S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2779
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 25, 2021
                                ___________
 
 Introduced by Sen. SEPULVEDA -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN  ACT  to  amend  the  penal  law, the correction law and the criminal
   procedure law, in relation to parole eligibility for felony offenders;
   and to repeal subdivision 2-a of section 70.20 of the penal law relat-
   ing thereto

   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,] WITH ELIGI-
 BILITY FOR PAROLE AFTER TWENTY-FIVE YEARS or to a term  of  imprisonment
 for a class A-I felony other than a sentence of life imprisonment [with-
 out  parole]  WITH  ELIGIBILITY  FOR  PAROLE AFTER TWENTY-FIVE YEARS, 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 sentence the defendant  to  life
 imprisonment  [without  parole  in  accordance  with subdivision five of
 section 70.00 of this title] WITH ELIGIBILITY FOR PAROLE  AFTER  TWENTY-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD05554-01-1

 S. 2779                             2
 
 FIVE  YEARS.  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] WITH ELIGIBILITY FOR PAROLE
 AFTER TWENTY-FIVE YEARS; 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] WITH
 ELIGIBILITY FOR PAROLE AFTER TWENTY-FIVE YEARS or to a term of imprison-
 ment 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] WITH ELIGIBILITY FOR PAROLE  AFTER  TWENTY-
 FIVE YEARS.
   §  2.  Subparagraph (i) of paragraph (a) of subdivision 3 and subdivi-
 sion 5 of section 70.00 of the penal law, subparagraph (i) of  paragraph
 (a)  of  subdivision 3 as amended by chapter 107 of the laws of 2006 and
 subdivision 5 as amended by section 40-a of part WWW of  chapter  59  of
 the laws of 2017, are 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]  WITH  ELIGIBILITY  FOR PAROLE AFTER TWENTY-FIVE
 YEARS, is imposed upon a defendant convicted  of  murder  in  the  first
 degree  as defined in 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, the sentence shall be life  imprisonment
 [without  parole]  WITH  ELIGIBILITY FOR PAROLE AFTER TWENTY-FIVE YEARS,
 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 chap-
 ter such minimum period shall be not less than  twenty  years  nor  more
 than forty years.
   [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
 defendant  who  was  eighteen  years  of age or older at the time of the

 S. 2779                             3

 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.]
   §  3.  Subdivision  3  of section 70.00 of the penal law is amended by
 adding a new paragraph (c) to read as follows:
   (C) NOTWITHSTANDING ANY OTHER PROVISION OF THE LAW  TO  THE  CONTRARY,
 FOR  ANY  FELONY, REGARDLESS OF SENTENCE, ALL DEFENDANTS SENTENCED SHALL
 BECOME ELIGIBLE FOR PAROLE AFTER SERVING NO MORE THAN TWENTY-FIVE  YEARS
 OF  THEIR  SENTENCE; AND FURTHER, NOTWITHSTANDING ANY OTHER PROVISION OF
 THE LAW TO THE CONTRARY, NO DEFENDANT SHALL BE SENTENCED TO  CONSECUTIVE
 TERMS OF IMPRISONMENT WHICH EXCEED A TWENTY-FIVE YEAR SENTENCE.
   §  4.  Subdivision  3  of section 70.02 of the penal law is amended by
 adding a new paragraph (e) to read as follows:
   (E) NOTWITHSTANDING ANY OTHER PROVISION OF THE LAW  TO  THE  CONTRARY,
 FOR  ANY  FELONY  DEFINED  IN  THIS SECTION, REGARDLESS OF SENTENCE, ALL
 DEFENDANTS SENTENCED SHALL BECOME ELIGIBLE FOR PAROLE AFTER  SERVING  NO
 MORE  THAN  TWENTY-FIVE  YEARS  OF THEIR SENTENCE; AND FURTHER, NOTWITH-
 STANDING ANY OTHER PROVISION OF THE LAW TO THE  CONTRARY,  NO  DEFENDANT
 SHALL  BE  SENTENCED TO CONSECUTIVE TERMS OF IMPRISONMENT WHICH EXCEED A
 TWENTY-FIVE YEAR SENTENCE.
   § 5. Section 70.04 of the penal law is amended by adding a new  subdi-
 vision 5 to read as follows:
   5. PAROLE ELIGIBILITY AND CONSECUTIVE TERMS OF IMPRISONMENT.  NOTWITH-
 STANDING  ANY OTHER PROVISION OF THE LAW TO THE CONTRARY, FOR ANY FELONY
 DEFINED  IN  THIS  SECTION,  REGARDLESS  OF  SENTENCE,  ALL   DEFENDANTS
 SENTENCED  SHALL  BECOME  ELIGIBLE FOR PAROLE AFTER SERVING NO MORE THAN
 TWENTY-FIVE YEARS OF THEIR SENTENCE; AND  FURTHER,  NOTWITHSTANDING  ANY
 OTHER  PROVISION  OF  THE  LAW  TO  THE  CONTRARY, NO DEFENDANT SHALL BE
 SENTENCED TO CONSECUTIVE TERMS OF IMPRISONMENT WHICH  EXCEED  A  TWENTY-
 FIVE YEAR SENTENCE.
   §  6. Section 70.06 of the penal law is amended by adding a new subdi-
 vision 8 to read as follows:
   8. PAROLE ELIGIBILITY AND CONSECUTIVE TERMS OF IMPRISONMENT.  NOTWITH-
 STANDING ANY OTHER PROVISION OF THE LAW TO THE CONTRARY, FOR ANY  FELONY
 DEFINED   IN  THIS  SECTION,  REGARDLESS  OF  SENTENCE,  ALL  DEFENDANTS
 SENTENCED SHALL BECOME ELIGIBLE FOR PAROLE AFTER SERVING  NO  MORE  THAN
 TWENTY-FIVE  YEARS  OF  THEIR SENTENCE; AND FURTHER, NOTWITHSTANDING ANY
 OTHER PROVISION OF THE LAW  TO  THE  CONTRARY,  NO  DEFENDANT  SHALL  BE

 S. 2779                             4
 
 SENTENCED  TO  CONSECUTIVE  TERMS OF IMPRISONMENT WHICH EXCEED A TWENTY-
 FIVE YEAR SENTENCE.
   §  7. Section 70.07 of the penal law is amended by adding a new subdi-
 vision 6 to read as follows:
   6.  NOTWITHSTANDING ANY OTHER PROVISION OF THE LAW  TO  THE  CONTRARY,
 FOR  ANY  FELONY  DEFINED  IN  THIS SECTION, REGARDLESS OF SENTENCE, ALL
 DEFENDANTS SENTENCED SHALL BECOME ELIGIBLE FOR PAROLE AFTER  SERVING  NO
 MORE  THAN  TWENTY-FIVE  YEARS  OF THEIR SENTENCE; AND FURTHER, NOTWITH-
 STANDING ANY OTHER PROVISION OF THE LAW TO THE  CONTRARY,  NO  DEFENDANT
 SHALL  BE  SENTENCED TO CONSECUTIVE TERMS OF IMPRISONMENT WHICH EXCEED A
 TWENTY-FIVE YEAR SENTENCE.
   § 8. Section 70.08 of the penal law is amended by adding a new  subdi-
 vision 4 to read as follows:
   4. PAROLE ELIGIBILITY AND CONSECUTIVE TERMS OF IMPRISONMENT.  NOTWITH-
 STANDING  ANY OTHER PROVISION OF THE LAW TO THE CONTRARY, FOR ANY FELONY
 DEFINED  IN  THIS  SECTION,  REGARDLESS  OF  SENTENCE,  ALL   DEFENDANTS
 SENTENCED  SHALL  BECOME  ELIGIBLE FOR PAROLE AFTER SERVING NO MORE THAN
 TWENTY-FIVE YEARS OF THEIR SENTENCE; AND  FURTHER,  NOTWITHSTANDING  ANY
 OTHER  PROVISION  OF  THE  LAW  TO  THE  CONTRARY, NO DEFENDANT SHALL BE
 SENTENCED TO CONSECUTIVE TERMS OF IMPRISONMENT WHICH  EXCEED  A  TWENTY-
 FIVE YEAR SENTENCE.
   §  9. Section 70.10 of the penal law is amended by adding a new subdi-
 vision 3 to read as follows:
   3. PAROLE ELIGIBILITY AND CONSECUTIVE TERMS OF IMPRISONMENT.  NOTWITH-
 STANDING ANY OTHER PROVISION OF THE LAW TO THE CONTRARY, FOR ANY  FELONY
 DEFINED   IN  THIS  SECTION,  REGARDLESS  OF  SENTENCE,  ALL  DEFENDANTS
 SENTENCED SHALL BECOME ELIGIBLE FOR PAROLE AFTER SERVING  NO  MORE  THAN
 TWENTY-FIVE  YEARS  OF  THEIR SENTENCE; AND FURTHER, NOTWITHSTANDING ANY
 OTHER PROVISION OF THE LAW  TO  THE  CONTRARY,  NO  DEFENDANT  SHALL  BE
 SENTENCED  TO  CONSECUTIVE  TERMS OF IMPRISONMENT WHICH EXCEED A TWENTY-
 FIVE YEAR SENTENCE.
   § 10. Subdivision 2-a of section 70.20 of the penal law is REPEALED.
   § 11.  Section 70.71 of the penal law  is  amended  by  adding  a  new
 subdivision 6 to read as follows:
   6. PAROLE ELIGIBILITY AND CONSECUTIVE TERMS OF IMPRISONMENT.  NOTWITH-
 STANDING  ANY OTHER PROVISION OF THE LAW TO THE CONTRARY, FOR ANY FELONY
 DEFINED  IN  THIS  SECTION,  REGARDLESS  OF  SENTENCE,  ALL   DEFENDANTS
 SENTENCED  SHALL  BECOME  ELIGIBLE FOR PAROLE AFTER SERVING NO MORE THAN
 TWENTY-FIVE YEARS OF THEIR SENTENCE; AND  FURTHER,  NOTWITHSTANDING  ANY
 OTHER  PROVISION  OF  THE  LAW  TO  THE  CONTRARY, NO DEFENDANT SHALL BE
 SENTENCED TO CONSECUTIVE TERMS OF IMPRISONMENT WHICH  EXCEED  A  TWENTY-
 FIVE YEAR SENTENCE.
   §  12.  Subdivision  3  of section 70.80 of the penal law, as added by
 chapter 7 of the laws of 2007, is amended and a new  subdivision  10  is
 added to read as follows:
   3.  Except  as provided by subdivision four, five, six, seven or eight
 of this section, or when a defendant is being sentenced for a conviction
 of the class A-II felonies of predatory  sexual  assault  and  predatory
 sexual  assault against a child as defined in sections 130.95 and 130.96
 of this chapter, or for any class  A-I  sexually  motivated  felony  for
 which a life sentence [or a life without parole sentence] WITH ELIGIBIL-
 ITY  FOR  PAROLE  AFTER  TWENTY-FIVE  YEARS  must be imposed, a sentence
 imposed upon a defendant convicted of a felony sex offense  shall  be  a
 determinate  sentence.  The determinate sentence shall be imposed by the
 court in whole or half years, and shall include  as  a  part  thereof  a
 period  of post-release supervision in accordance with subdivision two-a

 S. 2779                             5
 
 of section 70.45 of this article. Persons eligible for sentencing  under
 section  70.07  of  this  article  governing second child sexual assault
 felonies shall be sentenced under such  section  and  paragraph  (j)  of
 subdivision two-a of section 70.45 of this article.
   10.    NOTWITHSTANDING ANY OTHER PROVISION OF THE LAW TO THE CONTRARY,
 FOR ANY FELONY DEFINED IN THIS  SECTION,  REGARDLESS  OF  SENTENCE,  ALL
 DEFENDANTS  SENTENCED  SHALL BECOME ELIGIBLE FOR PAROLE AFTER SERVING NO
 MORE THAN TWENTY-FIVE YEARS OF THEIR  SENTENCE;  AND  FURTHER,  NOTWITH-
 STANDING  ANY  OTHER  PROVISION OF THE LAW TO THE CONTRARY, NO DEFENDANT
 SHALL BE SENTENCED TO CONSECUTIVE TERMS OF IMPRISONMENT WHICH  EXCEED  A
 TWENTY-FIVE YEAR SENTENCE.
   §  13.  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]
 WITH  ELIGIBILITY FOR PAROLE AFTER TWENTY-FIVE YEARS; 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.
   § 14. Subdivision 2 of section 136 of the correction law, as added  by
 chapter 431 of the laws of 2015, is amended to read as follows:
   2.  All  inmates admitted to the department serving a determinate term
 of imprisonment, or an indeterminate sentence of imprisonment other than
 a sentence of life imprisonment [without parole,] WITH  ELIGIBILITY  FOR
 PAROLE  AFTER  TWENTY-FIVE  YEARS who have been evaluated upon admission
 pursuant to subdivision one of section one hundred thirty-seven of  this
 article  and are determined to be capable of successfully completing the
 academic  course  work  required  for  the  test   assessing   secondary
 completion,  shall  be  provided  with  the opportunity to complete such
 course work at least two months prior to the date on which  such  inmate
 may  be paroled, conditionally released, released to post-release super-
 vision pursuant to section 70.40 of  the  penal  law,  or  presumptively
 released,  pursuant to section eight hundred three of this chapter. Upon
 admission to the department, such inmates will be provided with  written
 notice  that the test assessing secondary completion programs are avail-
 able for all inmates who so apply.
   § 15. Paragraph (e) of subdivision 5 of section 220.10 of the criminal
 procedure law, as amended by chapter 1 of the laws of 1995,  is  amended
 to read as follows:
   (e)  A defendant may not enter a plea of guilty to the crime of murder
 in the first degree as defined in  section  125.27  of  the  penal  law;
 provided,  however, that a defendant may enter such a plea with both the
 permission of the court and the consent of the people  when  the  agreed
 upon  sentence  is either life imprisonment [without parole] WITH ELIGI-
 BILITY FOR PAROLE AFTER TWENTY-FIVE YEARS or 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] WITH ELIGIBILITY FOR PAROLE AFTER
 TWENTY-FIVE YEARS.
   § 16. Subparagraph (vii) of paragraph (b) of subdivision 3 of  section
 220.30  of  the  criminal  procedure law, as amended by chapter 1 of the
 laws of 1995, is amended to read as follows:
   (vii) A defendant may not enter a plea  of  guilty  to  the  crime  of
 murder  in  the  first  degree as defined in section 125.27 of the penal

 S. 2779                             6
 
 law; provided, however, that a defendant may enter such a plea with both
 the permission of the court and the  consent  of  the  people  when  the
 agreed  upon  sentence is either life imprisonment [without parole] WITH
 ELIGIBILITY FOR PAROLE AFTER TWENTY-FIVE YEARS or 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]  WITH  ELIGIBILITY  FOR
 PAROLE AFTER TWENTY-FIVE YEARS.
   §  17.  Subdivision  1,  paragraphs  (b) and (e) of subdivision 11 and
 paragraphs (b), (c) and (e) of subdivision 12 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 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  imprison-
 ment  [without  parole  pursuant to subdivision five of section 70.00 of
 the penal law] WITH ELIGIBILITY  FOR  PAROLE  AFTER  TWENTY-FIVE  YEARS.
 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] WITH ELIGIBILITY FOR PAROLE AFTER TWENTY-
 FIVE YEARS 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] WITH ELIGIBILITY FOR PAROLE AFTER TWENTY-FIVE YEARS.
   (b) If the jury directs imposition of either a sentence  of  death  or
 life  imprisonment  [without  parole]  WITH ELIGIBILITY FOR PAROLE AFTER
 TWENTY-FIVE YEARS, it shall specify on the record those  mitigating  and
 aggravating  factors considered and those mitigating factors established
 by the defendant, if any.
   (e) If the jury unanimously determines that a sentence of life  impri-
 sonment  [without  parole] WITH ELIGIBILITY FOR PAROLE AFTER TWENTY-FIVE
 YEARS should be imposed the court must thereupon impose  a  sentence  of
 life  imprisonment  [without  parole]  WITH ELIGIBILITY FOR PAROLE AFTER
 TWENTY-FIVE YEARS.
   (b) In the event the defendant is sentenced pursuant to  this  section
 to  life imprisonment [without parole] WITH ELIGIBILITY FOR PAROLE AFTER
 TWENTY-FIVE YEARS 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]  WITH  ELIGIBILITY FOR PAROLE AFTER TWENTY-FIVE YEARS,
 the court shall not render a finding with respect to whether the defend-
 ant is mentally retarded.
   (c) In the event the defendant is sentenced pursuant to  this  section
 to  death,  the  court  shall thereupon render a finding with respect to
 whether the defendant is mentally  retarded.  If  the  court  finds  the
 defendant  is  mentally retarded, the court shall set aside the sentence
 of death and sentence the defendant either to life imprisonment [without
 parole] WITH ELIGIBILITY FOR PAROLE AFTER TWENTY-FIVE YEARS 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] WITH ELIGI-
 BILITY FOR PAROLE AFTER TWENTY-FIVE YEARS.    If  the  court  finds  the
 defendant  is  not  mentally retarded, then such sentence of death shall
 not be set aside pursuant to this subdivision.
   (e) The foregoing provisions of this subdivision notwithstanding, at a
 reasonable time prior to the commencement of trial  the  defendant  may,
 upon a written motion alleging reasonable cause to believe the defendant

 S. 2779                             7
 
 is  mentally retarded, apply for an order directing that a mental retar-
 dation hearing be conducted prior to  trial.  If,  upon  review  of  the
 defendant's  motion and any response thereto, the court finds reasonable
 cause  to  believe the defendant is mentally retarded, it shall promptly
 conduct a hearing without a jury to determine whether the  defendant  is
 mentally  retarded.  In the event the court finds after the hearing that
 the defendant is  not  mentally  retarded,  the  court  must,  prior  to
 commencement  of  trial,  enter an order so stating, but nothing in this
 paragraph shall preclude a defendant from presenting mitigating evidence
 of mental retardation at a separate sentencing proceeding. In the  event
 the  court  finds  after  the  hearing  that the defendant, based upon a
 preponderance of the evidence, is mentally  retarded,  the  court  must,
 prior  to  commencement  of trial, enter an order so stating. Unless the
 order is reversed on an appeal by the people or unless the provisions of
 paragraph (d) of this subdivision apply, a separate sentencing  proceed-
 ing under this section shall not be conducted if the defendant is there-
 after  convicted  of murder in the first degree. In the event a separate
 sentencing proceeding is not conducted, the court, upon conviction of  a
 defendant  for  the  crime of murder in the first degree, shall sentence
 the defendant to life imprisonment [without parole] WITH ELIGIBILITY FOR
 PAROLE AFTER TWENTY-FIVE YEARS 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] WITH  ELIGIBILITY  FOR  PAROLE  AFTER
 TWENTY-FIVE  YEARS.  Whenever a mental retardation hearing is held and a
 finding is rendered pursuant  to  this  paragraph,  the  court  may  not
 conduct  a  hearing  pursuant  to paragraph (a) of this subdivision. For
 purposes of this subdivision and paragraph (b) of  subdivision  nine  of
 this section, "mental retardation" means significantly subaverage gener-
 al intellectual functioning existing concurrently with deficits in adap-
 tive behavior which were manifested before the age of eighteen.
   §  18.  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]  WITH  ELIGIBILITY  FOR  PAROLE  AFTER TWENTY-FIVE YEARS 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]  WITH
 ELIGIBILITY  FOR  PAROLE  AFTER  TWENTY-FIVE  YEARS.   Upon granting the
 motion upon any of the grounds set forth in the aforesaid paragraphs  of

 S. 2779                             8
 
 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.
   § 19. Paragraphs (b) and (c) of subdivision 5 of section 470.30 of the
 criminal  procedure  law, as added by chapter 1 of the laws of 1995, are
 amended to read as follows:
   (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] WITH ELIGIBILITY FOR PAROLE AFTER TWENTY-FIVE YEARS 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]
 WITH ELIGIBILITY FOR PAROLE AFTER TWENTY-FIVE YEARS; 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] WITH ELIGIBILITY FOR PAROLE AFTER
 TWENTY-FIVE YEARS 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] WITH ELIGIBILITY FOR PAROLE AFTER TWENTY-FIVE YEARS.
   §  20.  The opening paragraph of subdivision 1 of section 70.25 of the
 penal law, as amended by chapter 372 of the laws of 1981, is amended  to
 read as follows:
   Except  as  provided  in  subdivisions  two,  two-a  and  five of this
 section, when multiple sentences of imprisonment are imposed on a person
 at the same time, or when a person who is subject  to  any  undischarged
 term of imprisonment imposed at a previous time by a court of this state
 is  sentenced  to  an  additional  term of imprisonment, the sentence or
 sentences imposed by the court shall run either concurrently or  consec-
 utively with respect to each other and the undischarged term or terms in
 such manner as the court directs at the time of sentence.  NOTWITHSTAND-
 ING  ANY  OTHER PROVISION OF THE LAW TO THE CONTRARY, NO DEFENDANT SHALL
 BE SENTENCED TO SERVE CONSECUTIVE TERMS OF IMPRISONMENT WHICH  EXCEED  A
 TWENTY-FIVE  YEAR  SENTENCE. If the court does not specify the manner in
 which a sentence imposed by it is to run,  the  sentence  shall  run  as
 follows:
   §  21.  This act shall take effect on the ninetieth day after it shall
 have become a law.