|SAME AS||No Same As|
|Amd §400.27, CP L|
|Relates to capital punishment.|
|08/07/2017||REFERRED TO RULES|
|01/03/2018||REFERRED TO CODES|
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STATE OF NEW YORK ________________________________________________________________________ 6846 2017-2018 Regular Sessions IN SENATE August 7, 2017 ___________ Introduced by Sen. GOLDEN -- read twice and ordered printed, and when printed to be committed to the Committee on Rules AN ACT to amend the criminal procedure law, in relation to capital punishment The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision 1 of section 400.27 of the criminal procedure 2 law, as added by chapter 1 of the laws of 1995, is amended to read as 3 follows: 4 1. Upon [ the] conviction of a defendant for the offense of murder in 5 the first degree as defined by section 125.27 of the penal law, the 6 court shall promptly conduct a separate sentencing proceeding to deter- 7 mine whether the defendant shall be sentenced to death [ or], to life 8 imprisonment without parole pursuant to subdivision five of section 9 70.00 of the penal law, or to a sentence of imprisonment for the class 10 A-I felony of murder in the first degree other than a sentence of life 11 imprisonment without parole. Nothing in this section shall be deemed to 12 preclude the people at any time from determining that the death penalty 13 shall not be sought in a particular case, in which case the separate 14 sentencing proceeding shall not be conducted and the court may sentence 15 such defendant to life imprisonment without parole or to a sentence of 16 imprisonment for the class A-I felony of murder in the first degree 17 other than a sentence of life imprisonment without parole. 18 § 2. Subdivision 10 of section 400.27 of the criminal procedure law, 19 as added by chapter 1 of the laws of 1995, is amended to read as 20 follows: 21 10. (a) At the conclusion of all the evidence, the people and the 22 defendant may present argument in summation for or against the sentence 23 sought by the people. The people may deliver the first summation and the 24 defendant may then deliver the last summation. Thereafter, the court 25 shall deliver a charge to the jury on any matters appropriate in the EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD13352-01-7S. 6846 2 1 circumstances. In its charge, the court must instruct the jury that with 2 respect to each count of murder in the first degree the jury should 3 consider whether or not a sentence of death should be imposed and wheth- 4 er or not a sentence of life imprisonment without parole should be 5 imposed[ ,] and [ that the jury must be unanimous with respect to either6 sentence. The court must also instruct the jury that in the event the7 jury fails to reach unanimous agreement with respect to the sentence,8 the court will sentence the defendant to a term of imprisonment with a9 minimum term of between twenty and twenty-five years and a maximum term10 of life. Following the court's charge, the jury shall retire to consider11 the sentence to be imposed. Unless inconsistent with the provisions of12 this section, the provisions of sections 310.10, 310.20 and 310.30 shall13 govern the deliberations of the jury] whether or not a sentence to a 14 term of imprisonment with a minimum term of between twenty and twenty- 15 five years, to be determined by the court, and a maximum term of life 16 imprisonment should be imposed. 17 (b) The court must instruct the jury that the jury must be unanimous 18 with respect to the sentence to be imposed. The court must also instruct 19 the jury that in the event the jury fails to reach unanimous agreement 20 with respect to the sentence, the court will sentence the defendant to a 21 term of life imprisonment without parole. 22 (c) Following the court's charge, the jury shall retire to consider 23 the sentence to be imposed. Unless inconsistent with the provisions of 24 this section, the provisions of sections 310.10, 310.20 and 310.30 of 25 this chapter shall govern the deliberations of the jury. 26 § 3. Subdivision 11 of section 400.27 of the criminal procedure law, 27 as added by chapter 1 of the laws of 1995, is amended to read as 28 follows: 29 11. (a) The jury may not direct imposition of a sentence of death 30 unless it unanimously finds beyond a reasonable doubt that the aggravat- 31 ing factor or factors substantially outweigh the mitigating factor or 32 factors established, if any, and unanimously determines that the penalty 33 of death should be imposed. Any member or members of the jury who find a 34 mitigating factor to have been proven by the defendant by a preponder- 35 ance of the evidence may consider such factor established regardless of 36 the number of jurors who concur that the factor has been established. 37 (b) If the jury directs imposition of [ either] a sentence of death 38 [ or], a sentence of life imprisonment without parole, or a sentence to a 39 term of imprisonment with a minimum term of between twenty and twenty- 40 five years, to be determined by the court, and a maximum term of life 41 imprisonment, it shall specify on the record those mitigating and aggra- 42 vating factors considered and those mitigating factors established by 43 the defendant, if any. 44 (c) With respect to a count or concurrent counts of murder in the 45 first degree, the court may direct the jury to cease deliberation with 46 respect to the sentence or sentences to be imposed if the jury has 47 deliberated for an extensive period of time without reaching unanimous 48 agreement on the sentence or sentences to be imposed and the court is 49 satisfied that any such agreement is unlikely within a reasonable time. 50 The provisions of this paragraph shall apply with respect to consecutive 51 counts of murder in the first degree. In the event the jury is unable to 52 reach unanimous agreement, the court must sentence the defendant in 53 accordance with [ subdivisions one through three] subdivision five of 54 section 70.00 of the penal law with respect to any count or counts of 55 murder in the first degree upon which the jury failed to reach unanimous 56 agreement as to the sentence to be imposed.S. 6846 3 1 (d) If the jury unanimously determines that a sentence of death should 2 be imposed, the court must thereupon impose a sentence of death. There- 3 after, however, the court may, upon written motion of the defendant, set 4 aside the sentence of death upon any of the grounds set forth in section 5 330.30 of this chapter. The procedures set forth in sections 330.40 and 6 330.50 of this chapter, as applied to separate sentencing proceedings 7 under this section, shall govern the motion and the court upon granting 8 the motion shall, except as may otherwise be required by subdivision one 9 of section 330.50 of this chapter, direct a new sentencing proceeding 10 pursuant to this section. Upon granting the motion upon any of the 11 grounds set forth in section 330.30 of this chapter and setting aside 12 the sentence, the court must afford the people a reasonable period of 13 time, which shall not be less than ten days, to determine whether to 14 take an appeal from the order setting aside the sentence of death. The 15 taking of an appeal by the people stays the effectiveness of that 16 portion of the court's order that directs a new sentencing proceeding. 17 (e) If the jury unanimously determines that a sentence of life impri- 18 sonment without parole should be imposed, the court must thereupon 19 impose a sentence of life imprisonment without parole. 20 (e-1) If the jury unanimously determines that a sentence to a term of 21 imprisonment with a minimum term of between twenty and twenty-five 22 years, to be determined by the court, and a maximum term of life impri- 23 sonment should be imposed, the court must thereupon impose such 24 sentence. 25 (f) Where a sentence has been unanimously determined by the jury it 26 must be recorded on the minutes and read to the jury, and the jurors 27 must be collectively asked whether such is their sentence. Even though 28 no juror makes any declaration in the negative, the jury must, if either 29 party makes such an application, be polled and each juror separately 30 asked whether the sentence announced by the foreman is in all respects 31 his or her sentence. If, upon either the collective or the separate 32 inquiry, any juror answers in the negative, the court must refuse to 33 accept the sentence and must direct the jury to resume its deliberation. 34 If no disagreement is expressed, the jury must be discharged from the 35 case. 36 § 4. Severability. If any clause, sentence, paragraph, subdivision, 37 section or part of this act shall be adjudged by any court of competent 38 jurisdiction to be invalid, such judgment shall not affect, impair, or 39 invalidate the remainder thereof, but shall be confined in its operation 40 to the clause, sentence, paragraph, subdivision, section or part thereof 41 directly involved in the controversy in which such judgment shall have 42 been rendered. It is hereby declared to be the intent of the legislature 43 that this act would have been enacted even if such invalid provisions 44 had not been included therewith. 45 § 5. This act shall take effect immediately, and shall apply to crimes 46 committed prior to, on or after the effective date of this act.