NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5165
SPONSOR: DeStefano (MS) TITLE OF BILL:
An act to amend the penal law and the criminal procedure law, in
relation to sentencing for the commission of certain provisions of
murder in the first degree
PURPOSE OR GENERAL IDEA OF BILL:
To reinstate the death penalty for the intentional murder of a police
officer, peace officer or an employee of the Department of Correctional
Services.
SUMMARY OF PROVISIONS:
Section 1 sets forth the legislative intent to address the holding of
the New York Court of Appeals holdings in People v. LaValle, 3 N.Y.3d
388 (2004) and People v. Taylor, 9 N.Y.3d 129(2007) and reinstates the
death penalty for those who intentionally murder a police officer, peace
officer, an employee of a State correctional institution, or an employee
of a local correctional facility.Sections 2, 3 and 4 amend provisions of
current law to provide that any person who is convicted of the inten-
tional murder of a police officer, peace officer, an employee of a State
correctional institution, or an employee of a local correctional facili-
ty pursuant to provisions of current law defining the crime of 1st
degree murder shall, if the jury elects not to impose the sentence of
death, be sentenced to life imprisonment without parole.Section 5 of the
bill provides that the legislation shall take effect immediately and
shall apply to acts committed on and after such date
JUSTIFICATION:
In 2004, the Court of Appeals in the case of People v. LaValle held that
the deadlock instruction given to a jury in a capital case to inform the
jury that if it is deadlocked, the defendant is automatically sentenced
to an indeterminate sentence with a minimum term of between 20 and 25
years and maximum term of life imprisonment, impermissibly inserts
concern regarding the defendant's future dangerousness into the jury
deliberations, and thereby potentially coerces a juror, who might prefer
a sentence of life without parole, to vote instead for a sentence of
death so as to preclude the defendant's future release. The Court of
Appeals did not hold that the death penalty was inappropriate for cases
in which aggravating circumstances which are grounds for death penalty
are present, but rather held that the procedure for imposing the death
penalty was flawed.In 2007, the Court of Appeals, in People v. Taylor,
relied upon the precedent set in People v. LaValle to vacate the death
sentence even though the defendant was convicted of multiple first
degree murders and\ there was no possibility that he would be released
from incarceration before his death. While the concerns regarding the
deadlock instruction that existed in LaValle were not present in Taylor,
the Court could not allow the death sentence to stand because the Court,
in LaValle, held that the death penalty could not be imposed under the
existing statute.Chapter 765 of the Laws of 2005 enacted the "Crimes
Against Police Act". Part of that law created the new crime of aggra-
vated murder, which is deemed to occur when a person intentionally
murders a police officer, peace officer, an employee of a State correc-
tional institution, or an employee of a local correctional facility. The
only sentence which may be imposed for the crime of aggravated murder is
life imprisonment with- out parole. Because of the holding in the
LaValle case, current law does not allow the imposition of the death
penalty upon a person who is convicted of intentionally murdering a
police officer, peace officer, an employee of a State correctional
institution, or an employee of a local correctional facility. In Taylor,
the Court stated "Indeed, the needed correction may be as simple as
enacting a sentencing statute that provides for life without parole if
the jury cannot unanimously agree on death." This bill adopts the
Court's suggestion for the correction to t he deadlock instruction and
fashions a new deadlock instruction using the Court's suggested
language.
PRIOR LEGISLATIVE HISTORY:
A.3481 of of 2023/24 - referred to codes,
A.3741 of 2021/22 - held for consideration in codes,
A.1726 of 2017/18 - referred to codes,
A.9401 of 2015/16 - referred to codes,
A.7613 of 2013-14 - referred to codes,
A.8390 of 2011/12 - referred to codes,
A.1070 of 2009/10 - referred to codes,
A.7799 of 2007/08 - referred to codes
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None to the state.
EFFECTIVE DATE:
Legislation shall take effect immediately and shall apply to acts
committed on and after such date
STATE OF NEW YORK
________________________________________________________________________
5165
2025-2026 Regular Sessions
IN ASSEMBLY
February 12, 2025
___________
Introduced by M. of A. DeSTEFANO, BRABENEC, MORINELLO, REILLY, E. BROWN,
K. BROWN, ANGELINO, LEMONDES -- Multi-Sponsored by -- M. of A. HAWLEY
-- read once and referred to the Committee on Codes
AN ACT to amend the penal law and the criminal procedure law, in
relation to sentencing for the commission of certain provisions of
murder in the first degree
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 60.06 of the penal law, as amended by chapter 482
2 of the laws of 2009, is amended to read as follows:
3 § 60.06 Authorized disposition; murder in the first degree offenders;
4 aggravated murder offenders; certain murder in the second
5 degree offenders; certain terrorism offenders; criminal
6 possession of a chemical weapon or biological weapon offen-
7 ders; criminal use of a chemical weapon or biological weapon
8 offenders.
9 When a defendant is convicted of murder in the first degree as defined
10 in section 125.27 of this chapter, the court shall, in accordance with
11 the provisions of section 400.27 of the criminal procedure law, sentence
12 the defendant to death, to life imprisonment without parole in accord-
13 ance with subdivision five of section 70.00 of this title, or to a term
14 of imprisonment for a class A-I felony other than a sentence of life
15 imprisonment without parole, in accordance with subdivisions one through
16 three of section 70.00 of this title. When a person is convicted of
17 murder in the second degree as defined in subdivision five of section
18 125.25 of this chapter or of the crime of aggravated murder as defined
19 in subdivision one of section 125.26 of this chapter, or of the crime of
20 murder in the first degree as defined in subparagraph (i), (ii), (ii-a)
21 or (iii) of paragraph (a) of subdivision one of section 125.27 of this
22 chapter and the sentence of death is not imposed the court shall
23 sentence the defendant to life imprisonment without parole in accordance
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08205-01-5
A. 5165 2
1 with subdivision five of section 70.00 of this title. When a defendant
2 is convicted of the crime of terrorism as defined in section 490.25 of
3 this chapter, and the specified offense the defendant committed is a
4 class A-I felony offense, or when a defendant is convicted of the crime
5 of criminal possession of a chemical weapon or biological weapon in the
6 first degree as defined in section 490.45 of this chapter, or when a
7 defendant is convicted of the crime of criminal use of a chemical weapon
8 or biological weapon in the first degree as defined in section 490.55 of
9 this chapter, the court shall sentence the defendant to life imprison-
10 ment without parole in accordance with subdivision five of section 70.00
11 of this title; provided, however, that nothing in this section shall
12 preclude or prevent a sentence of death when the defendant is also
13 convicted of murder in the first degree as defined in section 125.27 of
14 this chapter. When a defendant is convicted of aggravated murder as
15 defined in subdivision two of section 125.26 of this chapter, the court
16 shall sentence the defendant to life imprisonment without parole or to a
17 term of imprisonment for a class A-I felony other than a sentence of
18 life imprisonment without parole, in accordance with subdivisions one
19 through three of section 70.00 of this title.
20 § 2. Subparagraph (i) of paragraph (a) of subdivision 3 of section
21 70.00 of the penal law, as amended by chapter 107 of the laws of 2006,
22 is amended to read as follows:
23 (i) For a class A-I felony, such minimum period shall not be less than
24 fifteen years nor more than twenty-five years; provided, however, that
25 (A) where a sentence, other than a sentence of death or life imprison-
26 ment without parole, is imposed upon a defendant convicted of murder in
27 the first degree as defined in subparagraph (iv), (v), (vi), (vii),
28 (viii), (ix), (x), (xi), (xii) or (xiii) of paragraph (a) of subdivision
29 one of section 125.27 of this chapter such minimum period shall be not
30 less than twenty years nor more than twenty-five years, and, (B) where a
31 sentence is imposed upon a defendant convicted of murder in the second
32 degree as defined in subdivision five of section 125.25 of this chapter
33 or convicted of aggravated murder as defined in section 125.26 of this
34 chapter, or where a sentence, other than a sentence of death, is imposed
35 upon a defendant convicted of murder in the first degree as defined in
36 subparagraph (i), (ii), (ii-a) or (iii) of paragraph (a) of subdivision
37 one of section 125.27 of this chapter, the sentence shall be life impri-
38 sonment without parole, and, (C) where a sentence is imposed upon a
39 defendant convicted of attempted murder in the first degree as defined
40 in article one hundred ten of this chapter and subparagraph (i), (ii),
41 (ii-a) or (iii) of paragraph (a) of subdivision one and paragraph (b) of
42 subdivision one of section 125.27 of this chapter or attempted aggra-
43 vated murder as defined in article one hundred ten of this chapter and
44 section 125.26 of this chapter such minimum period shall be not less
45 than twenty years nor more than forty years.
46 § 3. Subdivision 5 of section 70.00 of the penal law, as amended by
47 section 40-a of part WWW of chapter 59 of the laws of 2017, is amended
48 to read as follows:
49 5. Life imprisonment without parole. Notwithstanding any other
50 provision of law, a defendant sentenced to life imprisonment without
51 parole shall not be or become eligible for parole or conditional
52 release. For purposes of commitment and custody, other than parole and
53 conditional release, such sentence shall be deemed to be an indetermi-
54 nate sentence. A defendant may be sentenced to life imprisonment without
55 parole upon conviction for the crime of murder in the first degree as
56 defined in section 125.27 of this chapter and in accordance with the
A. 5165 3
1 procedures provided by law for imposing a sentence for such crime. A
2 defendant who was eighteen years of age or older at the time of the
3 commission of the crime must be sentenced to life imprisonment without
4 parole upon conviction for the crime of terrorism as defined in section
5 490.25 of this chapter, where the specified offense the defendant
6 committed is a class A-I felony; the crime of criminal possession of a
7 chemical weapon or biological weapon in the first degree as defined in
8 section 490.45 of this chapter; or the crime of criminal use of a chemi-
9 cal weapon or biological weapon in the first degree as defined in
10 section 490.55 of this chapter; provided, however, that nothing in this
11 subdivision shall preclude or prevent a sentence of death when the
12 defendant is also convicted of the crime of murder in the first degree
13 as defined in section 125.27 of this chapter. A defendant who was seven-
14 teen years of age or younger at the time of the commission of the crime
15 may be sentenced, in accordance with law, to the applicable indetermi-
16 nate sentence with a maximum term of life imprisonment. A defendant must
17 be sentenced to life imprisonment without parole upon conviction for the
18 crime of murder in the second degree as defined in subdivision five of
19 section 125.25 of this chapter or for the crime of aggravated murder as
20 defined in subdivision one of section 125.26 of this chapter. A defend-
21 ant may be sentenced to life imprisonment without parole upon conviction
22 for the crime of aggravated murder as defined in subdivision two of
23 section 125.26 of this chapter or for the crime of murder in the first
24 degree as defined in subparagraph (i), (ii), (ii-a) or (iii) of para-
25 graph (a) of subdivision one of section 125.27 of this chapter and the
26 sentence of death is not imposed.
27 § 4. Subdivisions 1 and 10 of section 400.27 of the criminal procedure
28 law, as added by chapter 1 of the laws of 1995, are amended to read as
29 follows:
30 1. Upon [the] conviction of a defendant for the offense of murder in
31 the first degree as defined by subparagraph (i), (ii), (ii-a) or (iii)
32 of paragraph (a) of subdivision one of section 125.27 of the penal law,
33 the court shall promptly conduct a separate sentencing proceeding to
34 determine whether the defendant shall be sentenced to death or to life
35 imprisonment without parole pursuant to subdivision five of section
36 70.00 of the penal law. Nothing in this section shall be deemed to
37 preclude the people at any time from determining that the death penalty
38 shall not be sought in a particular case, in which case the separate
39 sentencing proceeding shall not be conducted and the court may sentence
40 such defendant to life imprisonment without parole [or to a sentence of
41 imprisonment for the class A-I felony of murder in the first degree
42 other than a sentence of life imprisonment without parole].
43 10. (a) At the conclusion of all the evidence, the people and the
44 defendant may present argument in summation for or against the sentence
45 sought by the people. The people may deliver the first summation and the
46 defendant may then deliver the last summation. Thereafter, the court
47 shall deliver a charge to the jury on any matters appropriate in the
48 circumstances. In its charge, the court must instruct the jury that with
49 respect to each count of murder in the first degree, as defined in
50 subparagraph (i), (ii), (ii-a) or (iii) of paragraph (a) of subdivision
51 one of section 125.27 of the penal law, the jury should consider whether
52 or not a sentence of death should be imposed and whether or not a
53 sentence of life imprisonment without parole should be imposed[, and
54 that the jury must be unanimous with respect to either sentence. The
55 court must also instruct the jury that in the event the jury fails to
56 reach unanimous agreement with respect to the sentence, the court will
A. 5165 4
1 sentence the defendant to a term of imprisonment with a minimum term of
2 between twenty and twenty-five years and a maximum term of life. Follow-
3 ing the court's charge, the jury shall retire to consider the sentence
4 to be imposed. Unless inconsistent with the provisions of this section,
5 the provisions of sections 310.10, 310.20 and 310.30 shall govern the
6 deliberations of the jury].
7 (b) The court must instruct the jury that the jury must be unanimous
8 with respect to the sentence to be imposed. The court must also instruct
9 the jury that in the event the jury fails to reach unanimous agreement
10 with respect to the sentence, the court will sentence the defendant to a
11 term of life imprisonment without parole.
12 (c) Following the court's charge, the jury shall retire to consider
13 the sentence to be imposed. Unless inconsistent with the provisions of
14 this section, the provisions of sections 310.10, 310.20 and 310.30 of
15 this part shall govern the deliberations of the jury.
16 § 5. This act shall take effect immediately and shall apply to
17 offenses committed on or after such effective date.
