S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    925
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              January 5, 2017
                                ___________
 
 Introduced by Sens. CROCI, AKSHAR, DeFRANCISCO, FUNKE, GALLIVAN, GOLDEN,
   MARCHIONE,  RANZENHOFER, SEWARD -- 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 murder in the first degree
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Section 10.00 of the penal law is amended by adding a new
 subdivision 22 to read as follows:
   22. "MEMBER OF THE MILITARY OR RESERVES" MEANS (A)  A  MEMBER  OF  THE
 UNITED STATES ARMY, NAVY, AIR FORCE, MARINES, COAST GUARD, ARMY NATIONAL
 GUARD, AIR NATIONAL GUARD AND/OR RESERVES THEREOF OR (B) A MEMBER OF THE
 NEW YORK GUARD OR THE NEW YORK NAVAL MILITIA.
   §  2.  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 (ii-a) of paragraph (a) of subdivision 1 as added by  chap-
 ter 1 of the laws of 2013, subparagraph (vii) of paragraph (a) of subdi-
 vision  1  as  amended  by chapter 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:
 § 125.27 Murder in the first degree.
   A person is guilty of murder in the first degree when:
   1. With intent to cause the death of another person, he OR SHE  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]  THIRTY-FOUR  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

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02163-01-7
              

 S. 925                              2
 
   (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
   (ii-a) the intended victim was a firefighter, emergency medical  tech-
 nician,  ambulance  driver,  paramedic,  physician  or  registered nurse
 involved in a first response team, or any other individual who,  in  the
 course  of  official  duties, performs emergency response activities and
 was engaged in such activities at the time of killing and the  defendant
 knew  or  reasonably should have known that the intended victim was such
 firefighter, emergency medical technician, ambulance driver,  paramedic,
 physician or registered nurse; 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,

 S. 925                              3

 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
 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] OR
   (XIV) THE INTENDED VICTIM WAS A MEMBER OF THE MILITARY OR RESERVES 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 MEMBER OF THE MILITARY OR RESERVES;
 AND
   (b)  The defendant was more than eighteen years old at the time of the
 commission of the crime.
   2. In any prosecution under subdivision  one,  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

 S. 925                              4
 
 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,
 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.
   § 3. This act shall take effect immediately.