Defendant now moves this court for an Order vacating the judgments of conviction entered in each case pursuant to criminal procedure law (CPL) 440.10 (1) (i) and dismissing the accusatory instruments filed therein under CPL 440.10 (6) on the basis that defendant's participation in each offense charged was a result of having been a victim of sex and labor trafficking. The People oppose the motion.

For the reasons that follow, the motion is granted.

Defendant asserts that she is entitled to have her convictions vacated and the cases dismissed pursuant to CPL 440.10 (1) (i) and (6) because the offenses were the result of her having been a victim of a severe form of trafficking pursuant to federal law and a victim of labor trafficking under New York state law because she was forced and coerced to engage in criminal conduct.

The People argue in sum that defendant voluntarily worked in concert with "C" to sell drugs on the streets of Queens County.^[FN2] They present court records contradicting defendant's assertions that C avoided any connection to her drug sales, that defendant feared him and that her crimes were motivated by duress. They also show that she has a history of dishonesty and self-interest, including bail jumping, the use of fake names and birth dates, violation of parole and illegal re-entry into the United States.

In particular, the People focus on the record of defendant's final conviction in indictment 10672/2004 with co-defendant C. During the plea allocution C referred to defendant as his wife. Defendant told the court that C sold drugs to the undercover officer and she received the payment money while they were in C's car. The record in that case also contains letters from her children which refer to defendant and C as their mother and father and ask for leniency from the sentencing court. The People also seek to rebut the statutory presumption that defendant was a victim of trafficking as determined by the New York State Office of Temporary and Disability Assistance (OTDA) which designated defendant a "human trafficked person" based on the testimony that the agency did not investigate or corroborate defendant's self-reported trafficking history.

In 2010, New York became the first state in the country to pass a law that recognized the existence of trafficking victims and the harmful impact that their convictions for prostitution-related offenses had on their lives. However, the 2010 amendment to New York's post-conviction statute which enacted criminal procedure law 440.10 (1) (i) limited vacatur relief to sex trafficking victims arrested and charged with loitering for the purpose of engaging in a prostitution offense (PL § 240.37) or penal law article 230 prostitution offenses. Effective January 2016 the state Trafficking Victims Protection and Justice Act expanded CPL 440.10 (1) (i) to provide vacatur relief to persons subjected to labor trafficking (PL § 135.35) and the newly created offense of aggravated labor trafficking (PL § 135.37; L. 2015, c. 368 [S. 7]).

In 2021 New York enacted the Survivors of Trafficking Attaining Relief Together (START) Act which expanded access to vacatur relief under CPL 440.10 (1) (i) for victims of sex and labor trafficking by removing the predicate requirement that a movant must have been arrested on a prostitution related charge (L.2021, c. 629 [A. 459]). This change was prompted by recognition that numerous other states had enacted post-conviction laws that allowed vacatur for trafficking victims who were forced to commit a range of offenses by their traffickers.^[FN3] The 2021 [*2]START Act also made filing a post-conviction motion easier and less re-traumatizing for trafficking victims by rendering their motions confidential and authorizing consolidation of cases from disparate jurisdictions into one motion to be filed in one county, with the consent of each prosecutor's office (CPL 440.10 [1] [i] [ii] and [iii]).

CPL 440.10 (1) (i) now provides that the court may vacate a judgment of conviction

where the defendant's participation in the offense was a result of having been a victim of sex trafficking under section 230.34 of the penal law, sex trafficking of a child under section 230.34-a of the penal law, labor trafficking under section 135.35 of the penal law, aggravated labor trafficking under section 135.37 of the penal law, compelling prostitution under section 230.33 of the penal law, or trafficking in persons under the Trafficking Victims Protection Act (United States Code, title 22, chapter 78)

The federal Trafficking Victims Protection Act (TVPA) defines a "victim of a severe form of trafficking" as someone who is induced to engage in a commercial sex act through force, fraud or coercion, or where the victim who is induced to perform a commercial sex act has not attained the age of 18 (22 USC § 7102 [11] [A]). The TVPA additionally recognizes someone who experienced "the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery" as a "victim of a severe form of trafficking" (22 USCA § 7102 [11] [B]).

Alternatively, determining whether a person qualifies as a victim of sex trafficking under state law requires reference to PL § 230.34, which provides that a person is guilty of sex trafficking if he or she "intentionally advances or profits from prostitution" by inducing another person to engage in prostitution activity by any number of means specified under New York's sex trafficking statute which involve force, fraud or coercion (PL § 230.34 [1 - 5]). Accordingly, any individual who is subjected to acts defining the criminal offense of sex trafficking under PL § 230.34 would necessarily be considered a victim of sex trafficking. Similarly, a person is a victim of labor trafficking if another person compels or induces them to engage in labor or recruits, entices, harbors, or transports such other person by means enumerated in PL § 135.35 (1-3), including purported debt repayment, withholding official documents and fear of physical injury. A person is a victim of aggravated labor trafficking if they are compelled to engage in labor by another person "by means of intentionally unlawfully providing a controlled substance to such person with intent to impair said person's judgment" (PL § 135.37).

Defendant bears the burden to come forward with sworn allegations substantiating the essential facts in the CPL 440 motion (People v Hartle, 40 NY3d 39, 44 [2023], cert denied sub nom. Hartle v New York, 144 S Ct 383 [2023]). At a hearing, "the defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion" (CPL 440.30 (6). Official documentation of a defendant's status as a victim of sex or labor trafficking [*3]at the time of the offense from a federal, state or local government agency creates a presumption that the defendant's participation in the offense at issue was a result of having been a victim of trafficking (CPL 440.10 [1] [i] [i]).

If the court decides to grant a motion under CPL 440.10 (1) (i), the court must vacate the judgment on the merits because the defendant's participation in the offense was a result of having been a victim of trafficking, dismiss the accusatory instrument, and may take such additional action as is appropriate in the circumstances (CPL 440.10 [6]). The 2021 amendment added that all papers and documents pertinent to the motion shall be confidential (CPL 440.10 [1] [i] [ii]) and enabled a defendant to consolidate convictions from various counties into one motion with the consent of all of the state and local prosecutorial agencies that prosecuted each matter (CPL 440.10 [1] [i] [iii]). Additionally, an order vacating a judgment under CPL 440.10 is deemed the termination of a criminal action or proceeding against a person in favor of such person under CPL 160.50 (1) and (3) (f) and therefore the record of each action or proceeding shall be sealed.

From 1985 through 2004 Defendant was convicted in ten cases in Queens County under various aliases:

(1) In indictment number 2015/1985 on October 9, 1985 defendant pleaded guilty to criminal possession of a controlled substance in the fifth degree (Penal Law [PL] § 220.06 [1]) and was sentenced to five years' probation. Due to subsequent arrests in indictment numbers 5748-85, 2523-86 and 5929-86, on December 8, 1986 defendant was found to have violated probation and subsequently re-sentenced to one year incarceration at a facility where she could give birth and care for her child.

(2) In indictment number 5748/1985 defendant pleaded guilty to bail jumping and was sentenced concurrently with indictments 2015-1985, 2523/1986, and 5929/1986.

(3) In indictment number 2523/1986, on November 7, 1986 defendant pleaded guilty to criminal possession of a controlled substance in the fifth degree (PL § 220.06 [1]). The felony complaint alleged that an unapprehended person led the undercover officer to defendant. The officer handed currency to the person who then handed it to defendant, who then gave a packet of cocaine to the undercover officer.

(4) In indictment 5929/1986, on November 7, 1986 defendant pleaded guilty to criminal possession of a controlled substance in the fifth degree (PL § 220.06 [1]). The felony complaint alleged that $20 in pre-recorded buy money was recovered from defendant. On the date of sentencing, the court imposed a one-year sentence of incarceration on 2015/1985 to run concurrently with the indeterminate sentence of 2 to 4 years' incarceration on 2523/1986, along with concurrent sentences on indictments 5748/1985, and 5929/1986.

(5) In indictment number N10732/1991 on October 14, 1991 defendant pleaded guilty to attempted criminal sale of a controlled substance in the third degree (PL § 110/220.39 [1]) and was sentenced to 3 ½ to 7 years' incarceration. Defendant was charged by felony complaint with co-defendant RS and an apprehended other person RR.

(6) In SCI 10022/1993 on January 6, 1993 defendant pleaded guilty to attempted criminal sale of a controlled substance in the third degree (PL § 110/220.39 [1]) and was sentenced to probation for five years. The felony complaint alleges that defendant received currency from an apprehended other person and then gave that person cocaine.

(7) In indictment N10953/1991 on October 14, 1994 defendant pleaded guilty to [*4]attempted criminal sale of a controlled substance in the third degree (PL § 110/220.39 [1]) and was sentenced to 3 ½ to 7 years' incarceration. Defendant was charged by felony complaint with co-defendants RC and MT. During a pre-trial hearing, the testifying officer stated that he recovered $70 in pre-recorded buy money from defendant.

(8) In indictment number 10910/1993 on October 14, 1994 defendant pleaded guilty to attempted criminal sale of a controlled substance in the third degree (PL § 110/220.39 [1]) and was sentenced to 3 ½ to 7 years' incarceration. The felony complaint alleged that defendant received currency from an undercover officer and handed him cocaine.

(9) In indictment 11377/1994 on October 14, 1994 defendant pleaded guilty to attempted criminal sale of a controlled substance in the third degree (PL § 110/220.39 [1]) and was sentenced concurrently to indictment number 10910/1993.

(10) In indictment 10672/2004 on July 29, 2005 defendant pleaded guilty to criminal sale of a controlled substance in the third degree (PL § 220.39 [1]) and was sentenced to 4 ½ to 9 years' incarceration concurrent with her federal case and was returned to federal custody. The felony complaint alleged that defendant was seated in a car with co-defendant C. An undercover officer handed an unapprehended person currency which that person handed to defendant and then co-defendant handed cocaine to that person who gave it to the undercover officer.

Additionally, defendant spent several periods either incarcerated or out of the country:

Defendant was incarcerated following guilty pleas for three approximate periods:

(1) From 1987 to 1988 for indictment numbers 2015/1985, 5748/1985, 2523/1986, and 5929/1986.

(2) From 1995 to 1997 for indictment numbers QN10732/1991, QN10953/ 1991, QN10910/ 1993, and QN11377/1994.

(3) From 2007 to 2010 on indictment number QN10672/2004.

Additionally, defendant left the country and resided in Colombia once voluntarily and twice by federal removal proceedings:

(1) November 1981 to about 1983 defendant voluntarily traveled to Colombia with the permission of her trafficker to visit her sick mother.

(2) Following defendant's incarceration in 1997, she was deported to Colombia but subsequently re-entered the country with her daughter sometime around 1999.

(3) Following release from defendant's third period of incarceration, she was released to federal custody and deported to Colombia on May 23, 2011. She subsequently returned to the United States in 2012 to be with her children and grandchildren.

The court has given due consideration to defendant's motion, including her sworn affidavit and documentary evidence appended thereto, the People's Affirmation in Response with exhibits opposing the motion and defendant's memorandum in Reply. The issue in dispute is whether defendant's participation in the ten narcotics convictions before this court was the result of having been a victim of labor trafficking, here in the form of labor trafficking by forced criminality, or whether defendant acted of her own volition in each case. Accordingly, a hearing was held on February 21, 2025, March 14, 2025 and March 21, 2025 to determine defendant's credibility and other factual matters. Four witnesses testified before the court: the defendant; expert witness Rita Abadi, a licensed mental health counselor; and Sabrina Talukder, defendant's [*5]prior immigration counsel, on behalf of the defense, and Natasha Harvin Locklear, associate counsel at the New York State Division of Criminal Justice Services, for the prosecution. Each party subsequently filed post-hearing memoranda. The court found each witness to be credible.

M. D. A., the defendant in these ten cases, testified before this court on February 21, 2025. The court also considers her factual averments made by affidavit sworn on July 23, 2023 (Defendant's motion at exhibit A). The court found her to be a credible witness.

M. D. A. was born in Colombia in 1959 into an impoverished family and lived mainly with her mother who worked in a bar. Her older brother became a powerful and abusive gang member. In December 1974 defendant's brother was killed by gang members known to defendant and her family and subsequently her surviving brother killed one of those persons in revenge. Defendant left Colombia because the rival gang members then began to threaten harm to her family. She came to the United States in late December 1974 or January 1975 when she was 16 years old. She and her 17-year-old sister were helped by her mother's friend "A" to come to the United States. A told defendant's mother that M. D. A. and her older sister would study and have good lives in the United States. Defendant does not know who paid for their transportation into the United States.

When defendant and her sister arrived in the United States in late 1974 or January 1975, they were taken to a house of prostitution when she was 16 years old. Defendant remained there for about two years. The brothel was a big house with many rooms and girls crying. Defendant was placed in a dark room without windows. She was only permitted to leave the room to shower. She never left the house and did not know where she was, except that she was located in New York City. There was a large man who took care of defendant and the other women. Men used her for commercial sex. A came to defendant's room and told her that she would have to do what they said, or it would go badly for her. Food was brought to her room.

The men who came to defendant's room hit her and forced her to use drugs and alcohol. The men routinely forced defendant's face onto a plate of drugs by grabbing her hair, forcing her to ingest drugs and hitting her if she refused. They spit in her face and told her she was dirty. As a result, she became addicted to drugs and alcohol. The men touched her and did everything to her. They forced her to do sex acts and abused her badly. She became very ill and they cut her hair. She was not paid for the sex acts that she was forced to perform. The big man was paid. Defendant did not feel safe in the brothel. She was not in control; the men were controlling her life.

C was one of her clients at the brothel. He forced her to take drugs as did all the men there. In about December 1977 or January 1978 when defendant was about 18 years old, C, who later fathered two of her children, paid to get defendant out of the brothel after she had been there for almost two years. C told defendant that he paid to get her out of the brothel so that he could use her to sell drugs on the street. He then forced and coerced her to sell drugs. He also stated that she had to pay him for the cost of removing her from the brothel. He paid her in drugs. Defendant felt that she was obligated to reimburse him because he threatened to report her to the police or immigration authorities. He informed her that she would remain indebted to him for as long as he wanted. He never informed defendant how much he paid for her release from the brothel or how much money he expected her to reimburse him. C then took defendant to a friend's house where she resided in the living room. Shortly thereafter, C took defendant to an apartment he rented. He then gave defendant drugs to sell and provided her with drugs as [*6]payment.

C lived two separate lives. As G he was a successful immigrant who owned buildings in Brooklyn and had a wife and children. In Elmhurst, Queens he was known as C, a feared drug lord who distributed drugs on Roosevelt Avenue. C did not live with defendant and she did not know where he resided. She knew that he was married because he stated that he would not exchange defendant for his wife because she was dirty. He never said that he loved defendant, he said that she made him sick, that she disgusted him. Still, he forced her to have frequent sexual interactions with him. Defendant had children born from his forced sex acts on her. They were not born because of love. He often beat defendant and left lots of marks on her body. One time C struck defendant's eye with a ring. He also cut her left foot, leaving a scar. Once, when she was eight months pregnant, he pushed her down a flight of stairs, thereby causing her to lose the baby which was surgically removed.

C was the "owner of Roosevelt Avenue" in Queens County. He had another person, "E," who also distributed drugs. C had drug users sell drugs for him on Roosevelt Avenue. Defendant saw drugs which C stored in a closet in the apartment she was given to live. Because defendant had become addicted to drugs in the brothel, she was desperate to sell drugs because of her severe addiction which C would supply as payment. C also forced her to sell drugs by threatening to report her to law enforcement or immigration authorities. Later, after her children were born, he denied her access to her children, saying that she was a dirty woman who used drugs and did not deserve to see them. C arranged for another person to care for the children. Defendant was severely addicted to crack, cocaine and alcohol until she later received drug treatment during her imprisonment.

During the time that C forced defendant to sell drugs on Roosevelt Avenue, either C, who would be seated in his car, or his associate E, would collect the drug sale proceeds from her after she sold the drugs and received the money from the purchaser. C would then continue to feed her habit by supplying her with drugs and give her more drugs to sell. He once beat her in public for using the drugs he gave her to sell. The only time that defendant recalled C selling drugs was at the time of her last arrest. She had had a stroke and had been released from the hospital a few days prior. She met C who sold drugs and gave her $20 to buy breakfast for her children. Defendant admitted that she pleaded guilty in this case to avoid a lengthy jail sentence. Defendant does not recall any letters to the court written by her purported employer, a sportswear store, or her children in connection with this case. She can only recall having worked at a coffee shop.

Defendant recalls having been arrested numerous times while selling drugs for C. She cannot remember the dates that she was arrested. Each time that she was arrested she did not provide her real name at C's instruction. He also instructed her to never reveal his name or she would never see her children. C provided the alias names that defendant reported to law enforcement personnel each time she was arrested. During one arrest, defendant informed a detective that C had been forcing her to sell drugs. She provided information about C's drug sales, but the police did not assist her. When defendant had court dates, she was on drugs and could not remember them. C told her not to appear because if she went to court, she would be arrested and would not see her children. C did not let defendant see her children often. When C bailed defendant out of jail he forced her to repay the debt. C had people follow defendant while she sold drugs. Defendant lived in constant fear and took drugs to self-medicate.

Defendant had one child while in Colombia and two children with C. Two sons were [*7]born in 1982 and 1987 respectively and a daughter was born in 1989. She also had three abortions, including the incident when C pushed her down stairs. C forced defendant to have the abortions against her will. Defendant did not reside with her children, rather they remained under C's control and he arranged for someone to care for them. He controlled defendant's access to her children. He frequently beat her and called her bad names while the children were in a closet nearby. He also threw glasses at her face in front of the children. She has not told her story to her sons because she feels embarrassed about what has happened to her. She explained her story to her daughter when she was an adult because of her own difficult experiences with abuse and her feeling that her mother abandoned her. Defendant has always hidden the story of her life when she came to the United States because she is embarrassed about what happened to her.

In or around 1981 defendant travelled to Colombia to visit her sick mother with C's permission. C purchased her airline ticket and provided a false passport on condition that she return with drugs within 20 days. Defendant escaped the house that C had arranged for her and controlled and returned to her hometown. She wanted to stay with her mother, but she feared the gangs that were prevalent there including gang members who killed her brother. Several gang members harassed her and attempted to rape her. Additionally, her family remained extremely poor. In the fall of 1983, a few months after her son was born, defendant contacted E along with C for help to escape the local gang pressure and extreme poverty in Colombia. They helped defendant re-enter the United States on condition that she bring drugs. She had no one else who could help her. C sent funds to her in 1983 to purchase a ticket to Mexico. However, she needed to bribe the coyote who smuggled her across the US border with the drugs C demanded. He beat her for giving the drugs away when he caught up with her in New York.

When defendant returned from Colombia she took a job at a coffee shop. However, C found her and stated to her that she could not get away from him. He punished her by striking her in the eye. He frequently informed her that she must repay him for everything that she owed him. He then forced defendant to resume selling drugs on the street for ten hours a day. Defendant was arrested and incarcerated for most of 1987 and 1988. Her son was born in 1987 while she was in custody. She was again incarcerated sometime in 1994 into 1997. While incarcerated, C visited defendant many times to control her by instructing her not to say that she was from Colombia or mention his name. He threatened to harm her if she betrayed him and sent her daughter to live with her mother in Colombia without her consent.

In around 1997, although defendant does not recall exactly when, she was deported to Colombia as a result of the convictions for crimes C forced her to commit. At that time her mother was taking care of her then eight-year-old daughter in Colombia. Because defendant feared the local gangs and wished to be reunited with her sons in the United States, she sent her daughter back to New York accompanied by a flight attendant and arranged for herself to be smuggled back into the United States through Mexico. When defendant returned to New York, she sought C because he had her two sons. After a month, she found him and he told her that she could only see her children if she sold drugs for him. He put defendant and her three children in a studio apartment in Queens that he owned. By 1999 C was again forcing defendant to sell drugs in order to be with her children. In 1999 C forced defendant to have an abortion against her will.

In 2004 defendant was arrested for the final time, in this case she was arrested with C as co-defendant. On July 29, 2005 she pleaded guilty to criminal sale of a controlled substance in the third degree (PL § 220.39 [1]) and was incarcerated from 2004 to 2011. C also pleaded guilty [*8]and was sentenced to incarceration. At the CPL 440.10 hearing, defendant did not recall the details about this case. She did recall that she had been released from the hospital just a few days earlier after having suffered a stroke and needed money from C to buy breakfast for her children. He was out selling drugs and gave her $20 to buy breakfast. Defendant recalled that when she was arrested, she told the officers that C forced her to sell drugs, but the officers did not find drugs on her person at that time.

During defendant's incarceration, her sons stayed with various friends or lived unhoused. Her daughter was placed in foster care. While incarcerated, C continued to exercise control over defendant by communicating threats to harm her or deprive her of her children if she harmed his court case. She last saw him at Rikers Island in about 2007. Defendant took advantage of substance use programs in prison and has not used drugs since 2004. In 2011 defendant was deported again to Colombia but was able to re-enter the United States in 2012 to reunite with her children.

Following defendant's release from prison, she has worked in construction, housekeeping and selling water. She has received help from Elmhurst Hospital and Sanctuary for Families. She now spends time with her children and grand children. On May 4, 2023 the New York State Office of Temporary and Disability Assistance (OTDA) designated defendant a "human trafficked person."

Rita Abadi is the operations manager for Mount Sinai Sexual Assault and Violence Intervention Program, known as SAVI. She is a specialist counselor in trauma therapy with survivors of gender-based violence and has worked with human trafficking survivors since 2002. She receives client referrals from various sources including the court, Mount Sinai Hospital where SAVI is based, the Special Victims Unit of the Queens District Attorney's Office and the federal Department of Homeland Security. The parties agreed that Ms. Abadi is an expert in sexual assault and human trafficking. The court found that Ms. Abadi qualified as an expert witness and found her testimony credible.

Ms. Abadi confirmed that she started weekly psychotherapy sessions with defendant in April 2024 as a victim of sexual assault and human trafficking. The therapeutic process includes helping survivors understand the symptoms of trauma that they are experiencing by talking through their traumatic experiences and learning coping techniques. Ms. Abadi stated that victims of trauma typically express confused and truncated descriptions of their experiences. The process is painful for the client because they must re-live their experiences. Ms. Abadi explained that often a client's narrative memory is disjointed from the emotional experience of the events, which leads to invasive thoughts and nightmares. Ms. Abadi teaches her clients how to regulate themselves. Trauma symptoms do not improve without therapy.

Ms. Abadi further testified that in her professional experience she has observed traffickers using the same techniques everywhere. They may engage in trauma bonding with the person being trafficked. They use rewards and punishments to make people think that they have no way out of the situation. They capitalize on their victims' vulnerabilities, such as lack of resources, lack of immigration status and inability to speak English. Traffickers convince their victims that they can only survive under their care and if they "break out" they will be punished by the system. They use threats of immigration enforcement and threats against their children. As a result of the traumatic experience of being trafficked, the person may experience dis-associative amnesia to repress the memories. Traumatic memory is also broken, and the client [*9]will relate past episodes in a disjointed narrative rather than in chronological order.

Ms. Abadi testified that there is a connection between the intensity of the symptoms of trauma and the intensity of the past trauma. The post-traumatic stress symptoms (PTSD) may be stronger in cases of poly victimization where a person has experienced various kinds of trauma. Clients are often not aware that they were victims of trafficking. Indications that a client has experienced human trafficking include a lack of knowledge about how to navigate New York City despite having lived here for years. They do not know how to use the subway system and take cabs to their therapy appointments. That is because requiring the victim to travel only by taxi is a form of control by the trafficker. They often have no knowledge about how much they pay for rent or have one expensive accessory like a handbag while living in penury. These facts indicate that the person is controlled by a trafficker. A trafficking survivor will often exhibit symptoms of PTSD, such as experiencing nightmares or being hyperaroused, which exhibits as being easily startled. Foreign born clients are often brought to the United States with false promises of a romantic relationship or employment and better living conditions. They often have no idea how travel documents were obtained or who provided a passport and visa to enter the United States. Ms. Abadi also stated that many clients have reported that they were forced to use alcohol and drugs while they were trafficked as a means of control. Traffickers also find many ways to create debts that the victims must repay, such as rent or the cost of the drugs consumed. The only way that the victim can repay the debts is to work and the work depends on the type of trafficking - selling sex or drugs. Long term impacts of trafficking include PTSD symptoms such as lasting nightmares, difficulty sleeping, hyperarousal, concentration issues, impaired memory and lack of organizational skills.

During therapy sessions with defendant, Ms. Abadi testified that M. D. A. preferred discussing her present life and slowly revealed her past. She stated that defendant described how she was forced to use alcohol and drugs and subsequently became addicted. She was very fearful and avoided going to certain places and did not sleep at night. She told her story in bits and pieces. Ms. Abadi stated that M. D. A. exhibited signs of PTSD. The testimony of Rita Abadi, heard before this court on March 14, 2025, corroborated that M. D. A. shared her trafficking experience and showed symptoms of trauma consistent with her account of having been a victim of sex and labor trafficking.

Significantly, Ms. Abadi testified that in the course of her psychotherapy with defendant she formed the opinion that M. D. A. was trauma bonded to her trafficker C "for all the things that he had done and the little things. One big thing he did for her was to take her out of the brothel."^[FN4]

Sabrina Talukder, Esq., was called by M. D. A. and testified about her prior experience as defendant's immigration counsel when she was a staff attorney at the Legal Aid Society handling immigration matters for survivors of domestic violence and human trafficking. Ms. Talukder explained that she met M. D. A. in late 2015 to interview her for a T-Visa application. Ms. Talukder met defendant seven to ten times to conduct her intake assessment and determined that she had been a trafficking victim and could qualify for a T non-immigrant status. However, she advised M. D. A. not to apply for a T-Visa at that time due to the political climate because her felony convictions could not be vacated under the version of CPL 440.10 (1) (i) in effect at [*10]that time.

The People called Natasha Harvin Locklear, Esq., associate counsel at the New York State Division of Criminal Justice Services (DCJS) to rebut the presumption created under CPL 440.10 (1) (i) (i) that M. D. A. was a trafficking victim. Such presumption is created by the New York State Office of Temporary and Disability Assistance's (OTDA) designation of a defendant as a "human trafficked person." The court appreciates Ms. Locklear's description of the referral review process conducted by her office at DCJS which essentially involves reviewing the factual averments in the application to ensure that they describe acts of force, fraud or coercion which caused the victim to engage in sex or labor trafficking. This review process was created after enactment of Social Services Law article 10-D in 2007 which authorized services for human trafficking survivors (see OTDA Human Trafficking Handbook for Social Service Providers and Victim Advocates appended to People's Affirmation in Response at exhibit 14). Ms. Locklear testified that the referral application may be made, inter alia, by a law enforcement agency, district attorney's office or social services provider. In M. D. A.'s case the referral was made by defense counsel. DCJS does not corroborate the facts asserted by the applicant or interview them personally but simply determines whether the factual assertions meet statutory criteria. The purpose of the referral is to qualify the applicant for social service benefits administered by OTDA.

This court finds that M. D. A. was a victim of labor trafficking by her trafficker C who applied force, fraud and coercion to compel her to engage in the crimes of criminal possession, attempted sale and sale of controlled substances for his benefit from 1985 to 2004. C compelled her by demanding repayment of purported debts (PL § 135.35 [1]), using force, sexual assault and instilling fear that he would cause physical injury or death to defendant or her family (PL § 135.35 [3] [a]) and instilling fear in defendant that he would cause her to be subject to criminal charges or deportation proceedings if she failed to obey him (PL § 135.35 [3] [d]). M. D. A.'s trafficker additionally subjected her to aggravated labor trafficking by intentionally providing controlled substances to her to impair her judgment (PL § 135.37) and thereby compelling her to engage in forced criminality. She was also a "victim of a severe form of trafficking" because her trafficker obtained her labor through "the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery" (22 USCA § 7102 [11] [B]). Upon due consideration of her sworn affidavit and after hearing her personal testimony, the court finds that M. D. A. has proven by a preponderance of the evidence presented that she was trafficked by C. The court finds that M. D. A.'s participation in the offenses charged over two decades was motivated by her trauma bond to C formed by his manipulation of her forced addiction to drugs and alcohol, his frequent sexual assault and personal denigration of defendant, her extreme fear that C would harm her or her family and her understandably powerful need to be with her children, whom he controlled, despite her periods of incarceration and deportation.

CPL 440.10 (1) (i) was enacted to ameliorate the wrong caused by imposing convictions on persons who lacked agency over their acts due to their victimization by traffickers. The court should therefore construe the remedial provisions of CPL 440.10 (1) (i) liberally "in order that its beneficent purpose may, so far as possible, be attained" (People v Lexington Sixty-First Assoc., 38 NY2d 588, 595 [1976]; NY Stat § 321). In construing the application of CPL 440.10 (1) (i) and (6), "[t]he governing rule of statutory construction is that courts are obliged to interpret a statute to effectuate the intent of the Legislature, and when the statutory language is [*11]clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words used" (People v Williams, 19 NY3d 100, 103 [2012] quoting People v Finnegan, 85 NY2d 53, 58 [1995] [internal quotation marks and brackets omitted]).

M. D. A. was the victim of a form of human trafficking recognized as labor trafficking by forced criminality. "[L]abor trafficking by forced criminality (LTFC) refers to all labor trafficking where the labor or services the victim is being forced, coerced, or defrauded into performing are activities that could otherwise be classified as a crime."^[FN5] The victim of labor trafficking by forced criminality experiences human trafficking at the same time they commit a criminal offense.^[FN6] "Victims of trafficking should not be held liable for their involvement in unlawful activities that are a direct consequence of their victimization."^[FN7] As Assembly Member Catalina Cruz stated during debate for the passage of the START Act for trafficking victims, "We as government owe them the opportunity to restart their life".^[FN8]

Trauma is well recognized as a powerful force afflicting the mental and physical well-being of people subjected to human trafficking.^[FN9] "[T]rauma results from an event, series of events, or set of circumstances that is experienced by an individual as physically or emotionally harmful or threatening and that has lasting adverse effects on the individual's functioning and physical, social, emotional, or spiritual well-being."^[FN10] The traumatic humiliation and sexual violence experienced by survivors of human trafficking may negatively affect a person's mental health for their entire life. "For victims of sex trafficking, trauma is unavoidable; the experiences of being groomed, commodified, abused, and dehumanized in addition to the violent acts of [*12]exploitation, serve to compound the trauma."^[FN11] The length of time that a person is trafficked and exploited correlates to heightened levels of Post-Traumatic Stress Disorder, depression and anxiety that the individual will experience.^[FN12] "The consequences of human trafficking on mental health cannot be overstated. Victims of human trafficking have experienced considerable trauma, some of which does not present itself until years later."^[FN13]

In the instant case, M. D. A. was brought into the United States on false promises and forced into a brothel where she was subjected to sex trafficking from the age of 16 years old. C had participated in sex trafficking defendant by subjecting her to sexual assault and forced drug consumption as a customer when she was trapped in the brothel. When she was about 18 years old, C effectively purchased her servitude from the brothel owner and forced defendant to sell narcotics while he continued to sexually victimize her.

Human traffickers systematically isolate their victims, creating a sense of disconnection from others. Traffickers utilize verbal abuse and humiliation to impact their victims' sense of self. They create an environment of fear through threats of harm to victims or their families. This chronic fear activation can lead to physiological changes that impair the ability of victims to mobilize the physical and psychological resources needed to escape. Their natural survival mechanisms break down, and their own bodies betray them. This physical and psychological erosion becomes the tie that binds victims into slavery.^[FN14]

M. D. A. testified at the hearing that over the course of two decades C verbally denigrated her and sexually abused her. He controlled her movement and forced her to work selling narcotics without payment other than to provide drugs for her continued substance use addiction. He did so ever since she was forced into becoming an addict while still a child at the brothel where he was a customer. C encouraged her drug use as a means of exerting control over her, a common tactic among traffickers to control and manipulate their victims.^[FN15] He fathered two of her surviving children and controlled her access to them throughout their time together. He [*13]frequently threatened to deprive her of access to them and even sent her then eight-year-old daughter back to Colombia without defendant's knowledge or consent. "Sadly, it is not uncommon for victims to have several children with their trafficker—a tactic of oppression that is especially unsettling, as the children are often used as further means of securing the victim to the trafficker's will."^[FN16] C's successful trafficking strategies to control defendant, including the fear of violence and financial dependence she experienced for years, together with his control over access to her children, created real barriers to her ability to escape her trafficker.^[FN17]

The People make three principal arguments challenging defendant's motion following the hearing: (1) defendant was not coerced into committing the crime alleged in her final conviction under indictment QN10672/2004 and rather testified that she was innocent of the crime, (2) the fact that she repeatedly returned to C after long absences due to incarceration or deportation belie her assertion that she was under his control when she had opportunities to flee, and (3) the People challenge the presumptive value of OTDA's designation of defendant as a trafficking victim.

M. D. A. and co-defendant C were indicted under indictment QN10672/2004 and each pleaded guilty to criminal sale of a controlled substance in the third degree (PL § 220.39 [1]). During the plea allocution, the court asked defendant what she did at the time of the offense (July 29, 2005 transcript appended to People's Affirmation in Opposition at exhibit 12). She simply stated that "[h]e sold the drug and I received the money," referring to co-defendant C and the undercover officer who purported to purchases narcotics. She clarified, saying "[t]his person came into the car. He sold the drugs to him. C, that is. And I got the money." Defendant stated that initially she was in the car by herself and then C got in also. During C's plea allocution, he stated that he came out of his car and sold cocaine. He stated that he had been with his "wife" in the car. He then stated "I did the drug transaction. I did it." He also stated that the purchaser gave the money to him and he gave it to his "wife."

During the hearing before this court, M. D. A. did not deny her involvement in the incident. Rather she admitted that she was present when C sold drugs. During the plea allocutions, both she and C admitted that C sold the drugs to the undercover officer. During the People's cross-examination of defendant at the hearing regarding her arrest in indictment QN10672/2004, she stated that "[h]e was selling drugs. I was coming out of the hospital because I had gotten a stroke. That is when they arrested me. I told the police that he was selling drugs. I told the police everything, that he was selling drugs and he was forcing me to sell." This statement is consistent with the plea transcript wherein the parties stated that C made the drug sale in that case. That defendant's testimony is incomplete regarding the fact that she accepted the narcotic sales proceeds may be consistent with the fractured and non-linear memory that defendant suffers as a result of her traumatic experiences. Nonetheless, she did not deny her presence during the drug transaction during the hearing despite her focus on having received $20 [*14]from C to buy food for her children at that time.

The People point to three periods when M. D. A. was outside of C's control but voluntarily returned rather than escape to show that she was not actually trafficked by him. Specifically, the People identify the first time she returned to Colombia, the second incident when she was imprisoned for one year and the third incident when she was deported to Colombia following her incarceration from 1994 to 1997. In each incident, the People assert that defendant voluntarily returned to C and therefore was not under his control. The People also note that in her final case, the court received letters from defendant's children asking for leniency for her and C, a letter from her store employer and her church. The People observe that trafficking victims do not typically work at sportswear stores or freely attend church.

At the hearing and by sworn affidavit M. D. A. testified that from November 1981 to about 1983 she traveled to Colombia with the permission of her trafficker to visit her sick mother. Her trafficker agreed to permit her to leave only for 20 days on condition that she return with drugs for him. Defendant left the residence that he arranged for her where he could monitor her and instead she stayed with family in abject poverty and threats of gang violence for about two years. Finally, defendant asked for help from E and C to return to the United States because she had no one else to ask and she continued to live in dire poverty. The record is not clear regarding who cared for her first son born in 1982 at this time. When she returned to New York, however, she did attempt to evade her trafficker and his associates and started working in a coffee shop. When C eventually found her in Queens County, he proceeded to punch her, causing a black eye and he forced her to resume working for him selling drugs and repay her purported debts to him.

Defendant was incarcerated for about one year in 1987 to 1988. Her son was born in March 1987 while she was still incarcerated. When she was released with a baby she had no resources, no help and nowhere to go but back to C. Defendant was again incarcerated from 1995 to 1997. She was then deported to Colombia where C had already sent her daughter without her knowledge or consent. In about 1999 she managed to return to New York with her daughter with C's help because he had control over her sons and she felt compelled to be with them. Even at the time of her arrest in 2004, she was dependent on C to provide $20 for breakfast for her children.

Regarding the presumption created under CPL 440.10 (1) (i) (i), based on Ms. Locklear's testimony, the court declines to find generally that OTDA human trafficking designations cannot presumptively establish that a movant was a victim of sex or labor trafficking given that many types of agencies, including law enforcement and prosecutors with disinterested investigatory authority, may refer victims for OTDA benefits. The court appreciates that DCJS's review of referral applications is limited to the facts provided by the referring agency and it lacks independent investigatory authority. Here the referral was made by defense counsel and therefore the presumptive value of the OTDA designation depends on this court's assessment of the facts supporting defendant's motion for vacatur relief. In this case, the court finds the facts supporting defendant's assertion that she was a victim of labor trafficking by forced criminality compelling.

The court finds that the defendant's testimony at the hearing was credible. The court further agrees with Ms. Abadi's expert opinion that M. D. A. was trauma bonded to her trafficker C. Ms. Abadi testified that a trauma bond is a special type of connection between the trafficker and the survivor created in a relationship that involves both acts of violence and punishment and [*15]acts of kindness toward the victim. The victim tries to survive by establishing a connection with the abuser. The trauma bond is very difficult to break, and people will separate and return to this power dynamic.^[FN18]

[T]he most common meaning of trauma bonding is when a trafficker uses rewards and punishments within cycles of abuse to foster a powerful emotional connection with the victim. Traffickers may take on a role of protector to maintain control of the victim, create confusion, and develop a connection or attachment, which may include the victim feeling a sense of loyalty to or love for the trafficker. This connection, or traumatic bond, becomes especially intense when fear of the trafficker is paired with gratitude for any kindness shown. Additionally, trauma bonding, including in cases of trafficking, may occur within familial relationships in which the perpetrator could even be a parent. . . Psychological coercion may increase the likelihood of trauma bonding. When a victim perceives a threat to their physical and psychological survival at the hands of their trafficker, trauma bonding may occur. Traffickers may isolate and threaten victims, induce exhaustion, and interfere with their believed or real ability to escape. A victim may eventually feel helpless and respond to any form of "help" or "kindness" from their trafficker with gratitude and attachment in order to survive. . . Stages of "relapses" wherein the victim returns to the trafficker should therefore be considered in treatment planning.^[FN19]

The court finds that over the course of nearly twenty years defendant forged a trauma bond with her trafficker to survive his demands to engage in labor trafficking and his manipulation of her trauma through abuse and control, including control over access to her children. This connection, also known as trauma-coerced attachment,

can lead to the survivor taking responsibility for the abuser's crimes and even protecting them from legal or social repercussions. This type of attachment can continue even after the relationship between survivor and abuser has ended and can result in behavior that is difficult to predict and understand by others, including healthcare providers. . . Survivors experiencing trauma-coerced attachment are more likely to return to their captors and/or return to the trafficking lifestyle.^[FN20]

The facts before the court establish that M. D. A.'s trafficker combined acts of kindness by removing her from the brothel, providing housing, supplying her addiction and providing a caretaker for her children with acts of punishment, brutality, and rape to traumatize defendant into forging a trauma bond with him that gave her trafficker control over all aspects of her life. In her isolation and penury she repeatedly turned to her trafficker for financial help, when she needed to travel to Colombia or feed her children. In return she sold narcotics for him. The first time she attempted to flee, the attempt failed when he found and punished her. Thereafter, she succumbed to his domineering control and bonded to survive. This trauma bond explains why defendant returned to her trafficker after her second incarceration and periods out of the country.

The court credits the testimony provided by the defendant and concludes that she was a victim of sex and labor trafficking for nearly twenty years and that her convictions at issue in this hearing were the result of forced criminality at the hands of her trafficker. Under all of the circumstances presented by the parties, the court finds that her failed attempts to escape, her lack of education, immigration status and economic resources together with the ongoing tools of control applied by C, including violence, threats of immigration and police action, purported indebtedness, drug addiction and control over access to her three young children explain why she was unable to break free of her trafficker until both she and her trafficker were convicted and incarcerated in 2005.

Based upon the foregoing, it is hereby

ORDERED that defendant's motion for relief under CPL 440.10 (1) (i) is granted in its entirety, the judgments of conviction are vacated on the merits and the accusatory instruments dismissed in each case under CPL 440.10 (6) because defendant's participation in the offenses charged was a result of having been a victim of trafficking, and it is further

ORDERED that the record of each case shall be sealed and the clerk of the court shall immediately notify the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies that each case has been terminated in favor of the accused and that the record of each case shall be sealed under CPL 160.50 (1) and (3) (f).

This opinion constitutes the decision and order of the court.