This bill has been amended

Bill S2238-2013

Provides that the intentional murder of a child under the age of twelve shall be a first degree murder offense; amends the definition of torture

Provides that the intentional murder of a child under the age of twelve shall be a first degree murder offense.



  • Jan 15, 2013: REFERRED TO CODES



TITLE OF BILL: An act to amend the penal law, in relation to first degree murder of a child under the age of twelve

PURPOSE: The purpose of this bill is to provide a more condign punishment for those who prostitute their children.

SUMMARY OF PROVISIONS: This bill first amends the definition of torture in Penal Law Section 125.27(a)(1)(x) to remove the requirement that the defendant relish the infliction of extreme physical pain in the commission of a murder. The bill further adds subsection (xiv) to Penal Law Section 125.27(a)(1) to provide that the intentional killing of a child under the age of 12 is first degree murder.

EXISTING LAW: Under current law, the murder of a child is not first degree murder unless it is accompanied by one or more of the aggravating factors listed in Penal Law Section 125.27(a)(1). Secondly, torture of the victim prior to murder currently constitutes first degree murder only where the defendant inflicted extreme physical pain and "relished" inflicting such pain.

JUSTIFICATION: In recognition of their special status in society, current law treats the intentional killing of certain groups-police officers, judges, among others-as first degree murder. As a result, those who consider murdering a member of one of these groups understand that they will receive the most severe punishment. One other group belongs on this list-children. Numerous instances in the recent past have demonstrated the need for this reform. One case from Buffalo in particular merits discussion here. As reported by The Buffalo News on October 18, 2012, jurors there convicted Ali-Mohamed Mohamud of second-degree murder for beating to death his 10-year-old stepson. After duct-taping a sock in the boy's mouth and binding his hands with electrical cord, the 41-year-old security guard struck Abdifatah Mohamud nearly 70 times with a baker's hardwood rolling pin. The stepfather inflicted "devastating blow after devastating blow" on the 4-foot, 11-inch boy, who weighed just under a hundred pounds, separating the boy's head from his spinal cord and crushing the back of his head, exposing his brain, according to court testimony. Had the law reflected the changes made by this bill, Mr. Mohamud would have been subject to charges of first degree murder, rather than second degree. Cases such as this cry out for the need for increased penalties for those who murder children. This bill answers those calls.

This bill also addresses the overly narrow definition of torture in Penal Law Section 125.27(a)(1)(x). There is no valid basis for distinguishing-as current law does-between the intentional infliction of extreme physical pain where the perpetrator relishes the act, and where he or she does not. Not only is this a meaningless distinction, it is an obstacle to prosecutors, who must often settle for lesser charges given the difficulty in proving the issue of whether an individual relishes the performance of an act. This bill enacts the commonsense notion that torture is torture, and should be treated accordingly without consideration of the perpetrator's mindset.

LEGISLATIVE HISTORY: S.1990 of 2011 Referred to Codes 01/04/12



EFFECTIVE DATE: This act shall take effect on the first of November after it shall have become law.


STATE OF NEW YORK ________________________________________________________________________ 2238 2013-2014 Regular Sessions IN SENATE January 15, 2013 ___________
Introduced by Sen. GOLDEN -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the penal law, in relation to first degree murder of a child under the age of twelve THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subparagraphs (x) and (xiii) of paragraph (a) of subdivi- sion 1 of section 125.27 of the penal law, subparagraph (x) as added by chapter 1 of the laws of 1995 and subparagraph (xiii) as added by chap- ter 300 of the laws of 2001, are amended and a new subparagraph (xiv) is added to read as follows: (x) 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 subparagraph, "torture" means the intentional and depraved infliction of extreme physical pain; "depraved" means the defendant [relished the infliction of] INFLICTED extreme physical pain upon the victim evidenc- ing debasement or perversion or that the defendant evidenced a sense of pleasure in the infliction of extreme physical pain; or (xiii) the victim was killed in furtherance of an act of terrorism, as defined in paragraph (b) of subdivision one of section 490.05 of this chapter; [and] OR (XIV) THE VICTIM WAS A CHILD UNDER THE AGE OF TWELVE; AND S 2. This act shall take effect on the first of November next succeed- ing the date on which it shall have become a law.


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