S T A T E O F N E W Y O R K
________________________________________________________________________
1452
2009-2010 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 7, 2009
___________
Introduced by M. of A. WRIGHT, O'DONNELL, ESPAILLAT, KAVANAGH -- Multi-
Sponsored by -- M. of A. GOTTFRIED, GREENE -- read once and referred
to the Committee on Codes
AN ACT to amend the penal law and the criminal procedure law, in
relation to eliminating the imposition of the death penalty; and to
repeal certain provisions of the criminal procedure law, the judiciary
law, the county law, the correction law and the executive law relating
to the imposition of the death penalty
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 and 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 accordance 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 section 125.26 of this chapter, the court shall sentence the defend-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00134-01-9
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ant 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 biolog-
ical 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 section 125.27 of this chapter such mini-
mum 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, 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. Paragraph (e) of subdivision 5 of section 220.10 of the criminal
procedure law is REPEALED.
S 4. Subparagraph (vii) of paragraph (b) of subdivision 3 of section
220.30 of the criminal procedure law is REPEALED.
S 5. Sections 250.40, 270.16, 270.55, 400.27, 450.70 and 450.80 of the
criminal procedure law are REPEALED.
S 6. Paragraph (f) of subdivision 1 of section 270.20 of the criminal
procedure law is REPEALED.
S 7. Section 270.30 of the criminal procedure law, as amended by chap-
ter 1 of the laws of 1995, is amended to read as follows:
S 270.30 Trial jury; alternate jurors.
[1.] Immediately after the last trial juror is sworn, the court may in
its discretion direct the selection of one or more, but not more than
six additional jurors to be known as "alternate jurors"[, except that,
in a prosecution under section 125.27 of the penal law, the court may,
in its discretion, direct the selection of as many alternate jurors as
the court determines to be appropriate]. Alternate jurors must be drawn
in the same manner, must have the same qualifications, must be subject
to the same examination and challenges for cause and must take the same
oath as the regular jurors. After the jury has retired to deliberate,
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the court must either (1) with the consent of the defendant and the
people, discharge the alternate jurors or (2) direct the alternate
jurors not to discuss the case and must further direct that they be kept
separate and apart from the regular jurors.
[2. In any prosecution in which the people seek a sentence of death,
the court shall not discharge the alternate jurors when the jury retires
to deliberate upon its verdict and the alternate jurors, in the
discretion of the court, may be continuously kept together under the
supervision of an appropriate public servant or servants until such time
as the jury returns its verdict. If the jury returns a verdict of guilty
to a charge for which the death penalty may be imposed, the alternate
jurors shall not be discharged and shall remain available for service
during any separate sentencing proceeding which may be conducted pursu-
ant to section 400.27.]
S 8. Section 310.80 of the criminal procedure law, as amended by chap-
ter 1 of the laws of 1995, is amended to read as follows:
S 310.80 Recording and checking of verdict and polling of jury.
After a verdict has been rendered, it must be recorded on the minutes
and read to the jury, and the jurors must be collectively asked whether
such is their verdict. Even though no juror makes any declaration in the
negative, the jury must, if either party makes such an application, be
polled and each juror separately asked whether the verdict announced by
the foreman is in all respects his verdict. If upon either the collec-
tive or the separate inquiry any juror answers in the negative, the
court must refuse to accept the verdict and must direct the jury to
resume its deliberation. If no disagreement is expressed, the jury must
be discharged from the case[, except as otherwise provided in section
400.27].
S 9. Subdivision 1 of section 440.20 of the criminal procedure law, as
amended by chapter 1 of the laws of 1995, is amended to read as follows:
1. At any time after the entry of a judgment, the court in which the
judgment was entered may, upon motion of the defendant, set aside the
sentence upon the ground that it was unauthorized, illegally imposed or
otherwise invalid as a matter of law. [Where the judgment includes a
sentence of death, the court may also set aside the sentence upon any of
the grounds set forth in paragraph (b), (c), (f), (g) or (h) of subdivi-
sion one of section 440.10 as applied to a separate sentencing proceed-
ing under section 400.27, provided, however, that to the extent the
ground or grounds asserted include one or more of the aforesaid para-
graphs of subdivision one of section 440.10, the court must also apply
subdivisions two and three of section 440.10, other than paragraph (d)
of subdivision two of such section, in determining the motion. In the
event the court enters an order granting a motion to set aside a
sentence of death under this section, the court must either direct a new
sentencing proceeding in accordance with section 400.27 or, to the
extent that the defendant cannot be resentenced to death consistent with
the laws of this state or the constitution of this state or of the
United States, resentence the 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. Upon granting the motion upon any of the grounds set
forth in the aforesaid paragraphs of subdivision one of section 440.10
and setting aside the sentence, the court must afford the people a
reasonable period of time, which shall not be less than ten days, to
determine whether to take an appeal from the order setting aside the
sentence of death. The taking of an appeal by the people stays the
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effectiveness of that portion of the court's order that directs a new
sentencing proceeding.]
S 10. Subdivision 10 of section 450.20 of the criminal procedure law
is REPEALED.
S 11. Subdivision 3 of section 460.40 of the criminal procedure law is
REPEALED.
S 12. Section 470.30 of the criminal procedure law, as amended by
chapter 1 of the laws of 1995, is amended to read as follows:
S 470.30 Determination by court of appeals of appeals taken directly
thereto from judgments and orders of criminal courts.
[1.] Wherever appropriate, the rules set forth in sections 470.15 and
470.20, governing the consideration and determination by intermediate
appellate courts of appeals thereto from judgments and orders of crimi-
nal courts, and prescribing their scope of review and the corrective
action to be taken by them upon reversal or modification, apply equally
to the consideration and determination by the court of appeals of
appeals taken directly thereto, [pursuant to sections 450.70 and
450.80,] from judgments and orders of superior criminal courts.
[2. Whenever a sentence of death is imposed, the judgment and sentence
shall be reviewed on the record by the court of appeals. Review by the
court of appeals pursuant to subdivision one of section 450.70 may not
be waived.
3. With regard to the sentence, the court shall, in addition to exer-
cising the powers and scope of review granted under subdivision one of
this section, determine:
(a) whether the sentence of death was imposed under the influence of
passion, prejudice, or any other arbitrary or legally impermissible
factor including whether the imposition of the verdict or sentence was
based upon the race of the defendant or a victim of the crime for which
the defendant was convicted;
(b) whether the sentence of death is excessive or disproportionate to
the penalty imposed in similar cases considering both the crime and the
defendant. In conducting such review the court, upon request of the
defendant, in addition to any other determination, shall review whether
the sentence of death is excessive or disproportionate to the penalty
imposed in similar cases by virtue of the race of the defendant or a
victim of the crime for which the defendant was convicted; and
(c) whether the decision to impose the sentence of death was against
the weight of the evidence.
4. The court shall include in its decision: (a) the aggravating and
mitigating factors established in the record on appeal; and
(b) those similar cases it took into consideration.
5. In addition to exercising any other corrective action pursuant to
subdivision one of this section, the court, with regard to review of a
sentence of death, shall be authorized to:
(a) affirm the sentence of death; or
(b) set the sentence aside and remand the case for resentencing pursu-
ant to the procedures set forth in section 400.27 for a determination as
to whether the defendant shall be sentenced to death, life imprisonment
without parole or to a term of imprisonment for the class A-I felony of
murder in the first degree other than a sentence of life imprisonment
without parole; or
(c) set the sentence aside and remand the case for resentencing by the
court for a determination as to whether the defendant shall be sentenced
to life imprisonment without parole or to a term of imprisonment for the
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class A-I felony of murder in the first degree other than a sentence of
life imprisonment without parole.]
S 13. Sections 35-b and 211-a of the judiciary law are REPEALED.
S 14. Section 707 of the county law is REPEALED.
S 15. Article 22-A of the correction law is REPEALED.
S 16. Section 63-d of the executive law is REPEALED.
S 17. Subdivision 7 of section 837-a of the executive law is REPEALED.
S 18. Section 837-1 of the executive law is REPEALED.
S 19. This act shall take effect immediately and shall be deemed to
have been in full force and effect on and after September 1, 1996.