400.27 Bard Flashcards
400.27 Procedure for determining sentence upon conviction for the offense of murder in the first degree.
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After a defendant is convicted of murder in the first degree, the court will hold a separate sentencing hearing to decide whether the defendant should be sentenced to death or to life in prison without parole. However, the prosecution can decide at any time that they do not want to seek the death penalty in a particular case. If that happens, the sentencing hearing will not be held and the court will sentence the defendant to life in prison without parole or to a lesser sentence.
400.27 Procedure for determining sentence upon conviction for the offense of murder in the first degree.
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Upon conviction for murder in the first degree, the court will hold a sentencing hearing with the same jury that found the defendant guilty. The court can only discharge the jury and impanel another jury in extraordinary circumstances and for good cause, such as prejudice to either party. If a new jury is impaneled, it will be selected in accordance with the usual procedures.
Before proceeding with the sentencing hearing, the court will determine whether any juror has a state of mind that would prevent them from making an impartial decision based on the evidence. The court will do this by questioning each juror individually outside the presence of the other jurors. The scope of the questioning is within the court’s discretion and may include questions submitted by the parties. The proceedings will be recorded, but the court may seal the record for good cause.
If the court determines that a juror has a state of mind that would prevent them from making an impartial decision, the court will discharge the juror and replace them with the first available alternate juror. If no alternate juror is available, the court will discharge the jury and impanel a new jury.
400.27 Procedure for determining sentence upon conviction for the offense of murder in the first degree.
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In the sentencing hearing for murder in the first degree, the jury may only consider aggravating factors that were proven beyond a reasonable doubt at trial. Any aggravating factors that were proven at trial will be deemed to be established beyond a reasonable doubt at the sentencing hearing and will not be relitigated.
If the defendant is convicted of multiple concurrent counts of murder in the first degree, the jury may consider all of the aggravating factors proven for each count when determining the sentence for each count.
400.27 Procedure for determining sentence upon conviction for the offense of murder in the first degree.
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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.
400.27 Procedure for determining sentence upon conviction for the offense of murder in the first degree.
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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
400.27 Procedure for determining sentence upon conviction for the offense of murder in the first degree.
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At the sentencing hearing, the prosecution cannot re-litigate the existence of aggravating factors that were proven at trial. However, if the sentencing hearing is conducted before a new jury, the prosecution may present evidence to explain the nature and circumstances of the crime(s) for which the defendant was convicted.
The defendant may present any evidence relevant to any mitigating factor, including reliable hearsay evidence.
The burden of establishing any of the mitigating factors set forth in subdivision nine of this section shall be on the____________ and must be proven by _____________________ .
The _____________ shall not offer evidence or argument relating to any mitigating factor except in rebuttal of evidence offered by the defendant.
defendant,…….a preponderance of the evidence……….people
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 was a class a felony or class be violent felony or a felony where a deadly weapon was used or an offense defined as such under the laws of another state or united states which as a possible sentence of one year or more
If a murder defendant in New York was incarcerated for any reason between the time of their prior felony convictions and the time of the murder, the ten-year period used to determine whether they have two or more prior felony convictions is extended by the amount of time they served in prison.
The defendant’s conviction of two or more such offenses shall, if proven at the sentencing proceeding, constitute an aggravating factor.
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(b)
To prove an aggravating factor in murder sentencing, the prosecution must prove it beyond a reasonable doubt and the jury must unanimously agree. The defendant can present evidence to refute the aggravating factor, and both sides can present rebuttal evidence. All evidence must follow the rules of evidence for criminal trials.
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If the prosecution intends to use an aggravating factor in murder sentencing, they must notify the court and the defendant in a reasonable time before trial and serve notice on the defendant. If the aggravating factor is a prior conviction, the prosecution must also provide the date and place of each alleged offense.
The people and the defendant shall be given fair opportunity to rebut any evidence received at the separate sentencing proceeding.
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After both sides have presented their evidence, the prosecution and the defendant can give closing arguments. The prosecution speaks first, then the defendant.
The judge then charges the jury:
The jury must unanimously decide whether to sentence the defendant to death or life in prison without parole. If they cannot agree, the judge will sentence the defendant to 20-25 years in prison with the possibility of parole.
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
- 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.
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