Bill Text: NY S06865 | 2023-2024 | General Assembly | Introduced
Bill Title: Amends elements of the felony murder rule to require that defendant directly causes death or be an accomplice with the intent to cause death; permits vacating conviction or resentencing of defendants convicted of felony murder; amends maximum sentence; permits the defense of duress for victims of domestic violence; requires reporting of certain crime statistics and information.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced) 2024-01-03 - REFERRED TO CODES [S06865 Detail]
Download: New_York-2023-S06865-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 6865 2023-2024 Regular Sessions IN SENATE May 11, 2023 ___________ Introduced by Sen. SALAZAR -- 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 convictions under felony murder provisions; and to repeal certain provisions of the penal law relating thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Legislative findings and intent. The Legislature hereby 2 finds and declares the following: 3 a. The current provisions of New York's penal law pertaining to felony 4 murder eliminate the distinction between intentional and unintentional 5 homicide and are therefore not consistent with the principle of propor- 6 tionality in charging and sentencing. Felony murder doctrine allows a 7 defendant to be charged and sentenced for murder in circumstances where 8 they were committing or attempting to commit a felony but did not actu- 9 ally commit a homicidal act. Under current state law, an accomplice to a 10 crime, for example someone driving a getaway car, may be charged with 11 murder as if they had actually shot someone in the course of a crime 12 such as robbery even in a circumstance where they were unarmed and phys- 13 ically removed from the site of the murder. Evidence from other states 14 indicates that as many as one in five individuals serving prison 15 sentences for murder have been convicted based on the felony murder 16 doctrine. Studies have also found that prosecutors use the threat of 17 felony murder charges to obtain plea deals for lengthy sentences, demon- 18 strating felony murder doctrine's role in extreme sentencing and mass 19 incarceration. 20 b. Felony murder doctrine originated in England but was banned there 21 in 1957 and subsequently in other Commonwealth countries including Cana- 22 da, which banned it in 1990. The United States is an outlier globally in 23 its application of felony murder doctrine, although some states, notably 24 California and Colorado, have in the last five years introduced signif- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD01989-01-3S. 6865 2 1 icant reforms with California reintroducing the intention to kill as a 2 requirement for the application of felony murder charges. New York, 3 however, remains one of just thirteen states including Texas and Flori- 4 da, where the felony murder doctrine is applied by prosecutors to pursue 5 murder charges when the individual committing a homicidal act is a third 6 party such as a victim holding their ground, a law enforcement officer, 7 or a bystander. The case of Jagger Freeman illustrates how this is 8 applied. In 2019, Freeman, then a 25 year old Queens resident, was an 9 accomplice in an attempted robbery of a mobile phone store. Police 10 opened fire in the store on Freeman's associate, who was holding a fake 11 gun, killing one police officer and wounding another. During the 12 episode, Freeman had stood across the street unarmed, however he was 13 sentenced to thirty years to life for the murder of the police officer. 14 c. Evidence from across the country reveals that felony murder laws 15 have disproportionately negative consequences for non-white people, 16 young people, and victims of domestic violence. For example, in Pennsyl- 17 vania eighty percent of those imprisoned with a felony murder conviction 18 were people of color, while in California sixty-eight percent of those 19 serving time for felony murder are black or Latinx. Since 2002, eight- 20 y-six percent of all defendants convicted of felony murder in New York 21 state have been black or Latinx. According to the California Coalition 22 for Women Prisoners, the majority of their members convicted of felony 23 murder were victims of domestic violence. 24 § 2. Subdivision 3 of section 125.25 of the penal law is REPEALED and 25 a new subdivision 3 is added to read as follows: 26 3. Acting either alone or with one or more other persons, he or she 27 commits or attempts to commit robbery, burglary, kidnapping, arson, rape 28 in the first degree, criminal sexual act in the first degree, sexual 29 abuse in the first degree, aggravated sexual abuse, escape in the first 30 degree, or escape in the second degree, and, in the course of and in 31 furtherance of such crime or of immediate flight therefrom, such person, 32 or another participant in the underlying felony personally and directly 33 causes the death of a person other than one of the participants, and the 34 defendant has one of the following mental states dependent upon their 35 role in the commission of the killing: (a) the defendant personally and 36 directly caused the death recklessly; or (b) the defendant was an accom- 37 plice, defined as one who solicited, requested, commanded, importuned, 38 caused, or aided and abetted the actual killer in the commission of the 39 underlying felony, and acted with intent to cause death. Liability under 40 this subdivision shall only apply to death caused by agents and co-fel- 41 ons of the defendant. A defendant is not responsible for a death caused 42 by a third party who was not a participant in the underlying felony; or 43 § 3. Subdivision 2 of section 40.00 of the penal law, such section as 44 renumbered by chapter 73 of the laws of 1968, is amended to read as 45 follows: 46 2. The defense of duress as defined in subdivision one of this section 47 is not available when a person intentionally or recklessly places 48 himself or herself in a situation in which it is probable that he or she 49 will be subjected to duress; provided, however, that this subdivision 50 shall not apply to prosecutions brought under subdivision three of 51 section 125.25 of this chapter when the defendant has been or is a 52 victim of domestic violence committed by one of the participants in the 53 underlying felony. 54 § 4. The criminal procedure law is amended by adding a new section 55 440.48 to read as follows:S. 6865 3 1 § 440.48 Motion to vacate judgment and/or resentence in certain felony 2 murder convictions. 3 1. A person convicted under the provisions of subdivision three of 4 section 125.25 of the penal law may file a petition with the court that 5 sentenced the petitioner to have the petitioner's murder conviction 6 vacated and to be resentenced on any remaining counts when all of the 7 following conditions apply: 8 (a) A complaint, information, or indictment was filed against the 9 petitioner that allowed the prosecution to proceed under a theory of 10 felony murder; 11 (b) The petitioner was convicted of murder in the second degree 12 following a trial or accepted a plea offer in lieu of a trial at which 13 the petitioner could have been convicted of first degree or second 14 degree murder; and 15 (c) The petitioner could not be convicted of murder in the second 16 degree as defined in subdivision three of section 125.25 of the penal 17 law, or would have been sentenced differently, based on the language of 18 such subdivision as of the effective date of the chapter of the laws of 19 two thousand twenty-three which added this section. 20 2. The court shall review the petition and determine if the petitioner 21 has made a prima facie showing that the petitioner falls within the 22 provisions of this section. If the petitioner has requested counsel, the 23 court shall appoint counsel to represent the petitioner. The prosecutor 24 shall file and serve a response within sixty days of service of the 25 petition and the petitioner may file and serve a reply within thirty 26 days after the prosecutor response is served. These deadlines shall be 27 extended for good cause. If the petitioner makes a prima facie showing 28 that he or she is entitled to relief, the court shall issue an order to 29 show cause. 30 3. Within sixty days after the order to show cause was issued, the 31 court shall hold a hearing to determine whether to vacate the murder 32 conviction and to recall the sentence and resentence the petitioner on 33 any remaining counts in the same manner as if the petitioner had not 34 been previously sentenced; provided that the new sentence, if any, is 35 not greater than the initial sentence. This deadline may be extended for 36 good cause. 37 4. At the hearing to determine whether the petitioner is entitled to 38 relief, the burden of proof shall be on the prosecution to prove, beyond 39 a reasonable doubt, that the petitioner is ineligible for resentencing. 40 If the prosecution fails to sustain its burden of proof, the prior 41 conviction, and any allegations and enhancements attached to the 42 conviction, shall be vacated and the petitioner shall be resentenced on 43 the remaining charges. The prosecutor and the petitioner may rely on the 44 record of conviction or offer new or additional evidence to meet their 45 respective burdens. 46 5. If petitioner is entitled to relief pursuant to this section, 47 murder was charged generically, and the target offense was not charged, 48 the petitioner's conviction shall be redesignated as the target offense 49 or underlying felony for resentencing purposes. Any applicable statute 50 of limitations shall not be a bar to the court's redesignation of the 51 offense for this purpose. 52 6. A person who is resentenced pursuant to this section shall be given 53 credit for time served. The judge may order the petitioner to be subject 54 to parole supervision for up to three years following the completion of 55 the sentence.S. 6865 4 1 § 5. Paragraph (a) of subdivision 1 of section 70.02 of the penal law, 2 as amended by chapter 189 of the laws of 2018, is amended to read as 3 follows: 4 (a) Class B violent felony offenses: an attempt to commit the class 5 A-I felonies of murder in the second degree as defined in section 6 125.25, kidnapping in the first degree as defined in section 135.25, and 7 arson in the first degree as defined in section 150.20; manslaughter in 8 the first degree as defined in section 125.20, aggravated manslaughter 9 in the first degree as defined in section 125.22, murder in the second 10 degree as defined in subdivision three of section 125.25, rape in the 11 first degree as defined in section 130.35, criminal sexual act in the 12 first degree as defined in section 130.50, aggravated sexual abuse in 13 the first degree as defined in section 130.70, course of sexual conduct 14 against a child in the first degree as defined in section 130.75; 15 assault in the first degree as defined in section 120.10, kidnapping in 16 the second degree as defined in section 135.20, burglary in the first 17 degree as defined in section 140.30, arson in the second degree as 18 defined in section 150.15, robbery in the first degree as defined in 19 section 160.15, sex trafficking as defined in paragraphs (a) and (b) of 20 subdivision five of section 230.34, sex trafficking of a child as 21 defined in section 230.34-a, incest in the first degree as defined in 22 section 255.27, criminal possession of a weapon in the first degree as 23 defined in section 265.04, criminal use of a firearm in the first degree 24 as defined in section 265.09, criminal sale of a firearm in the first 25 degree as defined in section 265.13, aggravated assault upon a police 26 officer or a peace officer as defined in section 120.11, gang assault in 27 the first degree as defined in section 120.07, intimidating a victim or 28 witness in the first degree as defined in section 215.17, hindering 29 prosecution of terrorism in the first degree as defined in section 30 490.35, criminal possession of a chemical weapon or biological weapon in 31 the second degree as defined in section 490.40, and criminal use of a 32 chemical weapon or biological weapon in the third degree as defined in 33 section 490.47. 34 § 6. The department of corrections and community supervision, in coor- 35 dination with district attorneys and any other relevant law enforcement 36 agencies or bodies, shall issue an annual report to the chairs of the 37 Senate and Assembly judiciary committees which shall include, but need 38 not be limited to, the following information: 39 (i) The number of incarcerated persons convicted under subdivision 3 40 of section 125.25 of the penal law in New York State by year over the 41 past ten years; 42 (ii) The age, race, and gender breakdowns of such convictions over the 43 past ten years; 44 (iii) Whether felony murder (murder in the second degree) was the most 45 serious charge against the defendant or a lower charge they accepted in 46 a plea deal (also stratified by age/race/gender); 47 (iv) Sentencing data: average sentence, number of people serving life 48 without parole; 49 (v) Whether each person charged under subdivision 3 of section 125.25 50 of the penal law was an accomplice to, major participant in, or the 51 perpetrator of the killing act over the past ten years; 52 (vi) Who the decedent in the felony murder was (victim, perpetrator, 53 law enforcement, bystander); and 54 (vii) Whether the killing was carried out by a perpetrator, victim, 55 law enforcement, or bystander. 56 § 7. This act shall take effect immediately.
