LAWS OF NEW YORK, 1995
CHAPTER 1
Death Penalty


EXPLANATION—Matter in italics is new; matter in brackets [  ] is
old law to be omitted.


LAWS OF NEW YORK, 1995
CHAPTER 1

to amend the penal law, the criminal procedure law, the judiciary l and
related services in criminal actions in which a death sentence may be
imposed and repealing subdivision 3 of section 112 and article 22-B of
the correction law relating to imposition of such penalty

Became a law March 7, 1995, with the approval of the Governor.
Passed by a majority vote, three-fifths being present.

The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:

Section 1. Subdivision 2 of section 60.05 of the penal law, as amended
by chapter 410 of the laws of 1979, is amended to read as follows:
2. Class A felony. Except as provided in subdivisions three and four
of section 70.06 of this chapter, every person convicted of a class A
felony must be sentenced to imprisonment in accordance with section
70.00, unless such person is convicted of either murder in the first
degree and is sentenced [to death ] in accordance with section 60.06 or
of a class A-II felony and is sentenced to probation in accordance with
section 65.00.
§ 2. Section 60.06 of the penal law, as added by chapter 367 of the
laws of 1974, is amended to read as follows:
§ 60.06 Authorized disposition; murder in the first degree.
When a person 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 accordance
with subdivision five of section 70.00 of this chapter or to a term of
imprisonment for a class A-I felony other than a sentence of life impri-
sonment without parole, in accordance with subdivisions one through
three of section 70.00 of this chapter.
§ 3. Subdivision 1 of section 70.00 of the penal law, as amended by
chapter 277 of the laws of 1973, is amended to read as follows:
1. Indeterminate sentence. Except as provided in [subdivision ] subdi-
visions four and five, a sentence of imprisonment for a felony shall be
an indeterminate sentence. When such a sentence is imposed, the court
shall impose a maximum term in accordance with the provisions of subdi-
vision two of this section and the minimum period of imprisonment shall
be as provided in subdivision three of this section.
§ 4. Subparagraph (i) of paragraph (a) of subdivision 3 of section
70.00 of the penal law, as amended by chapter 276 of the laws of 1973,
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 that where a
sentence, other than a sentence of death or life imprisonment without
parole, is imposed upon a defendant convicted of murder in the first
degree as defined in section 125.27 of this chapter such minimum period
shall be not less than twenty years nor more than twenty-five years.
§ 5. Section 70.00 of the penal law is amended by adding a new subdi-
vision 5 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 without
parole only 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.
§ 6. Section 70.20 of the penal law is amended by adding a new subdi-
vision 2-a to read as follows:
2-a. Sentence of life imprisonment without parole. When a sentence of
life imprisonment without parole is imposed, the court shall commit the
defendant to the custody of the state department of correctional
services for the remainder of the life of the defendant.
§ 7. Subdivision 1 of section 125.27 of the penal law, as added by
chapter 367 of the laws of 1974, is amended to read as follows:
1. With intent to cause the death of another person, he causes the
death of such person or of a third person; and
(a) Either:
(i) the intended victim was a police officer as defined in subdivision
34 of section 1.20 of the criminal procedure law who was [killed ] at the
time of the killing engaged in the course of performing his official
duties, and the defendant knew or reasonably should have known that the
intended victim was a police officer; or
(ii) the intended victim was a peace officer as defined in paragraph a
of subdivision twenty-one, subdivision twenty-three, twenty-four or
sixty-two (employees of the division for youth) of section 2.10 of the
criminal procedure law who was at the time of the killing engaged in the
course of performing his official duties, and the defendant knew or
reasonably should have known that the intended victim was such a
uniformed court officer, parole officer, probation officer, or employee
of the division for youth; or
(iii) the intended victim was an employee of a state correctional
institution or was an employee of a local correctional facility as
defined in subdivision two of section forty of the correction law, who
was [killed ] at the time of the killing engaged in the course of
performing his official duties, and the defendant knew or reasonably
should have known that the intended victim was an employee of a state
correctional institution or a local correctional facility; or
[(iii) ] (iv) at the time of the commission of the [crime ] killing, the
defendant was confined in a state correctional institution[, ] or was
otherwise in custody upon a sentence for the term of his natural life,
or upon a sentence commuted to one of natural life, or upon a sentence
for an indeterminate term the minimum of which was at least fifteen
years and the maximum of which was natural life, or at the time of the
commission of the [crime ] killing, the defendant had escaped from such
confinement or custody while serving such a sentence and had not yet
been returned to such confinement or custody; [and ] or
(v) the intended victim was a witness to a crime committed on a prior
occasion and the death was caused for the purpose of preventing the
intended victim's testimony in any criminal action or proceeding whether
or not such action or proceeding had been commenced, or the intended
victim had previously testified in a criminal action or proceeding and
the killing was committed for the purpose of exacting retribution for
such prior testimony, or the intended victim was an immediate family
member of a witness to a crime committed on a prior occasion and the
killing was committed for the purpose of preventing or influencing the
testimony of such witness, or the intended victim was an immediate fami-
ly member of a witness who had previously testified in a criminal action
or proceeding and the killing was committed for the purpose of exacting
retribution upon such witness for such prior testimony. As used in this
subparagraph "immediate family member" means a husband, wife, father,
mother, daughter, son, brother, sister, stepparent, grandparent, step-
child or grandchild; or
(vi) the defendant committed the killing or procured commission of the
killing pursuant to an agreement with a person other than the intended
victim to commit the same for the receipt, or in expectation of the
receipt, of anything of pecuniary value from a party to the agreement or
from a person other than the intended victim acting at the direction of
a party to such agreement; or
(vii) the victim was killed while the defendant was in the course of
committing or attempting to commit and in furtherance of robbery,
burglary in the first degree or second degree, kidnapping in the first
degree, arson in the first degree or second degree, rape in the first
degree, sodomy in the first degree, sexual abuse in the first degree,
aggravated sexual abuse in the first degree or escape in the first
degree, or in the course of and furtherance of immediate flight after
committing or attempting to commit any such crime or in the course of
and furtherance of immediate flight after attempting to commit the crime
of murder in the second degree; provided however, the victim is not a
participant in one of the aforementioned crimes and, provided further
that, unless the defendant's criminal liability under this subparagraph
is based upon the defendant having commanded another person to cause the
death of the victim or intended victim pursuant to section 20.00 of this
chapter, this subparagraph shall not apply where the defendant's crimi-
nal liability is based upon the conduct of another pursuant to section
20.00 of this chapter; or
(viii) as part of the same criminal transaction, the defendant, with
intent to cause serious physical injury to or the death of an additional
person or persons, causes the death of an additional person or persons;
provided, however, the victim is not a participant in the criminal tran-
saction; or
(ix) prior to committing the killing, the defendant had been convicted
of murder as defined in this section or section 125.25 of this article,
or had been convicted in another jurisdiction of an offense which, if
committed in this state, would constitute a violation of either of such
sections; or
(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 extreme physical pain upon the victim evidencing debase-
ment or perversion or that the defendant evidenced a sense of pleasure
in the infliction of extreme physical pain; or
(xi) the defendant intentionally caused the death of two or more addi-
tional persons within the state in separate criminal transactions within
a period of twenty-four months when committed in a similar fashion or
pursuant to a common scheme or plan; or
(xii) the intended victim was a judge as defined in subdivision twen-
ty-three of section 1.20 of the criminal procedure law and the defendant
killed such victim because such victim was, at the time of the killing,
a judge; and
(b) The defendant was more than eighteen years old at the time of the
commission of the crime.
§ 8. Paragraph (b) of subdivision 3 of section 200.60 of the criminal
procedure law is amended to read as follows:
(b) If the defendant denies the previous conviction or remains mute,
the people may prove that element of the offense charged before the jury
as a part of their case. In any prosecution under subparagraph (ix) of
paragraph (a) of subdivision one of section 125.27 of the penal law, if
the defendant denies the previous murder conviction or remains mute, the
people may prove that element of the offense only after the jury has
first found the defendant guilty of intentionally causing the death of a
person as charged in the indictment, in which case the court shall then
permit the people and the defendant to offer evidence and argument
consistent with the relevant provisions of section 260.30 of this chap-
ter with respect to the previous murder conviction.
§ 9. Subdivision 6 of section 210.20 of the criminal procedure law, as
added by chapter 209 of the laws of 1990, is amended to read as follows:
6. The effectiveness of an order reducing a count or counts of an
indictment or dismissing an indictment and directing the filing of a
prosecutor's information or dismissing a count or counts of an indict-
ment charging murder in the first degree shall be stayed for thirty days
following the entry of such order unless such stay is otherwise waived
by the people. On or before the conclusion of such thirty-day period,
the people shall exercise one of the following options:
(a) Accept the court's order by filing a reduced indictment [or ], by
dismissing the indictment and filing a prosecutor's information, or by
filing an indictment containing any count or counts remaining after
dismissal of the count or counts charging murder in the first degree, as
appropriate;
(b) Resubmit the subject count or counts to the same or a different
grand jury within thirty days of the entry of the order or such addi-
tional time as the court may permit upon a showing of good cause;
provided, however, that if in such case an order is again entered with
respect to such count or counts pursuant to subdivision one-a of this
section, such count or counts may not again be submitted to a grand
jury. Where the people exercise this option, the effectiveness of the
order further shall be stayed pending a determination by the grand jury
and the filing of a new indictment, if voted, charging the resubmitted
count or counts;
(c) Appeal the order pursuant to subdivision one or one-a of section
450.20. Where the people exercise this option, the effectiveness of the
order further shall be stayed in accordance with the provisions of
subdivision two of section 460.40.
§ 10. Paragraph (e) of subdivision 5 of section 220.10 of the criminal
procedure law, as amended by chapter 410 of the laws of 1979, is amended
to read as follows:
(e) A defendant may not enter a plea of guilty to the crime of murder
in the first degree as defined in section 125.27 of the penal law;
provided, however, that a defendant may enter such a plea with both the
permission of the court and the consent of the people when the agreed
upon sentence is either life imprisonment without parole or a term of
imprisonment for the class A-I felony of murder in the first degree
other than a sentence of life imprisonment without parole.
§ 11. Subparagraph (vii) of paragraph (b) of subdivision 3 of section
220.30 of the criminal procedure law, as added by chapter 367 of the
laws of 1974 and as renumbered by chapter 233 of the laws of 1980, is
amended to read as follows:
(vii) A defendant may not enter a plea of guilty to the crime of
murder in the first degree as defined in section 125.27 of the penal
law; provided, however, that a defendant may enter such a plea with both
the permission of the court and the consent of the people when the
agreed upon sentence is either life imprisonment without parole or a
term of imprisonment for the class A-I felony of murder in the first
degree other than a sentence of life imprisonment without parole.
§ 12. Subdivision 2 of section 220.60 of the criminal procedure law,
as amended by chapter 548 of the laws of 1980, is amended to read as
follows:
2. A defendant who has entered a plea of not guilty to an indictment
may, with both the permission of the court and the consent of the
people, withdraw such plea at any time before the rendition of a verdict
and enter: (a) a plea of guilty to part of the indictment pursuant to
subdivision three or four but subject to the limitation in subdivision
five of section 220.10, or (b) a plea of not responsible by reason of
mental disease or defect to the indictment pursuant to section 220.15 of
this chapter.
§ 13. The criminal procedure law is amended by adding a new section
250.40 to read as follows:
§ 250.40 Notice of intent to seek death penalty.
1. A sentence of death may not be imposed upon a defendant convicted
of murder in the first degree unless, pursuant to subdivision two of
this section, the people file with the court and serve upon the defend-
ant a notice of intent to seek the death penalty.
2. In any prosecution in which the people seek a sentence of death,
the people shall, within one hundred twenty days of the defendant's
arraignment upon an indictment charging the defendant with murder in the
first degree, serve upon the defendant and file with the court in which
the indictment is pending a written notice of intention to seek the
death penalty. For good cause shown the court may extend the period for
service and filing of the notice.
3. Notwithstanding any other provisions of law, where the people file
a notice of intent to seek the death penalty pursuant to this section
the defendant shall be entitled to an additional sixty days for the
purpose of filing new motions or supplementing pending motions.
4. A notice of intent to seek the death penalty may be withdrawn at
any time by a written notice of withdrawal filed with the court and
served upon the defendant. Once withdrawn the notice of intent to seek
the death penalty may not be refiled.
§ 14. The criminal procedure law is amended by adding a new section
270.16 to read as follows:
§ 270.16 Capital cases; individual questioning for racial bias.
1. In any case in which the crime charged may be punishable by death,
the court shall, upon motion of either party, permit the parties,
commencing with the people, to examine the prospective jurors individ-
ually and outside the presence of the other prospective jurors regarding
their qualifications to serve as jurors. Each party shall be afforded a
fair opportunity to question a prospective juror as to any unexplored
matter affecting his or her qualifications, including without limitation
the possibility of racial bias on the part of the prospective juror, but
the court shall not permit questioning that is repetitious or irrel-
evant, or questions as to a prospective juror's knowledge of rules of
law. If necessary to prevent improper questioning as to any matter, the
court shall personally examine the prospective jurors as to that matter.
The scope of such examination shall be within the discretion of the
court. After the parties have concluded their examinations of a prospec-
tive juror, the court may ask such further questions as it deems proper
regarding the qualifications of the prospective juror.
2. The proceedings provided for in this section shall be conducted on
the record; provided, however, that upon motion of either party, and for
good cause shown, the court may direct that all or a portion of the
record of such proceedings be sealed.
§ 15. Paragraph (f) of subdivision 1 of section 270.20 of the criminal
procedure law, as amended by chapter 367 of the laws of 1974, is amended
to read as follows:
(f) [There is a possibility that the ] The crime charged [is ] may be
punishable by death and the prospective juror entertains such conscien-
tious opinions either against or in favor of [the death penalty ] such
punishment as to preclude [him ] such juror from rendering an impartial
verdict or from properly exercising the discretion conferred upon such
juror by law in the determination of a sentence pursuant to section
400.27.
§ 16. Section 270.30 of the criminal procedure law, as amended by
chapter 100 of the laws of 1992, is amended to read as follows:
§ 270.30 Trial jury; alternate jurors.
1. Immediately after the last trial juror is sworn, the court may in
its discretion direct the selection of one or more, but not more than
six additional jurors to be known as "alternate jurors", except that, in
a prosecution under section 125.27 of the penal law, the court may, in
its discretion, direct the selection of as many alternate jurors as the
court determines to be appropriate. Alternate jurors must be drawn in
the same manner, must have the same qualifications, must be subject to
the same examination and challenges for cause and must take the same
oath as the regular jurors. After the jury has retired to deliberate,
the court must either (1) with the consent of the defendant and the
people, discharge the alternate jurors or (2) direct the alternate
jurors not to discuss the case and must further direct that they be kept
separate and apart from the regular jurors.
2. In any prosecution in which the people seek a sentence of death,
the court shall not discharge the alternate jurors when the jury retires
to deliberate upon its verdict and the alternate jurors, in the
discretion of the court, may be continuously kept together under the
supervision of an appropriate public servant or servants until such time
as the jury returns its verdict. If the jury returns a verdict of guilty
to a charge for which the death penalty may be imposed, the alternate
jurors shall not be discharged and shall remain available for service
during any separate sentencing proceeding which may be conducted pursu-
ant to section 400.27.
§ 17. The criminal procedure law is amended by adding a new section
270.55 to read as follows:
§ 270.55 Sentencing jury in capital cases.
During the period extending from when a jury returns a verdict of
guilty upon a count of an indictment charging murder in the first degree
as defined by section 125.27 of the penal law until a jury retires to
deliberate on the sentence pursuant to section 400.27, the court may in
its discretion either permit the jurors to separate during recesses and
adjournments or direct that they be continuously kept together during
such periods under the supervision of an appropriate public servant or
servants. In the latter case, such public servant or servants may not
speak to or communicate with any juror concerning any subject connected
with the sentencing proceeding nor permit any other person to do so, and
must return the jury to the court room at the next designated session.
Unless otherwise provided for in section 400.27, the provisions of
sections 270.35, 270.40 and 270.50 shall govern the sentencing proceed-
ing provided for in section 400.27.
§ 18. The opening paragraph of subdivision 3 of section 300.40 of the
criminal procedure law is amended to read as follows:
If a multiple count indictment contains concurrent counts of murder in
the first degree, the court must submit every such count. In any other
case, if a multiple count indictment contains concurrent counts only,
the court must submit at least one such count, and may submit more than
one as follows:
§ 19. Section 310.80 of the criminal procedure law is amended to read
as follows:
§ 310.80 Recording and checking of verdict and polling of jury.
After a verdict has been rendered, it must be recorded on the minutes
and read to the jury, and the jurors must be collectively asked whether
such is their verdict. Even though no juror makes any declaration in the
negative, the jury must, if either party makes such an application, be
polled and each juror separately asked whether the verdict announced by
the foreman is in all respects his verdict. If upon either the collec-
tive or the separate inquiry any juror answers in the negative, the
court must refuse to accept the verdict and must direct the jury to
resume its deliberation. If no disagreement is expressed, the jury must
be discharged from the case, except as otherwise provided in [sections
125.30 and 125.35 of the penal law ] section 400.27.
§ 20. The criminal procedure law is amended by adding a new section
400.27 to read as follows:
§ 400.27 Procedure for determining sentence upon conviction for the
offense of murder in the first degree.
1. Upon the conviction of a defendant for the offense of murder in the
first degree as defined by section 125.27 of the penal law, the court
shall promptly conduct a separate sentencing proceeding to determine
whether the defendant shall be sentenced to death or to life imprison-
ment 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 impri-
sonment for the class A-I felony of murder in the first degree other
than a sentence of life imprisonment without parole.
2. The separate sentencing proceeding provided for by this section
shall be conducted before the court sitting with the jury that found the
defendant guilty. The court may discharge the jury and impanel another
jury only in extraordinary circumstances and upon a showing of good
cause, which may include, but is not limited to, a finding of prejudice
to either party. If a new jury is impaneled, it shall be formed in
accordance with the procedures in article two hundred seventy of this
chapter. Before proceeding with the jury that found the defendant guil-
ty, the court shall determine whether any juror has a state of mind that
is likely to preclude the juror from rendering an impartial decision
based upon the evidence adduced during the proceeding. In making such
determination the court shall personally examine each juror individually
outside the presence of the other jurors. The scope of the examination
shall be within the discretion of the court and may include questions
supplied by the parties as the court deems proper. The proceedings
provided for in this subdivision shall be conducted on the record;
provided, however, that upon motion of either party, and for good cause
shown, the court may direct that all or a portion of the record of such
proceedings be sealed. In the event the court determines that a juror
has such a state of mind, the court shall discharge the juror and
replace the juror with the alternate juror whose name was first drawn
and called. If no alternate juror is available, the court must discharge
the jury and impanel another jury in accordance with article two hundred
seventy of this chapter.
3. For the purposes of a proceeding under this section each subpara-
graph of paragraph (a) of subdivision one of section 125.27 of the penal
law shall be deemed to define an aggravating factor. Except as provided
in subdivision seven of this section, at a sentencing proceeding pursu-
ant to this section the only aggravating factors that the jury may
consider are those proven beyond a reasonable doubt at trial, and no
other aggravating factors may be considered. Whether a sentencing
proceeding is conducted before the jury that found the defendant guilty
or before another jury, the aggravating factor or factors proved at
trial shall be deemed established beyond a reasonable doubt at the sepa-
rate sentencing proceeding and shall not be relitigated. Where the jury
is to determine sentences for concurrent counts of murder in the first
degree, the aggravating factor included in each count shall be deemed to
be an aggravating factor for the purpose of the jury's consideration in
determining the sentence to be imposed on each such count.
4. The court on its own motion or on motion of either party, in the
interest of justice or to avoid prejudice to either party, may delay the
commencement of the separate sentencing proceeding.
5. Notwithstanding the provisions of article three hundred ninety of
this chapter, where a defendant is found guilty of murder in the first
degree, no presentence investigation shall be conducted; provided,
however, that where the court is to impose a sentence of imprisonment, a
presentence investigation shall be conducted and a presentence report
shall be prepared in accordance with the provisions of such article.
6. At the sentencing proceeding the people shall not relitigate the
existence of aggravating factors proved at the trial or otherwise pres-
ent evidence, except, subject to the rules governing admission of
evidence in the trial of a criminal action, in rebuttal of the defend-
ant's evidence. However, when the sentencing proceeding is conducted
before a newly impaneled jury, the people may present evidence to the
extent reasonably necessary to inform the jury of the nature and circum-
stances of the count or counts of murder in the first degree for which
the defendant was convicted in sufficient detail to permit the jury to
determine the weight to be accorded the aggravating factor or factors
established at trial. Whenever the people present such evidence, the
court must instruct the jury in its charge that any facts elicited by
the people that are not essential to the verdict of guilty on such count
or counts shall not be deemed established beyond a reasonable doubt.
Subject to the rules governing the admission of evidence in the trial of
a criminal action, the defendant may present any evidence relevant to
any mitigating factor set forth in subdivision nine of this section;
provided, however, the defendant shall not be precluded from the admis-
sion of reliable hearsay evidence. The burden of establishing any of
the mitigating factors set forth in subdivision nine of this section
shall be on the defendant, and must be proven by a preponderance of the
evidence. The people shall not offer evidence or argument relating to
any mitigating factor except in rebuttal of evidence offered by the
defendant.
7. (a) The people may present evidence at the sentencing proceeding,
to the extent such evidence could not have been presented by the people
at trial, to prove that the crime of murder in the first degree for
which the defendant was convicted was committed in furtherance of and
after substantial planning and premeditation to commit an act of terror-
ism. For purposes of this section, "terrorism" means activities that
involve a violent act or acts dangerous to human life that are in
violation of the criminal laws of this state and are intended to intim-
idate or coerce a civilian population, influence the policy of a govern-
ment by intimidation or coercion, or affect the conduct of a government
by murder, assassination or kidnapping. The defendant's commission of
the crime of murder in the first degree through an act of terrorism,
shall, if proven at the sentencing proceeding, constitute an aggravating
factor.
(b) The people may present evidence at the sentencing proceeding to
prove that in the ten year period prior to the commission of the crime
of murder in the first degree for which the defendant was convicted, the
defendant has previously been convicted of two or more offenses commit-
ted on different occasions; provided, that each such offense shall be
either (i) a class A felony offense other than one defined in article
two hundred twenty of the penal law, a class B violent felony offense
specified in paragraph (a) of subdivision one of section 70.02 of the
penal law, or a felony offense under the penal law a necessary element
of which involves either the use or attempted use or threatened use of a
deadly weapon or the intentional infliction of or the attempted inten-
tional infliction of serious physical injury or death, or (ii) an
offense under the laws of another state or of the United States punisha-
ble by a term of imprisonment of more than one year a necessary element
of which involves either the use or attempted use or threatened use of a
deadly weapon or the intentional infliction of or the attempted inten-
tional infliction of serious physical injury or death. For the purpose
of this paragraph, the term "deadly weapon" shall have the meaning set
forth in subdivision twelve of section 10.00 of the penal law. In calcu-
lating the ten year period under this paragraph, any period of time
during which the defendant was incarcerated for any reason between the
time of commission of any of the prior felony offenses and the time of
commission of the crime of murder in the first degree shall be excluded
and such ten year period shall be extended by a period or periods equal
to the time served under such incarceration. The defendant's conviction
of two or more such offenses shall, if proven at the sentencing proceed-
ing, constitute an aggravating factor.
(c) In order to be deemed established, an aggravating factor set forth
in this subdivision must be proven by the people beyond a reasonable
doubt and the jury must unanimously find such factor to have been so
proven. The defendant may present evidence relating to an aggravating
factor defined in this subdivision and either party may offer evidence
in rebuttal. Any evidence presented by either party relating to such
factor shall be subject to the rules governing admission of evidence in
the trial of a criminal action.
(d) Whenever the people intend to offer evidence of an aggravating
factor set forth in this subdivision, the people must within a reason-
able time prior to trial file with the court and serve upon the defend-
ant a notice of intention to offer such evidence. Whenever the people
intend to offer evidence of the aggravating factor set forth in para-
graph (b) of this subdivision, the people shall file with the notice of
intention to offer such evidence a statement setting forth the date and
place of each of the alleged offenses in paragraph (b) of this subdivi-
sion. The provisions of section 400.15 of this chapter, except for
subdivisions one and two thereof, shall be followed.
8. Consistent with the provisions of this section, the people and the
defendant shall be given fair opportunity to rebut any evidence received
at the separate sentencing proceeding.
9. Mitigating factors shall include the following:
(a) The defendant has no significant history of prior criminal
convictions involving the use of violence against another person;
(b) The defendant was mentally retarded at the time of the crime, or
the defendant's mental capacity was impaired or his ability to conform
his conduct to the requirements of law was impaired but not so impaired
in either case as to constitute a defense to prosecution;
(c) The defendant was under duress or under the domination of another
person, although not such duress or domination as to constitute a
defense to prosecution;
(d) The defendant was criminally liable for the present offense of
murder committed by another, but his participation in the offense was
relatively minor although not so minor as to constitute a defense to
prosecution;
(e) The murder was committed while the defendant was mentally or
emotionally disturbed or under the influence of alcohol or any drug,
although not to such an extent as to constitute a defense to prose-
cution; or
(f) Any other circumstance concerning the crime, the defendant's state
of mind or condition at the time of the crime, or the defendant's char-
acter, background or record that would be relevant to mitigation or
punishment for the crime.
10. At the conclusion of all the evidence, the people and the defend-
ant 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 the jury should
consider whether or not a sentence of death should be imposed and wheth-
er 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 twenty 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 deliberations of the jury.
11. (a) The jury may not direct imposition of a sentence of death
unless it unanimously finds beyond a reasonable doubt that the aggravat-
ing factor or factors substantially outweigh the mitigating factor or
factors established, if any, and unanimously determines that the penalty
of death should be imposed. Any member or members of the jury who find a
mitigating factor to have been proven by the defendant by a preponder-
ance of the evidence may consider such factor established regardless of
the number of jurors who concur that the factor has been established.
(b) If the jury directs imposition of either a sentence of death or
life imprisonment without parole, it shall specify on the record those
mitigating and aggravating factors considered and those mitigating
factors established by the defendant, if any.
(c) With respect to a count or concurrent counts of murder in the
first degree, the court may direct the jury to cease deliberation with
respect to the sentence or sentences to be imposed if the jury has
deliberated for an extensive period of time without reaching unanimous
agreement on the sentence or sentences to be imposed and the court is
satisfied that any such agreement is unlikely within a reasonable time.
The provisions of this paragraph shall apply with respect to consecutive
counts of murder in the first degree. In the event the jury is unable to
reach unanimous agreement, the court must sentence the defendant in
accordance with subdivisions one through three of section 70.00 of the
penal law with respect to any count or counts of murder in the first
degree upon which the jury failed to reach unanimous agreement as to the
sentence to be imposed.
(d) If the jury unanimously determines that a sentence of death should
be imposed, the court must thereupon impose a sentence of death. There-
after, however, the court may, upon written motion of the defendant, set
aside the sentence of death upon any of the grounds set forth in section
330.30. The procedures set forth in sections 330.40 and 330.50, as
applied to separate sentencing proceedings under this section, shall
govern the motion and the court upon granting the motion shall, except
as may otherwise be required by subdivision one of section 330.50,
direct a new sentencing proceeding pursuant to this section. Upon
granting the motion upon any of the grounds set forth in section 330.30
and setting aside the sentence, the court must afford the people a
reasonable period of time, which shall not be less than ten days, to
determine whether to take an appeal from the order setting aside the
sentence of death. The taking of an appeal by the people stays the
effectiveness of that portion of the court's order that directs a new
sentencing proceeding.
(e) If the jury unanimously determines that a sentence of life impri-
sonment without parole should be imposed the court must thereupon impose
a sentence of life imprisonment without parole.
(f) Where a sentence has been unanimously determined by the jury it
must be recorded on the minutes and read to the jury, and the jurors
must be collectively asked whether such is their sentence. Even though
no juror makes any declaration in the negative, the jury must, if either
party makes such an application, be polled and each juror separately
asked whether the sentence announced by the foreman is in all respects
his or her sentence. If, upon either the collective or the separate
inquiry, any juror answers in the negative, the court must refuse to
accept the sentence and must direct the jury to resume its deliberation.
If no disagreement is expressed, the jury must be discharged from the
case.
12. (a) Upon the conviction of a defendant for the offense of murder
in the first degree as defined in section 125.27 of the penal law, the
court shall, upon oral or written motion of the defendant based upon a
showing that there is reasonable cause to believe that the defendant is
mentally retarded, promptly conduct a hearing without a jury to deter-
mine whether the defendant is mentally retarded. Upon the consent of
both parties, such a hearing, or a portion thereof, may be conducted by
the court contemporaneously with the separate sentencing proceeding in
the presence of the sentencing jury, which in no event shall be the
trier of fact with respect to the hearing. At such hearing the defendant
has the burden of proof by a preponderance of the evidence that he or
she is mentally retarded. The court shall defer rendering any finding
pursuant to this subdivision as to whether the defendant is mentally
retarded until a sentence is imposed pursuant to this section.
(b) In the event the defendant is sentenced pursuant to this section
to life imprisonment without parole or to a term of imprisonment for the
class A-I felony of murder in the first degree other than a sentence of
life imprisonment without parole, the court shall not render a finding
with respect to whether the defendant is mentally retarded.
(c) In the event the defendant is sentenced pursuant to this section
to death, the court shall thereupon render a finding with respect to
whether the defendant is mentally retarded. If the court finds the
defendant is mentally retarded, the court shall set aside the sentence
of death and sentence the defendant either to life imprisonment without
parole or to a term of imprisonment for the class A-I felony of murder
in the first degree other than a sentence of life imprisonment without
parole. If the court finds the defendant is not mentally retarded, then
such sentence of death shall not be set aside pursuant to this subdivi-
sion.
(d) In the event that a defendant is convicted of murder in the first
degree pursuant to subparagraph (iii) of paragraph (a) of subdivision
one of section 125.27 of the penal law, and the killing occurred while
the defendant was confined or under custody in a state correctional
facility or local correctional institution, and a sentence of death is
imposed, such sentence may not be set aside pursuant to this subdivision
upon the ground that the defendant is mentally retarded. Nothing in
this paragraph or paragraph (a) of this subdivision shall preclude a
defendant from presenting mitigating evidence of mental retardation at
the separate sentencing proceeding.
(e) The foregoing provisions of this subdivision notwithstanding, at a
reasonable time prior to the commencement of trial the defendant may,
upon a written motion alleging reasonable cause to believe the defendant
is mentally retarded, apply for an order directing that a mental retar-
dation hearing be conducted prior to trial. If, upon review of the
defendant's motion and any response thereto, the court finds reasonable
cause to believe the defendant is mentally retarded, it shall promptly
conduct a hearing without a jury to determine whether the defendant is
mentally retarded. In the event the court finds after the hearing that
the defendant is not mentally retarded, the court must, prior to
commencement of trial, enter an order so stating, but nothing in this
paragraph shall preclude a defendant from presenting mitigating evidence
of mental retardation at a separate sentencing proceeding. In the event
the court finds after the hearing that the defendant, based upon a
preponderance of the evidence, is mentally retarded, the court must,
prior to commencement of trial, enter an order so stating. Unless the
order is reversed on an appeal by the people or unless the provisions of
paragraph (d) of this subdivision apply, a separate sentencing proceed-
ing under this section shall not be conducted if the defendant is there-
after convicted of murder in the first degree. In the event a separate
sentencing proceeding is not conducted, the court, upon conviction of a
defendant for the crime of murder in the first degree, shall sentence
the 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. Whenever a
mental retardation hearing is held and a finding is rendered pursuant to
this paragraph, the court may not conduct a hearing pursuant to para-
graph (a) of this subdivision. For purposes of this subdivision and
paragraph (b) of subdivision nine of this section, "mental retardation"
means significantly subaverage general intellectual functioning existing
concurrently with deficits in adaptive behavior which were manifested
before the age of eighteen.
(f) In the event the court enters an order pursuant to paragraph (e)
of this subdivision finding that the defendant is mentally retarded,
the people may appeal as of right from the order pursuant to subdivision
ten of section 450.20 of this chapter. Upon entering such an order the
court must afford the people a reasonable period of time, which shall
not be less than ten days, to determine whether to take an appeal from
the order finding that the defendant is mentally retarded. The taking of
an appeal by the people stays the effectiveness of the court's order and
any order fixing a date for trial. Within six months of the effective
date of this subdivision, the court of appeals shall adopt rules to
ensure that appeals pursuant to this paragraph are expeditiously
perfected, reviewed and determined so that pretrial delays are mini-
mized. Prior to adoption of the rules, the court of appeals shall issue
proposed rules and receive written comments thereon from interested
parties.
13. (a) As used in this subdivision, the term "psychiatric evidence"
means evidence of mental disease, defect or condition in connection with
either a mitigating factor defined in this section or a mental retarda-
tion hearing pursuant to this section to be offered by a psychiatrist,
psychologist or other person who has received training, or education, or
has experience relating to the identification, diagnosis, treatment or
evaluation of mental disease, mental defect or mental condition.
(b) When either party intends to offer psychiatric evidence, the party
must, within a reasonable time prior to trial, serve upon the other
party and file with the court a written notice of intention to present
psychiatric evidence. The notice shall include a brief but detailed
statement specifying the witness, nature and type of psychiatric
evidence sought to be introduced. If either party fails to serve and
file written notice, no psychiatric evidence is admissible unless the
party failing to file thereafter serves and files such notice and the
court affords the other party an adjournment for a reasonable period.
If a party fails to give timely notice, the court in its discretion may
impose upon offending counsel a reasonable monetary sanction for an
intentional failure but may not in any event preclude the psychiatric
evidence. In the event a monetary sanction is imposed, the offending
counsel shall be personally liable therefor, and shall not receive
reimbursement of any kind from any source in order to pay the cost of
such monetary sanction. Nothing contained herein shall preclude the
court from entering an order directing a party to provide timely notice.
(c) When a defendant serves notice pursuant to this subdivision, the
district attorney may make application, upon notice to the defendant,
for an order directing that the defendant submit to an examination by a
psychiatrist, licensed psychologist, or licensed psychiatric social
worker designated by the district attorney, for the purpose of rebutting
evidence offered by the defendant with respect to a mental disease,
defect, or condition in connection with either a mitigating factor
defined in this section, including whether the defendant was acting
under duress, was mentally or emotionally disturbed or mentally
retarded, or was under the influence of alcohol or any drug. If the
application is granted, the district attorney shall schedule a time and
place for the examination, which shall be recorded. Counsel for the
people and the defendant shall have the right to be present at the exam-
ination. A transcript of the examination shall be made available to the
defendant and the district attorney promptly after its conclusion. The
district attorney shall promptly serve on the defendant a written copy
of the findings and evaluation of the examiner. If the court finds that
the defendant has wilfully refused to cooperate fully in an examination
pursuant to this paragraph, it shall, upon request of the district
attorney, instruct the jury that the defendant did not submit to or
cooperate fully in such psychiatric examination. When a defendant is
subjected to an examination pursuant to an order issued in accordance
with this subdivision, any statement made by the defendant for the
purpose of the examination shall be inadmissible in evidence against him
in any criminal action or proceeding on any issue other than that of
whether a mitigating factor has been established or whether the defend-
ant is mentally retarded, but such statement is admissible upon such an
issue whether or not it would otherwise be deemed a privileged communi-
cation.
14. (a) At a reasonable time prior to the sentencing proceeding or a
mental retardation hearing:
(i) the prosecutor shall, unless previously disclosed and subject to a
protective order, make available to the defendant the statements and
information specified in subdivision one of section 240.45 and make
available for inspection, photographing, copying or testing the property
specified in subdivision one of section 240.20; and
(ii) the defendant shall, unless previously disclosed and subject to a
protective order, make available to the prosecution the statements and
information specified in subdivision two of section 240.45 and make
available for inspection, photographing, copying or testing, subject to
constitutional limitations, the reports, documents and other property
specified in subdivision one of section 240.30.
(b) Where a party refuses to make disclosure pursuant to this section,
the provisions of section 240.35, subdivision one of section 240.40 and
section 240.50 shall apply.
(c) If, after complying with the provisions of this section or an
order pursuant thereto, a party finds either before or during a sentenc-
ing proceeding or mental retardation hearing, additional material
subject to discovery or covered by court order, the party shall promptly
make disclosure or apply for a protective order.
(d) If the court finds that a party has failed to comply with any of
the provisions of this section, the court may enter any of the orders
specified in subdivision one of section 240.70.
15. The court of appeals shall formulate and adopt rules for the
development of forms for use by the jury in recording its findings and
determinations of sentence.
§ 21. Subdivision 1 of section 440.20 of the criminal procedure law is
amended to read as follows:
1. At any time after the entry of a judgment, the court in which the
judgment was entered may, upon motion of the defendant, set aside the
sentence upon the ground that it was unauthorized, illegally imposed or
otherwise invalid as a matter of law. Where the judgment includes a
sentence of death, the court may also set aside the sentence upon any of
the grounds set forth in paragraph (b), (c), (f), (g) or (h) of subdivi-
sion one of section 440.10 as applied to a separate sentencing proceed-
ing under section 400.27, provided, however, that to the extent the
ground or grounds asserted include one or more of the aforesaid para-
graphs of subdivision one of section 440.10, the court must also apply
subdivisions two and three of section 440.10, other than paragraph (d)
of subdivision two of such section, in determining the motion. In the
event the court enters an order granting a motion to set aside a
sentence of death under this section, the court must either direct a new
sentencing proceeding in accordance with section 400.27 or, to the
extent that the defendant cannot be resentenced to death consistent with
the laws of this state or the constitution of this state or of the
United States, resentence the 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. Upon granting the motion upon any of the grounds set
forth in the aforesaid paragraphs of subdivision one of section 440.10
and setting aside the sentence, the court must afford the people a
reasonable period of time, which shall not be less than ten days, to
determine whether to take an appeal from the order setting aside the
sentence of death. The taking of an appeal by the people stays the
effectiveness of that portion of the court's order that directs a new
sentencing proceeding.
§ 22. Section 450.20 of the criminal procedure law is amended by
adding a new subdivision 10 to read as follows:
10. An order, entered pursuant to paragraph (e) of subdivision twelve
of section 400.27, finding that the defendant is mentally retarded.
§ 23. Subdivision 3 of section 450.70 of the criminal procedure law is
amended and a new subdivision 4 is added to read as follows:
3. An order denying a motion, made pursuant to section 440.20, to set
aside a sentence of death[. ];
4. An order denying a motion, made pursuant to paragraph (d) of subdi-
vision eleven of section 400.27, to set aside a sentence of death.
§ 24. Section 450.80 of the criminal procedure law is amended to read
as follows:
§ 450.80 Appeal by people directly to court of appeals; in what cases
authorized.
An appeal directly to the court of appeals may be taken as of right by
the people from the following orders of a superior court:
1. An order, entered pursuant to section 440.10, vacating a judgment
including a sentence of death;
2. An order, entered pursuant to section 440.20, setting aside a
sentence of death[. ];
3. An order, entered pursuant to paragraph (d) of subdivision eleven
of section 400.27, setting aside a sentence of death;
4. An order, entered pursuant to subdivision twelve of section 400.27,
setting aside a sentence of death.
§ 25. Subdivision 2 of section 460.40 of the criminal procedure law,
as added by chapter 209 of the laws of 1990, is amended to read as
follows:
2. The taking of an appeal by the people to an intermediate appellate
court pursuant to subdivision one-a of section 450.20, from an order
reducing a count or counts of an indictment or dismissing an indictment
and directing the filing of a prosecutor's information, stays the effect
of such order. In addition, the taking of an appeal by the people to an
intermediate appellate court pursuant to subdivision one of section
450.20, from an order dismissing a count or counts of an indictment
charging murder in the first degree, stays the effect of such order.
§ 26. Section 460.40 of the criminal procedure law is amended by
adding a new subdivision 3 to read as follows:
3. Within six months of the effective date of this subdivision, the
court of appeals shall adopt rules to ensure that a defendant is granted
a stay of the execution of any death warrant issued pursuant to article
twenty-two-B of the correction law to allow the defendant an opportunity
to prepare and timely file an initial motion pursuant to section 440.10
or 440.20 seeking to set aside a sentence of death or vacate a judgment
including a sentence of death and to allow the motion and any appeal
from the denial thereof to be timely determined. The rules shall provide
that in the event a defendant seeks to file any subsequent motion with
respect to the judgment or sentence following a final determination of
the defendant's initial motion pursuant to section 440.10 or 440.20, a
motion for a stay of the execution of the death warrant may only be
granted for good cause shown. The people and the defendant shall have a
right to appeal to the court of appeals from orders granting or denying
such stay motions and any rules adopted pursuant to this subdivision
shall provide that the court of appeals may affirm such orders, reverse
them or modify them upon such terms as the court deems appropriate and
shall provide for the expeditious perfection and determination of such
appeals. Prior to adoption of the rules, the court of appeals shall
issue proposed rules and receive written comments thereon from inter-
ested parties.
§ 27. Section 470.30 of the criminal procedure law is amended to read
as follows:
§ 470.30 Determination by court of appeals of appeals taken directly
thereto from judgments and orders of criminal courts.
1. Wherever appropriate, the rules set forth in sections 470.15 and
470.20, governing the consideration and determination by intermediate
appellate courts of appeals thereto from judgments and orders of crimi-
nal courts, and prescribing their scope of review and the corrective
action to be taken by them upon reversal or modification, apply equally
to the consideration and determination by the court of appeals of
appeals taken directly thereto, pursuant to sections 450.70 and 450.80,
from judgments and orders of superior criminal courts[; except that the
court of appeals may not as a matter of discretion in the interest of
justice set aside, reduce or change a sentence of death as being unduly
harsh or severe.
2. Upon affirming a judgment including a sentence of death, the court
of appeals, by an order signed by a majority of the judges thereof, must
fix the week during which such sentence of death is to be executed, and
the sentence must be executed according to law. The entry of an order
granting a motion for reargument of such an appeal, however, stays the
execution of the judgment. If the judgment is thereafter reaffirmed a
new execution date must be fixed by the court ].
2. Whenever a sentence of death is imposed, the judgment and sentence
shall be reviewed on the record by the court of appeals. Review by the
court of appeals pursuant to subdivision one of section 450.70 may not
be waived.
3. With regard to the sentence, the court shall, in addition to exer-
cising the powers and scope of review granted under subdivision one of
this section, determine:
(a) whether the sentence of death was imposed under the influence of
passion, prejudice, or any other arbitrary or legally impermissible
factor including whether the imposition of the verdict or sentence was
based upon the race of the defendant or a victim of the crime for which
the defendant was convicted;
(b) whether the sentence of death is excessive or disproportionate to
the penalty imposed in similar cases considering both the crime and the
defendant. In conducting such review the court, upon request of the
defendant, in addition to any other determination, shall review whether
the sentence of death is excessive or disproportionate to the penalty
imposed in similar cases by virtue of the race of the defendant or a
victim of the crime for which the defendant was convicted; and
(c) whether the decision to impose the sentence of death was against
the weight of the evidence.
4. The court shall include in its decision: (a) the aggravating and
mitigating factors established in the record on appeal; and (b) those
similar cases it took into consideration.
5. In addition to exercising any other corrective action pursuant to
subdivision one of this section, the court, with regard to review of a
sentence of death, shall be authorized to:
(a) affirm the sentence of death; or
(b) set the sentence aside and remand the case for resentencing pursu-
ant to the procedures set forth in section 400.27 for a determination as
to whether the defendant shall be sentenced to death, life imprisonment
without parole or to a term of imprisonment for the class A-I felony of
murder in the first degree other than a sentence of life imprisonment
without parole; or
(c) set the sentence aside and remand the case for resentencing by the
court for a determination as to whether the defendant shall be sentenced
to life imprisonment without parole or to a term of imprisonment for the
class A-I felony of murder in the first degree other than a sentence of
life imprisonment without parole.
§ 28. Paragraph (b) of subdivision 8 of section 700.05 of the criminal
procedure law, as amended by chapter 490 of the laws of 1992, is amended
to read as follows:
(b) Any of the following felonies: assault in the second degree as
defined in section 120.05 of the penal law, assault in the first degree
as defined in section 120.10 of the penal law, reckless endangerment in
the first degree as defined in section 120.25 of the penal law, promot-
ing a suicide attempt as defined in section 120.30 of the penal law,
criminally negligent homicide as defined in section 125.10 of the penal
law, manslaughter in the second degree as defined in section 125.15 of
the penal law, manslaughter in the first degree as defined in section
125.20 of the penal law, murder in the second degree as defined in
section 125.25 of the penal law, murder in the first degree as defined
in section 125.27 of the penal law, abortion in the second degree as
defined in section 125.40 of the penal law, abortion in the first degree
as defined in section 125.45 of the penal law, rape in the third degree
as defined in section 130.25 of the penal law, rape in the second degree
as defined in section 130.30 of the penal law, rape in the first degree
as defined in section 130.35 of the penal law, sodomy in the third
degree as defined in section 130.40 of the penal law, sodomy in the
second degree as defined in section 130.45 of the penal law, sodomy in
the first degree as defined in section 130.50 of the penal law, sexual
abuse in the first degree as defined in section 130.65 of the penal law,
unlawful imprisonment in the first degree as defined in section 135.10
of the penal law, kidnapping in the second degree as defined in section
135.20 of the penal law, kidnapping in the first degree as defined in
section 135.25 of the penal law, custodial interference in the first
degree as defined in section 135.50 of the penal law, coercion in the
first degree as defined in section 135.65 of the penal law, criminal
trespass in the first degree as defined in section 140.17 of the penal
law, burglary in the third degree as defined in section 140.20 of the
penal law, burglary in the second degree as defined in section 140.25 of
the penal law, burglary in the first degree as defined in section 140.30
of the penal law, criminal mischief in the third degree as defined in
section 145.05 of the penal law, criminal mischief in the second degree
as defined in section 145.10 of the penal law, criminal mischief in the
first degree as defined in section 145.12 of the penal law, criminal
tampering in the first degree as defined in section 145.20 of the penal
law, arson in the fourth degree as defined in section 150.05 of the
penal law, arson in the third degree as defined in section 150.10 of the
penal law, arson in the second degree as defined in section 150.15 of
the penal law, arson in the first degree as defined in section 150.20 of
the penal law, grand larceny in the fourth degree as defined in section
155.30 of the penal law, grand larceny in the third degree as defined in
section 155.35 of the penal law, grand larceny in the second degree as
defined in section 155.40 of the penal law, grand larceny in the first
degree as defined in section 155.42 of the penal law, robbery in the
third degree as defined in section 160.05 of the penal law, robbery in
the second degree as defined in section 160.10 of the penal law, robbery
in the first degree as defined in section 160.15 of the penal law,
unlawful use of secret scientific material as defined in section 165.07
of the penal law, criminal possession of stolen property in the fourth
degree as defined in section 165.45 of the penal law, criminal
possession of stolen property in the third degree as defined in section
165.50 of the penal law, criminal possession of stolen property in the
second degree as defined by section 165.52 of the penal law, criminal
possession of stolen property in the first degree as defined by section
165.54 of the penal law, trademark counterfeiting in the first degree as
defined in section 165.73 of the penal law, forgery in the second degree
as defined in section 170.10 of the penal law, forgery in the first
degree as defined in section 170.15 of the penal law, criminal
possession of a forged instrument in the second degree as defined in
section 170.25 of the penal law, criminal possession of a forged instru-
ment in the first degree as defined in section 170.30 of the penal law,
criminal possession of forgery devices as defined in section 170.40 of
the penal law, falsifying business records in the first degree as
defined in section 175.10 of the penal law, tampering with public
records in the first degree as defined in section 175.25 of the penal
law, offering a false instrument for filing in the first degree as
defined in section 175.35 of the penal law, issuing a false certificate
as defined in section 175.40 of the penal law, escape in the second
degree as defined in section 205.10 of the penal law, escape in the
first degree as defined in section 205.15 of the penal law, absconding
from [work ] temporary release in the first degree as defined in section
205.17 of the penal law, promoting prison contraband in the first degree
as defined in section 205.25 of the penal law, hindering prosecution in
the second degree as defined in section 205.60 of the penal law, hinder-
ing prosecution in the first degree as defined in section 205.65 of the
penal law, criminal possession of a weapon in the third degree as
defined in subdivisions two, three, four and five of section 265.02 of
the penal law, criminal possession of a weapon in the second degree as
defined in section 265.03 of the penal law, criminal possession of a
dangerous weapon in the first degree as defined in section 265.04 of the
penal law, manufacture, transport, disposition and defacement of weapons
and dangerous instruments and appliances defined as felonies in subdivi-
sions one, two, and three of section 265.10 of the penal law, sections
265.11, 265.12 and 265.13 of the penal law, or prohibited use of weapons
as defined in subdivision two of section 265.35 of the penal law, relat-
ing to firearms and other dangerous weapons;
§ 29. The judiciary law is amended by adding a new section 35-b to
read as follows:
§ 35-b. Assignment of counsel and related services in criminal actions
in which a death sentence may be imposed. 1. Notwithstanding any other
provision of law to the contrary, in every criminal action in which a
defendant is charged with murder in the first degree as defined in
section 125.27 of the penal law, or in any criminal action in which a
defendant is charged with murder in the second degree as defined in
section 125.25 of the penal law and the district attorney confirms upon
inquiry by the court that the district attorney is undertaking an inves-
tigation to determine whether the defendant can or should be charged
with murder in the first degree as defined in section 125.27 of the
penal law and the court determines that there is a reasonable likelihood
the defendant will be so charged, if the defendant is or becomes finan-
cially unable to obtain adequate representation or investigative, expert
or other reasonably necessary services at any time either (a) prior to
judgment, or (b) after the entry of a judgment imposing a sentence of
death but before final resolution of a direct appeal pursuant to subdi-
vision one of section 450.70 of the criminal procedure law and of an
appeal pursuant to subdivision two or three of section 450.70 of the
criminal procedure law from an order denying an initial post judgment
motion pursuant to section 440.10 or 440.20 of the criminal procedure
law, the defendant shall be entitled to the appointment of counsel and
investigative, expert and such other reasonably necessary services in
accordance with the provisions of this section. Prior to the appoint-
ment of counsel pursuant to this section, the court shall determine
whether the defendant is or has become financially unable to obtain
adequate representation. In the event such defendant seeks to file any
subsequent motion, he or she shall not be eligible for the appointment
of counsel pursuant to this section.
2. The appointment of counsel shall be made by the trial court if made
prior to the entry of a judgment including a sentence of death or by the
court of appeals, except as otherwise provided in this subdivision, if
made after the entry of a judgment including a sentence of death. With
respect to counsel at trial and at a separate sentencing proceeding, the
court shall appoint two attorneys, one to be designated "lead" counsel
and the other to be designated "associate" counsel. The appointment of
any such counsel shall be made from a list of four proposed teams of
qualified lead and associate counsel provided to the appropriate court
by the capital defender office. Alternatively, the court may, with the
consent of the capital defender office, appoint the office to represent
the defendant. At least one of the proposed teams of qualified lead and
associate counsel on any list submitted pursuant to this subdivision
shall regularly practice within the judicial department in which the
defendant has been charged. With respect to a jurisdiction in which the
capital defender office has entered into an agreement to provide repre-
sentation with a legal aid society, office of public defender or other
not-for-profit organization providing criminal defense services, the
capital defender office may designate the society, public defender or
organization for appointment as counsel pursuant to this section and
need not submit a list of four proposed teams of qualified lead and
associate counsel for appointment. In the event that counsel is not
appointed pursuant to the foregoing provisions of this subdivision, the
court may appoint any attorney whose name appears on a roster estab-
lished pursuant to subdivision five of this section for appointment as
lead or associate counsel. In the event no such attorney is available,
the court may appoint an attorney eligible for appointment pursuant to
article eighteen-B of the county law who is competent to represent
defendants charged with murder and other serious felonies. With respect
to an appeal from a judgment including a sentence of death, the court of
appeals shall assign lead counsel only, but for good cause shown, the
court may assign associate counsel. With respect to an initial motion
pursuant to section 440.10 or 440.20 of the criminal procedure law, and
any appeal therefrom, the appropriate court shall assign lead counsel
only. The trial court shall assign counsel in connection with such a
motion and the court of appeals shall assign counsel in connection with
any appeal therefrom.
3. There is hereby created a capital defender office, to be governed
by a three member board of directors. No attorney who is employed as a
judge, prosecutor or in a law enforcement capacity shall be eligible to
serve on such board. The board members shall be appointed in the
following manner: one member shall be appointed by the chief judge of
the court of appeals, one member shall be appointed by the temporary
president of the senate and one member shall be appointed by the speaker
of the assembly. Each member shall be appointed to serve a three year
term and vacancies shall be filled in the same manner as the original
appointment. Members of the board shall receive no compensation but
shall be reimbursed all reasonable and necessary expenses incidental to
their duties.
4. Within the amounts appropriated therefor:
(a) The board of directors shall have the authority to appoint a capi-
tal defender, who shall have the authority in consultation with the
board of directors to hire attorneys as deputy capital defenders, inves-
tigators and such other staff as the capital defender and the board of
directors deem necessary to effectuate the purposes of the capital
defender office.
(b) The capital defender office shall be authorized as follows:
(i) Upon appointment in accordance with the provisions of this
section, to act as counsel for defendants and to furnish such investi-
gative, expert and other reasonably necessary services as the capital
defender deems appropriate;
(ii) To provide legal or other advice or, to the extent not otherwise
available, any other assistance to counsel appointed pursuant to this
section;
(iii) To provide investigative, expert or other reasonably necessary
services to defendants charged with murder in the first degree who are
not represented by the capital defender office, provided that such
defendants (A) are or have become financially unable to obtain adequate
investigative, expert or other reasonably necessary services and are
represented by counsel appointed pursuant to this section, and (B) have
obtained pursuant to this section the approval of a trial court for the
same investigative, expert or other reasonably necessary services,
provided, however, that such defendants have not received such services
from other sources;
(iv) To determine, in consultation with the administrative board of
the judicial conference, proposed minimum standards for lead and associ-
ate counsel in capital cases. In determining the minimum standards, the
capital defender office in consultation with the administrative board of
the judicial conference shall consider among other factors both the
needs of the state for an adequate number of attorneys to represent
defendants in capital cases and the needs of defendants in capital cases
for competent counsel. The minimum standards, and any modifications
thereto which the capital defender office in consultation with the
administrative board of the judicial conference may from time to time
propose, shall be submitted for approval to the court of appeals. Prior
to approving the minimum standards and any modifications thereto the
court shall invite the submission of written comments from interested
parties;
(v) To provide continuing legal education, training, advice and
assistance to attorneys representing or seeking to represent defendants
in capital cases; and
(vi) To enter into an agreement with a legal aid society, office of
public defender or other not-for-profit organization providing criminal
defense services to designate and provide counsel pursuant to this
section. Any agreement shall require that the society, public defender
or organization effectuate the purposes and provisions of this section
and may be terminated by the capital defender office by serving notice
on the society, public defender or organization sixty days prior to the
effective date of termination. Upon the termination of any agreement,
the representation provided by the society, public defender or organiza-
tion shall continue until the proceeding is concluded or the court
relieves the society, public defender or organization and appoints
successor counsel pursuant to this section. The capital defender office
may require such reports as it deems necessary in connection with such
agreement and shall monitor compliance with its terms. A society,
public defender or organization which enters into an agreement pursuant
to this section shall not be the exclusive provider of counsel within
such society's, public defender's or organization's jurisdiction. In
the event that a defendant is not represented by such a society, public
defender or organization due to a conflict, counsel shall be appointed
in accordance with the provisions of subdivision two of this section.
5. (a) A screening panel shall be established in each judicial depart-
ment consisting of four members, two of whom shall be appointed by the
board of directors of the capital defender office and two of whom shall
be appointed by the presiding justice of each judicial department. Each
screening panel shall establish and periodically update a roster of
attorneys qualified for appointment as lead counsel or associate counsel
pursuant to the provisions of this section. The capital defender
office, in consultation with the administrative board of the judicial
conference, shall promulgate regulations to provide that qualified
attorneys whose names appear on such rosters and who wish to be
appointed to represent defendants in capital cases, are given fair
opportunity to receive such appointments. Each screening panel shall
also promulgate and periodically update, in consultation with the admin-
istrative board of the judicial conference, a schedule of fees to be
paid attorneys pursuant to this section in each department, which sched-
ule shall be subject to the approval of the court of appeals. Prior to
approving fee schedules, the court shall invite the submission of writ-
ten comments from interested parties. Fee schedules shall be promulgat-
ed and approved after reviewing the rates of compensation generally paid
in the department to attorneys with substantial experience in the repre-
sentation of defendants charged with murder or other serious felonies,
and shall be adequate to ensure that qualified attorneys are available
to represent defendants eligible to receive counsel pursuant to this
section.
(b) Each appellate division, in consultation with the screening panel,
shall establish the rates of fees and expenses to be paid for expert,
investigative and other reasonably necessary services pursuant to this
section.
6. (a) When a defendant has been charged in an accusatory instrument
with murder in the first degree as defined in section 125.27 of the
penal law or with murder in the second degree as defined in section
125.25 of the penal law, the district attorney shall notify the capital
defender office.
(b) The clerk of the superior court wherein a judgment that includes a
sentence of death has been entered and the clerk of the court of appeals
upon an order affirming a judgment that includes a sentence of death
shall notify the capital defender office of the judgment or order.
Notice need not be given when the defendant has retained counsel of his
or her own choosing or when appellate or post-conviction counsel has
already been appointed pursuant to this section and when counsel advises
that he or she will continue to act on the defendant's behalf.
(c) Notice to the capital defender office required pursuant to para-
graph (a) or (b) of this subdivision shall consist of telephone, facsim-
ile, E-mail or other prompt electronic means of notification forthwith,
which shall be followed by first class mail notification within two
business days of the charge, sentence or affirmance. The failure to give
notice shall not affect the validity of any indictment, conviction,
judgment or order.
7. Whenever a defendant is charged with murder in the first degree, or
a defendant has been charged with murder in the second degree as defined
in section 125.25 of the penal law and the court determines after
confirmation by the district attorney pursuant to subdivision one of
this section that there is a reasonable likelihood the defendant will be
charged with murder in the first degree and the defendant is financially
unable to obtain counsel as determined by the court and an attorney has
not yet been appointed to represent such defendant pursuant to the
provisions of this section, the capital defender office may provide or
arrange to provide temporary legal representation to the defendant. No
arraignment shall be delayed on account of any representation to be
provided or arranged pursuant to this subdivision. Any temporary repre-
sentation provided pursuant to this subdivision shall cease upon the
court's appointment of an attorney pursuant to this section.
8. Whenever prior to entry of judgment a defendant is charged with
murder in the first degree, or a defendant has been charged with murder
in the second degree as defined in section 125.25 of the penal law and
the court determines after confirmation by the district attorney pursu-
ant to subdivision one of this section that there is a reasonable like-
lihood the defendant will be charged with murder in the first degree,
and the defendant is or becomes financially unable, as determined by the
court, to obtain adequate investigative, expert or other reasonably
necessary services and the court has not appointed the capital defender
office to represent the defendant, the trial court shall authorize the
defendant's attorney to obtain such services on behalf of the defendant
and shall order the payment of reasonable fees and expenses therefor;
provided, however, that the court shall first find in an ex parte
proceeding that such investigative, expert or other services are reason-
ably necessary for the representation of the defendant whether in
connection with issues relating to guilt or sentencing. Upon a finding
that timely procurement of such services could not practicably await
prior authorization, the court may authorize the provision and payment
for such services nunc pro tunc. Whenever a court disapproves, in whole
or in part, a request for authorization or voucher, the defendant may
apply to a justice of an intermediate appellate court for an order
approving the request or voucher.
9. Any compensation, fee or expense to be paid pursuant to this
section shall be a state charge payable on vouchers approved by the
court which fixed the same, after audit by and on the warrant of the
comptroller. Each claim for compensation and reimbursement shall be
supported by a sworn statement specifying the time expended, services
rendered, expenses incurred and reimbursement or compensation applied
for or received in the same case from any other source. With respect to
compensation to be paid to counsel pursuant to this section, the appro-
priate court shall review and determine the reasonableness of the number
of hours expended out of court.
10. Whenever it appears that a defendant is financially able to obtain
adequate representation or investigative, expert or other such services,
or to make partial payment for such representation or other services,
counsel shall inform the court and the court may terminate the assign-
ment of counsel or authorize payment, as the interests of justice may
dictate, to the capital defender office or the state.
11. The provisions of this section shall cease to apply on the tenth
day, or such later day as the court may determine to be reasonably
necessary to provide for successor counsel if prior counsel is to be
relieved, following the entry of either a final judgment or order not
subject to further review by an appellate court, or a prosecutorial
determination, which necessarily precludes an imposition of a sentence
of death, whereupon the provisions of article eighteen-A or article
eighteen-B of the county law shall be applicable.
12. Nothing in this section shall be construed to authorize the
appointment of counsel, investigative, expert or other services or the
provision of assistance, other than continuing legal education, training
and advice, with respect to the filing, litigation, or appeal of a peti-
tion for a writ of habeas corpus in any federal court; nor shall
anything in this section be construed to authorize the appointment of
attorneys, investigative, expert or other services in connection with
any proceedings other than trials, including separate sentencing
proceedings, of defendants charged with murder in the first degree,
appeals from judgments including a sentence of death, and initial
motions pursuant to section 440.10 or 440.20 of the criminal procedure
law and any appeals therefrom.
§ 30. The judiciary law is amended by adding a new section 211-a to
read as follows:
§ 211-a. Required reports in capital cases. The court of appeals shall
promulgate rules to ensure that in every criminal action in which a
defendant is indicted for the commission of an offense defined in
section 125.27 of the penal law, the clerk of the trial court shall
prepare a data report as provided by this section not later than forty-
five days following the disposition of the case by the trial court;
provided, however, that if the indictment is dismissed, no such data
report shall be required. The data reports shall be in a form deter-
mined by the court of appeals. Data reports shall be prepared by the
clerk of the trial court by reviewing the record and upon consultation
with the prosecutor and the attorney for the defendant and after
completion shall be forwarded to the clerk of the court of appeals. The
form and the content of the report shall be consistent with the purpose
of assisting the court of appeals in determining pursuant to section
470.30 of the criminal procedure law, whether a particular sentence of
death is disproportionate or excessive in the context of penalties
imposed in similar cases, considering both the crime or crimes and the
defendant. Data reports developed pursuant to this section shall be
compiled into a single uniform capital case data report, which shall be
available for use by appellants in capital cases in accordance with
disclosure rules promulgated by the court of appeals.
§ 31. The county law is amended by adding a new section 707 to read as
follows:
§ 707. Payments of expert fees in criminal cases in which the death
penalty may be imposed. 1. Notwithstanding any other provision of law to
the contrary, upon a finding in an ex parte proceeding that expert
services are reasonably necessary for the prosecution of the case wheth-
er in connection with issues relating to guilt or sentencing or that
investigative services relating to a separate sentencing proceeding or
mental retardation hearing pursuant to section 400.27 of the criminal
procedure law are reasonably necessary, the trial court shall authorize
the payment of fees and expenses for such services. Upon a finding that
timely procurement of such services could not practicably await prior
authorization, the court may authorize the provision and payment for
such services nunc pro tunc.
2. Each appellate division shall establish the rates of fees and
expenses to be paid for expert and investigative services pursuant to
subdivision one of this section.
3. Any fee or expense to be paid pursuant to this section shall be a
state charge payable on vouchers approved by the court which fixed the
same after audit by and on the warrant of the comptroller.
4. Whenever a court disapproves, in whole or in part, a request for
authorization or voucher, the district attorney may apply to a justice
of an intermediate appellate court for an order approving the request or
voucher.
§ 32. Article 22-B of the correction law is REPEALED and a new article
22-B is added to read as follows:
ARTICLE 22-B
THE DEATH PENALTY
Section 650. Warrant for execution of death sentence.
651. Time of execution.
652. Delivery of warrant and confinement.
653. Transmittal of record to the governor.
654. Governor may consult.
655. Governor only to reprieve.
656. Proceeding when person under sentence of death may be
incompetent.
657. Proceeding when person under sentence of death is pregnant.
658. Death penalty inflicted by lethal injection.
659. Facility.
660. Persons authorized to be present at execution.
661. Examination of convicted person's body and certificate.
662. Disposition of body.
§ 650. Warrant for execution of death sentence. 1. When a person is
sentenced to the punishment of death, the justice or judge who presided
at the sentencing proceeding, or if that justice or judge is unavailable
for any reason, then any justice of the supreme court of the department
in which the defendant was sentenced, must, within seven days, make out,
sign and deliver to the sheriff of the county, a warrant directed to the
commissioner or to the superintendent of an institution in the depart-
ment designated by the commissioner. Such warrant shall state the
conviction and sentence, appoint a week on which the sentence shall be
executed, and command the commissioner to execute the sentence within
that week. In counties within the city of New York, or in the county of
Westchester, such warrant shall be made out as aforesaid, signed and
delivered to the commissioner of correction of such city or county.
2. If the execution of the sentence shall be delayed while the
conviction or sentence is being appealed, a justice or judge authorized
to act pursuant to subdivision one of this section, at the conclusion of
the state appellate process, if the conviction or sentence is not set
aside, must, within seven days, make out, sign and deliver another
warrant as provided in subdivision one of this section. If the execution
of the sentence on the date appointed is delayed by any other cause, the
justice or judge shall, as soon as such cause ceases to exist, make out,
sign and deliver another warrant.
§ 651. Time of execution. The week of execution appointed in the
warrant shall be not less than thirty days and not more than sixty days
after the issuance of the warrant. The date of execution within said
week shall be left to the discretion of the commissioner, but the date
and hour of the execution shall be announced publicly no later than
seven days prior to said execution.
§ 652. Delivery of warrant and confinement. 1. Within ten days after
the issuance of a warrant as provided in section six hundred fifty of
this article, the sheriff or the commissioner of correction, if within
the city of New York or county of Westchester, must deliver the warrant
and the person sentenced, if that person is not already in the custody
of the department, to the department or to the superintendent of the
state institution designated by the commissioner. Upon the issuance of
the warrant the court shall cause a copy to be personally delivered to
the convicted person and shall send a copy of the warrant to the
convicted person's last attorney of record.
2. From the time of the delivery of the warrant and until the imposi-
tion of the punishment of death upon the convicted person, unless
discharged from the sentence, such person may, in the commissioner's
discretion, either be kept isolated from the general prison population
in a designated institution or confined as otherwise provided by law.
The commissioner, in his discretion, may determine that the safety and
security of the facility, or of the inmate population, or of the staff,
or of the inmate, would not be jeopardized by the inmate's confinement
within the general prison population.
3. The commissioner may promulgate rules and regulations concerning
visitation of inmates sentenced to death. Such rules and regulations may
provide that inmates sentenced to death are subject to different visita-
tion policies and procedures than inmates who are not sentenced to
death.
§ 653. Transmittal of record to the governor. Within a reasonable time
following the issuance of the warrant as provided in section six hundred
fifty of this article, the clerk of the court in the county in which the
person was sentenced to death shall transmit to the governor a statement
of conviction and sentence, and the transcripts of both the trial and
the sentencing proceedings, including, to the extent practicable, any
exhibits introduced therein.
§ 654. Governor may consult. The governor is authorized to request the
opinion of the attorney general, the district attorney, and the
convicted person's counsel, or any of them, as to whether the execution
of the person should be reprieved or suspended.
§ 655. Governor only to reprieve. No judge, court, or officer, other
than the governor, can reprieve the execution of a person sentenced to
death. This section does not apply to a stay authorized by law.
§ 656. Proceeding when person under sentence of death may be incompe-
tent. 1. The state may not execute an inmate who is incompetent. An
inmate is "incompetent" when, as a result of mental disease or defect,
he lacks the mental capacity to understand the nature and effect of the
death penalty and why it is to be carried out.
2. Upon the filing of a petition in the supreme court in either the
county in which an inmate sentenced to death is confined or in the coun-
ty in which the inmate was prosecuted alleging that the inmate is incom-
petent, the court shall issue an order staying the execution if and to
the extent a stay is necessary to permit determination of the petition.
Upon application of either the inmate's counsel or the district attorney
the petition may be transferred to the court in which the inmate was
convicted unless such transfer would be unduly burdensome or impractica-
ble. Promptly upon filing the petition, the court shall appoint a
commission of three psychiatric examiners, hereinafter referred to as
"the psychiatric commissioners," to inquire into the inmate's competence
and report to the court as to the inmate's competence. The psychiatric
commissioners shall be impartial and must be qualified psychiatrists or
certified psychologists. Before commencing an inquiry, the psychiatric
commissioners must take the oath prescribed in rule forty-three hundred
fifteen of the civil practice law and rules to be taken by referees. The
petition may be filed by the inmate, the inmate's counsel, an employee
of the department, the inmate's legal guardian, a member of such
inmate's immediate family or, in the event that the inmate does not have
regular contact with a member of his or her immediate family, a bona
fide friend who has maintained regular contact with the inmate. The
petition must be accompanied by an affidavit of at least one qualified
psychiatrist or certified psychologist who, based at least in part on
personal examination, attests that in the psychiatrist's or psychol-
ogist's professional opinion the inmate is incompetent and lists the
pertinent facts therefor. For purposes of this section the terms "quali-
fied psychiatrist" and "certified psychologist" have the meaning set
forth in section 730.10 of the criminal procedure law.
3. The petition shall be served upon either the district attorney who
prosecuted the inmate or upon the district attorney for the county in
which the inmate is confined. If the petition is served upon the
district attorney for the county in which the inmate is confined, the
court shall promptly notify the district attorney who prosecuted the
inmate. Immediately upon appointing the psychiatric commissioners, the
court shall direct that an examination of the convicted person promptly
take place with all three of the psychiatric commissioners present at
the same time. The court shall also direct, upon application of the
inmate or the district attorney, that the inmate be examined by a quali-
fied psychiatrist or certified psychologist designated by the inmate or
the district attorney. Counsel for the inmate and the district attorney
shall have the right to be present at each such examination. Upon the
filing of a petition pursuant to subdivision two of this section, if the
inmate does not have counsel and is financially unable to obtain counsel
the court shall appoint competent counsel experienced in the trial of
criminal matters to represent the inmate.
4. The psychiatric commissioners must receive and consider evidence
offered by the inmate's counsel and the district attorney, including
written submissions, testimony and expert psychiatric evidence. The
proceeding before the psychiatric commissioners shall be conducted on
the record but need not be conducted in accordance with the rules
governing the admission of evidence at trial, but counsel for the people
and the inmate shall have the right to cross-examine witnesses.
5. When the proceeding before the psychiatric commissioners has been
concluded, they must forthwith provide a transcript of the proceeding,
together with their findings of fact, to the court with their opinion
thereon. Unless impracticable, the psychiatric commissioners shall so
act within sixty days from the filing of the petition. When an inmate
shall be found incompetent by a majority of the psychiatric commission-
ers, the court shall accept such finding unless clearly erroneous, and
promptly enter an order finding the inmate to be incompetent, staying
the execution of the inmate and directing that the inmate be committed
to a secure facility under the jurisdiction of the office of mental
health if the inmate's incompetency is the result of mental illness. In
all other cases, the inmate shall remain in the custody of the depart-
ment. When an inmate is found competent by a majority of the psychiat-
ric commissioners, the court shall accept such finding unless clearly
erroneous, promptly enter an order finding the inmate to be competent
and vacating any stay previously issued, and the court shall promptly
inform the judge or justice who issued the warrant for the execution of
the inmate of the court's finding. Upon being so informed, the judge or
justice shall promptly issue a new warrant in accordance with subdivi-
sion two of section six hundred fifty of this article. Any other
provision of law notwithstanding, no other review, judicial or other-
wise, shall be available with respect to an order finding the inmate to
be incompetent or competent. If the court rejects the finding of a
majority of the psychiatric commissioners on the ground that it is
clearly erroneous, the court shall appoint another commission to proceed
as provided in this section.
6. When an inmate has been committed to a secure facility pursuant to
this section, the inmate shall remain there until the facility adminis-
trator determines that the inmate may be competent. Upon so determin-
ing, the facility administrator shall promptly notify the court that
entered the order finding the inmate to be incompetent, and the court
shall promptly notify counsel and the district attorneys and appoint
another commission to proceed as provided in this section.
7. The court shall allow reasonable fees to the psychiatric commis-
sioners. The court shall allow reasonable fees for time spent in court
and for time reasonably expended out of court to counsel appointed
pursuant to this section. The court shall allow all reasonably necessary
costs, including without limitation the costs attendant to fees for the
examination of the inmate by a qualified psychiatrist or certified
psychologist, incurred by the inmate and the district attorney in
connection with a petition pursuant to this section. Each claim for
compensation and reimbursement shall be supported by a sworn statement
specifying the time expended, services rendered, expenses incurred and
reimbursement or compensation applied for or received in the same case
from any other source. All such fees and costs shall be a state charge
payable on vouchers approved by the court after audit by and on the
warrant of the comptroller.
8. When a petition has previously been filed and determined pursuant
to this section, the court in which a subsequent petition is filed or to
which a subsequent petition is transferred, shall not issue an order
staying the execution of the inmate unless the court finds, after notice
to the district attorney who prosecuted the inmate and after affording
the district attorney a reasonable opportunity to be heard in writing,
that there is reasonable cause to believe that the inmate is incompe-
tent; provided, however, that the court may issue an order staying the
execution of the inmate, to the extent a stay is necessary to afford the
district attorney an opportunity to be heard and such reasonable cause
determination to be made.
§ 657. Proceeding when person under sentence of death is pregnant. 1.
A sentence of death may not be carried out upon a woman while she is
pregnant.
2. When the superintendent of the correctional facility where the
inmate is confined is informed that reasonable grounds exist that a
convicted person under sentence of death may be pregnant, the super-
intendent shall appoint a qualified physician to examine the convicted
person and determine if she is pregnant.
3. Upon being informed by the superintendent that such convicted
person is pregnant, the governor shall stay execution of the warrant to
the extent necessary.
§ 658. Death penalty inflicted by lethal injection. The punishment of
death shall be inflicted by lethal injection; that is, by the intrave-
nous injection of a substance or substances in a lethal quantity into
the body of a person convicted until such person is dead.
§ 659. Facility. The commissioner shall provide and maintain a suit-
able and efficient facility, enclosed from public view, within the
confines of a designated correctional institution for the imposition of
the punishment of death. That facility shall contain the apparatus and
equipment necessary for the carrying out of executions by lethal
injection.
§ 660. Persons authorized to be present at execution. 1. The commis-
sioner, any persons designated by the commissioner to act as execution
technicians or otherwise to assist in the execution, including
correction officers, and a licensed physician or physicians may be pres-
ent at the execution. The commissioner shall also select and invite the
presence, by at least three days' prior notice, of a justice of the
supreme court, the counsel for the convicted person, the district attor-
ney and the sheriff of the county where the conviction was had, together
with six adult citizens. The names of the execution technician or tech-
nicians shall never be disclosed, notwithstanding any other provision of
law to the contrary, including article six of the public officers law.
The names of the six adult citizens who witnessed the execution shall
not be disclosed until after the execution.
2. The commissioner shall, at the request of the person sentenced to
death, authorize and permit two clergymen to be present at the
execution.
3. The inmate sentenced to death may name four relatives or bona fide
friends to witness the execution, and the commissioner shall authorize
said named relatives or friends of the inmate to witness the execution
unless the commissioner determines that the presence of any named rela-
tive or friend at the execution would pose a threat to the safety or
security of the designated correctional institution. No person under
eighteen years of age shall be permitted to witness any execution.
§ 661. Examination of convicted person's body and certificate. 1.
Immediately after the execution an examination of the body of the
convicted person shall be made by the licensed physicians present at the
execution and their report in writing stating the nature of the examina-
tion and occurrence of death, so made by them, shall be annexed to the
certificate provided for in subdivision two of this section and filed
therewith.
2. The commissioner shall prepare and sign a certificate setting forth
the time and place of the execution and stating that the execution was
conducted in conformity to the sentence of the court and the provisions
of this article. The commissioner shall cause the certificate to be
filed, within ten days after the execution, with the office of clerk of
the court in which the conviction was had.
3. The commissioner may appoint a deputy with the department to
execute the warrant of execution and to perform all other duties imposed
upon the commissioner under this article.
§ 662. Disposition of body. 1. Prior to the execution, the convicted
person shall be given the opportunity to decide in writing to whom his
or her body shall be delivered after the execution. The commissioner or
his or her designee shall sign and authorize the convicted person's
request if the request is not contrary to law. If the convicted person
does not indicate to whom such person's body shall be delivered, or if
the person's request is contrary to law, the commissioner may deliver
the convicted person's body to a relative by blood or marriage or a bona
fide friend. If the body is not claimed by a relative or bona fide
friend within seven days after execution, the body shall be delivered to
a duly authorized and incorporated pathological and anatomical associ-
ation in the state, if requested by an authorized association.
2. If the body of the convicted person is not claimed by a relative,
bona fide friend, or a duly authorized and incorporated pathological and
anatomical association, the commissioner shall cause the body to be
disposed of in the same manner as are bodies of prisoners dying in the
institution. Notwithstanding any other provision of law, no autopsy
shall be required for the body of an inmate upon whom a sentence of
death has been carried out.
§ 33. Subdivision 3 of section 112 of the correction law is REPEALED.
§ 34. The executive law is amended by adding a new section 63-d to
read as follows:
§ 63-d. Attorney-general; death penalty prosecutions. 1. The attor-
ney-general shall, whenever required by the governor or his designee
after a request of the governor by a district attorney, direct that the
resources and personnel of the department of law be used to provide
assistance relating to the prosecution or appeal of any case where the
defendant may be subject to the penalty of death. Such assistance shall
include the use of any department resource or services, which the attor-
ney-general deems proper, and may be performed or provided by the attor-
ney-general or any employee of the department of law. Assistance pursu-
ant to this section may only be provided with respect to proceedings
where:
(i) the defendant is represented by counsel appointed pursuant to the
provisions of section thirty-five-b of the judiciary law or the defend-
ant is receiving expert, investigative or other services pursuant to
such section, or
(ii) the defendant, through counsel retained privately by the defend-
ant through his or her own means or through the means of a person other
than the defendant, or through representation by pro bono counsel, is
able to marshal substantially greater legal and investigatory resources
than those reasonably available to the district attorney.
2. A request of the governor made by a district attorney for assist-
ance in a death penalty case shall be accompanied by a certificate of
need stating that as a result of cases where the defendant may be
subject to the penalty of death additional resources or personnel are
needed to supplement the district attorney's staff and available
resources in order to fulfill such district attorney's responsibilities.
§ 35. Section 837-a of the executive law is amended by adding a new
subdivision 7 to read as follows:
7. Contract with an organization having substantial knowledge and
experience in the prosecution of serious criminal matters for the devel-
opment and provision of continuing legal education, training, advice and
assistance for prosecutors in the prosecution of capital cases.
§ 36. The executive law is amended by adding a new section 837-l to
read as follows:
§ 837-l. Capital prosecution extraordinary assistance program. There
is hereby created within the division a capital prosecution extraor-
dinary assistance program to be administered by the commissioner, to
distribute funds to district attorneys for the prosecution of capital
cases. Such funds shall be distributed where the commissioner deter-
mines, on the basis of a written certification by the applicant district
attorney, that due to the nature or number of capital cases being prose-
cuted by the district attorney a significant financial burden has
resulted and financial assistance is necessary in order to fulfill such
district attorney's responsibilities; provided, however, that such funds
shall not be used to supplant existing resources. Such funds may also
be distributed to a district attorney who, upon the request of another
district attorney, has provided assistance in the prosecution of a capi-
tal case.
§ 37. If any section, part or provision of this act shall be declared
unconstitutional or invalid or ineffective by any court of competent
jurisdiction, such declaration shall be limited to the section, part or
provision directly involved in the controversy in which such declaration
was made and shall not affect any other section, part or provision ther-
eof.
§ 38. This act shall take effect on the first day of September next
succeeding the date on which it shall have become a law and shall apply
only to offenses committed on or after such date; offenses committed
prior to such date shall be governed by the provisions of law in effect
at the time the offense was committed; provided, further, however, that
sections twenty-nine, thirty-five and thirty-six of this act shall take
effect April 1, 1995.
 

The Legislature of the STATE OF NEW YORK ss:
Pursuant to the authority vested in us by section 70-b of the Public
Officers Law, we hereby jointly certify that this slip copy of this
session law was printed under our direction and, in accordance with such
section, is entitled to be read into evidence.

JOSEPH L. BRUNO SHELDON SILVER
Temporary President of the Senate Speaker of the Assembly