Bill Text: NY S01271 | 2023-2024 | General Assembly | Introduced

---

Bill Title: Includes intentionally selecting a victim based on certain actual or perceived traits in the crime of murder in the first degree; provides that sentence for commission of certain provisions of murder in the first degree is death or life without parole.

Spectrum: Partisan Bill (Republican 5-0)

Status: (Introduced) 2024-01-03 - REFERRED TO CODES [S01271 Detail]

Download: New_York-2023-S01271-Introduced.html

---

                STATE OF NEW YORK
        ________________________________________________________________________

                                          1271

                               2023-2024 Regular Sessions

                    IN SENATE

                                    January 11, 2023
                                       ___________

        Introduced  by  Sen.  ORTT  --  read twice and ordered printed, and when
          printed to be committed to the Committee on Codes

        AN ACT to amend the  penal  law  and  the  criminal  procedure  law,  in
          relation to the commission of and sentencing for certain provisions of
          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 paragraph (xiv) is added to read as follows:
     4    (xiii) the victim was killed in furtherance of an act of terrorism, as
     5  defined in paragraph (b) of subdivision one of section  490.05  of  this
     6  chapter; [and] or
     7    (xiv)  the  defendant intentionally selected the victim in whole or in
     8  substantial part because of a belief or perception regarding the  actual
     9  or  perceived  race,  color,  national  origin, ancestry, gender, gender
    10  identity or expression, religion, religious practice,  age,  disability,
    11  or  sexual orientation of such victim, regardless of whether such belief
    12  or perception is correct; and
    13    § 2. Section 60.06 of the penal law, as amended by chapter 482 of  the
    14  laws of 2009, is amended to read as follows:
    15  § 60.06 Authorized  disposition;  murder  in the first degree offenders;
    16            aggravated murder offenders;  certain  murder  in  the  second
    17            degree   offenders;   certain  terrorism  offenders;  criminal
    18            possession of a chemical weapon or  biological  weapon  offen-
    19            ders;  criminal  use of a chemical weapon or biological weapon
    20            offenders.
    21    When a defendant is convicted of murder in the first degree as defined
    22  in section 125.27 of this chapter, the court shall, in  accordance  with
    23  the provisions of section 400.27 of the criminal procedure law, sentence
    24  the  defendant  to death, to life imprisonment without parole in accord-

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04799-01-3
        S. 1271                             2

     1  ance with subdivision five of section 70.00 of this title, or to a  term
     2  of  imprisonment  for  a  class A-I felony other than a sentence of life
     3  imprisonment without parole, in accordance with subdivisions one through
     4  three  of  section  70.00  of  this title. When a person is convicted of
     5  murder in the second degree as defined in subdivision  five  of  section
     6  125.25  of  this chapter or of the crime of aggravated murder as defined
     7  in subdivision one of section 125.26 of this chapter, or of the crime of
     8  murder in the first degree as defined in subparagraph (i), (ii), (ii-a),
     9  (iii), (viii), (xi), (xiii), or (xiv) of paragraph  (a)  of  subdivision
    10  one  of  section 125.27 of this chapter and the sentence of death is not
    11  imposed the court shall sentence  the  defendant  to  life  imprisonment
    12  without  parole  in accordance with subdivision five of section 70.00 of
    13  this title. When a defendant is convicted of the crime of  terrorism  as
    14  defined in section 490.25 of this chapter, and the specified offense the
    15  defendant  committed  is a class A-I felony offense, or when a defendant
    16  is convicted of the crime of criminal possession of a chemical weapon or
    17  biological weapon in the first degree as defined in  section  490.45  of
    18  this  chapter, or when a defendant is convicted of the crime of criminal
    19  use of a chemical weapon or biological weapon in  the  first  degree  as
    20  defined  in section 490.55 of this chapter, the court shall sentence the
    21  defendant to life imprisonment without parole in accordance with  subdi-
    22  vision  five  of  section  70.00  of this title; provided, however, that
    23  nothing in this section shall preclude or prevent a  sentence  of  death
    24  when  the  defendant  is also convicted of murder in the first degree as
    25  defined in section 125.27 of this chapter. When a defendant is convicted
    26  of aggravated murder as defined in subdivision two of section 125.26  of
    27  this  chapter,  the court shall sentence the defendant to life imprison-
    28  ment without parole or to a term of imprisonment for a class A-I  felony
    29  other than a sentence of life imprisonment without parole, in accordance
    30  with subdivisions one through three of section 70.00 of this title.
    31    §  3.  Subparagraph  (i)  of paragraph (a) of subdivision 3 of section
    32  70.00 of the penal law, as amended by chapter 107 of the laws  of  2006,
    33  is amended to read as follows:
    34    (i) For a class A-I felony, such minimum period shall not be less than
    35  fifteen  years  nor more than twenty-five years; provided, however, that
    36  (A) where a sentence, other than a sentence of death or  life  imprison-
    37  ment  without parole, is imposed upon a defendant convicted of murder in
    38  the first degree as defined in  subparagraph  (iv),  (v),  (vi),  (vii),
    39  (ix),  (x),  or  (xii)  of  paragraph  (a) of subdivision one of section
    40  125.27 of this chapter such minimum period shall be not less than twenty
    41  years nor more than twenty-five years, and,  (B)  where  a  sentence  is
    42  imposed  upon  a  defendant  convicted of murder in the second degree as
    43  defined in subdivision  five  of  section  125.25  of  this  chapter  or
    44  convicted  of  aggravated  murder  as  defined in section 125.26 of this
    45  chapter, or where a sentence, other than a sentence of death, is imposed
    46  upon a defendant convicted of murder in the first degree as  defined  in
    47  subparagraph (i), (ii), (ii-a), (iii), (viii), (xi), (xiii), or (xiv) of
    48  paragraph  (a) of subdivision one of section 125.27 of this chapter, the
    49  sentence shall be life imprisonment without parole,  and,  (C)  where  a
    50  sentence  is  imposed  upon a defendant convicted of attempted murder in
    51  the first degree as defined in article one hundred ten of  this  chapter
    52  and subparagraph (i), (ii), (ii-a) or (iii) of paragraph (a) of subdivi-
    53  sion  one and paragraph (b) of subdivision one of section 125.27 of this
    54  chapter or attempted aggravated murder as defined in article one hundred
    55  ten of this chapter and section 125.26  of  this  chapter  such  minimum
    56  period shall be not less than twenty years nor more than forty years.
        S. 1271                             3

     1    §  4.  Subdivision  5 of section 70.00 of the penal law, as amended by
     2  section 40-a of part WWW of chapter 59 of the laws of 2017,  is  amended
     3  to read as follows:
     4    5.   Life  imprisonment  without  parole.  Notwithstanding  any  other
     5  provision of law, a defendant sentenced  to  life  imprisonment  without
     6  parole  shall  not  be  or  become  eligible  for  parole or conditional
     7  release. For purposes of commitment and custody, other than  parole  and
     8  conditional  release,  such sentence shall be deemed to be an indetermi-
     9  nate sentence. A defendant may be sentenced to life imprisonment without
    10  parole upon conviction for the crime of murder in the  first  degree  as
    11  defined  in  section  125.27  of this chapter and in accordance with the
    12  procedures provided by law for imposing a sentence  for  such  crime.  A
    13  defendant  who  was  eighteen  years  of age or older at the time of the
    14  commission of the crime must be sentenced to life  imprisonment  without
    15  parole  upon conviction for the crime of terrorism as defined in section
    16  490.25 of this  chapter,  where  the  specified  offense  the  defendant
    17  committed  is  a class A-I felony; the crime of criminal possession of a
    18  chemical weapon or biological weapon in the first degree as  defined  in
    19  section 490.45 of this chapter; or the crime of criminal use of a chemi-
    20  cal  weapon  or  biological  weapon  in  the  first degree as defined in
    21  section 490.55 of this chapter; provided, however, that nothing in  this
    22  subdivision  shall  preclude  or  prevent  a  sentence of death when the
    23  defendant is also convicted of the crime of murder in the  first  degree
    24  as defined in section 125.27 of this chapter. A defendant who was seven-
    25  teen  years of age or younger at the time of the commission of the crime
    26  may be sentenced, in accordance with law, to the  applicable  indetermi-
    27  nate sentence with a maximum term of life imprisonment. A defendant must
    28  be sentenced to life imprisonment without parole upon conviction for the
    29  crime  of  murder in the second degree as defined in subdivision five of
    30  section 125.25 of this chapter or for the crime of aggravated murder  as
    31  defined  in subdivision one of section 125.26 of this chapter. A defend-
    32  ant may be sentenced to life imprisonment without parole upon conviction
    33  for the crime of aggravated murder as  defined  in  subdivision  two  of
    34  section  125.26  of this chapter or for the crime of murder in the first
    35  degree as defined in subparagraph  (i),  (ii),  (ii-a),  (iii),  (viii),
    36  (xi),  (xiii),  or  (xiv) of paragraph (a) of subdivision one of section
    37  125.27 of this chapter and the sentence of death is not imposed.
    38    § 5. Subdivisions 1 and 10 of section 400.27 of the criminal procedure
    39  law, as added by chapter 1 of the laws of 1995, are amended to  read  as
    40  follows:
    41    1.  Upon  [the] conviction of a defendant for the offense of murder in
    42  the first degree as defined by subparagraph (i),  (ii),  (ii-a),  (iii),
    43  (viii),  (xi),  (xiii),  or (xiv) of paragraph (a) of subdivision one of
    44  section 125.27 of the penal law, the  court  shall  promptly  conduct  a
    45  separate  sentencing proceeding to determine whether the defendant shall
    46  be sentenced to death or to life imprisonment without parole pursuant to
    47  subdivision five of section 70.00 of the  penal  law.  Nothing  in  this
    48  section  shall  be deemed to preclude the people at any time from deter-
    49  mining that the death penalty shall not be sought in a particular  case,
    50  in  which case the separate sentencing proceeding shall not be conducted
    51  and the court may sentence such defendant to life  imprisonment  without
    52  parole  [or  to  a  sentence of imprisonment for the class A-I felony of
    53  murder in the first degree other than a sentence  of  life  imprisonment
    54  without parole].
    55    10.  (a)  At  the  conclusion  of all the evidence, the people and the
    56  defendant may present argument in summation for or against the  sentence
        S. 1271                             4

     1  sought by the people. The people may deliver the first summation and the
     2  defendant  may  then  deliver  the last summation. Thereafter, the court
     3  shall deliver a charge to the jury on any  matters  appropriate  in  the
     4  circumstances. In its charge, the court must instruct the jury that with
     5  respect  to  each  count  of  murder  in the first degree, as defined in
     6  subparagraph (i), (ii), (ii-a), (iii), (viii), (xi), (xiii), or (xiv) of
     7  paragraph (a) of subdivision one of section 125.27 of the penal law, the
     8  jury should consider whether or  not  a  sentence  of  death  should  be
     9  imposed  and  whether  or  not  a  sentence of life imprisonment without
    10  parole should be imposed[, and that the  jury  must  be  unanimous  with
    11  respect  to  either sentence. The court must also instruct the jury that
    12  in the event the jury fails to reach unanimous agreement with respect to
    13  the sentence, the court will sentence the defendant to a term of  impri-
    14  sonment  with a minimum term of between twenty and twenty-five years and
    15  a maximum term of life. Following the court's  charge,  the  jury  shall
    16  retire  to consider the sentence to be imposed. Unless inconsistent with
    17  the provisions of this  section,  the  provisions  of  sections  310.10,
    18  310.20 and 310.30 shall govern the deliberations of the jury].
    19    (b)  The  court must instruct the jury that the jury must be unanimous
    20  with respect to the sentence to be imposed. The court must also instruct
    21  the jury that in the event the jury fails to reach  unanimous  agreement
    22  with respect to the sentence, the court will sentence the defendant to a
    23  term of life imprisonment without parole.
    24    (c)  Following  the  court's charge, the jury shall retire to consider
    25  the sentence to be imposed. Unless inconsistent with the  provisions  of
    26  this  section,  the  provisions of sections 310.10, 310.20 and 310.30 of
    27  this part shall govern the deliberations of the jury.
    28    § 6. This act  shall  take  effect  immediately  and  shall  apply  to
    29  offenses committed on or after such effective date.