S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  4320--A
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                               March 7, 2019
                                ___________
 
 Introduced by Sens. HOYLMAN, KAVANAGH, JACKSON -- read twice and ordered
   printed, and when printed to be committed to the Committee on Codes --
   committee  discharged,  bill amended, ordered reprinted as amended and
   recommitted to said committee
 
 AN ACT to amend the penal  law,  the  criminal  procedure  law  and  the
   correction law, in relation to eliminating the imposition of the death
   penalty;  and  to  repeal certain provisions of the criminal procedure
   law, the judiciary law, the county law, the  correction  law  and  the
   executive law relating to the imposition of the death penalty
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Sections 35-b and 211-a of the judiciary law are REPEALED.
   § 2. 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  accordance  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,  the  court  shall
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD10304-04-9

 S. 4320--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.
   §  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];

 S. 4320--A                          3
 
   § 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:
   (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:

 S. 4320--A                          4
 
   (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[;
 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].

 S. 4320--A                          5
 
   §  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
 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

 S. 4320--A                          6

 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
 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

 S. 4320--A                          7

 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
 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-

 S. 4320--A                          8
 
 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
 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.