S T A T E O F N E W Y O R K
________________________________________________________________________
6885
2023-2024 Regular Sessions
I N A S S E M B L Y
May 8, 2023
___________
Introduced by M. of A. SMITH -- 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 sentence of imprisonment for murder in the first and
second degrees
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. 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[,] OR to life imprisonment without parole in
accordance 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 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, 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 commit-
ted is a class A-I felony offense, or when a defendant is convicted of
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09816-01-3
A. 6885 2
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 chem-
ical 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 subdivision 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 imprisonment 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 subdi-
visions one through three of section 70.00 of this title.
§ 2. Subparagraph (i) of paragraph (a) of subdivision 3 and subdivi-
sion 5 of section 70.00 of the penal law, subparagraph (i) of paragraph
(a) of subdivision 3 as amended by chapter 107 of the laws of 2006,
subdivision 5 as amended by section 40-a of part WWW of chapter 59 of
the laws of 2017, are 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 section 125.27 of this chapter such
[minimum period shall be not less than twenty years nor more than twen-
ty-five years] SENTENCE SHALL BE LIFE IMPRISONMENT WITHOUT PAROLE, 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, 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) or (iii) of para-
graph (a) of subdivision 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, AND, (D) WHERE A SENTENCE IS IMPOSED UPON A DEFENDANT
CONVICTED OF MURDER IN THE SECOND DEGREE AS DEFINED IN SECTION 125.25 OF
THIS CHAPTER, EXCEPT AS OTHERWISE PROVIDED IN THIS SUBPARAGRAPH, SUCH
MINIMUM PERIOD SHALL BE FORTY YEARS.
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] SHALL 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 with-
out parole upon conviction for the crime of terrorism as defined in
section 490.25 of this chapter, where the specified offense the defend-
ant committed is a class A-I felony; the crime of criminal possession of
A. 6885 3
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.
§ 3. Subdivision 1 of section 400.27 of the criminal procedure law, as
added by chapter 1 of the laws of 1995, is amended to read as follows:
1. Upon the conviction of a defendant for the offense of murder in the
first degree as defined by 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 imprison-
ment 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 determining 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] SHALL 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].
§ 4. Paragraphs (b), (c) and (e) of subdivision 12 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:
(b) In the event the defendant is sentenced pursuant to this section
to life imprisonment without parole [or to a term of imprisonment for
the class A-I felony of murder in the first degree other than a sentence
of life imprisonment without parole], the court shall not render a find-
ing with respect to whether the defendant is [mentally retarded] INTEL-
LECTUALLY DISABLED.
(c) In the event the defendant is sentenced pursuant to this section
to death, the court shall thereupon render a finding with respect to
whether the defendant is [mentally retarded] INTELLECTUALLY DISABLED. If
the court finds the defendant is [mentally retarded] INTELLECTUALLY
DISABLED, the court shall set aside the sentence of death and sentence
the defendant [either] to life imprisonment without parole [or to a term
of imprisonment for the class A-I felony of murder in the first degree
other than a sentence of life imprisonment without parole]. If the court
finds the defendant is not [mentally retarded] INTELLECTUALLY DISABLED,
then such sentence of death shall not be set aside pursuant to this
subdivision.
(e) The foregoing provisions of this subdivision notwithstanding, at a
reasonable time prior to the commencement of trial the defendant may,
upon a written motion alleging reasonable cause to believe the defendant
is mentally retarded] INTELLECTUALLY DISABLED, apply for an order
directing that a [mental retardation] INTELLECTUAL DISABILITY hearing be
A. 6885 4
conducted prior to trial. If, upon review of the defendant's motion and
any response thereto, the court finds reasonable cause to believe the
defendant is [mentally retarded] INTELLECTUALLY DISABLED, it shall
promptly conduct a hearing without a jury to determine whether the
defendant is [mentally retarded] INTELLECTUALLY DISABLED. In the event
the court finds after the hearing that the defendant is not [mentally
retarded] INTELLECTUALLY DISABLED, the court must, prior to commencement
of trial, enter an order so stating, but nothing in this paragraph shall
preclude a defendant from presenting mitigating evidence of [mental
retardation] INTELLECTUAL DISABILITY at a separate sentencing proceed-
ing. In the event the court finds after the hearing that the defendant,
based upon a preponderance of the evidence, is [mentally retarded]
INTELLECTUALLY DISABLED, the court must, prior to commencement of trial,
enter an order so stating. Unless the order is reversed on an appeal by
the people or unless the provisions of paragraph (d) of this subdivision
apply, a separate sentencing proceeding under this section shall not be
conducted if the defendant is thereafter convicted of murder in the
first degree. In the event a separate sentencing proceeding is not
conducted, the court, upon conviction of a defendant for the crime of
murder in the first degree, shall sentence the defendant to life impri-
sonment 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]. Whenever a [mental retardation] INTELLEC-
TUAL DISABILITY hearing is held and a finding is rendered pursuant to
this paragraph, the court may not conduct a hearing pursuant to para-
graph (a) of this subdivision. For purposes of this subdivision and
paragraph (b) of subdivision nine of this section,["mental retardation"]
"INTELLECTUAL DISABILITY" means significantly subaverage general intel-
lectual functioning existing concurrently with deficits in adaptive
behavior which were manifested before the age of eighteen.
§ 5. This act shall take effect immediately.