NY State Senate Bill 2009-S888

Senate Bill S888

2009-2010 Legislative Session

Establishes the intentional killing of a child as murder in the first degree, may be cited as "Nixzmary's Law"

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Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to codes
Jan 21, 2009	referred to codes

2009-S888 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Amd §§125.27 & 70.00, Pen L
Versions Introduced in 2011-2012 Legislative Session:: S2659

2009-S888 (ACTIVE) - Summary

Establishes the intentional killing of a child eleven years of age or less as murder in the first degree; changes definition of torture to ease burden of proof; shall be known and may be cited as "Nixzmary's Law".

2009-S888 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S888

 TITLE OF BILL :

An act to amend the penal law, in relation to enacting Nixzmary's law


 PURPOSE :

This bill establishes the intentional killing of a child as murder in
the first degree, may be cited as "Nixzrnary's Law."

 SUMMARY OF PROVISIONS :

Section 1 establishes that the act shall be known and may be cited as
"Nixzmary's Law."

Section 2 Subparagraph (x) of paragraph (a) of section 125.27 of the
penal law is amended to eliminate "depraved" from the definition of
torture.

Section 3 Subparagraph (b) of subparagraph (xiii) of paragraph (a) of
subdivision 1 of section 125.27 of the penal law is amended to include
a new subparagraph (1-a) that adds that a person over the age of
eighteen years who acts with the intent to cause physical harm to a
child twelve years or less (a) acts in an especially cruel and wanton

manner (b) inflicts harm upon the child and (c) such harm causes or
leads to the death of the child should be included under the rubric of
murder in the first degree.

 EXISTING LAW :

Current state law reserves first-degree murder charges - which carry
life in jail without parole - for those who kill police officers,
judges and correctional officers, as well as homicides with multiple
victims and murderers who prosecutors can prove acted in a "depraved"
manner.  According to the current statute, the charge of first-degree
murder would be used if "the defendant relished the infliction of
extreme physical pain..or... evidenced a sense of pleasure in the
infliction of extreme physical pain." Under this definition,
prosecutors are faced with an unreasonable burden of proof in
demonstrating that a defendant tortured his or her victim. In
addition, current law states that when an adult is convicted of
murdering a child, life without parole is not mandatory unless he or
she is also convicted of rape, criminal sexual act, sexual abuse,
aggravated sexual abuse or incest toward that child.  A defendant who
abuses a child to the point of death, as in the recent case in
Brooklyn involving the stepfather of seven-year-old Nixzmary Brown,
could only be charged with second-degree murder, which carries a
maximum penalty of 25 years in prison.

 JUSTIFICATION :

The murder of a child not only robs the victim of a future, but also
tears away at the very fabric of a community, causing pain and anguish
to families and all decent people. It is unconscionable that any
defendant who murders a child could someday be released from prison.
This bill makes killing and torturing a child an additional criterion
for a first degree murder charge, allowing murderers of children to
receive the top penalty of life without the possibility of parole, and
also eliminates the need for prosecutors to demonstrate the
defendant's "sense of pleasure" in committing the act. Proving a
particular emotion is extremely difficult to do and should play no
part in mitigating this heinous crime. It should therefore be possible
to bring charges of torture against a defendant without having to
prove that he or she enjoyed inflicting physical pain on the victim.
Amending the criteria for a first-degree murder charge to include
murderers of children will address the pervasive problem of child
abuse in our society and recognizes the murder ,of a child as a crime
worthy of the most severe penalty available under New York State law.
This bill will also serve as a deterrent and prevent future tragedies
from occurring at the expense

of innocent children.

 FISCAL IMPLICATIONS :

None.

 EFFECTIVE DATE :
This act shall take effect immediately.

2009-S888 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   888

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            January 21, 2009
                               ___________

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

AN ACT to amend the penal law, in relation to enacting Nixzmary's law

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  This  act  shall be known and may be cited as "Nixzmary's
Law".
  S 2. Legislative findings.  In January, 2006, an  angelic  seven  year
old  girl  was  brutally  beaten;  a  beating that ultimately led to her
untimely passing. The legislature finds that the law currently does  not
provide  a  fitting  punishment  for  these  kinds of horrific acts. The
legislature therefore determines that it is necessary to ensure that any
person who inflicts such pain and agony upon a child  as  to  ultimately
cause  the  death  of  the  child  be  punished  severely for his or her
actions.  Therefore, the legislature intends to include such death of  a
child within the parameters of murder in the first degree.
  S  3.  Section 125.27 of the penal law, as added by chapter 367 of the
laws of 1974, subdivision 1 as amended by chapter 1 of the laws of 1995,
subparagraph (vii) of paragraph (a) of subdivision 1 as amended by chap-
ter 264 of the laws of 2003, subparagraph  (xii)  of  paragraph  (a)  of
subdivision  1  as  amended  and subparagraph (xiii) of paragraph (a) of
subdivision 1 as added by chapter 300 of the laws of 2001, is amended to
read as follows:
S 125.27 Murder in the first degree.
  A person is guilty of murder in  the  first  degree  when  HE  OR  SHE
EITHER:
  1.  With  intent to cause the death of another person, [he] causes the
death of such person or of a third person; and
  (a) Either:
  (i) the intended victim was a police officer as defined in subdivision
34 of section 1.20 of the criminal procedure law who was at the time  of

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06478-01-9

S. 888                              2

the  killing  engaged  in  the  course of performing his OR HER official
duties, and the defendant knew or reasonably should have known that  the
intended victim was a police officer; or
  (ii) the intended victim was a peace officer as defined in paragraph a
of  subdivision  twenty-one,  subdivision  twenty-three,  twenty-four or
sixty-two (employees of the division for youth) of section 2.10  of  the
criminal procedure law who was at the time of the killing engaged in the
course  of performing his OR HER official duties, and the defendant knew
or reasonably should have known that the  intended  victim  was  such  a
uniformed  court officer, parole officer, probation officer, or employee
of the division for youth; or
  (iii) the intended victim was an  employee  of  a  state  correctional
institution  or  was  an  employee  of  a local correctional facility as
defined in subdivision two of section forty of the correction  law,  who
was  at  the time of the killing engaged in the course of performing his
OR HER official duties, and the defendant knew or reasonably should have
known that the intended victim was an employee of a  state  correctional
institution or a local correctional facility; or
  (iv)  at  the time of the commission of the killing, the defendant was
confined in a state correctional institution or was otherwise in custody
upon a sentence for the term of his OR  HER  natural  life,  or  upon  a
sentence  commuted  to  one  of  natural life, or upon a sentence for an
indeterminate term the minimum of which was at least fifteen  years  and
the  maximum of which was natural life, or at the time of the commission
of the killing, the defendant  had  escaped  from  such  confinement  or
custody  while  serving such a sentence and had not yet been returned to
such confinement or custody; or
  (v) the intended victim was a witness to a crime committed on a  prior
occasion  and  the  death  was  caused for the purpose of preventing the
intended victim's testimony in any criminal action or proceeding whether
or not such action or proceeding had been  commenced,  or  the  intended
victim  had  previously testified in a criminal action or proceeding and
the killing was committed for the purpose of  exacting  retribution  for
such  prior  testimony,  or  the intended victim was an immediate family
member of a witness to a crime committed on a  prior  occasion  and  the
killing  was  committed for the purpose of preventing or influencing the
testimony of such witness, or the intended victim was an immediate fami-
ly member of a witness who had previously testified in a criminal action
or proceeding and the killing was committed for the purpose of  exacting
retribution  upon such witness for such prior testimony. As used in this
subparagraph "immediate family member" means a  husband,  wife,  father,
mother,  daughter,  son, brother, sister, stepparent, grandparent, step-
child or grandchild; or
  (vi) the defendant committed the killing or procured commission of the
killing pursuant to an agreement with a person other than  the  intended
victim  to  commit  the  same  for the receipt, or in expectation of the
receipt, of anything of pecuniary value from a party to the agreement or
from a person other than the intended victim acting at the direction  of
a party to such agreement; or
  (vii)  the  victim was killed while the defendant was in the course of
committing or attempting  to  commit  and  in  furtherance  of  robbery,
burglary  in  the first degree or second degree, kidnapping in the first
degree, arson in the first degree or second degree, rape  in  the  first
degree,  criminal  sexual  act  in the first degree, sexual abuse in the
first degree, aggravated sexual abuse in the first degree or  escape  in
the  first  degree,  or  in  the  course of and furtherance of immediate

S. 888                              3

flight after committing or attempting to commit any such crime or in the
course of and furtherance of immediate flight after attempting to commit
the crime of murder in the second degree; provided however,  the  victim
is  not  a participant in one of the aforementioned crimes and, provided
further that, unless  the  defendant's  criminal  liability  under  this
subparagraph is based upon the defendant having commanded another person
to  cause the death of the victim or intended victim pursuant to section
20.00 of this chapter, this  subparagraph  shall  not  apply  where  the
defendant's  criminal  liability  is  based  upon the conduct of another
pursuant to section 20.00 of this chapter; or
  (viii) as part of the same criminal transaction, the  defendant,  with
intent to cause serious physical injury to or the death of an additional
person  or persons, causes the death of an additional person or persons;
provided, however, the victim is not a participant in the criminal tran-
saction; or
  (ix) prior to committing the killing, the defendant had been convicted
of murder as defined in this section or section 125.25 of this  article,
or  had  been  convicted in another jurisdiction of an offense which, if
committed in this state, would constitute a violation of either of  such
sections; or
  (x)  the  defendant  acted  in  an  especially cruel and wanton manner
pursuant to a course of  conduct  intended  to  inflict  and  inflicting
torture  upon  the  victim  prior to the victim's death. As used in this
subparagraph, "torture" means the intentional [and depraved]  infliction
of  extreme  physical pain; ["depraved" means the defendant relished the
infliction of extreme physical pain upon the victim  evidencing  debase-
ment  or  perversion or that the defendant evidenced a sense of pleasure
in the infliction of extreme physical pain;] or
  (xi) the defendant intentionally caused the death of two or more addi-
tional persons within the state in separate criminal transactions within
a period of twenty-four months when committed in a  similar  fashion  or
pursuant to a common scheme or plan; or
  (xii)  the intended victim was a judge as defined in subdivision twen-
ty-three of section 1.20 of the criminal procedure law and the defendant
killed such victim because such victim was, at the time of the  killing,
a judge; or
  (xiii) the victim was killed in furtherance of an act of terrorism, as
defined  in  paragraph  (b) of subdivision one of section 490.05 of this
chapter; and
  (b) The defendant was more than eighteen years old at the time of  the
commission of the crime[.]; OR
  1-A. WITH INTENT TO CAUSE PHYSICAL HARM TO A CHILD ELEVEN YEARS OLD OR
LESS, THE PERSON:
  A.  ACTS IN AN ESPECIALLY CRUEL AND WANTON MANNER PURSUANT TO A COURSE
OF CONDUCT INTENDED TO INFLICT ENDURING HARM ON THE CHILD,
  B. DOES INFLICT SUCH HARM UPON THE CHILD, AND
  C. SUCH HARM CAUSES OR LEADS TO THE DEATH OF THE CHILD.
  2. In any prosecution under subdivision one OR ONE-A OF THIS  SECTION,
it is an affirmative defense that:
  (a)  The  defendant  acted  under  the  influence of extreme emotional
disturbance for which there was a reasonable explanation or excuse,  the
reasonableness  of  which  is  to  be determined from the viewpoint of a
person in the defendant's  situation  under  the  circumstances  as  the
defendant believed them to be. Nothing contained in this paragraph shall
constitute  a defense to a prosecution for, or preclude a conviction of,

S. 888                              4

manslaughter in the first degree or any other crime except murder in the
second degree; or
  (b)  The  defendant's  conduct consisted of causing or aiding, without
the use of duress or deception, another person to commit suicide.  Noth-
ing  contained  in this paragraph shall constitute a defense to a prose-
cution for, or preclude a conviction  of,  manslaughter  in  the  second
degree or any other crime except murder in the second degree.
  Murder in the first degree is a class A-I felony.
  S  4.  Subdivision  5 of section 70.00 of the penal law, as amended by
chapter 765 of the laws of 2005, is amended to read as follows:
  5.  Life  imprisonment  without  parole.  Notwithstanding  any   other
provision  of  law,  a  defendant sentenced to life imprisonment without
parole shall not  be  or  become  eligible  for  parole  or  conditional
release.  For  purposes of commitment and custody, other than parole and
conditional release, such sentence shall be deemed to be  an  indetermi-
nate  sentence.  A defendant may be sentenced to life imprisonment with-
out parole upon conviction for the crime of murder in the  first  degree
as  defined in section 125.27 of this chapter and in accordance with the
procedures provided by law for imposing a sentence  for  such  crime.  A
defendant  must  be  sentenced  to life imprisonment without parole upon
conviction for the crime of terrorism as defined in  section  490.25  of
this  chapter,  where the specified offense the defendant committed is a
class A-I felony; the crime of criminal possession of a chemical  weapon
or biological weapon in the first degree as defined in section 490.45 of
this  chapter;  or  the  crime  of  criminal use of a chemical weapon or
biological weapon in the first degree as defined in  section  490.55  of
this  chapter; provided, however, that nothing in this subdivision shall
preclude or prevent a sentence of  death  when  the  defendant  is  also
convicted  of  the  crime  of  murder  in the first degree as defined in
section 125.27 of this chapter.  A defendant must be sentenced  to  life
imprisonment  without  parole upon conviction for the crime of murder in
the second degree as defined in subdivision five of  section  125.25  of
this  chapter  [or],  for  the  crime of aggravated murder as defined in
section 125.26 of this chapter, OR FOR THE CRIME OF MURDER IN THE  FIRST
DEGREE PURSUANT TO SUBDIVISION ONE-A OF SECTION 125.27 OF THIS CHAPTER.
  S 5. This act shall take effect immediately.

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