§ 400.27 Procedure for determining sentence upon conviction for the

offense of murder in the first degree.

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
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.

2. The separate sentencing proceeding provided for by this section
shall be conducted before the court sitting with the jury that found the
defendant guilty. The court may discharge the jury and impanel another
jury only in extraordinary circumstances and upon a showing of good
cause, which may include, but is not limited to, a finding of prejudice
to either party. If a new jury is impaneled, it shall be formed in
accordance with the procedures in article two hundred seventy of this
chapter. Before proceeding with the jury that found the defendant
guilty, the court shall determine whether any juror has a state of mind
that is likely to preclude the juror from rendering an impartial
decision based upon the evidence adduced during the proceeding. In
making such determination the court shall personally examine each juror
individually outside the presence of the other jurors. The scope of the
examination shall be within the discretion of the court and may include
questions supplied by the parties as the court deems proper. The
proceedings provided for in this subdivision shall be conducted on the
record; provided, however, that upon motion of either party, and for
good cause shown, the court may direct that all or a portion of the
record of such proceedings be sealed. In the event the court determines
that a juror has such a state of mind, the court shall discharge the
juror and replace the juror with the alternate juror whose name was
first drawn and called. If no alternate juror is available, the court
must discharge the jury and impanel another jury in accordance with
article two hundred seventy of this chapter.

3. For the purposes of a proceeding under this section each
subparagraph of paragraph (a) of subdivision one of section 125.27 of
the penal law shall be deemed to define an aggravating factor. Except as
provided in subdivision seven of this section, at a sentencing
proceeding pursuant to this section the only aggravating factors that
the jury may consider are those proven beyond a reasonable doubt at
trial, and no other aggravating factors may be considered. Whether a
sentencing proceeding is conducted before the jury that found the
defendant guilty or before another jury, the aggravating factor or
factors proved at trial shall be deemed established beyond a reasonable
doubt at the separate sentencing proceeding and shall not be
relitigated. Where the jury is to determine sentences for concurrent
counts of murder in the first degree, the aggravating factor included in
each count shall be deemed to be an aggravating factor for the purpose
of the jury's consideration in determining the sentence to be imposed on
each such count.

4. The court on its own motion or on motion of either party, in the
interest of justice or to avoid prejudice to either party, may delay the
commencement of the separate sentencing proceeding.

5. Notwithstanding the provisions of article three hundred ninety of
this chapter, where a defendant is found guilty of murder in the first
degree, no presentence investigation shall be conducted; provided,
however, that where the court is to impose a sentence of imprisonment, a
presentence investigation shall be conducted and a presentence report
shall be prepared in accordance with the provisions of such article.

6. At the sentencing proceeding the people shall not relitigate the
existence of aggravating factors proved at the trial or otherwise
present evidence, except, subject to the rules governing admission of
evidence in the trial of a criminal action, in rebuttal of the
defendant's evidence. However, when the sentencing proceeding is
conducted before a newly impaneled jury, the people may present evidence
to the extent reasonably necessary to inform the jury of the nature and
circumstances of the count or counts of murder in the first degree for
which the defendant was convicted in sufficient detail to permit the
jury to determine the weight to be accorded the aggravating factor or
factors established at trial. Whenever the people present such evidence,
the court must instruct the jury in its charge that any facts elicited
by the people that are not essential to the verdict of guilty on such
count or counts shall not be deemed established beyond a reasonable
doubt. Subject to the rules governing the admission of evidence in the
trial of a criminal action, the defendant may present any evidence
relevant to any mitigating factor set forth in subdivision nine of this
section; provided, however, the defendant shall not be precluded from
the admission of reliable hearsay evidence. The burden of establishing
any of the mitigating factors set forth in subdivision nine of this
section shall be on the defendant, and must be proven by a preponderance
of the evidence. The people shall not offer evidence or argument
relating to any mitigating factor except in rebuttal of evidence offered
by the defendant.

7. (a) The people may present evidence at the sentencing proceeding to
prove that in the ten year period prior to the commission of the crime
of murder in the first degree for which the defendant was convicted, the
defendant has previously been convicted of two or more offenses
committed on different occasions; provided, that each such offense shall
be either (i) a class A felony offense other than one defined in article
two hundred twenty of the penal law, a class B violent felony offense
specified in paragraph (a) of subdivision one of section 70.02 of the
penal law, or a felony offense under the penal law a necessary element
of which involves either the use or attempted use or threatened use of a
deadly weapon or the intentional infliction of or the attempted
intentional infliction of serious physical injury or death, or (ii) an
offense under the laws of another state or of the United States
punishable by a term of imprisonment of more than one year a necessary
element of which involves either the use or attempted use or threatened
use of a deadly weapon or the intentional infliction of or the attempted
intentional infliction of serious physical injury or death. For the
purpose of this paragraph, the term "deadly weapon" shall have the
meaning set forth in subdivision twelve of section 10.00 of the penal
law. In calculating the ten year period under this paragraph, any period
of time during which the defendant was incarcerated for any reason
between the time of commission of any of the prior felony offenses and
the time of commission of the crime of murder in the first degree shall
be excluded and such ten year period shall be extended by a period or
periods equal to the time served under such incarceration. The
defendant's conviction of two or more such offenses shall, if proven at
the sentencing proceeding, constitute an aggravating factor.

(b) In order to be deemed established, an aggravating factor set forth
in this subdivision must be proven by the people beyond a reasonable
doubt and the jury must unanimously find such factor to have been so
proven. The defendant may present evidence relating to an aggravating
factor defined in this subdivision and either party may offer evidence
in rebuttal. Any evidence presented by either party relating to such
factor shall be subject to the rules governing admission of evidence in
the trial of a criminal action.

(c) Whenever the people intend to offer evidence of an aggravating
factor set forth in this subdivision, the people must within a
reasonable time prior to trial file with the court and serve upon the
defendant a notice of intention to offer such evidence. Whenever the
people intend to offer evidence of the aggravating factor set forth in
paragraph (a) of this subdivision, the people shall file with the notice
of intention to offer such evidence a statement setting forth the date
and place of each of the alleged offenses in paragraph (a) of this
subdivision. The provisions of section 400.15 of this chapter, except
for subdivisions one and two thereof, shall be followed.

8. Consistent with the provisions of this section, the people and the
defendant shall be given fair opportunity to rebut any evidence received
at the separate sentencing proceeding.

9. Mitigating factors shall include the following:

(a) The defendant has no significant history of prior criminal
convictions involving the use of violence against another person;

(b) The defendant was mentally retarded at the time of the crime, or
the defendant's mental capacity was impaired or his ability to conform
his conduct to the requirements of law was impaired but not so impaired
in either case as to constitute a defense to prosecution;

(c) The defendant was under duress or under the domination of another
person, although not such duress or domination as to constitute a
defense to prosecution;

(d) The defendant was criminally liable for the present offense of
murder committed by another, but his participation in the offense was
relatively minor although not so minor as to constitute a defense to
prosecution;

(e) The murder was committed while the defendant was mentally or
emotionally disturbed or under the influence of alcohol or any drug,
although not to such an extent as to constitute a defense to
prosecution; or

(f) Any other circumstance concerning the crime, the defendant's state
of mind or condition at the time of the crime, or the defendant's
character, background or record that would be relevant to mitigation or
punishment for the crime.

* 10. 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 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 between twenty and twenty-five years and a maximum term
of life. 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 shall
govern the deliberations of the jury.

* NB The jury deadlock instruction prescribed in sub 10 declared
UNCONSTITUTIONAL under Article 1, Section 6 of the state Constitution

11. (a) The jury may not direct imposition of a sentence of death
unless it unanimously finds beyond a reasonable doubt that the
aggravating factor or factors substantially outweigh the mitigating
factor or factors established, if any, and unanimously determines that
the penalty of death should be imposed. Any member or members of the
jury who find a mitigating factor to have been proven by the defendant
by a preponderance of the evidence may consider such factor established
regardless of the number of jurors who concur that the factor has been
established.

(b) If the jury directs imposition of either a sentence of death or
life imprisonment without parole, it shall specify on the record those
mitigating and aggravating factors considered and those mitigating
factors established by the defendant, if any.

(c) With respect to a count or concurrent counts of murder in the
first degree, the court may direct the jury to cease deliberation with
respect to the sentence or sentences to be imposed if the jury has
deliberated for an extensive period of time without reaching unanimous
agreement on the sentence or sentences to be imposed and the court is
satisfied that any such agreement is unlikely within a reasonable time.
The provisions of this paragraph shall apply with respect to consecutive
counts of murder in the first degree. In the event the jury is unable to
reach unanimous agreement, the court must sentence the defendant in
accordance with subdivisions one through three of section 70.00 of the
penal law with respect to any count or counts of murder in the first
degree upon which the jury failed to reach unanimous agreement as to the
sentence to be imposed.

(d) If the jury unanimously determines that a sentence of death should
be imposed, the court must thereupon impose a sentence of death.
Thereafter, however, the court may, upon written motion of the
defendant, set aside the sentence of death upon any of the grounds set
forth in section 330.30. The procedures set forth in sections 330.40 and
330.50, as applied to separate sentencing proceedings under this
section, shall govern the motion and the court upon granting the motion
shall, except as may otherwise be required by subdivision one of section
330.50, direct a new sentencing proceeding pursuant to this section.
Upon granting the motion upon any of the grounds set forth in section
330.30 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.

(e) If the jury unanimously determines that a sentence of life
imprisonment without parole should be imposed the court must thereupon
impose a sentence of life imprisonment without parole.

(f) Where a sentence has been unanimously determined by the jury it
must be recorded on the minutes and read to the jury, and the jurors
must be collectively asked whether such is their sentence. 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 sentence announced by the foreman is in all respects
his or her sentence. If, upon either the collective or the separate
inquiry, any juror answers in the negative, the court must refuse to
accept the sentence and must direct the jury to resume its deliberation.
If no disagreement is expressed, the jury must be discharged from the
case.

12. (a) Upon the conviction of a defendant for the offense of murder
in the first degree as defined in section 125.27 of the penal law, the
court shall, upon oral or written motion of the defendant based upon a
showing that there is reasonable cause to believe that the defendant is
mentally retarded, promptly conduct a hearing without a jury to
determine whether the defendant is mentally retarded. Upon the consent
of both parties, such a hearing, or a portion thereof, may be conducted
by the court contemporaneously with the separate sentencing proceeding
in the presence of the sentencing jury, which in no event shall be the
trier of fact with respect to the hearing. At such hearing the defendant
has the burden of proof by a preponderance of the evidence that he or
she is mentally retarded. The court shall defer rendering any finding
pursuant to this subdivision as to whether the defendant is mentally
retarded until a sentence is imposed pursuant to this section.

(b) In the event the defendant is sentenced pursuant to this section
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, the court shall not render a finding
with respect to whether the defendant 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 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. If the court finds the defendant is not mentally retarded, then
such sentence of death shall not be set aside pursuant to this
subdivision.

(d) In the event that a defendant is convicted of murder in the first
degree pursuant to subparagraph (iii) of paragraph (a) of subdivision
one of section 125.27 of the penal law, and the killing occurred while
the defendant was confined or under custody in a state correctional
facility or local correctional institution, and a sentence of death is
imposed, such sentence may not be set aside pursuant to this subdivision
upon the ground that the defendant is mentally retarded. Nothing in this
paragraph or paragraph (a) of this subdivision shall preclude a
defendant from presenting mitigating evidence of mental retardation at
the separate sentencing proceeding.

(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
is mentally retarded, apply for an order directing that a mental
retardation 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
proceeding under this section shall not be conducted if the defendant is
thereafter 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 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.
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 general intellectual
functioning existing concurrently with deficits in adaptive behavior
which were manifested before the age of eighteen.

(f) In the event the court enters an order pursuant to paragraph (e)
of this subdivision finding that the defendant is mentally retarded, the
people may appeal as of right from the order pursuant to subdivision ten
of section 450.20 of this chapter. Upon entering such an order 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 finding that the defendant is mentally retarded. The taking of an
appeal by the people stays the effectiveness of the court's order and
any order fixing a date for trial. Within six months of the effective
date of this subdivision, the court of appeals shall adopt rules to
ensure that appeals pursuant to this paragraph are expeditiously
perfected, reviewed and determined so that pretrial delays are
minimized. Prior to adoption of the rules, the court of appeals shall
issue proposed rules and receive written comments thereon from
interested parties.

13. (a) As used in this subdivision, the term "psychiatric evidence"
means evidence of mental disease, defect or condition in connection with
either a mitigating factor defined in this section or a mental
retardation hearing pursuant to this section to be offered by a
psychiatrist, psychologist or other person who has received training, or
education, or has experience relating to the identification, diagnosis,
treatment or evaluation of mental disease, mental defect or mental
condition.

(b) When either party intends to offer psychiatric evidence, the party
must, within a reasonable time prior to trial, serve upon the other
party and file with the court a written notice of intention to present
psychiatric evidence. The notice shall include a brief but detailed
statement specifying the witness, nature and type of psychiatric
evidence sought to be introduced. If either party fails to serve and
file written notice, no psychiatric evidence is admissible unless the
party failing to file thereafter serves and files such notice and the
court affords the other party an adjournment for a reasonable period. If
a party fails to give timely notice, the court in its discretion may
impose upon offending counsel a reasonable monetary sanction for an
intentional failure but may not in any event preclude the psychiatric
evidence. In the event a monetary sanction is imposed, the offending
counsel shall be personally liable therefor, and shall not receive
reimbursement of any kind from any source in order to pay the cost of
such monetary sanction. Nothing contained herein shall preclude the
court from entering an order directing a party to provide timely notice.

(c) When a defendant serves notice pursuant to this subdivision, the
district attorney may make application, upon notice to the defendant,
for an order directing that the defendant submit to an examination by a
psychiatrist, licensed psychologist, or licensed clinical social worker
designated by the district attorney, for the purpose of rebutting
evidence offered by the defendant with respect to a mental disease,
defect, or condition in connection with either a mitigating factor
defined in this section, including whether the defendant was acting
under duress, was mentally or emotionally disturbed or mentally
retarded, or was under the influence of alcohol or any drug. If the
application is granted, the district attorney shall schedule a time and
place for the examination, which shall be recorded. Counsel for the
people and the defendant shall have the right to be present at the
examination. A transcript of the examination shall be made available to
the defendant and the district attorney promptly after its conclusion.
The district attorney shall promptly serve on the defendant a written
copy of the findings and evaluation of the examiner. If the court finds
that the defendant has wilfully refused to cooperate fully in an
examination pursuant to this paragraph, it shall, upon request of the
district attorney, instruct the jury that the defendant did not submit
to or cooperate fully in such psychiatric examination. When a defendant
is subjected to an examination pursuant to an order issued in accordance
with this subdivision, any statement made by the defendant for the
purpose of the examination shall be inadmissible in evidence against him
in any criminal action or proceeding on any issue other than that of
whether a mitigating factor has been established or whether the
defendant is mentally retarded, but such statement is admissible upon
such an issue whether or not it would otherwise be deemed a privileged
communication.

14. (a) At a reasonable time prior to the sentencing proceeding or a
mental retardation hearing:

(i) the prosecutor shall, unless previously disclosed and subject to a
protective order, make available to the defendant the statements and
information specified in subdivision one of section 245.20 of this part
and make available for inspection, photographing, copying or testing the
property specified in subdivision one of section 245.20; and

(ii) the defendant shall, unless previously disclosed and subject to a
protective order, make available to the prosecution the statements and
information specified in subdivision four of section 245.20 and make
available for inspection, photographing, copying or testing, subject to
constitutional limitations, the reports, documents and other property
specified in section 245.20 of this part.

(b) Where a party refuses to make disclosure pursuant to this section,
the provisions of section 245.70, 245.75 and/or 245.80 of this part
shall apply.

(c) If, after complying with the provisions of this section or an
order pursuant thereto, a party finds either before or during a
sentencing proceeding or mental retardation hearing, additional material
subject to discovery or covered by court order, the party shall promptly
make disclosure or apply for a protective order.

(d) If the court finds that a party has failed to comply with any of
the provisions of this section, the court may employ any of the remedies
or sanctions specified in subdivision one of section 245.80 of this
part.

15. The court of appeals shall formulate and adopt rules for the
development of forms for use by the jury in recording its findings and
determinations of sentence.