S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6114
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 28, 2019
                                ___________
 
 Introduced  by  M.  of  A.  DeSTEFANO  --  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 482
 of the laws of 2009, is amended to read as follows:
 § 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),  (II-A)
 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD10135-01-9

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 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.
   §  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), (II-A) OR (III) OF PARAGRAPH (A) OF  SUBDIVISION
 ONE OF SECTION 125.27 OF THIS CHAPTER, the sentence shall be life impri-
 sonment  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),
 (II-A) or (iii) of paragraph (a) of subdivision one and paragraph (b) of
 subdivision one of section 125.27 of this chapter  or  attempted  aggra-
 vated  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.
   §  3.  Subdivision  5 of section 70.00 of the penal law, as amended by
 section 40-a of part WWW of chapter 59 of the laws of 2017,  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 without
 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

 A. 6114                             3
 
 defendant  who  was  eighteen  years  of age or older at the time of the
 commission of the crime 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 chemi-
 cal 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 who was seven-
 teen years of age or younger at the time of the commission of the  crime
 may  be  sentenced, in accordance with law, to the applicable indetermi-
 nate sentence with a maximum term of life imprisonment. 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 subdivision one of section 125.26 of this chapter. A  defend-
 ant 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), (II-A) OR (III) OF PARA-
 GRAPH (A) OF SUBDIVISION ONE OF SECTION 125.27 OF THIS CHAPTER  AND  THE
 SENTENCE OF DEATH IS NOT IMPOSED.
   § 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), (II-A) OR (III)
 OF PARAGRAPH (A) OF SUBDIVISION ONE OF section 125.27 of the penal  law,
 the  court  shall  promptly  conduct a separate sentencing proceeding to
 determine 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. 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), (II-A) 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

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 between twenty and twenty-five years and a maximum term of life. Follow-
 ing 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].
   (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 PART SHALL GOVERN THE DELIBERATIONS OF THE JURY.
   §  5.  This  act  shall  take  effect  immediately  and shall apply to
 offenses committed on or after such effective date.