2023 New York Laws › CPL - Criminal Procedure › Part 2 - The Principal Proceedings › Title L - Sentence › Article 400 - Pre-Sentence Proceedings › 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.