senate Bill S645

Provides that sentence for commission of certain provisions of murder in the first degree is death or life without parole

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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  • 05 / Jan / 2011
    • REFERRED TO CODES
  • 04 / Jan / 2012
    • REFERRED TO CODES

Summary

Provides that the sentence for committing murder in the first degree when the victim is a police officer, peace officer or correction officer shall be either death or life imprisonment without parole.

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Bill Details

See Assembly Version of this Bill:
A8390A
Versions:
S645
Legislative Cycle:
2011-2012
Current Committee:
Senate Codes
Law Section:
Penal Law
Laws Affected:
Amd §§60.06 & 70.00, Pen L; amd §400.27, CP L
Versions Introduced in Previous Legislative Cycles:
2009-2010: S2747, A1070
2011-2012: A871
2007-2008: A7799

Sponsor Memo

BILL NUMBER:S645

TITLE OF BILL:
An act
to amend the penal law and the criminal procedure law, in relation to
sentencing for the commission of certain provisions of murder in the
first degree

PURPOSE:
To reinstate the death penalty for the intentional murder of a police
officer, peace officer or an employee of the Department of
Correctional Services.

SUMMARY OF PROVISIONS:
Section 1 sets forth the legislative intent to address the holding of
the New York Court of Appeals in 2004 in the case of People v.
LaValle so as to reinstate the death penalty for those who
intentionally murder a police officer, peace officer or an employee
of the Department of Correctional Services.

Sections 2, 3 and 4 amend provisions of current law to provide that
any person who is convicted of the intentional murder of a police
officer, peace officer or an employee of the Department of
Correctional Services pursuant to provisions of current law defining
the crime of murder 1st degree shall, if the jury elects not to
impose the sentence of death, be sentenced to life imprisonment
without parole.

Section 5 of the bill provides that the legislation shall take effect
immediately and shall apply to acts committed on and after such date.

EXISTING LAW:
In 2004 the Court of Appeals in the case of PEOPLE vs. LAVALLE held
that the jury instruction in a capital case which informs the jury
deadlock the defendant is automatically sentenced to an indeterminate
sentence with a minimum term of between 20 and 25 years and a
maximum term of life imprisonment, impermissibly inserts concern
regarding the defendant's future dangerousness into the jury
deliberations, and thereby potentially coerces a juror, who might
prefer a sentence of life without parole, to vote instead for a
sentence of death so as to
to preclude the defendant's future release. The Court of
Appeal did not hold that the death penalty was inappropriate for
cases in which
aggravating circumstances which are grounds for death penalty
are present, but rather held that the procedure for imposing the death
penalty was flawed.

Chapter 765 of the laws of 2005 enacted the crimes against police
officers act. Part of that law created the new crime of aggravated
murder which is deemed to occur when a person intentionally murders a
police officer, peace officer or an employee of the Department of
Correctional Services. The only sentence which may be imposed for the
crime of aggravated murder is life imprisonment without parole.
Because of the holding in the LaValle case current law does not allow
the imposition of the death penalty upon a person who is convicted of


intentionally murdering a police officer, peace officer or an
employee of the Department of Correctional Services.

JUSTIFICATION:

In 2004 the New York Court of Appeals in the case of People v.
LaValle ruled that the procedure for imposing the death penalty was
flawed. As a result of this ruling, prosecutors have been unable to
seek imposition of the death
death penalty when a law enforcement officer is murdered while
performing his duties. Since the ruling of the Court of Appeals
in the La Valle case, there have been eight police officers in this
state intentionally murdered. Seven of these murders have
occurred after this legislation enacted a sentence of life without
parole for those who kill law enforcement officers. Other officers
have been seriously wounded. The need is clear that a deterrence
is needed to address this trend of aggression toward those men and
women who put their lives at risk while protecting the citizens of
this state.

LEGISLATIVE HISTORY:
S.6414 of 2008, Passed Senate
S.2747 of 2010, Referred to Codes

FISCAL IMPLICATIONS:
None.

LOCAL FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
Immediately and applicable to acts committed on and after such date.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   645

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by Sens. GOLDEN, LAVALLE, MAZIARZ, RANZENHOFER -- read twice
  and ordered printed, and when printed to be committed to the Committee
  on Codes

AN ACT to amend the  penal  law  and  the  criminal  procedure  law,  in
  relation  to  sentencing  for  the commission of certain provisions of
  murder in the first degree

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Section 60.06 of the penal law, as amended by chapter 482
of the laws of 2009, is amended to read as follows:
S 60.06 Authorized disposition; murder in the  first  degree  offenders;
          aggravated  murder  offenders;  certain  murder  in the second
          degree  offenders;  certain  terrorism   offenders;   criminal
          possession  of  a  chemical weapon or biological weapon offen-
          ders; criminal use of a chemical weapon or  biological  weapon
          offenders.
  When a defendant is convicted of murder in the first degree as defined
in  section  125.27 of this chapter, the court shall, in accordance with
the provisions of section 400.27 of the criminal procedure law, sentence
the defendant to death, to life imprisonment without parole  in  accord-
ance  with subdivision five of section 70.00 of this title, or to a term
of imprisonment for a class A-I felony other than  a  sentence  of  life
imprisonment without parole, in accordance with subdivisions one through
three  of  section  70.00  of  this title. When a person is convicted of
murder in the second degree as defined in subdivision  five  of  section
125.25  of  this chapter or of the crime of aggravated murder as defined
in subdivision one of section 125.26 of this chapter, OR OF THE CRIME OF
MURDER IN THE FIRST DEGREE AS DEFINED  IN  SUBPARAGRAPH  (I),  (II),  OR
(III)  OF  PARAGRAPH  (A)  OF  SUBDIVISION ONE OF SECTION 125.27 OF THIS
CHAPTER AND THE SENTENCE  OF  DEATH  IS  NOT  IMPOSED  the  court  shall

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01828-01-1

S. 645                              2

sentence the defendant to life imprisonment without parole in accordance
with  subdivision  five of section 70.00 of this title. When a defendant
is convicted of the crime of terrorism as defined in section  490.25  of
this  chapter,  and  the  specified offense the defendant committed is a
class A-I felony offense, or when a defendant is convicted of the  crime
of  criminal possession of a chemical weapon or biological weapon in the
first degree as defined in section 490.45 of this  chapter,  or  when  a
defendant is convicted of the crime of criminal use of a chemical weapon
or biological weapon in the first degree as defined in section 490.55 of
this  chapter,  the court shall sentence the defendant to life imprison-
ment without parole in accordance with subdivision five of section 70.00
of this title; provided, however, that nothing  in  this  section  shall
preclude  or  prevent  a  sentence  of  death when the defendant is also
convicted of murder in the first degree as defined in section 125.27  of
this  chapter.  When  a  defendant  is convicted of aggravated murder as
defined in subdivision two of section 125.26 of this chapter, the  court
shall sentence the defendant to life imprisonment without parole or to a
term  of  imprisonment  for  a class A-I felony other than a sentence of
life imprisonment without parole, in accordance  with  subdivisions  one
through three of section 70.00 of this title.
  S  2.  Subparagraph  (i)  of paragraph (a) of subdivision 3 of section
70.00 of the penal law, as amended by chapter 107 of the laws  of  2006,
is amended to read as follows:
  (i) For a class A-I felony, such minimum period shall not be less than
fifteen  years  nor more than twenty-five years; provided, however, that
(A) where a sentence, other than a sentence of death or  life  imprison-
ment  without parole, is imposed upon a defendant convicted of murder in
the first degree as defined in  SUBPARAGRAPH  (IV),  (V),  (VI),  (VII),
(VIII), (IX), (X), (XI), (XII) OR (XIII) OF PARAGRAPH (A) OF SUBDIVISION
ONE  OF  section 125.27 of this chapter such minimum period shall be not
less than twenty years nor more than twenty-five years, and, (B) where a
sentence is imposed upon a defendant convicted of murder in  the  second
degree  as defined in subdivision five of section 125.25 of this chapter
or convicted of aggravated murder as defined in section 125.26  of  this
chapter, OR WHERE A SENTENCE, OTHER THAN A SENTENCE OF DEATH, IS IMPOSED
UPON  A  DEFENDANT CONVICTED OF MURDER IN THE FIRST DEGREE AS DEFINED IN
SUBPARAGRAPH (I), (II) OR (III) OF PARAGRAPH (A) OF SUBDIVISION  ONE  OF
SECTION  125.27 OF THIS CHAPTER, the sentence shall be life imprisonment
without parole, and, (C) where a sentence is imposed  upon  a  defendant
convicted  of attempted murder in the first degree as defined in article
one hundred ten of this chapter and subparagraph (i), (ii) or  (iii)  of
paragraph (a) of subdivision one and paragraph (b) of subdivision one of
section 125.27 of this chapter or attempted aggravated murder as defined
in  article  one  hundred ten of this chapter and section 125.26 of this
chapter such minimum period shall be not less than twenty years nor more
than forty years.
  S 3. Subdivision 5 of section 70.00 of the penal law,  as  amended  by
chapter 482 of the laws of 2009, is amended to read as follows:
  5.   Life  imprisonment  without  parole.  Notwithstanding  any  other
provision of law, a defendant sentenced  to  life  imprisonment  without
parole  shall  not  be  or  become  eligible  for  parole or conditional
release. For purposes of commitment and custody, other than  parole  and
conditional  release,  such sentence shall be deemed to be an indetermi-
nate sentence.  A defendant may be sentenced to life imprisonment  with-
out  parole  upon conviction for the crime of murder in the first degree
as defined in section 125.27 of this chapter and in accordance with  the

S. 645                              3

procedures  provided  by  law  for imposing a sentence for such crime. A
defendant must be sentenced to life  imprisonment  without  parole  upon
conviction  for  the  crime of terrorism as defined in section 490.25 of
this  chapter,  where the specified offense the defendant committed is a
class A-I felony; the crime of criminal possession of a chemical  weapon
or biological weapon in the first degree as defined in section 490.45 of
this  chapter;  or  the  crime  of  criminal use of a chemical weapon or
biological weapon in the first degree as defined in  section  490.55  of
this  chapter; provided, however, that nothing in this subdivision shall
preclude or prevent a sentence of  death  when  the  defendant  is  also
convicted  of  the  crime  of  murder  in the first degree as defined in
section 125.27 of this chapter.  A defendant must be sentenced  to  life
imprisonment  without  parole upon conviction for the crime of murder in
the second degree as defined in subdivision five of  section  125.25  of
this  chapter or for the crime of aggravated murder as defined in subdi-
vision one of section  125.26  of  this  chapter.  A  defendant  may  be
sentenced  to  life  imprisonment without parole upon conviction for the
crime of aggravated murder as defined  in  subdivision  two  of  section
125.26 of this chapter OR FOR THE CRIME OF MURDER IN THE FIRST DEGREE AS
DEFINED  IN SUBPARAGRAPH (I), (II) OR (III) OF PARAGRAPH (A) OF SUBDIVI-
SION ONE OF SECTION 125.27 OF THIS CHAPTER AND THE SENTENCE OF DEATH  IS
NOT IMPOSED.
  S 4. Subdivisions 1 and 10 of section 400.27 of the criminal procedure
law,  as  added by chapter 1 of the laws of 1995, are amended to read as
follows:
  1. Upon [the] conviction of a defendant for the offense of  murder  in
the  first degree as defined by SUBPARAGRAPH (I), (II) OR (III) OF PARA-
GRAPH (A) OF SUBDIVISION ONE OF section 125.27 of  the  penal  law,  the
court  shall promptly conduct a separate sentencing proceeding to deter-
mine whether the defendant shall be sentenced to death or to life impri-
sonment without parole pursuant to subdivision five of section 70.00  of
the  penal  law. Nothing in this section shall be deemed to preclude the
people at any time from determining that the death penalty shall not  be
sought  in  a  particular  case,  in  which case the separate sentencing
proceeding shall not be  conducted  and  the  court  may  sentence  such
defendant  to  life  imprisonment  without  parole  [or to a sentence of
imprisonment for the class A-I felony of  murder  in  the  first  degree
other than a sentence of life imprisonment without parole].
  10.  (A)  At  the  conclusion  of all the evidence, the people and the
defendant may present argument in summation for or against the  sentence
sought by the people. The people may deliver the first summation and the
defendant  may  then  deliver  the last summation. Thereafter, the court
shall deliver a charge to the jury on any  matters  appropriate  in  the
circumstances. In its charge, the court must instruct the jury that with
respect  to  each  count  of  murder  in the first degree, AS DEFINED IN
SUBPARAGRAPH (I), (II) OR (III) OF PARAGRAPH (A) OF SUBDIVISION  ONE  OF
SECTION 125.27 OF THE PENAL LAW, the jury should consider whether or not
a  sentence  of death should be imposed and whether or not a sentence of
life imprisonment without parole should be imposed[, and that  the  jury
must  be  unanimous with respect to either sentence. The court must also
instruct the jury that in the event the jury fails  to  reach  unanimous
agreement  with  respect  to  the  sentence, the court will sentence the
defendant to a term of imprisonment with a minimum term of between twen-
ty and twenty-five years and a  maximum  term  of  life.  Following  the
court's  charge,  the  jury  shall retire to consider the sentence to be
imposed. Unless inconsistent with the provisions of  this  section,  the

S. 645                              4

provisions of sections 310.10, 310.20 and 310.30 shall govern the delib-
erations of the jury].
  (B)  THE  COURT MUST INSTRUCT THE JURY THAT THE JURY MUST BE UNANIMOUS
WITH RESPECT TO THE SENTENCE TO BE IMPOSED. THE COURT MUST ALSO INSTRUCT
THE JURY THAT IN THE EVENT THE JURY FAILS TO REACH  UNANIMOUS  AGREEMENT
WITH RESPECT TO THE SENTENCE, THE COURT WILL SENTENCE THE DEFENDANT TO A
TERM OF LIFE IMPRISONMENT WITHOUT PAROLE.
  (C)  FOLLOWING  THE  COURT'S CHARGE, THE JURY SHALL RETIRE TO CONSIDER
THE SENTENCE TO BE IMPOSED. UNLESS INCONSISTENT WITH THE  PROVISIONS  OF
THIS  SECTION,  THE  PROVISIONS OF SECTIONS 310.10, 310.20 AND 310.30 OF
THIS CHAPTER SHALL GOVERN THE DELIBERATIONS OF THE JURY.
  S 5. This act  shall  take  effect  immediately  and  shall  apply  to
offenses committed on or after such effective date.

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