Amendment Concerning Aggravated Murder Involving a Child
LAWS OF NEW YORK, 2009
CHAPTER 482

AN ACT to amend the penal law, in relation to the crime of aggravated
murder involving a child

Became a law October 9, 2009, with the approval of the Governor.
Passed by a majority vote, three-fifths being present.

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

Section 1. Paragraph (b) of subdivision 1 and the opening paragraph of
subdivision 3 of section 125.26 of the penal law, as added by chapter
765 of the laws of 2005, are amended, subdivision 2 is renumbered subdi-
vision 3 and a new subdivision 2 is added to read as follows:

(b) The defendant was more than eighteen years old at the time of the
commission of the crime[.]; or

2. (a) With intent to cause the death of a person less than fourteen
years old, he or she causes the death of such person, and the defendant
acted in an especially cruel and wanton manner pursuant to a course of
conduct intended to inflict and inflicting torture upon the victim prior
to the victim's death. As used in this subdivision, "torture" means the
intentional and depraved infliction of extreme physical pain that is
separate and apart from the pain which otherwise would have been associ-
ated with such cause of death; and

(b) The defendant was more than eighteen years old at the time of the
commission of the crime.

In any prosecution under subdivision one or two of this section, it is
an affirmative defense that:

§ 2. Subdivision 5 of section 70.00 of the penal law, as amended by
chapter 765 of the laws of 2005, is amended to read as follows:

5. Life imprisonment without parole. Notwithstanding any  other
provision of law, a defendant sentenced to life imprisonment without
parole shall not be or become eligible for parole or conditional
release. For purposes of commitment and custody, other than parole and
conditional release, such sentence shall be deemed to be an indetermi-
nate sentence. A defendant may be sentenced to life imprisonment with-
out parole upon conviction for the crime of murder in the first degree
as defined in section 125.27 of this chapter and in accordance with the
procedures provided by law for imposing a sentence for such crime. A
defendant must be sentenced to life imprisonment without parole upon
conviction for the crime of terrorism as defined in section 490.25 of
this chapter, where the specified offense the defendant committed is a
class A-I felony; the crime of criminal possession of a chemical weapon
or biological weapon in the first degree as defined in section 490.45 of
this chapter; or the crime of criminal use of a chemical weapon or
biological weapon in the first degree as defined in section 490.55 of
this chapter; provided, however, that nothing in this subdivision shall
preclude or prevent a sentence of death when the defendant is also
convicted of the crime of murder in the first degree as defined in
section 125.27 of this chapter. A defendant must be sentenced to life

CHAP. 482 2

imprisonment without parole upon conviction for the crime of murder in
the second degree as defined in subdivision five of section 125.25 of
this chapter or for the crime of aggravated murder as defined in subdi-
vision one of
section 125.26 of this chapter.  A defendant may be
sentenced to life imprisonment without parole upon conviction for the
crime of aggravated murder as defined in subdivision two of section
125.26 of this chapter.

§ 3. Section 60.06 of the penal law, as amended by chapter 765 of the
laws of 2005, the section heading as amended by chapter 93 of the laws
of 2006, is amended to read as follows:

§ 60.06 Authorized disposition; murder in the first degree offenders;
aggravated murder offenders; certain murder in the second
degree offenders; certain terrorism  offenders;  criminal
possession of a chemical weapon or biological weapon offen-
ders; criminal use of a chemical weapon or biological weapon
offenders.

When a defendant is convicted of murder in the first degree as defined
in section 125.27 of this chapter, the court shall, in accordance with
the provisions of section 400.27 of the criminal procedure law, sentence
the defendant to death, to life imprisonment without parole in accord-
ance with subdivision five of section 70.00 of this title, or to a term
of imprisonment for a class A-I felony other than a sentence of life
imprisonment without parole, in accordance with subdivisions one through
three of section 70.00 of this title. When a person is convicted of
murder in the second degree as defined in subdivision five of section
125.25 of this chapter or of the crime of aggravated murder as defined
in subdivision one of section 125.26 of this chapter, the court shall
sentence the defendant to life imprisonment without parole in accordance
with subdivision five of section 70.00 of this title. When a defendant
is convicted of the crime of terrorism as defined in section 490.25 of
this chapter, and the specified offense the defendant committed is a
class A-I felony offense, or when a defendant is convicted of the crime
of criminal possession of a chemical weapon or biological weapon in the
first degree as defined in section 490.45 of this chapter, or when a
defendant is convicted of the crime of criminal use of a chemical weapon
or biological weapon in the first degree as defined in section 490.55 of
this chapter, the court shall sentence the defendant to life imprison-
ment without parole in accordance with subdivision five of section 70.00
of this title; provided, however, that nothing in this section shall
preclude or prevent a sentence of death when the defendant is also
convicted of murder in the first degree as defined in section 125.27 of
this chapter. When a defendant is convicted of aggravated murder as
defined in subdivision two of section 125.26 of this chapter, the court
shall sentence the defendant to life imprisonment without parole or to a
term of imprisonment for a class A-I felony other than a sentence of
life imprisonment without parole, in accordance with subdivisions one
through three of section 70.00 of this title.

§ 4. This act shall take effect immediately.


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


MALCOLM A. SMITH
Temporary President of the Senate

SHELDON SILVER
Speaker of the Assembly


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