S T A T E O F N E W Y O R K
________________________________________________________________________
1020
2009-2010 Regular Sessions
I N S E N A T E
January 22, 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 criminal procedure law and the penal law, in
relation to defining a second homicide offender and increasing the
penalties upon conviction of any of certain homicide offenses after
having previously been subject to a predicate conviction of any of
such homicide offenses
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The criminal procedure law is amended by adding a new
section 400.17 to read as follows:
S 400.17 PROCEDURE FOR DETERMINING WHETHER DEFENDANT IS A SECOND HOMI-
CIDE OFFENDER.
1. APPLICABILITY. THE PROVISIONS OF THIS SECTION GOVERN THE PROCE-
DURE THAT MUST BE FOLLOWED IN ANY CASE WHERE IT APPEARS THAT A DEFENDANT
WHO STANDS CONVICTED OF MURDER IN THE FIRST DEGREE AS DEFINED IN SECTION
125.27 OF THE PENAL LAW, MURDER IN THE SECOND DEGREE AS DEFINED IN
SECTION 125.25 OF SUCH LAW, MANSLAUGHTER IN THE FIRST DEGREE AS DEFINED
IN SECTION 125.20 OF SUCH LAW, OR MANSLAUGHTER IN THE SECOND DEGREE AS
DEFINED IN SECTION 125.15 OF SUCH LAW, HAS PREVIOUSLY BEEN SUBJECTED TO
A PREDICATE HOMICIDE CONVICTION AS DEFINED IN SUBDIVISION TWO OF SECTION
70.09 OF THE PENAL LAW AND MAY BE A SECOND HOMICIDE OFFENDER.
2. STATEMENT TO BE FILED. WHEN INFORMATION AVAILABLE TO THE COURT OR
TO THE PEOPLE PRIOR TO SENTENCING FOR THE CRIMES OF MURDER IN THE FIRST
DEGREE AS DEFINED IN SECTION 125.27 OF THE PENAL LAW, MURDER IN THE
SECOND DEGREE AS DEFINED IN SECTION 125.25 OF SUCH LAW, MANSLAUGHTER IN
THE FIRST DEGREE AS DEFINED IN SECTION 125.20 OF SUCH LAW, OR
MANSLAUGHTER IN THE SECOND DEGREE AS DEFINED IN SECTION 125.15 OF SUCH
LAW, INDICATES THAT THE DEFENDANT MAY HAVE PREVIOUSLY BEEN SUBJECTED TO
A PREDICATE HOMICIDE CONVICTION, A STATEMENT MUST BE FILED BY THE PROSE-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06804-01-9
S. 1020 2
CUTOR BEFORE SENTENCE IS IMPOSED SETTING FORTH THE DATE AND PLACE OF
EACH ALLEGED PREDICATE HOMICIDE CONVICTION.
3. PRELIMINARY EXAMINATION. THE DEFENDANT MUST BE GIVEN A COPY OF
SUCH STATEMENT AND THE COURT MUST ASK HIM WHETHER HE WISHES TO CONTRO-
VERT ANY ALLEGATION MADE THEREIN. IF THE DEFENDANT WISHES TO CONTROVERT
ANY ALLEGATION IN THE STATEMENT, HE MUST SPECIFY THE PARTICULAR ALLEGA-
TION OR ALLEGATIONS HE WISHES TO CONTROVERT. UNCONTROVERTED ALLEGATIONS
IN THE STATEMENT SHALL BE DEEMED TO HAVE BEEN ADMITTED BY THE DEFENDANT.
4. CASES WHERE FURTHER HEARING IS NOT REQUIRED. WHERE THE UNCONTRO-
VERTED ALLEGATIONS IN THE STATEMENT ARE SUFFICIENT TO SUPPORT A FINDING
THAT THE DEFENDANT HAS BEEN SUBJECTED TO A PREDICATE HOMICIDE CONVICTION
THE COURT MUST ENTER SUCH FINDING.
5. CASES WHERE FURTHER HEARING IS REQUIRED. WHERE THE DEFENDANT
CONTROVERTS AN ALLEGATION IN THE STATEMENT AND THE UNCONTROVERTED ALLE-
GATIONS IN SUCH STATEMENT ARE NOT SUFFICIENT TO SUPPORT A FINDING THAT
THE DEFENDANT HAS BEEN SUBJECTED TO A PREDICATE HOMICIDE CONVICTION THE
COURT MUST PROCEED TO HOLD A HEARING.
6. TIME FOR HEARING. IN ANY CASE WHERE A COPY OF THE STATEMENT WAS
NOT RECEIVED BY THE DEFENDANT AT LEAST TWO DAYS PRIOR TO THE PRELIMINARY
EXAMINATION, THE COURT MUST UPON REQUEST OF THE DEFENDANT GRANT AN
ADJOURNMENT OF AT LEAST TWO DAYS BEFORE PROCEEDING WITH THE HEARING.
7. MANNER OF CONDUCTING HEARING.
(A) A HEARING PURSUANT TO THIS SECTION MUST BE BEFORE THE COURT WITH-
OUT A JURY. THE BURDEN OF PROOF IS UPON THE PEOPLE AND A FINDING THAT
THE DEFENDANT HAS BEEN SUBJECTED TO A PREDICATE HOMICIDE CONVICTION MUST
BE BASED UPON PROOF BEYOND A REASONABLE DOUBT BY EVIDENCE ADMISSIBLE
UNDER THE RULES APPLICABLE TO A TRIAL OF THE ISSUE OF GUILT.
(B) A PREVIOUS CONVICTION IN THIS OR ANY OTHER JURISDICTION WHICH WAS
OBTAINED IN VIOLATION OF THE RIGHTS OF THE DEFENDANT UNDER THE APPLICA-
BLE PROVISIONS OF THE CONSTITUTION OF THE UNITED STATES MUST NOT BE
COUNTED IN DETERMINING WHETHER THE DEFENDANT HAS BEEN SUBJECTED TO A
PREDICATE HOMICIDE CONVICTION. THE DEFENDANT MAY, AT ANY TIME DURING
THE COURSE OF THE HEARING HEREUNDER CONTROVERT AN ALLEGATION WITH
RESPECT TO SUCH CONVICTION IN THE STATEMENT ON THE GROUNDS THAT THE
CONVICTION WAS UNCONSTITUTIONALLY OBTAINED. FAILURE TO CHALLENGE THE
PREVIOUS CONVICTION IN THE MANNER PROVIDED IN THIS SUBDIVISION CONSTI-
TUTES A WAIVER ON THE PART OF THE DEFENDANT OF ANY ALLEGATION OF
UNCONSTITUTIONALITY UNLESS GOOD CAUSE BE SHOWN FOR SUCH FAILURE TO MAKE
TIMELY CHALLENGE.
(C) AT THE CONCLUSION OF THE HEARING THE COURT MUST MAKE A FINDING AS
TO WHETHER OR NOT THE DEFENDANT HAS BEEN SUBJECTED TO A PREDICATE HOMI-
CIDE CONVICTION.
8. SUBSEQUENT USE OF PREDICATE HOMICIDE CONVICTION FINDING. WHERE A
FINDING HAS BEEN ENTERED PURSUANT TO THIS SECTION, SUCH FINDING SHALL BE
BINDING UPON THAT DEFENDANT IN ANY FUTURE PROCEEDING IN WHICH THE ISSUE
MAY ARISE.
S 2. The criminal procedure law is amended by adding a new section
400.18 to read as follows:
S 400.18 PROCEDURE FOR DETERMINING WHETHER DEFENDANT SHOULD BE SENTENCED
AS A SECOND HOMICIDE OFFENDER.
1. APPLICABILITY. THE PROVISIONS OF THIS SECTION GOVERN THE PROCE-
DURE THAT MUST BE FOLLOWED IN ORDER TO IMPOSE THE SECOND HOMICIDE OFFEN-
DER SENTENCE AUTHORIZED BY SUBDIVISION THREE OF SECTION 70.09 OF THE
PENAL LAW. SUCH SENTENCE MAY NOT BE IMPOSED UNLESS, BASED UPON EVIDENCE
IN THE RECORD OF A HEARING HELD PURSUANT TO THIS SECTION, THE COURT (A)
HAS FOUND THAT THE DEFENDANT IS A SECOND HOMICIDE OFFENDER AS DEFINED IN
S. 1020 3
SUBDIVISION ONE OF SECTION 70.09 OF THE PENAL LAW, AND (B) IS OF THE
OPINION THAT THE HISTORY AND CHARACTER OF THE DEFENDANT AND THE NATURE
AND CIRCUMSTANCES OF HIS CRIMINAL CONDUCT ARE SUCH THAT EXTENDED INCAR-
CERATION IN ADDITION TO LIFETIME SUPERVISION OF THE DEFENDANT ARE
WARRANTED TO BEST SERVE THE PUBLIC INTEREST.
2. AUTHORIZATION FOR HEARING. WHEN INFORMATION AVAILABLE TO THE
COURT PRIOR TO SENTENCING INDICATES THAT THE DEFENDANT IS A SECOND HOMI-
CIDE OFFENDER, AND WHEN, IN THE OPINION OF THE COURT, THE AVAILABLE
INFORMATION SHOWS THAT A SECOND HOMICIDE OFFENDER SENTENCE MAY BE
WARRANTED, THE COURT MAY ORDER A HEARING TO DETERMINE (A) WHETHER THE
DEFENDANT IS IN FACT A SECOND HOMICIDE OFFENDER, AND (B) IF SO, WHETHER
A SECOND HOMICIDE OFFENDER SENTENCE SHOULD BE IMPOSED.
3. ORDER DIRECTING A HEARING. AN ORDER DIRECTING A HEARING TO DETER-
MINE WHETHER THE DEFENDANT SHOULD BE SENTENCED AS A SECOND HOMICIDE
OFFENDER MUST BE FILED WITH THE CLERK OF THE COURT AND MUST SPECIFY A
DATE FOR THE HEARING NOT LESS THAN TWENTY DAYS FROM THE DATE THE ORDER
IS FILED. THE COURT MUST ANNEX TO AND FILE WITH THE ORDER A STATEMENT
SETTING FORTH THE FOLLOWING:
(A) THE DATES AND PLACES OF THE PREVIOUS CONVICTIONS WHICH RENDER THE
DEFENDANT A SECOND HOMICIDE OFFENDER AS DEFINED IN SUBDIVISION ONE OF
SECTION 70.09 OF THE PENAL LAW; AND
(B) THE FACTORS IN THE DEFENDANT'S BACKGROUND AND PRIOR CRIMINAL
CONDUCT WHICH THE COURT DEEMS RELEVANT FOR THE PURPOSE OF SENTENCING THE
DEFENDANT AS A SECOND HOMICIDE OFFENDER.
4. NOTICE OF HEARING. UPON RECEIPT OF THE ORDER AND STATEMENT OF THE
COURT, THE CLERK OF THE COURT MUST SEND A NOTICE OF HEARING TO THE
DEFENDANT, HIS COUNSEL AND THE DISTRICT ATTORNEY. SUCH NOTICE MUST
SPECIFY THE TIME AND PLACE OF THE HEARING AND THE FACT THAT THE PURPOSE
OF THE HEARING IS TO DETERMINE WHETHER OR NOT THE DEFENDANT SHOULD BE
SENTENCED AS A SECOND HOMICIDE OFFENDER. EACH NOTICE REQUIRED TO BE
SENT HEREUNDER MUST BE ACCOMPANIED BY A COPY OF THE STATEMENT OF THE
COURT.
5. BURDEN AND STANDARD OF PROOF; EVIDENCE. UPON ANY HEARING HELD
PURSUANT TO THIS SECTION THE BURDEN OF PROOF IS UPON THE PEOPLE. A
FINDING THAT THE DEFENDANT IS A SECOND HOMICIDE OFFENDER, AS DEFINED IN
SUBDIVISION ONE OF SECTION 70.09 OF THE PENAL LAW, MUST BE BASED UPON
PROOF BEYOND A REASONABLE DOUBT BY EVIDENCE ADMISSIBLE UNDER THE RULES
APPLICABLE TO THE TRIAL OF THE ISSUE OF GUILT. MATTERS PERTAINING TO
THE DEFENDANT'S HISTORY AND CHARACTER AND THE NATURE AND CIRCUMSTANCES
OF HIS CRIMINAL CONDUCT MAY BE ESTABLISHED BY ANY RELEVANT EVIDENCE, NOT
LEGALLY PRIVILEGED, REGARDLESS OF ADMISSIBILITY UNDER THE EXCLUSIONARY
RULES OF EVIDENCE, AND THE STANDARD OF PROOF WITH RESPECT TO SUCH
MATTERS SHALL BE A PREPONDERANCE OF THE EVIDENCE.
6. CONSTITUTIONALITY OF PRIOR CONVICTIONS. A PREDICATE HOMICIDE
CONVICTION AS DEFINED IN SUBDIVISION TWO OF SECTION 70.09 OF THE PENAL
LAW, WHICH WAS OBTAINED IN VIOLATION OF THE RIGHTS OF THE DEFENDANT
UNDER THE APPLICABLE PROVISIONS OF THE CONSTITUTION OF THE UNITED STATES
MAY NOT BE COUNTED IN DETERMINING WHETHER THE DEFENDANT IS A SECOND
HOMICIDE OFFENDER. THE DEFENDANT MAY, AT ANY TIME DURING THE COURSE OF
THE HEARING HEREUNDER CONTROVERT AN ALLEGATION WITH RESPECT TO SUCH
CONVICTION IN THE STATEMENT OF THE COURT ON THE GROUNDS THAT THE
CONVICTION WAS UNCONSTITUTIONALLY OBTAINED. FAILURE TO CHALLENGE THE
PREVIOUS CONVICTION IN THE MANNER PROVIDED IN THIS SUBDIVISION CONSTI-
TUTES A WAIVER ON THE PART OF THE DEFENDANT OF ANY ALLEGATION OF
UNCONSTITUTIONALITY UNLESS GOOD CAUSE BE SHOWN FOR SUCH FAILURE TO MAKE
TIMELY CHALLENGE.
S. 1020 4
7. PRELIMINARY EXAMINATION. WHEN THE DEFENDANT APPEARS FOR THE HEAR-
ING THE COURT MUST ASK HIM WHETHER HE WISHES TO CONTROVERT ANY ALLEGA-
TION MADE IN THE STATEMENT PREPARED BY THE COURT, AND WHETHER HE WISHES
TO PRESENT EVIDENCE ON THE ISSUE OF WHETHER HE IS A SECOND HOMICIDE
OFFENDER OR ON THE QUESTION OF HIS BACKGROUND AND CRIMINAL CONDUCT. IF
THE DEFENDANT WISHES TO CONTROVERT ANY ALLEGATION IN THE STATEMENT OF
THE COURT, HE MUST SPECIFY THE PARTICULAR ALLEGATION OR ALLEGATIONS HE
WISHES TO CONTROVERT. IF HE WISHES TO PRESENT EVIDENCE IN HIS OWN
BEHALF, HE MUST SPECIFY THE NATURE OF SUCH EVIDENCE. UNCONTROVERTED
ALLEGATIONS IN THE STATEMENT OF THE COURT ARE DEEMED EVIDENCE IN THE
RECORD.
8. CASES WHERE FURTHER HEARING IS NOT REQUIRED. WHERE THE UNCONTRO-
VERTED ALLEGATIONS IN THE STATEMENT OF THE COURT ARE SUFFICIENT TO
SUPPORT A FINDING THAT THE DEFENDANT IS A SECOND HOMICIDE OFFENDER AND
THE COURT IS SATISFIED THAT (A) THE UNCONTROVERTED ALLEGATIONS WITH
RESPECT TO THE DEFENDANT'S BACKGROUND AND THE NATURE OF HIS PRIOR CRIMI-
NAL CONDUCT WARRANT SENTENCING THE DEFENDANT AS A SECOND HOMICIDE OFFEN-
DER, AND (B) THE DEFENDANT EITHER HAS NO RELEVANT EVIDENCE TO PRESENT OR
THE FACTS WHICH COULD BE ESTABLISHED THROUGH THE EVIDENCE OFFERED BY THE
DEFENDANT WOULD NOT AFFECT THE COURT'S DECISION, THE COURT MAY ENTER A
FINDING THAT THE DEFENDANT IS A SECOND HOMICIDE OFFENDER AND SENTENCE
HIM IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVISION THREE OF SECTION
70.09 OF THE PENAL LAW.
9. CASES WHERE FURTHER HEARING IS REQUIRED. WHERE THE DEFENDANT
CONTROVERTS AN ALLEGATION IN THE STATEMENT OF THE COURT AND THE UNCON-
TROVERTED ALLEGATIONS IN SUCH STATEMENT ARE NOT SUFFICIENT TO SUPPORT A
FINDING THAT THE DEFENDANT IS A SECOND HOMICIDE OFFENDER AS DEFINED IN
SUBDIVISION ONE OF SECTION 70.09 OF THE PENAL LAW, OR WHERE THE UNCON-
TROVERTED ALLEGATIONS WITH RESPECT TO THE DEFENDANT'S HISTORY AND THE
NATURE OF HIS PRIOR CRIMINAL CONDUCT DO NOT WARRANT SENTENCING HIM AS A
SECOND HOMICIDE OFFENDER, OR WHERE THE DEFENDANT HAS OFFERED TO PRESENT
EVIDENCE TO ESTABLISH FACTS THAT WOULD AFFECT THE COURT'S DECISION ON
THE QUESTION OF WHETHER A SECOND HOMICIDE OFFENDER SENTENCE IS
WARRANTED, THE COURT MAY FIX A DATE FOR A FURTHER HEARING. SUCH HEARING
SHALL BE BEFORE THE COURT WITHOUT A JURY AND EITHER PARTY MAY INTRODUCE
EVIDENCE WITH RESPECT TO THE CONTROVERTED ALLEGATIONS OR ANY OTHER
MATTER RELEVANT TO THE ISSUE OF WHETHER OR NOT THE DEFENDANT SHOULD BE
SENTENCED AS A SECOND HOMICIDE OFFENDER. AT THE CONCLUSION OF THE HEAR-
ING THE COURT MUST MAKE A FINDING AS TO WHETHER OR NOT THE DEFENDANT IS
A SECOND HOMICIDE OFFENDER AND, UPON A FINDING THAT HE IS SUCH, MUST
THEN MAKE SUCH FINDINGS OF FACT AS IT DEEMS RELEVANT TO THE QUESTION OF
WHETHER A SECOND HOMICIDE OFFENDER SENTENCE IS WARRANTED. IF THE COURT
BOTH FINDS THAT THE DEFENDANT IS A SECOND HOMICIDE OFFENDER AND IS OF
THE OPINION THAT A SECOND HOMICIDE OFFENDER SENTENCE IS WARRANTED, IT
MAY SENTENCE THE DEFENDANT IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVI-
SION THREE OF SECTION 70.09 OF THE PENAL LAW.
10. TERMINATION OF HEARING. AT ANY TIME DURING THE PENDENCY OF A
HEARING PURSUANT TO THIS SECTION, THE COURT MAY, IN ITS DISCRETION,
TERMINATE THE HEARING WITHOUT MAKING ANY FINDING. IN SUCH CASE, UNLESS
THE COURT RECOMMENCES THE PROCEEDINGS AND MAKES THE NECESSARY FINDINGS,
THE DEFENDANT MAY NOT BE SENTENCED AS A SECOND HOMICIDE OFFENDER.
S 3. Section 400.22 of the criminal procedure law is amended to read
as follows:
S 400.22 Evidence of imprisonment.
The certificate of the commissioner of [correction] CORRECTIONAL
SERVICES or of the warden or other chief officer of any prison, or of
S. 1020 5
the superintendent or other chief officer of any penitentiary under the
seal of his office containing name of person, a statement of the court
in which conviction was had, the date and term of sentence, length of
time imprisoned, and date of discharge from prison or penitentiary,
shall be prima facie evidence of the imprisonment and discharge of any
person under the conviction stated and set forth in such certificate for
the purposes of any proceeding under section 400.17 OR 400.20.
S 4. The penal law is amended by adding a new section 70.09 to read
as follows:
S 70.09 SENTENCE OF IMPRISONMENT FOR A SECOND HOMICIDE OFFENDER.
1. DEFINITION OF A SECOND HOMICIDE OFFENDER. A SECOND HOMICIDE OFFEN-
DER IS A PERSON WHO STANDS CONVICTED OF ANY OFFENSE DEFINED UNDER
SECTION 125.27, 125.25, 125.20 OR 125.15 OF THIS CHAPTER AFTER HAVING
PREVIOUSLY BEEN SUBJECT TO A PREDICATE HOMICIDE CONVICTION.
2. PREDICATE HOMICIDE CONVICTION. FOR THE PURPOSES OF DETERMINING
WHETHER A PRIOR CONVICTION IS A PREDICATE HOMICIDE CONVICTION THE
CONVICTION MUST HAVE BEEN IN THIS STATE OF A FELONY AS DEFINED IN
SECTION 125.27, 125.25, 125.20 OR 125.15 OF THIS CHAPTER.
3. AUTHORIZED SENTENCE. WHEN THE COURT HAS FOUND, PURSUANT TO THE
PROVISIONS OF THE CRIMINAL PROCEDURE LAW, THAT A PERSON IS A SECOND
HOMICIDE OFFENDER THE COURT MUST IMPOSE AN INDETERMINATE SENTENCE OF
IMPRISONMENT. THE MAXIMUM TERM OF SUCH SENTENCE MUST BE LIFE IMPRISON-
MENT AND THE MINIMUM PERIOD OF IMPRISONMENT UNDER SUCH SENTENCE MUST BE
CONSECUTIVE TO ANY OTHER SENTENCE IMPOSED BY LAW AND SHALL BE FIXED BY
THE COURT IN ACCORDANCE WITH SUBDIVISION FOUR OF THIS SECTION.
4. MINIMUM PERIOD OF IMPRISONMENT. THE MINIMUM PERIOD OF IMPRISONMENT
UNDER AN INDETERMINATE SENTENCE FOR A SECOND HOMICIDE OFFENDER MUST BE
FIXED BY THE COURT AS FOLLOWS:
(A) FOR A CLASS A-I FELONY, THE TERM MUST BE AT LEAST THIRTY YEARS AND
MUST NOT EXCEED FIFTY YEARS;
(B) FOR A CLASS B FELONY, THE TERM MUST BE AT LEAST FIFTEEN YEARS AND
MUST NOT EXCEED THIRTY YEARS;
(C) FOR A CLASS C FELONY, THE TERM MUST BE AT LEAST TEN YEARS AND MUST
NOT EXCEED TWENTY YEARS.
S 5. This act shall take effect on the first of November next
succeeding the date on which it shall have become a law and shall apply
to offenses committed on or after such date.