S6091 - NY Senate Open Legislation - Provides that a person is guilty of aggravated murder when such person causes the death of a child and acted in an especially cruel and wanton manner

Sponsor: DIAZ
Committee: RULES
Law Section: Penal Law

S6091 Summary

Provides that a person is guilty of aggravated murder when such person causes the death of a child and acted in an especially cruel and wanton manner in causing such death; and makes technical corrections relating thereto. Provides that a person is guilty of aggravated murder when such person causes the death of a child and acted in an especially cruel and wanton manner in causing such death; and makes technical corrections relating thereto.

S6091 Actions

S6091 - ORDERED TO THIRD READING CAL.979 - Sep 10, 2009
S6091 - REFERRED TO RULES - Jul 15, 2009

S6091 Committee Meetings

Rules: Sep 10, 2009: Chair: Malcolm Smith / Location: Off the Floor

S6091 Calendars

Sep 10, 2009: FLOOR - BILLS ON THIRD READING

S6091 Votes

Vote: Committee - Sep 10, 2009

Ayes (20): ESPADA, STACHOWSKI, DUANE, HASSELL-THOMPSON, KRUEGER, PARKER, SERRANO, STEWART-COUSINS, DILAN, KLEIN, VALESKY, MONSERRATE, SKELOS, PADAVAN, FARLEY, LAVALLE, SEWARD, HANNON, LARKIN, SALAND

Same As: A5080 Votes

Vote: Floor - Sep 10, 2009

Ayes (58): ADAMS, ADDABBO, ALESI, AUBERTINE, BRESLIN, DEFRANCISCO, DIAZ, DILAN, ESPADA, FARLEY, FLANAGAN, FUSCHILLO, GOLDEN, GRIFFO, HANNON, HASSELL-THOMPSON, JOHNSON C, JOHNSON O, KLEIN, KRUEGER, KRUGER, LANZA, LARKIN, LAVALLE, LEIBELL, LIBOUS, LITTLE, MARCELLINO, MAZIARZ, MCDONALD, MONSERRATE, MONTGOMERY, MORAHAN, NOZZOLIO, ONORATO, OPPENHEIMER, PADAVAN, PARKER, PERKINS, RANZENHOFER, ROBACH, SALAND, SAMPSON, SAVINO, SCHNEIDERMAN, SERRANO, SEWARD, SKELOS, SMITH, SQUADRON, STACHOWSKI, STAVISKY, STEWART-COUSINS, THOMPSON, VALESKY, VOLKER, WINNER, YOUNG
Nays (1): DUANE
Excused (3): BONACIC, FOLEY, HUNTLEY

S6091 Memo

BILL NUMBER: S6091

TITLE OF BILL : An act to amend the penal law, in relation to the crime of aggravated murder involving a child

PURPOSE OR GENERAL IDEA OF BILL : The bill increases to life imprisonment without possibility of parole the available sentence for an adult who inflicts torture on a child, intentionally causing the child's death.

SUMMARY OF SPECIFIC PROVISIONS : Bill section one paragraph (b) of subdivision 1 and the opening paragraph of subdivision 3 of section 125.26 of the penal law as amended by chapter 765 of the laws of 2005, are amended, subdivision 2 is renumbered subdivision 3 and a new subdivision 2 is added to the crime of aggravated murder, Penal Law section 125.26. The new subdivision provides that a person who, acting in an especially cruel and wanton manner pursuant to a course of conduct, intentionally tortures a child causing the child's death, is guilty of aggravated murder.

Bill section two amends subdivision 5 of section 70.00 of the Penal Law as amended by chapter 765 of the laws of 2005 to provide that a person convicted of aggravated murder may be sentenced to life imprisonment without possibility of parole. Bill section three makes a change to Penal Law section 60.06 regarding authorized disposition. When sentencing a defendant for aggravated murder of a child the court may impose a sentence of life imprisonment without possibility of 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 subdivisions one through three of section 70.00 of this title. Bill section four provides that the bill shall take effect immediately.

JUSTIFICATION : The recent arrest of the mother and stepfather of a seven year old child, Nixzmary Brown, on charges of second degree murder has demonstrated a shortcoming in the law which is remedied by this bill. Nixzmary Brown was allegedly kept tied to a chair in a squalid "punishment room" in her Brooklyn home over the course of many days and beaten until she died. For this heinous crime, her mother and stepfather have been charged with murder in the second degree pursuant to section 125.25 of the Penal Law. Murder in the second degree is punishable by a life sentence, but there is a possibility of parole after a minimum term set by the court of between fifteen years and twenty-five years. Life imprisonment without possibility of parole is an available sentence for murder in the first degree, but under subdivision (1) (a) (x) of the first degree murder statute (PL 125.27), there 'must be proof that the defendant acted in a "depraved" manner, either relishing the infliction of extreme physical pain evidencing debasement or perversion or evidencing a sense of pleasure in the infliction of extreme physical pain. As such proof may not be available in this case, the mother and stepfather of Nixzmary Brown have been charged with murder in the second degree. In view of the atrocious nature of such a crime, when it is alleged that a parent has killed a child in a tortuous manner, the prosecution, in order to seek a life-without-parole sentence, should not have to prove that the defendant relished or evidenced a sense of pleasure in inflicting extreme physical pain. This bill eliminates that element of proof in the case of an adult alleged to have killed a child, assuring that a sentence of life imprisonment without possibility of parole may be sought in such circumstances.

PRIOR LEGISLATIVE HISTORY : New Bill.

FISCAL IMPLICATIONS : There are no direct additional fiscal costs.

EFFECTIVE DATE : Immediately.

S6091 Text

S T A T E O F N E W Y O R K
6091
2009-2010 Regular Sessions I N SENATE July 15, 2009
Introduced by Sen. DIAZ -- read twice and ordered printed, and when printed to be committed to the Committee on Rules

AN ACT to amend the penal law, in relation to the crime of aggravated murder involving a child

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM BLY, DO ENACT AS FOLLOWS:

Section 1. Paragraph (b) of subdivision 1 and the opening paragraph of subdivision 3 of section 125.26 of the penal law, as added by chapter 765 of the laws of 2005, are amended, subdivision 2 is renumbered subdi vision 3 and a new subdivision 2 is added to read as follows:
(b) The defendant was more than eighteen years old at the time of the commission of the crime[.]; OR 2. (A) WITH INTENT TO CAUSE THE DEATH OF A PERSON LESS THAN FOURTEEN YEARS OLD, HE OR SHE CAUSES THE DEATH OF SUCH PERSON, AND THE DEFENDANT ACTED IN AN ESPECIALLY CRUEL AND WANTON MANNER PURSUANT TO A COURSE OF CONDUCT INTENDED TO INFLICT AND INFLICTING TORTURE UPON THE VICTIM PRIOR TO THE VICTIM'S DEATH. AS USED IN THIS SUBDIVISION, "TORTURE" MEANS THE INTENTIONAL AND DEPRAVED INFLICTION OF EXTREME PHYSICAL PAIN THAT IS SEPARATE AND APART FROM THE PAIN WHICH OTHERWISE WOULD HAVE BEEN ASSOCI ATED WITH SUCH CAUSE OF DEATH; AND (B) THE DEFENDANT WAS MORE THAN EIGHTEEN YEARS OLD AT THE TIME OF THE COMMISSION OF THE CRIME. In any prosecution under subdivision one OR TWO of this section, it is an affirmative defense that:

S 2. Subdivision 5 of section 70.00 of the penal law, as amended by chapter 765 of the laws of 2005, is amended to read as follows:
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 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD07356-01-9
S. 6091 2 nate sentence. A defendant may be sentenced to life imprisonment with out 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 must be sentenced to life imprisonment without parole upon conviction for the crime of terrorism as defined in section 490.25 of this chapter, where the specified offense the defendant committed is a class A-I felony; 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 the crime of criminal use of a chemical 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 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 SUBDI VISION ONE OF section 125.26 of this chapter. A DEFENDANT 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.

S 3.

Section 60.06 of the penal law, as amended by chapter 765 of the laws of 2005, the section heading as amended by chapter 93 of the laws of 2006, is amended to read as follows:

S 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, to life imprisonment without parole in accord ance 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 committed is a class A-I felony offense, or when a defendant is convicted of 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 chemical 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 imprison ment 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 S. 6091 3 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 SUBDIVISIONS ONE THROUGH THREE OF SECTION 70.00 OF THIS TITLE.

S 4. This act shall take effect immediately.

S6091: Provides that a person is guilty of aggravated murder when such person causes the death of a child and acted in an especially cruel and wanton manner