Bill Text: NY A04347 | 2021-2022 | General Assembly | Amended

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Bill Title: Relates to medical parole and determinations of whether a person released on medical parole is physically or cognitively incapable of presenting a danger to society.

Spectrum: Partisan Bill (Democrat 6-0)

Status: (Introduced - Dead) 2022-04-28 - advanced to third reading cal.530 [A04347 Detail]

Download: New_York-2021-A04347-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                         4347--A

                               2021-2022 Regular Sessions

                   IN ASSEMBLY

                                    February 1, 2021
                                       ___________

        Introduced  by  M.  of A. WEPRIN, AUBRY, O'DONNELL, GOTTFRIED, WALKER --
          read once and referred to the Committee on Correction  --  recommitted
          to  the  Committee  on  Correction in accordance with Assembly Rule 3,
          sec. 2 -- committee discharged, bill  amended,  ordered  reprinted  as
          amended and recommitted to said committee

        AN ACT to amend the executive law, in relation to medical parole

          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 1  of  section  259-r  of  the
     2  executive  law,  as  amended by section 14 of chapter 322 of the laws of
     3  2021, is amended to read as follows:
     4    (a) The board shall have the power to release on  medical  parole  any
     5  incarcerated individual serving an indeterminate or determinate sentence
     6  of  imprisonment  who,  pursuant to subdivision two of this section, has
     7  been certified to be suffering from a  terminal  condition,  disease  or
     8  syndrome  and  to  be  so  debilitated  or  incapacitated as to create a
     9  reasonable probability that he or she is physically or cognitively inca-
    10  pable of presenting [any] a danger to society, provided,  however,  that
    11  no  incarcerated individual serving a sentence imposed upon a conviction
    12  for murder in the first degree or an attempt  or  conspiracy  to  commit
    13  murder  in  the  first  degree  shall  be eligible for such release, and
    14  provided further that no  incarcerated  individual  serving  a  sentence
    15  imposed  upon  a  conviction  for any of the following offenses shall be
    16  eligible for such  release  unless  in  the  case  of  an  indeterminate
    17  sentence he or she has served at least one-half of the minimum period of
    18  the  sentence  and  in  the case of a determinate sentence he or she has
    19  served at least one-half of the term of his or her determinate sentence:
    20  murder in the second degree,  manslaughter  in  the  first  degree,  any
    21  offense  defined  in  article  one hundred thirty of the penal law or an
    22  attempt to commit any of these  offenses.  Solely  for  the  purpose  of
    23  determining  medical  parole  eligibility pursuant to this section, such

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04335-02-2
        A. 4347--A                          2

     1  one-half of the minimum period of the indeterminate  sentence  and  one-
     2  half  of the term of the determinate sentence shall not be credited with
     3  any time served under the jurisdiction of the department  prior  to  the
     4  commencement  of  such  sentence  pursuant  to  the opening paragraph of
     5  subdivision one of section 70.30 of the penal law or  subdivision  two-a
     6  of  section  70.30  of the penal law, except to the extent authorized by
     7  subdivision three of section 70.30 of the penal law.
     8    § 2. Paragraph (a) of subdivision 1 of section 259-r of the  executive
     9  law,  as  amended by section 14-a of chapter 322 of the laws of 2021, is
    10  amended to read as follows:
    11    (a) The board shall have the power to release on  medical  parole  any
    12  incarcerated individual serving an indeterminate or determinate sentence
    13  of  imprisonment  who,  pursuant to subdivision two of this section, has
    14  been certified to be suffering from a  terminal  condition,  disease  or
    15  syndrome  and  to  be  so  debilitated  or  incapacitated as to create a
    16  reasonable probability that he or she is physically or cognitively inca-
    17  pable of presenting [any] a danger to society, provided,  however,  that
    18  no  incarcerated individual serving a sentence imposed upon a conviction
    19  for murder in the first degree or an attempt  or  conspiracy  to  commit
    20  murder  in  the  first  degree  shall  be eligible for such release, and
    21  provided further that no  incarcerated  individual  serving  a  sentence
    22  imposed  upon  a  conviction  for any of the following offenses shall be
    23  eligible for such  release  unless  in  the  case  of  an  indeterminate
    24  sentence he or she has served at least one-half of the minimum period of
    25  the  sentence  and  in  the case of a determinate sentence he or she has
    26  served at least one-half of the term of his or her determinate sentence:
    27  murder in the second degree,  manslaughter  in  the  first  degree,  any
    28  offense  defined  in  article  one hundred thirty of the penal law or an
    29  attempt to commit any of these  offenses.  Solely  for  the  purpose  of
    30  determining  medical  parole  eligibility pursuant to this section, such
    31  one-half of the minimum period of the indeterminate  sentence  and  one-
    32  half  of the term of the determinate sentence shall not be credited with
    33  any time served under the jurisdiction of the department  prior  to  the
    34  commencement  of  such  sentence  pursuant  to  the opening paragraph of
    35  subdivision one of section 70.30 of the penal law or  subdivision  two-a
    36  of  section  70.30  of the penal law, except to the extent authorized by
    37  subdivision three of section 70.30 of the penal law.
    38    § 3. Paragraph (b) of subdivision 2 of section 259-r of the  executive
    39  law,  as  amended by chapter 322 of the laws of 2021, is amended to read
    40  as follows:
    41    (b) The commissioner, or the commissioner's designee, shall review the
    42  diagnosis and may certify that the incarcerated individual is  suffering
    43  from such terminal condition, disease or syndrome and that the incarcer-
    44  ated  individual  is  so  debilitated  or  incapacitated as to [create a
    45  reasonable probability that he or she is physically or cognitively inca-
    46  pable of presenting any danger to society] be severely restricted in his
    47  or her ability to self-ambulate or to perform significant normal  activ-
    48  ities  of daily living. If the commissioner does not so certify then the
    49  incarcerated individual shall not be referred to the board for consider-
    50  ation for release on medical parole. If the commissioner does so  certi-
    51  fy, then the commissioner shall, within seven working days of receipt of
    52  such  diagnosis,  refer  the  incarcerated  individual  to the board for
    53  consideration for release on medical parole.  However, no such  referral
    54  of  an  incarcerated  individual  to  the board shall be made unless the
    55  incarcerated individual has been examined by a physician  and  diagnosed
    56  as  having  a  terminal  condition,  disease  or  syndrome as previously
        A. 4347--A                          3

     1  described herein at some time subsequent to such  incarcerated  individ-
     2  ual's admission to a facility operated by the department of [correction-
     3  al services] corrections and community supervision.
     4    §  4.  Subdivision 4 of section 259-r of the executive law, as amended
     5  by section 38-l of subpart A of part C of chapter  62  of  the  laws  of
     6  2011,  paragraph  (b)  as amended by chapter 322 of the laws of 2021, is
     7  amended to read as follows:
     8    4. (a) The board shall, upon receipt of certification from the commis-
     9  sioner, independently determine whether the conditions under  which  the
    10  incarcerated individual would be released creates a reasonable probabil-
    11  ity  that he or she is physically or cognitively incapable of presenting
    12  a danger to society. The board shall provide a determination of  release
    13  within thirty days upon receipt of certification from the commissioner.
    14    (b)  Medical  parole  granted  pursuant to this section shall be for a
    15  period of six months.
    16    [(b)] (c) The board shall require as a condition of release on medical
    17  parole that the releasee agree to remain under the care of  a  physician
    18  while  on medical parole and in a hospital established pursuant to arti-
    19  cle twenty-eight of the public health law, a hospice established  pursu-
    20  ant  to  article  forty  of the public health law or any other placement
    21  that can provide appropriate medical care as specified  in  the  medical
    22  discharge  plan required by subdivision two of this section. The medical
    23  discharge plan shall state that the availability of  the  placement  has
    24  been confirmed, and by whom. Notwithstanding any other provision of law,
    25  when  an  incarcerated  individual  who qualifies for release under this
    26  section is cognitively incapable of signing the requisite  documentation
    27  to effectuate the medical discharge plan and, after a diligent search no
    28  person  has  been  identified  who  could  otherwise be appointed as the
    29  incarcerated individual's guardian by a court of competent jurisdiction,
    30  then, solely for the purpose of implementing the medical discharge plan,
    31  the facility health services director at the facility where  the  incar-
    32  cerated individual is currently incarcerated shall be lawfully empowered
    33  to  act  as  the  incarcerated  individual's guardian for the purpose of
    34  effectuating the medical discharge.
    35    [(c)] (d) Where appropriate, the board shall require as a condition of
    36  release that medical parolees be supervised on  intensive  caseloads  at
    37  reduced supervision ratios.
    38    [(d)] (e) The board shall require as a condition of release on medical
    39  parole  that  the  releasee  undergo periodic medical examinations and a
    40  medical examination at least one month prior to the  expiration  of  the
    41  period  of  medical  parole  and,  for the purposes of making a decision
    42  pursuant to paragraph [(e)] (f) of this subdivision, that  the  releasee
    43  provide  the board with a report, prepared by the treating physician, of
    44  the results of such examination. Such report  shall  specifically  state
    45  whether  or  not  the parolee continues to suffer from a terminal condi-
    46  tion, disease, or syndrome, and to be so debilitated or incapacitated as
    47  to be severely restricted in his or her ability to self-ambulate  or  to
    48  perform significant normal activities of daily living.
    49    [(e)]  (f) Prior to the expiration of the period of medical parole the
    50  board shall review the medical examination report required by  paragraph
    51  [(d)]  (e) of this subdivision and may again grant medical parole pursu-
    52  ant to this section; provided, however, that the provisions of paragraph
    53  (c) of subdivision one and subdivision two of  this  section  shall  not
    54  apply.
    55    [(f)]  (g) If the updated medical report presented to the board states
    56  that a parolee released pursuant to this section is no longer so debili-
        A. 4347--A                          4

     1  tated or incapacitated as to create a reasonable probability that he  or
     2  she  is physically or cognitively incapable of presenting [any] a danger
     3  to society or if the releasee fails to submit the updated medical report
     4  then  the  board  may not make a new grant of medical parole pursuant to
     5  paragraph [(e)] (f) of this subdivision. Where the board has not granted
     6  medical parole pursuant to such paragraph  [(e)]  (f)  the  board  shall
     7  promptly conduct through one of its members, or cause to be conducted by
     8  a hearing officer designated by the board, a hearing to determine wheth-
     9  er  the  releasee  is  suffering  from  a terminal condition, disease or
    10  syndrome and is so debilitated or incapacitated as to create  a  reason-
    11  able  probability  that he or she is physically or cognitively incapable
    12  of presenting [any danger to society and does not present] a  danger  to
    13  society.  If the board makes such a determination then it may make a new
    14  grant of medical parole pursuant to the standards of  paragraph  (b)  of
    15  subdivision one of this section. At the hearing, the releasee shall have
    16  the  right  to  representation  by  counsel, including the right, if the
    17  releasee is financially unable to retain counsel, to have the  appropri-
    18  ate  court assign counsel in accordance with the county or city plan for
    19  representation placed in operation pursuant to article eighteen-B of the
    20  county law.
    21    [(g)] (h) The hearing and  determination  provided  for  by  paragraph
    22  [(f)]  (g)  of  this subdivision shall be concluded within the six month
    23  period of medical parole. If the board  does  not  renew  the  grant  of
    24  medical parole, it shall order that the releasee be returned immediately
    25  to the custody of the department.
    26    [(h)]  (i)  In addition to the procedures set forth in paragraph [(f)]
    27  (g) of this subdivision, medical parole may be revoked at any time  upon
    28  any  of  the  grounds specified in paragraph (a) of subdivision three of
    29  section two hundred fifty-nine-i of this article, and in accordance with
    30  the procedures specified in subdivision three  of  section  two  hundred
    31  fifty-nine-i of this article.
    32    [(i)] (j) A releasee who is on medical parole and who becomes eligible
    33  for  parole pursuant to the provisions of subdivision two of section two
    34  hundred fifty-nine-i of  this  article  shall  be  eligible  for  parole
    35  consideration pursuant to such subdivision.
    36    §  5. Paragraph (a) of subdivision 1 of section 259-s of the executive
    37  law, as amended by chapter 322 of the laws of 2021, is amended  to  read
    38  as follows:
    39    (a)  The  board  shall have the power to release on medical parole any
    40  incarcerated individual serving an indeterminate or determinate sentence
    41  of imprisonment who, pursuant to subdivision two of  this  section,  has
    42  been certified to be suffering from a significant and permanent non-ter-
    43  minal  condition, disease or syndrome that has rendered the incarcerated
    44  individual so physically or cognitively debilitated or incapacitated  as
    45  to create a reasonable probability that he or she does not present [any]
    46  a  danger to society, provided, however, that no incarcerated individual
    47  serving a sentence imposed upon a conviction for  murder  in  the  first
    48  degree  or an attempt or conspiracy to commit murder in the first degree
    49  shall be eligible for such release, and provided further that no  incar-
    50  cerated  individual serving a sentence imposed upon a conviction for any
    51  of the following offenses shall be eligible for such release  unless  in
    52  the  case  of  an  indeterminate  sentence he or she has served at least
    53  one-half of the minimum period of the sentence and  in  the  case  of  a
    54  determinate  sentence he or she has served at least one-half of the term
    55  of his or  her  determinate  sentence:  murder  in  the  second  degree,
    56  manslaughter  in  the  first  degree, any offense defined in article one
        A. 4347--A                          5

     1  hundred thirty of the penal law or an attempt to  commit  any  of  these
     2  offenses. Solely for the purpose of determining medical parole eligibil-
     3  ity pursuant to this section, such one-half of the minimum period of the
     4  indeterminate  sentence  and  one-half  of  the  term of the determinate
     5  sentence shall not be credited with any time served under the  jurisdic-
     6  tion of the department prior to the commencement of such sentence pursu-
     7  ant  to the opening paragraph of subdivision one of section 70.30 of the
     8  penal law or subdivision two-a of section 70.30 of the penal law, except
     9  to the extent authorized by subdivision three of section  70.30  of  the
    10  penal law.
    11    §  6. Paragraph (b) of subdivision 2 of section 259-s of the executive
    12  law, as amended by chapter 322 of the laws of 2021, is amended  to  read
    13  as follows:
    14    (b) The commissioner, or the commissioner's designee, shall review the
    15  diagnosis  and may certify that the incarcerated individual is suffering
    16  from such condition, disease or syndrome and that the incarcerated indi-
    17  vidual is so debilitated or incapacitated as  to  [create  a  reasonable
    18  probability  that  he  or  she is physically or cognitively incapable of
    19  presenting any danger to society] be severely restricted in his  or  her
    20  ability  to self-ambulate or to perform significant normal activities of
    21  daily living. If the commissioner does not so certify then the incarcer-
    22  ated individual shall not be referred to the board for consideration for
    23  release on medical parole. If the commissioner does so certify, then the
    24  commissioner shall, within seven working days of receipt of such diagno-
    25  sis, refer the incarcerated individual to the  board  for  consideration
    26  for  release  on medical parole.  However, no such referral of an incar-
    27  cerated individual to the board of  parole  shall  be  made  unless  the
    28  incarcerated  individual  has been examined by a physician and diagnosed
    29  as having a condition, disease or syndrome as previously described here-
    30  in at some time subsequent to such incarcerated  individual's  admission
    31  to a facility operated by the department.
    32    §  7.  Subdivision 4 of section 259-s of the executive law, as amended
    33  by chapter 322 of the laws of 2021, is amended to read as follows:
    34    4. (a) The board shall, upon receipt of certification from the commis-
    35  sioner, independently determine whether the conditions under  which  the
    36  incarcerated individual would be released creates a reasonable probabil-
    37  ity  that he or she is physically or cognitively incapable of presenting
    38  a danger to society. The board shall provide a determination of  release
    39  within thirty days upon receipt of certification from the commissioner.
    40    (b)  Medical  parole  granted  pursuant to this section shall be for a
    41  period of six months.
    42    [(b)] (c) The board shall require as a condition of release on medical
    43  parole that the releasee agree to remain under the care of  a  physician
    44  while  on medical parole and in a hospital established pursuant to arti-
    45  cle twenty-eight of the public health law, a hospice established  pursu-
    46  ant  to  article  forty of the public health law or any other placement,
    47  including a residence with family or others, that can provide  appropri-
    48  ate  medical care as specified in the medical discharge plan required by
    49  subdivision two of this section. The medical discharge plan shall  state
    50  that  the availability of the placement has been confirmed, and by whom.
    51  Notwithstanding any other provision of law, when an  incarcerated  indi-
    52  vidual who qualifies for release under this section is cognitively inca-
    53  pable  of  signing the requisite documentation to effectuate the medical
    54  discharge plan and, after a diligent search no person has  been  identi-
    55  fied  who  could otherwise be appointed as the incarcerated individual's
    56  guardian by a court of competent  jurisdiction,  then,  solely  for  the
        A. 4347--A                          6

     1  purpose  of implementing the medical discharge plan, the facility health
     2  services director at the facility where the incarcerated  individual  is
     3  currently  incarcerated shall be lawfully empowered to act as the incar-
     4  cerated  individual's  guardian  for  the  purpose  of  effectuating the
     5  medical discharge.
     6    [(c)] (d) Where appropriate, the board shall require as a condition of
     7  release that medical parolees be supervised on  intensive  caseloads  at
     8  reduced supervision ratios.
     9    [(d)] (e) The board shall require as a condition of release on medical
    10  parole  that  the  releasee  undergo periodic medical examinations and a
    11  medical examination at least one month prior to the  expiration  of  the
    12  period  of  medical  parole  and,  for the purposes of making a decision
    13  pursuant to paragraph [(e)] (f) of this subdivision, that  the  releasee
    14  provide  the board with a report, prepared by the treating physician, of
    15  the results of such examination. Such report  shall  specifically  state
    16  whether  or  not  the parolee continues to suffer from a significant and
    17  permanent non-terminal and debilitating condition, disease, or syndrome,
    18  and to be so debilitated or incapacitated as to be  severely  restricted
    19  in  his or her ability to self-ambulate or to perform significant normal
    20  activities of daily living.
    21    [(e)] (f) Prior to the expiration of the period of medical parole  the
    22  board  shall review the medical examination report required by paragraph
    23  [(d)] (e) of this subdivision and may again grant medical parole  pursu-
    24  ant to this section; provided, however, that the provisions of paragraph
    25  (c)  of  subdivision  one  and subdivision two of this section shall not
    26  apply.
    27    [(f)] (g) If the updated medical report presented to the board  states
    28  that a parolee released pursuant to this section is no longer so debili-
    29  tated  or incapacitated as to create a reasonable probability that he or
    30  she is physically or cognitively incapable of presenting [any] a  danger
    31  to society or if the releasee fails to submit the updated medical report
    32  then  the  board  may not make a new grant of medical parole pursuant to
    33  paragraph [(e)] (f) of this subdivision. Where the board has not granted
    34  medical parole pursuant to [such] paragraph [(e)] (f) of  this  subdivi-
    35  sion  the  board  shall  promptly conduct through one of its members, or
    36  cause to be conducted by a hearing officer designated by  the  board,  a
    37  hearing  to  determine  whether the releasee is suffering from a signif-
    38  icant and permanent non-terminal and incapacitating  condition,  disease
    39  or  syndrome  and  is  so  debilitated  or  incapacitated as to create a
    40  reasonable probability that he or she is physically or cognitively inca-
    41  pable of presenting [any danger to  society  and  does  not  present]  a
    42  danger  to  society. If the board makes such a determination then it may
    43  make a new grant of medical parole pursuant to the  standards  of  para-
    44  graph  (b)  of  subdivision  one  of  this  section. At the hearing, the
    45  releasee shall have the right to representation  by  counsel,  including
    46  the  right,  if the releasee is financially unable to retain counsel, to
    47  have the appropriate court assign counsel in accordance with the  county
    48  or  city plan for representation placed in operation pursuant to article
    49  eighteen-B of the county law.
    50    [(g)] (h) The hearing and  determination  provided  for  by  paragraph
    51  [(f)]  (g)  of  this subdivision shall be concluded within the six month
    52  period of medical parole. If the board  does  not  renew  the  grant  of
    53  medical parole, it shall order that the releasee be returned immediately
    54  to the custody of the department of correctional services.
    55    [(h)]  (i)  In addition to the procedures set forth in paragraph [(f)]
    56  (g) of this subdivision, medical parole may be revoked at any time  upon
        A. 4347--A                          7

     1  any  of  the  grounds specified in paragraph (a) of subdivision three of
     2  section two hundred fifty-nine-i of this article, and in accordance with
     3  the procedures specified in subdivision three  of  section  two  hundred
     4  fifty-nine-i of this article.
     5    [(i)] (j) A releasee who is on medical parole and who becomes eligible
     6  for  parole pursuant to the provisions of subdivision two of section two
     7  hundred fifty-nine-i of  this  article  shall  be  eligible  for  parole
     8  consideration pursuant to such subdivision.
     9    §  8.  This act shall take effect immediately; provided, however, that
    10  the amendments to paragraph (a) of subdivision 1 of section 259-r of the
    11  executive law made by section one of this act shall be  subject  to  the
    12  expiration  and reversion of such paragraph pursuant to subdivision d of
    13  section 74 of chapter 3 of the laws of 1995, as amended, when upon  such
    14  date the provisions of section two of this act shall take effect.