S T A T E O F N E W Y O R K
________________________________________________________________________
8390--A
2011-2012 Regular Sessions
I N A S S E M B L Y
June 15, 2011
___________
Introduced by M. of A. MURRAY -- read once and referred to the Committee
on Codes -- recommitted to the Committee on Codes in accordance with
Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
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.
LBD10638-02-2
A. 8390--A 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
A. 8390--A 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
A. 8390--A 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.