Bill Text: NY A09558 | 2019-2020 | General Assembly | Introduced


Bill Title: Relates to expanding prison work release program eligibility and participation.

Spectrum: Partisan Bill (Democrat 5-0)

Status: (Introduced - Dead) 2020-01-24 - referred to correction [A09558 Detail]

Download: New_York-2019-A09558-Introduced.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                          9558

                   IN ASSEMBLY

                                    January 24, 2020
                                       ___________

        Introduced  by  M.  of A. WEPRIN, O'DONNELL, AUBRY, DE LA ROSA, STECK --
          read once and referred to the Committee on Correction

        AN ACT to amend the correction law, in relation to expanding prison work
          release program eligibility and participation

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  Subdivision  2  of  section 851 of the correction law, as
     2  amended by chapter 60 of the laws of  1994,  the  opening  paragraph  as
     3  amended  by  chapter  320  of the laws of 2006, the closing paragraph as
     4  amended by section 42 of subpart B of part C of chapter 62 of  the  laws
     5  of 2011, is amended to read as follows:
     6    2. "Eligible inmate" means: a person confined in an institution who is
     7  eligible  for  release on parole or who will become eligible for release
     8  on parole or conditional release within two years.  [Provided,  however,
     9  that  a  person  under sentence for an offense defined in paragraphs (a)
    10  and (b) of subdivision one of section 70.02 of the penal law, where such
    11  offense involved the use or threatened use of a deadly weapon or danger-
    12  ous instrument shall not be eligible to participate in  a  work  release
    13  program until he or she is eligible for release on parole or who will be
    14  eligible  for  release  on parole or conditional release within eighteen
    15  months. Provided, further, however, that a person  under  a  determinate
    16  sentence  as  a second felony drug offender for a class B felony offense
    17  defined in article  two  hundred  twenty  of  the  penal  law,  who  was
    18  sentenced  pursuant  to section 70.70 of such law, shall not be eligible
    19  to participate in a temporary release  program  until  the  time  served
    20  under  imprisonment  for  his or her determinate sentence, including any
    21  jail time credited pursuant to the provisions of article seventy of  the
    22  penal  law,  shall be at least eighteen months.] In the case of a person
    23  serving an indeterminate sentence of imprisonment  imposed  pursuant  to
    24  the penal law in effect after September one, nineteen hundred sixty-sev-
    25  en,  for  the  purposes of this article parole eligibility shall be upon
    26  the expiration of the minimum period of imprisonment fixed by the  court
    27  or  where the court has not fixed any period, after service of the mini-
    28  mum period fixed by the state board of parole. If an  inmate  is  denied

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD14698-01-0

        A. 9558                             2

     1  release  on  parole,  such inmate shall not be deemed an eligible inmate
     2  until he or she is within two years of his or her next scheduled appear-
     3  ance before the state parole board. In  any  case  where  an  inmate  is
     4  denied  release  on  parole  while  participating in a temporary release
     5  program, the department shall review the status of the inmate to  deter-
     6  mine  if  continued  placement  in the program is appropriate. No person
     7  convicted of any escape or absconding offense  defined  in  article  two
     8  hundred  five  of the penal law shall be eligible for temporary release.
     9  [Further, no person under  sentence  for  aggravated  harassment  of  an
    10  employee by an inmate as defined in section 240.32 of the penal law for,
    11  any  homicide  offense defined in article one hundred twenty-five of the
    12  penal law, for any sex offense defined in article one hundred thirty  of
    13  the  penal  law,  or for an offense defined in section 255.25, 255.26 or
    14  255.27 of the penal law shall be  eligible  to  participate  in  a  work
    15  release  program  as  defined  in subdivision three of this section. Nor
    16  shall any person under sentence for any sex offense defined  in  article
    17  one  hundred  thirty  of  the  penal law be eligible to participate in a
    18  community services program  as  defined  in  subdivision  five  of  this
    19  section.  [Notwithstanding  the foregoing, no person who is an otherwise
    20  eligible inmate who  is  under  sentence  for  a  crime  involving:  (a)
    21  infliction  of  serious  physical  injury upon another as defined in the
    22  penal law or (b) any other offense involving the use or  threatened  use
    23  of  a deadly weapon may participate in a temporary release program with-
    24  out the written approval of the commissioner.]  The  commissioner  shall
    25  promulgate regulations giving direction to the temporary release commit-
    26  tee  at each institution in order to aid such committees in carrying out
    27  this mandate.
    28    [The governor, by executive order, may exclude or  limit  the  partic-
    29  ipation of any class of otherwise eligible inmates from participation in
    30  a  temporary  release  program.  Nothing  in  this  paragraph  shall  be
    31  construed to affect either the validity of any executive order previous-
    32  ly issued limiting the participation of otherwise  eligible  inmates  in
    33  such  program or the authority of the commissioner to impose appropriate
    34  regulations limiting such participation.]
    35    § 2. Subdivision 2 of section 851 of the correction law, as amended by
    36  chapter 447 of the laws of 1991, the opening  paragraph  as  amended  by
    37  chapter 252 of the laws of 2005, and the closing paragraph as amended by
    38  section  43 of subpart B of part C of chapter 62 of the laws of 2011, is
    39  amended to read as follows:
    40    2. "Eligible inmate" means: a person confined in an institution who is
    41  eligible for release on parole or who will become eligible  for  release
    42  on  parole  or  conditional  release within two years. [Provided, that a
    43  person under a determinate sentence as a second felony drug offender for
    44  a class B felony offense defined in article two hundred  twenty  of  the
    45  penal  law,  who  was  sentenced  pursuant to section 70.70 of such law,
    46  shall not be eligible to participate  in  a  temporary  release  program
    47  until  the  time  served  under  imprisonment for his or her determinate
    48  sentence, including any jail time credited pursuant to the provisions of
    49  article seventy of the penal law, shall be at least eighteen months.] In
    50  the case of a person serving an indeterminate sentence  of  imprisonment
    51  imposed  pursuant  to the penal law in effect after September one, nine-
    52  teen hundred sixty-seven, for the purposes of this article parole eligi-
    53  bility shall be upon the expiration of the minimum period  of  imprison-
    54  ment  fixed  by  the  court or where the court has not fixed any period,
    55  after service of the minimum period fixed by the state board of  parole.
    56  [If  an  inmate  is  denied  release on parole, such inmate shall not be

        A. 9558                             3

     1  deemed an eligible inmate until he or she is within two years of his  or
     2  her  next  scheduled  appearance  before the state parole board.] In any
     3  case where an inmate is denied release on parole while participating  in
     4  a  temporary  release program, the department shall review the status of
     5  the inmate to determine if continued placement in the program is  appro-
     6  priate.  No person convicted of any escape or absconding offense defined
     7  in article two hundred five of the  penal  law  shall  be  eligible  for
     8  temporary  release.    [Nor  shall any person under sentence for any sex
     9  offense defined in article one hundred thirty of the penal law be eligi-
    10  ble to participate in a community services program as defined in  subdi-
    11  vision  five  of  this section. Notwithstanding the foregoing, no person
    12  who is an otherwise eligible inmate who is under sentence  for  a  crime
    13  involving:  (a)  infliction  of  serious physical injury upon another as
    14  defined in the penal law, (b) a sex offense involving  forcible  compul-
    15  sion,  or (c) any other offense involving the use or threatened use of a
    16  deadly weapon may participate in a temporary release program without the
    17  written approval of the commissioner.] An inmate shall not  be  eligible
    18  for  work  release  if  he  or  she is subject to a sentence imposed for
    19  aggravated murder as defined in section 125.26 of the penal law,  murder
    20  in  the first degree as defined in section 125.27 of the penal law, rape
    21  in the third degree as defined in section 130.25 of the penal law,  rape
    22  in the second degree as defined in section 130.30 of the penal law, rape
    23  in the first degree as defined in section 130.35 of the penal law, crim-
    24  inal sexual act in the second degree as defined in section 130.45 of the
    25  penal law, criminal sexual act in the first degree as defined in section
    26  130.50  of  the penal law, persistent sexual abuse as defined in section
    27  130.53 of the penal law, sexual abuse in the first degree as defined  in
    28  section  130.65  of  the penal law, aggravated sexual abuse in the third
    29  degree as defined in section 130.66 of the penal law, aggravated  sexual
    30  abuse  in  the  second  degree as defined in section 130.67 of the penal
    31  law, aggravated sexual abuse in the first degree as defined  in  section
    32  130.70 of the penal law, course of sexual conduct against a child in the
    33  first  degree  as  defined in section 130.75 of the penal law, course of
    34  sexual conduct against a child  in  the  second  degree  as  defined  in
    35  section  130.80 of the penal law, predatory sexual assault as defined in
    36  section 130.95 of the penal law,  predatory  sexual  assault  against  a
    37  child as defined in section 130.96 of the penal law, promoting prostitu-
    38  tion in the second degree as defined in section 230.30 of the penal law,
    39  promoting  prostitution in the first degree as defined in section 230.32
    40  of the penal law, compelling prostitution as defined in  section  230.33
    41  of  the  penal  law, sex trafficking as defined in section 230.34 of the
    42  penal law, incest in the first or second degree as  defined  in  article
    43  two hundred fifty-five of the penal law, an offense of terrorism defined
    44  in  article  four  hundred  ninety  of the penal law, or an attempt or a
    45  conspiracy to commit any such offense. The commissioner shall promulgate
    46  regulations giving direction to the temporary release committee at  each
    47  institution  in  order  to  aid  such  committees  in  carrying out this
    48  mandate.
    49    [The governor, by executive order, may exclude or  limit  the  partic-
    50  ipation of any class of otherwise eligible inmates from participation in
    51  a  temporary  release  program.  Nothing  in  this  paragraph  shall  be
    52  construed to affect either the validity of any executive order previous-
    53  ly issued limiting the participation of otherwise  eligible  inmates  in
    54  such  program or the authority of the commissioner to impose appropriate
    55  regulations limiting such participation.]

        A. 9558                             4

     1    § 3. Subdivision 2-a of section 851 of the correction law, as added by
     2  chapter 251 of the laws of 2002, is amended to read as follows:
     3    2-a. Notwithstanding subdivision two of this section, the term "eligi-
     4  ble  inmate"  shall also include a person confined in an institution who
     5  is eligible for release on  parole  or  who  will  become  eligible  for
     6  release  on  parole  or conditional release within [two] four years, and
     7  who was convicted of a  homicide  offense  as  defined  in  article  one
     8  hundred  twenty-five  of  the penal law or an assault offense defined in
     9  article one hundred twenty of the penal law, and who can demonstrate  to
    10  the  commissioner that: (a) the victim of such homicide or assault was a
    11  member of the inmate's immediate family  as  that  term  is  defined  in
    12  section  120.40  of  the  penal  law  or  had a child in common with the
    13  inmate; (b) the inmate was subjected to substantial physical, sexual  or
    14  psychological abuse committed by the victim of such homicide or assault;
    15  and  (c)  such  abuse  was a substantial factor in causing the inmate to
    16  commit such homicide or assault. With respect to an inmate's claim  that
    17  he or she was subjected to substantial physical, sexual or psychological
    18  abuse committed by the victim, such demonstration shall include corrobo-
    19  rative  material that may include, but is not limited to, witness state-
    20  ments,  social  services  records,  hospital  records,  law  enforcement
    21  records and a showing based in part on documentation prepared at or near
    22  the  time  of  the  commission of the offense or the prosecution thereof
    23  tending to support the inmate's claim. Prior to making  a  determination
    24  under this subdivision, the commissioner is required to request and take
    25  into  consideration  the opinion of the district attorney who prosecuted
    26  the underlying homicide or  assault  offense  and  the  opinion  of  the
    27  sentencing  court.  If such opinions are received within forty-five days
    28  of the request, the commissioner shall take them into consideration.  If
    29  such opinions are not so received, the commissioner may proceed with the
    30  determination.  Any action by the commissioner pursuant to this subdivi-
    31  sion shall be deemed a judicial function and shall not be reviewable  in
    32  any court.
    33    § 4. Subdivision 2-b of section 851 of the correction law, as added by
    34  chapter 738 of the laws of 2004, is amended to read as follows:
    35    2-b. When calculating in advance the date on which a person is or will
    36  be  eligible  for release on parole or conditional release, for purposes
    37  of determining eligibility for temporary release or for placement at  an
    38  alcohol  and  substance  abuse treatment correctional annex, the commis-
    39  sioner shall consider and include credit for all potential  credits  and
    40  reductions  including  but  not  limited to merit time, additional merit
    41  time and good behavior allowances. Nothing in this subdivision shall  be
    42  interpreted  as precluding the consideration and inclusion of credit for
    43  all potential credits and reductions  including,  but  not  limited  to,
    44  merit  time,  additional  merit  time  and good behavior allowances when
    45  calculating in advance for any other purpose the date on which a  person
    46  is or will be eligible for release on parole or conditional release.
    47    §  5.  This  act shall take effect immediately, provided however, that
    48  the amendments to subdivision 2 of section 851  of  the  correction  law
    49  made  by  section one of this act shall be subject to the expiration and
    50  reversion of such subdivision and section pursuant to subdivision (c) of
    51  section 46 of chapter 60 of the laws of 1994 and section 10  of  chapter
    52  339  of the laws of 1972, as amended, when upon such date the provisions
    53  of section two of this act shall take effect; provided further, that the
    54  amendments to subdivision 2 of section 851 of the correction law made by
    55  section two of this act shall expire on the same date as subdivision (c)
    56  of section 46 of chapter 60 of the laws of 1994, section 10  of  chapter

        A. 9558                             5

     1  339  of  the  laws  of 1972, and section 5 of chapter 554 of the laws of
     2  1986, as amended, expire; provided further that the amendments to subdi-
     3  visions 2-a and 2-b of section  851  of  the  correction  law,  made  by
     4  sections  three  and four of this act shall not affect the expiration of
     5  such section and shall expire therewith.
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