of the defendant's rights under the New York State or United States Constitution;

(E) Mental disease or defect that results in an inability to understand or participate in the proceedings;

(F) Improper, prejudicial and reversible conduct during the trial not on the record;

(G) Newly discovered, favorable evidence since the entry of a judgment which could not have been produced by the defendant at the trial even with the exercise of due diligence;

The Court in its analysis is limited to the above grounds as set forth in CPL §440.10 in order to vacate the defendant's conviction. [Emphasis added.]

The defendant has failed to proffer facts sufficient enough to challenge the legality of her conviction as required by CPL §440.10. Further, the defendant never appealed her judgment of conviction. See CPL §440.10 (2) (C)Thus this Court has no alternative but a summary denial of the defendant's instant motion as a matter of law. In addition, as stated above this is the defendant's second application to vacate her judgment of conviction. It is clear that the defendant interposed the defense of justification at her trial. The defendant's first CPL §440.10 application was summarily denied and that decision was not appealed nor was the underlying conviction.

Notwithstanding, the above, the Court was quite taken by counsel's alternative argument for the sealing of the defendant's conviction in order for her to obtain gainful employment.

The Court accepted as an exhibit at the hearing a written determination that the defendant was deliberately impeded from obtaining employment based upon her conviction even though a certificate of relief from disabilities was granted and the New York State Division of Human Rights determined that "probable cause" existed that the defendant was unlawfully discriminated against based upon her conviction in clear contravention of settled New York State Law.

From this Court's review of the record it is clear that except for this crime the defendant has been a law-abiding citizen her entire life.What is striking to this Court, as an attorney for more than forty (40) years is that this State does not afford those adults who have been convicted of a felony the chance at redemption. At the conclusion of this hearing I looked at my Law Clerk in reference to the Governor and both Houses of the New York State Legislature and said, "Let him who is without sin among you be the first to cast a stone at her." John 8:7, King James Version

In this Court's opinion the Legislature must act to give a person like this a fighting chance to sustain herself. There should be some type of sealing right afforded to similarly situated defendants who have clearly been rehabilitated.Unfortunately, as I am duty bound to follow the law of this State, the defendant's motion must be and is hereby denied in its entirety.

This shall constitute the Decision and order of this Court.

E N T E R:

Angelo A. Delligatti, A.J.S.C.