S T A T E O F N E W Y O R K
________________________________________________________________________
5007
2011-2012 Regular Sessions
I N A S S E M B L Y
February 10, 2011
___________
Introduced by M. of A. MAYERSOHN, N. RIVERA, ABBATE, CLARK, COLTON,
GALEF, NOLAN, PHEFFER, J. RIVERA, WEISENBERG, GANTT -- Multi-Sponsored
by -- M. of A. ARROYO, BARCLAY, BENEDETTO, BOYLAND, BURLING, BUTLER,
CALHOUN, CONTE, CROUCH, CUSICK, CYMBROWITZ, DESTITO, DINOWITZ, ENGLE-
BRIGHT, FINCH, FITZPATRICK, GUNTHER, HAYES, HIKIND, HOOPER, HOYT,
JACOBS, KOLB, LATIMER, LAVINE, V. LOPEZ, LUPARDO, MAGEE, MAGNARELLI,
MARKEY, J. MILLER, MOLINARO, MORELLE, OAKS, ORTIZ, PAULIN, PERRY,
PRETLOW, RABBITT, RAIA, REILICH, REILLY, SALADINO, SAYWARD, SCHIMMING-
ER, SCHROEDER, SWEENEY, TEDISCO, THIELE, TOWNS, WEPRIN -- read once
and referred to the Committee on Codes
AN ACT to amend the penal law, the criminal procedure law, the judiciary
law and the vehicle and traffic law, in relation to establishing the
offense of aggravated murder of a child and making technical
corrections relating to aggravated murder; to amend the estates,
powers and trusts law, the executive law and the social services law,
in relation to aggravated murder of a child; and to repeal subdivision
5 of section 125.25 of the penal law relating to the murder of a
person under 14 years of age while in the course of committing certain
sex offenses
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Short title. This act shall be known and may be cited as
"Nixzmary Brown's Law".
S 2. 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; AGGRAVATED MURDER OF CHILD OFFEN-
DERS; certain murder in the second degree offenders; certain
terrorism offenders; criminal possession of a chemical weapon
or biological weapon offenders; criminal use of a chemical
weapon or biological weapon offenders.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04616-01-1
A. 5007 2
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
AGGRAVATED MURDER OF A CHILD AS DEFINED IN SECTION 125.28 OF THIS CHAP-
TER, 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 subdi-
vision 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 imprison-
ment 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 3. 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 OR CONVICTED OF AGGRAVATED MURDER OF A
CHILD AS DEFINED IN SECTION 125.28 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 subpar-
agraph (i), (ii) or (iii) of paragraph (a) of subdivision one and para-
graph (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 OR ATTEMPTED AGGRAVATED
MURDER OF A CHILD AS DEFINED IN ARTICLE ONE HUNDRED TEN OF THIS CHAPTER
AND SECTION 125.28 OF THIS CHAPTER such minimum period shall be not less
than twenty years nor more than forty years.
A. 5007 3
S 4. 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
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 OR FOR THE CRIME OF AGGRA-
VATED MURDER OF A CHILD AS DEFINED IN SECTION 125.28 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.
S 5. Subdivision 1 of section 110.05 of the penal law, as amended by
chapter 93 of the laws of 2006, is amended to read as follows:
1. Class A-I felony when the crime attempted is the A-I felony of
murder in the first degree, aggravated murder as defined in subdivision
one of section 125.26 of this chapter, AGGRAVATED MURDER OF A CHILD,
criminal possession of a controlled substance in the first degree, crim-
inal sale of a controlled substance in the first degree, criminal
possession of a chemical or biological weapon in the first degree or
criminal use of a chemical or biological weapon in the first degree;
S 6. Section 125.05 of the penal law is amended by adding a new subdi-
vision 4 to read as follows:
4. "PERSON IN A POSITION OF TRUST" MEANS ANY PERSON WHO IS CHARGED
WITH ANY DUTY OR RESPONSIBILITY FOR THE HEALTH, EDUCATION, WELFARE,
SUPERVISION OR CARE OF ANOTHER PERSON, EITHER INDEPENDENTLY OR THROUGH
ANOTHER PERSON, NO MATTER HOW BRIEF.
S 7. Subdivision 4 of section 125.25 of the penal law, as amended by
chapter 459 of the laws of 2004, is amended to read as follows:
4. Under circumstances evincing a depraved indifference to human life,
and being eighteen years old or more the defendant recklessly engages in
conduct which creates a grave risk of serious physical injury or death
to another person less than eleven years old and thereby causes the
death of such person[; or].
S 8. Subdivision 5 of section 125.25 of the penal law is REPEALED.
S 9. Subparagraph (ix) of paragraph (a) of subdivision 1 of section
125.27 of the penal law, as added by chapter 1 of the laws of 1995, is
amended to read as follows:
A. 5007 4
(ix) prior to committing the killing, the defendant had been convicted
of murder as defined in this section or section 125.25 of this article
OR CONVICTED OF AGGRAVATED MURDER AS DEFINED IN SECTION 125.26 OF THIS
ARTICLE OR CONVICTED OF AGGRAVATED MURDER OF A CHILD AS DEFINED IN
SECTION 125.28 OF THIS ARTICLE, or had been convicted in another juris-
diction of an offense which, if committed in this state, would consti-
tute a violation of [either of such] THE AFOREMENTIONED sections; or
S 10. The penal law is amended by adding a new section 125.28 to read
as follows:
S 125.28 AGGRAVATED MURDER OF A CHILD.
A PERSON IS GUILTY OF AGGRAVATED MURDER OF A CHILD WHEN:
1. BEING EIGHTEEN YEARS OLD OR MORE, WHILE IN THE COURSE OF COMMITTING
RAPE IN THE FIRST, SECOND OR THIRD DEGREE, CRIMINAL SEXUAL ACT IN THE
FIRST, SECOND OR THIRD DEGREE, AGGRAVATED SEXUAL ABUSE IN THE FIRST,
SECOND, THIRD OR FOURTH DEGREE, OR INCEST, AGAINST A PERSON LESS THAN
FOURTEEN YEARS OLD, HE OR SHE INTENTIONALLY CAUSES THE DEATH OF SUCH
PERSON; OR
2. UNDER CIRCUMSTANCES EVINCING A DEPRAVED INDIFFERENCE TO HUMAN LIFE,
AND BEING EIGHTEEN YEARS OLD OR MORE, AND BEING THE PARENT, GUARDIAN OR
OTHER PERSON LEGALLY CHARGED WITH THE CUSTODY OF, OR LEGALLY RESPONSIBLE
FOR THE CARE OF, ANOTHER PERSON LESS THAN FOURTEEN YEARS OLD, OR BEING A
PERSON IN A POSITION OF TRUST OF ANOTHER PERSON LESS THAN FOURTEEN YEARS
OLD, HE OR SHE RECKLESSLY ENGAGES IN CONDUCT WHICH CREATES A GRAVE RISK
OF SERIOUS PHYSICAL INJURY OR DEATH TO SUCH PERSON AND THEREBY CAUSES
THE DEATH OF SUCH PERSON; OR
3. WITH INTENT TO CAUSE THE DEATH OF A PERSON LESS THAN FOURTEEN YEARS
OLD, AND BEING THE PARENT, GUARDIAN OR OTHER PERSON LEGALLY CHARGED WITH
THE CUSTODY OF, OR LEGALLY RESPONSIBLE FOR THE CARE OF, SUCH PERSON, OR
BEING A PERSON IN A POSITION OF TRUST OF SUCH PERSON HE OR SHE INTEN-
TIONALLY CAUSES THE DEATH OF SUCH PERSON.
AGGRAVATED MURDER OF A CHILD IS A CLASS A-I FELONY.
S 11. Paragraph (a) of subdivision 3 of section 30.30 of the criminal
procedure law, as amended by chapter 93 of the laws of 2006, is amended
to read as follows:
(a) Subdivisions one and two do not apply to a criminal action wherein
the defendant is accused of an offense defined in sections 125.10,
125.15, 125.20, 125.25, 125.26 [and], 125.27 AND 125.28 of the penal
law.
S 12. Subdivision 1 of section 180.85 of the criminal procedure law,
as amended by chapter 93 of the laws of 2006, is amended to read as
follows:
1. After arraignment of a defendant upon a felony complaint, other
than a felony complaint charging an offense defined in section 125.10,
125.15, 125.20, 125.25, 125.26 [or], 125.27 OR 125.28 of the penal law,
either party or the local criminal court or superior court before which
the action is pending, on its own motion, may move in accordance with
the provisions of this section for an order terminating prosecution of
the charges contained in such felony complaint on consent of the
parties.
S 13. Paragraph (h) of subdivision 3 of section 190.25 of the criminal
procedure law, as amended by chapter 405 of the laws of 2010, is amended
to read as follows:
(h) A social worker, rape crisis counselor, psychologist or other
professional providing emotional support to a child witness twelve years
old or younger who is called to give evidence in a grand jury proceeding
concerning a crime defined in article one hundred twenty-one, article
A. 5007 5
one hundred thirty, article two hundred sixty, section 120.10, 125.10,
125.15, 125.20, 125.25, 125.26, 125.27, 125.28, 255.25, 255.26 or 255.27
of the penal law provided that the district attorney consents. Such
support person shall not provide the witness with an answer to any ques-
tion or otherwise participate in such proceeding and shall first take an
oath before the grand jury that he or she will keep secret all matters
before such grand jury within his or her knowledge.
S 14. Paragraph (b) of subdivision 8 of section 700.05 of the criminal
procedure law, as amended by chapter 405 of the laws of 2010, is amended
to read as follows:
(b) Any of the following felonies: assault in the second degree as
defined in section 120.05 of the penal law, assault in the first degree
as defined in section 120.10 of the penal law, reckless endangerment in
the first degree as defined in section 120.25 of the penal law, promot-
ing a suicide attempt as defined in section 120.30 of the penal law,
strangulation in the second degree as defined in section 121.12 of the
penal law, strangulation in the first degree as defined in section
121.13 of the penal law, criminally negligent homicide as defined in
section 125.10 of the penal law, manslaughter in the second degree as
defined in section 125.15 of the penal law, manslaughter in the first
degree as defined in section 125.20 of the penal law, murder in the
second degree as defined in section 125.25 of the penal law, murder in
the first degree as defined in section 125.27 of the penal law, AGGRA-
VATED MURDER OF A CHILD AS DEFINED IN SECTION 125.28 OF THE PENAL LAW,
abortion in the second degree as defined in section 125.40 of the penal
law, abortion in the first degree as defined in section 125.45 of the
penal law, rape in the third degree as defined in section 130.25 of the
penal law, rape in the second degree as defined in section 130.30 of the
penal law, rape in the first degree as defined in section 130.35 of the
penal law, criminal sexual act in the third degree as defined in section
130.40 of the penal law, criminal sexual act in the second degree as
defined in section 130.45 of the penal law, criminal sexual act in the
first degree as defined in section 130.50 of the penal law, sexual abuse
in the first degree as defined in section 130.65 of the penal law,
unlawful imprisonment in the first degree as defined in section 135.10
of the penal law, kidnapping in the second degree as defined in section
135.20 of the penal law, kidnapping in the first degree as defined in
section 135.25 of the penal law, labor trafficking as defined in section
135.35 of the penal law, custodial interference in the first degree as
defined in section 135.50 of the penal law, coercion in the first degree
as defined in section 135.65 of the penal law, criminal trespass in the
first degree as defined in section 140.17 of the penal law, burglary in
the third degree as defined in section 140.20 of the penal law, burglary
in the second degree as defined in section 140.25 of the penal law,
burglary in the first degree as defined in section 140.30 of the penal
law, criminal mischief in the third degree as defined in section 145.05
of the penal law, criminal mischief in the second degree as defined in
section 145.10 of the penal law, criminal mischief in the first degree
as defined in section 145.12 of the penal law, criminal tampering in the
first degree as defined in section 145.20 of the penal law, arson in the
fourth degree as defined in section 150.05 of the penal law, arson in
the third degree as defined in section 150.10 of the penal law, arson in
the second degree as defined in section 150.15 of the penal law, arson
in the first degree as defined in section 150.20 of the penal law, grand
larceny in the fourth degree as defined in section 155.30 of the penal
law, grand larceny in the third degree as defined in section 155.35 of
A. 5007 6
the penal law, grand larceny in the second degree as defined in section
155.40 of the penal law, grand larceny in the first degree as defined in
section 155.42 of the penal law, health care fraud in the fourth degree
as defined in section 177.10 of the penal law, health care fraud in the
third degree as defined in section 177.15 of the penal law, health care
fraud in the second degree as defined in section 177.20 of the penal
law, health care fraud in the first degree as defined in section 177.25
of the penal law, robbery in the third degree as defined in section
160.05 of the penal law, robbery in the second degree as defined in
section 160.10 of the penal law, robbery in the first degree as defined
in section 160.15 of the penal law, unlawful use of secret scientific
material as defined in section 165.07 of the penal law, criminal
possession of stolen property in the fourth degree as defined in section
165.45 of the penal law, criminal possession of stolen property in the
third degree as defined in section 165.50 of the penal law, criminal
possession of stolen property in the second degree as defined by section
165.52 of the penal law, criminal possession of stolen property in the
first degree as defined by section 165.54 of the penal law, trademark
counterfeiting in the second degree as defined in section 165.72 of the
penal law, trademark counterfeiting in the first degree as defined in
section 165.73 of the penal law, forgery in the second degree as defined
in section 170.10 of the penal law, forgery in the first degree as
defined in section 170.15 of the penal law, criminal possession of a
forged instrument in the second degree as defined in section 170.25 of
the penal law, criminal possession of a forged instrument in the first
degree as defined in section 170.30 of the penal law, criminal
possession of forgery devices as defined in section 170.40 of the penal
law, falsifying business records in the first degree as defined in
section 175.10 of the penal law, tampering with public records in the
first degree as defined in section 175.25 of the penal law, offering a
false instrument for filing in the first degree as defined in section
175.35 of the penal law, issuing a false certificate as defined in
section 175.40 of the penal law, criminal diversion of prescription
medications and prescriptions in the second degree as defined in section
178.20 of the penal law, criminal diversion of prescription medications
and prescriptions in the first degree as defined in section 178.25 of
the penal law, residential mortgage fraud in the fourth degree as
defined in section 187.10 of the penal law, residential mortgage fraud
in the third degree as defined in section 187.15 of the penal law, resi-
dential mortgage fraud in the second degree as defined in section 187.20
of the penal law, residential mortgage fraud in the first degree as
defined in section 187.25 of the penal law, escape in the second degree
as defined in section 205.10 of the penal law, escape in the first
degree as defined in section 205.15 of the penal law, absconding from
temporary release in the first degree as defined in section 205.17 of
the penal law, promoting prison contraband in the first degree as
defined in section 205.25 of the penal law, hindering prosecution in the
second degree as defined in section 205.60 of the penal law, hindering
prosecution in the first degree as defined in section 205.65 of the
penal law, sex trafficking as defined in section 230.34 of the penal
law, criminal possession of a weapon in the third degree as defined in
subdivisions two, three and five of section 265.02 of the penal law,
criminal possession of a weapon in the second degree as defined in
section 265.03 of the penal law, criminal possession of a weapon in the
first degree as defined in section 265.04 of the penal law, manufacture,
transport, disposition and defacement of weapons and dangerous instru-
A. 5007 7
ments and appliances defined as felonies in subdivisions one, two, and
three of section 265.10 of the penal law, sections 265.11, 265.12 and
265.13 of the penal law, or prohibited use of weapons as defined in
subdivision two of section 265.35 of the penal law, relating to firearms
and other dangerous weapons, or failure to disclose the origin of a
recording in the first degree as defined in section 275.40 of the penal
law;
S 15. Subdivisions 1, 6, 7 and 8 of section 35-b of the judiciary law,
as added by chapter 1 of the laws of 1995, are amended to read as
follows:
1. Notwithstanding any other provision of law to the contrary, in
every criminal action in which a defendant is charged with AGGRAVATED
MURDER AS DEFINED IN SECTION 125.26 OF THE PENAL LAW, murder in the
first degree as defined in section 125.27 of the penal law OR AGGRAVATED
MURDER OF A CHILD AS DEFINED IN SECTION 125.28 OF THE PENAL LAW, or in
any criminal action in which a defendant is charged with murder in the
second degree as defined in section 125.25 of the penal law and the
district attorney confirms upon inquiry by the court that the district
attorney is undertaking an investigation to determine whether the
defendant can or should be charged with AGGRAVATED MURDER AS DEFINED IN
SECTION 125.26 OF THE PENAL LAW, murder in the first degree as defined
in section 125.27 of the penal law OR AGGRAVATED MURDER OF A CHILD AS
DEFINED IN SECTION 125.28 OF THE PENAL LAW and the court determines that
there is a reasonable likelihood the defendant will be so charged, if
the defendant is or becomes financially unable to obtain adequate repre-
sentation or investigative, expert or other reasonably necessary
services at any time either (a) prior to judgment, or (b) after the
entry of a judgment imposing a sentence of death but before final resol-
ution of a direct appeal pursuant to subdivision one of section 450.70
of the criminal procedure law and of an appeal pursuant to subdivision
two or three of section 450.70 of the criminal procedure law from an
order denying an initial post judgment motion pursuant to section 440.10
or 440.20 of the criminal procedure law, the defendant shall be entitled
to the appointment of counsel and investigative, expert and such other
reasonably necessary services in accordance with the provisions of this
section. Prior to the appointment of counsel pursuant to this section,
the court shall determine whether the defendant is or has become finan-
cially unable to obtain adequate representation. In the event such
defendant seeks to file any subsequent motion, he or she shall not be
eligible for the appointment of counsel pursuant to this section.
6. (a) When a defendant has been charged in an accusatory instrument
WITH AGGRAVATED MURDER AS DEFINED IN SECTION 125.26 OF THE PENAL LAW,
with murder in the first degree as defined in section 125.27 of the
penal law, WITH AGGRAVATED MURDER OF A CHILD AS DEFINED IN SECTION
125.28 OF THE PENAL LAW or with murder in the second degree as defined
in section 125.25 of the penal law, the district attorney shall notify
the capital defender office.
(b) The clerk of the superior court wherein a judgment that includes a
sentence of death has been entered and the clerk of the court of appeals
upon an order affirming a judgment that includes a sentence of death
shall notify the capital defender office of the judgment or order.
Notice need not be given when the defendant has retained counsel of his
or her own choosing or when appellate or post-conviction counsel has
already been appointed pursuant to this section and when counsel advises
that he or she will continue to act on the defendant's behalf.
A. 5007 8
(c) Notice to the capital defender office required pursuant to para-
graph (a) or (b) of this subdivision shall consist of telephone, facsim-
ile, E-mail or other prompt electronic means of notification forthwith,
which shall be followed by first class mail notification within two
business days of the charge, sentence or affirmance. The failure to give
notice shall not affect the validity of any indictment, conviction,
judgment or order.
7. Whenever a defendant is charged WITH AGGRAVATED MURDER AS DEFINED
IN SECTION 125.26 OF THE PENAL LAW, with murder in the first degree AS
DEFINED IN SECTION 125.27 OF THE PENAL LAW OR WITH AGGRAVATED MURDER OF
A CHILD AS DEFINED IN SECTION 125.28 OF THE PENAL LAW, or a defendant
has been charged with murder in the second degree as defined in section
125.25 of the penal law and the court determines after confirmation by
the district attorney pursuant to subdivision one of this section that
there is a reasonable likelihood the defendant will be charged with
murder in the first degree and the defendant is financially unable to
obtain counsel as determined by the court and an attorney has not yet
been appointed to represent such defendant pursuant to the provisions of
this section, the capital defender office may provide or arrange to
provide temporary legal representation to the defendant. No arraignment
shall be delayed on account of any representation to be provided or
arranged pursuant to this subdivision. Any temporary representation
provided pursuant to this subdivision shall cease upon the court's
appointment of an attorney pursuant to this section.
8. Whenever prior to entry of judgment a defendant is charged with
AGGRAVATED MURDER, murder in the first degree OR AGGRAVATED MURDER OF A
CHILD, or a defendant has been charged with murder in the second degree
as defined in section 125.25 of the penal law and the court determines
after confirmation by the district attorney pursuant to subdivision one
of this section that there is a reasonable likelihood the defendant will
be charged with murder in the first degree, and the defendant is or
becomes financially unable, as determined by the court, to obtain
adequate investigative, expert or other reasonably necessary services
and the court has not appointed the capital defender office to represent
the defendant, the trial court shall authorize the defendant's attorney
to obtain such services on behalf of the defendant and shall order the
payment of reasonable fees and expenses therefor; provided, however,
that the court shall first find in an ex parte proceeding that such
investigative, expert or other services are reasonably necessary for the
representation of the defendant whether in connection with issues relat-
ing to guilt or sentencing. Upon a finding that timely procurement of
such services could not practicably await prior authorization, the court
may authorize the provision and payment for such services nunc pro tunc.
Whenever a court disapproves, in whole or in part, a request for author-
ization or voucher, the defendant may apply to a justice of an interme-
diate appellate court for an order approving the request or voucher.
S 16. Paragraph (a) of subdivision 4 of section 509-cc of the vehicle
and traffic law, as amended by chapter 93 of the laws of 2006, is
amended to read as follows:
(a) The offenses referred to in subparagraph (ii) of paragraph (a) of
subdivision one and paragraph (a) of subdivision two of this section
that result in permanent disqualification shall include a conviction
under sections 125.12, 125.20, 125.25, 125.26, 125.27, 125.28, 130.30,
130.35, 130.45, 130.50, 130.70, 135.25, 150.20 of the penal law or an
attempt to commit any of the aforesaid offenses under section 110.00 of
the penal law, or any offenses committed under a former section of the
A. 5007 9
penal law which would constitute violations of the aforesaid sections of
the penal law, or any offenses committed outside this state which would
constitute violations of the aforesaid sections of the penal law.
S 17. Section 4-1.6 of the estates, powers and trusts law, as added by
chapter 481 of the laws of 1994, is amended to read as follows:
S 4-1.6 Disqualification of joint tenant in certain instances
Notwithstanding any other provision of law to the contrary, a joint
tenant convicted of murder in the second degree as defined in section
125.25 of the penal law or murder in the first degree as defined in
section 125.27 of the penal law OR AGGRAVATED MURDER OF A CHILD AS
DEFINED IN SECTION 125.28 OF THE PENAL LAW of another joint tenant shall
not be entitled to the distribution of any monies in a joint bank
account created or contributed to by the deceased joint tenant, except
for those monies contributed by the convicted joint tenant.
Upon the conviction of such joint tenant of first or second degree
murder and upon application by the prosecuting attorney, the court, as
part of its sentence, shall issue an order directing the amount of any
joint bank account to be distributed pursuant to the provisions of this
section from the convicted joint tenant and to the deceased joint
tenant's estate. The court and the prosecuting attorney shall each have
the power to subpoena records of a banking institution to determine the
amount of money in such bank account and by whom deposits were made. The
court shall also have the power to freeze such account upon application
by the prosecuting attorney during the pendency of a trial for first or
second degree murder. If, upon receipt of such court orders described in
this section, the banking institution holding monies in such joint
account complies with the terms of the order, such banking institution
shall be held free from all liability for the distribution of such funds
as were in such joint account. In the absence of actual or constructive
notice of such order, the banking institution holding monies in such
account shall be held harmless for distributing the money according to
its ordinary course of business.
For purposes of this section, the term banking institution shall have
the same meaning as provided for in paragraph (b) of subdivision three
of section nine-f of the banking law.
S 18. Paragraph (a) of subdivision 7 of section 995 of the executive
law, as separately amended by chapters 2 and 320 of the laws of 2006, is
amended to read as follows:
(a) sections 120.05, 120.10, and 120.11, relating to assault; sections
125.15 through [125.27] 125.28 relating to homicide; sections 130.25,
130.30, 130.35, 130.40, 130.45, 130.50, 130.65, 130.67 and 130.70,
relating to sex offenses; sections 205.10, 205.15, 205.17 and 205.19,
relating to escape and other offenses, where the offender has been
convicted within the previous five years of one of the other felonies
specified in this subdivision; or sections 255.25, 255.26 and 255.27,
relating to incest, a violent felony offense as defined in subdivision
one of section 70.02 of the penal law, attempted murder in the first
degree, as defined in section 110.00 and section 125.27 of the penal
law, kidnapping in the first degree, as defined in section 135.25 of the
penal law, arson in the first degree, as defined in section 150.20 of
the penal law, burglary in the third degree, as defined in section
140.20 of the penal law, attempted burglary in the third degree, as
defined in section 110.00 and section 140.20 of the penal law, a felony
defined in article four hundred ninety of the penal law relating to
terrorism or any attempt to commit an offense defined in such article
relating to terrorism which is a felony; or
A. 5007 10
S 19. Subparagraph 2 of paragraph (b) of subdivision 3 of section
358-a of the social services law, as added by chapter 7 of the laws of
1999, is amended to read as follows:
(2) the parent of such child has been convicted of (i) AGGRAVATED
MURDER OF A CHILD AS DEFINED IN SECTION 125.28 OR murder in the first
degree as defined in section 125.27 or murder in the second degree as
defined in section 125.25 of the penal law and the victim was another
child of the parent; or (ii) manslaughter in the first degree as defined
in section 125.20 or manslaughter in the second degree as defined in
section 125.15 of the penal law and the victim was another child of the
parent, provided, however, that the parent must have acted voluntarily
in committing such crime;
S 20. Clause (A) of subparagraph (iii) of paragraph (a) of subdivi-
sion 8 of section 384-b of the social services law, as amended by chap-
ter 460 of the laws of 2006, is amended to read as follows:
(A) the parent of such child has been convicted of AGGRAVATED MURDER
OF A CHILD AS DEFINED IN SECTION 125.28, murder in the first degree as
defined in section 125.27, murder in the second degree as defined in
section 125.25, manslaughter in the first degree as defined in section
125.20, or manslaughter in the second degree as defined in section
125.15 OF THE PENAL LAW, and the victim of any such crime was another
child of the parent or another child for whose care such parent is or
has been legally responsible as defined in subdivision (g) of section
one thousand twelve of the family court act, or another parent of the
child, unless the convicted parent was a victim of physical, sexual or
psychological abuse by the decedent parent and such abuse was a factor
in causing the homicide; or has been convicted of an attempt to commit
any of the foregoing crimes, and the victim or intended victim was the
child or another child of the parent or another child for whose care
such parent is or has been legally responsible as defined in subdivision
(g) of section one thousand twelve of the family court act, or another
parent of the child, unless the convicted parent was a victim of phys-
ical, sexual or psychological abuse by the decedent parent and such
abuse was a factor in causing the attempted homicide;
S 21. This act shall take effect on the first of November next
succeeding the date on which it shall have become a law.