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New York had no death penalty in effect between 1977 and 1994. Each year, the Legislature passed capital punishment legislation, which was vetoed 18 consecutive times by Democratic Govs. Hugh L. Carey and Mario M. Cuomo. Then Sen. George E. Pataki ran for governor in 1994 on a pro-death penalty platform and was elected. One of his first official acts was to sign, on March 7, 1995, a new law redefining first-degree murder and authorizing penalties of death or life without parole. The 1995 law: � Affords the district attorney has sole and unreviewable discretion on whether to seek the death penalty. However, in Johnson v. Pataki, 91 NY2d 214 (1997), the Court of Appeals held that Gov. Pataki had authority to remove anti-death penalty Bronx County District Attorney Robert T. Johnson from a potential capital case and replace him with the attorney general. � Allows the prosecutor 120 days after arraignment to file notice of intention to seek the death penalty. Notice can be withdrawn at any time, but once withdrawn cannot be refiled. � First-degree murder is punishable by death by lethal injection or life without parole. It can be imposed for intentional murder carried out during the commission of another violent crime (such as kidnapping, robbery or rape) or for the murder of a police officer or judge, murders involving torture or paid hit men. � Attempts to comport to Gregg v. Georgia, 428 U.S. 153 (1976), by allowing the jury to consider mitigating factors. � Attempts to comply with Furman v. Georgia, 408 U.S. 238 (1972), by requiring the jury to convict or acquit on aggravating factors. � Attempts to avoid Woodson v. North Carolina, 428 U.S. 280 (1976) issues through a bifurcated process in which the jury first determines guilt and then engages in individualized sentencing. The law restricted the ability of defendants to plead guilty. Under the statute, a first-degree murder defendant has no right to dispose of the case by pleading to the entire indictment and can be allowed to plead only with court permission and prosecutorial consent. That provision was an attempt to deal with United States v. Jackson, 390 U.S. 570 (1968), which admonished against using the death penalty as a bludgeon to coerce guilty pleas or an instrument to undermine trial rights. However, the Court of Appeals in Matter of Hynes v. Tomei, 92 NY2d 613 (1998), held the plea bargaining provisions unconstitutional. A DOZEN TYPES OF MURDER CAN LEAD TO DEATH PENALTY The 1995 law created a new definition of murder in the first degree to cover capital crimes. The statute authorized prosecutors to seek the death penalty for 12 types of intentional murders: 1. The killing of a police officer. 2. The killing of a court officer, parole officer, probation officer or juvenile correction officer. 3. The killing of anyone working for a state or local correctional institution. 4. Any killing by someone sentenced to a life term either while confined in prison or after having escaped from prison. 5. The killing of either a witness to a crime or an immediate family member of a witness. 6. Murder for hire. 7. Where a defendant has either killed someone or ordered someone else to kill while defendant is involved in the commission of one of 11 designated felonies. 8. The killing of two or more persons within a single criminal transaction. 9. A murder by someone who has previously been convicted of murder in the first or second degree. 10. Torture killing. 11. The killing of two or more persons within 24 months in a similar fashion or pursuant to a common plan. 12. The killing of a judge.

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