Bill Text: NY S00338 | 2011-2012 | General Assembly | Introduced
Bill Title: Relates to controlled substances and indeterminate sentences; relates to the expansion of merit time and repeals provisions relating to the allowance of limited credit time for inmates.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2012-03-12 - COMMITTEE DISCHARGED AND COMMITTED TO RULES [S00338 Detail]
Download: New_York-2011-S00338-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ S. 338 A. 154 2011-2012 Regular Sessions S E N A T E - A S S E M B L Y (PREFILED) January 5, 2011 ___________ IN SENATE -- Introduced by Sen. MONTGOMERY -- read twice and ordered printed, and when printed to be committed to the Committee on Crime Victims, Crime and Correction IN ASSEMBLY -- Introduced by M. of A. AUBRY -- read once and referred to the Committee on Correction AN ACT to amend the correction law, chapter 738 of the laws of 2004 amending the correction law and other laws relating to controlled substances and indeterminate sentences, the executive law, in relation to merit time, and to repeal section 803-b of the correction law relating to limited credit time allowances THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Subparagraphs (i), (ii) and (iv) of paragraph (d) of subdi- 2 vision 1 of section 803 of the correction law, as added by section 7 of 3 chapter 738 of the laws of 2004, are amended to read as follows: 4 (i) Except as provided in subparagraph (ii) of this paragraph, every 5 person under the custody of the department or confined in a facility in 6 the department of mental hygiene serving an indeterminate sentence of 7 imprisonment with a minimum period of one year or more or a determinate 8 sentence of imprisonment of one year or more [imposed pursuant to 9 section 70.70 or 70.71 of the penal law,] may earn a merit time allow- 10 ance. 11 (ii) Such merit time allowance shall not be available to any person 12 serving [an indeterminate] A sentence [authorized for an A-I felony 13 offense, other than an A-I felony offense defined in article two hundred 14 twenty of the penal law, or any sentence imposed for a violent felony 15 offense as defined in section 70.02 of the penal law, manslaughter in 16 the second degree, vehicular manslaughter in the second degree, vehicu- 17 lar manslaughter in the first degree, criminally negligent homicide,] EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01343-01-1 S. 338 2 A. 154 1 IMPOSED FOR MURDER IN THE FIRST DEGREE AS DEFINED IN SECTION 125.27 OF 2 THE PENAL LAW, an offense defined in article one hundred thirty of the 3 penal law, incest, [or] an offense defined in article two hundred 4 sixty-three of the penal law, [or] AN ACT OF TERRORISM AS DEFINED IN 5 ARTICLE FOUR HUNDRED NINETY OF THE PENAL LAW, aggravated harassment of 6 an employee by an inmate, OR AN ATTEMPT OR CONSPIRACY TO COMMIT ANY SUCH 7 OFFENSE. 8 (iv) Such merit time allowance may be granted when an inmate success- 9 fully participates in the work and treatment program assigned pursuant 10 to section eight hundred five of this article and when such inmate 11 [obtains a] ACHIEVES ONE OF THE FOLLOWING: (1) COMPLETES HIS OR HER 12 general equivalency diploma, HIS OR HER EDUCATIONAL REQUIREMENTS AS 13 DETERMINED BY THE DEPARTMENT OR SATISFACTORILY COMPLETES COURSEWORK 14 SPONSORED BY AN INSTITUTION OF HIGHER LEARNING REPRESENTING A SEMESTER 15 OF ACADEMIC TRAINING; (2) COMPLETES an alcohol and substance abuse 16 treatment [certificate, a vocational trade certificate following at 17 least six months of vocational programming or performs] PROGRAM, OR 18 COMPLETES A COMPARABLE PROGRAM OF A DIFFERENT TYPE AS DETERMINED BY THE 19 DEPARTMENT, INCLUDING, BUT NOT LIMITED TO, ANGER MANAGEMENT, FAMILY 20 VIOLENCE, OR PARENTING; (3) COMPLETES A VOCATIONAL TRAINING PROGRAM OR A 21 COMPARABLE AND EQUIVALENT TRAINING PROGRAM AS DETERMINED BY THE DEPART- 22 MENT; (4) PERFORMS SATISFACTORILY FOR AT LEAST SIX MONTHS IN A SKILLED 23 JOB ASSIGNMENT, INCLUDING BUT NOT LIMITED TO, INMATE PROGRAM AIDE (IPA), 24 LAW LIBRARY CLERK, MEDICAL/INFIRMARY AIDE, CHILDREN'S CENTER AIDE, AND 25 FOOD SERVICE WORKER; OR (5) COMPLETES at least four hundred hours of 26 service as part of a community work crew. 27 Such allowance shall be withheld for any serious disciplinary infrac- 28 tion or upon a judicial determination that the person, while an inmate, 29 commenced or continued a civil action, proceeding or claim that was 30 found to be frivolous as defined in subdivision (c) of section eight 31 thousand three hundred three-a of the civil practice law and rules, or 32 an order of a federal court pursuant to rule 11 of the federal rules of 33 civil procedure imposing sanctions in an action commenced by a person, 34 while an inmate, against a state agency, officer or employee. 35 S 2. Subparagraphs (i), (ii) and (iv) of paragraph (d) of subdivision 36 1 of section 803 of the correction law, as added by section 10-a of 37 chapter 738 of the laws of 2004, are amended to read as follows: 38 (i) Except as provided in subparagraph (ii) of this paragraph, every 39 person under the custody of the department or confined in a facility in 40 the department of mental hygiene serving an indeterminate sentence of 41 imprisonment with a minimum period of one year or more or a determinate 42 sentence of imprisonment of one year or more [imposed pursuant to 43 section 70.70 or 70.71 of the penal law,] may earn a merit time allow- 44 ance. 45 (ii) Such merit time allowance shall not be available to any person 46 serving [an indeterminate] A sentence [authorized for an A-I felony 47 offense, other than an A-I felony offense defined in article two hundred 48 twenty of the penal law, or any sentence imposed for a violent felony 49 offense as defined in section 70.02 of the penal law, manslaughter in 50 the second degree, vehicular manslaughter in the second degree, vehicu- 51 lar manslaughter in the first degree, criminally negligent homicide,] 52 IMPOSED FOR MURDER IN THE FIRST DEGREE AS DEFINED IN SECTION 125.27 OF 53 THE PENAL LAW, an offense defined in article one hundred thirty of the 54 penal law, incest, [or] an offense defined in article two hundred 55 sixty-three of the penal law, [or] AN ACT OF TERRORISM AS DEFINED IN 56 ARTICLE FOUR HUNDRED NINETY OF THE PENAL LAW, aggravated harassment of S. 338 3 A. 154 1 an employee by an inmate, OR AN ATTEMPT OR CONSPIRACY TO COMMIT ANY SUCH 2 OFFENSE. 3 (iv) Such merit time allowance may be granted when an inmate success- 4 fully participates in the work and treatment program assigned pursuant 5 to section eight hundred five of this article and when such inmate 6 [obtains a] ACHIEVES ONE OF THE FOLLOWING: (1) COMPLETES HIS OR HER 7 general equivalency diploma, HIS OR HER EDUCATIONAL REQUIREMENTS AS 8 DETERMINED BY THE DEPARTMENT OR SATISFACTORILY COMPLETES COURSEWORK 9 SPONSORED BY AN INSTITUTION OF HIGHER LEARNING REPRESENTING A SEMESTER 10 OF ACADEMIC TRAINING; (2) COMPLETES an alcohol and substance abuse 11 treatment [certificate, a vocational trade certificate following at 12 least six months of vocational programming or performs] PROGRAM, OR 13 COMPLETES A COMPARABLE PROGRAM OF A DIFFERENT TYPE AS DETERMINED BY THE 14 DEPARTMENT, INCLUDING, BUT NOT LIMITED TO, ANGER MANAGEMENT, FAMILY 15 VIOLENCE, OR PARENTING; (3) COMPLETES A VOCATIONAL TRAINING PROGRAM OR A 16 COMPARABLE AND EQUIVALENT TRAINING PROGRAM AS DETERMINED BY THE DEPART- 17 MENT; (4) PERFORMS SATISFACTORILY FOR AT LEAST SIX MONTHS IN A SKILLED 18 JOB ASSIGNMENT, INCLUDING BUT NOT LIMITED TO, INMATE PROGRAM AIDE (IPA), 19 LAW LIBRARY CLERK, MEDICAL/INFIRMARY AIDE, CHILDREN'S CENTER AIDE, AND 20 FOOD SERVICE WORKER; OR (5) COMPLETES at least four hundred hours of 21 service as part of a community work crew. 22 Such allowance shall be withheld for any serious disciplinary infrac- 23 tion or upon a judicial determination that the person, while an inmate, 24 commenced or continued a civil action, proceeding or claim that was 25 found to be frivolous as defined in subdivision (c) of section eight 26 thousand three hundred three-a of the civil practice law and rules, or 27 an order of a federal court pursuant to rule 11 of the federal rules of 28 civil procedure imposing sanctions in an action commenced by a person, 29 while an inmate, against a state agency, officer or employee. 30 S 3. Subparagraph (v) of paragraph (d) of subdivision 1 of section 803 31 of the correction law, as added by section 7 of chapter 738 of the laws 32 of 2004, is amended to read as follows: 33 (v) The provisions of this paragraph shall apply to persons in custody 34 serving an indeterminate sentence on the effective date of this para- 35 graph as well as to persons sentenced to an indeterminate sentence on 36 and after the effective date of this paragraph and prior to September 37 first, two thousand five and to persons sentenced to a determinate 38 sentence [prior to September first, two thousand eleven] for a felony as 39 defined in article two hundred twenty or two hundred twenty-one of the 40 penal law. 41 S 4. Subparagraph (v) of paragraph (d) of subdivision 1 of section 803 42 of the correction law, as added by section 10-a of chapter 738 of the 43 laws of 2004, is amended to read as follows: 44 (v) The provisions of this paragraph shall apply to persons in custody 45 serving an indeterminate sentence on the effective date of this para- 46 graph as well as to persons sentenced to an indeterminate sentence on 47 and after the effective date of this paragraph and prior to September 48 first, two thousand five and to persons sentenced to a determinate 49 sentence [prior to September first, two thousand eleven] for a felony as 50 defined in article two hundred twenty or two hundred twenty-one of the 51 penal law. 52 S 5. Paragraph (g) of subdivision 2-a of section 803 of the correction 53 law, as added by section 9 of chapter 738 of the laws of 2004, is 54 amended to read as follows: 55 (g) The provisions of this subdivision shall apply to persons in 56 custody serving an indeterminate sentence on the effective date of this S. 338 4 A. 154 1 subdivision as well as to persons sentenced to an indeterminate sentence 2 on and after the effective date of this subdivision and prior to Septem- 3 ber first, two thousand five and to persons sentenced to a determinate 4 sentence [prior to September first, two thousand eleven] for a felony as 5 defined in article two hundred twenty or two hundred twenty-one of the 6 penal law. 7 S 6. Paragraph (g) of subdivision 2-a of section 803 of the correction 8 law, as added by section 11 of chapter 738 of the laws of 2004, is 9 amended to read as follows: 10 (g) The provisions of this subdivision shall apply to persons in 11 custody serving an indeterminate sentence on the effective date of this 12 subdivision as well as to persons sentenced to an indeterminate sentence 13 on and after the effective date of this subdivision and prior to Septem- 14 ber first, two thousand five and to persons sentenced to a determinate 15 sentence [prior to September first, two thousand eleven] for a felony as 16 defined in article two hundred twenty or two hundred twenty-one of the 17 penal law. 18 S 7. Section 803-b of the correction law is REPEALED. 19 S 8. Subdivision (c-1) of section 41 of chapter 738 of the laws of 20 2004 amending the correction law and other laws relating to controlled 21 substances and indeterminate sentences is amended to read as follows: 22 (c-1) the provisions of sections seven, eight, nine, ten and ten-a of 23 this act, and subdivision 2-a of section 803 of the correction law, as 24 added by section eleven of this act shall apply to persons in custody 25 serving an indeterminate sentence on the effective date of such 26 provisions as well as to persons sentenced to an indeterminate sentence 27 on and after the effective date of such provisions and prior to Septem- 28 ber 1, 2005 and to persons sentenced to a determinate sentence [prior to 29 September 1, 2011] for a felony as defined in article 220 or 221 of the 30 penal law; 31 S 9. Clause (C) of subparagraph (i) of paragraph (e) of subdivision 1 32 of section 632-a of the executive law, as amended by section 24 of part 33 A-1 of chapter 56 of the laws of 2010, is amended to read as follows: 34 (C) [an offense for which a merit time allowance may not be received 35 against the sentence pursuant to paragraph (d) of subdivision one of 36 section eight hundred three of the correction law] AN A-I FELONY 37 OFFENSE, OTHER THAN AN A-I FELONY OFFENSE DEFINED IN ARTICLE TWO HUNDRED 38 TWENTY OF THE PENAL LAW, MANSLAUGHTER IN THE SECOND DEGREE, VEHICULAR 39 MANSLAUGHTER IN THE SECOND DEGREE, VEHICULAR MANSLAUGHTER IN THE FIRST 40 DEGREE, CRIMINALLY NEGLIGENT HOMICIDE, AN OFFENSE DEFINED IN ARTICLE ONE 41 HUNDRED THIRTY OF THE PENAL LAW, INCEST, AN OFFENSE DEFINED IN ARTICLE 42 TWO HUNDRED SIXTY-THREE OF THE PENAL LAW, AGGRAVATED HARASSMENT OF AN 43 EMPLOYEE BY AN INMATE; 44 S 10. This act shall take effect on the ninetieth day after it shall 45 have become a law and shall apply to: (i) persons in custody serving an 46 indeterminate or determinate sentence or sentences on the effective 47 date; (ii) persons sentenced to an indeterminate or determinate sentence 48 or sentences on or after the effective date; and (iii) persons who have 49 not completed service of an indeterminate or determinate sentence or 50 sentences imposed prior to the effective date; provided, however, that 51 the amendments to section 803 of the correction law made by sections 52 one, three, and five of this act shall be subject to the expiration and 53 reversion of such section pursuant to subdivision d of section 74 of 54 chapter 3 of the laws of 1995, as amended, when upon such date the 55 provisions of sections two, four and six of this act shall take effect.