Bill Text: NY A04288 | 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) 2019-02-04 - referred to correction [A04288 Detail]

Download: New_York-2019-A04288-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          4288
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    February 4, 2019
                                       ___________
        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]  three  years.  Provided,
     9  however,  that  a  person under sentence for an offense defined in para-
    10  graphs (a) and (b) of subdivision one of section 70.02 of the penal law,
    11  where such offense involved the use or threatened use of a deadly weapon
    12  or dangerous instrument shall not be eligible to participate in  a  work
    13  release program until he or she is eligible for release on parole or who
    14  will  be  eligible  for  release on parole or conditional release within
    15  [eighteen] thirty months. Provided,  further,  however,  that  a  person
    16  under  a  determinate  sentence  as  a second felony drug offender for a
    17  class B felony offense defined in article  two  hundred  twenty  of  the
    18  penal  law,  who  was  sentenced  pursuant to section 70.70 of such law,
    19  shall not be eligible to participate  in  a  temporary  release  program
    20  until  the  time  served  under  imprisonment for his or her determinate
    21  sentence, including any jail time credited pursuant to the provisions of
    22  article seventy of the penal law, shall be at least eighteen months.  In
    23  the  case  of a person serving an indeterminate sentence of imprisonment
    24  imposed pursuant to the penal law in effect after September  one,  nine-
    25  teen hundred sixty-seven, for the purposes of this article parole eligi-
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03065-01-9

        A. 4288                             2
     1  bility  shall  be upon the expiration of the minimum period of imprison-
     2  ment fixed by the court or where the court has  not  fixed  any  period,
     3  after  service of the minimum period fixed by the state board of parole.
     4  [If  an  inmate  is  denied  release on parole, such inmate shall not be
     5  deemed an eligible inmate until he or she is within two years of his  or
     6  her  next  scheduled  appearance  before the state parole board.] In any
     7  case where an inmate is denied release on parole while participating  in
     8  a  temporary  release program, the department shall review the status of
     9  the inmate to determine if continued placement in the program is  appro-
    10  priate.  No person convicted of any escape or absconding offense defined
    11  in article two hundred five of the  penal  law  shall  be  eligible  for
    12  temporary  release.  Further,  no  person  under sentence for aggravated
    13  harassment of an employee by an inmate as defined in section  240.32  of
    14  the  penal  law for, any homicide offense defined in article one hundred
    15  twenty-five of the penal law, for any sex offense defined in article one
    16  hundred thirty of the penal law, for an act of terrorism as  defined  in
    17  article  four  hundred ninety of the penal law, for an offense involving
    18  the sexual performance of a child as  defined  in  article  two  hundred
    19  sixty-three  of  the  penal  law,  or  for an offense defined in section
    20  255.25, 255.26 or 255.27 of the penal law shall be eligible  to  partic-
    21  ipate  in a work release program as defined in subdivision three of this
    22  section. Nor shall any person under sentence for any sex offense defined
    23  in article one hundred thirty of the penal law be  eligible  to  partic-
    24  ipate  in a community services program as defined in subdivision five of
    25  this section. [Notwithstanding the foregoing, no person who is an other-
    26  wise eligible inmate who is under sentence for a  crime  involving:  (a)
    27  infliction  of  serious  physical  injury upon another as defined in the
    28  penal law or (b) any other offense involving the use or  threatened  use
    29  of  a deadly weapon may participate in a temporary release program with-
    30  out the written approval of the commissioner.]  The  commissioner  shall
    31  promulgate regulations giving direction to the temporary release commit-
    32  tee at each institution in order to aid such committees in [carrying out
    33  this  mandate] determining which inmates are eligible and appropriate to
    34  participate in the temporary release programs.
    35    The governor[, by executive order,] may not issue or enforce any exec-
    36  utive order to exclude or  limit  the  participation  of  any  class  of
    37  [otherwise]  eligible  inmates from participation in a temporary release
    38  program. Nothing in this paragraph shall be construed to affect  [either
    39  the  validity  of  any  executive  order  previously issued limiting the
    40  participation of otherwise eligible inmates  in  such  program  or]  the
    41  authority  of  the  commissioner  of  the  department of corrections and
    42  community supervision to impose appropriate regulations  [limiting  such
    43  participation]  for determining which inmates are eligible and appropri-
    44  ate to participate in the temporary release programs.  The  commissioner
    45  shall  promulgate regulations giving direction to department and transi-
    46  tional services staff with regard to developing and  providing  program-
    47  matic  support  to  temporary  release participants with emphasis on the
    48  first three months of work release.
    49    § 2. Subdivision 2 of section 851 of the correction law, as amended by
    50  chapter 447 of the laws of 1991, the opening  paragraph  as  amended  by
    51  chapter 252 of the laws of 2005, and the closing paragraph as amended by
    52  section  43 of subpart B of part C of chapter 62 of the laws of 2011, is
    53  amended to read as follows:
    54    2. "Eligible inmate" means: a person confined in an institution who is
    55  eligible for release on parole or who will become eligible  for  release
    56  on  parole  or  conditional  release within [two] three years. Provided,

        A. 4288                             3
     1  that a person under a determinate  sentence  as  a  second  felony  drug
     2  offender  for  a  class  B felony offense defined in article two hundred
     3  twenty of the penal law, who was sentenced pursuant to section 70.70  of
     4  such  law,  shall  not be eligible to participate in a temporary release
     5  program until the time served under imprisonment for his or her determi-
     6  nate  sentence,  including  any  jail  time  credited  pursuant  to  the
     7  provisions  of article seventy of the penal law, shall be at least eigh-
     8  teen months. In the case of a person serving an  indeterminate  sentence
     9  of  imprisonment  imposed  pursuant  to  the  penal  law in effect after
    10  September one, nineteen hundred sixty-seven, for the  purposes  of  this
    11  article  parole  eligibility shall be upon the expiration of the minimum
    12  period of imprisonment fixed by the court or where  the  court  has  not
    13  fixed any period, after service of the minimum period fixed by the state
    14  board  of parole. [If an inmate is denied release on parole, such inmate
    15  shall not be deemed an eligible inmate until he or  she  is  within  two
    16  years  of  his  or her next scheduled appearance before the state parole
    17  board.] In any case where an inmate is denied release  on  parole  while
    18  participating  in  a  temporary  release  program,  the department shall
    19  review the status of the inmate to determine if continued  placement  in
    20  the  program  is  appropriate.  No  person  convicted  of  any escape or
    21  absconding offense defined in article two hundred five of the penal  law
    22  shall  be  eligible  for  temporary  release.  Further,  no person under
    23  sentence for aggravated harassment  of  an  employee  by  an  inmate  as
    24  defined  in  section  240.32  of the penal law for, any homicide offense
    25  defined in article one hundred twenty-five of the penal law, for any sex
    26  offense defined in article one hundred thirty of the penal law,  for  an
    27  act  of terrorism as defined in article four hundred ninety of the penal
    28  law, for an offense involving the  sexual  performance  of  a  child  as
    29  defined  in  article two hundred sixty-three of the penal law, or for an
    30  offense defined in section 255.25, 255.26 or 255.27  of  the  penal  law
    31  shall be eligible to participate in a work release program as defined in
    32  subdivision  three  of this section. Nor shall any person under sentence
    33  for any sex offense defined in article one hundred thirty of  the  penal
    34  law  be  eligible  to  participate  in  a  community services program as
    35  defined in subdivision five of this section. [Notwithstanding the  fore-
    36  going,  no  person  who  is  an  otherwise  eligible inmate who is under
    37  sentence for a crime involving: (a) infliction of serious physical inju-
    38  ry upon another as defined in the penal law, (b) a sex offense involving
    39  forcible compulsion, or (c) any  other  offense  involving  the  use  or
    40  threatened use of a deadly weapon may participate in a temporary release
    41  program  without  the written approval of the commissioner.] The commis-
    42  sioner shall promulgate regulations giving direction  to  the  temporary
    43  release committee at each institution in order to aid such committees in
    44  [carrying  out  this mandate] determining which inmates are eligible and
    45  appropriate to participate in the temporary release programs.
    46    The governor[, by executive order,] may not issue or enforce any exec-
    47  utive order to exclude or  limit  the  participation  of  any  class  of
    48  [otherwise]  eligible  inmates from participation in a temporary release
    49  program. Nothing in this paragraph shall be construed to affect  [either
    50  the  validity  of  any  executive  order  previously issued limiting the
    51  participation of otherwise eligible inmates  in  such  program  or]  the
    52  authority  of the commissioner to impose appropriate regulations [limit-
    53  ing such participation] for determining which inmates are  eligible  and
    54  appropriate  to  participate in temporary release programs.  The commis-
    55  sioner shall promulgate regulations giving direction to  department  and
    56  transitional  services  staff  with  regard  to developing and providing

        A. 4288                             4
     1  programmatic support to temporary release participants with emphasis  on
     2  the first three months of work release.
     3    §  3.  Subdivision 2 of section 851 of the correction law, as added by
     4  chapter 472 of the laws of 1969, is amended to read as follows:
     5    2. "Eligible inmate" means a person confined in an institution where a
     6  work release program has been established who is eligible for release on
     7  parole or who will become eligible for release  on  parole  within  [one
     8  year] three years.
     9    § 4. Subdivision 2-a of section 851 of the correction law, as added by
    10  chapter 251 of the laws of 2002, is amended to read as follows:
    11    2-a. Notwithstanding subdivision two of this section, the term "eligi-
    12  ble  inmate"  shall also include a person confined in an institution who
    13  is eligible for release on  parole  or  who  will  become  eligible  for
    14  release  on  parole or conditional release within [two] three years, and
    15  who was convicted of a  homicide  offense  as  defined  in  article  one
    16  hundred  twenty-five  of the penal law [or an assault offense defined in
    17  article one hundred twenty of the penal law,] and who can demonstrate to
    18  the commissioner that: (a) the victim of such homicide or assault was  a
    19  member  of  the  inmate's  immediate  family  as that term is defined in
    20  section 120.40 of the penal law or  had  a  child  in  common  with  the
    21  inmate;  (b) the inmate was subjected to substantial physical, sexual or
    22  psychological abuse committed by the victim of such homicide or assault;
    23  and (c) such abuse was a substantial factor in  causing  the  inmate  to
    24  commit  such homicide or assault. With respect to an inmate's claim that
    25  he or she was subjected to substantial physical, sexual or psychological
    26  abuse committed by the victim, such demonstration shall include corrobo-
    27  rative material that may include, but is not limited to, witness  state-
    28  ments,  social  services  records,  hospital  records,  law  enforcement
    29  records and a showing based in part on documentation prepared at or near
    30  the time of the commission of the offense  or  the  prosecution  thereof
    31  tending  to  support the inmate's claim. Prior to making a determination
    32  under this subdivision, the commissioner is required to request and take
    33  into consideration the opinion of the district attorney  who  prosecuted
    34  the  underlying  homicide  or  assault  offense  and  the opinion of the
    35  sentencing court. If such opinions are received within  forty-five  days
    36  of  the request, the commissioner shall take them into consideration. If
    37  such opinions are not so received, the commissioner may proceed with the
    38  determination. Any action by the commissioner pursuant to this  subdivi-
    39  sion  shall be deemed a judicial function and shall not be reviewable in
    40  any court.
    41    § 5. Subdivision 2-b of section 851 of the correction law, as added by
    42  chapter 738 of the laws of 2004, is amended to read as follows:
    43    2-b. When calculating in advance the date on which a person is or will
    44  be eligible for release on parole or conditional release,  for  purposes
    45  of  determining eligibility for temporary release or for placement at an
    46  alcohol and substance abuse treatment correctional  annex,  the  commis-
    47  sioner  shall  consider and include credit for all potential credits and
    48  reductions including but not limited to  merit  time,  additional  merit
    49  time  and good behavior allowances. Nothing in this subdivision shall be
    50  interpreted as precluding the consideration and inclusion of credit  for
    51  all  potential  credits  and  reductions  including, but not limited to,
    52  merit time, additional merit time  and  good  behavior  allowances  when
    53  calculating  in advance for any other purpose the date on which a person
    54  is or will be eligible for release on parole or conditional release.
    55    § 6. This act shall take effect immediately,  provided  however,  that
    56  the  amendments  to  subdivision  2 of section 851 of the correction law

        A. 4288                             5
     1  made by section one of this act shall be subject to the  expiration  and
     2  reversion of such subdivision and section pursuant to subdivision (c) of
     3  section  46  of chapter 60 of the laws of 1994 and section 10 of chapter
     4  339  of the laws of 1972, as amended, when upon such date the provisions
     5  of section two of this act shall take effect; provided further, that the
     6  amendments to subdivision 2 of section 851 of the correction law made by
     7  section two of this act shall expire on the same date as subdivision (c)
     8  of section 46 of chapter 60 of the laws of 1994, section 10  of  chapter
     9  339  of  the  laws  of 1972, and section 5 of chapter 554 of the laws of
    10  1986, as amended, expire, when upon such date the provisions of  section
    11  three  of  this  act shall take effect; provided further that the amend-
    12  ments to subdivisions 2-a and 2-b of section 851 of the correction  law,
    13  made  by sections four and five of this act shall not affect the expira-
    14  tion of such section and shall expire therewith.
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