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.