Bill Text: NY A02811 | 2009-2010 | General Assembly | Introduced
Bill Title: An act to amend the penal law and the criminal procedure law, in relation to a killing involving an especially vulnerable victim and sentencing procedures for murder in the first degree
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2010-01-06 - referred to codes [A02811 Detail]
Download: New_York-2009-A02811-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
2811
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 an especially vulnerable victim 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 VICTIM WAS ESPECIALLY VULNERABLE BECAUSE OF SIGNIFICANT
9 MENTAL OR PHYSICAL DISABILITY AND THE DEFENDANT KNEW OR SHOULD HAVE
10 KNOWN OF THE DISABILITY. FOR PURPOSES OF THIS SUBPARAGRAPH "DISABILITY"
11 SHALL INCLUDE MENTAL OR PHYSICAL IMPAIRMENT, CAUSED BY DISEASE, AGE,
12 INJURY, FUNCTIONAL DISORDER OR CONGENITAL CONDITIONS; "IMPAIRMENT" SHALL
13 MEAN THAT THE VICTIM WAS SUBSTANTIALLY LIMITED IN PERFORMING MAJOR LIFE
14 ACTIVITIES, OR WAS INCAPABLE OF ADEQUATELY PROVIDING FOR HIS OR HER OWN
15 HEALTH OR PERSONAL CARE; AND "VULNERABLE" SHALL MEAN THAT THE VICTIM WAS
16 MENTALLY OR PHYSICALLY UNABLE TO TAKE REASONABLE ACTION IN SELF-DEFENSE;
17 AND
18 S 2. Subdivision 1 of section 400.27 of the criminal procedure law, as
19 added by chapter 1 of the laws of 1995, is amended to read as follows:
20 1. Upon [the] conviction of a defendant for the offense of murder in
21 the first degree as defined by section 125.27 of the penal law, the
22 court shall promptly conduct a separate sentencing proceeding to deter-
23 mine whether the defendant shall be sentenced to death or to life impri-
24 sonment without parole pursuant to subdivision five of section 70.00 of
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03801-01-9
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1 the penal law, OR TO A SENTENCE OF IMPRISONMENT FOR THE CLASS A-I FELONY
2 OF MURDER IN THE FIRST DEGREE OTHER THAN A SENTENCE OF LIFE IMPRISONMENT
3 WITHOUT PAROLE. Nothing in this section shall be deemed to preclude the
4 people at any time from determining that the death penalty shall not be
5 sought in a particular case, in which case the separate sentencing
6 proceeding shall not be conducted and the court may sentence such
7 defendant to life imprisonment without parole or to a sentence of impri-
8 sonment for the class A-I felony of murder in the first degree other
9 than a sentence of life imprisonment without parole.
10 S 3. Subdivision 10 of section 400.27 of the criminal procedure law,
11 as added by chapter 1 of the laws of 1995, is amended to read as
12 follows:
13 10. (A) At the conclusion of all the evidence, the people and the
14 defendant may present argument in summation for or against the sentence
15 sought by the people. The people may deliver the first summation and the
16 defendant may then deliver the last summation. Thereafter, the court
17 shall deliver a charge to the jury on any matters appropriate in the
18 circumstances. In its charge, the court must instruct the jury that with
19 respect to each count of murder in the first degree the jury should
20 consider whether or not a sentence of death should be imposed and wheth-
21 er or not a sentence of life imprisonment without parole should be
22 imposed[,] and [that the jury must be unanimous with respect to either
23 sentence. The court must also instruct the jury that in the event the
24 jury fails to reach unanimous agreement with respect to the sentence,
25 the court will sentence the defendant to a term of imprisonment with a
26 minimum term of between twenty and twenty-five years and a maximum term
27 of life. Following the court's charge, the jury shall retire to consider
28 the sentence to be imposed. Unless inconsistent with the provisions of
29 this section, the provisions of sections 310.10, 310.20 and 310.30 shall
30 govern the deliberations of the jury] WHETHER OR NOT A SENTENCE TO A
31 TERM OF IMPRISONMENT WITH A MINIMUM TERM OF BETWEEN TWENTY AND
32 TWENTY-FIVE YEARS, TO BE DETERMINED BY THE COURT, AND A MAXIMUM TERM OF
33 LIFE IMPRISONMENT SHOULD BE IMPOSED.
34 (B) THE COURT MUST INSTRUCT THE JURY THAT THE JURY MUST BE UNANIMOUS
35 WITH RESPECT TO THE SENTENCE TO BE IMPOSED. THE COURT MUST ALSO INSTRUCT
36 THE JURY THAT IN THE EVENT THAT THE JURY FAILS TO REACH UNANIMOUS AGREE-
37 MENT WITH RESPECT TO THE SENTENCE, THE COURT WILL SENTENCE THE DEFENDANT
38 TO A TERM OF LIFE IMPRISONMENT WITHOUT PAROLE.
39 (C) FOLLOWING THE COURT'S CHARGE, THE JURY SHALL RETIRE TO CONSIDER
40 THE SENTENCE TO BE IMPOSED. UNLESS INCONSISTENT WITH THE PROVISIONS OF
41 THIS SECTION, THE PROVISIONS OF SECTIONS 310.10, 310.20 AND 310.30 OF
42 THIS CHAPTER SHALL GOVERN THE DELIBERATIONS OF THE JURY.
43 S 4. Subdivision 11 of section 400.27 of the criminal procedure law,
44 as added by chapter 1 of the laws of 1995, is amended to read as
45 follows:
46 11. (a) The jury may not direct imposition of a sentence of death
47 unless it unanimously finds beyond a reasonable doubt that the aggravat-
48 ing factor or factors substantially outweigh the mitigating factor or
49 factors established, if any, and unanimously determines that the penalty
50 of death should be imposed. Any member or members of the jury who find a
51 mitigating factor to have been proven by the defendant by a preponder-
52 ance of the evidence may consider such factor established regardless of
53 the number of jurors who concur that the factor has been established.
54 (b) If the jury directs imposition of [either] a sentence of death
55 [or], A SENTENCE OF life imprisonment without parole, OR A SENTENCE TO A
56 TERM OF IMPRISONMENT WITH A MINIMUM TERM OF BETWEEN TWENTY AND
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1 TWENTY-FIVE YEARS, TO BE DETERMINED BY THE COURT, AND A MAXIMUM TERM OF
2 LIFE IMPRISONMENT, it shall specify on the record those mitigating and
3 aggravating factors considered and those mitigating factors established
4 by the defendant, if any.
5 (c) With respect to a count or concurrent counts of murder in the
6 first degree, the court may direct the jury to cease deliberation with
7 respect to the sentence or sentences to be imposed if the jury has
8 deliberated for an extensive period of time without reaching unanimous
9 agreement on the sentence or sentences to be imposed and the court is
10 satisfied that any such agreement is unlikely within a reasonable time.
11 The provisions of this paragraph shall apply with respect to consecutive
12 counts of murder in the first degree. In the event the jury is unable to
13 reach unanimous agreement, the court must sentence the defendant in
14 accordance with [subdivisions one through three] SUBDIVISION FIVE of
15 section 70.00 of the penal law with respect to any count or counts of
16 murder in the first degree upon which the jury failed to reach unanimous
17 agreement as to the sentence to be imposed.
18 (d) If the jury unanimously determines that a sentence of death should
19 be imposed, the court must thereupon impose a sentence of death. There-
20 after, however, the court may, upon written motion of the defendant, set
21 aside the sentence of death upon any of the grounds set forth in section
22 330.30 OF THIS PART. The procedures set forth in sections 330.40 and
23 330.50 OF THIS PART, as applied to separate sentencing proceedings under
24 this section, shall govern the motion and the court upon granting the
25 motion shall, except as may otherwise be required by subdivision one of
26 section 330.50 OF THIS PART, direct a new sentencing proceeding pursuant
27 to this section. Upon granting the motion upon any of the grounds set
28 forth in section 330.30 OF THIS PART and setting aside the sentence, the
29 court must afford the people a reasonable period of time, which shall
30 not be less than ten days, to determine whether to take an appeal from
31 the order setting aside the sentence of death. The taking of an appeal
32 by the people stays the effectiveness of that portion of the court's
33 order that directs a new sentencing proceeding.
34 (e) If the jury unanimously determines that a sentence of life impri-
35 sonment without parole should be imposed the court must thereupon impose
36 a sentence of life imprisonment without parole.
37 (E-1) IF THE JURY UNANIMOUSLY DETERMINES THAT A SENTENCE TO A TERM OF
38 IMPRISONMENT WITH A MINIMUM TERM OF BETWEEN TWENTY AND TWENTY-FIVE
39 YEARS, TO BE DETERMINED BY THE COURT, AND A MAXIMUM TERM OF LIFE IMPRI-
40 SONMENT SHOULD BE IMPOSED, THE COURT MUST THEREUPON IMPOSE SUCH
41 SENTENCE.
42 (f) Where a sentence has been unanimously determined by the jury it
43 must be recorded on the minutes and read to the jury, and the jurors
44 must be collectively asked whether such is their sentence. Even though
45 no juror makes any declaration in the negative, the jury must, if either
46 party makes such an application, be polled and each juror separately
47 asked whether the sentence announced by the foreman is in all respects
48 his or her sentence. If, upon either the collective or the separate
49 inquiry, any juror answers in the negative, the court must refuse to
50 accept the sentence and must direct the jury to resume its deliberation.
51 If no disagreement is expressed, the jury must be discharged from the
52 case.
53 S 5. Severability. If any clause, sentence, paragraph, subdivision,
54 section or part of this act shall be adjudged by any court of competent
55 jurisdiction to be invalid, such judgement shall not affect, impair, or
56 invalidate the remainder thereof, but shall be confined in its operation
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1 to the clause, sentence, paragraph, subdivision, section or part thereof
2 directly involved in the controversy in which such judgement shall have
3 been rendered. It is hereby declared to be the intent of the legislature
4 that this act would have been enacted even if such invalid provisions
5 had not been included therewith.
6 S 6. This act shall take effect immediately, and shall apply to crimes
7 committed prior to, on, or after the effective date of this act.
