S T A T E O F N E W Y O R K
________________________________________________________________________
10564
I N A S S E M B L Y
July 6, 2022
___________
Introduced by COMMITTEE ON RULES -- (at request of M. of A. Barclay,
Palmesano, Angelino, J. M. Giglio, Byrnes, Hawley, Simpson, Gallahan,
Brabenec, Durso) -- read once and referred to the Committee on Codes
AN ACT to amend the penal law and the criminal procedure law, in
relation to the commission of and sentencing for certain provisions of
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. Subparagraph (xiii) of paragraph (a) of subdivision 1 of
section 125.27 of the penal law, as added by chapter 300 of the laws of
2001, is amended and a new paragraph (xiv) is added to read as follows:
(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 DEFENDANT INTENTIONALLY SELECTED THE VICTIM IN WHOLE OR IN
SUBSTANTIAL PART BECAUSE OF A BELIEF OR PERCEPTION REGARDING THE ACTUAL
OR PERCEIVED RACE, COLOR, NATIONAL ORIGIN, ANCESTRY, GENDER, GENDER
IDENTITY OR EXPRESSION, RELIGION, RELIGIOUS PRACTICE, AGE, DISABILITY,
OR SEXUAL ORIENTATION OF SUCH VICTIM, REGARDLESS OF WHETHER SUCH BELIEF
OR PERCEPTION IS CORRECT; AND
§ 2. Section 60.06 of the penal law, as amended by chapter 482 of the
laws of 2009, is amended to read as follows:
§ 60.06 Authorized disposition; murder in the first degree offenders;
aggravated murder offenders; certain murder in the second
degree offenders; certain terrorism offenders; criminal
possession of a chemical weapon or biological weapon offen-
ders; criminal use of a chemical weapon or biological weapon
offenders.
When a defendant is convicted of murder in the first degree as defined
in section 125.27 of this chapter, the court shall, in accordance with
the provisions of section 400.27 of the criminal procedure law, sentence
the defendant to death, to life imprisonment without parole in accord-
ance with subdivision five of section 70.00 of this title, or to a term
of imprisonment for a class A-I felony other than a sentence of life
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD15898-01-2
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imprisonment without parole, in accordance with subdivisions one through
three of section 70.00 of this title. When a person is convicted of
murder in the second degree as defined in subdivision five of section
125.25 of this chapter or of the crime of aggravated murder as defined
in subdivision one of section 125.26 of this chapter, OR OF THE CRIME OF
MURDER IN THE FIRST DEGREE AS DEFINED IN SUBPARAGRAPH (I), (II), (II-A),
(III), (VIII), (XI), (XIII), OR (XIV) OF PARAGRAPH (A) OF SUBDIVISION
ONE OF SECTION 125.27 OF THIS CHAPTER AND THE SENTENCE OF DEATH IS NOT
IMPOSED the court shall sentence the defendant to life imprisonment
without parole in accordance with subdivision five of section 70.00 of
this title. When a defendant is convicted of the crime of terrorism as
defined in section 490.25 of this chapter, and the specified offense the
defendant committed is a class A-I felony offense, or when a defendant
is convicted of 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 when a defendant is convicted of 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, the court shall sentence the
defendant to life imprisonment without parole in accordance with subdi-
vision five of section 70.00 of this title; provided, however, that
nothing in this section shall preclude or prevent a sentence of death
when the defendant is also convicted of murder in the first degree as
defined in section 125.27 of this chapter. When a defendant is convicted
of aggravated murder as defined in subdivision two of section 125.26 of
this chapter, the court shall sentence the defendant to life imprison-
ment without parole or to a term of imprisonment for a class A-I felony
other than a sentence of life imprisonment without parole, in accordance
with subdivisions one through three of section 70.00 of this title.
§ 3. Subparagraph (i) of paragraph (a) of subdivision 3 of section
70.00 of the penal law, as amended by chapter 107 of the laws of 2006,
is amended to read as follows:
(i) For a class A-I felony, such minimum period shall not be less than
fifteen years nor more than twenty-five years; provided, however, that
(A) where a sentence, other than a sentence of death or life imprison-
ment without parole, is imposed upon a defendant convicted of murder in
the first degree as defined in SUBPARAGRAPH (IV), (V), (VI), (VII),
(IX), (X), OR (XII) OF PARAGRAPH (A) OF SUBDIVISION ONE OF section
125.27 of this chapter such minimum period shall be not less than twenty
years nor more than twenty-five years, and, (B) where a sentence is
imposed upon a defendant convicted of murder in the second degree as
defined in subdivision five of section 125.25 of this chapter or
convicted of aggravated murder as defined in section 125.26 of this
chapter, OR WHERE A SENTENCE, OTHER THAN A SENTENCE OF DEATH, IS IMPOSED
UPON A DEFENDANT CONVICTED OF MURDER IN THE FIRST DEGREE AS DEFINED IN
SUBPARAGRAPH (I), (II), (II-A), (III), (VIII), (XI), (XIII), OR (XIV) OF
PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION 125.27 OF THIS CHAPTER, the
sentence shall be life imprisonment without parole, and, (C) where a
sentence is imposed upon a defendant convicted of attempted murder in
the first degree as defined in article one hundred ten of this chapter
and subparagraph (i), (ii), (II-A) or (iii) of paragraph (a) of subdivi-
sion one and paragraph (b) of subdivision one of section 125.27 of this
chapter or attempted aggravated murder as defined in article one hundred
ten of this chapter and section 125.26 of this chapter such minimum
period shall be not less than twenty years nor more than forty years.
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§ 4. Subdivision 5 of section 70.00 of the penal law, as amended by
section 40-a of part WWW of chapter 59 of the laws of 2017, 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 without
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 who was eighteen years of age or older at the time of the
commission of the crime 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 chemi-
cal 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 who was seven-
teen years of age or younger at the time of the commission of the crime
may be sentenced, in accordance with law, to the applicable indetermi-
nate sentence with a maximum term of life imprisonment. 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. A defend-
ant may be sentenced to life imprisonment without parole upon conviction
for the crime of aggravated murder as defined in subdivision two of
section 125.26 of this chapter OR FOR THE CRIME OF MURDER IN THE FIRST
DEGREE AS DEFINED IN SUBPARAGRAPH (I), (II), (II-A), (III), (VIII),
(XI), (XIII), OR (XIV) OF PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION
125.27 OF THIS CHAPTER AND THE SENTENCE OF DEATH IS NOT IMPOSED.
§ 5. Subdivisions 1 and 10 of section 400.27 of the criminal procedure
law, as added by chapter 1 of the laws of 1995, are amended to read as
follows:
1. Upon [the] conviction of a defendant for the offense of murder in
the first degree as defined by SUBPARAGRAPH (I), (II), (II-A), (III),
(VIII), (XI), (XIII), OR (XIV) OF PARAGRAPH (A) OF SUBDIVISION ONE OF
section 125.27 of the penal law, the court shall promptly conduct a
separate sentencing proceeding to determine 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. Nothing in this
section shall be deemed to preclude the people at any time from deter-
mining 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].
10. (A) At the conclusion of all the evidence, the people and the
defendant may present argument in summation for or against the sentence
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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
circumstances. In its charge, the court must instruct the jury that with
respect to each count of murder in the first degree, AS DEFINED IN
SUBPARAGRAPH (I), (II), (II-A), (III), (VIII), (XI), (XIII), OR (XIV) OF
PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION 125.27 OF THE PENAL LAW, the
jury should consider whether or not a sentence of death should be
imposed and whether 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 impri-
sonment 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].
(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 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 OF
THIS PART SHALL GOVERN THE DELIBERATIONS OF THE JURY.
§ 6. This act shall take effect immediately and shall apply to
offenses committed on or after such effective date.