BILL NUMBER:S2238

TITLE OF BILL:  An act to amend the penal law, in relation to first
degree murder of a child under the age of twelve

PURPOSE:  The purpose of this bill is to provide a more condign
punishment for those who prostitute their children.

SUMMARY OF PROVISIONS:  This bill first amends the definition of
torture in Penal Law Section 125.27(a)(1)(x) to remove the requirement
that the defendant relish the infliction of extreme physical pain in
the commission of a murder. The bill further adds subsection (xiv) to
Penal Law Section 125.27(a)(1) to provide that the intentional killing
of a child under the age of 12 is first degree murder.

EXISTING LAW:  Under current law, the murder of a child is not first
degree murder unless it is accompanied by one or more of the
aggravating factors listed in Penal Law Section 125.27(a)(1).
Secondly, torture of the victim prior to murder currently constitutes
first degree murder only where the defendant inflicted extreme
physical pain and "relished" inflicting such pain.

JUSTIFICATION:  In recognition of their special status in society,
current law treats the intentional killing of certain groups-police
officers, judges, among others-as first degree murder. As a result,
those who consider murdering a member of one of these groups
              

understand that they will receive the most severe punishment. One
other group belongs on this list-children. Numerous instances in the
recent past have demonstrated the need for this reform. One case from
Buffalo in particular merits discussion here. As reported by The
Buffalo News on October 18, 2012, jurors there convicted Ali-Mohamed
Mohamud of second-degree murder for beating to death his 10-year-old
stepson.  After duct-taping a sock in the boy's mouth and binding his
hands with electrical cord, the 41-year-old security guard struck
Abdifatah Mohamud nearly 70 times with a baker's hardwood rolling pin.
The stepfather inflicted "devastating blow after devastating blow" on
the 4-foot, 11-inch boy, who weighed just under a hundred pounds,
separating the boy's head from his spinal cord and crushing the back
of his head, exposing his brain, according to court testimony. Had the
law reflected the changes made by this bill, Mr. Mohamud would have
been subject to charges of first degree murder, rather than second
degree. Cases such as this cry out for the need for increased
penalties for those who murder children. This bill answers those
calls.

This bill also addresses the overly narrow definition of torture in
Penal Law Section 125.27(a)(1)(x). There is no valid basis for
distinguishing-as current law does-between the intentional infliction
of extreme physical pain where the perpetrator relishes the act, and
where he or she does not. Not only is this a meaningless distinction,
it is an obstacle to prosecutors, who must often settle for lesser
charges given the difficulty in proving the issue of whether an
individual relishes the performance of an act. This bill enacts the
commonsense notion that torture is torture, and should be treated
accordingly without consideration of the perpetrator's mindset.


LEGISLATIVE HISTORY:  S.1990 of 2011 Referred to Codes 01/04/12

FISCAL IMPLICATIONS: None.

LOCAL FISCAL IMPLICATIONS:

EFFECTIVE DATE:  This act shall take effect on the first of November
after it shall have become law.