NY State Senate Bill 2011-S2659

Senate Bill S2659

2011-2012 Legislative Session

Establishes the intentional killing of a child as murder in the first degree, may be cited as "Nixzmary Brown'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 27, 2011	referred to codes

2011-S2659 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Amd §§125.27 & 70.00, Pen L
Versions Introduced in 2009-2010 Legislative Session:: S888

2011-S2659 (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 Brown's Law".

2011-S2659 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S2659

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 "Nixzmary's Brown'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.

2011-S2659 (ACTIVE) - Bill Text download pdf

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

                                  2659

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            January 27, 2011
                               ___________

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  Brown'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
Brown'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:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07156-01-1

S. 2659                             2

  (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
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

S. 2659                             3

first degree, aggravated sexual abuse in the first degree or  escape  in
the  first  degree,  or  in  the  course of and furtherance of immediate
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

S. 2659                             4

constitute  a defense to a prosecution for, or preclude a conviction of,
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 482 of the laws of 2009, 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
subdivision one of 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.  A defendant may be sentenced to life  imprison-
ment  without  parole upon conviction for the crime of aggravated murder
as defined in subdivision two of section 125.26 of this chapter.
  S 5. This act shall take effect immediately.

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