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S06846 Summary:

BILL NOS06846
 
SAME ASNo Same As
 
SPONSORGOLDEN
 
COSPNSR
 
MLTSPNSR
 
Amd 400.27, CP L
 
Relates to capital punishment.
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S06846 Actions:

BILL NOS06846
 
08/07/2017REFERRED TO RULES
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S06846 Memo:

Memo not available
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S06846 Text:



 
                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.
                                                                   LBD13352-01-7

        S. 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  either
     6  sentence.  The  court  must also instruct the jury that in the event the
     7  jury fails to reach unanimous agreement with respect  to  the  sentence,
     8  the  court  will sentence the defendant to a term of imprisonment with a
     9  minimum term of between twenty and twenty-five years and a maximum  term
    10  of life. Following the court's charge, the jury shall retire to consider
    11  the  sentence  to be imposed. Unless inconsistent with the provisions of
    12  this section, the provisions of sections 310.10, 310.20 and 310.30 shall
    13  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.
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