Bill S645-2011

Provides that sentence for commission of certain provisions of murder in the first degree is death or life without parole

Provides that the sentence for committing murder in the first degree when the victim is a police officer, peace officer or correction officer shall be either death or life imprisonment without parole.

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  • Jan 4, 2012: REFERRED TO CODES
  • Jan 5, 2011: REFERRED TO CODES

Memo

BILL NUMBER:S645

TITLE OF BILL: 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

PURPOSE: To reinstate the death penalty for the intentional murder of a police officer, peace officer or an employee of the Department of Correctional Services.

SUMMARY OF PROVISIONS: Section 1 sets forth the legislative intent to address the holding of the New York Court of Appeals in 2004 in the case of People v. LaValle so as to reinstate the death penalty for those who intentionally murder a police officer, peace officer or an employee of the Department of Correctional Services.

Sections 2, 3 and 4 amend provisions of current law to provide that any person who is convicted of the intentional murder of a police officer, peace officer or an employee of the Department of Correctional Services pursuant to provisions of current law defining the crime of murder 1st degree shall, if the jury elects not to impose the sentence of death, be sentenced to life imprisonment without parole.

Section 5 of the bill provides that the legislation shall take effect immediately and shall apply to acts committed on and after such date.

EXISTING LAW: In 2004 the Court of Appeals in the case of PEOPLE vs. LAVALLE held that the jury instruction in a capital case which informs the jury deadlock the defendant is automatically sentenced to an indeterminate sentence with a minimum term of between 20 and 25 years and a maximum term of life imprisonment, impermissibly inserts concern regarding the defendant's future dangerousness into the jury deliberations, and thereby potentially coerces a juror, who might prefer a sentence of life without parole, to vote instead for a sentence of death so as to to preclude the defendant's future release. The Court of Appeal did not hold that the death penalty was inappropriate for cases in which aggravating circumstances which are grounds for death penalty are present, but rather held that the procedure for imposing the death penalty was flawed.

Chapter 765 of the laws of 2005 enacted the crimes against police officers act. Part of that law created the new crime of aggravated murder which is deemed to occur when a person intentionally murders a police officer, peace officer or an employee of the Department of Correctional Services. The only sentence which may be imposed for the crime of aggravated murder is life imprisonment without parole. Because of the holding in the LaValle case current law does not allow the imposition of the death penalty upon a person who is convicted of

intentionally murdering a police officer, peace officer or an employee of the Department of Correctional Services.

JUSTIFICATION:

In 2004 the New York Court of Appeals in the case of People v. LaValle ruled that the procedure for imposing the death penalty was flawed. As a result of this ruling, prosecutors have been unable to seek imposition of the death death penalty when a law enforcement officer is murdered while performing his duties. Since the ruling of the Court of Appeals in the La Valle case, there have been eight police officers in this state intentionally murdered. Seven of these murders have occurred after this legislation enacted a sentence of life without parole for those who kill law enforcement officers. Other officers have been seriously wounded. The need is clear that a deterrence is needed to address this trend of aggression toward those men and women who put their lives at risk while protecting the citizens of this state.

LEGISLATIVE HISTORY: S.6414 of 2008, Passed Senate S.2747 of 2010, Referred to Codes

FISCAL IMPLICATIONS: None.

LOCAL FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: Immediately and applicable to acts committed on and after such date.


Text

STATE OF NEW YORK ________________________________________________________________________ 645 2011-2012 Regular Sessions IN SENATE (PREFILED) January 5, 2011 ___________
Introduced by Sens. GOLDEN, LAVALLE, MAZIARZ, RANZENHOFER -- 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: Section 1. Section 60.06 of the penal law, as amended by chapter 482 of the laws of 2009, 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, OR OF THE CRIME OF MURDER IN THE FIRST DEGREE AS DEFINED IN SUBPARAGRAPH (I), (II), OR (III) OF PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION 125.27 OF THIS CHAPTER AND THE SENTENCE OF DEATH IS NOT IMPOSED 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 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 2. Subparagraph (i) of paragraph (a) of subdivision 3 of section 70.00 of the penal law, as amended by chapter 107 of the laws of 2006, is amended to read as follows: (i) For a class A-I felony, such minimum period shall not be less than fifteen years nor more than twenty-five years; provided, however, that (A) where a sentence, other than a sentence of death or life imprison- ment without parole, is imposed upon a defendant convicted of murder in the first degree as defined in SUBPARAGRAPH (IV), (V), (VI), (VII), (VIII), (IX), (X), (XI), (XII) OR (XIII) OF PARAGRAPH (A) OF SUBDIVISION ONE OF section 125.27 of this chapter such minimum period shall be not less than twenty years nor more than twenty-five years, and, (B) where a sentence is imposed upon a defendant convicted of murder in the second degree as defined in subdivision five of section 125.25 of this chapter or convicted of aggravated murder as defined in section 125.26 of this chapter, OR WHERE A SENTENCE, OTHER THAN A SENTENCE OF DEATH, IS IMPOSED UPON A DEFENDANT CONVICTED OF MURDER IN THE FIRST DEGREE AS DEFINED IN SUBPARAGRAPH (I), (II) OR (III) OF PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION 125.27 OF THIS CHAPTER, the sentence shall be life imprisonment without parole, and, (C) where a sentence is imposed upon a defendant convicted of attempted murder in the first degree as defined in article one hundred ten of this chapter and subparagraph (i), (ii) or (iii) of paragraph (a) of subdivision one and paragraph (b) of subdivision one of section 125.27 of this chapter or attempted aggravated murder as defined in article one hundred ten of this chapter and section 125.26 of this chapter such minimum period shall be not less than twenty years nor more than forty years. S 3. Subdivision 5 of section 70.00 of the penal law, as amended by chapter 482 of the laws of 2009, 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- 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 OR FOR THE CRIME OF MURDER IN THE FIRST DEGREE AS DEFINED IN SUBPARAGRAPH (I), (II) OR (III) OF PARAGRAPH (A) OF SUBDIVI- SION ONE OF SECTION 125.27 OF THIS CHAPTER AND THE SENTENCE OF DEATH IS NOT IMPOSED. S 4. Subdivisions 1 and 10 of section 400.27 of the criminal procedure law, as added by chapter 1 of the laws of 1995, are amended to read as follows: 1. Upon [the] conviction of a defendant for the offense of murder in the first degree as defined by SUBPARAGRAPH (I), (II) OR (III) OF PARA- GRAPH (A) OF SUBDIVISION ONE OF section 125.27 of the penal law, the court shall promptly conduct a separate sentencing proceeding to deter- mine whether the defendant shall be sentenced to death or to life impri- sonment without parole pursuant to subdivision five of section 70.00 of the penal law. Nothing in this section shall be deemed to preclude the people at any time from determining that the death penalty shall not be sought in a particular case, in which case the separate sentencing proceeding shall not be conducted and the court may sentence such defendant to life imprisonment without parole [or to a sentence of imprisonment for the class A-I felony of murder in the first degree other than a sentence of life imprisonment without parole]. 10. (A) At the conclusion of all the evidence, the people and the defendant may present argument in summation for or against the sentence sought by the people. The people may deliver the first summation and the defendant may then deliver the last summation. Thereafter, the court shall deliver a charge to the jury on any matters appropriate in the circumstances. In its charge, the court must instruct the jury that with respect to each count of murder in the first degree, AS DEFINED IN SUBPARAGRAPH (I), (II) OR (III) OF PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION 125.27 OF THE PENAL LAW, the jury should consider whether or not a sentence of death should be imposed and whether or not a sentence of life imprisonment without parole should be imposed[, and that the jury must be unanimous with respect to either sentence. The court must also instruct the jury that in the event the jury fails to reach unanimous agreement with respect to the sentence, the court will sentence the defendant to a term of imprisonment with a minimum term of between twen- ty and twenty-five years and a maximum term of life. Following the court's charge, the jury shall retire to consider the sentence to be imposed. Unless inconsistent with the provisions of this section, the
provisions of sections 310.10, 310.20 and 310.30 shall govern the delib- erations of the jury]
. (B) THE COURT MUST INSTRUCT THE JURY THAT THE JURY MUST BE UNANIMOUS WITH RESPECT TO THE SENTENCE TO BE IMPOSED. THE COURT MUST ALSO INSTRUCT THE JURY THAT IN THE EVENT THE JURY FAILS TO REACH UNANIMOUS AGREEMENT WITH RESPECT TO THE SENTENCE, THE COURT WILL SENTENCE THE DEFENDANT TO A TERM OF LIFE IMPRISONMENT WITHOUT PAROLE. (C) FOLLOWING THE COURT'S CHARGE, THE JURY SHALL RETIRE TO CONSIDER THE SENTENCE TO BE IMPOSED. UNLESS INCONSISTENT WITH THE PROVISIONS OF THIS SECTION, THE PROVISIONS OF SECTIONS 310.10, 310.20 AND 310.30 OF THIS CHAPTER SHALL GOVERN THE DELIBERATIONS OF THE JURY. S 5. This act shall take effect immediately and shall apply to offenses committed on or after such effective date.

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