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,9that a person under sentence for an offense defined in paragraphs (a)10and (b) of subdivision one of section 70.02 of the penal law, where such11offense involved the use or threatened use of a deadly weapon or danger-12ous instrument shall not be eligible to participate in a work release13program until he or she is eligible for release on parole or who will be14eligible for release on parole or conditional release within eighteen15months. Provided, further, however, that a person under a determinate16sentence as a second felony drug offender for a class B felony offense17defined in article two hundred twenty of the penal law, who was18sentenced pursuant to section 70.70 of such law, shall not be eligible19to participate in a temporary release program until the time served20under imprisonment for his or her determinate sentence, including any21jail time credited pursuant to the provisions of article seventy of the22penal 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. LBD14698-01-0A. 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 an10employee by an inmate as defined in section 240.32 of the penal law for,11any homicide offense defined in article one hundred twenty-five of the12penal law, for any sex offense defined in article one hundred thirty of13the penal law, or for an offense defined in section 255.25, 255.26 or14255.27 of the penal law shall be eligible to participate in a work15release program as defined in subdivision three of this section. Nor16shall any person under sentence for any sex offense defined in article17one hundred thirty of the penal law be eligible to participate in a18community services program as defined in subdivision five of this19section. [Notwithstanding the foregoing, no person who is an otherwise20eligible inmate who is under sentence for a crime involving: (a)21infliction of serious physical injury upon another as defined in the22penal law or (b) any other offense involving the use or threatened use23of a deadly weapon may participate in a temporary release program with-24out 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-29ipation of any class of otherwise eligible inmates from participation in30a temporary release program. Nothing in this paragraph shall be31construed to affect either the validity of any executive order previous-32ly issued limiting the participation of otherwise eligible inmates in33such program or the authority of the commissioner to impose appropriate34regulations 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 a43person under a determinate sentence as a second felony drug offender for44a class B felony offense defined in article two hundred twenty of the45penal law, who was sentenced pursuant to section 70.70 of such law,46shall not be eligible to participate in a temporary release program47until the time served under imprisonment for his or her determinate48sentence, including any jail time credited pursuant to the provisions of49article 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 beA. 9558 3 1deemed an eligible inmate until he or she is within two years of his or2her 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 sex9offense defined in article one hundred thirty of the penal law be eligi-10ble to participate in a community services program as defined in subdi-11vision five of this section. Notwithstanding the foregoing, no person12who is an otherwise eligible inmate who is under sentence for a crime13involving: (a) infliction of serious physical injury upon another as14defined in the penal law, (b) a sex offense involving forcible compul-15sion, or (c) any other offense involving the use or threatened use of a16deadly weapon may participate in a temporary release program without the17written 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-50ipation of any class of otherwise eligible inmates from participation in51a temporary release program. Nothing in this paragraph shall be52construed to affect either the validity of any executive order previous-53ly issued limiting the participation of otherwise eligible inmates in54such program or the authority of the commissioner to impose appropriate55regulations 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 chapterA. 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.