Section 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 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 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.