S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2899
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 1, 2023
                                ___________
 
 Introduced  by M. of A. CARROLL -- read once and referred to the Commit-
   tee on Codes
 
 AN ACT to amend the  penal  law  and  the  criminal  procedure  law,  in
   relation  to convictions under felony murder provisions; and to repeal
   certain provisions of the penal law relating thereto

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Legislative  findings  and intent. The Legislature hereby
 finds and declares the following:
   a. The current provisions of New York's penal law pertaining to felony
 murder eliminate the distinction between intentional  and  unintentional
 homicide  and are therefore not consistent with the principle of propor-
 tionality in charging and sentencing. Felony murder  doctrine  allows  a
 defendant  to be charged and sentenced for murder in circumstances where
 they were committing or attempting to commit a felony but did not  actu-
 ally commit a homicidal act. Under current state law, an accomplice to a
 crime,  for  example  someone driving a getaway car, may be charged with
 murder as if they had actually shot someone in the  course  of  a  crime
 such as robbery even in a circumstance where they were unarmed and phys-
 ically  removed  from the site of the murder. Evidence from other states
 indicates that as  many  as  one  in  five  individuals  serving  prison
 sentences  for  murder  have  been  convicted based on the felony murder
 doctrine.  Studies have also found that prosecutors use  the  threat  of
 felony murder charges to obtain plea deals for lengthy sentences, demon-
 strating  felony  murder  doctrine's role in extreme sentencing and mass
 incarceration.
   b. Felony murder doctrine originated in England but was  banned  there
 in 1957 and subsequently in other Commonwealth countries including Cana-
 da, which banned it in 1990. The United States is an outlier globally in
 its application of felony murder doctrine, although some states, notably
 California  and Colorado, have in the last five years introduced signif-

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01989-01-3
              

 A. 2899                             2
 
 icant reforms with California reintroducing the intention to kill  as  a
 requirement  for  the  application  of  felony murder charges. New York,
 however, remains one of just thirteen states including Texas and  Flori-
 da, where the felony murder doctrine is applied by prosecutors to pursue
 murder charges when the individual committing a homicidal act is a third
 party  such as a victim holding their ground, a law enforcement officer,
 or a bystander.   The case of Jagger Freeman  illustrates  how  this  is
 applied.  In  2019,  Freeman, then a 25 year old Queens resident, was an
 accomplice in an attempted robbery  of  a  mobile  phone  store.  Police
 opened  fire in the store on Freeman's associate, who was holding a fake
 gun, killing  one  police  officer  and  wounding  another.  During  the
 episode,  Freeman  had  stood  across the street unarmed, however he was
 sentenced to thirty years to life for the murder of the police officer.
   c. Evidence from across the country reveals that  felony  murder  laws
 have  disproportionately  negative  consequences  for  non-white people,
 young people, and victims of domestic violence. For example, in Pennsyl-
 vania eighty percent of those imprisoned with a felony murder conviction
 were people of color, while in California sixty-eight percent  of  those
 serving  time for felony murder are black or Latinx.  Since 2002, eight-
 y-six percent of all defendants convicted of felony murder in  New  York
 state  have  been black or Latinx. According to the California Coalition
 for Women Prisoners, the majority of their members convicted  of  felony
 murder were victims of domestic violence.
   §  2. Subdivision 3 of section 125.25 of the penal law is REPEALED and
 a new subdivision 3 is added to read as follows:
   3. ACTING EITHER ALONE OR WITH ONE OR MORE OTHER PERSONS,  HE  OR  SHE
 COMMITS OR ATTEMPTS TO COMMIT ROBBERY, BURGLARY, KIDNAPPING, ARSON, RAPE
 IN  THE  FIRST  DEGREE,  CRIMINAL SEXUAL ACT IN THE FIRST DEGREE, SEXUAL
 ABUSE IN THE FIRST DEGREE, AGGRAVATED SEXUAL ABUSE, ESCAPE IN THE  FIRST
 DEGREE,  OR  ESCAPE  IN  THE SECOND DEGREE, AND, IN THE COURSE OF AND IN
 FURTHERANCE OF SUCH CRIME OR OF IMMEDIATE FLIGHT THEREFROM, SUCH PERSON,
 OR ANOTHER PARTICIPANT IN THE UNDERLYING FELONY PERSONALLY AND  DIRECTLY
 CAUSES THE DEATH OF A PERSON OTHER THAN ONE OF THE PARTICIPANTS, AND THE
 DEFENDANT  HAS  ONE  OF THE FOLLOWING MENTAL STATES DEPENDENT UPON THEIR
 ROLE IN THE COMMISSION OF THE KILLING: (A) THE DEFENDANT PERSONALLY  AND
 DIRECTLY CAUSED THE DEATH RECKLESSLY; OR (B) THE DEFENDANT WAS AN ACCOM-
 PLICE,  DEFINED  AS ONE WHO SOLICITED, REQUESTED, COMMANDED, IMPORTUNED,
 CAUSED, OR AIDED AND ABETTED THE ACTUAL KILLER IN THE COMMISSION OF  THE
 UNDERLYING FELONY, AND ACTED WITH INTENT TO CAUSE DEATH. LIABILITY UNDER
 THIS  SUBDIVISION SHALL ONLY APPLY TO DEATH CAUSED BY AGENTS AND CO-FEL-
 ONS OF THE DEFENDANT. A DEFENDANT IS NOT RESPONSIBLE FOR A DEATH  CAUSED
 BY A THIRD PARTY WHO WAS NOT A PARTICIPANT IN THE UNDERLYING FELONY; OR
   §  3. Subdivision 2 of section 40.00 of the penal law, such section as
 renumbered by chapter 73 of the laws of 1968,  is  amended  to  read  as
 follows:
   2. The defense of duress as defined in subdivision one of this section
 is  not  available  when  a  person  intentionally  or recklessly places
 himself OR HERSELF in a situation in which it is probable that he OR SHE
 will be subjected to duress; PROVIDED, HOWEVER,  THAT  THIS  SUBDIVISION
 SHALL  NOT  APPLY  TO  PROSECUTIONS  BROUGHT  UNDER SUBDIVISION THREE OF
 SECTION 125.25 OF THIS CHAPTER WHEN THE  DEFENDANT  HAS  BEEN  OR  IS  A
 VICTIM  OF DOMESTIC VIOLENCE COMMITTED BY ONE OF THE PARTICIPANTS IN THE
 UNDERLYING FELONY.
   § 4. The criminal procedure law is amended by  adding  a  new  section
 440.48 to read as follows:
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 § 440.48 MOTION  TO  VACATE JUDGMENT AND/OR RESENTENCE IN CERTAIN FELONY
            MURDER CONVICTIONS.
   1.  A  PERSON  CONVICTED  UNDER THE PROVISIONS OF SUBDIVISION THREE OF
 SECTION 125.25 OF THE PENAL LAW MAY FILE A PETITION WITH THE COURT  THAT
 SENTENCED  THE  PETITIONER  TO  HAVE  THE PETITIONER'S MURDER CONVICTION
 VACATED AND TO BE RESENTENCED ON ANY REMAINING COUNTS WHEN  ALL  OF  THE
 FOLLOWING CONDITIONS APPLY:
   (A)  A  COMPLAINT,  INFORMATION,  OR  INDICTMENT WAS FILED AGAINST THE
 PETITIONER THAT ALLOWED THE PROSECUTION TO PROCEED  UNDER  A  THEORY  OF
 FELONY MURDER;
   (B)  THE  PETITIONER  WAS  CONVICTED  OF  MURDER  IN THE SECOND DEGREE
 FOLLOWING A TRIAL OR ACCEPTED A PLEA OFFER IN LIEU OF A TRIAL  AT  WHICH
 THE  PETITIONER  COULD  HAVE  BEEN  CONVICTED  OF FIRST DEGREE OR SECOND
 DEGREE MURDER; AND
   (C) THE PETITIONER COULD NOT BE CONVICTED  OF  MURDER  IN  THE  SECOND
 DEGREE  AS  DEFINED  IN SUBDIVISION THREE OF SECTION 125.25 OF THE PENAL
 LAW, OR WOULD HAVE BEEN SENTENCED DIFFERENTLY, BASED ON THE LANGUAGE  OF
 SUCH  SUBDIVISION AS OF THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF
 TWO THOUSAND TWENTY-THREE WHICH ADDED THIS SECTION.
   2. THE COURT SHALL REVIEW THE PETITION AND DETERMINE IF THE PETITIONER
 HAS MADE A PRIMA FACIE SHOWING THAT  THE  PETITIONER  FALLS  WITHIN  THE
 PROVISIONS OF THIS SECTION. IF THE PETITIONER HAS REQUESTED COUNSEL, THE
 COURT  SHALL APPOINT COUNSEL TO REPRESENT THE PETITIONER. THE PROSECUTOR
 SHALL FILE AND SERVE A RESPONSE WITHIN SIXTY  DAYS  OF  SERVICE  OF  THE
 PETITION  AND  THE  PETITIONER  MAY FILE AND SERVE A REPLY WITHIN THIRTY
 DAYS AFTER THE PROSECUTOR RESPONSE IS SERVED. THESE DEADLINES  SHALL  BE
 EXTENDED  FOR  GOOD CAUSE. IF THE PETITIONER MAKES A PRIMA FACIE SHOWING
 THAT HE OR SHE IS ENTITLED TO RELIEF, THE COURT SHALL ISSUE AN ORDER  TO
 SHOW CAUSE.
   3.  WITHIN  SIXTY  DAYS  AFTER THE ORDER TO SHOW CAUSE WAS ISSUED, THE
 COURT SHALL HOLD A HEARING TO DETERMINE WHETHER  TO  VACATE  THE  MURDER
 CONVICTION  AND  TO RECALL THE SENTENCE AND RESENTENCE THE PETITIONER ON
 ANY REMAINING COUNTS IN THE SAME MANNER AS IF  THE  PETITIONER  HAD  NOT
 BEEN  PREVIOUSLY  SENTENCED;  PROVIDED THAT THE NEW SENTENCE, IF ANY, IS
 NOT GREATER THAN THE INITIAL SENTENCE. THIS DEADLINE MAY BE EXTENDED FOR
 GOOD CAUSE.
   4. AT THE HEARING TO DETERMINE WHETHER THE PETITIONER IS  ENTITLED  TO
 RELIEF, THE BURDEN OF PROOF SHALL BE ON THE PROSECUTION TO PROVE, BEYOND
 A  REASONABLE DOUBT, THAT THE PETITIONER IS INELIGIBLE FOR RESENTENCING.
 IF THE PROSECUTION FAILS TO SUSTAIN  ITS  BURDEN  OF  PROOF,  THE  PRIOR
 CONVICTION,  AND  ANY  ALLEGATIONS  AND  ENHANCEMENTS  ATTACHED  TO  THE
 CONVICTION, SHALL BE VACATED AND THE PETITIONER SHALL BE RESENTENCED  ON
 THE REMAINING CHARGES. THE PROSECUTOR AND THE PETITIONER MAY RELY ON THE
 RECORD  OF  CONVICTION OR OFFER NEW OR ADDITIONAL EVIDENCE TO MEET THEIR
 RESPECTIVE BURDENS.
   5. IF PETITIONER IS ENTITLED  TO  RELIEF  PURSUANT  TO  THIS  SECTION,
 MURDER  WAS CHARGED GENERICALLY, AND THE TARGET OFFENSE WAS NOT CHARGED,
 THE PETITIONER'S CONVICTION SHALL BE REDESIGNATED AS THE TARGET  OFFENSE
 OR  UNDERLYING  FELONY FOR RESENTENCING PURPOSES. ANY APPLICABLE STATUTE
 OF LIMITATIONS SHALL NOT BE A BAR TO THE COURT'S  REDESIGNATION  OF  THE
 OFFENSE FOR THIS PURPOSE.
   6. A PERSON WHO IS RESENTENCED PURSUANT TO THIS SECTION SHALL BE GIVEN
 CREDIT FOR TIME SERVED. THE JUDGE MAY ORDER THE PETITIONER TO BE SUBJECT
 TO  PAROLE SUPERVISION FOR UP TO THREE YEARS FOLLOWING THE COMPLETION OF
 THE SENTENCE.
 A. 2899                             4
 
   § 5. Paragraph (a) of subdivision 1 of section 70.02 of the penal law,
 as amended by chapter 189 of the laws of 2018, is  amended  to  read  as
 follows:
   (a)  Class  B  violent felony offenses: an attempt to commit the class
 A-I felonies of murder in  the  second  degree  as  defined  in  section
 125.25, kidnapping in the first degree as defined in section 135.25, and
 arson  in the first degree as defined in section 150.20; manslaughter in
 the first degree as defined in section 125.20,  aggravated  manslaughter
 in  the  first degree as defined in section 125.22, MURDER IN THE SECOND
 DEGREE AS DEFINED IN SUBDIVISION THREE OF SECTION 125.25,  rape  in  the
 first  degree  as  defined in section 130.35, criminal sexual act in the
 first degree as defined in section 130.50, aggravated  sexual  abuse  in
 the  first degree as defined in section 130.70, course of sexual conduct
 against a child in the  first  degree  as  defined  in  section  130.75;
 assault  in the first degree as defined in section 120.10, kidnapping in
 the second degree as defined in section 135.20, burglary  in  the  first
 degree  as  defined  in  section  140.30,  arson in the second degree as
 defined in section 150.15, robbery in the first  degree  as  defined  in
 section  160.15, sex trafficking as defined in paragraphs (a) and (b) of
 subdivision five of section  230.34,  sex  trafficking  of  a  child  as
 defined  in  section  230.34-a, incest in the first degree as defined in
 section 255.27, criminal possession of a weapon in the first  degree  as
 defined in section 265.04, criminal use of a firearm in the first degree
 as  defined  in  section 265.09, criminal sale of a firearm in the first
 degree as defined in section 265.13, aggravated assault  upon  a  police
 officer or a peace officer as defined in section 120.11, gang assault in
 the  first degree as defined in section 120.07, intimidating a victim or
 witness in the first degree as  defined  in  section  215.17,  hindering
 prosecution  of  terrorism  in  the  first  degree as defined in section
 490.35, criminal possession of a chemical weapon or biological weapon in
 the second degree as defined in section 490.40, and criminal  use  of  a
 chemical  weapon  or biological weapon in the third degree as defined in
 section 490.47.
   § 6. The department of corrections and community supervision, in coor-
 dination with district attorneys and any other relevant law  enforcement
 agencies  or  bodies,  shall issue an annual report to the chairs of the
 Senate and Assembly judiciary committees which shall include,  but  need
 not be limited to, the following information:
   (i)  The  number of incarcerated persons convicted under subdivision 3
 of section 125.25 of the penal law in New York State by  year  over  the
 past ten years;
   (ii) The age, race, and gender breakdowns of such convictions over the
 past ten years;
   (iii) Whether felony murder (murder in the second degree) was the most
 serious  charge against the defendant or a lower charge they accepted in
 a plea deal (also stratified by age/race/gender);
   (iv) Sentencing data: average sentence, number of people serving  life
 without parole;
   (v) Whether each person charged  under subdivision 3 of section 125.25
 of  the  penal  law   was an accomplice to, major participant in, or the
 perpetrator of the killing act over the past ten years;
   (vi) Who the decedent in the felony murder was  (victim,  perpetrator,
 law enforcement, bystander); and
   (vii)  Whether  the  killing was carried out by a perpetrator, victim,
 law enforcement, or bystander.
   § 7. This act shall take effect immediately.