N.Y. Criminal Procedure Law § 400.27: Procedure for determining sentence upon conviction for the offense of murder in the first degree

§ 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

imprisonment without parole pursuant to subdivision five of section

70.00 of the penal law. Nothing in this section shall be deemed to

preclude the people at any time from determining that the death penalty

shall not be sought in a particular case, in which case the separate

sentencing proceeding shall not be conducted and the court may sentence

such defendant to life imprisonment without parole or to a sentence of

imprisonment for the class A-I felony of murder in the first degree

other than a sentence of life imprisonment without parole.

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

guilty, 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

subparagraph 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 pursuant 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 separate 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

present evidence, except, subject to the rules governing admission of

evidence in the trial of a criminal action, in rebuttal of the

defendant'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

circumstances 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 admission 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

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

committed 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

intentional infliction of serious physical injury or death, or (ii) an

offense under the laws of another state or of the United States

punishable 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

intentional 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 calculating 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 proceeding, constitute an aggravating factor.

(b) 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.

(c) Whenever the people intend to offer evidence of an aggravating

factor set forth in this subdivision, the people must within a

reasonable time prior to trial file with the court and serve upon the

defendant a notice of intention to offer such evidence. Whenever the

people intend to offer evidence of the aggravating factor set forth in

paragraph (a) 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 (a) of this

subdivision. 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

prosecution; 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

character, 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

defendant may present argument in summation for or against the sentence

sought by the people. The people may deliver the first summation and the

defendant may then deliver the last summation. Thereafter, the court

shall deliver a charge to the jury on any matters appropriate in the

circumstances. In its charge, the court must instruct the jury that with

respect to each count of murder in the first degree the jury should

consider whether or not a sentence of death should be imposed and

whether or not a sentence of life imprisonment without parole should be

imposed, and that the jury must be unanimous with respect to either

sentence. The court must also instruct the jury that in the event the

jury fails to reach unanimous agreement with respect to the sentence,

the court will sentence the defendant to a term of imprisonment with a

minimum term of between 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.

* NB The jury deadlock instruction prescribed in sub 10 declared

UNCONSTITUTIONAL under Article 1, Section 6 of the state Constitution

11. (a) The jury may not direct imposition of a sentence of death

unless it unanimously finds beyond a reasonable doubt that the

aggravating 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 preponderance 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.

Thereafter, 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

imprisonment 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

determine 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

subdivision.

(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

retardation 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

proceeding under this section shall not be conducted if the defendant is

thereafter 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 paragraph (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

minimized. 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

retardation 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 clinical 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

examination. 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

defendant is mentally retarded, but such statement is admissible upon

such an issue whether or not it would otherwise be deemed a privileged

communication.

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 245.20 of this part

and make available for inspection, photographing, copying or testing the

property specified in subdivision one of section 245.20; 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 four of section 245.20 and make

available for inspection, photographing, copying or testing, subject to

constitutional limitations, the reports, documents and other property

specified in section 245.20 of this part.

(b) Where a party refuses to make disclosure pursuant to this section,

the provisions of section 245.70, 245.75 and/or 245.80 of this part

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

sentencing 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 employ any of the remedies

or sanctions specified in subdivision one of section 245.80 of this

part.

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.