Classifies as murder in the first degree a deliberate and premeditated design to effect death by a cold-blooded killer; permits jury to choose prison for less than life; specifies that if the jury is not unanimous, the court will impose life without parole.
STATE OF NEW YORK
________________________________________________________________________
2809
2009-2010 Regular Sessions
IN ASSEMBLY
January 21, 2009
___________
Introduced by M. of A. SCHIMMINGER -- Multi-Sponsored by -- M. of A.
TOWNS -- read once and referred to the Committee on Codes
AN ACT to amend the penal law and the criminal procedure law, in
relation to a killing involving a deliberate and premeditated design
to kill and sentencing procedures for 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. Subparagraph (xiii) of paragraph (a) of subdivision 1 of
2 section 125.27 of the penal law, as added by chapter 300 of the laws of
3 2001, is amended and a new subparagraph (xiv) is added to read as
4 follows:
5 (xiii) the victim was killed in furtherance of an act of terrorism, as
6 defined in paragraph (b) of subdivision one of section 490.05 of this
7 chapter; [and] or
8 (xiv) the killing resulted from a deliberate and premeditated design
9 to effect the death of the person killed. As used in this subparagraph,
10 "deliberate and premeditated design" means that the defendant engaged in
11 a process of calm and careful reflection and planning, over a substan-
12 tial period of time, prior to the killing, sufficient to permit the jury
13 to conclude that the defendant is a cold-blooded killer; and
14 § 2. Subdivision 1 of section 400.27 of the criminal procedure law, as
15 added by chapter 1 of the laws of 1995, is amended to read as follows:
16 1. Upon [the] conviction of a defendant for the offense of murder in
17 the first degree as defined by section 125.27 of the penal law, the
18 court shall promptly conduct a separate sentencing proceeding to deter-
19 mine whether the defendant shall be sentenced to death or to life impri-
20 sonment without parole pursuant to subdivision five of section 70.00 of
21 the penal law, or to a sentence of imprisonment for the class A-I felony
22 of murder in the first degree other than a sentence of life imprisonment
23 without parole. Nothing in this section shall be deemed to preclude the
24 people at any time from determining that the death penalty shall not be
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03803-01-9
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1 sought in a particular case, in which case the separate sentencing
2 proceeding shall not be conducted and the court may sentence such
3 defendant to life imprisonment without parole or to a sentence of impri-
4 sonment for the class A-I felony of murder in the first degree other
5 than a sentence of life imprisonment without parole.
6 § 3. Subdivision 10 of section 400.27 of the criminal procedure law,
7 as added by chapter 1 of the laws of 1995, is amended to read as
8 follows:
9 10. (a) At the conclusion of all the evidence, the people and the
10 defendant may present argument in summation for or against the sentence
11 sought by the people. The people may deliver the first summation and the
12 defendant may then deliver the last summation. Thereafter, the court
13 shall deliver a charge to the jury on any matters appropriate in the
14 circumstances. In its charge, the court must instruct the jury that with
15 respect to each count of murder in the first degree the jury should
16 consider whether or not a sentence of death should be imposed and wheth-
17 er or not a sentence of life imprisonment without parole should be
18 imposed[,] and [that the jury must be unanimous with respect to either
19 sentence. The court must also instruct the jury that in the event the
20 jury fails to reach unanimous agreement with respect to the sentence,
21 the court will sentence the defendant to a term of imprisonment with a
22 minimum term of between twenty and twenty-five years and a maximum term
23 of life. Following the court's charge, the jury shall retire to consider
24 the sentence to be imposed. Unless inconsistent with the provisions of
25 this section, the provisions of sections 310.10, 310.20 and 310.30 shall
26 govern the deliberations of the jury] whether or not a sentence to a
27 term of imprisonment with a minimum term of between twenty and twenty-
28 five years, to be determined by the court, and a maximum term of life
29 imprisonment should be imposed.
30 (b) The court must instruct the jury that the jury must be unanimous
31 with respect to the sentence to be imposed. The court must also instruct
32 the jury that in the event that the jury fails to reach unanimous agree-
33 ment with respect to the sentence, the court will sentence the defendant
34 to a term of life imprisonment without parole.
35 (c) Following the court's charge, the jury shall retire to consider
36 the sentence to be imposed. Unless inconsistent with the provisions of
37 this section, the provisions of sections 310.10, 310.20 and 310.30 of
38 this chapter shall govern the deliberations of the jury.
39 § 4. Subdivision 11 of section 400.27 of the criminal procedure law,
40 as added by chapter 1 of the laws of 1995, is amended to read as
41 follows:
42 11. (a) The jury may not direct imposition of a sentence of death
43 unless it unanimously finds beyond a reasonable doubt that the aggravat-
44 ing factor or factors substantially outweigh the mitigating factor or
45 factors established, if any, and unanimously determines that the penalty
46 of death should be imposed. Any member or members of the jury who find a
47 mitigating factor to have been proven by the defendant by a preponder-
48 ance of the evidence may consider such factor established regardless of
49 the number of jurors who concur that the factor has been established.
50 (b) If the jury directs imposition of [either] a sentence of death
51 [or], a sentence of life imprisonment without parole, or a sentence to a
52 term of imprisonment with a minimum term of between twenty and twenty-
53 five years, to be determined by the court, and a maximum term of life
54 imprisonment, it shall specify on the record those mitigating and aggra-
55 vating factors considered and those mitigating factors established by
56 the defendant, if any.
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1 (c) With respect to a count or concurrent counts of murder in the
2 first degree, the court may direct the jury to cease deliberation with
3 respect to the sentence or sentences to be imposed if the jury has
4 deliberated for an extensive period of time without reaching unanimous
5 agreement on the sentence or sentences to be imposed and the court is
6 satisfied that any such agreement is unlikely within a reasonable time.
7 The provisions of this paragraph shall apply with respect to consecutive
8 counts of murder in the first degree. In the event the jury is unable to
9 reach unanimous agreement, the court must sentence the defendant in
10 accordance with [subdivisions one through three] subdivision five of
11 section 70.00 of the penal law with respect to any count or counts of
12 murder in the first degree upon which the jury failed to reach unanimous
13 agreement as to the sentence to be imposed.
14 (d) If the jury unanimously determines that a sentence of death should
15 be imposed, the court must thereupon impose a sentence of death. There-
16 after, however, the court may, upon written motion of the defendant, set
17 aside the sentence of death upon any of the grounds set forth in section
18 330.30 of this part. The procedures set forth in sections 330.40 and
19 330.50 of this part, as applied to separate sentencing proceedings under
20 this section, shall govern the motion and the court upon granting the
21 motion shall, except as may otherwise be required by subdivision one of
22 section 330.50 of this part, direct a new sentencing proceeding pursuant
23 to this section. Upon granting the motion upon any of the grounds set
24 forth in section 330.30 of this part and setting aside the sentence, the
25 court must afford the people a reasonable period of time, which shall
26 not be less than ten days, to determine whether to take an appeal from
27 the order setting aside the sentence of death. The taking of an appeal
28 by the people stays the effectiveness of that portion of the court's
29 order that directs a new sentencing proceeding.
30 (e) If the jury unanimously determines that a sentence of life impri-
31 sonment without parole should be imposed the court must thereupon impose
32 a sentence of life imprisonment without parole.
33 (e-1) If the jury unanimously determines that a sentence to a term of
34 imprisonment with a minimum term of between twenty and twenty-five
35 years, to be determined by the court, and a maximum term of life impri-
36 sonment should be imposed, the court must thereupon impose such
37 sentence.
38 (f) Where a sentence has been unanimously determined by the jury it
39 must be recorded on the minutes and read to the jury, and the jurors
40 must be collectively asked whether such is their sentence. Even though
41 no juror makes any declaration in the negative, the jury must, if either
42 party makes such an application, be polled and each juror separately
43 asked whether the sentence announced by the foreman is in all respects
44 his or her sentence. If, upon either the collective or the separate
45 inquiry, any juror answers in the negative, the court must refuse to
46 accept the sentence and must direct the jury to resume its deliberation.
47 If no disagreement is expressed, the jury must be discharged from the
48 case.
49 § 5. Severability. If any clause, sentence, paragraph, subdivision,
50 section or part of this act shall be adjudged by any court of competent
51 jurisdiction to be invalid, such judgement shall not affect, impair, or
52 invalidate the remainder thereof, but shall be confined in its operation
53 to the clause, sentence, paragraph, subdivision, section or part thereof
54 directly involved in the controversy in which such judgement shall have
55 been rendered. It is hereby declared to be the intent of the legislature
A. 2809 4
1 that this act would have been enacted even if such invalid provisions
2 had not been included therewith.
3 § 6. This act shall take effect immediately, and shall apply to crimes
4 committed prior to, on, or after the effective date of this act.
