Bill Text: NY S04835 | 2021-2022 | General Assembly | Introduced
Bill Title: Relates to expanding prison work release program eligibility and participation.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2022-01-05 - REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION [S04835 Detail]
Download: New_York-2021-S04835-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 4835 2021-2022 Regular Sessions IN SENATE February 16, 2021 ___________ Introduced by Sen. BIAGGI -- read twice and ordered printed, and when printed to be committed to the Committee on Crime Victims, Crime and 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- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD08343-01-1S. 4835 2 1 teen hundred sixty-seven, for the purposes of this article parole eligi- 2 bility shall be upon the expiration of the minimum period of imprison- 3 ment fixed by the court or where the court has not fixed any period, 4 after service of the minimum period fixed by the state board of parole. 5 [If an inmate is denied release on parole, such inmate shall not be6deemed an eligible inmate until he or she is within two years of his or7her next scheduled appearance before the state parole board.] In any 8 case where an inmate is denied release on parole while participating in 9 a temporary release program, the department shall review the status of 10 the inmate to determine if continued placement in the program is appro- 11 priate. No person convicted of any escape or absconding offense defined 12 in article two hundred five of the penal law shall be eligible for 13 temporary release. Further, no person under sentence for aggravated 14 harassment of an employee by an inmate as defined in section 240.32 of 15 the penal law for, any homicide offense defined in article one hundred 16 twenty-five of the penal law, for any sex offense defined in article one 17 hundred thirty of the penal law, for an act of terrorism as defined in 18 article four hundred ninety of the penal law, for an offense involving 19 the sexual performance of a child as defined in article two hundred 20 sixty-three of the penal law, or for an offense defined in section 21 255.25, 255.26 or 255.27 of the penal law shall be eligible to partic- 22 ipate in a work release program as defined in subdivision three of this 23 section. Nor shall any person under sentence for any sex offense defined 24 in article one hundred thirty of the penal law be eligible to partic- 25 ipate in a community services program as defined in subdivision five of 26 this section. [Notwithstanding the foregoing, no person who is an other-27wise eligible inmate who is under sentence for a crime involving: (a)28infliction of serious physical injury upon another as defined in the29penal law or (b) any other offense involving the use or threatened use30of a deadly weapon may participate in a temporary release program with-31out the written approval of the commissioner.] The commissioner shall 32 promulgate regulations giving direction to the temporary release commit- 33 tee at each institution in order to aid such committees in [carrying out34this mandate] determining which inmates are eligible and appropriate to 35 participate in the temporary release programs. 36 The governor[, by executive order,] may not issue or enforce any exec- 37 utive order to exclude or limit the participation of any class of 38 [otherwise] eligible inmates from participation in a temporary release 39 program. Nothing in this paragraph shall be construed to affect [either40the validity of any executive order previously issued limiting the41participation of otherwise eligible inmates in such program or] the 42 authority of the commissioner of the department of corrections and 43 community supervision to impose appropriate regulations [limiting such44participation] for determining which inmates are eligible and appropri- 45 ate to participate in the temporary release programs. The commissioner 46 shall promulgate regulations giving direction to department and transi- 47 tional services staff with regard to developing and providing program- 48 matic support to temporary release participants with emphasis on the 49 first three months of work release. 50 § 2. Subdivision 2 of section 851 of the correction law, as amended by 51 chapter 447 of the laws of 1991, the opening paragraph as amended by 52 chapter 252 of the laws of 2005, and the closing paragraph as amended by 53 section 43 of subpart B of part C of chapter 62 of the laws of 2011, is 54 amended to read as follows: 55 2. "Eligible inmate" means: a person confined in an institution who is 56 eligible for release on parole or who will become eligible for releaseS. 4835 3 1 on parole or conditional release within [two] three years. Provided, 2 that a person under a determinate sentence as a second felony drug 3 offender for a class B felony offense defined in article two hundred 4 twenty of the penal law, who was sentenced pursuant to section 70.70 of 5 such law, shall not be eligible to participate in a temporary release 6 program until the time served under imprisonment for his or her determi- 7 nate sentence, including any jail time credited pursuant to the 8 provisions of article seventy of the penal law, shall be at least eigh- 9 teen months. In the case of a person serving an indeterminate sentence 10 of imprisonment imposed pursuant to the penal law in effect after 11 September one, nineteen hundred sixty-seven, for the purposes of this 12 article parole eligibility shall be upon the expiration of the minimum 13 period of imprisonment fixed by the court or where the court has not 14 fixed any period, after service of the minimum period fixed by the state 15 board of parole. [If an inmate is denied release on parole, such inmate16shall not be deemed an eligible inmate until he or she is within two17years of his or her next scheduled appearance before the state parole18board.] In any case where an inmate is denied release on parole while 19 participating in a temporary release program, the department shall 20 review the status of the inmate to determine if continued placement in 21 the program is appropriate. No person convicted of any escape or 22 absconding offense defined in article two hundred five of the penal law 23 shall be eligible for temporary release. Further, no person under 24 sentence for aggravated harassment of an employee by an inmate as 25 defined in section 240.32 of the penal law for, any homicide offense 26 defined in article one hundred twenty-five of the penal law, for any sex 27 offense defined in article one hundred thirty of the penal law, for an 28 act of terrorism as defined in article four hundred ninety of the penal 29 law, for an offense involving the sexual performance of a child as 30 defined in article two hundred sixty-three of the penal law, or for an 31 offense defined in section 255.25, 255.26 or 255.27 of the penal law 32 shall be eligible to participate in a work release program as defined in 33 subdivision three of this section. Nor shall any person under sentence 34 for any sex offense defined in article one hundred thirty of the penal 35 law be eligible to participate in a community services program as 36 defined in subdivision five of this section. [Notwithstanding the fore-37going, no person who is an otherwise eligible inmate who is under38sentence for a crime involving: (a) infliction of serious physical inju-39ry upon another as defined in the penal law, (b) a sex offense involving40forcible compulsion, or (c) any other offense involving the use or41threatened use of a deadly weapon may participate in a temporary release42program without the written approval of the commissioner.] The commis- 43 sioner shall promulgate regulations giving direction to the temporary 44 release committee at each institution in order to aid such committees in 45 [carrying out this mandate] determining which inmates are eligible and 46 appropriate to participate in the temporary release programs. 47 The governor[, by executive order,] may not issue or enforce any exec- 48 utive order to exclude or limit the participation of any class of 49 [otherwise] eligible inmates from participation in a temporary release 50 program. Nothing in this paragraph shall be construed to affect [either51the validity of any executive order previously issued limiting the52participation of otherwise eligible inmates in such program or] the 53 authority of the commissioner to impose appropriate regulations [limit-54ing such participation] for determining which inmates are eligible and 55 appropriate to participate in temporary release programs. The commis- 56 sioner shall promulgate regulations giving direction to department andS. 4835 4 1 transitional services staff with regard to developing and providing 2 programmatic support to temporary release participants with emphasis on 3 the first three months of work release. 4 § 3. Subdivision 2 of section 851 of the correction law, as added by 5 chapter 472 of the laws of 1969, is amended to read as follows: 6 2. "Eligible inmate" means a person confined in an institution where a 7 work release program has been established who is eligible for release on 8 parole or who will become eligible for release on parole within [one9year] three years. 10 § 4. Subdivision 2-a of section 851 of the correction law, as added by 11 chapter 251 of the laws of 2002, is amended to read as follows: 12 2-a. Notwithstanding subdivision two of this section, the term "eligi- 13 ble inmate" shall also include a person confined in an institution who 14 is eligible for release on parole or who will become eligible for 15 release on parole or conditional release within [two] three years, and 16 who was convicted of a homicide offense as defined in article one 17 hundred twenty-five of the penal law [or an assault offense defined in18article one hundred twenty of the penal law,] and who can demonstrate to 19 the commissioner that: (a) the victim of such homicide or assault was a 20 member of the inmate's immediate family as that term is defined in 21 section 120.40 of the penal law or had a child in common with the 22 inmate; (b) the inmate was subjected to substantial physical, sexual or 23 psychological abuse committed by the victim of such homicide or assault; 24 and (c) such abuse was a substantial factor in causing the inmate to 25 commit such homicide or assault. With respect to an inmate's claim that 26 he or she was subjected to substantial physical, sexual or psychological 27 abuse committed by the victim, such demonstration shall include corrobo- 28 rative material that may include, but is not limited to, witness state- 29 ments, social services records, hospital records, law enforcement 30 records and a showing based in part on documentation prepared at or near 31 the time of the commission of the offense or the prosecution thereof 32 tending to support the inmate's claim. Prior to making a determination 33 under this subdivision, the commissioner is required to request and take 34 into consideration the opinion of the district attorney who prosecuted 35 the underlying homicide or assault offense and the opinion of the 36 sentencing court. If such opinions are received within forty-five days 37 of the request, the commissioner shall take them into consideration. If 38 such opinions are not so received, the commissioner may proceed with the 39 determination. Any action by the commissioner pursuant to this subdivi- 40 sion shall be deemed a judicial function and shall not be reviewable in 41 any court. 42 § 5. Subdivision 2-b of section 851 of the correction law, as added by 43 chapter 738 of the laws of 2004, is amended to read as follows: 44 2-b. When calculating in advance the date on which a person is or will 45 be eligible for release on parole or conditional release, for purposes 46 of determining eligibility for temporary release or for placement at an 47 alcohol and substance abuse treatment correctional annex, the commis- 48 sioner shall consider and include credit for all potential credits and 49 reductions including but not limited to merit time, additional merit 50 time and good behavior allowances. Nothing in this subdivision shall be 51 interpreted as precluding the consideration and inclusion of credit for 52 all potential credits and reductions including, but not limited to, 53 merit time, additional merit time and good behavior allowances when 54 calculating in advance for any other purpose the date on which a person 55 is or will be eligible for release on parole or conditional release.S. 4835 5 1 § 6. This act shall take effect immediately, provided however, that 2 the amendments to subdivision 2 of section 851 of the correction law 3 made by section one of this act shall be subject to the expiration and 4 reversion of such subdivision and section pursuant to subdivision (c) of 5 section 46 of chapter 60 of the laws of 1994 and section 10 of chapter 6 339 of the laws of 1972, as amended, when upon such date the provisions 7 of section two of this act shall take effect; provided further, that the 8 amendments to subdivision 2 of section 851 of the correction law made by 9 section two of this act shall expire on the same date as subdivision (c) 10 of section 46 of chapter 60 of the laws of 1994, section 10 of chapter 11 339 of the laws of 1972, and section 5 of chapter 554 of the laws of 12 1986, as amended, expire, when upon such date the provisions of section 13 three of this act shall take effect; provided further that the amend- 14 ments to subdivisions 2-a and 2-b of section 851 of the correction law, 15 made by sections four and five of this act shall not affect the expira- 16 tion of such section and shall expire therewith.
