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With few days left in session, Mark’s Law faces hurdles

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Maricia L. Astafan isn’t sure why the bill honoring her stepbrother and protecting her fellow first responders hasn’t passed. And she doesn’t really care, either.

“It’s only there to show people they’re not going to get away with it if this happens again,” said Mrs. Astafan, 24, whose stepbrother, volunteer emergency medical technician Mark B. Davis, was shot dead by a man who was having a medical emergency.

The law, spearheaded by state Sen. Patricia A. Ritchie, R-Heuvelton, would allow prosecutors to charge the killers of firefighters, EMTs and paramedics with first-degree murder. The crime is punishable by life in prison; people who kill police officers can be charged with first-degree murder. As their name implies, first-responders are often on the scene of dangerous incidents before anybody else.

But for reasons that advocates find difficult to explain, the bill hasn’t passed yet in the Assembly. Lawmakers and supporters have offered a few theories, but none have been proven: police unions that don’t want to expand a definition that only applies to them, election-year sensitivities and opponents’ reluctance to pass a bill that wouldn’t apply to the crime it’s named after.

Mrs. Astafan, for one, heard that police unions were opposed to the bill. That could not be confirmed on Wednesday, though not all police unions in the state were contacted. There are five police unions in New York City alone.

Daniel F. Sisto, the legislative director for the New York State Troopers Police Benevolent Association, said that he hadn’t heard of the bill. But at first blush, he saw no reason to oppose the legislation.

“I’m not so arrogant to think my life is more important than a fireman or a nurse,” Mr. Sisto said. “If you want to make them as considered to be on par with first responders, personally, on behalf of the troopers union ,I don’t see any reason we’d oppose that.”

On the political debate, Assemblywoman Addie J. Russell, D-Theresa, said that there’s some reluctance to bring the bill to the floor in an election season. New York outlawed the death penalty during Gov. Mario Cuomo’s administration, but it’s a topic that still comes up from time to time.

“There’s a significant chance that this bill could be hijacked to set up a scenario where there could be a floor debate on the death penalty,” Mrs. Russell said. “I don’t feel that Mark’s good work should be used to help some political campaign.”

Then, there’s the fact that even if Mark’s Law had already been on the books when Mr. Davis was killed in 2009, his killer wouldn’t have been charged with first-degree murder.

Christopher G. Burke was sentenced to 16 years in prison in 2011 after he pleaded to a lesser manslaughter charge. Burke was “under influence of extreme emotional disturbance” in 2009 when he sprung from a couch, took a rifle and shot Mr. Davis.

That same exemption to plead the crime down if the perpetrator is under an extreme emotional disturbance would apply even under Mark’s Law. So Burke probably wouldn’t have served life in prison even if it had already been a law.

“When I get into the details (with fellow lawmakers), the fact that this case was pleaded down to manslaughter undercuts the argument somewhat,” Mrs. Russell said. “But I have to make the case that there would be a scenario where you charge the highest level of murder. It’s just the facts of this case are not perfectly aligned with that argument.”

Jefferson County District Attorney Cindy F. Intschert, who helped Mrs. Ritchie draft the legislation, said that it doesn’t matter whether the facts perfectly align.

The bill is in his honor and it’s meant to protect people like his stepsister, Mrs. Astafan, who is taking exams later this month to become a paramedic.

“Looking forward, there may well be the appropriate case” where life in prison is applied, Mrs. Intschert said, even though the Burke case was not.

The bill is currently stuck in an Assembly committee. The chamber’s leadership, which is controlled by the Democratic Party, is holding up the bill, Mrs. Russell said.

It already passed in the Senate, and did so unanimously. But it will have to pass again because of a technical change that Mrs. Russell made to broaden the category of first-responder. Mrs. Russell said that it will still protect firefighters, EMTs, nurses and paramedics.

For bills to become law, identical versions have to pass in the Senate and Assembly — down to the period. Mrs. Ritchie contacted Mrs. Russell today to say that she would pass the newer version of the bill in the Senate — a rare move for the lawmakers who are on opposite sides of the aisle and do not frequently communicate one-on-one.

Meanwhile, Mrs. Ritchie has launched a petition drive on her official Senate website to put pressure on the Assembly. There are only a handful of session days scheduled to get the bill passed before legislators go home to focus on their elections.

Mrs. Ritchie said she was confident that it would pass.

“I think it’s very important, with everybody who has supported and got behind this bill, that we do our due diligence,” Mrs. Ritchie said. “We want to make sure that session doesn’t end without the best possible chance for it to pass.”

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