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                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                         6771

                                   I N  S E N A T E

                                   February 17, 2006
                                      ___________

       Introduced  by  Sens.  GOLDEN,  VOLKER,  PADAVAN, ALESI, BALBONI, BRUNO,
         FLANAGAN,  FUSCHILLO,  HANNON,  JOHNSON,  LARKIN,  LAVALLE,   LEIBELL,
         LITTLE,  MALTESE,  MARCELLINO, MARCHI, MAZIARZ, MEIER, MORAHAN, NOZZO-
         LIO, SALAND, SEWARD, SKELOS, SPANO, TRUNZO, WINNER, WRIGHT,  YOUNG  --
         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  sentencing  for  the commission of 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.  Section 60.06 of the penal law, as amended by chapter 765
    2  of the laws of 2005, is amended to read as follows:
    3  S 60.06 Authorized disposition; murder in the  first  degree  offenders;
    4            aggravated  murder; certain murder in the second degree offen-
    5            ders; certain terrorism offenders; criminal  possession  of  a
    6            chemical  weapon  or biological weapon offenders; criminal use
    7            of a chemical weapon or biological weapon offenders.
    8    When a defendant is convicted of murder in the first degree as defined
    9  in section 125.27 of this chapter, the court shall, in  accordance  with
   10  the provisions of section 400.27 of the criminal procedure law, sentence
   11  the  defendant  to death, to life imprisonment without parole in accord-
   12  ance with subdivision five of section 70.00 of this title, or to a  term
   13  of  imprisonment  for  a  class A-I felony other than a sentence of life
   14  imprisonment without parole, in accordance with subdivisions one through
   15  three of section 70.00 of this title. When  a  person  is  convicted  of
   16  murder  in  the  second degree as defined in subdivision five of section
   17  125.25 of this chapter or of the crime of aggravated murder  as  defined
   18  in  section  125.26  of  this  chapter, OR OF THE CRIME OF MURDER IN THE
   19  FIRST DEGREE AS DEFINED IN SUBPARAGRAPH (I), (II) OR (III) OF  PARAGRAPH
   20  (A)  OF  SUBDIVISION  ONE  OF  SECTION  125.27  OF  THIS CHAPTER AND THE
   21  SENTENCE OF DEATH IS NOT IMPOSED, the court shall sentence the defendant
   22  to life imprisonment without parole in accordance with subdivision  five
   23  of  section  70.00  of  this title. When a defendant is convicted of the
   24  crime of terrorism as defined in section 490.25 of this chapter, and the
   25  specified offense the defendant committed is a class A-I felony offense,
   26  or when a defendant is convicted of the crime of criminal possession  of

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             { } is old law to be omitted.
                                                                  LBD14595-02-6

       S. 6771                             2

    1  a chemical weapon or biological weapon in the first degree as defined in
    2  section  490.45 of this chapter, or when a defendant is convicted of the
    3  crime of criminal use of a chemical weapon or biological weapon  in  the
    4  first  degree  as  defined  in section 490.55 of this chapter, the court
    5  shall sentence the defendant to  life  imprisonment  without  parole  in
    6  accordance  with  subdivision  five  of  section  70.00  of  this title;
    7  provided, however, that  nothing  in  this  section  shall  preclude  or
    8  prevent  a  sentence  of  death  when the defendant is also convicted of
    9  murder in the first degree as defined in section 125.27 of this chapter.
   10    S 2. Subparagraph (i) of paragraph (a) of  subdivision  3  of  section
   11  70.00  of  the penal law, as amended by chapter 765 of the laws of 2005,
   12  is amended to read as follows:
   13    (i) For a class A-I felony, such minimum period shall not be less than
   14  fifteen years nor more than twenty-five years; provided,  however,  that
   15  (A)  where  a sentence, other than a sentence of death or life imprison-
   16  ment without parole, is imposed upon a defendant convicted of murder  in
   17  the  first  degree  as  defined  in SUBPARAGRAPH (IV), (V), (VI), (VII),
   18  (VIII), (IX), (X), (XI), (XII) OR (XIII) OF PARAGRAPH (A) OF SUBDIVISION
   19  ONE OF section 125.27 of this chapter such minimum period shall  be  not
   20  less than twenty years nor more than twenty-five years, and, (B) where a
   21  sentence  is  imposed upon a defendant convicted of murder in the second
   22  degree as defined in subdivision five of section 125.25 of this  chapter
   23  or  convicted  of aggravated murder as defined in section 125.26 of this
   24  chapter, OR WHERE A SENTENCE, OTHER THAN A SENTENCE OF DEATH, IS IMPOSED
   25  UPON A DEFENDANT CONVICTED OF MURDER IN THE FIRST DEGREE AS  DEFINED  IN
   26  SUBPARAGRAPH  (I),  (II)  OR (III) OF PARAGRAPH (A) OF SECTION 125.27 OF
   27  THIS CHAPTER, the sentence shall be life  imprisonment  without  parole,
   28  and,  (C)  where  a  sentence  is  imposed upon a defendant convicted of
   29  attempted murder in the first degree as defined in article  one  hundred
   30  ten of this chapter and subparagraph (i), (ii) or (iii) of paragraph (a)
   31  of  subdivision  one  and  paragraph  (b)  of subdivision one of section
   32  125.27 of this chapter or attempted  aggravated  murder  as  defined  in
   33  article one hundred ten of this chapter and section 125.26 of this chap-
   34  ter  such  minimum  period  shall be not less than twenty years nor more
   35  than forty years.
   36    S 3. Subdivision 5 of section 70.00 of the penal law,  as  amended  by
   37  chapter 765 of the laws of 2005, is amended to read as follows:
   38    5.   Life  imprisonment  without  parole.  Notwithstanding  any  other
   39  provision of law, a defendant sentenced  to  life  imprisonment  without
   40  parole  shall  not  be  or  become  eligible  for  parole or conditional
   41  release. For purposes of commitment and custody, other than  parole  and
   42  conditional  release,  such sentence shall be deemed to be an indetermi-
   43  nate sentence.  A defendant may be sentenced to life imprisonment  with-
   44  out  parole  upon conviction for the crime of murder in the first degree
   45  as defined in section 125.27 of this chapter and in accordance with  the
   46  procedures  provided  by  law  for imposing a sentence for such crime. A
   47  defendant must be sentenced to life  imprisonment  without  parole  upon
   48  conviction  for  the  crime of terrorism as defined in section 490.25 of
   49  this chapter, where the specified offense the defendant committed  is  a
   50  class  A-I felony; the crime of criminal possession of a chemical weapon
   51  or biological weapon in the first degree as defined in section 490.45 of
   52  this chapter; or the crime of criminal  use  of  a  chemical  weapon  or
   53  biological  weapon  in  the first degree as defined in section 490.55 of
   54  this chapter; provided, however, that nothing in this subdivision  shall
   55  preclude  or  prevent  a  sentence  of  death when the defendant is also
   56  convicted of the crime of murder in  the  first  degree  as  defined  in

       S. 6771                             3

    1  section  125.27  of this chapter.  A defendant must be sentenced to life
    2  imprisonment without parole upon conviction for the crime of  murder  in
    3  the  second  degree  as defined in subdivision five of section 125.25 of
    4  this chapter or for the crime of aggravated murder as defined in section
    5  125.26  of  this chapter, OR FOR THE CRIME OF MURDER IN THE FIRST DEGREE
    6  AS DEFINED IN SUBPARAGRAPH (I), (II) OR (III) OF PARAGRAPH (A) OF SUBDI-
    7  VISION ONE OF SECTION 125.27 OF THIS CHAPTER AND THE SENTENCE  OF  DEATH
    8  IS NOT IMPOSED.
    9    S 4. Subdivisions 1 and 10 of section 400.27 of the criminal procedure
   10  law,  as  added by chapter 1 of the laws of 1995, are amended to read as
   11  follows:
   12    1. Upon {the} conviction of a defendant for the offense of  murder  in
   13  the  first degree as defined by SUBPARAGRAPH (I), (II) OR (III) OF PARA-
   14  GRAPH (A) OF SUBDIVISION ONE OF section 125.27 of  the  penal  law,  the
   15  court  shall promptly conduct a separate sentencing proceeding to deter-
   16  mine whether the defendant shall be sentenced to death or to life impri-
   17  sonment without parole pursuant to subdivision five of section 70.00  of
   18  the  penal  law. Nothing in this section shall be deemed to preclude the
   19  people at any time from determining that the death penalty shall not  be
   20  sought  in  a  particular  case,  in  which case the separate sentencing
   21  proceeding shall not be  conducted  and  the  court  may  sentence  such
   22  defendant  to  life  imprisonment  without  parole  {or to a sentence of
   23  imprisonment for the class A-I felony of  murder  in  the  first  degree
   24  other than a sentence of life imprisonment without parole}.
   25    10.  (A)  At  the  conclusion  of all the evidence, the people and the
   26  defendant may present argument in summation for or against the  sentence
   27  sought by the people. The people may deliver the first summation and the
   28  defendant  may  then  deliver  the last summation. Thereafter, the court
   29  shall deliver a charge to the jury on any  matters  appropriate  in  the
   30  circumstances. In its charge, the court must instruct the jury that with
   31  respect  to  each  count  of  murder  in the first degree, AS DEFINED IN
   32  SUBPARAGRAPH (I), (II) OR (III) OF PARAGRAPH (A) OF SUBDIVISION  ONE  OF
   33  SECTION 125.27 OF THE PENAL LAW, the jury should consider whether or not
   34  a  sentence  of death should be imposed and whether or not a sentence of
   35  life imprisonment without parole should be imposed{, and that  the  jury
   36  must  be  unanimous with respect to either sentence. The court must also
   37  instruct the jury that in the event the jury fails  to  reach  unanimous
   38  agreement  with  respect  to  the  sentence, the court will sentence the
   39  defendant to a term of imprisonment with a minimum term of between twen-
   40  ty and twenty-five years and a  maximum  term  of  life.  Following  the
   41  court`s  charge,  the  jury  shall retire to consider the sentence to be
   42  imposed. Unless inconsistent with the provisions of  this  section,  the
   43  provisions of sections 310.10, 310.20 and 310.30 shall govern the delib-
   44  erations of the jury}.
   45    (B)  THE  COURT MUST INSTRUCT THE JURY THAT THE JURY MUST BE UNANIMOUS
   46  WITH RESPECT TO THE SENTENCE TO BE IMPOSED. THE COURT MUST ALSO INSTRUCT
   47  THE JURY THAT IN THE EVENT THE JURY FAILS TO REACH  UNANIMOUS  AGREEMENT
   48  WITH RESPECT TO THE SENTENCE, THE COURT WILL SENTENCE THE DEFENDANT TO A
   49  TERM OF LIFE IMPRISONMENT WITHOUT PAROLE.
   50    (C)  FOLLOWING  THE  COURT`S CHARGE, THE JURY SHALL RETIRE TO CONSIDER
   51  THE SENTENCE TO BE IMPOSED. UNLESS INCONSISTENT WITH THE  PROVISIONS  OF
   52  THIS  SECTION,  THE  PROVISIONS OF SECTIONS 310.10, 310.20 AND 310.30 OF
   53  THIS CHAPTER SHALL GOVERN THE DELIBERATIONS OF THE JURY.
   54    S 5. This act  shall  take  effect  immediately  and  shall  apply  to
   55  offenses committed on or after such effective date.
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