Bill Text: NY S05095 | 2017-2018 | General Assembly | Introduced
Bill Title: Directs the commissioner of corrections and community supervision to establish an alternative to incarceration program for youth for certain inmates ages 16 to 18 who are selected to serve a reduced sentence in a facility which provides physical activity and rehabilitation therapy and provides the possibility for sealing of the inmates record.
Spectrum: Partisan Bill (Republican 6-0)
Status: (Introduced - Dead) 2018-01-03 - REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION [S05095 Detail]
Download: New_York-2017-S05095-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 5095 2017-2018 Regular Sessions IN SENATE March 7, 2017 ___________ Introduced by Sens. CROCI, GALLIVAN, GOLDEN, ORTT, ROBACH, SERINO -- 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, the executive law, the penal law and the criminal procedure law, in relation to the establishment of an alternative to incarceration program for youth facility The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 2 of the correction law is amended by adding a new 2 subdivision 15-a to read as follows: 3 15-a. "Alternative to incarceration program for youth facility". A 4 correctional facility designated by the commissioner as an institution 5 that may conduct an alternative to incarceration program for youth. 6 § 2. Subdivision 3 of section 70 of the correction law is amended by 7 adding a new paragraph (c) to read as follows: 8 (c) A correctional camp or an alternative to incarceration program for 9 youth facility, may be established by the department (i) upon land 10 controlled and designated by the commissioner, or (ii) on land 11 controlled and designated by the commissioner of parks, recreation and 12 historic preservation or, in the sixth park region, by the commissioner 13 of environmental conservation. 14 § 3. Paragraph (b) of subdivision 6 of section 70 of the correction 15 law, as amended by chapter 338 of the laws of 1989, is amended to read 16 as follows: 17 (b) Each facility shall be classified with respect to the function 18 served in accordance with one or more of the following categories: (i) 19 reception center; (ii) residential treatment facility; (iii) detention 20 center; (iv) correctional camp; (v) diagnostic and treatment center; 21 (vi) general confinement facility; (vii) work release facility; (viii) 22 shock incarceration correctional facility; (ix) alternative to incarcer- 23 ation program for youth facility; (x) alcohol and substance abuse treat- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD10287-01-7S. 5095 2 1 ment facility; [(x)] (xi) alcohol and substance abuse treatment correc- 2 tional annex. 3 § 4. The correction law is amended by adding a new article 26-B to 4 read as follows: 5 ARTICLE 26-B 6 ALTERNATIVE TO INCARCERATION PROGRAM FOR YOUTH 7 Section 868. Establishment of alternative to incarceration program for 8 youth. 9 869. Alternative to incarceration program for youth guidelines. 10 § 868. Establishment of alternative to incarceration program for 11 youth. 1. The commissioner, guided by consideration for the safety of 12 the community and the welfare of the inmate, shall promulgate rules and 13 regulations for the alternative to incarceration program for youth as 14 defined in section eight hundred sixty-nine of this article. Such rules 15 and regulations shall reflect the purpose of the program and shall 16 include, but not be limited to, participation criteria, inmate disci- 17 pline, programming and supervision, and program structure and adminis- 18 tration. 19 2. The commissioner shall appoint or cause to be appointed an alterna- 20 tive to incarceration for youth program supervisory committee at one or 21 more designated correctional facilities, which shall meet on a regularly 22 scheduled basis to review all eligible inmates, as defined in section 23 eight hundred sixty-nine of this article, transferred to such facility 24 for screening and all applications for the alternative to incarceration 25 program for youth. 26 3. Alternative to incarceration programs may be established only at 27 institutions classified by the commissioner as alternative to incarcera- 28 tion facilities. 29 4. The department may contract with the office of alcoholism and 30 substance abuse services, the office of mental health and the office of 31 children and family services for the provision of such services as may 32 be required to assure the success of the program. 33 5. The department shall conduct an ongoing evaluation of the program 34 to ensure that the programmatic objectives are met. The department shall 35 undertake some studies and prepare reports annually on the impact of the 36 program. The reports shall be delivered to the governor, the temporary 37 president of the senate, and the speaker of the assembly by December 38 thirty-first in each year. 39 § 869. Alternative to incarceration program for youth guidelines. 40 1. As used in this article, the following terms shall mean: 41 (a) "Eligible inmate" means a person sentenced to an indeterminate 42 term of imprisonment issued in accordance with sections 70.00, 70.05 or 43 70.15 of the penal law, or sentenced to a determinate term of imprison- 44 ment issued in accordance with paragraph (a) of subdivision two of 45 section 70.70 of the penal law, who is currently serving their term of 46 imprisonment, who has not been previously convicted of a felony as 47 defined in article seventy of the penal law, or a felony in any other 48 jurisdiction which includes all of the essential elements of any such 49 felony, who was at least sixteen years of age, but not over eighteen 50 years of age, at the time of commission of the crime upon which his or 51 her present sentence was based. Notwithstanding the foregoing, no person 52 who is convicted of any of the following crimes shall be deemed eligible 53 to participate in this program: (i) a violent felony offense as defined 54 in article seventy of the penal law, (ii) any crime classified as a 55 class A felony offense, (iii) any homicide offense as defined in article 56 one hundred twenty-five of the penal law, (iv) any felony sex offense asS. 5095 3 1 defined in article one hundred thirty of the penal law and (v) any 2 escape or absconding offense as defined in article two hundred five of 3 the penal law. Eligible inmates may be selected from a local correc- 4 tional facility, any state operated correctional facility or a facility 5 for juvenile offenders designated pursuant to subdivision four of 6 section 70.20 of the penal law. 7 (b) "Alternative to incarceration for youth program" means a program 8 pursuant to which eligible inmates are selected to participate in the 9 program and serve a reduced sentence in an alternative to incarceration 10 for youth facility, which shall provide rigorous physical activity, 11 intensive regimentation and discipline and rehabilitation therapy and 12 programming. Upon successful completion of an alternative to incarcera- 13 tion for youth program, and all post-supervision requirements otherwise 14 provided by law, the inmate shall be eligible to apply for the sealing 15 of their criminal record, pursuant to this article. 16 2. (a) An eligible inmate may make an application to the alternative 17 to incarceration for youth program supervisory committee for permission 18 to participate in the alternative to incarceration for youth program. An 19 eligible offender, serving their term of imprisonment in a local correc- 20 tional facility, must obtain consent from the sheriff in order to apply 21 to the alternative to incarceration for youth program. An eligible 22 offender, serving their term of imprisonment in a facility designated 23 pursuant to subdivision four of section 70.20 of the penal law must 24 obtain consent from the commissioner of the office of children and fami- 25 ly services in order to apply to the alternative to incarceration for 26 youth program. 27 (b) If the alternative to incarceration for youth supervisory commit- 28 tee determines that an inmate's participation in the alternative to 29 incarceration for youth program is consistent with the safety of the 30 community, the welfare of the applicant and the rules and regulations of 31 the department, the committee shall forward the application to the 32 commissioner or his or her designee for approval or disapproval. 33 (c) Paragraphs (a) and (b) of this subdivision shall apply to a judi- 34 cially sentenced alternative to incarceration for youth program inmate 35 only to the extent that the screening committee may determine whether 36 the inmate has a medical or mental health condition that will render the 37 inmate unable to successfully complete the alternative to incarceration 38 for youth program. Notwithstanding paragraph (f) of this subdivision, an 39 inmate sentenced to an alternative to incarceration for youth program 40 shall promptly commence participation in the program when such inmate is 41 an eligible inmate pursuant to this section. 42 (d) Applicants may not participate in the alternative to incarceration 43 for youth program unless they agree to be bound by all the terms and 44 conditions thereof and indicate such agreement by signing the memorandum 45 of the program immediately below a statement reading as follows: "I 46 accept the foregoing program and agree to be bound by the terms and 47 conditions thereof. I understand that my participation in the program is 48 a privilege that may be revoked at any time at the sole discretion of 49 the commissioner. I understand that I must successfully complete the 50 entire program to obtain an early release upon the completion of said 51 program, and in the event that I do not successfully complete said 52 program, for any reason, I will be transferred to a non-alternative to 53 incarceration for youth facility to continue service of my sentence." 54 Applicants who are admitted to the program from a local correctional 55 facility, but who do not successfully complete the program, shall beS. 5095 4 1 transferred back to the local correctional facility from which they were 2 admitted to the program. 3 (e) Notwithstanding any other law to the contrary, an inmate who 4 received: (i) a determinate sentence pursuant to paragraph (a) of subdi- 5 vision two of section 70.70 of the penal law, who successfully partic- 6 ipated in an alternative to incarceration for youth program for a period 7 of time equal to one-half of their determinate sentence, shall be imme- 8 diately eligible to be conditionally released; and (ii) an indeterminate 9 sentence, who successfully participated in an alternative to incarcera- 10 tion for youth program for a period of time equal to one-half of their 11 minimum sentence issued in accordance with paragraph (b) of subdivision 12 three of section 70.00, paragraph (c) of subdivision three of section 13 70.05 or section 70.15 of the penal law, shall be immediately eligible 14 to be conditionally released. 15 (f) Participation in an alternative to incarceration for youth program 16 shall be a privilege. Nothing contained in this article may be construed 17 to confer upon any inmate the right to participate or continue to 18 participate therein. 19 (g) Inmates who successfully participated in an alternative to incar- 20 ceration for youth program, who receive early release pursuant to para- 21 graph (e) of this subdivision, shall also be eligible to apply for 22 conditional sealing, as provided for in section 160.65 of the criminal 23 procedure law. 24 § 5. Subdivision 7 of section 72 of the correction law, as added by 25 chapter 261 of the laws of 1987, is amended to read as follows: 26 7. An inmate of a shock incarceration correctional facility or an 27 alternative to incarceration program for youth facility may be permitted 28 to leave the facility to participate in programs in accordance with the 29 provisions of article twenty-six-A of this chapter and article twenty- 30 six-B of this chapter, respectively. 31 § 6. Paragraph (e) of subdivision 2 of section 259-i of the executive 32 law, as added by chapter 55 of the laws of 1992, is amended to read as 33 follows: 34 (e) Notwithstanding the requirements of paragraph (a) of this subdivi- 35 sion, the determination to parole an inmate who has successfully 36 completed the shock incarceration program pursuant to section [two] 37 eight hundred sixty-seven of the correction law, or an alternative to 38 incarceration program for youth as described in section eight hundred 39 sixty-nine of the correction law, may be made without a personal inter- 40 view of the inmate and shall be made in accordance with procedures set 41 forth in the rules of the board. If parole is not granted, the time 42 period for reconsideration shall not exceed the court imposed minimum. 43 § 7. Subdivision 7 of section 60.04 of the penal law, as amended by 44 section 120 of subpart B of part C of chapter 62 of the laws of 2011, is 45 amended to read as follows: 46 7. a. Shock incarceration and alternative to incarceration program for 47 youth program participation. When the court imposes a sentence of impri- 48 sonment which requires a commitment to the department of corrections and 49 community supervision upon a person who stands convicted of a controlled 50 substance or marihuana offense, upon motion of the defendant, the court 51 may issue an order directing that the department of corrections and 52 community supervision enroll the defendant in the shock incarceration 53 program as defined in article twenty-six-A of the correction law, or an 54 alternative to incarceration program for youth as defined in article 55 twenty-six-B of the correction law, provided that the defendant is an 56 eligible inmate, as described in subdivision one of section eightS. 5095 5 1 hundred sixty-five of the correction law or as described in paragraph 2 (a) of subdivision one of section eight hundred sixty-nine of the 3 correction law, respectively. Notwithstanding the foregoing provisions 4 of this subdivision, any defendant to be enrolled in such program pursu- 5 ant to this subdivision shall be governed by the same rules and regu- 6 lations promulgated by the department of corrections and community 7 supervision, including without limitation those rules and regulations 8 establishing requirements for completion and such rules and regulations 9 governing discipline and removal from the program. 10 b. (i) In the event that an inmate designated by court order for 11 enrollment in the shock incarceration program or the alternative to 12 incarceration program for youth requires a degree of medical care or 13 mental health care that cannot be provided at a shock incarceration 14 facility or an alternative to incarceration program for youth, the 15 department, in writing, shall notify the inmate, provide a proposal 16 describing a proposed alternative-to-shock-incarceration program, or an 17 alternative to the alternative to incarceration program for youth, and 18 notify him or her that he or she may object in writing to placement in 19 such alternative-to-shock-incarceration program or alternative to the 20 alternative to incarceration program for youth. If the inmate objects 21 in writing to placement in such alternative-to-shock-incarceration 22 program, or alternative to the alternative to incarceration program for 23 youth, the department of corrections and community supervision shall 24 notify the sentencing court, provide such proposal to the court, and 25 arrange for the inmate's prompt appearance before the court. The court 26 shall provide the proposal and notice of a court appearance to the 27 people, the inmate and the appropriate defense attorney. After consider- 28 ing the proposal and any submissions by the parties, and after a reason- 29 able opportunity for the people, the inmate and counsel to be heard, the 30 court may modify its sentencing order accordingly, notwithstanding the 31 provisions of section 430.10 of the criminal procedure law. 32 (ii) An inmate who successfully completes an alternative-to-shock- 33 incarceration program, or an alternative to the alternative to incarcer- 34 ation program for youth, within the department of corrections and commu- 35 nity supervision shall be treated in the same manner as a person who has 36 successfully completed the shock incarceration program, or the alterna- 37 tive to incarceration program for youth, as set forth in subdivision 38 four of section eight hundred sixty-seven of the correction law, and 39 paragraphs (e) and (g) of subdivision two of section eight hundred 40 sixty-nine of the correction law. 41 § 8. Subparagraph (i) of paragraph (a) of subdivision 1 of section 42 70.40 of the penal law, as amended by section 127-d of subpart B of part 43 C of chapter 62 of the laws of 2011, is amended to read as follows: 44 (i) A person who is serving one or more than one indeterminate 45 sentence of imprisonment may be paroled from the institution in which he 46 or she is confined at any time after the expiration of the minimum or 47 the aggregate minimum period of imprisonment of the sentence or 48 sentences or after the successful completion of a shock incarceration 49 program, as defined in article twenty-six-A of the correction law, or 50 after successful completion of an alternative to incarceration program 51 for youth, as defined in article twenty-six-B of the correction law, 52 whichever is sooner. Release on parole shall be in the discretion of 53 the state board of parole, and such person shall continue service of his 54 or her sentence or sentences while on parole, in accordance with and 55 subject to the provisions of the executive law and the correction law.S. 5095 6 1 § 9. The criminal procedure law is amended by adding a new section 2 160.65 to read as follows: 3 § 160.65 Conditional sealing of certain offenses committed by persons 4 who successfully participate in an alternative to incarcer- 5 ation for youth program. 6 1. A person who has been deemed by the commissioner of the department 7 of corrections and community supervision to have successfully partic- 8 ipated in an alternative to incarceration program, which enabled the 9 person to be eligible for early release, as provided in paragraph (e) of 10 subdivision two of section eight hundred sixty-nine of the correction 11 law, may petition the court which issued the conviction to conditionally 12 seal the conviction for which they participated in an alternative to 13 incarceration for youth program. Such person shall not be eligible to 14 have their conviction conditionally sealed if they are subsequently 15 convicted of any criminal offense or if they are the subject of an 16 undisposed arrest, at the time of application for conditional sealing or 17 through the pendency of the action. Further, all post-release super- 18 vision obligations must be completed prior to filing for a conditional 19 sealing. 20 2. A person who was at least sixteen years of age, but not eighteen 21 years of age, at the time of commission of a criminal act, who was 22 convicted and sentenced pursuant to section 70.00, 70.05, 70.15 or para- 23 graph (a) of subdivision two of section 70.70 of the penal law, but not 24 sentenced to a term of imprisonment, may also file a petition for condi- 25 tional sealing of any conviction associated with such sentence, pursuant 26 to this section. Provided however, the petitioner must complete a mini- 27 mum of two hundred hours of community service at a not-for-profit corpo- 28 ration operating in this state prior to filing for conditional sealing. 29 The application for conditional sealing must contain a notarized state- 30 ment from the not-for-profit, certifying the dates and times of the 31 individual's community service. This community service requirement for 32 conditional sealing shall be in addition to any community service 33 ordered by the court as a condition of sentencing. 34 3. The petition authorized by this section shall be filed in the court 35 of record that imposed the sentence upon the petitioner for the given 36 offense. On the petitioner's motion, the court which imposed the 37 sentence may order that the official records and papers relating to the 38 arrest, prosecution and conviction records for the matter which they 39 disposed of, be conditionally sealed. Any sealing ordered pursuant to 40 this section shall also render the associated arrest a nullity. Prior to 41 sealing any arrest records, prosecutions, or convictions: 42 (a) the sentencing court must request and receive from the division of 43 criminal justice services or the federal bureau of investigation, a 44 fingerprint based criminal history record of the defendant, including 45 any sealed or suppressed information. The division of criminal justice 46 services shall also include a criminal history report, if any, from the 47 federal bureau of investigation regarding any criminal history informa- 48 tion that occurred in other jurisdictions. The division is hereby 49 authorized to receive such information from the federal bureau of inves- 50 tigation for this purpose. The parties shall be permitted to examine 51 these records; 52 (b) the defendant or court must identify the offense or offenses for 53 which relief may be granted; 54 (c) the court must receive documentation that the sentence imposed for 55 each offense has been completed; andS. 5095 7 1 (d) the defendant must pay a two hundred dollar filing fee. The filing 2 fee may be waived in cases of indigence as determined by the presiding 3 judge. 4 4. At the request of the defendant or the district attorney, the court 5 may conduct a hearing to consider and review any relevant evidence 6 offered by either party that would aid the court in its decision whether 7 to seal the records of the petitioner's arrest, prosecutions and 8 convictions. In making such a determination, the court shall consider 9 any relevant factors, including but not limited to: 10 (a) the circumstances and seriousness of the offense or offenses that 11 resulted in the conviction; 12 (b) the character of the petitioner, including what steps the peti- 13 tioner has taken since the time of the offense toward personal rehabili- 14 tation, including treatment, work, school, or other personal history 15 that demonstrates rehabilitation; 16 (c) the petitioner's criminal history; 17 (d) the petitioner's civic service record; 18 (e) the impact of sealing the petitioner's records upon his or her 19 rehabilitation and his or her successful and productive reentry and 20 reintegration into society, and on public safety; and 21 (f) any statements made by any victim of the offense. 22 5. A decision granting or denying a motion under this section shall be 23 made in writing and shall state the reasons for the court's ruling, 24 unless the court grants the motion without objection or written response 25 by the prosecutor, in which case the court may issue an order without a 26 written decision. If sealing is denied, the applicant may appeal the 27 decision in accordance with subdivision six of this section, or the 28 applicant may reapply after three years. 29 6. Either party may appeal as of right from the court's order. The 30 appealing party must serve notice of appeal upon the court and the 31 opposing party within thirty days of the issuance of the court order. If 32 the order is appealed by the prosecutor, such notice of appeal shall be 33 deemed a stay of the order to seal the records. The prosecutor shall 34 perfect the appeal within sixty days, or the sealing order shall imme- 35 diately take effect unless the court grants an extension of time to 36 perfect the appeal upon good cause shown by the prosecutor. The appeal 37 shall be taken to the same court to which the appeal of the original 38 conviction was, or could have been, brought. The standard of review at 39 the intermediary appellate court shall be appealable to the court of 40 appeals upon leave of the court. 41 7. When a court orders sealing pursuant to this section, all official 42 records and papers relating to the arrest, prosecution and conviction, 43 including all duplicates and copies thereof, on file with the division 44 of criminal justice services or any court shall be sealed and not made 45 available to any person or public or private agency. Provided however, 46 the division of criminal justice services shall retain fingerprints, 47 palm prints, DNA, photographs, or digital images of the same. 48 8. When a court orders sealing pursuant to this section, the clerk of 49 such court shall immediately notify the commissioner of the division of 50 criminal justice services and the petitioner regarding the records that 51 shall be sealed pursuant to this section. 52 9. Records sealed pursuant to this subdivision shall be made available 53 to: 54 (a) the petitioner or the petitioner's designated agent; 55 (b) qualified agencies, as defined in subdivision nine of section 56 eight hundred thirty-five of the executive law, and federal and stateS. 5095 8 1 law enforcement agencies when acting within the scope of their law 2 enforcement duties except that records may not be used solely for liti- 3 gation purposes; 4 (c) any prospective employer of a police officer or peace officer as 5 those terms are defined in subdivisions thirty-three and thirty-four of 6 section 1.20 of this chapter, in relation to an application for employ- 7 ment as a police officer or peace officer; provided, however, that every 8 person who is an applicant for the position of police officer or peace 9 officer shall be furnished with a copy of all records obtained pursuant 10 to this paragraph and afforded an opportunity to make an explanation 11 thereto. 12 10. The court shall not seal the petitioner's record pursuant to this 13 section while any charged offense is currently pending. 14 11. If, subsequent to the sealing of records pursuant to this section, 15 a person who is the subject of such records is found guilty of any 16 misdemeanor or felony offense, such records shall be unsealed immediate- 17 ly and remain unsealed. 18 12. The right to make an application under this section may not be 19 waived at the time a guilty plea is entered on any case in New York 20 state. 21 § 10. Subdivision 16 of section 296 of the executive law, as separate- 22 ly amended by section 3 of part N and section 14 of part AAA of chapter 23 56 of the laws of 2009, is amended to read as follows: 24 16. It shall be an unlawful discriminatory practice, unless specif- 25 ically required or permitted by statute, for any person, agency, bureau, 26 corporation or association, including the state and any political subdi- 27 vision thereof, to make any inquiry about, whether in any form of appli- 28 cation or otherwise, or to act upon adversely to the individual 29 involved, any arrest or criminal accusation of such individual not then 30 pending against that individual which was followed by a termination of 31 that criminal action or proceeding in favor of such individual, as 32 defined in subdivision two of section 160.50 of the criminal procedure 33 law, or by a youthful offender adjudication, as defined in subdivision 34 one of section 720.35 of the criminal procedure law, or by a conviction 35 for a violation sealed pursuant to section 160.55 of the criminal proce- 36 dure law or by a conviction which is sealed pursuant to section 160.58 37 of the criminal procedure law, or by a conviction which is sealed pursu- 38 ant to section 160.65 of the criminal procedure law, in connection with 39 the licensing, employment or providing of credit or insurance to such 40 individual; provided, further, that no person shall be required to 41 divulge information pertaining to any arrest or criminal accusation of 42 such individual not then pending against that individual which was 43 followed by a termination of that criminal action or proceeding in favor 44 of such individual, as defined in subdivision two of section 160.50 of 45 the criminal procedure law, or by a youthful offender adjudication, as 46 defined in subdivision one of section 720.35 of the criminal procedure 47 law, or by a conviction for a violation sealed pursuant to section 48 160.55 of the criminal procedure law, or by a conviction which is sealed 49 pursuant to section 160.58 of the criminal procedure law, or by a 50 conviction which is sealed pursuant to section 160.65 of the criminal 51 procedure law. The provisions of this subdivision shall not apply to the 52 licensing activities of governmental bodies in relation to the regu- 53 lation of guns, firearms and other deadly weapons or in relation to an 54 application for employment as a police officer or peace officer as those 55 terms are defined in subdivisions thirty-three and thirty-four of 56 section 1.20 of the criminal procedure law; provided further that theS. 5095 9 1 provisions of this subdivision shall not apply to an application for 2 employment or membership in any law enforcement agency with respect to 3 any arrest or criminal accusation which was followed by a youthful 4 offender adjudication, as defined in subdivision one of section 720.35 5 of the criminal procedure law, or by a conviction for a violation sealed 6 pursuant to section 160.55 of the criminal procedure law, or by a 7 conviction which is sealed pursuant to section 160.58 of the criminal 8 procedure law, or by a conviction which is sealed pursuant to section 9 160.65 of the criminal procedure law. 10 § 11. This act shall take effect January 1, 2018; provided, however, 11 that section eight of this act shall take effect on the same date as the 12 reversion of paragraph (a) of subdivision 1 of section 70.40 of the 13 penal law, as provided in paragraph a of subdivision 6 of section 76 of 14 chapter 435 of the laws of 1997, as amended takes effect.
