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

                                  1070

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 7, 2009
                               ___________

Introduced  by  M.  of  A.  DESTITO, MAYERSOHN, ABBATE, KOON, GABRYSZAK,
  CUSICK, FIELDS, SEMINERIO, PHEFFER,  CYMBROWITZ,  BROOK-KRASNY,  TOWN-
  SEND,  KOLB,  CALHOUN, FINCH, GIGLIO -- Multi-Sponsored by -- M. of A.
  BACALLES, BARCLAY, BUTLER, CONTE, CROUCH, DUPREY, McDONOUGH, McKEVITT,
  MOLINARO, RABBITT, SALADINO, SPANO, TOBACCO, WEISENBERG --  read  once
  and referred 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  765
of the laws of 2005, the section heading as amended by chapter 93 of the
laws of 2006, 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

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

                                                           LBD03659-02-9

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in  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 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 imprisonment 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.
  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 765 of the laws of 2005, 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
procedures  provided  by  law  for imposing a sentence for such crime. A
defendant must be sentenced to life  imprisonment  without  parole  upon

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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 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 SUBDI-
VISION 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
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

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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.