Sponsored by Sen. Robert Ortt, R-Lockport and Senate minority leader, S.9326 is co-sponsored by Sen. George Borrello, R-Sunset Bay, and fellow Republican senators Andrew Lanza, Patrick Gallivan and Phil Boyle. Companion legislation (A.10564) has been introduced in the Assembly by William Barclay, R-Fulton and Assembly minority leader, with co-sponsorship by Assemblyman Joe Giglio, R-Gowanda. Lee Zeldin, Republican candidate for governor, signaled support for the reinstatement of the death penalty in the aftermath of the mass shooting in Buffalo that killed 10 people.

Ortt and Barclay propose to make the death penalty available for those convicted of first-degree murder for the intentional killing of police officers and first responders, the intentional killing of two or more people, the intentional killing of another person as a hate crime, and the intentional killing of another person in the furtherance of terrorism.

“At a time when violent crime is out of control and murder rates are rising, it is critical that prosecutors have all possible sentencing options available for murders with these extreme aggravating circumstances, including the death penalty,” Ortt and Barclay wrote in their legislative justification.

The last execution took place in 1963, when Eddie Lee Mays was electrocuted at Sing Sing Prison.

Sen. Robert Ortt, R-Lockport and Senate minority leader, speaks during a news conference in Albany.

See BILL, Page A3

New York was without a death penalty until 1995, when Gov. George Pataki signed a new statute into law, which provided for execution by lethal injection.

A Spectrum News report in the aftermath of the Tops Market shooting in Buffalo noted there isn’t recent public polling on the issue. A 2005 Siena College poll found most voters polled then favored life in prison to the death penalty by a 56% to 29% margin.

On June 24, 2004, the New York Court of Appeals, the state’s highest court, ruled in People v. LaValle that the state’s death penalty statute violated the state constitution. Subsequent legislative attempts at fixing or replacing the statute have failed, prompting former Gov. David Paterson to issue an executive order ending New York’s death row in 2008. Ortt and Barclay said the decision People v. LaValle didn’t say the death penalty itself was unconstitutional, but took issue with part of the state law — a fact that can be remedied by the legislature.

Ortt and Barclay said their legislation specifically addresses the court’s issues by requiring a judge in a capital murder case instruct the jury that if they don’t reach unanimous agreement with respect to the sentence, the defendant be sentenced to life without parole.

“In 2004, the Court of Appeals, in People v. LaValle, 3 N.Y.3d 388, found that a specific provision of New York’s death penalty statute relating to a jury instruction for deadlocked juries was violated the Due Process Clause of the New York State Constitution,” Ortt and Barclay wrote in their legislative justification. “This decision rendered the entire death penalty statute unenforceable and consequently, the death penalty has not been available as a possible sentence for even the most extreme of murders since that decision was handed down. The Court of Appeals did not find that the death penalty is an unconstitutional sentence, but rather made clear that the flaw in the procedure for imposing the death penalty can be fixed by the legislature.”