N.Y. CPL Law § 400.27 — New York Code / Act CPL / Part 2 / Title L / Article 400 / Section 400.27
Procedure for determining sentence upon conviction for the offense of murder in the first degree
Status: in_force

§ 400.27 Procedure for determining sentence upon conviction for the\n             offense of murder in the first degree.\n  1. Upon the conviction of a defendant for the offense of murder in the\nfirst degree as defined by section 125.27 of the penal law, the court\nshall promptly conduct a separate sentencing proceeding to determine\nwhether the defendant shall be sentenced to death or to life\nimprisonment without parole pursuant to subdivision five of section\n70.00 of the penal law. Nothing in this section shall be deemed to\npreclude the people at any time from determining that the death penalty\nshall not be sought in a particular case, in which case the separate\nsentencing proceeding shall not be conducted and the court may sentence\nsuch defendant to life imprisonment without parole or to a sentence of\nimprisonment for the class A-I felony of murder in the first degree\nother than a sentence of life imprisonment without parole.\n  2. The separate sentencing proceeding provided for by this section\nshall be conducted before the court sitting with the jury that found the\ndefendant guilty. The court may discharge the jury and impanel another\njury only in extraordinary circumstances and upon a showing of good\ncause, which may include, but is not limited to, a finding of prejudice\nto either party. If a new jury is impaneled, it shall be formed in\naccordance with the procedures in article two hundred seventy of this\nchapter. Before proceeding with the jury that found the defendant\nguilty, the court shall determine whether any juror has a state of mind\nthat is likely to preclude the juror from rendering an impartial\ndecision based upon the evidence adduced during the proceeding. In\nmaking such determination the court shall personally examine each juror\nindividually outside the presence of the other jurors. The scope of the\nexamination shall be within the discretion of the court and may include\nquestions supplied by the parties as the court deems proper. The\nproceedings provided for in this subdivision shall be conducted on the\nrecord; provided, however, that upon motion of either party, and for\ngood cause shown, the court may direct that all or a portion of the\nrecord of such proceedings be sealed. In the event the court determines\nthat a juror has such a state of mind, the court shall discharge the\njuror and replace the juror with the alternate juror whose name was\nfirst drawn and called. If no alternate juror is available, the court\nmust discharge the jury and impanel another jury in accordance with\narticle two hundred seventy of this chapter.\n  3. For the purposes of a proceeding under this section each\nsubparagraph of paragraph (a) of subdivision one of section 125.27 of\nthe penal law shall be deemed to define an aggravating factor. Except as\nprovided in subdivision seven of this section, at a sentencing\nproceeding pursuant to this section the only aggravating factors that\nthe jury may consider are those proven beyond a reasonable doubt at\ntrial, and no other aggravating factors may be considered. Whether a\nsentencing proceeding is conducted before the jury that found the\ndefendant guilty or before another jury, the aggravating factor or\nfactors proved at trial shall be deemed established beyond a reasonable\ndoubt at the separate sentencing proceeding and shall not be\nrelitigated. Where the jury is to determine sentences for concurrent\ncounts of murder in the first degree, the aggravating factor included in\neach count shall be deemed to be an aggravating factor for the purpose\nof the jury's consideration in determining the sentence to be imposed on\neach such count.\n  4. The court on its own motion or on motion of either party, in the\ninterest of justice or to avoid prejudice to either party, may delay the\ncommencement of the separate sentencing proceeding.\n  5. Notwithstanding the provisions of article three hundred ninety of\nthis chapter, where a defendant is found guilty of murder in the first\ndegree, no presentence investigation shall be conducted; provided,\nhowever, that where the court is to impose a sentence of imprisonment, a\npresentence investigation shall be conducted and a presentence report\nshall be prepared in accordance with the provisions of such article.\n  6. At the sentencing proceeding the people shall not relitigate the\nexistence of aggravating factors proved at the trial or otherwise\npresent evidence, except, subject to the rules governing admission of\nevidence in the trial of a criminal action, in rebuttal of the\ndefendant's evidence. However, when the sentencing proceeding is\nconducted before a newly impaneled jury, the people may present evidence\nto the extent reasonably necessary to inform the jury of the nature and\ncircumstances of the count or counts of murder in the first degree for\nwhich the defendant was convicted in sufficient detail to permit the\njury to determine the weight to be accorded the aggravating factor or\nfactors established at trial. Whenever the people present such evidence,\nthe court must instruct the jury in its charge that any facts elicited\nby the people that are not essential to the verdict of guilty on such\ncount or counts shall not be deemed established beyond a reasonable\ndoubt. Subject to the rules governing the admission of evidence in the\ntrial of a criminal action, the defendant may present any evidence\nrelevant to any mitigating factor set forth in subdivision nine of this\nsection; provided, however, the defendant shall not be precluded from\nthe admission of reliable hearsay evidence. The burden of establishing\nany of the mitigating factors set forth in subdivision nine of this\nsection shall be on the defendant, and must be proven by a preponderance\nof the evidence. The people shall not offer evidence or argument\nrelating to any mitigating factor except in rebuttal of evidence offered\nby the defendant.\n  7. (a) The people may present evidence at the sentencing proceeding to\nprove that in the ten year period prior to the commission of the crime\nof murder in the first degree for which the defendant was convicted, the\ndefendant has previously been convicted of two or more offenses\ncommitted on different occasions; provided, that each such offense shall\nbe either (i) a class A felony offense other than one defined in article\ntwo hundred twenty of the penal law, a class B violent felony offense\nspecified in paragraph (a) of subdivision one of section 70.02 of the\npenal law, or a felony offense under the penal law a necessary element\nof which involves either the use or attempted use or threatened use of a\ndeadly weapon or the intentional infliction of or the attempted\nintentional infliction of serious physical injury or death, or (ii) an\noffense under the laws of another state or of the United States\npunishable by a term of imprisonment of more than one year a necessary\nelement of which involves either the use or attempted use or threatened\nuse of a deadly weapon or the intentional infliction of or the attempted\nintentional infliction of serious physical injury or death. For the\npurpose of this paragraph, the term "deadly weapon" shall have the\nmeaning set forth in subdivision twelve of section 10.00 of the penal\nlaw. In calculating the ten year period under this paragraph, any period\nof time during which the defendant was incarcerated for any reason\nbetween the time of commission of any of the prior felony offenses and\nthe time of commission of the crime of murder in the first degree shall\nbe excluded and such ten year period shall be extended by a period or\nperiods equal to the time served under such incarceration. The\ndefendant's conviction of two or more such offenses shall, if proven at\nthe sentencing proceeding, constitute an aggravating factor.\n  (b) In order to be deemed established, an aggravating factor set forth\nin this subdivision must be proven by the people beyond a reasonable\ndoubt and the jury must unanimously find such factor to have been so\nproven. The defendant may present evidence relating to an aggravating\nfactor defined in this subdivision and either party may offer evidence\nin rebuttal. Any evidence presented by either party relating to such\nfactor shall be subject to the rules governing admission of evidence in\nthe trial of a criminal action.\n  (c) Whenever the people intend to offer evidence of an aggravating\nfactor set forth in this subdivision, the people must within a\nreasonable time prior to trial file with the court and serve upon the\ndefendant a notice of intention to offer such evidence. Whenever the\npeople intend to offer evidence of the aggravating factor set forth in\nparagraph (a) of this subdivision, the people shall file with the notice\nof intention to offer such evidence a statement setting forth the date\nand place of each of the alleged offenses in paragraph (a) of this\nsubdivision. The provisions of section 400.15 of this chapter, except\nfor subdivisions one and two thereof, shall be followed.\n  8. Consistent with the provisions of this section, the people and the\ndefendant shall be given fair opportunity to rebut any evidence received\nat the separate sentencing proceeding.\n  9. Mitigating factors shall include the following:\n  (a) The defendant has no significant history of prior criminal\nconvictions involving the use of violence against another person;\n  (b) The defendant was mentally retarded at the time of the crime, or\nthe defendant's mental capacity was impaired or his ability to conform\nhis conduct to the requirements of law was impaired but not so impaired\nin either case as to constitute a defense to prosecution;\n  (c) The defendant was under duress or under the domination of another\nperson, although not such duress or domination as to constitute a\ndefense to prosecution;\n  (d) The defendant was criminally liable for the present offense of\nmurder committed by another, but his participation in the offense was\nrelatively minor although not so minor as to constitute a defense to\nprosecution;\n  (e) The murder was committed while the defendant was mentally or\nemotionally disturbed or under the influence of alcohol or any drug,\nalthough not to such an extent as to constitute a defense to\nprosecution; or\n  (f) Any other circumstance concerning the crime, the defendant's state\nof mind or condition at the time of the crime, or the defendant's\ncharacter, background or record that would be relevant to mitigation or\npunishment for the crime.\n  * 10. At the conclusion of all the evidence, the people and the\ndefendant may present argument in summation for or against the sentence\nsought by the people. The people may deliver the first summation and the\ndefendant may then deliver the last summation. Thereafter, the court\nshall deliver a charge to the jury on any matters appropriate in the\ncircumstances. In its charge, the court must instruct the jury that with\nrespect to each count of murder in the first degree the jury should\nconsider whether or not a sentence of death should be imposed and\nwhether or not a sentence of life imprisonment without parole should be\nimposed, and that the jury must be unanimous with respect to either\nsentence. The court must also instruct the jury that in the event the\njury fails to reach unanimous agreement with respect to the sentence,\nthe court will sentence the defendant to a term of imprisonment with a\nminimum term of between twenty and twenty-five years and a maximum term\nof life. Following the court's charge, the jury shall retire to consider\nthe sentence to be imposed. Unless inconsistent with the provisions of\nthis section, the provisions of sections 310.10, 310.20 and 310.30 shall\ngovern the deliberations of the jury.\n  * NB The jury deadlock instruction prescribed in sub 10 declared\nUNCONSTITUTIONAL under Article 1, Section 6 of the state Constitution\n  11. (a) The jury may not direct imposition of a sentence of death\nunless it unanimously finds beyond a reasonable doubt that the\naggravating factor or factors substantially outweigh the mitigating\nfactor or factors established, if any, and unanimously determines that\nthe penalty of death should be imposed. Any member or members of the\njury who find a mitigating factor to have been proven by the defendant\nby a preponderance of the evidence may consider such factor established\nregardless of the number of jurors who concur that the factor has been\nestablished.\n  (b) If the jury directs imposition of either a sentence of death or\nlife imprisonment without parole, it shall specify on the record those\nmitigating and aggravating factors considered and those mitigating\nfactors established by the defendant, if any.\n  (c) With respect to a count or concurrent counts of murder in the\nfirst degree, the court may direct the jury to cease deliberation with\nrespect to the sentence or sentences to be imposed if the jury has\ndeliberated for an extensive period of time without reaching unanimous\nagreement on the sentence or sentences to be imposed and the court is\nsatisfied that any such agreement is unlikely within a reasonable time.\nThe provisions of this paragraph shall apply with respect to consecutive\ncounts of murder in the first degree. In the event the jury is unable to\nreach unanimous agreement, the court must sentence the defendant in\naccordance with subdivisions one through three of section 70.00 of the\npenal law with respect to any count or counts of murder in the first\ndegree upon which the jury failed to reach unanimous agreement as to the\nsentence to be imposed.\n  (d) If the jury unanimously determines that a sentence of death should\nbe imposed, the court must thereupon impose a sentence of death.\nThereafter, however, the court may, upon written motion of the\ndefendant, set aside the sentence of death upon any of the grounds set\nforth in section 330.30. The procedures set forth in sections 330.40 and\n330.50, as applied to separate sentencing proceedings under this\nsection, shall govern the motion and the court upon granting the motion\nshall, except as may otherwise be required by subdivision one of section\n330.50, direct a new sentencing proceeding pursuant to this section.\nUpon granting the motion upon any of the grounds set forth in section\n330.30 and setting aside the sentence, the court must afford the people\na reasonable period of time, which shall not be less than ten days, to\ndetermine whether to take an appeal from the order setting aside the\nsentence of death. The taking of an appeal by the people stays the\neffectiveness of that portion of the court's order that directs a new\nsentencing proceeding.\n  (e) If the jury unanimously determines that a sentence of life\nimprisonment without parole should be imposed the court must thereupon\nimpose a sentence of life imprisonment without parole.\n  (f) Where a sentence has been unanimously determined by the jury it\nmust be recorded on the minutes and read to the jury, and the jurors\nmust be collectively asked whether such is their sentence. Even though\nno juror makes any declaration in the negative, the jury must, if either\nparty makes such an application, be polled and each juror separately\nasked whether the sentence announced by the foreman is in all respects\nhis or her sentence. If, upon either the collective or the separate\ninquiry, any juror answers in the negative, the court must refuse to\naccept the sentence and must direct the jury to resume its deliberation.\nIf no disagreement is expressed, the jury must be discharged from the\ncase.\n  12. (a) Upon the conviction of a defendant for the offense of murder\nin the first degree as defined in section 125.27 of the penal law, the\ncourt shall, upon oral or written motion of the defendant based upon a\nshowing that there is reasonable cause to believe that the defendant is\nmentally retarded, promptly conduct a hearing without a jury to\ndetermine whether the defendant is mentally retarded. Upon the consent\nof both parties, such a hearing, or a portion thereof, may be conducted\nby the court contemporaneously with the separate sentencing proceeding\nin the presence of the sentencing jury, which in no event shall be the\ntrier of fact with respect to the hearing. At such hearing the defendant\nhas the burden of proof by a preponderance of the evidence that he or\nshe is mentally retarded. The court shall defer rendering any finding\npursuant to this subdivision as to whether the defendant is mentally\nretarded until a sentence is imposed pursuant to this section.\n  (b) In the event the defendant is sentenced pursuant to this section\nto life imprisonment without parole or to a term of imprisonment for the\nclass A-I felony of murder in the first degree other than a sentence of\nlife imprisonment without parole, the court shall not render a finding\nwith respect to whether the defendant is mentally retarded.\n  (c) In the event the defendant is sentenced pursuant to this section\nto death, the court shall thereupon render a finding with respect to\nwhether the defendant is mentally retarded. If the court finds the\ndefendant is mentally retarded, the court shall set aside the sentence\nof death and sentence the defendant either to life imprisonment without\nparole or to a term of imprisonment for the class A-I felony of murder\nin the first degree other than a sentence of life imprisonment without\nparole. If the court finds the defendant is not mentally retarded, then\nsuch sentence of death shall not be set aside pursuant to this\nsubdivision.\n  (d) In the event that a defendant is convicted of murder in the first\ndegree pursuant to subparagraph (iii) of paragraph (a) of subdivision\none of section 125.27 of the penal law, and the killing occurred while\nthe defendant was confined or under custody in a state correctional\nfacility or local correctional institution, and a sentence of death is\nimposed, such sentence may not be set aside pursuant to this subdivision\nupon the ground that the defendant is mentally retarded. Nothing in this\nparagraph or paragraph (a) of this subdivision shall preclude a\ndefendant from presenting mitigating evidence of mental retardation at\nthe separate sentencing proceeding.\n  (e) The foregoing provisions of this subdivision notwithstanding, at a\nreasonable time prior to the commencement of trial the defendant may,\nupon a written motion alleging reasonable cause to believe the defendant\nis mentally retarded, apply for an order directing that a mental\nretardation hearing be conducted prior to trial. If, upon review of the\ndefendant's motion and any response thereto, the court finds reasonable\ncause to believe the defendant is mentally retarded, it shall promptly\nconduct a hearing without a jury to determine whether the defendant is\nmentally retarded. In the event the court finds after the hearing that\nthe defendant is not mentally retarded, the court must, prior to\ncommencement of trial, enter an order so stating, but nothing in this\nparagraph shall preclude a defendant from presenting mitigating evidence\nof mental retardation at a separate sentencing proceeding. In the event\nthe court finds after the hearing that the defendant, based upon a\npreponderance of the evidence, is mentally retarded, the court must,\nprior to commencement of trial, enter an order so stating. Unless the\norder is reversed on an appeal by the people or unless the provisions of\nparagraph (d) of this subdivision apply, a separate sentencing\nproceeding under this section shall not be conducted if the defendant is\nthereafter convicted of murder in the first degree. In the event a\nseparate sentencing proceeding is not conducted, the court, upon\nconviction of a defendant for the crime of murder in the first degree,\nshall sentence the defendant to life imprisonment without parole or to a\nsentence of imprisonment for the class A-I felony of murder in the first\ndegree other than a sentence of life imprisonment without parole.\nWhenever a mental retardation hearing is held and a finding is rendered\npursuant to this paragraph, the court may not conduct a hearing pursuant\nto paragraph (a) of this subdivision. For purposes of this subdivision\nand paragraph (b) of subdivision nine of this section, "mental\nretardation" means significantly subaverage general intellectual\nfunctioning existing concurrently with deficits in adaptive behavior\nwhich were manifested before the age of eighteen.\n  (f) In the event the court enters an order pursuant to paragraph (e)\nof this subdivision finding that the defendant is mentally retarded, the\npeople may appeal as of right from the order pursuant to subdivision ten\nof section 450.20 of this chapter. Upon entering such an order the court\nmust afford the people a reasonable period of time, which shall not be\nless than ten days, to determine whether to take an appeal from the\norder finding that the defendant is mentally retarded. The taking of an\nappeal by the people stays the effectiveness of the court's order and\nany order fixing a date for trial. Within six months of the effective\ndate of this subdivision, the court of appeals shall adopt rules to\nensure that appeals pursuant to this paragraph are expeditiously\nperfected, reviewed and determined so that pretrial delays are\nminimized. Prior to adoption of the rules, the court of appeals shall\nissue proposed rules and receive written comments thereon from\ninterested parties.\n  13. (a) As used in this subdivision, the term "psychiatric evidence"\nmeans evidence of mental disease, defect or condition in connection with\neither a mitigating factor defined in this section or a mental\nretardation hearing pursuant to this section to be offered by a\npsychiatrist, psychologist or other person who has received training, or\neducation, or has experience relating to the identification, diagnosis,\ntreatment or evaluation of mental disease, mental defect or mental\ncondition.\n  (b) When either party intends to offer psychiatric evidence, the party\nmust, within a reasonable time prior to trial, serve upon the other\nparty and file with the court a written notice of intention to present\npsychiatric evidence. The notice shall include a brief but detailed\nstatement specifying the witness, nature and type of psychiatric\nevidence sought to be introduced. If either party fails to serve and\nfile written notice, no psychiatric evidence is admissible unless the\nparty failing to file thereafter serves and files such notice and the\ncourt affords the other party an adjournment for a reasonable period. If\na party fails to give timely notice, the court in its discretion may\nimpose upon offending counsel a reasonable monetary sanction for an\nintentional failure but may not in any event preclude the psychiatric\nevidence. In the event a monetary sanction is imposed, the offending\ncounsel shall be personally liable therefor, and shall not receive\nreimbursement of any kind from any source in order to pay the cost of\nsuch monetary sanction. Nothing contained herein shall preclude the\ncourt from entering an order directing a party to provide timely notice.\n  (c) When a defendant serves notice pursuant to this subdivision, the\ndistrict attorney may make application, upon notice to the defendant,\nfor an order directing that the defendant submit to an examination by a\npsychiatrist, licensed psychologist, or licensed clinical social worker\ndesignated by the district attorney, for the purpose of rebutting\nevidence offered by the defendant with respect to a mental disease,\ndefect, or condition in connection with either a mitigating factor\ndefined in this section, including whether the defendant was acting\nunder duress, was mentally or emotionally disturbed or mentally\nretarded, or was under the influence of alcohol or any drug. If the\napplication is granted, the district attorney shall schedule a time and\nplace for the examination, which shall be recorded. Counsel for the\npeople and the defendant shall have the right to be present at the\nexamination. A transcript of the examination shall be made available to\nthe defendant and the district attorney promptly after its conclusion.\nThe district attorney shall promptly serve on the defendant a written\ncopy of the findings and evaluation of the examiner. If the court finds\nthat the defendant has wilfully refused to cooperate fully in an\nexamination pursuant to this paragraph, it shall, upon request of the\ndistrict attorney, instruct the jury that the defendant did not submit\nto or cooperate fully in such psychiatric examination. When a defendant\nis subjected to an examination pursuant to an order issued in accordance\nwith this subdivision, any statement made by the defendant for the\npurpose of the examination shall be inadmissible in evidence against him\nin any criminal action or proceeding on any issue other than that of\nwhether a mitigating factor has been established or whether the\ndefendant is mentally retarded, but such statement is admissible upon\nsuch an issue whether or not it would otherwise be deemed a privileged\ncommunication.\n  14. (a) At a reasonable time prior to the sentencing proceeding or a\nmental retardation hearing:\n  (i) the prosecutor shall, unless previously disclosed and subject to a\nprotective order, make available to the defendant the statements and\ninformation specified in subdivision one of section 245.20 of this part\nand make available for inspection, photographing, copying or testing the\nproperty specified in subdivision one of section 245.20; and\n  (ii) the defendant shall, unless previously disclosed and subject to a\nprotective order, make available to the prosecution the statements and\ninformation specified in subdivision four of section 245.20 and make\navailable for inspection, photographing, copying or testing, subject to\nconstitutional limitations, the reports, documents and other property\nspecified in section 245.20 of this part.\n  (b) Where a party refuses to make disclosure pursuant to this section,\nthe provisions of section 245.70, 245.75 and/or 245.80 of this part\nshall apply.\n  (c) If, after complying with the provisions of this section or an\norder pursuant thereto, a party finds either before or during a\nsentencing proceeding or mental retardation hearing, additional material\nsubject to discovery or covered by court order, the party shall promptly\nmake disclosure or apply for a protective order.\n  (d) If the court finds that a party has failed to comply with any of\nthe provisions of this section, the court may employ any of the remedies\nor sanctions specified in subdivision one of section 245.80 of this\npart.\n  15. The court of appeals shall formulate and adopt rules for the\ndevelopment of forms for use by the jury in recording its findings and\ndeterminations of sentence.\n