S T A T E O F N E W Y O R K ________________________________________________________________________ 2809 2009-2010 Regular Sessions I N A S S E M B L Y 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 S 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 A. 2809 2 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 S 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 28 TWENTY-FIVE YEARS, TO BE DETERMINED BY THE COURT, AND A MAXIMUM TERM OF 29 LIFE 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 S 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 53 TWENTY-FIVE YEARS, TO BE DETERMINED BY THE COURT, AND A MAXIMUM TERM OF 54 LIFE IMPRISONMENT, it shall specify on the record those mitigating and 55 aggravating factors considered and those mitigating factors established 56 by the defendant, if any. A. 2809 3 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 S 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 S 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.