Ms. C.C. moves for an order pursuant to Criminal Procedure Law ["CPL"] 440.10 (1) (i) vacating the judgments of four prior convictions 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.^[FN1] The People [*2]consent to vacatur. Accordingly, the Court will be required to dismiss the accusatory instruments after vacatur of the judgments of guilty. See CPL 440.10(4).

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 her/his having been a victim of sex trafficking under Penal Law § 230.34 or trafficking in persons under the Federal Trafficking Victims Protection Act (United States Code, Title 22, Chapter 78).

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

22 USC § 7102, in relevant part, defines sex trafficking as "the recruitment,

Ms. C.C., by affidavit, has provided the Court with an extensive history of the false promises and psychological manipulation employed by a pimp-trafficker to induce her into prostitution. She details the threats that were made to her as well as the complete control that the pimp took over her finances in order to coerce and manipulate her into remaining in that way of life for a number of years.

Ms. C.C., a native of the Dominican Republic, reports that she was brought to New Jersey legally at the age of three by relatives who had employed her mother as a domestic in the Dominican Republic. Ms. C.C. further reports she was sexually abused by some of her male relatives and mentally abused by the family matriarch. Her relationship with the family deteriorated to the point that she was hospitalized after saying that she wanted to kill herself. She was removed from that home by child welfare officials and placed into a series of foster care facilities.

When she was 16 years old and living in a group home, Ms. C. C. took a bus to Manhattan to join a man whom she had spoken with on a telephone "party line." When she discovered that the man only wanted to have sex with her she fled back to the Port Authority building. However, she was repelled by the idea of returning to the group home and slept in the bus terminal that night.

The next day, she was approached by Anthony Houghton, a smooth-talking 42-year- [*3]old man with a street name of "Flava." Unbeknownst to Ms. C.C. at that time, "Flava" was a pimp and a felon with multiple prior convictions as a result of which he was required to register for life as a Level III Sex Offender.

Flava complimented the 16-year-old Ms. C.C. on her looks and her smile. She reports that this was the first time that anyone had treated her positively. He talked her into going to a hotel room to smoke marihuana even though she had told him that she had never smoked marihuana before. He made no sexual advances, which impressed her. They talked all night and she told him the story of her life. He seemed truly interested in her, and she was thrilled. The following day he told her that he was a pimp and asked her to work for him, telling her about the money she would make and the independence that would bring her. She agreed.

Flava then took her to Brooklyn and left her on the street to attract drive-by customers. The first man who picked her up pulled a gun on Ms. C.C. and raped her. When the man let her go, she realized she had no idea where she was and she could not remember the pimp's telephone number. She slept in a park. She performed oral sex for a man to get money to return to the Port Authority building. When she arrived, another man approached her and she earned $300 having sex with him in a hotel. This money — more than she had ever had before — impressed her. Flava found her wandering outside the Port Authority building. He told her that now she knew how much she needed him for protection. He pointed out how isolated she was. She went with him to a house in the Bronx where he lived with another woman who also worked for him as a prostitute. Ms. C.C. became one of his "wife-in-laws."

The behavior of Flava, the pimp, that Ms. C. C. depicts in her affidavit is one of relentless intimidation punctuated by occasional acts of affection and kindness and compliments but with sustained focus on Ms. C. C's lack of self-esteem, her unhappiness in foster care and group homes and her sense that no one else in the world cared about her. Flava provided her with illicit drugs. Indeed, he plied her with marihuana on a daily basis. He required Ms. C. C. to turn over all the proceeds of her prostitution activity, monitored who she spoke with on the telephone and insisted that she give him her permanent resident identification card. He regularly threatened to beat her and throw her into the street naked when he caught her speaking to another pimp. He convinced Ms. C.C. to lie about her age when she was arrested, thereby avoiding adjudication in the Family Court system. The lawyers whom he hired to represent her always urged her to plead guilty.

After Flava was imprisoned for a parole violation, Ms. C.C. and his other "wife-in-laws" tried to keep his operation going for him but were unsuccessful. After a new arrest, Ms. C.C. accepted crisis counseling through the GEMS (Girls' Education and Monitoring Service) program but did not follow through in the program. The control Flava had over her was so strong that on his demand she attempted to bring him marihuana during a prison visit. She was arrested and later convicted of Promoting Contraband to Prisoners (PL §205.20). Ms. C.C. continued to prostitute herself on her own.

After Flava's release from prison, he persuaded Ms. C.C. to rejoin him. Even after she became pregnant with his child, he insisted that she engage in prostitution. (She ultimately lost custody of the child and surrendered her parental rights in favor of the child's godmother but maintained visitation rights.)

Flava was convicted of a drug sale and was again imprisoned. Ms. C.C. made some effort to engage again in the GEMS program but, addicted to illicit drugs, resumed prostitution on her own, leading to more arrests. After his release from prison, Flava continued to try to regain control over Ms. C.C. by filing a paternity petition and seeking custody of their child, over whom Ms. C.C. still had custody at the time. The petition was denied.

Ms. C.C. successfully completed methadone treatment and is getting psychological counseling. She was arrested for Loitering for the Purposes in Engaging in a Prostitution Offense while walking in the Bronx although she was not seeking sexual clients. Ms. C.C., on advice of counsel, informed the Bronx District Attorney's Office of how she was induced into the life of a prostitute. As a result, she received an adjournment in contemplation of dismissal (ACD) despite her previous criminal convictions, and the People consented to vacatur of her Bronx conviction.

Ms. C.C. also has secured housing. She had already taken some GED classes and hopes to study cosmetology. She cannot get a state cosmetology license, however, with her criminal record. It is this negative impact on her opportunity to rebuild her life which the Legislature intended to remove by amending CPL 440.10. See Preiser, Supplementary Practice Commentaries (McKinney's Con Laws of NY, Book 11A, CPL 440.10, [2013 Pocket Part 99-100]). Most if not all of Ms. C.C.'s factual assertions are confirmed by documentation submitted with this motion. Ms. C.C. 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. Ms. C.C. presentsprecisely the type of human trafficking victim that the 2010 amendment to CPL § 440.10 was enacted to address. SeePeople v. A. B., 35 Misc 3d 1243(A) (Crim Ct, NY County 2012)(unreported).^[FN2]

Accordingly, Ms. C.C.'s motion for an order to vacate all her New York County convictions is hereby granted. The judgments are hereby vacated. The accusatory

This opinion shall constitute the Decision and Order of the Court.

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Hon. Felicia A. Mennin, AJSC