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
Eliminates 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
________________________________________________________________________
4010
2015-2016 Regular Sessions
IN ASSEMBLY
January 28, 2015
___________
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
21 with subdivision five of section 70.00 of this title. When a defendant
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05542-01-5
A. 4010 2
1 is convicted of the crime of terrorism as defined in section 490.25 of
2 this chapter, and the specified offense the defendant committed is a
3 class A-I felony offense, or when a defendant is convicted of the crime
4 of criminal possession of a chemical weapon or biological weapon in the
5 first degree as defined in section 490.45 of this chapter, or when a
6 defendant is convicted of the crime of criminal use of a chemical weapon
7 or biological weapon in the first degree as defined in section 490.55 of
8 this chapter, the court shall sentence the defendant to life imprison-
9 ment without parole in accordance with subdivision five of section 70.00
10 of this title; provided, however, that nothing in this section shall
11 preclude or prevent a sentence of death when the defendant is also
12 convicted of murder in the first degree as defined in section 125.27 of
13 this chapter. When a defendant is convicted of aggravated murder as
14 defined in subdivision two of section 125.26 of this chapter, the court
15 shall sentence the defendant to life imprisonment without parole or to a
16 term of imprisonment for a class A-I felony other than a sentence of
17 life imprisonment without parole, in accordance with subdivisions one
18 through three of section 70.00 of this title.
19 § 2. Subparagraph (i) of paragraph (a) of subdivision 3 of section
20 70.00 of the penal law, as amended by chapter 107 of the laws of 2006,
21 is amended to read as follows:
22 (i) For a class A-I felony, such minimum period shall not be less than
23 fifteen years nor more than twenty-five years; provided, however, that
24 (A) where a sentence, other than a sentence of [death or] life imprison-
25 ment without parole, is imposed upon a defendant convicted of murder in
26 the first degree as defined in section 125.27 of this chapter such mini-
27 mum period shall be not less than twenty years nor more than twenty-five
28 years, and, (B) where a sentence is imposed upon a defendant convicted
29 of murder in the second degree as defined in subdivision five of section
30 125.25 of this chapter or convicted of aggravated murder as defined in
31 section 125.26 of this chapter, the sentence shall be life imprisonment
32 without parole, and, (C) where a sentence is imposed upon a defendant
33 convicted of attempted murder in the first degree as defined in article
34 one hundred ten of this chapter and subparagraph (i), (ii) or (iii) of
35 paragraph (a) of subdivision one and paragraph (b) of subdivision one of
36 section 125.27 of this chapter or attempted aggravated murder as defined
37 in article one hundred ten of this chapter and section 125.26 of this
38 chapter such minimum period shall be not less than twenty years nor more
39 than forty years.
40 § 3. Paragraph (e) of subdivision 5 of section 220.10 of the criminal
41 procedure law is REPEALED.
42 § 4. Subparagraph (vii) of paragraph (b) of subdivision 3 of section
43 220.30 of the criminal procedure law is REPEALED.
44 § 5. Sections 250.40, 270.16, 270.55, 400.27, 450.70 and 450.80 of the
45 criminal procedure law are REPEALED.
46 § 6. Paragraph (f) of subdivision 1 of section 270.20 of the criminal
47 procedure law is REPEALED.
48 § 7. Section 270.30 of the criminal procedure law, as amended by chap-
49 ter 1 of the laws of 1995, is amended to read as follows:
50 § 270.30 Trial jury; alternate jurors.
51 [1.] Immediately after the last trial juror is sworn, the court may in
52 its discretion direct the selection of one or more, but not more than
53 six additional jurors to be known as "alternate jurors"[, except that,
54 in a prosecution under section 125.27 of the penal law, the court may,
55 in its discretion, direct the selection of as many alternate jurors as
56 the court determines to be appropriate]. Alternate jurors must be drawn
A. 4010 3
1 in the same manner, must have the same qualifications, must be subject
2 to the same examination and challenges for cause and must take the same
3 oath as the regular jurors. After the jury has retired to deliberate,
4 the court must either (1) with the consent of the defendant and the
5 people, discharge the alternate jurors or (2) direct the alternate
6 jurors not to discuss the case and must further direct that they be kept
7 separate and apart from the regular jurors.
8 [2. In any prosecution in which the people seek a sentence of death,
9 the court shall not discharge the alternate jurors when the jury retires
10 to deliberate upon its verdict and the alternate jurors, in the
11 discretion of the court, may be continuously kept together under the
12 supervision of an appropriate public servant or servants until such time
13 as the jury returns its verdict. If the jury returns a verdict of guilty
14 to a charge for which the death penalty may be imposed, the alternate
15 jurors shall not be discharged and shall remain available for service
16 during any separate sentencing proceeding which may be conducted pursu-
17 ant to section 400.27.]
18 § 8. Section 310.80 of the criminal procedure law, as amended by chap-
19 ter 1 of the laws of 1995, is amended to read as follows:
20 § 310.80 Recording and checking of verdict and polling of jury.
21 After a verdict has been rendered, it must be recorded on the minutes
22 and read to the jury, and the jurors must be collectively asked whether
23 such is their verdict. Even though no juror makes any declaration in the
24 negative, the jury must, if either party makes such an application, be
25 polled and each juror separately asked whether the verdict announced by
26 the foreman is in all respects his verdict. If upon either the collec-
27 tive or the separate inquiry any juror answers in the negative, the
28 court must refuse to accept the verdict and must direct the jury to
29 resume its deliberation. If no disagreement is expressed, the jury must
30 be discharged from the case[, except as otherwise provided in section
31 400.27].
32 § 9. Subdivision 1 of section 440.20 of the criminal procedure law, as
33 amended by chapter 1 of the laws of 1995, is amended to read as follows:
34 1. At any time after the entry of a judgment, the court in which the
35 judgment was entered may, upon motion of the defendant, set aside the
36 sentence upon the ground that it was unauthorized, illegally imposed or
37 otherwise invalid as a matter of law. [Where the judgment includes a
38 sentence of death, the court may also set aside the sentence upon any of
39 the grounds set forth in paragraph (b), (c), (f), (g) or (h) of subdivi-
40 sion one of section 440.10 as applied to a separate sentencing proceed-
41 ing under section 400.27, provided, however, that to the extent the
42 ground or grounds asserted include one or more of the aforesaid para-
43 graphs of subdivision one of section 440.10, the court must also apply
44 subdivisions two and three of section 440.10, other than paragraph (d)
45 of subdivision two of such section, in determining the motion. In the
46 event the court enters an order granting a motion to set aside a
47 sentence of death under this section, the court must either direct a new
48 sentencing proceeding in accordance with section 400.27 or, to the
49 extent that the defendant cannot be resentenced to death consistent with
50 the laws of this state or the constitution of this state or of the
51 United States, resentence the defendant to life imprisonment without
52 parole or to a sentence of imprisonment for the class A-I felony of
53 murder in the first degree other than a sentence of life imprisonment
54 without parole. Upon granting the motion upon any of the grounds set
55 forth in the aforesaid paragraphs of subdivision one of section 440.10
56 and setting aside the sentence, the court must afford the people a
A. 4010 4
1 reasonable period of time, which shall not be less than ten days, to
2 determine whether to take an appeal from the order setting aside the
3 sentence of death. The taking of an appeal by the people stays the
4 effectiveness of that portion of the court's order that directs a new
5 sentencing proceeding.]
6 § 10. Subdivision 10 of section 450.20 of the criminal procedure law
7 is REPEALED.
8 § 11. Subdivision 3 of section 460.40 of the criminal procedure law is
9 REPEALED.
10 § 12. Section 470.30 of the criminal procedure law, as amended by
11 chapter 1 of the laws of 1995, is amended to read as follows:
12 § 470.30 Determination by court of appeals of appeals taken directly
13 thereto from judgments and orders of criminal courts.
14 [1.] Wherever appropriate, the rules set forth in sections 470.15 and
15 470.20, governing the consideration and determination by intermediate
16 appellate courts of appeals thereto from judgments and orders of crimi-
17 nal courts, and prescribing their scope of review and the corrective
18 action to be taken by them upon reversal or modification, apply equally
19 to the consideration and determination by the court of appeals of
20 appeals taken directly thereto, [pursuant to sections 450.70 and
21 450.80,] from judgments and orders of superior criminal courts.
22 [2. Whenever a sentence of death is imposed, the judgment and sentence
23 shall be reviewed on the record by the court of appeals. Review by the
24 court of appeals pursuant to subdivision one of section 450.70 may not
25 be waived.
26 3. With regard to the sentence, the court shall, in addition to exer-
27 cising the powers and scope of review granted under subdivision one of
28 this section, determine:
29 (a) whether the sentence of death was imposed under the influence of
30 passion, prejudice, or any other arbitrary or legally impermissible
31 factor including whether the imposition of the verdict or sentence was
32 based upon the race of the defendant or a victim of the crime for which
33 the defendant was convicted;
34 (b) whether the sentence of death is excessive or disproportionate to
35 the penalty imposed in similar cases considering both the crime and the
36 defendant. In conducting such review the court, upon request of the
37 defendant, in addition to any other determination, shall review whether
38 the sentence of death is excessive or disproportionate to the penalty
39 imposed in similar cases by virtue of the race of the defendant or a
40 victim of the crime for which the defendant was convicted; and
41 (c) whether the decision to impose the sentence of death was against
42 the weight of the evidence.
43 4. The court shall include in its decision: (a) the aggravating and
44 mitigating factors established in the record on appeal; and
45 (b) those similar cases it took into consideration.
46 5. In addition to exercising any other corrective action pursuant to
47 subdivision one of this section, the court, with regard to review of a
48 sentence of death, shall be authorized to:
49 (a) affirm the sentence of death; or
50 (b) set the sentence aside and remand the case for resentencing pursu-
51 ant to the procedures set forth in section 400.27 for a determination as
52 to whether the defendant shall be sentenced to death, life imprisonment
53 without parole or to a term 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; or
A. 4010 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.
