Amd SS60.06 & 70.00, Pen L; amd SS270.30, 310.80, 440.20 & 470.30, rpld S220.10 sub 5 (e), S220.30 sub 3 (b)
sub (vii), SS250.40, 270.16, 270.55, 400.27, 450.70 & 450.80, S270.20 sub 1 (f), S450.20 sub 10, S460.40 sub
3, CP L; rpld SS35-b & 211-a, Judy L; rpld S707, County L; rpld Art 22-A, Cor L; rpld S63-d, S837-a sub 7,
S837-l, Exec L
Eliminate the provisions of law establishing the imposition of the death penalty for a conviction of murder in the first degree; repeals inconsistent provisions.
STATE OF NEW YORK
________________________________________________________________________
623
2011-2012 Regular Sessions
IN ASSEMBLY(Prefiled)
January 5, 2011
___________
Introduced by M. of A. WRIGHT, O'DONNELL, KAVANAGH -- Multi-Sponsored by
-- M. of A. GOTTFRIED -- read once and referred to the Committee on
Codes
AN ACT to amend the penal law and the criminal procedure law, in
relation to eliminating the imposition of the death penalty; and to
repeal certain provisions of the criminal procedure law, the judiciary
law, the county law, the correction law and the executive law relating
to the imposition of the death penalty
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,]
12 sentence the defendant [to death,] to life imprisonment without parole
13 in accordance with subdivision five of section 70.00 of this title, or
14 to a term of imprisonment for a class A-I felony other than a sentence
15 of life imprisonment without parole, in accordance with subdivisions one
16 through three of section 70.00 of this title. When a person is convicted
17 of 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, the court shall
20 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.
LBD03585-01-1
A. 623 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 section 125.27 of this chapter such mini-
28 mum period shall be not less than twenty years nor more than twenty-five
29 years, and, (B) where a sentence is imposed upon a defendant convicted
30 of murder in the second degree as defined in subdivision five of section
31 125.25 of this chapter or convicted of aggravated murder as defined in
32 section 125.26 of this chapter, the sentence shall be life imprisonment
33 without parole, and, (C) where a sentence is imposed upon a defendant
34 convicted of attempted murder in the first degree as defined in article
35 one hundred ten of this chapter and subparagraph (i), (ii) or (iii) of
36 paragraph (a) of subdivision one and paragraph (b) of subdivision one of
37 section 125.27 of this chapter or attempted aggravated murder as defined
38 in article one hundred ten of this chapter and section 125.26 of this
39 chapter such minimum period shall be not less than twenty years nor more
40 than forty years.
41 § 3. Paragraph (e) of subdivision 5 of section 220.10 of the criminal
42 procedure law is REPEALED.
43 § 4. Subparagraph (vii) of paragraph (b) of subdivision 3 of section
44 220.30 of the criminal procedure law is REPEALED.
45 § 5. Sections 250.40, 270.16, 270.55, 400.27, 450.70 and 450.80 of the
46 criminal procedure law are REPEALED.
47 § 6. Paragraph (f) of subdivision 1 of section 270.20 of the criminal
48 procedure law is REPEALED.
49 § 7. Section 270.30 of the criminal procedure law, as amended by chap-
50 ter 1 of the laws of 1995, is amended to read as follows:
51 § 270.30 Trial jury; alternate jurors.
52 [1.] Immediately after the last trial juror is sworn, the court may in
53 its discretion direct the selection of one or more, but not more than
54 six additional jurors to be known as "alternate jurors"[, except that,
55 in a prosecution under section 125.27 of the penal law, the court may,
56 in its discretion, direct the selection of as many alternate jurors as
A. 623 3
1 the court determines to be appropriate]. Alternate jurors must be drawn
2 in the same manner, must have the same qualifications, must be subject
3 to the same examination and challenges for cause and must take the same
4 oath as the regular jurors. After the jury has retired to deliberate,
5 the court must either (1) with the consent of the defendant and the
6 people, discharge the alternate jurors or (2) direct the alternate
7 jurors not to discuss the case and must further direct that they be kept
8 separate and apart from the regular jurors.
9 [2. In any prosecution in which the people seek a sentence of death,
10 the court shall not discharge the alternate jurors when the jury retires
11 to deliberate upon its verdict and the alternate jurors, in the
12 discretion of the court, may be continuously kept together under the
13 supervision of an appropriate public servant or servants until such time
14 as the jury returns its verdict. If the jury returns a verdict of guilty
15 to a charge for which the death penalty may be imposed, the alternate
16 jurors shall not be discharged and shall remain available for service
17 during any separate sentencing proceeding which may be conducted pursu-
18 ant to section 400.27.]
19 § 8. Section 310.80 of the criminal procedure law, as amended by chap-
20 ter 1 of the laws of 1995, is amended to read as follows:
21 § 310.80 Recording and checking of verdict and polling of jury.
22 After a verdict has been rendered, it must be recorded on the minutes
23 and read to the jury, and the jurors must be collectively asked whether
24 such is their verdict. Even though no juror makes any declaration in the
25 negative, the jury must, if either party makes such an application, be
26 polled and each juror separately asked whether the verdict announced by
27 the foreman is in all respects his verdict. If upon either the collec-
28 tive or the separate inquiry any juror answers in the negative, the
29 court must refuse to accept the verdict and must direct the jury to
30 resume its deliberation. If no disagreement is expressed, the jury must
31 be discharged from the case[, except as otherwise provided in section
32 400.27].
33 § 9. Subdivision 1 of section 440.20 of the criminal procedure law, as
34 amended by chapter 1 of the laws of 1995, is amended to read as follows:
35 1. At any time after the entry of a judgment, the court in which the
36 judgment was entered may, upon motion of the defendant, set aside the
37 sentence upon the ground that it was unauthorized, illegally imposed or
38 otherwise invalid as a matter of law. [Where the judgment includes a
39 sentence of death, the court may also set aside the sentence upon any of
40 the grounds set forth in paragraph (b), (c), (f), (g) or (h) of subdivi-
41 sion one of section 440.10 as applied to a separate sentencing proceed-
42 ing under section 400.27, provided, however, that to the extent the
43 ground or grounds asserted include one or more of the aforesaid para-
44 graphs of subdivision one of section 440.10, the court must also apply
45 subdivisions two and three of section 440.10, other than paragraph (d)
46 of subdivision two of such section, in determining the motion. In the
47 event the court enters an order granting a motion to set aside a
48 sentence of death under this section, the court must either direct a new
49 sentencing proceeding in accordance with section 400.27 or, to the
50 extent that the defendant cannot be resentenced to death consistent with
51 the laws of this state or the constitution of this state or of the
52 United States, resentence the defendant to life imprisonment without
53 parole or to a sentence of imprisonment for the class A-I felony of
54 murder in the first degree other than a sentence of life imprisonment
55 without parole. Upon granting the motion upon any of the grounds set
56 forth in the aforesaid paragraphs of subdivision one of section 440.10
A. 623 4
1 and setting aside the sentence, the court must afford the people a
2 reasonable period of time, which shall not be less than ten days, to
3 determine whether to take an appeal from the order setting aside the
4 sentence of death. The taking of an appeal by the people stays the
5 effectiveness of that portion of the court's order that directs a new
6 sentencing proceeding.]
7 § 10. Subdivision 10 of section 450.20 of the criminal procedure law
8 is REPEALED.
9 § 11. Subdivision 3 of section 460.40 of the criminal procedure law is
10 REPEALED.
11 § 12. Section 470.30 of the criminal procedure law, as amended by
12 chapter 1 of the laws of 1995, is amended to read as follows:
13 § 470.30 Determination by court of appeals of appeals taken directly
14 thereto from judgments and orders of criminal courts.
15 [1.] Wherever appropriate, the rules set forth in sections 470.15 and
16 470.20, governing the consideration and determination by intermediate
17 appellate courts of appeals thereto from judgments and orders of crimi-
18 nal courts, and prescribing their scope of review and the corrective
19 action to be taken by them upon reversal or modification, apply equally
20 to the consideration and determination by the court of appeals of
21 appeals taken directly thereto, [pursuant to sections 450.70 and
22 450.80,] from judgments and orders of superior criminal courts.
23 [2. Whenever a sentence of death is imposed, the judgment and sentence
24 shall be reviewed on the record by the court of appeals. Review by the
25 court of appeals pursuant to subdivision one of section 450.70 may not
26 be waived.
27 3. With regard to the sentence, the court shall, in addition to exer-
28 cising the powers and scope of review granted under subdivision one of
29 this section, determine:
30 (a) whether the sentence of death was imposed under the influence of
31 passion, prejudice, or any other arbitrary or legally impermissible
32 factor including whether the imposition of the verdict or sentence was
33 based upon the race of the defendant or a victim of the crime for which
34 the defendant was convicted;
35 (b) whether the sentence of death is excessive or disproportionate to
36 the penalty imposed in similar cases considering both the crime and the
37 defendant. In conducting such review the court, upon request of the
38 defendant, in addition to any other determination, shall review whether
39 the sentence of death is excessive or disproportionate to the penalty
40 imposed in similar cases by virtue of the race of the defendant or a
41 victim of the crime for which the defendant was convicted; and
42 (c) whether the decision to impose the sentence of death was against
43 the weight of the evidence.
44 4. The court shall include in its decision: (a) the aggravating and
45 mitigating factors established in the record on appeal; and
46 (b) those similar cases it took into consideration.
47 5. In addition to exercising any other corrective action pursuant to
48 subdivision one of this section, the court, with regard to review of a
49 sentence of death, shall be authorized to:
50 (a) affirm the sentence of death; or
51 (b) set the sentence aside and remand the case for resentencing pursu-
52 ant to the procedures set forth in section 400.27 for a determination as
53 to whether the defendant shall be sentenced to death, life imprisonment
54 without parole or to a term of imprisonment for the class A-I felony of
55 murder in the first degree other than a sentence of life imprisonment
56 without parole; or
A. 623 5
1 (c) set the sentence aside and remand the case for resentencing by the
2 court for a determination as to whether the defendant shall be sentenced
3 to life imprisonment without parole or to a term of imprisonment for the
4 class A-I felony of murder in the first degree other than a sentence of
5 life imprisonment without parole.]
6 § 13. Sections 35-b and 211-a of the judiciary law are REPEALED.
7 § 14. Section 707 of the county law is REPEALED.
8 § 15. Article 22-A of the correction law is REPEALED.
9 § 16. Section 63-d of the executive law is REPEALED.
10 § 17. Subdivision 7 of section 837-a of the executive law is REPEALED.
11 § 18. Section 837-1 of the executive law is REPEALED.
12 § 19. This act shall take effect immediately and shall be deemed to
13 have been in full force and effect on and after September 1, 1996.
