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The state's death penalty law, never used to execute anyone in the 10 years since being restored, met its own demise Tuesday. It was defeated by lawmakers on a key Assembly committee who questioned its ability to deter crime in a state that has since added "life without parole" to its sentencing arsenal.

"The bill is dead," said Assembly Codes Committee Chairman Joseph R. Lentol, D-Brooklyn, a one-time death penalty advocate. His comments came after his panel voted, 11-7, to reject a measure to correct a constitutional flaw found in the 1995 statute by the state's highest court last year.

The vote, at least for this year, means that the capital punishment law -- already on hold since the court's ruling last year -- remains out of reach for prosecutors.

"It's an important day in New York," said David Kaczynski, head of New Yorkers Against the Death Penalty.

But death penalty advocates said the victory will be short-lived. "They're not going to be able to resist doing the death penalty next year," State Sen. Dale M. Volker, R-Depew, longtime capital punishment advocate, said of the Assembly.

Volker said politics -- all 212 state lawmakers are up for re-election next year -- will drive the Assembly back to the issue in 2006. "It's not over," he said.

Capital punishment was approved by the Legislature year after year in the 1980s and early 1990s, only to be vetoed by then-Gov. Mario M. Cuomo. In 1995, his first year in office, Gov. George E. Pataki signed the death penalty into law.

After the Codes Committee vote Tuesday, Pataki accused Democratic leaders in the Assembly of "failing New Yorkers" and "denying its own members" the chance to bring the issue to the floor for a full Assembly vote.

Both Western New Yorkers on the committee -- Robin L. Schimminger, D-Kenmore, and Sandra Lee Wirth, R-Elma -- voted in favor of the death penalty reinstatement.

Prosecutors won death penalty sentences in seven cases across the state since 1995. The statute was not uniformly enforced, however; some prosecutors never sought the death penalty, while others readily turned to it.

In all, according to the capital defender's office, the death penalty was seriously considered in 877 cases since 1995. Seven men were sent to death row.

Several years ago, the Court of Appeals began a pattern of tossing out death penalty cases on largely technical grounds. Still, the court stayed away from wrestling with the larger issue: Is the statute itself constitutional?

Last year, the court struck down a key sentencing provision of the law. Under existing law, capital punishment juries were given two sentencing choices, both of which must be reached unanimously: either the death penalty or life in prison without parole. If juries could not reach unanimity, a judge would impose a sentence of life in prison with the possibility of parole.

That, the high court said, violates the defendant's right to due process because jurors could be swayed to vote for a death sentence out of fear that a deadlocked sentencing jury could allow a sentenced murderer out on parole after 20 years.

Death penalty opponents insist that New Yorkers are less thrilled with capital punishment in a state that now has "life without parole" and that the public has been turned off by cases in other states where innocent people have been on death row.

Erie County District Attorney Frank J. Clark said twists and turns the law has taken in the Legislature and the state's courts have made it more difficult to take on death penalty cases. He said the Legislature needs to decide whether it wants a death penalty.

Since 1995, Clark said, he had about 18 potential death penalty cases. He sought the death penalty in two of them: Robert Smith, who killed an elderly couple in their East Side home, and Jonathan Parker, who was convicted in the shooting death of Buffalo Police Officer Charles "Skip" McDougald. Smith was considered mentally impaired; he pleaded guilty to murder and was sentenced to two consecutive sentences of life in prison without parole. Parker was sentenced by a jury to life without parole.


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