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.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A3906
SPONSOR: Barclay 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, specified peace officers, and
first responders, the intentional killing of two or more people, the
intentional killing of another person as a hate crime, and the inten-
tional 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, ruled
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:
A10564 of 2022-Referred to Codes
FISCAL IMPLICATIONS:
To be determined.
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
3906
2023-2024 Regular Sessions
IN ASSEMBLY
February 8, 2023
___________
Introduced by M. of A. BARCLAY, PALMESANO, ANGELINO, BYRNES,
J. M. GIGLIO, 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:
1 Section 1. Subparagraph (xiii) of paragraph (a) of subdivision 1 of
2 section 125.27 of the penal law, as added by chapter 300 of the laws of
3 2001, is amended and a new paragraph (xiv) is added to read as follows:
4 (xiii) the victim was killed in furtherance of an act of terrorism, as
5 defined in paragraph (b) of subdivision one of section 490.05 of this
6 chapter; [and] or
7 (xiv) the defendant intentionally selected the victim in whole or in
8 substantial part because of a belief or perception regarding the actual
9 or perceived race, color, national origin, ancestry, gender, gender
10 identity or expression, religion, religious practice, age, disability,
11 or sexual orientation of such victim, regardless of whether such belief
12 or perception is correct; and
13 § 2. Section 60.06 of the penal law, as amended by chapter 482 of the
14 laws of 2009, is amended to read as follows:
15 § 60.06 Authorized disposition; murder in the first degree offenders;
16 aggravated murder offenders; certain murder in the second
17 degree offenders; certain terrorism offenders; criminal
18 possession of a chemical weapon or biological weapon offen-
19 ders; criminal use of a chemical weapon or biological weapon
20 offenders.
21 When a defendant is convicted of murder in the first degree as defined
22 in section 125.27 of this chapter, the court shall, in accordance with
23 the provisions of section 400.27 of the criminal procedure law, sentence
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04799-01-3
A. 3906 2
1 the defendant to death, to life imprisonment without parole in accord-
2 ance with subdivision five of section 70.00 of this title, or to a term
3 of imprisonment for a class A-I felony other than a sentence of life
4 imprisonment without parole, in accordance with subdivisions one through
5 three of section 70.00 of this title. When a person is convicted of
6 murder in the second degree as defined in subdivision five of section
7 125.25 of this chapter or of the crime of aggravated murder as defined
8 in subdivision one of section 125.26 of this chapter, or of the crime of
9 murder in the first degree as defined in subparagraph (i), (ii), (ii-a),
10 (iii), (viii), (xi), (xiii), or (xiv) of paragraph (a) of subdivision
11 one of section 125.27 of this chapter and the sentence of death is not
12 imposed the court shall sentence the defendant to life imprisonment
13 without parole in accordance with subdivision five of section 70.00 of
14 this title. When a defendant is convicted of the crime of terrorism as
15 defined in section 490.25 of this chapter, and the specified offense the
16 defendant committed is a class A-I felony offense, or when a defendant
17 is convicted of the crime of criminal possession of a chemical weapon or
18 biological weapon in the first degree as defined in section 490.45 of
19 this chapter, or when a defendant is convicted of the crime of criminal
20 use of a chemical weapon or biological weapon in the first degree as
21 defined in section 490.55 of this chapter, the court shall sentence the
22 defendant to life imprisonment without parole in accordance with subdi-
23 vision five of section 70.00 of this title; provided, however, that
24 nothing in this section shall preclude or prevent a sentence of death
25 when the defendant is also convicted of murder in the first degree as
26 defined in section 125.27 of this chapter. When a defendant is convicted
27 of aggravated murder as defined in subdivision two of section 125.26 of
28 this chapter, the court shall sentence the defendant to life imprison-
29 ment without parole or to a term of imprisonment for a class A-I felony
30 other than a sentence of life imprisonment without parole, in accordance
31 with subdivisions one through three of section 70.00 of this title.
32 § 3. Subparagraph (i) of paragraph (a) of subdivision 3 of section
33 70.00 of the penal law, as amended by chapter 107 of the laws of 2006,
34 is amended to read as follows:
35 (i) For a class A-I felony, such minimum period shall not be less than
36 fifteen years nor more than twenty-five years; provided, however, that
37 (A) where a sentence, other than a sentence of death or life imprison-
38 ment without parole, is imposed upon a defendant convicted of murder in
39 the first degree as defined in subparagraph (iv), (v), (vi), (vii),
40 (ix), (x), or (xii) of paragraph (a) of subdivision one of section
41 125.27 of this chapter such minimum period shall be not less than twenty
42 years nor more than twenty-five years, and, (B) where a sentence is
43 imposed upon a defendant convicted of murder in the second degree as
44 defined in subdivision five of section 125.25 of this chapter or
45 convicted of aggravated murder as defined in section 125.26 of this
46 chapter, or where a sentence, other than a sentence of death, is imposed
47 upon a defendant convicted of murder in the first degree as defined in
48 subparagraph (i), (ii), (ii-a), (iii), (viii), (xi), (xiii), or (xiv) of
49 paragraph (a) of subdivision one of section 125.27 of this chapter, the
50 sentence shall be life imprisonment without parole, and, (C) where a
51 sentence is imposed upon a defendant convicted of attempted murder in
52 the first degree as defined in article one hundred ten of this chapter
53 and subparagraph (i), (ii), (ii-a) or (iii) of paragraph (a) of subdivi-
54 sion one and paragraph (b) of subdivision one of section 125.27 of this
55 chapter or attempted aggravated murder as defined in article one hundred
A. 3906 3
1 ten of this chapter and section 125.26 of this chapter such minimum
2 period shall be not less than twenty years nor more than forty years.
3 § 4. Subdivision 5 of section 70.00 of the penal law, as amended by
4 section 40-a of part WWW of chapter 59 of the laws of 2017, is amended
5 to read as follows:
6 5. Life imprisonment without parole. Notwithstanding any other
7 provision of law, a defendant sentenced to life imprisonment without
8 parole shall not be or become eligible for parole or conditional
9 release. For purposes of commitment and custody, other than parole and
10 conditional release, such sentence shall be deemed to be an indetermi-
11 nate sentence. A defendant may be sentenced to life imprisonment without
12 parole upon conviction for the crime of murder in the first degree as
13 defined in section 125.27 of this chapter and in accordance with the
14 procedures provided by law for imposing a sentence for such crime. A
15 defendant who was eighteen years of age or older at the time of the
16 commission of the crime must be sentenced to life imprisonment without
17 parole upon conviction for the crime of terrorism as defined in section
18 490.25 of this chapter, where the specified offense the defendant
19 committed is a class A-I felony; the crime of criminal possession of a
20 chemical weapon or biological weapon in the first degree as defined in
21 section 490.45 of this chapter; or the crime of criminal use of a chemi-
22 cal weapon or biological weapon in the first degree as defined in
23 section 490.55 of this chapter; provided, however, that nothing in this
24 subdivision shall preclude or prevent a sentence of death when the
25 defendant is also convicted of the crime of murder in the first degree
26 as defined in section 125.27 of this chapter. A defendant who was seven-
27 teen years of age or younger at the time of the commission of the crime
28 may be sentenced, in accordance with law, to the applicable indetermi-
29 nate sentence with a maximum term of life imprisonment. A defendant must
30 be sentenced to life imprisonment without parole upon conviction for the
31 crime of murder in the second degree as defined in subdivision five of
32 section 125.25 of this chapter or for the crime of aggravated murder as
33 defined in subdivision one of section 125.26 of this chapter. A defend-
34 ant may be sentenced to life imprisonment without parole upon conviction
35 for the crime of aggravated murder as defined in subdivision two of
36 section 125.26 of this chapter or for the crime of murder in the first
37 degree as defined in subparagraph (i), (ii), (ii-a), (iii), (viii),
38 (xi), (xiii), or (xiv) of paragraph (a) of subdivision one of section
39 125.27 of this chapter and the sentence of death is not imposed.
40 § 5. Subdivisions 1 and 10 of section 400.27 of the criminal procedure
41 law, as added by chapter 1 of the laws of 1995, are amended to read as
42 follows:
43 1. Upon [the] conviction of a defendant for the offense of murder in
44 the first degree as defined by subparagraph (i), (ii), (ii-a), (iii),
45 (viii), (xi), (xiii), or (xiv) of paragraph (a) of subdivision one of
46 section 125.27 of the penal law, the court shall promptly conduct a
47 separate sentencing proceeding to determine whether the defendant shall
48 be sentenced to death or to life imprisonment without parole pursuant to
49 subdivision five of section 70.00 of the penal law. Nothing in this
50 section shall be deemed to preclude the people at any time from deter-
51 mining that the death penalty shall not be sought in a particular case,
52 in which case the separate sentencing proceeding shall not be conducted
53 and the court may sentence such defendant to life imprisonment without
54 parole [or to a sentence of imprisonment for the class A-I felony of
55 murder in the first degree other than a sentence of life imprisonment
56 without parole].
A. 3906 4
1 10. (a) At the conclusion of all the evidence, the people and the
2 defendant may present argument in summation for or against the sentence
3 sought by the people. The people may deliver the first summation and the
4 defendant may then deliver the last summation. Thereafter, the court
5 shall deliver a charge to the jury on any matters appropriate in the
6 circumstances. In its charge, the court must instruct the jury that with
7 respect to each count of murder in the first degree, as defined in
8 subparagraph (i), (ii), (ii-a), (iii), (viii), (xi), (xiii), or (xiv) of
9 paragraph (a) of subdivision one of section 125.27 of the penal law, the
10 jury should consider whether or not a sentence of death should be
11 imposed and whether or not a sentence of life imprisonment without
12 parole should be imposed[, and that the jury must be unanimous with
13 respect to either sentence. The court must also instruct the jury that
14 in the event the jury fails to reach unanimous agreement with respect to
15 the sentence, the court will sentence the defendant to a term of impri-
16 sonment with a minimum term of between twenty and twenty-five years and
17 a maximum term of life. Following the court's charge, the jury shall
18 retire to consider the sentence to be imposed. Unless inconsistent with
19 the provisions of this section, the provisions of sections 310.10,
20 310.20 and 310.30 shall govern the deliberations of the jury].
21 (b) The court must instruct the jury that the jury must be unanimous
22 with respect to the sentence to be imposed. The court must also instruct
23 the jury that in the event the jury fails to reach unanimous agreement
24 with respect to the sentence, the court will sentence the defendant to a
25 term of life imprisonment without parole.
26 (c) Following the court's charge, the jury shall retire to consider
27 the sentence to be imposed. Unless inconsistent with the provisions of
28 this section, the provisions of sections 310.10, 310.20 and 310.30 of
29 this part shall govern the deliberations of the jury.
30 § 6. This act shall take effect immediately and shall apply to
31 offenses committed on or after such effective date.
