S T A T E O F N E W Y O R K
________________________________________________________________________
6865
2023-2024 Regular Sessions
I N S E N A T E
May 11, 2023
___________
Introduced by Sen. SALAZAR -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the penal law and the criminal procedure law, in
relation to convictions under felony murder provisions; and to repeal
certain provisions of the penal law relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Legislative findings and intent. The Legislature hereby
finds and declares the following:
a. The current provisions of New York's penal law pertaining to felony
murder eliminate the distinction between intentional and unintentional
homicide and are therefore not consistent with the principle of propor-
tionality in charging and sentencing. Felony murder doctrine allows a
defendant to be charged and sentenced for murder in circumstances where
they were committing or attempting to commit a felony but did not actu-
ally commit a homicidal act. Under current state law, an accomplice to a
crime, for example someone driving a getaway car, may be charged with
murder as if they had actually shot someone in the course of a crime
such as robbery even in a circumstance where they were unarmed and phys-
ically removed from the site of the murder. Evidence from other states
indicates that as many as one in five individuals serving prison
sentences for murder have been convicted based on the felony murder
doctrine. Studies have also found that prosecutors use the threat of
felony murder charges to obtain plea deals for lengthy sentences, demon-
strating felony murder doctrine's role in extreme sentencing and mass
incarceration.
b. Felony murder doctrine originated in England but was banned there
in 1957 and subsequently in other Commonwealth countries including Cana-
da, which banned it in 1990. The United States is an outlier globally in
its application of felony murder doctrine, although some states, notably
California and Colorado, have in the last five years introduced signif-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01989-01-3
S. 6865 2
icant reforms with California reintroducing the intention to kill as a
requirement for the application of felony murder charges. New York,
however, remains one of just thirteen states including Texas and Flori-
da, where the felony murder doctrine is applied by prosecutors to pursue
murder charges when the individual committing a homicidal act is a third
party such as a victim holding their ground, a law enforcement officer,
or a bystander. The case of Jagger Freeman illustrates how this is
applied. In 2019, Freeman, then a 25 year old Queens resident, was an
accomplice in an attempted robbery of a mobile phone store. Police
opened fire in the store on Freeman's associate, who was holding a fake
gun, killing one police officer and wounding another. During the
episode, Freeman had stood across the street unarmed, however he was
sentenced to thirty years to life for the murder of the police officer.
c. Evidence from across the country reveals that felony murder laws
have disproportionately negative consequences for non-white people,
young people, and victims of domestic violence. For example, in Pennsyl-
vania eighty percent of those imprisoned with a felony murder conviction
were people of color, while in California sixty-eight percent of those
serving time for felony murder are black or Latinx. Since 2002, eight-
y-six percent of all defendants convicted of felony murder in New York
state have been black or Latinx. According to the California Coalition
for Women Prisoners, the majority of their members convicted of felony
murder were victims of domestic violence.
§ 2. Subdivision 3 of section 125.25 of the penal law is REPEALED and
a new subdivision 3 is added to read as follows:
3. ACTING EITHER ALONE OR WITH ONE OR MORE OTHER PERSONS, HE OR SHE
COMMITS OR ATTEMPTS TO COMMIT ROBBERY, BURGLARY, KIDNAPPING, ARSON, RAPE
IN THE FIRST DEGREE, CRIMINAL SEXUAL ACT IN THE FIRST DEGREE, SEXUAL
ABUSE IN THE FIRST DEGREE, AGGRAVATED SEXUAL ABUSE, ESCAPE IN THE FIRST
DEGREE, OR ESCAPE IN THE SECOND DEGREE, AND, IN THE COURSE OF AND IN
FURTHERANCE OF SUCH CRIME OR OF IMMEDIATE FLIGHT THEREFROM, SUCH PERSON,
OR ANOTHER PARTICIPANT IN THE UNDERLYING FELONY PERSONALLY AND DIRECTLY
CAUSES THE DEATH OF A PERSON OTHER THAN ONE OF THE PARTICIPANTS, AND THE
DEFENDANT HAS ONE OF THE FOLLOWING MENTAL STATES DEPENDENT UPON THEIR
ROLE IN THE COMMISSION OF THE KILLING: (A) THE DEFENDANT PERSONALLY AND
DIRECTLY CAUSED THE DEATH RECKLESSLY; OR (B) THE DEFENDANT WAS AN ACCOM-
PLICE, DEFINED AS ONE WHO SOLICITED, REQUESTED, COMMANDED, IMPORTUNED,
CAUSED, OR AIDED AND ABETTED THE ACTUAL KILLER IN THE COMMISSION OF THE
UNDERLYING FELONY, AND ACTED WITH INTENT TO CAUSE DEATH. LIABILITY UNDER
THIS SUBDIVISION SHALL ONLY APPLY TO DEATH CAUSED BY AGENTS AND CO-FEL-
ONS OF THE DEFENDANT. A DEFENDANT IS NOT RESPONSIBLE FOR A DEATH CAUSED
BY A THIRD PARTY WHO WAS NOT A PARTICIPANT IN THE UNDERLYING FELONY; OR
§ 3. Subdivision 2 of section 40.00 of the penal law, such section as
renumbered by chapter 73 of the laws of 1968, is amended to read as
follows:
2. The defense of duress as defined in subdivision one of this section
is not available when a person intentionally or recklessly places
himself OR HERSELF in a situation in which it is probable that he OR SHE
will be subjected to duress; PROVIDED, HOWEVER, THAT THIS SUBDIVISION
SHALL NOT APPLY TO PROSECUTIONS BROUGHT UNDER SUBDIVISION THREE OF
SECTION 125.25 OF THIS CHAPTER WHEN THE DEFENDANT HAS BEEN OR IS A
VICTIM OF DOMESTIC VIOLENCE COMMITTED BY ONE OF THE PARTICIPANTS IN THE
UNDERLYING FELONY.
§ 4. The criminal procedure law is amended by adding a new section
440.48 to read as follows:
S. 6865 3
§ 440.48 MOTION TO VACATE JUDGMENT AND/OR RESENTENCE IN CERTAIN FELONY
MURDER CONVICTIONS.
1. A PERSON CONVICTED UNDER THE PROVISIONS OF SUBDIVISION THREE OF
SECTION 125.25 OF THE PENAL LAW MAY FILE A PETITION WITH THE COURT THAT
SENTENCED THE PETITIONER TO HAVE THE PETITIONER'S MURDER CONVICTION
VACATED AND TO BE RESENTENCED ON ANY REMAINING COUNTS WHEN ALL OF THE
FOLLOWING CONDITIONS APPLY:
(A) A COMPLAINT, INFORMATION, OR INDICTMENT WAS FILED AGAINST THE
PETITIONER THAT ALLOWED THE PROSECUTION TO PROCEED UNDER A THEORY OF
FELONY MURDER;
(B) THE PETITIONER WAS CONVICTED OF MURDER IN THE SECOND DEGREE
FOLLOWING A TRIAL OR ACCEPTED A PLEA OFFER IN LIEU OF A TRIAL AT WHICH
THE PETITIONER COULD HAVE BEEN CONVICTED OF FIRST DEGREE OR SECOND
DEGREE MURDER; AND
(C) THE PETITIONER COULD NOT BE CONVICTED OF MURDER IN THE SECOND
DEGREE AS DEFINED IN SUBDIVISION THREE OF SECTION 125.25 OF THE PENAL
LAW, OR WOULD HAVE BEEN SENTENCED DIFFERENTLY, BASED ON THE LANGUAGE OF
SUCH SUBDIVISION AS OF THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF
TWO THOUSAND TWENTY-THREE WHICH ADDED THIS SECTION.
2. THE COURT SHALL REVIEW THE PETITION AND DETERMINE IF THE PETITIONER
HAS MADE A PRIMA FACIE SHOWING THAT THE PETITIONER FALLS WITHIN THE
PROVISIONS OF THIS SECTION. IF THE PETITIONER HAS REQUESTED COUNSEL, THE
COURT SHALL APPOINT COUNSEL TO REPRESENT THE PETITIONER. THE PROSECUTOR
SHALL FILE AND SERVE A RESPONSE WITHIN SIXTY DAYS OF SERVICE OF THE
PETITION AND THE PETITIONER MAY FILE AND SERVE A REPLY WITHIN THIRTY
DAYS AFTER THE PROSECUTOR RESPONSE IS SERVED. THESE DEADLINES SHALL BE
EXTENDED FOR GOOD CAUSE. IF THE PETITIONER MAKES A PRIMA FACIE SHOWING
THAT HE OR SHE IS ENTITLED TO RELIEF, THE COURT SHALL ISSUE AN ORDER TO
SHOW CAUSE.
3. WITHIN SIXTY DAYS AFTER THE ORDER TO SHOW CAUSE WAS ISSUED, THE
COURT SHALL HOLD A HEARING TO DETERMINE WHETHER TO VACATE THE MURDER
CONVICTION AND TO RECALL THE SENTENCE AND RESENTENCE THE PETITIONER ON
ANY REMAINING COUNTS IN THE SAME MANNER AS IF THE PETITIONER HAD NOT
BEEN PREVIOUSLY SENTENCED; PROVIDED THAT THE NEW SENTENCE, IF ANY, IS
NOT GREATER THAN THE INITIAL SENTENCE. THIS DEADLINE MAY BE EXTENDED FOR
GOOD CAUSE.
4. AT THE HEARING TO DETERMINE WHETHER THE PETITIONER IS ENTITLED TO
RELIEF, THE BURDEN OF PROOF SHALL BE ON THE PROSECUTION TO PROVE, BEYOND
A REASONABLE DOUBT, THAT THE PETITIONER IS INELIGIBLE FOR RESENTENCING.
IF THE PROSECUTION FAILS TO SUSTAIN ITS BURDEN OF PROOF, THE PRIOR
CONVICTION, AND ANY ALLEGATIONS AND ENHANCEMENTS ATTACHED TO THE
CONVICTION, SHALL BE VACATED AND THE PETITIONER SHALL BE RESENTENCED ON
THE REMAINING CHARGES. THE PROSECUTOR AND THE PETITIONER MAY RELY ON THE
RECORD OF CONVICTION OR OFFER NEW OR ADDITIONAL EVIDENCE TO MEET THEIR
RESPECTIVE BURDENS.
5. IF PETITIONER IS ENTITLED TO RELIEF PURSUANT TO THIS SECTION,
MURDER WAS CHARGED GENERICALLY, AND THE TARGET OFFENSE WAS NOT CHARGED,
THE PETITIONER'S CONVICTION SHALL BE REDESIGNATED AS THE TARGET OFFENSE
OR UNDERLYING FELONY FOR RESENTENCING PURPOSES. ANY APPLICABLE STATUTE
OF LIMITATIONS SHALL NOT BE A BAR TO THE COURT'S REDESIGNATION OF THE
OFFENSE FOR THIS PURPOSE.
6. A PERSON WHO IS RESENTENCED PURSUANT TO THIS SECTION SHALL BE GIVEN
CREDIT FOR TIME SERVED. THE JUDGE MAY ORDER THE PETITIONER TO BE SUBJECT
TO PAROLE SUPERVISION FOR UP TO THREE YEARS FOLLOWING THE COMPLETION OF
THE SENTENCE.
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§ 5. Paragraph (a) of subdivision 1 of section 70.02 of the penal law,
as amended by chapter 189 of the laws of 2018, is amended to read as
follows:
(a) Class B violent felony offenses: an attempt to commit the class
A-I felonies of murder in the second degree as defined in section
125.25, kidnapping in the first degree as defined in section 135.25, and
arson in the first degree as defined in section 150.20; manslaughter in
the first degree as defined in section 125.20, aggravated manslaughter
in the first degree as defined in section 125.22, MURDER IN THE SECOND
DEGREE AS DEFINED IN SUBDIVISION THREE OF SECTION 125.25, rape in the
first degree as defined in section 130.35, criminal sexual act in the
first degree as defined in section 130.50, aggravated sexual abuse in
the first degree as defined in section 130.70, course of sexual conduct
against a child in the first degree as defined in section 130.75;
assault in the first degree as defined in section 120.10, kidnapping in
the second degree as defined in section 135.20, burglary in the first
degree as defined in section 140.30, arson in the second degree as
defined in section 150.15, robbery in the first degree as defined in
section 160.15, sex trafficking as defined in paragraphs (a) and (b) of
subdivision five of section 230.34, sex trafficking of a child as
defined in section 230.34-a, incest in the first degree as defined in
section 255.27, criminal possession of a weapon in the first degree as
defined in section 265.04, criminal use of a firearm in the first degree
as defined in section 265.09, criminal sale of a firearm in the first
degree as defined in section 265.13, aggravated assault upon a police
officer or a peace officer as defined in section 120.11, gang assault in
the first degree as defined in section 120.07, intimidating a victim or
witness in the first degree as defined in section 215.17, hindering
prosecution of terrorism in the first degree as defined in section
490.35, criminal possession of a chemical weapon or biological weapon in
the second degree as defined in section 490.40, and criminal use of a
chemical weapon or biological weapon in the third degree as defined in
section 490.47.
§ 6. The department of corrections and community supervision, in coor-
dination with district attorneys and any other relevant law enforcement
agencies or bodies, shall issue an annual report to the chairs of the
Senate and Assembly judiciary committees which shall include, but need
not be limited to, the following information:
(i) The number of incarcerated persons convicted under subdivision 3
of section 125.25 of the penal law in New York State by year over the
past ten years;
(ii) The age, race, and gender breakdowns of such convictions over the
past ten years;
(iii) Whether felony murder (murder in the second degree) was the most
serious charge against the defendant or a lower charge they accepted in
a plea deal (also stratified by age/race/gender);
(iv) Sentencing data: average sentence, number of people serving life
without parole;
(v) Whether each person charged under subdivision 3 of section 125.25
of the penal law was an accomplice to, major participant in, or the
perpetrator of the killing act over the past ten years;
(vi) Who the decedent in the felony murder was (victim, perpetrator,
law enforcement, bystander); and
(vii) Whether the killing was carried out by a perpetrator, victim,
law enforcement, or bystander.
§ 7. This act shall take effect immediately.
