Bill Text: NY S09326 | 2021-2022 | General Assembly | Introduced

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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 8-0)

Status: (Introduced - Dead) 2022-05-17 - REFERRED TO CODES [S09326 Detail]

Download: New_York-2021-S09326-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          9326

                    IN SENATE

                                      May 17, 2022
                                       ___________

        Introduced  by  Sens. ORTT, LANZA -- 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-
    25  ance with subdivision five of section 70.00 of this title, or to a  term
    26  of  imprisonment  for  a  class A-I felony other than a sentence of life
    27  imprisonment without parole, in accordance with subdivisions one through

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD15898-01-2
        S. 9326                             2

     1  three of section 70.00 of this title. When  a  person  is  convicted  of
     2  murder  in  the  second degree as defined in subdivision five of section
     3  125.25 of this chapter or of the crime of aggravated murder  as  defined
     4  in subdivision one of section 125.26 of this chapter, or of the crime of
     5  murder in the first degree as defined in subparagraph (i), (ii), (ii-a),
     6  (iii),  (viii),  (xi),  (xiii), or (xiv) of paragraph (a) of subdivision
     7  one of section 125.27 of this chapter and the sentence of death  is  not
     8  imposed  the  court  shall  sentence  the defendant to life imprisonment
     9  without parole in accordance with subdivision five of section  70.00  of
    10  this  title.  When a defendant is convicted of the crime of terrorism as
    11  defined in section 490.25 of this chapter, and the specified offense the
    12  defendant committed is a class A-I felony offense, or when  a  defendant
    13  is convicted of the crime of criminal possession of a chemical weapon or
    14  biological  weapon  in  the first degree as defined in section 490.45 of
    15  this chapter, or when a defendant is convicted of the crime of  criminal
    16  use  of  a  chemical  weapon or biological weapon in the first degree as
    17  defined in section 490.55 of this chapter, the court shall sentence  the
    18  defendant  to life imprisonment without parole in accordance with subdi-
    19  vision five of section 70.00 of  this  title;  provided,  however,  that
    20  nothing  in  this  section shall preclude or prevent a sentence of death
    21  when the defendant is also convicted of murder in the  first  degree  as
    22  defined in section 125.27 of this chapter. When a defendant is convicted
    23  of  aggravated murder as defined in subdivision two of section 125.26 of
    24  this chapter, the court shall sentence the defendant to  life  imprison-
    25  ment  without parole or to a term of imprisonment for a class A-I felony
    26  other than a sentence of life imprisonment without parole, in accordance
    27  with subdivisions one through three of section 70.00 of this title.
    28    § 3. Subparagraph (i) of paragraph (a) of  subdivision  3  of  section
    29  70.00  of  the penal law, as amended by chapter 107 of the laws of 2006,
    30  is amended to read as follows:
    31    (i) For a class A-I felony, such minimum period shall not be less than
    32  fifteen years nor more than twenty-five years; provided,  however,  that
    33  (A)  where  a sentence, other than a sentence of death or life imprison-
    34  ment without parole, is imposed upon a defendant convicted of murder  in
    35  the  first  degree  as  defined  in subparagraph (iv), (v), (vi), (vii),
    36  (ix), (x), or (xii) of paragraph  (a)  of  subdivision  one  of  section
    37  125.27 of this chapter such minimum period shall be not less than twenty
    38  years  nor  more  than  twenty-five  years, and, (B) where a sentence is
    39  imposed upon a defendant convicted of murder in  the  second  degree  as
    40  defined  in  subdivision  five  of  section  125.25  of  this chapter or
    41  convicted of aggravated murder as defined  in  section  125.26  of  this
    42  chapter, or where a sentence, other than a sentence of death, is imposed
    43  upon  a  defendant convicted of murder in the first degree as defined in
    44  subparagraph (i), (ii), (ii-a), (iii), (viii), (xi), (xiii), or (xiv) of
    45  paragraph (a) of subdivision one of section 125.27 of this chapter,  the
    46  sentence  shall  be  life  imprisonment without parole, and, (C) where a
    47  sentence is imposed upon a defendant convicted of  attempted  murder  in
    48  the  first  degree as defined in article one hundred ten of this chapter
    49  and subparagraph (i), (ii), (ii-a) or (iii) of paragraph (a) of subdivi-
    50  sion one and paragraph (b) of subdivision one of section 125.27 of  this
    51  chapter or attempted aggravated murder as defined in article one hundred
    52  ten  of  this  chapter  and  section 125.26 of this chapter such minimum
    53  period shall be not less than twenty years nor more than forty years.
    54    § 4. Subdivision 5 of section 70.00 of the penal law,  as  amended  by
    55  section  40-a  of part WWW of chapter 59 of the laws of 2017, is amended
    56  to read as follows:
        S. 9326                             3

     1    5.  Life  imprisonment  without  parole.  Notwithstanding  any   other
     2  provision  of  law,  a  defendant sentenced to life imprisonment without
     3  parole shall not  be  or  become  eligible  for  parole  or  conditional
     4  release.  For  purposes of commitment and custody, other than parole and
     5  conditional  release,  such sentence shall be deemed to be an indetermi-
     6  nate sentence. A defendant may be sentenced to life imprisonment without
     7  parole upon conviction for the crime of murder in the  first  degree  as
     8  defined  in  section  125.27  of this chapter and in accordance with the
     9  procedures provided by law for imposing a sentence  for  such  crime.  A
    10  defendant  who  was  eighteen  years  of age or older at the time of the
    11  commission of the crime must be sentenced to life  imprisonment  without
    12  parole  upon conviction for the crime of terrorism as defined in section
    13  490.25 of this  chapter,  where  the  specified  offense  the  defendant
    14  committed  is  a class A-I felony; the crime of criminal possession of a
    15  chemical weapon or biological weapon in the first degree as  defined  in
    16  section 490.45 of this chapter; or the crime of criminal use of a chemi-
    17  cal  weapon  or  biological  weapon  in  the  first degree as defined in
    18  section 490.55 of this chapter; provided, however, that nothing in  this
    19  subdivision  shall  preclude  or  prevent  a  sentence of death when the
    20  defendant is also convicted of the crime of murder in the  first  degree
    21  as defined in section 125.27 of this chapter. A defendant who was seven-
    22  teen  years of age or younger at the time of the commission of the crime
    23  may be sentenced, in accordance with law, to the  applicable  indetermi-
    24  nate sentence with a maximum term of life imprisonment. A defendant must
    25  be sentenced to life imprisonment without parole upon conviction for the
    26  crime  of  murder in the second degree as defined in subdivision five of
    27  section 125.25 of this chapter or for the crime of aggravated murder  as
    28  defined  in subdivision one of section 125.26 of this chapter. A defend-
    29  ant may be sentenced to life imprisonment without parole upon conviction
    30  for the crime of aggravated murder as  defined  in  subdivision  two  of
    31  section  125.26  of this chapter or for the crime of murder in the first
    32  degree as defined in subparagraph  (i),  (ii),  (ii-a),  (iii),  (viii),
    33  (xi),  (xiii),  or  (xiv) of paragraph (a) of subdivision one of section
    34  125.27 of this chapter and the sentence of death is not imposed.
    35    § 5. Subdivisions 1 and 10 of section 400.27 of the criminal procedure
    36  law, as added by chapter 1 of the laws of 1995, are amended to  read  as
    37  follows:
    38    1.  Upon  [the] conviction of a defendant for the offense of murder in
    39  the first degree as defined by subparagraph (i),  (ii),  (ii-a),  (iii),
    40  (viii),  (xi),  (xiii),  or (xiv) of paragraph (a) of subdivision one of
    41  section 125.27 of the penal law, the  court  shall  promptly  conduct  a
    42  separate  sentencing proceeding to determine whether the defendant shall
    43  be sentenced to death or to life imprisonment without parole pursuant to
    44  subdivision five of section 70.00 of the  penal  law.  Nothing  in  this
    45  section  shall  be deemed to preclude the people at any time from deter-
    46  mining that the death penalty shall not be sought in a particular  case,
    47  in  which case the separate sentencing proceeding shall not be conducted
    48  and the court may sentence such defendant to life  imprisonment  without
    49  parole  [or  to  a  sentence of imprisonment for the class A-I felony of
    50  murder in the first degree other than a sentence  of  life  imprisonment
    51  without parole].
    52    10.  (a)  At  the  conclusion  of all the evidence, the people and the
    53  defendant may present argument in summation for or against the  sentence
    54  sought by the people. The people may deliver the first summation and the
    55  defendant  may  then  deliver  the last summation. Thereafter, the court
    56  shall deliver a charge to the jury on any  matters  appropriate  in  the
        S. 9326                             4

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