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.]
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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.