NY State Senate Bill 2021-S9326

Senate Bill S9326

2021-2022 Legislative Session

Relates to commission of murder in the first degree; provides that sentence for commission of certain provisions of murder in the first degree is death or life without parole

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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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May 17, 2022	referred to codes

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2021-S9326 (ACTIVE) - Details

See Assembly Version of this Bill:: A10564
Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Amd §§125.27, 60.06 & 70.00, Pen L; amd §400.27, CP L
Versions Introduced in 2023-2024 Legislative Session:: S1271, A3906

2021-S9326 (ACTIVE) - Summary

Includes intentionally selecting a victim based on certain actual or perceived traits in the crime of murder in the first degree; provides that sentence for commission of certain provisions of murder in the first degree is death or life without parole.

2021-S9326 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S9326

SPONSOR: ORTT
 
TITLE OF BILL:

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

 
PURPOSE:

To restore the death penalty in New York State and make it an available
sentence for those convicted of Murder in the First Degree for the
intentional killing of police officers and first responders, the inten-
tional killing of two or more people, the intentional killing of another
person as a hate crime, and the intentional killing of another person in
the furtherance of terrorism.

 
SUMMARY OF PROVISIONS:

Section 1 adds a new subparagraph (xvi) to paragraph (a) of subdivision
(1) of section 125.27 of the Criminal Procedure law, which would include

the intentional killing of another person because of their race, color,
national origin, ancestry, gender, gender identity or expression, reli-
gion, religious practice, age, disability or sexual orientation in the
First Degree Murder statute.

Sections 2, 3 and 4 reinstate the death penalty for any person who
intentionally kills a police officer or first responder, who inten-
tionally kills two or more people, who intentionally kills another
person as a hate crime, or who kills another person in the furtherance
of terrorism.

Section 5 makes essential amendments to the procedure for deadlocked
juries in capital murder cases, pursuant to the holding of People v.
LaValle, 3 N.Y.3d 388 (2004) and People v. Taylor, 9 N.Y.3d 129 (2007).

Section 6 is the effective date.

 
JUSTIFICATION:

In 2004, the Court of Appeals, in People v. LaValle, 3 N.Y.3d 388, found
that a specific provision of New York's death penalty statute relating
to a jury instruction for deadlocked juries was violated the Due Process
Clause of the New York State Constitution. This decision rendered the
entire death penalty statute unenforceable and consequently, the death
penalty has not been available as a possible sentence for even the most
extreme of murders since that decision was handed down. The Court of
Appeals did not find that the death penalty is an unconstitutional
sentence, but rather made clear that the flaw in the procedure for
imposing the death penalty can be fixed by the legislature.

This bill would restore the death penalty in this state and allow it in
only the most egregiously violent and heinous murders: murders of our
police officers and first responders, mass murders, murders in further-
ance of terrorism, and murders based on a hatred of another person based
on their race, color, national origin, ancestry, gender, gender identity
or expression, religion, religious practice, age, disability or sexual
orientation. It addresses the flaws in the process identified by the
Court and requires that a judge in a capital murder case instruct the
jury that if they fail to reach a unanimous agreement with respect to
the sentence, the defendant will be sentenced to life without parole. At
a time when violent crime is out of control and murder rates are rising,
it is critical that prosecutors have all possible sentencing options
available for murders with these extreme aggravating circumstances,
including the death penalty.

 
LEGISLATIVE HISTORY:

New bill.

 
FISCAL IMPLICATIONS:

To be determined.

 
EFFECTIVE DATE:
This act shall take effect immediately.

2021-S9326 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9326
 
                             I N  S E N A T E
 
                               May 17, 2022
                                ___________
 
 Introduced  by  Sens. ORTT, LANZA -- read twice and ordered printed, and
   when printed to be committed 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
 imprisonment without parole, in accordance with subdivisions one through
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD15898-01-2
 S. 9326                             2
 
 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.
   § 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:
 S. 9326                             3
 
   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
 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
 S. 9326                             4
 
 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.

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