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ARTICLE 400--PRE-SENTENCE PROCEEDINGS
Section 400.10 Pre-sentence conference.
400.15 Procedure for determining whether defendant is a second
violent felony offender.
400.16 Procedure for determining whether defendant is a
persistent violent felony offender.
400.19 Procedure for determining whether defendant is a second
child sexual assault felony offender.
400.20 Procedure for determining whether defendant should be
sentenced as a persistent felony offender.
400.21 Procedure for determining whether defendant is a second
felony offender.
400.22 Evidence of imprisonment.
400.27 Procedure for determining sentence upon conviction for
the offense of murder in the first degree.
400.30 Procedure for determining the amount of a fine based
upon the defendant`s gain from the offense.
400.40 Procedure for determining prior convictions for the
purpose of sentence in certain cases.
S 400.10 Pre-sentence conference.
1. Authorization and purpose. Before pronouncing sentence, the court,
in its discretion, may hold one or more pre-sentence conferences in open
court or in chambers in order to (a) resolve any discrepancies between
the pre-sentence report, or other information the court has received,
and the defendant`s or prosecutor`s pre-sentence memorandum submitted
pursuant to section 390.40, or (b) assist the court in its consideration
of any matter relevant to the sentence to be pronounced.
2. Attendance. Such conference may be held with the prosecutor and
defense counsel in the absence of the defendant, or the court may direct
that the defendant attend. The court may also direct that any person who
has furnished or who can furnish information to the court concerning
sentence attend. Reasonable notice of the conference must be given to
the prosecutor and the defense counsel, who must be afforded an
opportunity to participate therein.
3. Procedure at conference. The court may advise the persons present
at the conference of the factual contents of any report or memorandum it
has received and afford any of the participants an opportunity to
controvert or to comment upon any fact. The court may also conduct a
summary hearing at the conference on any matter relevant to sentence and
may take testimony under oath. In the discretion of the court, all or
any part of the proceedings at the conference may be recorded by a court
stenographer and the transcript made part of the pre-sentence report.
4. Pre-sentence conditions. After conviction and prior to sentencing
the court may adjourn sentencing to a subsequent date and order the
defendant to comply with any of the conditions contained in paragraphs
(a) through (f) and paragraph (l) of subdivision two of section 65.10 of
the penal law. In imposing sentence, the court shall take into
consideration the defendant`s record of compliance with pre-sentence
conditions ordered by the court.
S 400.15 Procedure for determining whether defendant is a second
violent felony offender.
1. Applicability. The provisions of this section govern the
procedure that must be followed in any case where it appears that a
defendant who stands convicted of a violent felony offense as defined in
subdivision one of section 70.02 of the penal law has previously been
subjected to a predicate violent felony conviction as defined in
paragraph (b) of subdivision one of section 70.04 of the penal law and
may be a second violent felony offender.
2. Statement to be filed. When information available to the court or
to the people prior to sentencing for a violent felony offense indicates
that the defendant may have previously been subjected to a predicate
violent felony conviction, a statement must be filed by the prosecutor
before sentence is imposed setting forth the date and place of each
alleged predicate violent felony conviction. Where the provisions of
subparagraph (v) of paragraph (c) of subdivision one of section 70.04 of
the penal law apply, such statement also shall set forth the date of
commencement and the date of termination as well as the place of
imprisonment for each period of incarceration to be used for tolling of
the ten year limitation set forth in subparagraph (iv) of paragraph (b)
of such subdivision.
3. Preliminary examination. The defendant must be given a copy of
such statement and the court must ask him whether he wishes to
controvert any allegation made therein. If the defendant wishes to
controvert any allegation in the statement, he must specify the
particular allegation or allegations he wishes to controvert.
Uncontroverted allegations in the statement shall be deemed to have been
admitted by the defendant.
4. Cases where further hearing is not required. Where the
uncontroverted allegations in the statement are sufficient to support a
finding that the defendant has been subjected to a predicate violent
felony conviction the court must enter such finding and when imposing
sentence must sentence the defendant in accordance with the provisions
of section 70.04 of the penal law.
5. Cases where further hearing is required. Where the defendant
controverts an allegation in the statement and the uncontroverted
allegations in such statement are not sufficient to support a finding
that the defendant has been subjected to a predicate violent felony
conviction the court must proceed to hold a hearing.
6. Time for hearing. In any case where a copy of the statement was
not received by the defendant at least two days prior to the preliminary
examination, the court must upon request of the defendant grant an
adjournment of at least two days before proceeding with the hearing.
7. Manner of conducting hearing.
(a) A hearing pursuant to this section must be before the court
without jury. The burden of proof is upon the people and a finding that
the defendant has been subjected to a predicate violent felony
conviction must be based upon proof beyond a reasonable doubt by
evidence admissible under the rules applicable to a trial of the issue
of guilt.
(b) A previous conviction in this or any other jurisdiction which was
obtained in violation of the rights of the defendant under the
applicable provisions of the constitution of the United States must not
be counted in determining whether the defendant has been subjected to a
predicate violent felony conviction. The defendant may, at any time
during the course of the hearing hereunder controvert an allegation with
respect to such conviction in the statement on the grounds that the
conviction was unconstitutionally obtained. Failure to challenge the
previous conviction in the manner provided herein constitutes a waiver
on the part of the defendant of any allegation of unconstitutionality
unless good cause be shown for such failure to make timely challenge.
(c) At the conclusion of the hearing the court must make a finding as
to whether or not the defendant has been subjected to a predicate
violent felony conviction.
8. Subsequent use of predicate violent felony conviction finding.
Where a finding has been entered pursuant to this section, such finding
shall be binding upon that defendant in any future proceeding in which
the issue may arise.
S 400.16 Procedure for determining whether defendant is a persistent
violent felony offender.
1. Applicability. The provisions of this section govern the
procedure that must be followed in any case where it appears that a
defendant who stands convicted of a violent felony offense as defined in
subdivision one of section 70.02 of the penal law has previously been
subjected to two or more predicate violent felony convictions as defined
in paragraph (b) of subdivision one of section 70.04, and may be a
persistent violent felony offender as defined in section 70.08 of the
penal law.
2. Statement; preliminary examination; hearing; subsequent use of
predicate violent felony conviction finding. The requirements set forth
in subdivisions two, three, four, five, six, seven and eight of section
400.15 with respect to the statement to be filed, preliminary
examination, hearing and subsequent use of a predicate violent felony
conviction finding in the case of a second violent felony offender,
shall also apply to a determination of whether a defendant has been
subjected to two or more violent predicate felony convictions and is a
persistent violent felony offender.
S 400.19 Procedure for determining whether defendant is a second child
sexual assault felony offender.
1. Applicability. The provisions of this section govern the procedure
that must be followed in any case where it appears that a defendant who
stands convicted of a felony offense for a sexual assault upon a child
as defined in section 70.07 of the penal law has previously been
convicted of a predicate felony for a sexual assault upon a child.
2. Statement to be filed. When information available to the people
prior to the trial of a felony offense for a sexual assault against a
child indicates that the defendant may have previously been subjected to
a predicate felony conviction for a sexual assault against a child, a
statement may be filed by the prosecutor at any time before trial
commences setting forth the date and place of each alleged predicate
felony conviction for a sexual assault against a child and a statement
whether the defendant was eighteen years of age or older at the time of
the commission of the predicate felony. Where the provisions of
subparagraph (v) of paragraph (b) of subdivision one of section 70.06 of
the penal law apply, such statement also shall set forth the date of
commencement and the date of termination as well as the place of
imprisonment for each period of incarceration to be used for tolling of
the ten year limitation set forth in subparagraph (iv) of paragraph (b)
of such subdivision.
3. Preliminary examination. The defendant must be given a copy of such
statement and the court must ask him whether he wishes to controvert any
allegation made therein. If the defendant wishes to controvert any
allegation in the statement, he must specify the particular allegation
or allegations he wishes to controvert. Uncontroverted allegations in
the statement shall be deemed to have been admitted by the defendant.
4. Cases where further hearing is not required. Where the
uncontroverted allegations in the statement are sufficient to support a
finding that the defendant has been subjected to a predicate felony
conviction for a sexual assault upon a child and that the defendant was
18 years of age or older at the time of the commission of the predicate
felony, the court must enter such finding and when imposing sentence
must sentence the defendant in accordance with the provisions of section
70.07 of the penal law.
5. Cases where further hearing is required. Where the defendant
controverts an allegation in the statement, the court must proceed to
hold a hearing.
6. Manner of conducting hearing. (a) A hearing pursuant to this
section must be before the court without jury. The burden of proof is
upon the people and a finding that the defendant has been subjected to a
predicate felony conviction for a sexual assault against a child as
defined in subdivision two of section 70.07 of the penal law and that
the defendant was 18 years of age or older at the time of the commission
of the predicate felony must be based upon proof beyond a reasonable
doubt by evidence admissible under the rules applicable to a trial of
the issue of guilt.
(b) Regardless of whether the age of the victim is an element of the
alleged predicate felony offense, where the defendant controverts an
allegation that the victim of an alleged sexual assault upon a child was
less than fifteen years old, the people may prove that the child was
less than fifteen years old by any evidence admissible under the rules
applicable to a trial of the issue of guilt. For purposes of determining
whether a child was less than fifteen years old, the people shall not be
required to prove that the defendant knew the child was less than
fifteen years old at the time of the alleged sexual assault.
(c) A previous conviction in this or any other jurisdiction which was
obtained in violation of the rights of the defendant under the
applicable provisions of the constitution of the United States must not
be counted in determining whether the defendant has been subjected to a
predicate felony conviction for a sexual assault upon a child. The
defendant may, at any time during the course of the hearing hereunder,
controvert an allegation with respect to such conviction in the
statement on the grounds that the conviction was unconstitutionally
obtained. Failure to challenge the previous conviction in the manner
provided herein constitutes a waiver on the part of the defendant of any
allegation of unconstitutionality unless good cause be shown for such
failure to make timely challenge.
(d) At the conclusion of the hearing the court must make a finding as
to whether or not the defendant has been subjected to a predicate felony
conviction for a sexual assault against a child as defined in
subdivision two of section 70.07 of the penal law and whether the
defendant was 18 years of age or older at the time of the commission of
the predicate felony.
7. Subsequent use of predicate felony conviction finding. Where a
finding has been entered pursuant to this section, such finding shall be
binding in any future proceeding in which the issue may arise.
S 400.20 Procedure for determining whether defendant should be
sentenced as a persistent felony offender.
1. Applicability. The provisions of this section govern the
procedure that must be followed in order to impose the persistent felony
offender sentence authorized by subdivision two of section 70.10 of the
penal law. Such sentence may not be imposed unless, based upon evidence
in the record of a hearing held pursuant to this section, the court (a)
has found that the defendant is a persistent felony offender as defined
in subdivision one of section 70.10 of the penal law, and (b) is of the
opinion that the history and character of the defendant and the nature
and circumstances of his criminal conduct are such that extended
incarceration and lifetime supervision of the defendant are warranted to
best serve the public interest.
2. Authorization for hearing. When information available to the
court prior to sentencing indicates that the defendant is a persistent
felony offender, and when, in the opinion of the court, the available
information shows that a persistent felony offender sentence may be
warranted, the court may order a hearing to determine (a) whether the
defendant is in fact a persistent felony offender, and (b) if so,
whether a persistent felony offender sentence should be imposed.
3. Order directing a hearing. An order directing a hearing to
determine whether the defendant should be sentenced as a persistent
felony offender must be filed with the clerk of the court and must
specify a date for the hearing not less than twenty days from the date
the order is filed. The court must annex to and file with the order a
statement setting forth the following:
(a) The dates and places of the previous convictions which render the
defendant a persistent felony offender as defined in subdivision one of
section 70.10 of the penal law; and
(b) The factors in the defendant`s background and prior criminal
conduct which the court deems relevant for the purpose of sentencing the
defendant as a persistent felony offender.
4. Notice of hearing. Upon receipt of the order and statement of the
court, the clerk of the court must send a notice of hearing to the
defendant, his counsel and the district attorney. Such notice must
specify the time and place of the hearing and the fact that the purpose
of the hearing is to determine whether or not the defendant should be
sentenced as a persistent felony offender. Each notice required to be
sent hereunder must be accompanied by a copy of the statement of the
court.
5. Burden and standard of proof; evidence. Upon any hearing held
pursuant to this section the burden of proof is upon the people. A
finding that the defendant is a persistent felony offender, as defined
in subdivision one of section 70.10 of the penal law, must be based upon
proof beyond a reasonable doubt by evidence admissible under the rules
applicable to the trial of the issue of guilt. Matters pertaining to
the defendant`s history and character and the nature and circumstances
of his criminal conduct may be established by any relevant evidence, not
legally privileged, regardless of admissibility under the exclusionary
rules of evidence, and the standard of proof with respect to such
matters shall be a preponderance of the evidence.
6. Constitutionality of prior convictions. A previous conviction in
this or any other jurisdiction which was obtained in violation of the
rights of the defendant under the applicable provisions of the
Constitution of the United States may not be counted in determining
whether the defendant is a persistent felony offender. The defendant
may, at any time during the course of the hearing hereunder controvert
an allegation with respect to such conviction in the statement of the
court on the grounds that the conviction was unconstitutionally
obtained. Failure to challenge the previous conviction in the manner
provided herein constitutes a waiver on the part of the defendant of any
allegation of unconstitutionality unless good cause be shown for such
failure to make timely challenge.
7. Preliminary examination. When the defendant appears for the
hearing the court must ask him whether he wishes to controvert any
allegation made in the statement prepared by the court, and whether he
wishes to present evidence on the issue of whether he is a persistent
felony offender or on the question of his background and criminal
conduct. If the defendant wishes to controvert any allegation in the
statement of the court, he must specify the particular allegation or
allegations he wishes to controvert. If he wishes to present evidence
in his own behalf, he must specify the nature of such evidence.
Uncontroverted allegations in the statement of the court are deemed
evidence in the record.
8. Cases where further hearing is not required. Where the
uncontroverted allegations in the statement of the court are sufficient
to support a finding that the defendant is a persistent felony offender
and the court is satisfied that (a) the uncontroverted allegations with
respect to the defendant`s background and the nature of his prior
criminal conduct warrant sentencing the defendant as a persistent felony
offender, and (b) the defendant either has no relevant evidence to
present or the facts which could be established through the evidence
offered by the defendant would not affect the court`s decision, the
court may enter a finding that the defendant is a persistent felony
offender and sentence him in accordance with the provisions of
subdivision two of section 70.10 of the penal law.
9. Cases where further hearing is required. Where the defendant
controverts an allegation in the statement of the court and the
uncontroverted allegations in such statement are not sufficient to
support a finding that the defendant is a persistent felony offender as
defined in subdivision one of section 70.10 of the penal law, or where
the uncontroverted allegations with respect to the defendant`s history
and the nature of his prior criminal conduct do not warrant sentencing
him as a persistent felony offender, or where the defendant has offered
to present evidence to establish facts that would affect the court`s
decision on the question of whether a persistent felony offender
sentence is warranted, the court may fix a date for a further hearing.
Such hearing shall be before the court without a jury and either party
may introduce evidence with respect to the controverted allegations or
any other matter relevant to the issue of whether or not the defendant
should be sentenced as a persistent felony offender. At the conclusion
of the hearing the court must make a finding as to whether or not the
defendant is a persistent felony offender and, upon a finding that he is
such, must then make such findings of fact as it deems relevant to the
question of whether a persistent felony offender sentence is warranted.
If the court both finds that the defendant is a persistent felony
offender and is of the opinion that a persistent felony offender
sentence is warranted, it may sentence the defendant in accordance with
the provisions of subdivision two of section 70.10 of the penal law.
10. Termination of hearing. At any time during the pendency of a
hearing pursuant to this section, the court may, in its discretion,
terminate the hearing without making any finding. In such case, unless
the court recommences the proceedings and makes the necessary findings,
the defendant may not be sentenced as a persistent felony offender.
S 400.21 Procedure for determining whether defendant is a second felony
offender.
1. Applicability. The provisions of this section govern the
procedure that must be followed in any case where it appears that a
defendant who stands convicted of a felony has previously been convicted
of a predicate felony and may be a second felony offender as defined in
section 70.06 of the penal law.
2. Statement to be filed. When information available to the court or
to the people prior to sentencing for a felony indicates that the
defendant may have previously been subjected to a predicate felony
conviction, a statement must be filed by the prosecutor before sentence
is imposed setting forth the date and place of each alleged predicate
felony conviction. Where the provisions of subparagraph (v) of
paragraph (b) of subdivision one of section 70.06 of the penal law
apply, such statement also shall set forth the date of commencement and
the date of termination as well as the place of imprisonment for each
period of incarceration to be used for tolling of the ten year
limitation set forth in subparagraph (iv) of paragraph (b) of such
subdivision.
3. Preliminary examination. The defendant must be given a copy of
such statement and the court must ask him whether he wishes to
controvert any allegation made therein. If the defendant wishes to
controvert any allegation in the statement, he must specify the
particular allegation or allegations he wishes to controvert.
Uncontroverted allegations in the statement shall be deemed to have been
admitted by the defendant.
4. Cases where further hearing is not required. Where the
uncontroverted allegations in the statement are sufficient to support a
finding that the defendant has been subjected to a predicate felony
conviction the court must enter such finding and when imposing sentence
must sentence the defendant in accordance with the provisions of section
70.06 of the penal law.
5. Cases where further hearing is required. Where the defendant
controverts an allegation in the statement and the uncontroverted
allegations in such statement are not sufficient to support a finding
that the defendant has been subjected to a predicate felony conviction
the court must proceed to hold a hearing.
6. Time for hearing. In any case where a copy of the statement was
not received by the defendant at least two days prior to the preliminary
examination, the court must upon request of the defendant grant an
adjournment of at least two days before proceeding with the hearing.
7. Manner of conducting hearing.
(a) A hearing pursuant to this section must be before the court
without jury. The burden of proof is upon the people and a finding that
the defendant has been subjected to a predicate felony conviction must
be based upon proof beyond a reasonable doubt by evidence admissible
under the rules applicable to a trial of the issue of guilt.
(b) A previous conviction in this or any other jurisdiction which was
obtained in violation of the rights of the defendant under the
applicable provisions of the constitution of the United States must not
be counted in determining whether the defendant has been subjected to a
predicate felony conviction. The defendant may, at any time during the
course of the hearing hereunder controvert an allegation with respect to
such conviction in the statement on the grounds that the conviction was
unconstitutionally obtained. Failure to challenge the previous
conviction in the manner provided herein constitutes a waiver on the
part of the defendant of any allegation of unconstitutionality unless
good cause be shown for such failure to make timely challenge.
(c) At the conclusion of the hearing the court must make a finding as
to whether or not the defendant has been subjected to a predicate felony
conviction.
8. Subsequent use of predicate felony conviction finding. Where a
finding has been entered pursuant to this section, such finding shall be
binding upon that defendant in any future proceeding in which the issue
may arise.
S 400.22 Evidence of imprisonment.
The certificate of the commissioner of correction or of the warden or
other chief officer of any prison, or of the superintendent or other
chief officer of any penitentiary under the seal of his office
containing name of person, a statement of the court in which conviction
was had, the date and term of sentence, length of time imprisoned, and
date of discharge from prison or penitentiary, shall be prima facie
evidence of the imprisonment and discharge of any person under the
conviction stated and set forth in such certificate for the purposes of
any proceeding under section 400.20.
S 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.
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 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
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 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
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 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.
S 400.30 Procedure for determining the amount of a fine based upon the
defendant`s gain from the offense.
1. Order directing a hearing. In any case where the court is of the
opinion that the sentence should consist of or include a fine and that,
pursuant to article eighty of the penal law, the amount of the fine
should be based upon the defendant`s gain from the commission of the
offense, the court may order a hearing to determine the amount of such
gain. The order must be filed with the clerk of the court and must
specify a date for the hearing not less than ten days after the filing
of the order.
2. Notice of hearing. Upon receipt of the order, the clerk of the
court must send a notice of the hearing to the defendant, his counsel
and the district attorney. Such notice must specify the time and place
of the hearing and the fact that the purpose thereof is to determine the
amount of the defendant`s gain from the commission of the offense so
that an appropriate fine can be imposed.
3. Hearing. When the defendant appears for the hearing the court
must ask him whether he wishes to make any statement with respect to the
amount of his gain from the commission of the offense. If the defendant
does make a statement, the court may accept such statement and base its
finding thereon. Where the defendant does not make a statement, or
where the court does not accept the defendant`s statement, it may
proceed with the hearing.
4. Burden and standard of proof; evidence. At any hearing held
pursuant to this section the burden of proof rests upon the people. A
finding as to the amount of the defendant`s gain from the commission of
the offense must be based upon a preponderance of the evidence. Any
relevant evidence, not legally privileged, may be received regardless of
its admissibility under the exclusionary rules of evidence.
5. Termination of hearing. At any time during the pendency of a
hearing pursuant to this section the court may, in its discretion,
terminate the hearing without making any finding.
S 400.40 Procedure for determining prior convictions for the purpose of
sentence in certain cases.
1. Applicability. Where a conviction is entered for an unclassified
misdemeanor or for a traffic infraction and the authorized sentence
depends upon whether the defendant has a previous judgment of conviction
for an offense, or where a conviction is entered for a violation defined
outside the penal law and the amount of the fine authorized by the law
defining such violation depends upon whether the defendant has a
previous judgment of conviction for an offense, such issue is determined
as provided in this section.
2. Statement to be filed. If it appears that the defendant has a
previous judgment of conviction and if the court is required, or in its
discretion desires, to impose a sentence that would not be authorized in
the absence of such previous judgment, a statement must be filed after
conviction and before sentence setting forth the date and place of the
previous judgment or judgments and the court must conduct a hearing to
determine whether the defendant is the same person mentioned in the
record of such judgment or judgments. In any case where an increased
sentence is mandatory, the statement may be filed by the court or by the
prosecutor. In any case where an increased sentence is discretionary,
the statement may be filed only by the court.
3. Preliminary examination. The defendant must be given a copy of
such statement and the court must ask him whether he admits or denies
such prior judgment or judgments. If the defendant denies the same or
remains mute, the court may proceed with the hearing and, where the
increased sentence is mandatory, it must impose such.
4. Time for hearing. In any case where a copy of the statement was
not received by the defendant at least two days prior to the preliminary
examination, the court must upon request of the defendant grant an
adjournment of at least two days before proceeding with the hearing.
5. Manner of conducting hearing. A hearing pursuant to this section
must be before the court without a jury. The burden of proof is upon
the people and a finding that the defendant has been convicted of any
offense alleged in the statement must be based upon proof beyond a
reasonable doubt by evidence admissible under the rules applicable to
trial of the issue of guilt.