December
17, 2005
Bill Text - S50002
2
Extraordinary Session
I N S E N A T E
December 17, 2005
___________
Introduced by Sens. GOLDEN, BRUNO, PADAVAN, VOLKER, MALTESE, ALESI,
BALBONI, BONACIC, DeFRANCISCO, FARLEY, FLANAGAN, FUSCHILLO, HANNON,
JOHNSON, LARKIN, LAVALLE, LEIBELL, LIBOUS, LITTLE, MARCELLINO, MARCHI,
MAZIARZ, MEIER, MORAHAN, NOZZOLIO, RATH, ROBACH, SEWARD, SKELOS,
SPANO, TRUNZO, WINNER, WRIGHT, YOUNG -- (at request of the Governor)
-- read twice and ordered printed, and when printed to be committed to
the Committee on Rules
AN ACT enacting the "crimes against police act"; to amend
the penal law,
in relation to the minimum sentence of imprisonment for the commission
or attempted commission of murder in the first degree, sentences of
imprisonment for certain violent felony offenses, establishing the
offense of aggravated menacing of a police officer or peace officer,
causing the death of a police officer or peace officer, possession of
armor piercing ammunition and criminal possession of a weapon in the
first and second degrees; to amend the criminal procedure law, in
relation to sentences for convictions of murder in the first degree;
and to repeal subdivision 8 of section 265.01 of the penal law relat-
ing to possession of armor piercing ammunition with intent to use it
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "crimes against police act".
3 S 2. Subparagraph (i) of paragraph (a) of subdivision 3 of section
4 70.00 of the penal law, as amended by chapter 738 of the laws of 2004,
5 is amended to read as follows:
6 (i) For a class A-I felony, such minimum period shall not be less than
7 fifteen years nor more than twenty-five years; provided, however, that
8 (A) where a sentence, other than a sentence of death or life imprison-
9 ment without parole, is imposed upon a defendant convicted of murder
in
10 the first degree as defined in SUBPARAGRAPHS (IV), (V), (VI), (VII),
11 (VIII), (IX), (X), (XI), (XII) AND (XIII) OF PARAGRAPH (A) OF SUBDIVI-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
{ } is old law to be omitted.
LBD12118-03-5
S. 2 2
1 SION ONE OF section 125.27 of this chapter such minimum period shall
be
2 not less than twenty years nor more than twenty-five years, and, (B)
3 where a sentence is imposed upon a defendant convicted of murder in
the
4 second degree as defined in subdivision five of section 125.25 of this
5 chapter the sentence shall be life imprisonment without parole, AND,
(C)
6 WHERE A SENTENCE, OTHER THAN A SENTENCE OF DEATH OR LIFE IMPRISONMENT
7 WITHOUT PAROLE, IS IMPOSED UPON A DEFENDANT CONVICTED OF MURDER IN THE
8 FIRST DEGREE AS DEFINED IN SUBPARAGRAPH (I), (II) AND (III) OF PARAGRAPH
9 (A) OF SUBDIVISION ONE OF SECTION 125.27 OF THIS CHAPTER SUCH MINIMUM
10 PERIOD SHALL BE NOT LESS THAN THIRTY-FIVE YEARS NOR MORE THAN FORTY
11 YEARS, AND, (D) WHERE A SENTENCE IS IMPOSED UPON A DEFENDANT CONVICTED
12 OF ATTEMPTED MURDER IN THE FIRST DEGREE AS DEFINED IN SUBPARAGRAPHS
(I),
13 (II) AND (III) OF PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION 125.27
OF
14 THIS CHAPTER SUCH MINIMUM PERIOD SHALL BE NOT LESS THAN THIRTY YEARS
NOR
15 MORE THAN FORTY YEARS.
16 S 3. Paragraphs (b), (c) and (d) of subdivision 1 of section 70.02
of
17 the penal law, paragraph (b) as amended by section 6 of part A of chap-
18 ter 1 of the laws of 2004, paragraph (c) as amended by chapter 584
of
19 the laws of 2003 and paragraph (d) as amended by chapter 301 of the
laws
20 of 2001, are amended to read as follows:
21 (b) Class C violent felony offenses: an attempt to commit any of the
22 class B felonies set forth in paragraph (a); aggravated sexual abuse
in
23 the second degree as defined in section 130.67, assault on a peace
offi-
24 cer, police officer, fireman or emergency medical services professional
25 as defined in section 120.08, gang assault in the second degree as
26 defined in section 120.06, MANSLAUGHTER IN THE SECOND DEGREE AS DEFINED
27 IN SUBDIVISION FOUR OF SECTION 125.15, burglary in the second degree
as
28 defined in section 140.25, robbery in the second degree as defined
in
29 section 160.10, criminal possession of a weapon in the second degree
as
30 defined in section 265.03, criminal use of a firearm in the second
31 degree as defined in section 265.08, criminal sale of a firearm in
the
32 second degree as defined in section 265.12, criminal sale of a firearm
33 with the aid of a minor as defined in section 265.14, soliciting or
34 providing support for an act of terrorism in the first degree as defined
35 in section 490.15, hindering prosecution of terrorism in the second
36 degree as defined in section 490.30, and criminal possession of a chemi-
37 cal weapon or biological weapon in the third degree as defined in
38 section 490.37.
39 (c) Class D violent felony offenses: an attempt to commit any of the
40 class C felonies set forth in paragraph (b); assault in the second
41 degree as defined in section 120.05, AGGRAVATED MENACING OF A POLICE
42 OFFICER OR PEACE OFFICER AS DEFINED IN SECTION 120.11-A, stalking in
the
43 first degree, as defined in subdivision one of section 120.60, sexual
44 abuse in the first degree as defined in section 130.65, course of sexual
45 conduct against a child in the second degree as defined in section
46 130.80, aggravated sexual abuse in the third degree as defined in
47 section 130.66, criminal possession of a weapon in the third degree
as
48 defined in subdivision {four,} five, six, seven {or}, eight OR NINE
of
49 section 265.02, intimidating a victim or witness in the second degree
as
50 defined in section 215.16, soliciting or providing support for an act
of
51 terrorism in the second degree as defined in section 490.10, and making
52 a terroristic threat as defined in section 490.20, falsely reporting
an
53 incident in the first degree as defined in section 240.60, placing
a
54 false bomb OR HAZARDOUS SUBSTANCE in the first degree as defined in
55 section 240.62, placing a false bomb OR HAZARDOUS SUBSTANCE in a sports
56 stadium or arena, mass transportation facility{,} OR enclosed shopping
S. 2 3
1 mall as defined in section 240.63, and aggravated unpermitted use
of
2 indoor pyrotechnics in the first degree as defined in section 405.18.
3 (d) Class E violent felony offenses: an attempt to commit any of the
4 felonies of criminal possession of a weapon in the third degree as
5 defined in subdivision {four,} five, six, seven {or}, eight OR NINE
of
6 section 265.02 as a lesser included offense of that section as defined
7 in section 220.20 of the criminal procedure law, falsely reporting an
8 incident in the second degree as defined in section 240.55 {and}, plac-
9 ing a false bomb OR HAZARDOUS SUBSTANCE in the second degree as defined
10 in section 240.61 AND AGGRAVATED MENACING OF A POLICE OFFICER OR PEACE
11 OFFICER AS DEFINED IN SECTION 120.11-A.
12 S 4. Subdivision 2 of section 70.02 of the penal law is amended by
13 adding a new paragraph (b-1) to read as follows:
14 (B-1) EXCEPT AS PROVIDED IN SUBDIVISION SIX OF SECTION 60.05, THE
15 SENTENCE IMPOSED UPON A PERSON WHO STANDS CONVICTED OF THE CLASS D
16 VIOLENT FELONY OFFENSE OF CRIMINAL POSSESSION OF A WEAPON IN THE THIRD
17 DEGREE AS DEFINED IN SUBDIVISION NINE OF SECTION 265.02 OR AGGRAVATED
18 MENACING OF A POLICE OFFICER OR PEACE OFFICER AS DEFINED IN SECTION
19 120.11-A OF THIS CHAPTER, OR THE CLASS E VIOLENT FELONY OFFENSE OF
20 ATTEMPTED CRIMINAL POSSESSION OF A WEAPON IN THE THIRD DEGREE AS DEFINED
21 IN SUBDIVISION NINE OF SECTION 265.02 OF THIS CHAPTER MUST BE A DETERMI-
22 NATE SENTENCE OF IMPRISONMENT.
23 S 5. Subdivision 3 of section 70.02 of the penal law, as amended by
24 chapter 1 of the laws of 1998, is amended to read as follows:
25 3. Term of sentence. The term of a determinate sentence for a violent
26 felony offense must be fixed by the court as follows:
27 (a) For a class B felony, the term must be at least five years and
28 must not exceed twenty-five years, PROVIDED, HOWEVER, WHERE A SENTENCE
29 IS IMPOSED UPON A DEFENDANT CONVICTED OF AGGRAVATED ASSAULT UPON A
30 POLICE OFFICER OR A PEACE OFFICER AS DEFINED IN SECTION 120.11 OF THIS
31 CHAPTER, THE TERM MUST BE AT LEAST TWENTY YEARS AND MUST NOT EXCEED
32 FORTY YEARS;
33 (b) For a class C felony, the term must be at least three and one-half
34 years and must not exceed fifteen years, PROVIDED, HOWEVER, WHERE A
35 SENTENCE IS IMPOSED UPON A DEFENDANT CONVICTED OF ATTEMPTED AGGRAVATED
36 ASSAULT UPON A POLICE OFFICER OR PEACE OFFICER AS DEFINED IN SECTION
37 120.11 OF THIS CHAPTER, OR MANSLAUGHTER IN THE SECOND DEGREE AS DEFINED
38 IN SUBDIVISION FOUR OF SECTION 125.15 OF THIS CHAPTER OR ASSAULT ON
A
39 PEACE OFFICER OR POLICE OFFICER AS DEFINED IN SECTION 120.08 OF THIS
40 CHAPTER THE TERM MUST BE AT LEAST TEN YEARS AND MUST NOT EXCEED TWENTY
41 YEARS;
42 (c) For a class D felony, the term must be at least two years and must
43 not exceed seven years, PROVIDED, HOWEVER, WHERE A SENTENCE IS IMPOSED
44 UPON A DEFENDANT CONVICTED OF CRIMINAL POSSESSION OF A WEAPON IN THE
45 THIRD DEGREE AS DEFINED IN SUBDIVISION NINE OF SECTION 265.02 OF THIS
46 CHAPTER OR AGGRAVATED MENACING OF A POLICE OFFICER OR PEACE OFFICER
AS
47 DEFINED IN SECTION 120.11-A OF THIS CHAPTER OR ASSAULT IN THE SECOND
48 DEGREE AGAINST A POLICE OR PEACE OFFICER AS DEFINED IN SUBDIVISION
THREE
49 OF SECTION 120.05 OF THIS CHAPTER OR ATTEMPTED ASSAULT ON A PEACE OFFI-
50 CER OR POLICE OFFICER AS DEFINED IN SECTION 120.08 OF THIS CHAPTER,
THE
51 TERM MUST BE AT LEAST FIVE YEARS AND MUST NOT EXCEED TEN YEARS; and
52 (d) For a class E felony, the term must be at least one and one-half
53 years and must not exceed four years, PROVIDED, HOWEVER, WHERE A
54 SENTENCE IS IMPOSED UPON A DEFENDANT CONVICTED OF ATTEMPTED CRIMINAL
55 POSSESSION OF A WEAPON IN THE THIRD DEGREE AS DEFINED IN SUBDIVISION
56 NINE OF SECTION 265.02 OF THIS CHAPTER OR ATTEMPTED AGGRAVATED MENACING
S. 2 4
1 OF A POLICE OFFICER OR PEACE OFFICER AS DEFINED IN SECTION 120.11-A
OF
2 THIS CHAPTER OR ATTEMPTED ASSAULT IN THE SECOND DEGREE AGAINST A POLICE
3 OR PEACE OFFICER AS DEFINED IN SUBDIVISION THREE OF SECTION 120.05 OF
4 THIS CHAPTER, THE TERM MUST BE AT LEAST TWO AND ONE-HALF YEARS AND MUST
5 NOT EXCEED FIVE YEARS.
6 S 6. The penal law is amended by adding a new section 120.11-a to read
7 as follows:
8 S 120.11-A AGGRAVATED MENACING OF A POLICE OFFICER OR PEACE OFFICER.
9 A PERSON IS GUILTY OF AGGRAVATED MENACING OF A POLICE OFFICER OR PEACE
10 OFFICER WHEN HE OR SHE:
11 1. INTENTIONALLY PLACES OR ATTEMPTS TO PLACE ANOTHER PERSON IN REASON-
12 ABLE FEAR OF PHYSICAL INJURY, SERIOUS PHYSICAL INJURY OR DEATH BY
13 DISPLAYING A DEADLY WEAPON, DANGEROUS INSTRUMENT OR WHAT APPEARS TO
BE A
14 PISTOL, REVOLVER, RIFLE, SHOTGUN, MACHINE GUN OR OTHER FIREARM; AND
15 2. KNOWS OR REASONABLY SHOULD KNOW SUCH PERSON TO BE A POLICE OFFICER
16 OR A PEACE OFFICER ENGAGED IN THE COURSE OF PERFORMING HIS OR HER OFFI-
17 CIAL DUTIES.
18 AGGRAVATED MENACING OF A POLICE OFFICER OR PEACE OFFICER IS A CLASS
D
19 FELONY.
20 S 7. Subdivision 3 of section 125.15 of the penal law is amended and
a
21 new subdivision 4 is added to read as follows:
22 3. He OR SHE intentionally causes or aids another person to commit
23 suicide{.}; OR
24 4. WITH INTENT TO PREVENT A POLICE OFFICER OR PEACE OFFICER FROM
25 PERFORMING A LAWFUL DUTY, HE OR SHE WITH CRIMINAL NEGLIGENCE CAUSES
THE
26 DEATH OF SUCH POLICE OFFICER OR PEACE OFFICER.
27 S 8. Subdivision 8 of section 265.01 of the penal law is REPEALED.
28 S 9. Subdivision 8 of section 265.02 of the penal law, as added by
29 chapter 189 of the laws of 2000, is amended and a new subdivision 9
is
30 added to read as follows:
31 (8) Such person possesses a large capacity ammunition feeding
32 device{.}; OR
33 (9) SUCH PERSON POSSESSES ANY ARMOR PIERCING AMMUNITION WITH INTENT
TO
34 USE THE SAME UNLAWFULLY AGAINST ANOTHER.
35 S 10. Subdivisions 1, 10 and 11 of section 400.27 of the criminal
36 procedure law, as added by chapter 1 of the laws of 1995, are amended
to
37 read as follows:
38 1. Upon {the} conviction of a defendant for the offense of murder in
39 the first degree as defined by SUBPARAGRAPHS (I), (II) OR (III) OF
PARA-
40 GRAPH (A) OF SUBDIVISION ONE OF section 125.27 of the penal law, the
41 court shall promptly conduct a separate sentencing proceeding to deter-
42 mine whether the defendant shall be sentenced to death {or}, to life
43 imprisonment without parole pursuant to subdivision five of section
44 70.00 of the penal law, OR TO A SENTENCE OF IMPRISONMENT FOR THE CLASS
45 A-I FELONY OF MURDER IN THE FIRST DEGREE OTHER THAN A SENTENCE OF LIFE
46 IMPRISONMENT WITHOUT PAROLE. Nothing in this section shall be deemed
to
47 preclude the people at any time from determining that the death penalty
48 shall not be sought in a particular case, in which case the separate
49 sentencing proceeding shall not be conducted and the court may sentence
50 such defendant to life imprisonment without parole or to a sentence
of
51 imprisonment for the class A-I felony of murder in the first degree
52 other than a sentence of life imprisonment without parole.
53 10. (A) At the conclusion of all the evidence, the people and the
54 defendant may present argument in summation for or against the sentence
55 sought by the people. The people may deliver the first summation and
the
56 defendant may then deliver the last summation. Thereafter, the court
S. 2 5
1 shall deliver a charge to the jury on any matters appropriate in the
2 circumstances. In its charge, the court must instruct the jury that
with
3 respect to each count of murder in the first degree the jury should
4 consider whether or not a sentence of death should be imposed and wheth-
5 er or not a sentence of life imprisonment without parole should be
6 imposed{,} and {that the jury must be unanimous with respect to either
7 sentence. The court must also instruct the jury that in the event the
8 jury fails to reach unanimous agreement with respect to the sentence,
9 the court will sentence the defendant to a term of imprisonment with
a
10 minimum term of between twenty and twenty-five years and a maximum
term
11 of life. Following the court`s charge, the jury shall retire to consider
12 the sentence to be imposed. Unless inconsistent with the provisions
of
13 this section, the provisions of sections 310.10, 310.20 and 310.30
shall
14 govern the deliberations of the jury} WHETHER OR NOT A SENTENCE TO
A
15 TERM OF IMPRISONMENT WITH A MINIMUM TERM OF BETWEEN TWENTY AND
16 TWENTY-FIVE YEARS, TO BE DETERMINED BY THE COURT, AND A MAXIMUM TERM
OF
17 LIFE IMPRISONMENT SHOULD BE IMPOSED.
18 (B) THE COURT MUST INSTRUCT THE JURY THAT THE JURY MUST BE UNANIMOUS
19 WITH RESPECT TO THE SENTENCE TO BE IMPOSED. THE COURT MUST ALSO INSTRUCT
20 THE JURY THAT IN THE EVENT THE JURY FAILS TO REACH UNANIMOUS AGREEMENT
21 WITH RESPECT TO THE SENTENCE, THE COURT WILL SENTENCE THE DEFENDANT
TO A
22 TERM OF LIFE IMPRISONMENT WITHOUT PAROLE.
23 (C) FOLLOWING THE COURT`S CHARGE, THE JURY SHALL RETIRE TO CONSIDER
24 THE SENTENCE TO BE IMPOSED. UNLESS INCONSISTENT WITH THE PROVISIONS
OF
25 THIS SECTION, THE PROVISIONS OF SECTIONS 310.10, 310.20 AND 310.30
OF
26 THIS CHAPTER SHALL GOVERN THE DELIBERATIONS OF THE JURY.
27 11. (a) The jury may not direct imposition of a sentence of death
28 unless it unanimously finds beyond a reasonable doubt that the aggravat-
29 ing factor or factors substantially outweigh the mitigating factor
or
30 factors established, if any, and unanimously determines that the penalty
31 of death should be imposed. Any member or members of the jury who find
a
32 mitigating factor to have been proven by the defendant by a preponder-
33 ance of the evidence may consider such factor established regardless
of
34 the number of jurors who concur that the factor has been established.
35 (b) If the jury directs imposition of {either} a sentence of death
36 {or}, A SENTENCE OF life imprisonment without parole, OR A SENTENCE
TO A
37 TERM OF IMPRISONMENT WITH A MINIMUM TERM OF BETWEEN TWENTY AND
38 TWENTY-FIVE YEARS, TO BE DETERMINED BY THE COURT, AND A MAXIMUM TERM
OF
39 LIFE IMPRISONMENT, it shall specify on the record those mitigating
and
40 aggravating factors considered and those mitigating factors established
41 by the defendant, if any.
42 (c) With respect to a count or concurrent counts of murder in the
43 first degree, the court may direct the jury to cease deliberation with
44 respect to the sentence or sentences to be imposed if the jury has
45 deliberated for an extensive period of time without reaching unanimous
46 agreement on the sentence or sentences to be imposed and the court
is
47 satisfied that any such agreement is unlikely within a reasonable time.
48 The provisions of this paragraph shall apply with respect to consecutive
49 counts of murder in the first degree. In the event the jury is unable
to
50 reach unanimous agreement, the court must sentence the defendant in
51 accordance with {subdivisions one through three} SUBDIVISION FIVE of
52 section 70.00 of the penal law with respect to any count or counts
of
53 murder in the first degree upon which the jury failed to reach unanimous
54 agreement as to the sentence to be imposed.
55 (d) If the jury unanimously determines that a sentence of death should
56 be imposed, the court must thereupon impose a sentence of death. There-
S. 2 6
1 after, however, the court may, upon written motion of the defendant,
set
2 aside the sentence of death upon any of the grounds set forth in section
3 330.30 OF THIS CHAPTER. The procedures set forth in sections 330.40
and
4 330.50 OF THIS CHAPTER, as applied to separate sentencing proceedings
5 under this section, shall govern the motion and the court upon granting
6 the motion shall, except as may otherwise be required by subdivision
one
7 of section 330.50 OF THIS CHAPTER, direct a new sentencing proceeding
8 pursuant to this section. Upon granting the motion upon any of the
9 grounds set forth in section 330.30 OF THIS CHAPTER and setting aside
10 the sentence, the court must afford the people a reasonable period
of
11 time, which shall not be less than ten days, to determine whether to
12 take an appeal from the order setting aside the sentence of death.
The
13 taking of an appeal by the people stays the effectiveness of that
14 portion of the court`s order that directs a new sentencing proceeding.
15 (e) If the jury unanimously determines that a sentence of life impri-
16 sonment without parole should be imposed, the court must thereupon
17 impose a sentence of life imprisonment without parole.
18 (E-1) IF THE JURY UNANIMOUSLY DETERMINES THAT A SENTENCE TO A TERM
OF
19 IMPRISONMENT WITH A MINIMUM TERM OF BETWEEN TWENTY AND TWENTY-FIVE
20 YEARS, TO BE DETERMINED BY THE COURT, AND A MAXIMUM TERM OF LIFE IMPRI-
21 SONMENT SHOULD BE IMPOSED, THE COURT MUST THEREUPON IMPOSE SUCH
22 SENTENCE.
23 (f) Where a sentence has been unanimously determined by the jury it
24 must be recorded on the minutes and read to the jury, and the jurors
25 must be collectively asked whether such is their sentence. Even though
26 no juror makes any declaration in the negative, the jury must, if either
27 party makes such an application, be polled and each juror separately
28 asked whether the sentence announced by the foreman is in all respects
29 his or her sentence. If, upon either the collective or the separate
30 inquiry, any juror answers in the negative, the court must refuse to
31 accept the sentence and must direct the jury to resume its deliberation.
32 If no disagreement is expressed, the jury must be discharged from the
33 case.
34 S 11. Subdivisions 1, 10 and 11 of section 400.27 of the criminal
35 procedure law, as added by chapter 1 of the laws of 1995, are amended
to
36 read as follows:
37 1. Upon {the} conviction of a defendant for the offense of murder in
38 the first degree as defined by SUBPARAGRAPHS (I), (II) OR (III) OF
PARA-
39 GRAPH (A) OF SUBDIVISION ONE OF section 125.27 of the penal law, the
40 court shall promptly conduct a separate sentencing proceeding to deter-
41 mine whether the defendant shall be sentenced to death {or}, to life
42 imprisonment without parole pursuant to subdivision five of section
43 70.00 of the penal law, OR TO A SENTENCE OF IMPRISONMENT FOR THE CLASS
44 A-I FELONY OF MURDER IN THE FIRST DEGREE OTHER THAN A SENTENCE OF LIFE
45 IMPRISONMENT WITHOUT PAROLE. Nothing in this section shall be deemed
to
46 preclude the people at any time from determining that the death penalty
47 shall not be sought in a particular case, in which case the separate
48 sentencing proceeding shall not be conducted and the court may sentence
49 such defendant to life imprisonment without parole or to a sentence
of
50 imprisonment for the class A-I felony of murder in the first degree
51 other than a sentence of life imprisonment without parole.
52 10. (A) At the conclusion of all the evidence, the people and the
53 defendant may present argument in summation for or against the sentence
54 sought by the people. The people may deliver the first summation and
the
55 defendant may then deliver the last summation. Thereafter, the court
56 shall deliver a charge to the jury on any matters appropriate in the
S. 2 7
1 circumstances. In its charge, the court must instruct the jury that
with
2 respect to each count of murder in the first degree the jury should
3 consider whether or not a sentence of death should be imposed and wheth-
4 er or not a sentence of life imprisonment without parole should be
5 imposed{,} and {that the jury must be unanimous with respect to either
6 sentence. The court must also instruct the jury that in the event the
7 jury fails to reach unanimous agreement with respect to the sentence,
8 the court will sentence the defendant to a term of imprisonment with
a
9 minimum term of between twenty and twenty-five years and a maximum term
10 of life. Following the court`s charge, the jury shall retire to consider
11 the sentence to be imposed. Unless inconsistent with the provisions
of
12 this section, the provisions of sections 310.10, 310.20 and 310.30
shall
13 govern the deliberations of the jury} WHETHER OR NOT A SENTENCE TO
A
14 TERM OF IMPRISONMENT WITH A MINIMUM TERM OF BETWEEN THIRTY-FIVE AND
15 FORTY YEARS, TO BE DETERMINED BY THE COURT, AND A MAXIMUM TERM OF LIFE
16 IMPRISONMENT SHOULD BE IMPOSED.
17 (B) THE COURT MUST INSTRUCT THE JURY THAT THE JURY MUST BE UNANIMOUS
18 WITH RESPECT TO THE SENTENCE TO BE IMPOSED. THE COURT MUST ALSO INSTRUCT
19 THE JURY THAT IN THE EVENT THE JURY FAILS TO REACH UNANIMOUS AGREEMENT
20 WITH RESPECT TO THE SENTENCE, THE COURT WILL SENTENCE THE DEFENDANT
TO A
21 TERM OF LIFE IMPRISONMENT WITHOUT PAROLE.
22 (C) FOLLOWING THE COURT`S CHARGE, THE JURY SHALL RETIRE TO CONSIDER
23 THE SENTENCE TO BE IMPOSED. UNLESS INCONSISTENT WITH THE PROVISIONS
OF
24 THIS SECTION, THE PROVISIONS OF SECTIONS 310.10, 310.20 AND 310.30
OF
25 THIS CHAPTER SHALL GOVERN THE DELIBERATIONS OF THE JURY.
26 11. (a) The jury may not direct imposition of a sentence of death
27 unless it unanimously finds beyond a reasonable doubt that the aggravat-
28 ing factor or factors substantially outweigh the mitigating factor
or
29 factors established, if any, and unanimously determines that the penalty
30 of death should be imposed. Any member or members of the jury who find
a
31 mitigating factor to have been proven by the defendant by a preponder-
32 ance of the evidence may consider such factor established regardless
of
33 the number of jurors who concur that the factor has been established.
34 (b) If the jury directs imposition of {either} a sentence of death
35 {or}, A SENTENCE OF life imprisonment without parole, OR A SENTENCE
TO A
36 TERM OF IMPRISONMENT WITH A MINIMUM TERM OF BETWEEN THIRTY-FIVE AND
37 FORTY YEARS, TO BE DETERMINED BY THE COURT, AND A MAXIMUM TERM OF LIFE
38 IMPRISONMENT, it shall specify on the record those mitigating and aggra-
39 vating factors considered and those mitigating factors established
by
40 the defendant, if any.
41 (c) With respect to a count or concurrent counts of murder in the
42 first degree, the court may direct the jury to cease deliberation with
43 respect to the sentence or sentences to be imposed if the jury has
44 deliberated for an extensive period of time without reaching unanimous
45 agreement on the sentence or sentences to be imposed and the court
is
46 satisfied that any such agreement is unlikely within a reasonable time.
47 The provisions of this paragraph shall apply with respect to consecutive
48 counts of murder in the first degree. In the event the jury is unable
to
49 reach unanimous agreement, the court must sentence the defendant in
50 accordance with {subdivisions one through three} SUBDIVISION FIVE of
51 section 70.00 of the penal law with respect to any count or counts
of
52 murder in the first degree upon which the jury failed to reach unanimous
53 agreement as to the sentence to be imposed.
54 (d) If the jury unanimously determines that a sentence of death should
55 be imposed, the court must thereupon impose a sentence of death. There-
56 after, however, the court may, upon written motion of the defendant,
set
S. 2 8
1 aside the sentence of death upon any of the grounds set forth in section
2 330.30 OF THIS CHAPTER. The procedures set forth in sections 330.40
and
3 330.50 OF THIS CHAPTER, as applied to separate sentencing proceedings
4 under this section, shall govern the motion and the court upon granting
5 the motion shall, except as may otherwise be required by subdivision
one
6 of section 330.50 OF THIS CHAPTER, direct a new sentencing proceeding
7 pursuant to this section. Upon granting the motion upon any of the
8 grounds set forth in section 330.30 OF THIS CHAPTER and setting aside
9 the sentence, the court must afford the people a reasonable period of
10 time, which shall not be less than ten days, to determine whether to
11 take an appeal from the order setting aside the sentence of death.
The
12 taking of an appeal by the people stays the effectiveness of that
13 portion of the court`s order that directs a new sentencing proceeding.
14 (e) If the jury unanimously determines that a sentence of life impri-
15 sonment without parole should be imposed, the court must thereupon
16 impose a sentence of life imprisonment without parole.
17 (E-1) IF THE JURY UNANIMOUSLY DETERMINES THAT A SENTENCE TO A TERM
OF
18 IMPRISONMENT WITH A MINIMUM TERM OF BETWEEN THIRTY-FIVE AND FORTY YEARS,
19 TO BE DETERMINED BY THE COURT, AND A MAXIMUM TERM OF LIFE IMPRISONMENT
20 SHOULD BE IMPOSED, THE COURT MUST THEREUPON IMPOSE SUCH SENTENCE.
21 (f) Where a sentence has been unanimously determined by the jury it
22 must be recorded on the minutes and read to the jury, and the jurors
23 must be collectively asked whether such is their sentence. Even though
24 no juror makes any declaration in the negative, the jury must, if either
25 party makes such an application, be polled and each juror separately
26 asked whether the sentence announced by the foreman is in all respects
27 his or her sentence. If, upon either the collective or the separate
28 inquiry, any juror answers in the negative, the court must refuse to
29 accept the sentence and must direct the jury to resume its deliberation.
30 If no disagreement is expressed, the jury must be discharged from the
31 case.
32 S 12. Severability. If any clause, sentence, paragraph, subdivision,
33 section or part of this act shall be adjudged by any court of competent
34 jurisdiction to be invalid, such judgment shall not affect, impair,
or
35 invalidate the remainder thereof, but shall be confined in its operation
36 to the clause, sentence, paragraph, subdivision, section or part thereof
37 directly involved in the controversy in which such judgment shall have
38 been rendered. It is hereby declared to be the intent of the legislature
39 that this act would have been enacted even if such invalid provisions
40 had not been included therewith.
41 S 13. This act shall take effect immediately, provided: (a) that
42 sections two through nine and eleven of this act shall apply to offenses
43 committed on or after such effective date; and (b) that section ten
of
44 this act shall apply to offenses committed prior to such effective
date.
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