Bill Text: NY A05007 | 2011-2012 | General Assembly | Introduced
Bill Title: Enacts "Nixzmary Brown's Law" to establish the class A-I felony of aggravated murder of a child for which the sentence shall be life imprisonment without parole; aggravated murder of a child shall include the intentional killing of a person under 14 while in the course of committing rape, criminal sexual act, aggravated sexual abuse or incest against such child, or the depraved indifferent or intentional killing of a person under 14 while being legally responsible for the care of such child; makes technical corrections relating to the offense of aggravated murder; repeals provisions of murder in the second degree which mirror certain provisions of aggravated murder of a child; treats the offenses of aggravated murder and aggravated murder of a child in a manner similar to murder in the first degree.
Spectrum: Slight Partisan Bill (Democrat 43-19)
Status: (Introduced - Dead) 2011-04-20 - enacting clause stricken [A05007 Detail]
Download: New_York-2011-A05007-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 5007 2011-2012 Regular Sessions I N A S S E M B L Y February 10, 2011 ___________ Introduced by M. of A. MAYERSOHN, N. RIVERA, ABBATE, CLARK, COLTON, GALEF, NOLAN, PHEFFER, J. RIVERA, WEISENBERG, GANTT -- Multi-Sponsored by -- M. of A. ARROYO, BARCLAY, BENEDETTO, BOYLAND, BURLING, BUTLER, CALHOUN, CONTE, CROUCH, CUSICK, CYMBROWITZ, DESTITO, DINOWITZ, ENGLE- BRIGHT, FINCH, FITZPATRICK, GUNTHER, HAYES, HIKIND, HOOPER, HOYT, JACOBS, KOLB, LATIMER, LAVINE, V. LOPEZ, LUPARDO, MAGEE, MAGNARELLI, MARKEY, J. MILLER, MOLINARO, MORELLE, OAKS, ORTIZ, PAULIN, PERRY, PRETLOW, RABBITT, RAIA, REILICH, REILLY, SALADINO, SAYWARD, SCHIMMING- ER, SCHROEDER, SWEENEY, TEDISCO, THIELE, TOWNS, WEPRIN -- read once and referred to the Committee on Codes AN ACT to amend the penal law, the criminal procedure law, the judiciary law and the vehicle and traffic law, in relation to establishing the offense of aggravated murder of a child and making technical corrections relating to aggravated murder; to amend the estates, powers and trusts law, the executive law and the social services law, in relation to aggravated murder of a child; and to repeal subdivision 5 of section 125.25 of the penal law relating to the murder of a person under 14 years of age while in the course of committing certain sex offenses THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Short title. This act shall be known and may be cited as 2 "Nixzmary Brown's Law". 3 S 2. Section 60.06 of the penal law, as amended by chapter 482 of the 4 laws of 2009, is amended to read as follows: 5 S 60.06 Authorized disposition; murder in the first degree offenders; 6 aggravated murder offenders; AGGRAVATED MURDER OF CHILD OFFEN- 7 DERS; certain murder in the second degree offenders; certain 8 terrorism offenders; criminal possession of a chemical weapon 9 or biological weapon offenders; criminal use of a chemical 10 weapon or biological weapon offenders. EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04616-01-1 A. 5007 2 1 When a defendant is convicted of murder in the first degree as defined 2 in section 125.27 of this chapter, the court shall, in accordance with 3 the provisions of section 400.27 of the criminal procedure law, sentence 4 the defendant to death, to life imprisonment without parole in accord- 5 ance with subdivision five of section 70.00 of this title, or to a term 6 of imprisonment for a class A-I felony other than a sentence of life 7 imprisonment without parole, in accordance with subdivisions one through 8 three of section 70.00 of this title. When a person is convicted of 9 [murder in the second degree as defined in subdivision five of section 10 125.25 of this chapter or of] the crime of aggravated murder as defined 11 in subdivision one of section 125.26 of this chapter OR OF THE CRIME OF 12 AGGRAVATED MURDER OF A CHILD AS DEFINED IN SECTION 125.28 OF THIS CHAP- 13 TER, the court shall sentence the defendant to life imprisonment without 14 parole in accordance with subdivision five of section 70.00 of this 15 title. When a defendant is convicted of the crime of terrorism as 16 defined in section 490.25 of this chapter, and the specified offense the 17 defendant committed is a class A-I felony offense, or when a defendant 18 is convicted of the crime of criminal possession of a chemical weapon or 19 biological weapon in the first degree as defined in section 490.45 of 20 this chapter, or when a defendant is convicted of the crime of criminal 21 use of a chemical weapon or biological weapon in the first degree as 22 defined in section 490.55 of this chapter, the court shall sentence the 23 defendant to life imprisonment without parole in accordance with subdi- 24 vision five of section 70.00 of this title; provided, however, that 25 nothing in this section shall preclude or prevent a sentence of death 26 when the defendant is also convicted of murder in the first degree as 27 defined in section 125.27 of this chapter. When a defendant is convicted 28 of aggravated murder as defined in subdivision two of section 125.26 of 29 this chapter, the court shall sentence the defendant to life imprison- 30 ment without parole or to a term of imprisonment for a class A-I felony 31 other than a sentence of life imprisonment without parole, in accordance 32 with subdivisions one through three of section 70.00 of this title. 33 S 3. Subparagraph (i) of paragraph (a) of subdivision 3 of section 34 70.00 of the penal law, as amended by chapter 107 of the laws of 2006, 35 is amended to read as follows: 36 (i) For a class A-I felony, such minimum period shall not be less than 37 fifteen years nor more than twenty-five years; provided, however, that 38 (A) where a sentence, other than a sentence of death or life imprison- 39 ment without parole, is imposed upon a defendant convicted of murder in 40 the first degree as defined in section 125.27 of this chapter such mini- 41 mum period shall be not less than twenty years nor more than twenty-five 42 years, and, (B) where a sentence is imposed upon a defendant [convicted 43 of murder in the second degree as defined in subdivision five of section 44 125.25 of this chapter or] convicted of aggravated murder as defined in 45 section 125.26 of this chapter OR CONVICTED OF AGGRAVATED MURDER OF A 46 CHILD AS DEFINED IN SECTION 125.28 OF THIS CHAPTER, the sentence shall 47 be life imprisonment without parole, and, (C) where a sentence is 48 imposed upon a defendant convicted of attempted murder in the first 49 degree as defined in article one hundred ten of this chapter and subpar- 50 agraph (i), (ii) or (iii) of paragraph (a) of subdivision one and para- 51 graph (b) of subdivision one of section 125.27 of this chapter or 52 attempted aggravated murder as defined in article one hundred ten of 53 this chapter and section 125.26 of this chapter OR ATTEMPTED AGGRAVATED 54 MURDER OF A CHILD AS DEFINED IN ARTICLE ONE HUNDRED TEN OF THIS CHAPTER 55 AND SECTION 125.28 OF THIS CHAPTER such minimum period shall be not less 56 than twenty years nor more than forty years. A. 5007 3 1 S 4. Subdivision 5 of section 70.00 of the penal law, as amended by 2 chapter 482 of the laws of 2009, is amended to read as follows: 3 5. Life imprisonment without parole. Notwithstanding any other 4 provision of law, a defendant sentenced to life imprisonment without 5 parole shall not be or become eligible for parole or conditional 6 release. For purposes of commitment and custody, other than parole and 7 conditional release, such sentence shall be deemed to be an indetermi- 8 nate sentence. A defendant may be sentenced to life imprisonment with- 9 out parole upon conviction for the crime of murder in the first degree 10 as defined in section 125.27 of this chapter and in accordance with the 11 procedures provided by law for imposing a sentence for such crime. A 12 defendant must be sentenced to life imprisonment without parole upon 13 conviction for the crime of terrorism as defined in section 490.25 of 14 this chapter, where the specified offense the defendant committed is a 15 class A-I felony; the crime of criminal possession of a chemical weapon 16 or biological weapon in the first degree as defined in section 490.45 of 17 this chapter; or the crime of criminal use of a chemical weapon or 18 biological weapon in the first degree as defined in section 490.55 of 19 this chapter; provided, however, that nothing in this subdivision shall 20 preclude or prevent a sentence of death when the defendant is also 21 convicted of the crime of murder in the first degree as defined in 22 section 125.27 of this chapter. A defendant must be sentenced to life 23 imprisonment without parole upon conviction [for the crime of murder in 24 the second degree as defined in subdivision five of section 125.25 of 25 this chapter or] for the crime of aggravated murder as defined in subdi- 26 vision one of section 125.26 of this chapter OR FOR THE CRIME OF AGGRA- 27 VATED MURDER OF A CHILD AS DEFINED IN SECTION 125.28 OF THIS CHAPTER. A 28 defendant may be sentenced to life imprisonment without parole upon 29 conviction for the crime of aggravated murder as defined in subdivision 30 two of section 125.26 of this chapter. 31 S 5. Subdivision 1 of section 110.05 of the penal law, as amended by 32 chapter 93 of the laws of 2006, is amended to read as follows: 33 1. Class A-I felony when the crime attempted is the A-I felony of 34 murder in the first degree, aggravated murder as defined in subdivision 35 one of section 125.26 of this chapter, AGGRAVATED MURDER OF A CHILD, 36 criminal possession of a controlled substance in the first degree, crim- 37 inal sale of a controlled substance in the first degree, criminal 38 possession of a chemical or biological weapon in the first degree or 39 criminal use of a chemical or biological weapon in the first degree; 40 S 6. Section 125.05 of the penal law is amended by adding a new subdi- 41 vision 4 to read as follows: 42 4. "PERSON IN A POSITION OF TRUST" MEANS ANY PERSON WHO IS CHARGED 43 WITH ANY DUTY OR RESPONSIBILITY FOR THE HEALTH, EDUCATION, WELFARE, 44 SUPERVISION OR CARE OF ANOTHER PERSON, EITHER INDEPENDENTLY OR THROUGH 45 ANOTHER PERSON, NO MATTER HOW BRIEF. 46 S 7. Subdivision 4 of section 125.25 of the penal law, as amended by 47 chapter 459 of the laws of 2004, is amended to read as follows: 48 4. Under circumstances evincing a depraved indifference to human life, 49 and being eighteen years old or more the defendant recklessly engages in 50 conduct which creates a grave risk of serious physical injury or death 51 to another person less than eleven years old and thereby causes the 52 death of such person[; or]. 53 S 8. Subdivision 5 of section 125.25 of the penal law is REPEALED. 54 S 9. Subparagraph (ix) of paragraph (a) of subdivision 1 of section 55 125.27 of the penal law, as added by chapter 1 of the laws of 1995, is 56 amended to read as follows: A. 5007 4 1 (ix) prior to committing the killing, the defendant had been convicted 2 of murder as defined in this section or section 125.25 of this article 3 OR CONVICTED OF AGGRAVATED MURDER AS DEFINED IN SECTION 125.26 OF THIS 4 ARTICLE OR CONVICTED OF AGGRAVATED MURDER OF A CHILD AS DEFINED IN 5 SECTION 125.28 OF THIS ARTICLE, or had been convicted in another juris- 6 diction of an offense which, if committed in this state, would consti- 7 tute a violation of [either of such] THE AFOREMENTIONED sections; or 8 S 10. The penal law is amended by adding a new section 125.28 to read 9 as follows: 10 S 125.28 AGGRAVATED MURDER OF A CHILD. 11 A PERSON IS GUILTY OF AGGRAVATED MURDER OF A CHILD WHEN: 12 1. BEING EIGHTEEN YEARS OLD OR MORE, WHILE IN THE COURSE OF COMMITTING 13 RAPE IN THE FIRST, SECOND OR THIRD DEGREE, CRIMINAL SEXUAL ACT IN THE 14 FIRST, SECOND OR THIRD DEGREE, AGGRAVATED SEXUAL ABUSE IN THE FIRST, 15 SECOND, THIRD OR FOURTH DEGREE, OR INCEST, AGAINST A PERSON LESS THAN 16 FOURTEEN YEARS OLD, HE OR SHE INTENTIONALLY CAUSES THE DEATH OF SUCH 17 PERSON; OR 18 2. UNDER CIRCUMSTANCES EVINCING A DEPRAVED INDIFFERENCE TO HUMAN LIFE, 19 AND BEING EIGHTEEN YEARS OLD OR MORE, AND BEING THE PARENT, GUARDIAN OR 20 OTHER PERSON LEGALLY CHARGED WITH THE CUSTODY OF, OR LEGALLY RESPONSIBLE 21 FOR THE CARE OF, ANOTHER PERSON LESS THAN FOURTEEN YEARS OLD, OR BEING A 22 PERSON IN A POSITION OF TRUST OF ANOTHER PERSON LESS THAN FOURTEEN YEARS 23 OLD, HE OR SHE RECKLESSLY ENGAGES IN CONDUCT WHICH CREATES A GRAVE RISK 24 OF SERIOUS PHYSICAL INJURY OR DEATH TO SUCH PERSON AND THEREBY CAUSES 25 THE DEATH OF SUCH PERSON; OR 26 3. WITH INTENT TO CAUSE THE DEATH OF A PERSON LESS THAN FOURTEEN YEARS 27 OLD, AND BEING THE PARENT, GUARDIAN OR OTHER PERSON LEGALLY CHARGED WITH 28 THE CUSTODY OF, OR LEGALLY RESPONSIBLE FOR THE CARE OF, SUCH PERSON, OR 29 BEING A PERSON IN A POSITION OF TRUST OF SUCH PERSON HE OR SHE INTEN- 30 TIONALLY CAUSES THE DEATH OF SUCH PERSON. 31 AGGRAVATED MURDER OF A CHILD IS A CLASS A-I FELONY. 32 S 11. Paragraph (a) of subdivision 3 of section 30.30 of the criminal 33 procedure law, as amended by chapter 93 of the laws of 2006, is amended 34 to read as follows: 35 (a) Subdivisions one and two do not apply to a criminal action wherein 36 the defendant is accused of an offense defined in sections 125.10, 37 125.15, 125.20, 125.25, 125.26 [and], 125.27 AND 125.28 of the penal 38 law. 39 S 12. Subdivision 1 of section 180.85 of the criminal procedure law, 40 as amended by chapter 93 of the laws of 2006, is amended to read as 41 follows: 42 1. After arraignment of a defendant upon a felony complaint, other 43 than a felony complaint charging an offense defined in section 125.10, 44 125.15, 125.20, 125.25, 125.26 [or], 125.27 OR 125.28 of the penal law, 45 either party or the local criminal court or superior court before which 46 the action is pending, on its own motion, may move in accordance with 47 the provisions of this section for an order terminating prosecution of 48 the charges contained in such felony complaint on consent of the 49 parties. 50 S 13. Paragraph (h) of subdivision 3 of section 190.25 of the criminal 51 procedure law, as amended by chapter 405 of the laws of 2010, is amended 52 to read as follows: 53 (h) A social worker, rape crisis counselor, psychologist or other 54 professional providing emotional support to a child witness twelve years 55 old or younger who is called to give evidence in a grand jury proceeding 56 concerning a crime defined in article one hundred twenty-one, article A. 5007 5 1 one hundred thirty, article two hundred sixty, section 120.10, 125.10, 2 125.15, 125.20, 125.25, 125.26, 125.27, 125.28, 255.25, 255.26 or 255.27 3 of the penal law provided that the district attorney consents. Such 4 support person shall not provide the witness with an answer to any ques- 5 tion or otherwise participate in such proceeding and shall first take an 6 oath before the grand jury that he or she will keep secret all matters 7 before such grand jury within his or her knowledge. 8 S 14. Paragraph (b) of subdivision 8 of section 700.05 of the criminal 9 procedure law, as amended by chapter 405 of the laws of 2010, is amended 10 to read as follows: 11 (b) Any of the following felonies: assault in the second degree as 12 defined in section 120.05 of the penal law, assault in the first degree 13 as defined in section 120.10 of the penal law, reckless endangerment in 14 the first degree as defined in section 120.25 of the penal law, promot- 15 ing a suicide attempt as defined in section 120.30 of the penal law, 16 strangulation in the second degree as defined in section 121.12 of the 17 penal law, strangulation in the first degree as defined in section 18 121.13 of the penal law, criminally negligent homicide as defined in 19 section 125.10 of the penal law, manslaughter in the second degree as 20 defined in section 125.15 of the penal law, manslaughter in the first 21 degree as defined in section 125.20 of the penal law, murder in the 22 second degree as defined in section 125.25 of the penal law, murder in 23 the first degree as defined in section 125.27 of the penal law, AGGRA- 24 VATED MURDER OF A CHILD AS DEFINED IN SECTION 125.28 OF THE PENAL LAW, 25 abortion in the second degree as defined in section 125.40 of the penal 26 law, abortion in the first degree as defined in section 125.45 of the 27 penal law, rape in the third degree as defined in section 130.25 of the 28 penal law, rape in the second degree as defined in section 130.30 of the 29 penal law, rape in the first degree as defined in section 130.35 of the 30 penal law, criminal sexual act in the third degree as defined in section 31 130.40 of the penal law, criminal sexual act in the second degree as 32 defined in section 130.45 of the penal law, criminal sexual act in the 33 first degree as defined in section 130.50 of the penal law, sexual abuse 34 in the first degree as defined in section 130.65 of the penal law, 35 unlawful imprisonment in the first degree as defined in section 135.10 36 of the penal law, kidnapping in the second degree as defined in section 37 135.20 of the penal law, kidnapping in the first degree as defined in 38 section 135.25 of the penal law, labor trafficking as defined in section 39 135.35 of the penal law, custodial interference in the first degree as 40 defined in section 135.50 of the penal law, coercion in the first degree 41 as defined in section 135.65 of the penal law, criminal trespass in the 42 first degree as defined in section 140.17 of the penal law, burglary in 43 the third degree as defined in section 140.20 of the penal law, burglary 44 in the second degree as defined in section 140.25 of the penal law, 45 burglary in the first degree as defined in section 140.30 of the penal 46 law, criminal mischief in the third degree as defined in section 145.05 47 of the penal law, criminal mischief in the second degree as defined in 48 section 145.10 of the penal law, criminal mischief in the first degree 49 as defined in section 145.12 of the penal law, criminal tampering in the 50 first degree as defined in section 145.20 of the penal law, arson in the 51 fourth degree as defined in section 150.05 of the penal law, arson in 52 the third degree as defined in section 150.10 of the penal law, arson in 53 the second degree as defined in section 150.15 of the penal law, arson 54 in the first degree as defined in section 150.20 of the penal law, grand 55 larceny in the fourth degree as defined in section 155.30 of the penal 56 law, grand larceny in the third degree as defined in section 155.35 of A. 5007 6 1 the penal law, grand larceny in the second degree as defined in section 2 155.40 of the penal law, grand larceny in the first degree as defined in 3 section 155.42 of the penal law, health care fraud in the fourth degree 4 as defined in section 177.10 of the penal law, health care fraud in the 5 third degree as defined in section 177.15 of the penal law, health care 6 fraud in the second degree as defined in section 177.20 of the penal 7 law, health care fraud in the first degree as defined in section 177.25 8 of the penal law, robbery in the third degree as defined in section 9 160.05 of the penal law, robbery in the second degree as defined in 10 section 160.10 of the penal law, robbery in the first degree as defined 11 in section 160.15 of the penal law, unlawful use of secret scientific 12 material as defined in section 165.07 of the penal law, criminal 13 possession of stolen property in the fourth degree as defined in section 14 165.45 of the penal law, criminal possession of stolen property in the 15 third degree as defined in section 165.50 of the penal law, criminal 16 possession of stolen property in the second degree as defined by section 17 165.52 of the penal law, criminal possession of stolen property in the 18 first degree as defined by section 165.54 of the penal law, trademark 19 counterfeiting in the second degree as defined in section 165.72 of the 20 penal law, trademark counterfeiting in the first degree as defined in 21 section 165.73 of the penal law, forgery in the second degree as defined 22 in section 170.10 of the penal law, forgery in the first degree as 23 defined in section 170.15 of the penal law, criminal possession of a 24 forged instrument in the second degree as defined in section 170.25 of 25 the penal law, criminal possession of a forged instrument in the first 26 degree as defined in section 170.30 of the penal law, criminal 27 possession of forgery devices as defined in section 170.40 of the penal 28 law, falsifying business records in the first degree as defined in 29 section 175.10 of the penal law, tampering with public records in the 30 first degree as defined in section 175.25 of the penal law, offering a 31 false instrument for filing in the first degree as defined in section 32 175.35 of the penal law, issuing a false certificate as defined in 33 section 175.40 of the penal law, criminal diversion of prescription 34 medications and prescriptions in the second degree as defined in section 35 178.20 of the penal law, criminal diversion of prescription medications 36 and prescriptions in the first degree as defined in section 178.25 of 37 the penal law, residential mortgage fraud in the fourth degree as 38 defined in section 187.10 of the penal law, residential mortgage fraud 39 in the third degree as defined in section 187.15 of the penal law, resi- 40 dential mortgage fraud in the second degree as defined in section 187.20 41 of the penal law, residential mortgage fraud in the first degree as 42 defined in section 187.25 of the penal law, escape in the second degree 43 as defined in section 205.10 of the penal law, escape in the first 44 degree as defined in section 205.15 of the penal law, absconding from 45 temporary release in the first degree as defined in section 205.17 of 46 the penal law, promoting prison contraband in the first degree as 47 defined in section 205.25 of the penal law, hindering prosecution in the 48 second degree as defined in section 205.60 of the penal law, hindering 49 prosecution in the first degree as defined in section 205.65 of the 50 penal law, sex trafficking as defined in section 230.34 of the penal 51 law, criminal possession of a weapon in the third degree as defined in 52 subdivisions two, three and five of section 265.02 of the penal law, 53 criminal possession of a weapon in the second degree as defined in 54 section 265.03 of the penal law, criminal possession of a weapon in the 55 first degree as defined in section 265.04 of the penal law, manufacture, 56 transport, disposition and defacement of weapons and dangerous instru- A. 5007 7 1 ments and appliances defined as felonies in subdivisions one, two, and 2 three of section 265.10 of the penal law, sections 265.11, 265.12 and 3 265.13 of the penal law, or prohibited use of weapons as defined in 4 subdivision two of section 265.35 of the penal law, relating to firearms 5 and other dangerous weapons, or failure to disclose the origin of a 6 recording in the first degree as defined in section 275.40 of the penal 7 law; 8 S 15. Subdivisions 1, 6, 7 and 8 of section 35-b of the judiciary law, 9 as added by chapter 1 of the laws of 1995, are amended to read as 10 follows: 11 1. Notwithstanding any other provision of law to the contrary, in 12 every criminal action in which a defendant is charged with AGGRAVATED 13 MURDER AS DEFINED IN SECTION 125.26 OF THE PENAL LAW, murder in the 14 first degree as defined in section 125.27 of the penal law OR AGGRAVATED 15 MURDER OF A CHILD AS DEFINED IN SECTION 125.28 OF THE PENAL LAW, or in 16 any criminal action in which a defendant is charged with murder in the 17 second degree as defined in section 125.25 of the penal law and the 18 district attorney confirms upon inquiry by the court that the district 19 attorney is undertaking an investigation to determine whether the 20 defendant can or should be charged with AGGRAVATED MURDER AS DEFINED IN 21 SECTION 125.26 OF THE PENAL LAW, murder in the first degree as defined 22 in section 125.27 of the penal law OR AGGRAVATED MURDER OF A CHILD AS 23 DEFINED IN SECTION 125.28 OF THE PENAL LAW and the court determines that 24 there is a reasonable likelihood the defendant will be so charged, if 25 the defendant is or becomes financially unable to obtain adequate repre- 26 sentation or investigative, expert or other reasonably necessary 27 services at any time either (a) prior to judgment, or (b) after the 28 entry of a judgment imposing a sentence of death but before final resol- 29 ution of a direct appeal pursuant to subdivision one of section 450.70 30 of the criminal procedure law and of an appeal pursuant to subdivision 31 two or three of section 450.70 of the criminal procedure law from an 32 order denying an initial post judgment motion pursuant to section 440.10 33 or 440.20 of the criminal procedure law, the defendant shall be entitled 34 to the appointment of counsel and investigative, expert and such other 35 reasonably necessary services in accordance with the provisions of this 36 section. Prior to the appointment of counsel pursuant to this section, 37 the court shall determine whether the defendant is or has become finan- 38 cially unable to obtain adequate representation. In the event such 39 defendant seeks to file any subsequent motion, he or she shall not be 40 eligible for the appointment of counsel pursuant to this section. 41 6. (a) When a defendant has been charged in an accusatory instrument 42 WITH AGGRAVATED MURDER AS DEFINED IN SECTION 125.26 OF THE PENAL LAW, 43 with murder in the first degree as defined in section 125.27 of the 44 penal law, WITH AGGRAVATED MURDER OF A CHILD AS DEFINED IN SECTION 45 125.28 OF THE PENAL LAW or with murder in the second degree as defined 46 in section 125.25 of the penal law, the district attorney shall notify 47 the capital defender office. 48 (b) The clerk of the superior court wherein a judgment that includes a 49 sentence of death has been entered and the clerk of the court of appeals 50 upon an order affirming a judgment that includes a sentence of death 51 shall notify the capital defender office of the judgment or order. 52 Notice need not be given when the defendant has retained counsel of his 53 or her own choosing or when appellate or post-conviction counsel has 54 already been appointed pursuant to this section and when counsel advises 55 that he or she will continue to act on the defendant's behalf. A. 5007 8 1 (c) Notice to the capital defender office required pursuant to para- 2 graph (a) or (b) of this subdivision shall consist of telephone, facsim- 3 ile, E-mail or other prompt electronic means of notification forthwith, 4 which shall be followed by first class mail notification within two 5 business days of the charge, sentence or affirmance. The failure to give 6 notice shall not affect the validity of any indictment, conviction, 7 judgment or order. 8 7. Whenever a defendant is charged WITH AGGRAVATED MURDER AS DEFINED 9 IN SECTION 125.26 OF THE PENAL LAW, with murder in the first degree AS 10 DEFINED IN SECTION 125.27 OF THE PENAL LAW OR WITH AGGRAVATED MURDER OF 11 A CHILD AS DEFINED IN SECTION 125.28 OF THE PENAL LAW, or a defendant 12 has been charged with murder in the second degree as defined in section 13 125.25 of the penal law and the court determines after confirmation by 14 the district attorney pursuant to subdivision one of this section that 15 there is a reasonable likelihood the defendant will be charged with 16 murder in the first degree and the defendant is financially unable to 17 obtain counsel as determined by the court and an attorney has not yet 18 been appointed to represent such defendant pursuant to the provisions of 19 this section, the capital defender office may provide or arrange to 20 provide temporary legal representation to the defendant. No arraignment 21 shall be delayed on account of any representation to be provided or 22 arranged pursuant to this subdivision. Any temporary representation 23 provided pursuant to this subdivision shall cease upon the court's 24 appointment of an attorney pursuant to this section. 25 8. Whenever prior to entry of judgment a defendant is charged with 26 AGGRAVATED MURDER, murder in the first degree OR AGGRAVATED MURDER OF A 27 CHILD, or a defendant has been charged with murder in the second degree 28 as defined in section 125.25 of the penal law and the court determines 29 after confirmation by the district attorney pursuant to subdivision one 30 of this section that there is a reasonable likelihood the defendant will 31 be charged with murder in the first degree, and the defendant is or 32 becomes financially unable, as determined by the court, to obtain 33 adequate investigative, expert or other reasonably necessary services 34 and the court has not appointed the capital defender office to represent 35 the defendant, the trial court shall authorize the defendant's attorney 36 to obtain such services on behalf of the defendant and shall order the 37 payment of reasonable fees and expenses therefor; provided, however, 38 that the court shall first find in an ex parte proceeding that such 39 investigative, expert or other services are reasonably necessary for the 40 representation of the defendant whether in connection with issues relat- 41 ing to guilt or sentencing. Upon a finding that timely procurement of 42 such services could not practicably await prior authorization, the court 43 may authorize the provision and payment for such services nunc pro tunc. 44 Whenever a court disapproves, in whole or in part, a request for author- 45 ization or voucher, the defendant may apply to a justice of an interme- 46 diate appellate court for an order approving the request or voucher. 47 S 16. Paragraph (a) of subdivision 4 of section 509-cc of the vehicle 48 and traffic law, as amended by chapter 93 of the laws of 2006, is 49 amended to read as follows: 50 (a) The offenses referred to in subparagraph (ii) of paragraph (a) of 51 subdivision one and paragraph (a) of subdivision two of this section 52 that result in permanent disqualification shall include a conviction 53 under sections 125.12, 125.20, 125.25, 125.26, 125.27, 125.28, 130.30, 54 130.35, 130.45, 130.50, 130.70, 135.25, 150.20 of the penal law or an 55 attempt to commit any of the aforesaid offenses under section 110.00 of 56 the penal law, or any offenses committed under a former section of the A. 5007 9 1 penal law which would constitute violations of the aforesaid sections of 2 the penal law, or any offenses committed outside this state which would 3 constitute violations of the aforesaid sections of the penal law. 4 S 17. Section 4-1.6 of the estates, powers and trusts law, as added by 5 chapter 481 of the laws of 1994, is amended to read as follows: 6 S 4-1.6 Disqualification of joint tenant in certain instances 7 Notwithstanding any other provision of law to the contrary, a joint 8 tenant convicted of murder in the second degree as defined in section 9 125.25 of the penal law or murder in the first degree as defined in 10 section 125.27 of the penal law OR AGGRAVATED MURDER OF A CHILD AS 11 DEFINED IN SECTION 125.28 OF THE PENAL LAW of another joint tenant shall 12 not be entitled to the distribution of any monies in a joint bank 13 account created or contributed to by the deceased joint tenant, except 14 for those monies contributed by the convicted joint tenant. 15 Upon the conviction of such joint tenant of first or second degree 16 murder and upon application by the prosecuting attorney, the court, as 17 part of its sentence, shall issue an order directing the amount of any 18 joint bank account to be distributed pursuant to the provisions of this 19 section from the convicted joint tenant and to the deceased joint 20 tenant's estate. The court and the prosecuting attorney shall each have 21 the power to subpoena records of a banking institution to determine the 22 amount of money in such bank account and by whom deposits were made. The 23 court shall also have the power to freeze such account upon application 24 by the prosecuting attorney during the pendency of a trial for first or 25 second degree murder. If, upon receipt of such court orders described in 26 this section, the banking institution holding monies in such joint 27 account complies with the terms of the order, such banking institution 28 shall be held free from all liability for the distribution of such funds 29 as were in such joint account. In the absence of actual or constructive 30 notice of such order, the banking institution holding monies in such 31 account shall be held harmless for distributing the money according to 32 its ordinary course of business. 33 For purposes of this section, the term banking institution shall have 34 the same meaning as provided for in paragraph (b) of subdivision three 35 of section nine-f of the banking law. 36 S 18. Paragraph (a) of subdivision 7 of section 995 of the executive 37 law, as separately amended by chapters 2 and 320 of the laws of 2006, is 38 amended to read as follows: 39 (a) sections 120.05, 120.10, and 120.11, relating to assault; sections 40 125.15 through [125.27] 125.28 relating to homicide; sections 130.25, 41 130.30, 130.35, 130.40, 130.45, 130.50, 130.65, 130.67 and 130.70, 42 relating to sex offenses; sections 205.10, 205.15, 205.17 and 205.19, 43 relating to escape and other offenses, where the offender has been 44 convicted within the previous five years of one of the other felonies 45 specified in this subdivision; or sections 255.25, 255.26 and 255.27, 46 relating to incest, a violent felony offense as defined in subdivision 47 one of section 70.02 of the penal law, attempted murder in the first 48 degree, as defined in section 110.00 and section 125.27 of the penal 49 law, kidnapping in the first degree, as defined in section 135.25 of the 50 penal law, arson in the first degree, as defined in section 150.20 of 51 the penal law, burglary in the third degree, as defined in section 52 140.20 of the penal law, attempted burglary in the third degree, as 53 defined in section 110.00 and section 140.20 of the penal law, a felony 54 defined in article four hundred ninety of the penal law relating to 55 terrorism or any attempt to commit an offense defined in such article 56 relating to terrorism which is a felony; or A. 5007 10 1 S 19. Subparagraph 2 of paragraph (b) of subdivision 3 of section 2 358-a of the social services law, as added by chapter 7 of the laws of 3 1999, is amended to read as follows: 4 (2) the parent of such child has been convicted of (i) AGGRAVATED 5 MURDER OF A CHILD AS DEFINED IN SECTION 125.28 OR murder in the first 6 degree as defined in section 125.27 or murder in the second degree as 7 defined in section 125.25 of the penal law and the victim was another 8 child of the parent; or (ii) manslaughter in the first degree as defined 9 in section 125.20 or manslaughter in the second degree as defined in 10 section 125.15 of the penal law and the victim was another child of the 11 parent, provided, however, that the parent must have acted voluntarily 12 in committing such crime; 13 S 20. Clause (A) of subparagraph (iii) of paragraph (a) of subdivi- 14 sion 8 of section 384-b of the social services law, as amended by chap- 15 ter 460 of the laws of 2006, is amended to read as follows: 16 (A) the parent of such child has been convicted of AGGRAVATED MURDER 17 OF A CHILD AS DEFINED IN SECTION 125.28, murder in the first degree as 18 defined in section 125.27, murder in the second degree as defined in 19 section 125.25, manslaughter in the first degree as defined in section 20 125.20, or manslaughter in the second degree as defined in section 21 125.15 OF THE PENAL LAW, and the victim of any such crime was another 22 child of the parent or another child for whose care such parent is or 23 has been legally responsible as defined in subdivision (g) of section 24 one thousand twelve of the family court act, or another parent of the 25 child, unless the convicted parent was a victim of physical, sexual or 26 psychological abuse by the decedent parent and such abuse was a factor 27 in causing the homicide; or has been convicted of an attempt to commit 28 any of the foregoing crimes, and the victim or intended victim was the 29 child or another child of the parent or another child for whose care 30 such parent is or has been legally responsible as defined in subdivision 31 (g) of section one thousand twelve of the family court act, or another 32 parent of the child, unless the convicted parent was a victim of phys- 33 ical, sexual or psychological abuse by the decedent parent and such 34 abuse was a factor in causing the attempted homicide; 35 S 21. This act shall take effect on the first of November next 36 succeeding the date on which it shall have become a law.