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.
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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.