Requires that all felony offenders shall be eligible for parole after serving no more than twenty-five years of their sentence; eliminates the possibility of serving consecutive terms of imprisonment which exceed a twenty-five year sentence.
STATE OF NEW YORK
________________________________________________________________________
854
2023-2024 Regular Sessions
IN ASSEMBLY
January 11, 2023
___________
Introduced by M. of A. CARROLL, EPSTEIN, SIMON, ANDERSON, JACKSON,
BURGOS -- read once and referred to the Committee on Codes
AN ACT to amend the penal law, the correction law and the criminal
procedure law, in relation to parole eligibility for felony offenders;
and to repeal subdivision 2-a of section 70.20 of the penal law relat-
ing thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 60.06 of the penal law, as amended by chapter 482
2 of the laws of 2009, is amended to read as follows:
3 § 60.06 Authorized disposition; murder in the first degree offenders;
4 aggravated murder offenders; certain murder in the second
5 degree offenders; certain terrorism offenders; criminal
6 possession of a chemical weapon or biological weapon offen-
7 ders; criminal use of a chemical weapon or biological weapon
8 offenders.
9 When a defendant is convicted of murder in the first degree as defined
10 in section 125.27 of this chapter, the court shall, in accordance with
11 the provisions of section 400.27 of the criminal procedure law, sentence
12 the defendant to death, to life imprisonment [without parole in accord-
13 ance with subdivision five of section 70.00 of this title,] with eligi-
14 bility for parole after twenty-five years or to a term of imprisonment
15 for a class A-I felony other than a sentence of life imprisonment [with-
16 out parole] with eligibility for parole after twenty-five years, in
17 accordance with subdivisions one through three of section 70.00 of this
18 title. When a person is convicted of murder in the second degree as
19 defined in subdivision five of section 125.25 of this chapter or of the
20 crime of aggravated murder as defined in subdivision one of section
21 125.26 of this chapter, the court shall sentence the defendant to life
22 imprisonment [without parole in accordance with subdivision five of
23 section 70.00 of this title] with eligibility for parole after twenty-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03128-01-3
A. 854 2
1 five years. When a defendant is convicted of the crime of terrorism as
2 defined in section 490.25 of this chapter, and the specified offense the
3 defendant committed is a class A-I felony offense, or when a defendant
4 is convicted of the crime of criminal possession of a chemical weapon or
5 biological weapon in the first degree as defined in section 490.45 of
6 this chapter, or when a defendant is convicted of the crime of criminal
7 use of a chemical weapon or biological weapon in the first degree as
8 defined in section 490.55 of this chapter, the court shall sentence the
9 defendant to life imprisonment [without parole in accordance with subdi-
10 vision five of section 70.00 of this title] with eligibility for parole
11 after twenty-five years; provided, however, that nothing in this section
12 shall preclude or prevent a sentence of death when the defendant is also
13 convicted of murder in the first degree as defined in section 125.27 of
14 this chapter. When a defendant is convicted of aggravated murder as
15 defined in subdivision two of section 125.26 of this chapter, the court
16 shall sentence the defendant to life imprisonment [without parole] with
17 eligibility for parole after twenty-five years or to a term of imprison-
18 ment for a class A-I felony other than a sentence of life imprisonment
19 [without parole, in accordance with subdivisions one through three of
20 section 70.00 of this title] with eligibility for parole after twenty-
21 five years.
22 § 2. Subparagraph (i) of paragraph (a) of subdivision 3 and subdivi-
23 sion 5 of section 70.00 of the penal law, subparagraph (i) of paragraph
24 (a) of subdivision 3 as amended by chapter 107 of the laws of 2006 and
25 subdivision 5 as amended by section 40-a of part WWW of chapter 59 of
26 the laws of 2017, are amended to read as follows:
27 (i) For a class A-I felony, such minimum period shall not be less than
28 fifteen years nor more than twenty-five years; provided, however, that
29 (A) where a sentence, other than a sentence of death or life imprison-
30 ment [without parole] with eligibility for parole after twenty-five
31 years, is imposed upon a defendant convicted of murder in the first
32 degree as defined in section 125.27 of this chapter such minimum period
33 shall be not less than twenty years nor more than twenty-five years,
34 and, (B) where a sentence is imposed upon a defendant convicted of
35 murder in the second degree as defined in subdivision five of section
36 125.25 of this chapter or convicted of aggravated murder as defined in
37 section 125.26 of this chapter, the sentence shall be life imprisonment
38 [without parole] with eligibility for parole after twenty-five years,
39 and, (C) where a sentence is imposed upon a defendant convicted of
40 attempted murder in the first degree as defined in article one hundred
41 ten of this chapter and subparagraph (i), (ii) or (iii) of paragraph (a)
42 of subdivision one and paragraph (b) of subdivision one of section
43 125.27 of this chapter or attempted aggravated murder as defined in
44 article one hundred ten of this chapter and section 125.26 of this chap-
45 ter such minimum period shall be not less than twenty years nor more
46 than forty years.
47 [5. Life imprisonment without parole. Notwithstanding any other
48 provision of law, a defendant sentenced to life imprisonment without
49 parole shall not be or become eligible for parole or conditional
50 release. For purposes of commitment and custody, other than parole and
51 conditional release, such sentence shall be deemed to be an indetermi-
52 nate sentence. A defendant may be sentenced to life imprisonment without
53 parole upon conviction for the crime of murder in the first degree as
54 defined in section 125.27 of this chapter and in accordance with the
55 procedures provided by law for imposing a sentence for such crime. A
56 defendant who was eighteen years of age or older at the time of the
A. 854 3
1 commission of the crime must be sentenced to life imprisonment without
2 parole upon conviction for the crime of terrorism as defined in section
3 490.25 of this chapter, where the specified offense the defendant
4 committed is a class A-I felony; the crime of criminal possession of a
5 chemical weapon or biological weapon in the first degree as defined in
6 section 490.45 of this chapter; or the crime of criminal use of a chemi-
7 cal weapon or biological weapon in the first degree as defined in
8 section 490.55 of this chapter; provided, however, that nothing in this
9 subdivision shall preclude or prevent a sentence of death when the
10 defendant is also convicted of the crime of murder in the first degree
11 as defined in section 125.27 of this chapter. A defendant who was seven-
12 teen years of age or younger at the time of the commission of the crime
13 may be sentenced, in accordance with law, to the applicable indetermi-
14 nate sentence with a maximum term of life imprisonment. A defendant must
15 be sentenced to life imprisonment without parole upon conviction for the
16 crime of murder in the second degree as defined in subdivision five of
17 section 125.25 of this chapter or for the crime of aggravated murder as
18 defined in subdivision one of section 125.26 of this chapter. A defend-
19 ant may be sentenced to life imprisonment without parole upon conviction
20 for the crime of aggravated murder as defined in subdivision two of
21 section 125.26 of this chapter.]
22 § 3. Subdivision 3 of section 70.00 of the penal law is amended by
23 adding a new paragraph (c) to read as follows:
24 (c) Notwithstanding any other provision of the law to the contrary,
25 for any felony, regardless of sentence, all defendants sentenced shall
26 become eligible for parole after serving no more than twenty-five years
27 of their sentence; and further, notwithstanding any other provision of
28 the law to the contrary, no defendant shall be sentenced to consecutive
29 terms of imprisonment which exceed a twenty-five year sentence.
30 § 4. Subdivision 3 of section 70.02 of the penal law is amended by
31 adding a new paragraph (e) to read as follows:
32 (e) Notwithstanding any other provision of the law to the contrary,
33 for any felony defined in this section, regardless of sentence, all
34 defendants sentenced shall become eligible for parole after serving no
35 more than twenty-five years of their sentence; and further, notwith-
36 standing any other provision of the law to the contrary, no defendant
37 shall be sentenced to consecutive terms of imprisonment which exceed a
38 twenty-five year sentence.
39 § 5. Section 70.04 of the penal law is amended by adding a new subdi-
40 vision 4 to read as follows:
41 4. Parole eligibility and consecutive terms of imprisonment. Notwith-
42 standing any other provision of the law to the contrary, for any felony
43 defined in this section, regardless of sentence, all defendants
44 sentenced shall become eligible for parole after serving no more than
45 twenty-five years of their sentence; and further, notwithstanding any
46 other provision of the law to the contrary, no defendant shall be
47 sentenced to consecutive terms of imprisonment which exceed a twenty-
48 five year sentence.
49 § 6. Section 70.06 of the penal law is amended by adding a new subdi-
50 vision 8 to read as follows:
51 8. Parole eligibility and consecutive terms of imprisonment. Notwith-
52 standing any other provision of the law to the contrary, for any felony
53 defined in this section, regardless of sentence, all defendants
54 sentenced shall become eligible for parole after serving no more than
55 twenty-five years of their sentence; and further, notwithstanding any
56 other provision of the law to the contrary, no defendant shall be
A. 854 4
1 sentenced to consecutive terms of imprisonment which exceed a twenty-
2 five year sentence.
3 § 7. Section 70.07 of the penal law is amended by adding a new subdi-
4 vision 6 to read as follows:
5 6. Notwithstanding any other provision of the law to the contrary,
6 for any felony defined in this section, regardless of sentence, all
7 defendants sentenced shall become eligible for parole after serving no
8 more than twenty-five years of their sentence; and further, notwith-
9 standing any other provision of the law to the contrary, no defendant
10 shall be sentenced to consecutive terms of imprisonment which exceed a
11 twenty-five year sentence.
12 § 8. Section 70.08 of the penal law is amended by adding a new subdi-
13 vision 4 to read as follows:
14 4. Parole eligibility and consecutive terms of imprisonment. Notwith-
15 standing any other provision of the law to the contrary, for any felony
16 defined in this section, regardless of sentence, all defendants
17 sentenced shall become eligible for parole after serving no more than
18 twenty-five years of their sentence; and further, notwithstanding any
19 other provision of the law to the contrary, no defendant shall be
20 sentenced to consecutive terms of imprisonment which exceed a twenty-
21 five year sentence.
22 § 9. Section 70.10 of the penal law is amended by adding a new subdi-
23 vision 3 to read as follows:
24 3. Parole eligibility and consecutive terms of imprisonment. Notwith-
25 standing any other provision of the law to the contrary, for any felony
26 defined in this section, regardless of sentence, all defendants
27 sentenced shall become eligible for parole after serving no more than
28 twenty-five years of their sentence; and further, notwithstanding any
29 other provision of the law to the contrary, no defendant shall be
30 sentenced to consecutive terms of imprisonment which exceed a twenty-
31 five year sentence.
32 § 10. Subdivision 2-a of section 70.20 of the penal law is REPEALED.
33 § 11. Section 70.71 of the penal law is amended by adding a new
34 subdivision 6 to read as follows:
35 6. Parole eligibility and consecutive terms of imprisonment. Notwith-
36 standing any other provision of the law to the contrary, for any felony
37 defined in this section, regardless of sentence, all defendants
38 sentenced shall become eligible for parole after serving no more than
39 twenty-five years of their sentence; and further, notwithstanding any
40 other provision of the law to the contrary, no defendant shall be
41 sentenced to consecutive terms of imprisonment which exceed a twenty-
42 five year sentence.
43 § 12. Subdivision 3 of section 70.80 of the penal law, as added by
44 chapter 7 of the laws of 2007, is amended and a new subdivision 10 is
45 added to read as follows:
46 3. Except as provided by subdivision four, five, six, seven or eight
47 of this section, or when a defendant is being sentenced for a conviction
48 of the class A-II felonies of predatory sexual assault and predatory
49 sexual assault against a child as defined in sections 130.95 and 130.96
50 of this chapter, or for any class A-I sexually motivated felony for
51 which a life sentence [or a life without parole sentence] with eligibil-
52 ity for parole after twenty-five years must be imposed, a sentence
53 imposed upon a defendant convicted of a felony sex offense shall be a
54 determinate sentence. The determinate sentence shall be imposed by the
55 court in whole or half years, and shall include as a part thereof a
56 period of post-release supervision in accordance with subdivision two-a
A. 854 5
1 of section 70.45 of this article. Persons eligible for sentencing under
2 section 70.07 of this article governing second child sexual assault
3 felonies shall be sentenced under such section and paragraph (j) of
4 subdivision two-a of section 70.45 of this article.
5 10. Notwithstanding any other provision of the law to the contrary,
6 for any felony defined in this section, regardless of sentence, all
7 defendants sentenced shall become eligible for parole after serving no
8 more than twenty-five years of their sentence; and further, notwith-
9 standing any other provision of the law to the contrary, no defendant
10 shall be sentenced to consecutive terms of imprisonment which exceed a
11 twenty-five year sentence.
12 § 13. Paragraph (d) of subdivision 2 of section 490.25 of the penal
13 law, as added by chapter 300 of the laws of 2001, is amended to read as
14 follows:
15 (d) Notwithstanding any other provision of law, when a person is
16 convicted of a crime of terrorism pursuant to this section, and the
17 specified offense is a class A-I felony offense, the sentence upon
18 conviction of such offense shall be life imprisonment [without parole]
19 with eligibility for parole after twenty-five years; provided, however,
20 that nothing herein shall preclude or prevent a sentence of death when
21 the specified offense is murder in the first degree as defined in
22 section 125.27 of this chapter.
23 § 14. Subdivision 2 of section 136 of the correction law, as amended
24 by chapter 322 of the laws of 2021, is amended to read as follows:
25 2. All incarcerated individuals admitted to the department serving a
26 determinate term of imprisonment, or an indeterminate sentence of impri-
27 sonment other than a sentence of life imprisonment [without parole,]
28 with eligibility for parole after twenty-five years who have been evalu-
29 ated upon admission pursuant to subdivision one of section one hundred
30 thirty-seven of this article and are determined to be capable of
31 successfully completing the academic course work required for the test
32 assessing secondary completion, shall be provided with the opportunity
33 to complete such course work at least two months prior to the date on
34 which such incarcerated individual may be paroled, conditionally
35 released, released to post-release supervision pursuant to section 70.40
36 of the penal law, or presumptively released, pursuant to section eight
37 hundred three of this chapter. Upon admission to the department, such
38 incarcerated individuals will be provided with written notice that the
39 test assessing secondary completion programs are available for all
40 incarcerated individuals who so apply.
41 § 15. Paragraph (e) of subdivision 5 of section 220.10 of the criminal
42 procedure law, as amended by chapter 1 of the laws of 1995, is amended
43 to read as follows:
44 (e) A defendant may not enter a plea of guilty to the crime of murder
45 in the first degree as defined in section 125.27 of the penal law;
46 provided, however, that a defendant may enter such a plea with both the
47 permission of the court and the consent of the people when the agreed
48 upon sentence is either life imprisonment [without parole] with eligi-
49 bility for parole after twenty-five years or a term of imprisonment for
50 the class A-I felony of murder in the first degree other than a sentence
51 of life imprisonment [without parole] with eligibility for parole after
52 twenty-five years.
53 § 16. Subparagraph (vii) of paragraph (b) of subdivision 3 of section
54 220.30 of the criminal procedure law, as amended by chapter 1 of the
55 laws of 1995, is amended to read as follows:
A. 854 6
1 (vii) A defendant may not enter a plea of guilty to the crime of
2 murder in the first degree as defined in section 125.27 of the penal
3 law; provided, however, that a defendant may enter such a plea with both
4 the permission of the court and the consent of the people when the
5 agreed upon sentence is either life imprisonment [without parole] with
6 eligibility for parole after twenty-five years or a term of imprisonment
7 for the class A-I felony of murder in the first degree other than a
8 sentence of life imprisonment [without parole] with eligibility for
9 parole after twenty-five years.
10 § 17. Subdivision 1, paragraphs (b) and (e) of subdivision 11 and
11 paragraphs (b), (c) and (e) of subdivision 12 of section 400.27 of the
12 criminal procedure law, as added by chapter 1 of the laws of 1995, are
13 amended to read as follows:
14 1. Upon the conviction of a defendant for the offense of murder in the
15 first degree as defined by section 125.27 of the penal law, the court
16 shall promptly conduct a separate sentencing proceeding to determine
17 whether the defendant shall be sentenced to death or to life imprison-
18 ment [without parole pursuant to subdivision five of section 70.00 of
19 the penal law] with eligibility for parole after twenty-five years.
20 Nothing in this section shall be deemed to preclude the people at any
21 time from determining that the death penalty shall not be sought in a
22 particular case, in which case the separate sentencing proceeding shall
23 not be conducted and the court may sentence such defendant to life
24 imprisonment [without parole] with eligibility for parole after twenty-
25 five years or to a sentence of imprisonment for the class A-I felony of
26 murder in the first degree other than a sentence of life imprisonment
27 [without parole] with eligibility for parole after twenty-five years.
28 (b) If the jury directs imposition of either a sentence of death or
29 life imprisonment [without parole] with eligibility for parole after
30 twenty-five years, it shall specify on the record those mitigating and
31 aggravating factors considered and those mitigating factors established
32 by the defendant, if any.
33 (e) If the jury unanimously determines that a sentence of life impri-
34 sonment [without parole] with eligibility for parole after twenty-five
35 years should be imposed the court must thereupon impose a sentence of
36 life imprisonment [without parole] with eligibility for parole after
37 twenty-five years.
38 (b) In the event the defendant is sentenced pursuant to this section
39 to life imprisonment [without parole] with eligibility for parole after
40 twenty-five years or to a term of imprisonment for the class A-I felony
41 of murder in the first degree other than a sentence of life imprisonment
42 [without parole] with eligibility for parole after twenty-five years,
43 the court shall not render a finding with respect to whether the defend-
44 ant is mentally retarded.
45 (c) In the event the defendant is sentenced pursuant to this section
46 to death, the court shall thereupon render a finding with respect to
47 whether the defendant is mentally retarded. If the court finds the
48 defendant is mentally retarded, the court shall set aside the sentence
49 of death and sentence the defendant either to life imprisonment [without
50 parole] with eligibility for parole after twenty-five years or to a term
51 of imprisonment for the class A-I felony of murder in the first degree
52 other than a sentence of life imprisonment [without parole] with eligi-
53 bility for parole after twenty-five years. If the court finds the
54 defendant is not mentally retarded, then such sentence of death shall
55 not be set aside pursuant to this subdivision.
A. 854 7
1 (e) The foregoing provisions of this subdivision notwithstanding, at a
2 reasonable time prior to the commencement of trial the defendant may,
3 upon a written motion alleging reasonable cause to believe the defendant
4 is mentally retarded, apply for an order directing that a mental retar-
5 dation hearing be conducted prior to trial. If, upon review of the
6 defendant's motion and any response thereto, the court finds reasonable
7 cause to believe the defendant is mentally retarded, it shall promptly
8 conduct a hearing without a jury to determine whether the defendant is
9 mentally retarded. In the event the court finds after the hearing that
10 the defendant is not mentally retarded, the court must, prior to
11 commencement of trial, enter an order so stating, but nothing in this
12 paragraph shall preclude a defendant from presenting mitigating evidence
13 of mental retardation at a separate sentencing proceeding. In the event
14 the court finds after the hearing that the defendant, based upon a
15 preponderance of the evidence, is mentally retarded, the court must,
16 prior to commencement of trial, enter an order so stating. Unless the
17 order is reversed on an appeal by the people or unless the provisions of
18 paragraph (d) of this subdivision apply, a separate sentencing proceed-
19 ing under this section shall not be conducted if the defendant is there-
20 after convicted of murder in the first degree. In the event a separate
21 sentencing proceeding is not conducted, the court, upon conviction of a
22 defendant for the crime of murder in the first degree, shall sentence
23 the defendant to life imprisonment [without parole] with eligibility for
24 parole after twenty-five years or to a sentence of imprisonment for the
25 class A-I felony of murder in the first degree other than a sentence of
26 life imprisonment [without parole] with eligibility for parole after
27 twenty-five years. Whenever a mental retardation hearing is held and a
28 finding is rendered pursuant to this paragraph, the court may not
29 conduct a hearing pursuant to paragraph (a) of this subdivision. For
30 purposes of this subdivision and paragraph (b) of subdivision nine of
31 this section, "mental retardation" means significantly subaverage gener-
32 al intellectual functioning existing concurrently with deficits in adap-
33 tive behavior which were manifested before the age of eighteen.
34 § 18. Subdivision 1 of section 440.20 of the criminal procedure law,
35 as amended by chapter 1 of the laws of 1995, is amended to read as
36 follows:
37 1. At any time after the entry of a judgment, the court in which the
38 judgment was entered may, upon motion of the defendant, set aside the
39 sentence upon the ground that it was unauthorized, illegally imposed or
40 otherwise invalid as a matter of law. Where the judgment includes a
41 sentence of death, the court may also set aside the sentence upon any of
42 the grounds set forth in paragraph (b), (c), (f), (g) or (h) of subdivi-
43 sion one of section 440.10 as applied to a separate sentencing proceed-
44 ing under section 400.27, provided, however, that to the extent the
45 ground or grounds asserted include one or more of the aforesaid para-
46 graphs of subdivision one of section 440.10, the court must also apply
47 subdivisions two and three of section 440.10, other than paragraph (d)
48 of subdivision two of such section, in determining the motion. In the
49 event the court enters an order granting a motion to set aside a
50 sentence of death under this section, the court must either direct a new
51 sentencing proceeding in accordance with section 400.27 or, to the
52 extent that the defendant cannot be resentenced to death consistent with
53 the laws of this state or the constitution of this state or of the
54 United States, resentence the defendant to life imprisonment [without
55 parole] with eligibility for parole after twenty-five years or to a
56 sentence of imprisonment for the class A-I felony of murder in the first
A. 854 8
1 degree other than a sentence of life imprisonment [without parole] with
2 eligibility for parole after twenty-five years. Upon granting the
3 motion upon any of the grounds set forth in the aforesaid paragraphs of
4 subdivision one of section 440.10 and setting aside the sentence, the
5 court must afford the people a reasonable period of time, which shall
6 not be less than ten days, to determine whether to take an appeal from
7 the order setting aside the sentence of death. The taking of an appeal
8 by the people stays the effectiveness of that portion of the court's
9 order that directs a new sentencing proceeding.
10 § 19. Paragraphs (b) and (c) of subdivision 5 of section 470.30 of the
11 criminal procedure law, as added by chapter 1 of the laws of 1995, are
12 amended to read as follows:
13 (b) set the sentence aside and remand the case for resentencing pursu-
14 ant to the procedures set forth in section 400.27 for a determination as
15 to whether the defendant shall be sentenced to death, life imprisonment
16 [without parole] with eligibility for parole after twenty-five years or
17 to a term of imprisonment for the class A-I felony of murder in the
18 first degree other than a sentence of life imprisonment [without parole]
19 with eligibility for parole after twenty-five years; or
20 (c) set the sentence aside and remand the case for resentencing by the
21 court for a determination as to whether the defendant shall be sentenced
22 to life imprisonment [without parole] with eligibility for parole after
23 twenty-five years or to a term of imprisonment for the class A-I felony
24 of murder in the first degree other than a sentence of life imprisonment
25 [without parole] with eligibility for parole after twenty-five years.
26 § 20. The opening paragraph of subdivision 1 of section 70.25 of the
27 penal law, as amended by chapter 372 of the laws of 1981, is amended to
28 read as follows:
29 Except as provided in subdivisions two, two-a and five of this
30 section, when multiple sentences of imprisonment are imposed on a person
31 at the same time, or when a person who is subject to any undischarged
32 term of imprisonment imposed at a previous time by a court of this state
33 is sentenced to an additional term of imprisonment, the sentence or
34 sentences imposed by the court shall run either concurrently or consec-
35 utively with respect to each other and the undischarged term or terms in
36 such manner as the court directs at the time of sentence. Notwithstand-
37 ing any other provision of the law to the contrary, no defendant shall
38 be sentenced to serve consecutive terms of imprisonment which exceed a
39 twenty-five year sentence. If the court does not specify the manner in
40 which a sentence imposed by it is to run, the sentence shall run as
41 follows:
42 § 21. This act shall take effect on the ninetieth day after it shall
43 have become a law.
