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

                                  2951

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 22, 2009
                               ___________

Introduced  by  M. of A. O'MARA, TOWNSEND, CALHOUN, KOLB, BURLING, OAKS,
  TEDISCO, BARCLAY -- Multi-Sponsored by -- M. of A.  ALFANO,  BACALLES,
  BALL,  BUTLER, CONTE, CROUCH, DUPREY, ERRIGO, FINCH, HAWLEY, McKEVITT,
  MILLER, MOLINARO, RAIA, REILICH,  THIELE,  WALKER  --  read  once  and
  referred to the Committee on Codes

AN  ACT  to  amend  the  criminal  procedure law, in relation to capital
  punishment

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

  Section  1.  Subdivision 1 of section 400.27 of the criminal procedure
law, as added by chapter 1 of the laws of 1995, is amended  to  read  as
follows:
  1.  Upon  [the] conviction of a defendant for the offense of murder in
the first degree as defined by SUBPARAGRAPHS (I),  (III)  OR  (XIII)  OF
PARAGRAPH (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
imprisonment  without  parole  pursuant  to  subdivision five of section
70.00 of the penal law, 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.  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.
  S  2.  Subdivision 10 of section 400.27 of the criminal procedure law,
as added by chapter 1 of the  laws  of  1995,  is  amended  to  read  as
follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03333-01-9

              

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  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  the  jury  should
consider whether or not a sentence of death should be imposed and wheth-
er  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 twenty 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 deliberations of the jury] WHETHER OR NOT  A  SENTENCE  TO  A
TERM OF IMPRISONMENT WITH A MINIMUM TERM OF TWENTY TO TWENTY-FIVE YEARS,
TO  BE  DETERMINED BY THE COURT, AND A MAXIMUM TERM OF LIFE IMPRISONMENT
SHOULD BE IMPOSED.
  (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  DETERMINE
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  3.  Subdivision 11 of section 400.27 of the criminal procedure law,
as added by chapter 1 of the  laws  of  1995,  is  amended  to  read  as
follows:
  11.  (a)  The  jury  may  not direct imposition of a sentence of death
unless it unanimously finds beyond a reasonable doubt that the aggravat-
ing factor or factors substantially outweigh the  mitigating  factor  or
factors established, if any, and unanimously determines that the penalty
of death should be imposed. Any member or members of the jury who find a
mitigating  factor  to have been proven by the defendant by a preponder-
ance of the evidence may consider such factor established regardless  of
the number of jurors who concur that the factor has been established.
  (b)  If  the  jury  directs imposition of [either] a sentence of death
[or], A SENTENCE OF life imprisonment without parole, OR A SENTENCE TO A
TERM OF IMPRISONMENT WITH A MINIMUM TERM OF TWENTY TO TWENTY-FIVE YEARS,
TO BE DETERMINED BY THE COURT, AND A MAXIMUM TERM OF LIFE  IMPRISONMENT,
it  shall specify on the record those mitigating and aggravating factors
considered and those mitigating factors established by the defendant, if
any.
  (c) With respect to a count or concurrent  counts  of  murder  in  the
first  degree,  the court may direct the jury to cease deliberation with
respect to the sentence or sentences to  be  imposed  if  the  jury  has
deliberated  for  an extensive period of time without reaching unanimous
agreement on the sentence or sentences to be imposed and  the  court  is
satisfied  that any such agreement is unlikely within a reasonable time.
The provisions of this paragraph shall apply with respect to consecutive
counts of murder in the first degree. In the event the jury is unable to

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reach unanimous agreement, the court  must  sentence  the  defendant  in
accordance  with  [subdivisions  one  through three] SUBDIVISION FIVE of
section 70.00 of the penal law with respect to any count  or  counts  of
murder in the first degree upon which the jury failed to reach unanimous
agreement as to the sentence to be imposed.
  (d) If the jury unanimously determines that a sentence of death should
be imposed, the court must thereupon impose a sentence of death.  There-
after, however, the court may, upon written motion of the defendant, set
aside the sentence of death upon any of the grounds set forth in section
330.30 OF THIS CHAPTER.  The procedures set forth in sections 330.40 and
330.50  OF  THIS  CHAPTER, as applied to separate sentencing proceedings
under this section, shall govern the motion and the court upon  granting
the motion shall, except as may otherwise be required by subdivision one
of  section  330.50  OF THIS CHAPTER, direct a new sentencing proceeding
pursuant to this section.   Upon granting the motion  upon  any  of  the
grounds  set  forth  in section 330.30 OF THIS CHAPTER 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 effectiveness of that
portion of the court's order that directs a new sentencing proceeding.
  (e) If the jury unanimously determines that a sentence of life  impri-
sonment  without  parole  should  be  imposed,  the court must thereupon
impose a sentence of life imprisonment without parole.
  (E-1) IF THE JURY UNANIMOUSLY DETERMINES THAT A SENTENCE TO A TERM  OF
IMPRISONMENT  WITH  A MINIMUM TERM OF TWENTY TO TWENTY-FIVE YEARS, TO BE
DETERMINED BY THE COURT, AND A MAXIMUM TERM OF LIFE IMPRISONMENT  SHOULD
BE IMPOSED, THE COURT MUST THEREUPON IMPOSE SUCH SENTENCE.
  (f)  Where  a  sentence has been unanimously determined by the jury it
must be recorded on the minutes and read to the  jury,  and  the  jurors
must  be  collectively asked whether such is their sentence. 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 sentence announced by the foreman is in all respects
his or her sentence. If, upon either  the  collective  or  the  separate
inquiry,  any  juror  answers  in the negative, the court must refuse to
accept the sentence and must direct the jury to resume its deliberation.
If no disagreement is expressed, the jury must be  discharged  from  the
case.
  S  4.  Severability.  If any clause, sentence, paragraph, subdivision,
section or part of this act shall be adjudged by any court of  competent
jurisdiction  to  be invalid, such judgment shall not affect, impair, or
invalidate the remainder thereof, but shall be confined in its operation
to the clause, sentence, paragraph, subdivision, section or part thereof
directly involved in the controversy in which such judgment  shall  have
been rendered. It is hereby declared to be the intent of the legislature
that  this  act  would have been enacted even if such invalid provisions
had not been included therewith.
  S 5. This act shall take effect immediately, and shall apply to crimes
committed prior to, on or after the effective date of this act.