Bill Text: NY A04273 | 2019-2020 | General Assembly | Introduced


Bill Title: Relates to the modification of the procedure for interviews of parole applicants and to the disclosure of parole applicant records.

Spectrum: Strong Partisan Bill (Democrat 16-1)

Status: (Introduced) 2019-02-01 - referred to correction [A04273 Detail]

Download: New_York-2019-A04273-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          4273
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    February 1, 2019
                                       ___________
        Introduced  by  M. of A. AUBRY -- Multi-Sponsored by -- M. of A. ARROYO,
          BARRETT, BARRON, CRESPO, FAHY, GOTTFRIED, HEVESI,  MONTESANO,  MOSLEY,
          O'DONNELL,  ORTIZ,  PERRY,  RODRIGUEZ,  SIMON, THIELE -- read once and
          referred to the Committee on Correction
        AN ACT to amend the executive law, in relation to modifying  the  proce-
          dure  for  interviews  of  parole  applicants and to the disclosure of
          parole applicant records
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section  1.  Paragraph  (a)  of  subdivision 2 of section 259-i of the
     2  executive law, as amended by section 38-f-1 of subpart A of  part  C  of
     3  chapter 62 of the laws of 2011, is amended to read as follows:
     4    (a)  (i) Except as provided in subparagraph (ii) of this paragraph, at
     5  least [one month] three months prior to the date on which [an inmate]  a
     6  parole  applicant  may be paroled pursuant to subdivision one of section
     7  70.40 of the penal law, a member or members as determined by  the  rules
     8  of  the  board shall personally interview such [inmate] parole applicant
     9  and determine whether he or she should be paroled in accordance with the
    10  [guidelines] procedures adopted pursuant to subdivision four of  section
    11  two  hundred  fifty-nine-c  of  this article.   The interview shall take
    12  place with all parties present in the same room. The interview shall  be
    13  recorded  audio-visually  and  this recording shall be made available to
    14  the board and the parole applicant or the parole  applicant's  represen-
    15  tative  only.  At  least  one  month  prior to the parole hearing parole
    16  applicants shall be provided the opportunity  to  review  all  documents
    17  contained  in their parole file or that otherwise will be made available
    18  for the board's discretionary release consideration. No documents  shall
    19  be  considered  confidential  except  as provided in subparagraph (i) of
    20  paragraph (c) of this subdivision. Records concerning or relating to the
    21  mental health examination or treatment of the parole applicant shall  be
    22  disclosed  unless,  in  accordance with the standards and procedures set
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD08112-01-9

        A. 4273                             2
     1  forth in section 33.16 of the mental hygiene law, it is determined by  a
     2  mental  health  practitioner  that  such  disclosure  can  reasonably be
     3  expected to cause substantial and identifiable harm to the parole appli-
     4  cant  or others and that this harm would outweigh the parole applicant's
     5  right of access to the record. At least thirty days  before  the  parole
     6  hearing,  if  requested  by the victim, as the term victim is defined in
     7  subdivision two of section 380.50 of the  criminal  procedure  law,  the
     8  following  information  shall be provided to the victim, or the victim's
     9  representative: inmate status reports; inmate's psychiatric  evaluation,
    10  if  there  is  one available and only upon  consent of the parole appli-
    11  cant; and a copy of the parole applicant's "parole release plan" in  the
    12  event that the applicant submits one. If parole is not granted upon such
    13  review,  the  [inmate] board will be required to state in detail and not
    14  in conclusory terms the factors and  reasons  for  the  denial  and  the
    15  specific  requirements  for actions to be taken, programs or accomplish-
    16  ments to be completed, or changes in performance or conduct to be  made,
    17  or  corrective  action  or  actions to be taken, in order to qualify for
    18  parole release. The board shall specify a date not more than twenty-four
    19  months from such determination for reconsideration. The parole applicant
    20  shall be informed in writing within two weeks of such appearance of  the
    21  factors  and  reasons  for such denial of parole[. Such reasons shall be
    22  given in detail and not in conclusory terms. The board shall  specify  a
    23  date not more than twenty-four months from such determination for recon-
    24  sideration, and the procedures to be followed upon reconsideration shall
    25  be  the same] and the specific requirements and shall be provided with a
    26  copy of the scored risk and needs assessment  instrument  considered  by
    27  the  board.   Within ninety days of the hearing decision, the department
    28  shall provide to the parole applicant access to the program or programs,
    29  activities and/or facilities needed in order to provide the  opportunity
    30  to fulfill the requirements set forth by the board. The parole applicant
    31  shall  be  scheduled for a reappearance before the board upon completion
    32  of the specific requirements as previously set forth  by  the  board  if
    33  such  completion  occurs sooner than the date specified by the board. If
    34  the requirements previously set forth by the board have been successful-
    35  ly completed and the parole applicant's institutional  record  has  been
    36  satisfactory  during  the  time  between the previous and current parole
    37  hearing, release shall be granted.  If the [inmate] parole applicant  is
    38  released,  he  or she shall be given a copy of the conditions of parole.
    39  Such conditions shall where appropriate, include a requirement that  the
    40  parolee  comply  with  any  restitution  order, mandatory surcharge, sex
    41  offender registration fee and DNA databank fee previously imposed  by  a
    42  court  of competent jurisdiction that applies to the parolee. The condi-
    43  tions shall indicate which  restitution  collection  agency  established
    44  under subdivision eight of section 420.10 of the criminal procedure law,
    45  shall be responsible for collection of restitution, mandatory surcharge,
    46  sex  offender registration fees and DNA databank fees as provided for in
    47  section 60.35 of the penal law and section eighteen hundred nine of  the
    48  vehicle and traffic law.
    49    (ii)  Any  [inmate]  parole applicant who is scheduled for presumptive
    50  release pursuant to section eight hundred  six  of  the  correction  law
    51  shall  not  appear  before  the board as provided in subparagraph (i) of
    52  this paragraph  unless  such  [inmate's]  parole  applicant's  scheduled
    53  presumptive release is forfeited, canceled, or rescinded subsequently as
    54  provided in such law. In such event, the [inmate] parole applicant shall
    55  appear before the board for release consideration as provided in subpar-
    56  agraph (i) of this paragraph as soon thereafter as is practicable.

        A. 4273                             3
     1    §  2. Paragraph (a) of subdivision 2 of section 259-i of the executive
     2  law, as amended by section 38-f-2 of subpart A of part C of  chapter  62
     3  of the laws of 2011, is amended to read as follows:
     4    (a)  At  least [one month] three months prior to the expiration of the
     5  minimum period or periods of imprisonment fixed by the court or board, a
     6  member or members  as  determined  by  the  rules  of  the  board  shall
     7  personally  interview [an inmate] a parole applicant serving an indeter-
     8  minate sentence and determine whether he or she should be paroled at the
     9  expiration of the minimum period  or  periods  in  accordance  with  the
    10  procedures  adopted  pursuant to subdivision four of section two hundred
    11  fifty-nine-c.  The interview shall take place with all  parties  present
    12  in  the  same  room.  The interview shall be recorded audio-visually and
    13  this recording shall be made available  to  the  board  and  the  parole
    14  applicant  or  the  parole applicant's representative only. At least one
    15  month prior to the parole hearing parole applicants  shall  be  provided
    16  the  opportunity  to review all documents contained in their parole file
    17  or that otherwise will be made available for the  board's  discretionary
    18  release  consideration.  No  documents  shall be considered confidential
    19  except as provided in subparagraph (i) of paragraph (c) of this subdivi-
    20  sion.  Records concerning or relating to the mental  health  examination
    21  or  treatment  of  the  parole  applicant  shall be disclosed unless, in
    22  accordance with the standards and procedures set forth in section  33.16
    23  of  the  mental hygiene law, it is determined by a mental health practi-
    24  tioner that such disclosure can reasonably be expected to cause substan-
    25  tial and identifiable harm to the parole applicant or  others  and  that
    26  this  harm  would outweigh the parole applicant's right of access to the
    27  record. At least thirty days before the parole hearing, if requested  by
    28  the  victim, as the term victim is defined in subdivision two of section
    29  380.50 of the criminal procedure law, the following information shall be
    30  provided to the victim, or the victim's  representative:  inmate  status
    31  reports;  inmate's psychiatric evaluation, if there is one available and
    32  only upon consent of the parole applicant; and  a  copy  of  the  parole
    33  applicant's  "parole  release  plan"  in  the  event  that the applicant
    34  submits one. If parole is not granted upon  such  review,  the  [inmate]
    35  board  will  be  required to state in detail and not in conclusory terms
    36  the factors and reasons for the denial and the specific requirements for
    37  actions to be taken, programs or accomplishments  to  be  completed,  or
    38  changes  in  performance  or conduct to be made, or corrective action or
    39  actions to be taken, in order to qualify for parole release.  The  board
    40  shall specify a date not more than twenty-four months from such determi-
    41  nation  for  reconsideration.  The parole applicant shall be informed in
    42  writing within two weeks of such appearance of the factors  and  reasons
    43  for  such  denial  of parole[. Such reasons shall be given in detail and
    44  not in conclusory terms. The board shall specify a date  not  more  than
    45  twenty-four  months from such determination for reconsideration, and the
    46  procedures to be followed upon reconsideration shall be  the  same]  and
    47  the  specific  requirements  and  shall  be  provided with a copy of the
    48  scored risk and needs assessment instrument  considered  by  the  board.
    49  Within ninety days of the hearing decision, the department shall provide
    50  to  the  parole  applicant access to the program or programs, activities
    51  and/or facilities needed in order to provide the opportunity to  fulfill
    52  the  requirements  set forth by the board. The parole applicant shall be
    53  scheduled for a reappearance before the board  upon  completion  of  the
    54  specific  requirements  as  previously  set  forth  by the board if such
    55  completion occurs sooner than the date specified by the  board.  If  the
    56  requirements  previously  set  forth by the board have been successfully

        A. 4273                             4
     1  completed and the  parole  applicant's  institutional  record  has  been
     2  satisfactory  during  the  time  between the previous and current parole
     3  hearing, release shall be granted.  If the [inmate] parole applicant  is
     4  released,  he  or she shall be given a copy of the conditions of parole.
     5  Such conditions shall where appropriate, include a requirement that  the
     6  parolee comply with any restitution order and mandatory surcharge previ-
     7  ously  imposed  by a court of competent jurisdiction that applies to the
     8  parolee. The conditions  shall  indicate  which  restitution  collection
     9  agency  established  under  subdivision  eight  of section 420.10 of the
    10  criminal procedure law, shall be responsible for collection of  restitu-
    11  tion  and  mandatory  surcharge  as provided for in section 60.35 of the
    12  penal law and section eighteen hundred nine of the vehicle  and  traffic
    13  law.
    14    §  3. Paragraph (c) of subdivision 2 of section 259-i of the executive
    15  law, as separately amended by chapters 40 and 126 of the  laws  of  1999
    16  and  subparagraph  (A) as amended by chapter 130 of the laws of 2016, is
    17  amended to read as follows:
    18    (c) [(A)] (i) Discretionary release on parole shall [not]  be  granted
    19  [merely  as a reward] for good conduct [or] and efficient performance of
    20  duties while confined [but after considering if there  is  a  reasonable
    21  probability],  and  for  preparedness for reentry and reintegration into
    22  society thereby providing a reasonable basis to conclude that,  if  such
    23  [inmate]  person  is released, he or she will live and remain at liberty
    24  without violating the law, and therefore that his or her release is  not
    25  incompatible  with the welfare of society [and will not so deprecate the
    26  seriousness of his crime as to undermine respect for law]. In making the
    27  parole release decision, the procedures adopted pursuant to  subdivision
    28  four  of  section two hundred fifty-nine-c of this article shall require
    29  that the [following be considered] decision be based upon the  following
    30  considerations:  [(i)  the  institutional record including program goals
    31  and accomplishments, academic achievements, vocational education, train-
    32  ing or  work  assignments,  therapy  and  interactions  with  staff  and
    33  inmates]  (A) preparedness for reentry and reintegration as evidences by
    34  the  applicant's  institutional  record  pertaining to program goals and
    35  accomplishments as stated in the facility performance reports,  academic
    36  achievements, vocational education, training or work assignments, thera-
    37  py  and  interactions  with staff and other sentenced persons, and other
    38  indications of pro-social activity, change  and  transformation;  [(ii)]
    39  (B)  performance,  if  any,  as  a  participant  in  a temporary release
    40  program;  [(iii)]  (C)  release  plans  including  community  resources,
    41  employment, education and training and support services available to the
    42  [inmate]  parole  applicant;  [(iv)] (D) any deportation order issued by
    43  the federal government against the [inmate] parole  applicant  while  in
    44  the  custody of the department and any recommendation regarding deporta-
    45  tion made by the commissioner of the department pursuant to section  one
    46  hundred  forty-seven  of  the  correction  law; [(v)] (E) any current or
    47  prior statement, whether supportive or critical, made to  the  board  by
    48  the  crime victim or the victim's representative, where the crime victim
    49  is deceased or is mentally or physically incapacitated,  to  assist  the
    50  board  in  determining whether at this time there is reasonable cause to
    51  believe that the release of the  parole applicant would create a present
    52  danger to the victim or the victim's representative, or  the  extent  of
    53  the parole applicant's preparedness for reentry and reintegration as set
    54  forth  in  clause (A) of this subparagraph; [(vi)] (F) the length of the
    55  determinate sentence to which the inmate would be subject had he or  she
    56  received  a  sentence  pursuant to section 70.70 or section 70.71 of the

        A. 4273                             5
     1  penal law for a felony defined in article two hundred twenty or  article
     2  two  hundred  twenty-one of the penal law; [(vii) the seriousness of the
     3  offense with due consideration  to  the  type  of  sentence,  length  of
     4  sentence  and  recommendations  of  the  sentencing  court, the district
     5  attorney, the attorney for the inmate, the pre-sentence probation report
     6  as well as consideration of any mitigating and aggravating factors,  and
     7  activities following arrest prior to confinement; and (viii) prior crim-
     8  inal record, including the nature and pattern of offenses, adjustment to
     9  any  previous probation or parole supervision and institutional confine-
    10  ment]   (G)   participation   and   performance,   if    any,    in    a
    11  reconciliation/restorative  justice-type  conference  with the victim or
    12  victim's representatives; (H) the progress made towards  the  completion
    13  of  the  specific requirements previously set forth by the board for the
    14  parole applicant, in the case of a reappearance; and  (I)  the  progress
    15  made  towards achieving the programming and treatment needs developed in
    16  the transitional accountability plan.  The board shall provide toll free
    17  telephone access for crime victims. In the case  of  an  oral  statement
    18  made  in accordance with subdivision one of section 440.50 of the crimi-
    19  nal procedure law, the parole  board  member  shall  present  a  written
    20  report  of the statement to the parole board. A crime victim's represen-
    21  tative shall mean [the crime  victim's  closest  surviving  relative]  a
    22  member  of  the  family  or  domestic  partner of such crime victim, the
    23  committee or guardian of such person, or the legal representative of any
    24  such person.  Such statement submitted by the victim or victim's  repre-
    25  sentative may include information concerning threatening or intimidating
    26  conduct  toward the victim, the victim's representative, or the victim's
    27  family, made by the person sentenced and occurring after the sentencing.
    28  Such information may include, but need not be limited to, the  threaten-
    29  ing or intimidating conduct of any other person who or which is directed
    30  by  the  person  sentenced.  Any  statement  by a victim or the victim's
    31  representative made to the board shall be maintained by  the  department
    32  in  the  file  provided  to  the  board  when interviewing the inmate in
    33  consideration of release. A victim or victim's  representative  who  has
    34  submitted a written request to the department for the transcript of such
    35  interview shall be provided such transcript as soon as it becomes avail-
    36  able.
    37    [(B)]  (ii) Where a crime victim or victim's representative as defined
    38  in subparagraph [(A)] (i) of this paragraph, or other person submits  to
    39  the  parole  board  a  written  statement  concerning the release of [an
    40  inmate] a parole applicant, the parole board shall  keep  that  individ-
    41  ual's name and address confidential. With regard to any statement from a
    42  judge  or  district attorney, the address, if residential, shall be kept
    43  confidential by the board.
    44    § 4. This act shall take effect on the one hundred eightieth day after
    45  it shall have become a law; provided that the  amendments  to  paragraph
    46  (a)  of  subdivision  2  of  section  259-i of the executive law made by
    47  section one of this act shall be subject to the expiration and reversion
    48  of such paragraph as provided by section 74 of chapter 3 of the laws  of
    49  1995,  as  amended, when upon such date the provisions of section two of
    50  this act shall take effect.
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