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

                                  5390

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            February 25, 2013
                               ___________

Introduced  by  M. of A. KOLB, TEDISCO -- Multi-Sponsored by -- M. of A.
  BARCLAY -- read once and referred to the Committee on Codes

AN ACT to amend the criminal  procedure  law,  in  relation  to  capital
  punishment

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

  Section 1. Subdivision 1 of section 400.27 of the  criminal  procedure
law,  as  added  by chapter 1 of the laws of 1995, is amended to read as
follows:
  1. Upon [the] conviction of a defendant for the offense of  murder  in
the  first  degree  as  defined  by section 125.27 of the penal law, the
court shall promptly conduct a separate sentencing proceeding to  deter-
mine  whether  the  defendant  shall be sentenced to death [or], to life
imprisonment without parole pursuant  to  subdivision  five  of  section
70.00  of  the penal law, OR TO A SENTENCE OF IMPRISONMENT FOR THE CLASS
A-I FELONY OF MURDER IN THE FIRST DEGREE OTHER THAN A SENTENCE  OF  LIFE
IMPRISONMENT WITHOUT PAROLE.  Nothing in this section shall be deemed to
preclude  the people at any time from determining that the death penalty
shall not be sought in a particular case, in  which  case  the  separate
sentencing  proceeding shall not be conducted and the court may sentence
such defendant to life imprisonment without parole or to a  sentence  of
imprisonment  for  the  class  A-I  felony of murder in the first degree
other than a sentence of life imprisonment without parole.
  S 2. Subdivision 10 of section 400.27 of the criminal  procedure  law,
as  added  by  chapter  1  of  the  laws  of 1995, is amended to read as
follows:
  10. (A) At the conclusion of all the  evidence,  the  people  and  the
defendant  may present argument in summation for or against the sentence
sought by the people. The people may deliver the first summation and the
defendant may then deliver the last  summation.  Thereafter,  the  court
shall  deliver  a  charge  to the jury on any matters appropriate in the

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09192-01-3
              

A. 5390                             2

circumstances. In its charge, the court must instruct the jury that with
respect to each count of murder in the  first  degree  the  jury  should
consider whether or not a sentence of death should be imposed and wheth-
er  or  not  a  sentence  of  life imprisonment without parole should be
imposed[,] and [that the jury must be unanimous with respect  to  either
sentence.  The  court  must also instruct the jury that in the event the
jury fails to reach unanimous agreement with respect  to  the  sentence,
the  court  will sentence the defendant to a term of imprisonment with a
minimum term of between twenty and twenty-five years and a maximum  term
of life. Following the court's charge, the jury shall retire to consider
the  sentence  to be imposed. Unless inconsistent with the provisions of
this section, the provisions of sections 310.10, 310.20 and 310.30 shall
govern the deliberations of the jury] WHETHER OR NOT  A  SENTENCE  TO  A
TERM   OF  IMPRISONMENT  WITH  A  MINIMUM  TERM  OF  BETWEEN  TWENTY  TO
TWENTY-FIVE YEARS, TO BE DETERMINED BY THE COURT, AND A MAXIMUM TERM  OF
LIFE IMPRISONMENT SHOULD BE IMPOSED.
  (B)  THE  COURT MUST INSTRUCT THE JURY THAT THE JURY MUST BE UNANIMOUS
WITH RESPECT TO THE SENTENCE TO BE IMPOSED. THE COURT MUST ALSO INSTRUCT
THE JURY THAT IN THE EVENT THE JURY FAILS TO REACH  UNANIMOUS  AGREEMENT
WITH RESPECT TO THE SENTENCE, THE COURT WILL SENTENCE THE DEFENDANT TO A
TERM OF LIFE IMPRISONMENT WITHOUT PAROLE.
  (C)  FOLLOWING  THE COURT'S CHARGE, THE JURY SHALL RETIRE TO DETERMINE
THE SENTENCE TO BE IMPOSED.  UNLESS INCONSISTENT WITH THE PROVISIONS  OF
THIS  SECTION,  THE  PROVISIONS OF SECTIONS 310.10, 310.20 AND 310.30 OF
THIS CHAPTER SHALL GOVERN THE DELIBERATIONS OF THE JURY.
  S 3. Subdivision 11 of section 400.27 of the criminal  procedure  law,
as  added  by  chapter  1  of  the  laws  of 1995, is amended to read as
follows:
  11. (a) The jury may not direct imposition  of  a  sentence  of  death
unless it unanimously finds beyond a reasonable doubt that the aggravat-
ing  factor  or  factors substantially outweigh the mitigating factor or
factors established, if any, and unanimously determines that the penalty
of death should be imposed. Any member or members of the jury who find a
mitigating factor to have been proven by the defendant by  a  preponder-
ance  of the evidence may consider such factor established regardless of
the number of jurors who concur that the factor has been established.
  (b) If the jury directs imposition of [either]  a  sentence  of  death
[or], A SENTENCE OF life imprisonment without parole, OR A SENTENCE TO A
TERM   OF  IMPRISONMENT  WITH  A  MINIMUM  TERM  OF  BETWEEN  TWENTY  TO
TWENTY-FIVE YEARS, TO BE DETERMINED BY THE COURT, AND A MAXIMUM TERM  OF
LIFE  IMPRISONMENT,  it shall specify on the record those mitigating and
aggravating factors considered and those mitigating factors  established
by the defendant, if any.
  (c)  With  respect  to  a  count or concurrent counts of murder in the
first degree, the court may direct the jury to cease  deliberation  with
respect  to  the  sentence  or  sentences  to be imposed if the jury has
deliberated for an extensive period of time without  reaching  unanimous
agreement  on  the  sentence or sentences to be imposed and the court is
satisfied that any such agreement is unlikely within a reasonable  time.
The provisions of this paragraph shall apply with respect to consecutive
counts of murder in the first degree. In the event the jury is unable to
reach  unanimous  agreement,  the  court  must sentence the defendant in
accordance with [subdivisions one through  three]  SUBDIVISION  FIVE  of
section  70.00  of  the penal law with respect to any count or counts of
murder in the first degree upon which the jury failed to reach unanimous
agreement as to the sentence to be imposed.

A. 5390                             3

  (d) If the jury unanimously determines that a sentence of death should
be imposed, the court must thereupon impose a sentence of death.  There-
after, however, the court may, upon written motion of the defendant, set
aside the sentence of death upon any of the grounds set forth in section
330.30  OF THIS CHAPTER. The procedures set forth in sections 330.40 and
330.50 OF THIS CHAPTER, as applied to  separate  sentencing  proceedings
under  this section, shall govern the motion and the court upon granting
the motion shall, except as may otherwise be required by subdivision one
of section 330.50 OF THIS CHAPTER, direct a  new  sentencing  proceeding
pursuant  to  this  section.    Upon granting the motion upon any of the
grounds set forth in section 330.30 OF THIS CHAPTER  and  setting  aside
the  sentence,  the  court must afford the people a reasonable period of
time, which shall not be less than ten days,  to  determine  whether  to
take  an  appeal from the order setting aside the sentence of death. The
taking of an appeal by  the  people  stays  the  effectiveness  of  that
portion of the court's order that directs a new sentencing proceeding.
  (e)  If the jury unanimously determines that a sentence of life impri-
sonment without parole should  be  imposed,  the  court  must  thereupon
impose a sentence of life imprisonment without parole.
  (E-1)  IF THE JURY UNANIMOUSLY DETERMINES THAT A SENTENCE TO A TERM OF
IMPRISONMENT WITH A MINIMUM  TERM  OF  BETWEEN  TWENTY  AND  TWENTY-FIVE
YEARS,  TO BE DETERMINED BY THE COURT, AND A MAXIMUM TERM OF LIFE IMPRI-
SONMENT  SHOULD  BE  IMPOSED,  THE  COURT  MUST  THEREUPON  IMPOSE  SUCH
SENTENCE.
  (f)  Where  a  sentence has been unanimously determined by the jury it
must be recorded on the minutes and read to the  jury,  and  the  jurors
must  be  collectively asked whether such is their sentence. Even though
no juror makes any declaration in the negative, the jury must, if either
party makes such an application, be polled  and  each  juror  separately
asked  whether  the sentence announced by the foreman is in all respects
his or her sentence. If, upon either  the  collective  or  the  separate
inquiry,  any  juror  answers  in the negative, the court must refuse to
accept the sentence and must direct the jury to resume its deliberation.
If no disagreement is expressed, the jury must be  discharged  from  the
case.
  S  4.  Severability.  If any clause, sentence, paragraph, subdivision,
section or part of this act shall be adjudged by any court of  competent
jurisdiction  to  be invalid, such judgment shall not affect, impair, or
invalidate the remainder thereof, but shall be confined in its operation
to the clause, sentence, paragraph, subdivision, section or part thereof
directly involved in the controversy in which such judgment  shall  have
been rendered. It is hereby declared to be the intent of the legislature
that  this  act  would have been enacted even if such invalid provisions
had not been included therewith.
  S 5. This act shall take effect immediately, and shall apply to crimes
committed prior to, on or after the effective date of this act.