LBD10304-05-9
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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.
§ 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, 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.
§ 4. Subparagraph (i) of paragraph b of subdivision 1 of section 70.04
of the penal law, as added by chapter 481 of the laws of 1978, is
amended to read as follows:
(i) The conviction must have been in this state of a class A felony
(other than one defined in article two hundred twenty) or of a violent
felony offense as defined in subdivision one of section 70.02, or of an
offense defined by the penal law in effect prior to September first,
nineteen hundred sixty-seven, which includes all of the essential
elements of any such felony, or in any other jurisdiction of an offense
which includes all of the essential elements of any such felony for
which a sentence to a term of imprisonment in excess of one year [or a
sentence of death was authorized and is authorized in this state irre-
spective of whether such sentence was imposed];
§ 5. Subparagraph (i) of paragraph (b) of subdivision 1 of section
70.06 of the penal law, as amended by chapter 784 of the laws of 1975,
is amended to read as follows:
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(i) The conviction must have been in this state of a felony, or in any
other jurisdiction of an offense for which a sentence to a term of
imprisonment in excess of one year [or a sentence of death was author-
ized and is authorized in this state irrespective of whether such
sentence was imposed];
§ 6. Subparagraph (i) of paragraph (b) of subdivision 1 of section
70.10 of the penal law is amended to read as follows:
(i) that a sentence to a term of imprisonment in excess of one year[,
or a sentence to death, was imposed therefor]; and
§ 7. Paragraph e of subdivision 5 of section 120.40 of the penal law,
as added by chapter 635 of the laws of 1999, is amended to read as
follows:
e. an offense in any other jurisdiction which includes all of the
essential elements of any such crime for which a sentence to a term of
imprisonment in excess of one year [or a sentence of death] was author-
ized and is authorized in this state irrespective of whether such
sentence was imposed.
§ 8. Section 490.00 of the penal law, as added by chapter 300 of the
laws of 2001, is amended to read as follows:
§ 490.00 Legislative findings.
The devastating consequences of the recent barbaric attack on the
World Trade Center and the Pentagon underscore the compelling need for
legislation that is specifically designed to combat the evils of terror-
ism. Indeed, the bombings of American embassies in Kenya and Tanzania in
1998, the federal building in Oklahoma City in 1995, Pan Am Flight
number 103 in Lockerbie in 1988, the 1997 shooting atop the Empire State
Building, the 1994 murder of Ari Halberstam on the Brooklyn Bridge and
the 1993 bombing of the World Trade Center, will forever serve to remind
us that terrorism is a serious and deadly problem that disrupts public
order and threatens individual safety both at home and around the world.
Terrorism is inconsistent with civilized society and cannot be toler-
ated.
Although certain federal laws seek to curb the incidence of terrorism,
there are no corresponding state laws that facilitate the prosecution
and punishment of terrorists in state courts. Inexplicably, there is
also no criminal penalty in this state for a person who solicits or
raises funds for, or provides other material support or resources to,
those who commit or encourage the commission of horrific and cowardly
acts of terrorism. Nor do our criminal laws proscribe the making of
terrorist threats or punish with appropriate severity those who hinder
the prosecution of terrorists. [Finally, our death penalty statute must
be strengthened so that the cold-blooded execution of an individual for
terrorist purposes is a capital offense.]
A comprehensive state law is urgently needed to complement federal
laws in the fight against terrorism and to better protect all citizens
against terrorist acts. Accordingly, the legislature finds that our laws
must be strengthened to ensure that terrorists, as well as those who
solicit or provide financial and other support to terrorists, are prose-
cuted and punished in state courts with appropriate severity.
§ 9. Paragraph (d) of subdivision 2 of section 490.25 of the penal
law, as added by chapter 300 of the laws of 2001, is amended to read as
follows:
(d) Notwithstanding any other provision of law, when a person is
convicted of a crime of terrorism pursuant to this section, and the
specified offense is a class A-I felony offense, the sentence upon
conviction of such offense shall be life imprisonment without parole[;
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provided, however, that nothing herein shall preclude or prevent a
sentence of death when the specified offense is murder in the first
degree as defined in section 125.27 of this chapter].
§ 10. Paragraph (e) of subdivision 5 of section 220.10 of the criminal
procedure law is REPEALED.
§ 11. Subparagraph (vii) of paragraph (b) of subdivision 3 of section
220.30 of the criminal procedure law is REPEALED.
§ 12. Sections 250.40, 270.16, 270.55, 400.27, 450.70 and 450.80 of
the criminal procedure law are REPEALED.
§ 13. Paragraph (f) of subdivision 1 of section 270.20 of the criminal
procedure law is REPEALED.
§ 14. Section 270.30 of the criminal procedure law, as amended by
chapter 1 of the laws of 1995, is amended to read as follows:
§ 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,
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.]
§ 15. Section 310.80 of the criminal procedure law, as amended by
chapter 1 of the laws of 1995, is amended to read as follows:
§ 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].
§ 16. 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
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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
effectiveness of that portion of the court's order that directs a new
sentencing proceeding.]
§ 17. Subdivision 10 of section 450.20 of the criminal procedure law
is REPEALED.
§ 18. Subdivision 3 of section 460.40 of the criminal procedure law is
REPEALED.
§ 19. Section 470.30 of the criminal procedure law, as amended by
chapter 1 of the laws of 1995, is amended to read as follows:
§ 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
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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
class A-I felony of murder in the first degree other than a sentence of
life imprisonment without parole.]
§ 20. Section 630.20 of the criminal procedure law is amended to read
as follows:
§ 630.20 Securing attendance of witnesses confined in institutions
within the state; when and by what courts order may be
issued.
The following courts and judges may, under the indicated circum-
stances, order production as witnesses of persons confined by court
order in institutions within the state.
1. If the criminal action or proceeding is one pending in a superior
court or with a superior court judge sitting as a local criminal court,
such court may[, except as provided in subdivision four,] order the
production as a witness therein of a person confined in any institution
in the state.
2. If the criminal action or proceeding is one pending in a district
court or the New York City criminal court, such court may order the
production as a witness therein of a person confined in any institution
within the state other than a state prison. Production therein of a
prospective witness confined in a state prison may[, except as provided
in subdivision four,] be ordered, upon application of the party desiring
to call him, by a judge of a superior court holding a term thereof in
the county in which the action or proceeding is pending.
3. If the criminal action or proceeding is one pending in a city
court or a town court or a village court, such court may order the
production as a witness therein of a person confined in a county jail of
such county. Production therein of a prospective witness confined in
any other institution within the state may[, except as provided in
subdivision four,] be ordered, upon application of the party desiring to
call him, by a judge of a superior court holding a term thereof in the
county in which the action or proceeding is pending.
[4. Regardless of the court in which the criminal action or proceed-
ing is pending, production as a witness therein of a prisoner who has
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been sentenced to death may be ordered, upon application of the party
desiring to call him, only by a justice of the appellate division of the
department in which the action or proceeding is pending. The applica-
tion for such order, if made by the defendant, must be upon notice to
the district attorney of the county in which the action or proceeding is
pending, and an application made by either party must be based upon a
showing that the prisoner's attendance is clearly necessary in the
interests of justice. Upon issuing such an order, the appellate divi-
sion justice may fix and include therein any terms or conditions which
he deems appropriate for execution thereof.]
§ 21. Subdivision 1 of section 650.20 of the criminal procedure law is
amended to read as follows:
1. When (a) a criminal action is pending in a court of record of this
state, or a grand jury proceeding has been commenced, and (b) there is
reasonable cause to believe that a person confined in a correctional
institution or prison of another state, other than a person [awaiting
execution of a sentence of death or one] confined as mentally ill or as
a defective delinquent, possesses information material to such criminal
action or proceeding, and (c) the attendance of such person as a witness
in such action or proceeding is desired by a party thereto, and (d) the
state in which such person is confined possesses a statute equivalent to
section 650.10, the court in which such action or proceeding is pending
may issue a certificate under the seal of such court, certifying all
such facts and that the attendance of such person as a witness in such
court is required for a specified number of days.
§ 22. Section 707 of the county law is REPEALED.
§ 23. Article 22-B of the correction law is REPEALED.
§ 24. Section 113 of the correction law, as amended by section 20 of
subpart A of part C of chapter 62 of the laws of 2011, is amended to
read as follows:
§ 113. Absence of inmate for funeral and deathbed visits authorized.
The commissioner may permit any inmate confined by the department
[except one awaiting the sentence of death] to attend the funeral of his
or her father, mother, guardian or former guardian, child, brother,
sister, husband, wife, grandparent, grandchild, ancestral uncle or
ancestral aunt within the state, or to visit such individual during his
or her illness if death be imminent; but the exercise of such power
shall be subject to such rules and regulations as the commissioner shall
prescribe, respecting the granting of such permission, duration of
absence from the institution, custody, transportation and care of the
inmate, and guarding against escape. Any expense incurred under the
provisions of this section, with respect to any inmate permitted to
attend a funeral or visit a relative during last illness, shall be
deemed an expense of maintenance of the institution and be paid from
moneys available therefor; but the superintendent, if the rules and
regulations of the commissioner shall so provide, may allow the inmate
or anyone in his behalf to reimburse the state for such expense.
§ 25. Subdivision 1 of section 146 of the correction law, as amended
by chapter 234 of the laws of 2013, is amended to read as follows:
1. The following persons shall be authorized to visit at pleasure all
correctional facilities: The governor and lieutenant-governor, commis-
sioner of general services, secretary of state, comptroller and attor-
ney-general, members of the commission of correction, members of the
legislature and any employee of the department as requested by the
member of the legislature if the member requests to be so accompanied,
provided that such request does not impact upon the department's ability
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to supervise, manage and control its facilities as determined by the
commissioner, judges of the court of appeals, supreme court and county
judges, district attorneys and every clergyman or minister, as such
terms are defined in section two of the religious corporations law,
having charge of a congregation in the county wherein any such facility
is situated. No other person not otherwise authorized by law shall be
permitted to enter a correctional facility except by authority of the
commissioner of correction under such regulations as the commissioner
shall prescribe. [The provisions of this section shall not apply to such
portion of a correctional facility in which inmates under sentence of
death are confined.]
§ 26. Section 130 of the correction law is REPEALED.
§ 27. Section 63-d of the executive law is REPEALED.
§ 28. Subdivision 7 of section 837-a of the executive law is REPEALED.
§ 29. Section 837-l of the executive law is REPEALED.
§ 30. This act shall take effect immediately and shall be deemed to
have been in full force and effect on and after September 1, 1995.