Bill Text: NY A04042 | 2017-2018 | General Assembly | Introduced

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

Spectrum: Partisan Bill (Democrat 5-0)

Status: (Introduced - Dead) 2018-03-27 - reported referred to codes [A04042 Detail]

Download: New_York-2017-A04042-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________
                                          4042
                               2017-2018 Regular Sessions
                   IN ASSEMBLY
                                    January 31, 2017
                                       ___________
        Introduced  by  M. of A. WEPRIN, O'DONNELL, AUBRY, KAVANAGH -- 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
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05031-01-7
        A. 4042                             2
     1  the expiration of the minimum period of imprisonment fixed by the  court
     2  or  where the court has not fixed any period, after service of the mini-
     3  mum period fixed by the state board of parole. If an  inmate  is  denied
     4  release  on  parole,  such inmate shall not be deemed an eligible inmate
     5  until he or she is within two years of his or her next scheduled appear-
     6  ance before the state parole board. In  any  case  where  an  inmate  is
     7  denied  release  on  parole  while  participating in a temporary release
     8  program, the department shall review the status of the inmate to  deter-
     9  mine  if  continued  placement  in the program is appropriate. No person
    10  convicted of any escape or absconding offense  defined  in  article  two
    11  hundred  five  of the penal law shall be eligible for temporary release.
    12  [Further, no person under  sentence  for  aggravated  harassment  of  an
    13  employee by an inmate as defined in section 240.32 of the penal law for,
    14  any  homicide  offense defined in article one hundred twenty-five of the
    15  penal law, for any sex offense defined in article one hundred thirty  of
    16  the  penal  law,  or for an offense defined in section 255.25, 255.26 or
    17  255.27 of the penal law shall be  eligible  to  participate  in  a  work
    18  release  program  as  defined  in subdivision three of this section. Nor
    19  shall any person under sentence for any sex offense defined  in  article
    20  one  hundred  thirty  of  the  penal law be eligible to participate in a
    21  community services program  as  defined  in  subdivision  five  of  this
    22  section.  [Notwithstanding  the foregoing, no person who is an otherwise
    23  eligible inmate who  is  under  sentence  for  a  crime  involving:  (a)
    24  infliction  of  serious  physical  injury upon another as defined in the
    25  penal law or (b) any other offense involving the use or  threatened  use
    26  of  a deadly weapon may participate in a temporary release program with-
    27  out the written approval of the commissioner.]  The  commissioner  shall
    28  promulgate regulations giving direction to the temporary release commit-
    29  tee  at each institution in order to aid such committees in carrying out
    30  this mandate.
    31    [The governor, by executive order, may exclude or  limit  the  partic-
    32  ipation of any class of otherwise eligible inmates from participation in
    33  a  temporary  release  program.  Nothing  in  this  paragraph  shall  be
    34  construed to affect either the validity of any executive order previous-
    35  ly issued limiting the participation of otherwise  eligible  inmates  in
    36  such  program or the authority of the commissioner to impose appropriate
    37  regulations limiting such participation.]
    38    § 2. Subdivision 2 of section 851 of the correction law, as amended by
    39  chapter 447 of the laws of 1991, the opening  paragraph  as  amended  by
    40  chapter 252 of the laws of 2005, and the closing paragraph as amended by
    41  section  43 of subpart B of part C of chapter 62 of the laws of 2011, is
    42  amended to read as follows:
    43    2. "Eligible inmate" means: a person confined in an institution who is
    44  eligible for release on parole or who will become eligible  for  release
    45  on  parole  or  conditional  release within two years. [Provided, that a
    46  person under a determinate sentence as a second felony drug offender for
    47  a class B felony offense defined in article two hundred  twenty  of  the
    48  penal  law,  who  was  sentenced  pursuant to section 70.70 of such law,
    49  shall not be eligible to participate  in  a  temporary  release  program
    50  until  the  time  served  under  imprisonment for his or her determinate
    51  sentence, including any jail time credited pursuant to the provisions of
    52  article seventy of the penal law, shall be at least eighteen months.] In
    53  the case of a person serving an indeterminate sentence  of  imprisonment
    54  imposed  pursuant  to the penal law in effect after September one, nine-
    55  teen hundred sixty-seven, for the purposes of this article parole eligi-
    56  bility shall be upon the expiration of the minimum period  of  imprison-
        A. 4042                             3
     1  ment  fixed  by  the  court or where the court has not fixed any period,
     2  after service of the minimum period fixed by the state board of  parole.
     3  [If  an  inmate  is  denied  release on parole, such inmate shall not be
     4  deemed  an eligible inmate until he or she is within two years of his or
     5  her next scheduled appearance before the state  parole  board.]  In  any
     6  case  where an inmate is denied release on parole while participating in
     7  a temporary release program, the department shall review the  status  of
     8  the  inmate to determine if continued placement in the program is appro-
     9  priate. No person convicted of any escape or absconding offense  defined
    10  in  article  two  hundred  five  of  the penal law shall be eligible for
    11  temporary release.  [Nor shall any person under  sentence  for  any  sex
    12  offense defined in article one hundred thirty of the penal law be eligi-
    13  ble  to participate in a community services program as defined in subdi-
    14  vision five of this section. Notwithstanding the  foregoing,  no  person
    15  who  is  an  otherwise eligible inmate who is under sentence for a crime
    16  involving: (a) infliction of serious physical  injury  upon  another  as
    17  defined  in  the penal law, (b) a sex offense involving forcible compul-
    18  sion, or (c) any other offense involving the use or threatened use of  a
    19  deadly weapon may participate in a temporary release program without the
    20  written  approval  of the commissioner.] An inmate shall not be eligible
    21  for work release if he or she is  subject  to  a  sentence  imposed  for
    22  aggravated  murder as defined in section 125.26 of the penal law, murder
    23  in the first degree as defined in section 125.27 of the penal law,  rape
    24  in  the third degree as defined in section 130.25 of the penal law, rape
    25  in the second degree as defined in section 130.30 of the penal law, rape
    26  in the first degree as defined in section 130.35 of the penal law, crim-
    27  inal sexual act in the second degree as defined in section 130.45 of the
    28  penal law, criminal sexual act in the first degree as defined in section
    29  130.50 of the penal law, persistent sexual abuse as defined  in  section
    30  130.53  of the penal law, sexual abuse in the first degree as defined in
    31  section 130.65 of the penal law, aggravated sexual abuse  in  the  third
    32  degree  as defined in section 130.66 of the penal law, aggravated sexual
    33  abuse in the second degree as defined in section  130.67  of  the  penal
    34  law,  aggravated  sexual abuse in the first degree as defined in section
    35  130.70 of the penal law, course of sexual conduct against a child in the
    36  first degree as defined in section 130.75 of the penal  law,  course  of
    37  sexual  conduct  against  a  child  in  the  second degree as defined in
    38  section 130.80 of the penal law, predatory sexual assault as defined  in
    39  section  130.95  of  the  penal  law, predatory sexual assault against a
    40  child as defined in section 130.96 of the penal law, promoting prostitu-
    41  tion in the second degree as defined in section 230.30 of the penal law,
    42  promoting prostitution in the first degree as defined in section  230.32
    43  of  the  penal law, compelling prostitution as defined in section 230.33
    44  of the penal law, sex trafficking as defined in section  230.34  of  the
    45  penal  law,  incest  in the first or second degree as defined in article
    46  two hundred fifty-five of the penal law, an offense of terrorism defined
    47  in article four hundred ninety of the penal law,  or  an  attempt  or  a
    48  conspiracy to commit any such offense. The commissioner shall promulgate
    49  regulations  giving direction to the temporary release committee at each
    50  institution in order  to  aid  such  committees  in  carrying  out  this
    51  mandate.
    52    [The  governor,  by  executive order, may exclude or limit the partic-
    53  ipation of any class of otherwise eligible inmates from participation in
    54  a  temporary  release  program.  Nothing  in  this  paragraph  shall  be
    55  construed to affect either the validity of any executive order previous-
    56  ly  issued  limiting  the participation of otherwise eligible inmates in
        A. 4042                             4

     1  such program or the authority of the commissioner to impose  appropriate
     2  regulations limiting such participation.]
     3    § 3. Subdivision 2-a of section 851 of the correction law, as added by
     4  chapter 251 of the laws of 2002, is amended to read as follows:
     5    2-a. Notwithstanding subdivision two of this section, the term "eligi-
     6  ble  inmate"  shall also include a person confined in an institution who
     7  is eligible for release on  parole  or  who  will  become  eligible  for
     8  release  on  parole  or conditional release within [two] four years, and
     9  who was convicted of a  homicide  offense  as  defined  in  article  one
    10  hundred  twenty-five  of  the penal law or an assault offense defined in
    11  article one hundred twenty of the penal law, and who can demonstrate  to
    12  the  commissioner that: (a) the victim of such homicide or assault was a
    13  member of the inmate's immediate family  as  that  term  is  defined  in
    14  section  120.40  of  the  penal  law  or  had a child in common with the
    15  inmate; (b) the inmate was subjected to substantial physical, sexual  or
    16  psychological abuse committed by the victim of such homicide or assault;
    17  and  (c)  such  abuse  was a substantial factor in causing the inmate to
    18  commit such homicide or assault. With respect to an inmate's claim  that
    19  he or she was subjected to substantial physical, sexual or psychological
    20  abuse committed by the victim, such demonstration shall include corrobo-
    21  rative  material that may include, but is not limited to, witness state-
    22  ments,  social  services  records,  hospital  records,  law  enforcement
    23  records and a showing based in part on documentation prepared at or near
    24  the  time  of  the  commission of the offense or the prosecution thereof
    25  tending to support the inmate's claim. Prior to making  a  determination
    26  under this subdivision, the commissioner is required to request and take
    27  into  consideration  the opinion of the district attorney who prosecuted
    28  the underlying homicide or  assault  offense  and  the  opinion  of  the
    29  sentencing  court.  If such opinions are received within forty-five days
    30  of the request, the commissioner shall take them into consideration.  If
    31  such opinions are not so received, the commissioner may proceed with the
    32  determination.  Any action by the commissioner pursuant to this subdivi-
    33  sion shall be deemed a judicial function and shall not be reviewable  in
    34  any court.
    35    § 4. Subdivision 2-b of section 851 of the correction law, as added by
    36  chapter 738 of the laws of 2004, is amended to read as follows:
    37    2-b. When calculating in advance the date on which a person is or will
    38  be  eligible  for release on parole or conditional release, for purposes
    39  of determining eligibility for temporary release or for placement at  an
    40  alcohol  and  substance  abuse treatment correctional annex, the commis-
    41  sioner shall consider and include credit for all potential  credits  and
    42  reductions  including  but  not  limited to merit time, additional merit
    43  time and good behavior allowances. Nothing in this subdivision shall  be
    44  interpreted  as precluding the consideration and inclusion of credit for
    45  all potential credits and reductions  including,  but  not  limited  to,
    46  merit  time,  additional  merit  time  and good behavior allowances when
    47  calculating in advance for any other purpose the date on which a  person
    48  is or will be eligible for release on parole or conditional release.
    49    §  5.  This  act shall take effect immediately, provided however, that
    50  the amendments to subdivision 2 of section 851  of  the  correction  law
    51  made  by  section one of this act shall be subject to the expiration and
    52  reversion of such subdivision and section pursuant to subdivision (c) of
    53  section 46 of chapter 60 of the laws of 1994 and section 10  of  chapter
    54  339  of the laws of 1972, as amended, when upon such date the provisions
    55  of section two of this act shall take effect; provided further, that the
    56  amendments to subdivision 2 of section 851 of the correction law made by
        A. 4042                             5
     1  section two of this act shall expire on the same date as subdivision (c)
     2  of section 46 of chapter 60 of the laws of 1994, section 10  of  chapter
     3  339  of  the  laws  of 1972, and section 5 of chapter 554 of the laws of
     4  1986, as amended, expire; provided further that the amendments to subdi-
     5  visions  2-a  and  2-b  of  section  851  of the correction law, made by
     6  sections three and four of this act shall not affect the  expiration  of
     7  such section and shall expire therewith.