Bill Text: NY S07873 | 2021-2022 | General Assembly | Amended

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Bill Title: Establishes the "earned time act" providing for time allowances against the term or maximum term of sentences imposed by the court to be credited on an annual pro rata basis.

Spectrum: Partisan Bill (Democrat 16-0)

Status: (Introduced - Dead) 2022-01-21 - PRINT NUMBER 7873A [S07873 Detail]

Download: New_York-2021-S07873-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                         7873--A

                    IN SENATE

                                    January 18, 2022
                                       ___________

        Introduced  by  Sens. COONEY, HOYLMAN, SALAZAR -- read twice and ordered
          printed, and when printed to be committed to the  Committee  on  Crime
          Victims, Crime and Correction -- recommitted to the Committee on Crime
          Victims, Crime and Correction in accordance with Senate Rule 6, sec. 8
          --  committee  discharged,  bill amended, ordered reprinted as amended
          and recommitted to said committee

        AN ACT to amend the correction law and the penal law, in relation to the
          early release of incarcerated individuals

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  This  act  shall be known and may be cited as the "earned
     2  time act".
     3    § 2. The correction law is amended by adding a new section 802 to read
     4  as follows:
     5    § 802. Data collection. The department shall report  annually  to  the
     6  governor and the legislature with respect to each instance in which time
     7  allowance  credit  has been withheld, forfeited or cancelled. The report
     8  shall provide the following information: the name, department  identifi-
     9  cation  number  and  race  of  each incarcerated individual who has been
    10  denied credit and the amount of credit involved, the reason  or  reasons
    11  for  the  denial,  including, where applicable, a description of the bad
    12  behavior or institutional rule violation or  violations  (including  the
    13  corresponding  numerical code in the department's inmate rule handbook),
    14  and, where applicable, a description of the assigned duty  and/or  iden-
    15  tification  of  assigned  treatment  program  in  which the incarcerated
    16  person was determined to have failed to  perform  properly.  The  report
    17  shall  additionally  specify the department facility in which the recom-
    18  mendation to withhold, forfeit or cancel good  time  was  made  and  the
    19  names  of  the  department  personnel  on such facility's time allowance
    20  committee who made such recommendation.
    21    § 3. Section 803 of the correction law, as amended by chapter 3 of the
    22  laws of 1995, paragraphs (a), (b), and (c) of subdivision 1 and subdivi-
    23  sions 3, 4, and 5 as amended by section 37 of subpart B  of  part  C  of
    24  chapter  62  of  the  laws  of  2011, paragraph (d) of subdivision 1 and

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13507-04-2
        S. 7873--A                          2

     1  subdivision 2-a as added by chapter 738 of the laws  of  2004,  subpara-
     2  graph  (ii)  of paragraph (d) of subdivision 1 as amended by chapter 322
     3  of the laws of 2021, subparagraph (iv) of paragraph (d) of subdivision 1
     4  as  separately  amended  by  chapters  242  and 322 of the laws of 2021,
     5  subdivision 2-b as added by section 3 of part E of  chapter  62  of  the
     6  laws of 2003, is amended to read as follows:
     7    §  803. Good behavior allowances against indeterminate and determinate
     8  sentences. 1. (a) Every person confined in an institution of the depart-
     9  ment or a facility in the department of mental hygiene serving an  inde-
    10  terminate or determinate sentence of imprisonment, except a person serv-
    11  ing  a  sentence  with  a maximum term of life imprisonment, [may] shall
    12  receive a time allowance against the term or maximum  term  of  [his  or
    13  her] their sentence imposed by the court. Such allowances [may be grant-
    14  ed  for  good  behavior  and efficient and willing performance of duties
    15  assigned or progress and achievement in an assigned  treatment  program,
    16  and  may  be withheld, forfeited or canceled in whole or in part for bad
    17  behavior, violation of institutional rules or failure to perform proper-
    18  ly in the duties  or  program  assigned]  shall  be  credited  toward  a
    19  person's  sentence  on  an annual pro rata basis, and any credit awarded
    20  over the course of the calendar year shall vest on the final day of  the
    21  calendar   year.  Once  vested,  such  credit  shall  not  be  withheld,
    22  forfeited, or canceled.
    23    (a-1)   Time allowances that have  not  yet  been  credited  toward  a
    24  person's  sentence may be withheld, forfeited or canceled in whole or in
    25  part for violation of institutional rules, as demonstrated at a  hearing
    26  by  a preponderance of the evidence.  Such restrictions shall be limited
    27  to the pro rata share of  credit  within  the  calendar  year  that  the
    28  offense  is committed.  If such time allowance is withheld, forfeited or
    29  canceled in whole or in part, further  allowances,  not  to  exceed  the
    30  allowances  set forth in paragraphs (b) and (c) of this subdivision, may
    31  be reinstated for good behavior and efficient and willing performance of
    32  duties assigned or progress and achievement  in  an  assigned  treatment
    33  program.   Following any final determination withholding, forfeiting, or
    34  canceling a time allowance, the incarcerated person shall have the right
    35  to take an administrative appeal to the central office of the department
    36  and shall be advised of the right to seek legal assistance in the taking
    37  of such appeal.  The department shall adopt  regulations  in  accordance
    38  with this provision.
    39    (b)  A  person serving an indeterminate sentence of imprisonment [may]
    40  shall receive a time allowance against the maximum term of [his or  her]
    41  their sentence [not to exceed one-third] of one-half of the maximum term
    42  imposed by the court.
    43    (c)  A  person  serving  a  determinate sentence of imprisonment [may]
    44  shall receive a time allowance against the term of [his  or  her]  their
    45  sentence  [not to exceed one-seventh] of one-half of the term imposed by
    46  the court.
    47    (d) (i) [Except as provided in subparagraph (ii)  of  this  paragraph,
    48  every] Every person under the custody of the department or confined in a
    49  facility  in  the  department of mental hygiene serving an indeterminate
    50  sentence of imprisonment with a minimum period of one year or more or  a
    51  determinate sentence of imprisonment of one year or more [imposed pursu-
    52  ant  to  section 70.70 or 70.71 of the penal law,] may earn a merit time
    53  allowance.
    54    (ii) [Such merit time allowance shall not be available to  any  person
    55  serving  an indeterminate sentence authorized for an A-I felony offense,
    56  other than an A-I felony offense defined in article two  hundred  twenty
        S. 7873--A                          3

     1  of  the  penal law, or any sentence imposed for a violent felony offense
     2  as defined in section 70.02 of the penal law, manslaughter in the second
     3  degree,  vehicular  manslaughter  in  the   second   degree,   vehicular
     4  manslaughter  in  the  first  degree,  criminally negligent homicide, an
     5  offense defined in article one hundred thirty of the penal law,  incest,
     6  or  an  offense  defined in article two hundred sixty-three of the penal
     7  law, or aggravated harassment of an employee by an incarcerated individ-
     8  ual.
     9    (iii)] The merit time allowance credit against the minimum  period  of
    10  the  indeterminate sentence shall be [one-sixth] one-half of the minimum
    11  period imposed by the court [except that such credit shall be  one-third
    12  of  the  minimum  period  imposed by the court for an A-I felony offense
    13  defined in article two hundred twenty of the penal law]. In the case  of
    14  such  a  determinate  sentence, in addition to the time allowance credit
    15  authorized by paragraph (c) of this subdivision, the merit  time  allow-
    16  ance  credited  against the term of the determinate sentence pursuant to
    17  this paragraph shall be [one-seventh] one-quarter of the term imposed by
    18  the court.
    19    [(iv)] (iii) Such merit time allowance [may] shall be granted when  an
    20  incarcerated individual successfully participates in the work and treat-
    21  ment  program  assigned  pursuant  to section eight hundred five of this
    22  article [and], including but not limited to when such incarcerated indi-
    23  vidual obtains a general equivalency diploma, an alcohol  and  substance
    24  abuse  treatment  certificate, a vocational trade certificate [following
    25  at least six months of vocational programming], at least eighteen  cred-
    26  its  in  a  program  registered by the state education department from a
    27  degree-granting higher education institution or performs at  least  four
    28  hundred  hours  of service as part of a community work crew, or success-
    29  fully completes one or more "significant  programmatic  accomplishments"
    30  as  defined in paragraph (c) of subdivision one of section eight hundred
    31  three-b of this  article.  The  commissioner  may  designate  additional
    32  programs  and  achievements  for which merit time shall be granted. Once
    33  granted, such allowances shall not be withheld, forfeited, or cancelled.
    34  Where the institution in which the incarcerated individual  is  confined
    35  does not provide opportunities for every incarcerated individual to earn
    36  merit  time allowances, such merit time allowance shall be automatically
    37  credited against the incarcerated  individual's  sentence  according  to
    38  subparagraph (ii) of this paragraph.
    39    [Such allowance shall be withheld for any serious disciplinary infrac-
    40  tion  or  upon a judicial determination that the person, while an incar-
    41  cerated individual, commenced or continued a civil action, proceeding or
    42  claim that was found to be frivolous as defined in  subdivision  (c)  of
    43  section  eight  thousand three hundred three-a of the civil practice law
    44  and rules, or an order of a federal court pursuant to  rule  11  of  the
    45  federal  rules  of  civil  procedure  imposing  sanctions  in  an action
    46  commenced by a person, while an incarcerated individual, against a state
    47  agency, officer or employee.
    48    (v)] (iv) The provisions of this paragraph shall apply to  persons  in
    49  custody  serving  [an]  a  determinate  or indeterminate sentence on the
    50  effective date of this paragraph as well as to persons sentenced to [an]
    51  a determinate or indeterminate sentence on and after the effective  date
    52  of  this  paragraph [and prior to September first, two thousand five and
    53  to persons sentenced to a determinate sentence prior to September first,
    54  two thousand eleven for a felony as defined in article two hundred twen-
    55  ty or two hundred twenty-one of the penal law]. The time allowances  set
    56  forth  in this paragraph shall apply retroactively and shall be credited
        S. 7873--A                          4

     1  toward every incarcerated individual's sentence within  ninety  days  of
     2  the  chapter  of  the  laws of two thousand twenty-two that amended this
     3  paragraph.
     4    2.  If  a  person  is  serving  more than one sentence, the authorized
     5  allowances may be granted separately against the term or maximum term of
     6  each sentence or, where consecutive sentences are involved, against  the
     7  aggregate maximum term. Such allowances shall be calculated as follows:
     8    (a)  A  person  serving  two or more indeterminate sentences which run
     9  concurrently [may] shall receive a time allowance [not  to  exceed  one-
    10  third]  of  one-half of the indeterminate sentence which has the longest
    11  unexpired time to run.
    12    (b) A person serving two or more  indeterminate  sentences  which  run
    13  consecutively  [may]  shall receive a time allowance [not to exceed one-
    14  third] of one-half of the aggregate maximum term.
    15    (c) A person serving two  or  more  determinate  sentences  which  run
    16  concurrently  [may]  shall  receive a time allowance [not to exceed one-
    17  seventh] of one-half of the determinate sentence which has  the  longest
    18  unexpired time to run.
    19    (d)  A  person  serving  two  or  more determinate sentences which run
    20  consecutively [may] shall receive a time allowance [not to  exceed  one-
    21  seventh] of one-half of the aggregate maximum term.
    22    (e)  A  person  serving  one or more indeterminate sentence and one or
    23  more determinate sentence which run concurrently [may] shall  receive  a
    24  time  allowance  [not to exceed one-third] of one-half of the indetermi-
    25  nate sentence which has the longest unexpired term to run  or  [one-sev-
    26  enth]  one-half  of the determinate sentence which has the longest unex-
    27  pired time to run, whichever allowance is greater.
    28    (f) A person serving one or more indeterminate  sentence  and  one  or
    29  more  determinate sentence which run consecutively [may] shall receive a
    30  time allowance [not to exceed] of the sum of [one-third] one-half of the
    31  maximum or aggregate maximum of the indeterminate sentence or  sentences
    32  and  [one-seventh]  one-half  of  the  term  or aggregate maximum of the
    33  determinate sentence or sentences.
    34    2-a. If a person is serving more than  one  sentence,  the  authorized
    35  merit  time  allowances  may  be granted against the period or aggregate
    36  minimum period of the indeterminate sentence or  sentences,  or  against
    37  the  term or aggregate term of the determinate sentence or sentences, or
    38  where consecutive determinate and indeterminate sentences are  involved,
    39  against  the aggregate minimum period as calculated pursuant to subpara-
    40  graph (iv) of paragraph (a) of subdivision one of section 70.40  of  the
    41  penal law. Such allowances shall be calculated as follows:
    42    (a)  A  person  serving  two or more indeterminate sentences which run
    43  concurrently may receive a merit time  allowance  not  to  exceed  [one-
    44  sixth]  one-half  of  the  minimum  period of the indeterminate sentence
    45  imposed [for an offense other than an  A-I  felony  offense  defined  in
    46  article two hundred twenty of the penal law, or one-third of the minimum
    47  period  of  the indeterminate sentence imposed for an A-I felony offense
    48  defined in article two hundred twenty of the penal law, whichever allow-
    49  ance results in the longest unexpired time to run] by the court.
    50    (b) A person serving two or more  indeterminate  sentences  which  run
    51  consecutively  may  receive  a  merit  time  allowance not to exceed the
    52  amount of [one-third] one-half of the minimum or aggregate minimum peri-
    53  od of the sentences imposed [for an A-I felony offense defined in  arti-
    54  cle  two  hundred twenty of the penal law, plus one-sixth of the minimum
    55  or aggregate minimum period of the  sentences  imposed  for  an  offense
    56  other than such A-I felony offense] by the court.
        S. 7873--A                          5

     1    (c) A person serving two or more determinate sentences [for an offense
     2  defined  in  article two hundred twenty or two hundred twenty-one of the
     3  penal law] which run concurrently may receive a merit time allowance not
     4  to exceed [one-seventh] one-quarter  of  the  term  of  the  determinate
     5  sentence which has the longest unexpired time to run.
     6    (d) A person serving two or more determinate sentences [for an offense
     7  defined  in  article two hundred twenty or two hundred twenty-one of the
     8  penal law] which run consecutively may receive a  merit  time  allowance
     9  not  to  exceed  [one-seventh] one-quarter of the aggregate term of such
    10  determinate sentences.
    11    (e) A person serving one or more indeterminate sentences  and  one  or
    12  more  determinate  sentences  [for  an  offense  defined  in article two
    13  hundred twenty or two hundred twenty-one of the  penal  law]  which  run
    14  concurrently  may  receive  a  merit  time allowance not to exceed [one-
    15  sixth] one-half of the minimum  period  of  the  indeterminate  sentence
    16  imposed  [for  an  offense  other  than an A-I felony offense defined in
    17  article two hundred twenty of the penal law, one-third  of  the  minimum
    18  period  of  the indeterminate sentence imposed for an A-I felony offense
    19  defined in article two hundred twenty of the penal  law,]  or  [one-sev-
    20  enth]  one-quarter  of  the  term of the determinate sentence, whichever
    21  allowance results in the largest unexpired time to run.
    22    (f) A person serving one or more indeterminate sentences  and  one  or
    23  more  determinate  sentences which run consecutively may receive a merit
    24  time allowance not to exceed the sum  of  [one-sixth]  one-half  of  the
    25  minimum  or  aggregate  minimum  period of the indeterminate sentence or
    26  sentences imposed [for an offense  other  than  an  A-I  felony  offense
    27  defined in article two hundred twenty of the penal law, one-third of the
    28  minimum  or  aggregate  minimum  period of the indeterminate sentence or
    29  sentences imposed for an A-I  felony  offense  defined  in  article  two
    30  hundred  twenty  of  the penal law] and [one-seventh] one-quarter of the
    31  term or aggregate term of the determinate sentence or sentences.
    32    (g) The provisions of this  subdivision  shall  apply  to  persons  in
    33  custody  serving  [an]  a  determinate  or indeterminate sentence on the
    34  effective date of this subdivision as well as to  persons  sentenced  to
    35  [an]  a determinate or indeterminate sentence on and after the effective
    36  date of this subdivision [and prior to  September  first,  two  thousand
    37  five and to persons sentenced to a determinate sentence prior to Septem-
    38  ber  first,  two  thousand eleven for a felony as defined in article two
    39  hundred twenty or two hundred twenty-one of the penal  law].  The  merit
    40  time allowances set forth in this subdivision shall apply retroactively,
    41  and  shall  be  credited toward every incarcerated individual's sentence
    42  within ninety days of the effective date of the chapter of the  laws  of
    43  two thousand twenty-two that amended this subdivision.
    44    [2-b.  Notwithstanding the foregoing, if a person is serving more than
    45  one indeterminate sentence, at least one of which is imposed for a class
    46  A-I felony offense defined in article two hundred twenty  of  the  penal
    47  law,  the  authorized merit time allowance granted pursuant to paragraph
    48  (d) of subdivision one of this section shall be calculated as follows:
    49    (a) In the event  a  person  is  serving  two  or  more  indeterminate
    50  sentences  with  different  minimum  periods which run concurrently, the
    51  merit time allowance shall be based upon the sentence with  the  longest
    52  unexpired  minimum  period.  If  the sentence with the longest unexpired
    53  minimum period was imposed for a class A-I felony, the merit time credit
    54  shall be one-third of such sentence's minimum period; if  such  sentence
    55  was  imposed  for  an  offense other than a class A-I felony, such merit
    56  time credit shall  be  one-sixth  of  such  sentence's  minimum  period.
        S. 7873--A                          6

     1  Provided, however, that where the minimum period of any other concurrent
     2  indeterminate  sentence is greater than such reduced minimum period, the
     3  minimum period of such other  concurrent  indeterminate  sentence  shall
     4  also  be  reduced but only to the extent that the minimum period of such
     5  other concurrent sentence, as so reduced, is equal to the reduced  mini-
     6  mum period of such sentence with the longest unexpired minimum period to
     7  run.
     8    (b) A person serving two or more indeterminate sentences with the same
     9  minimum  periods which run concurrently, and no concurrent indeterminate
    10  sentence with any greater minimum period, shall have the minimum  period
    11  of each such sentence reduced in the amount of one-third of such minimum
    12  period if all such sentences were imposed for a class A-I felony.
    13    (c)  A  person  serving  two  or more indeterminate sentences that run
    14  consecutively shall have the aggregate minimum period of such  sentences
    15  reduced  in  the amount of one-third of such aggregate minimum period of
    16  the sentences imposed for a class A-I felony,  plus  one-sixth  of  such
    17  aggregate  minimum  period of the sentences imposed for an offense other
    18  than a class A-I felony.]
    19    3. The commissioner of corrections  and  community  supervision  shall
    20  promulgate  rules  and  regulations for the fair and equitable granting,
    21  withholding, forfeiture,  cancellation  and  restoration  of  allowances
    22  authorized by this section in accordance with the criteria herein speci-
    23  fied. Such rules and regulations shall specify procedures to ensure that
    24  similarly  situated  incarcerated  persons  are  treated  similarly with
    25  respect to the granting,  withholding,  forfeiture  or  cancellation  of
    26  allowances,  and  include provisions designating the person or committee
    27  in each correctional institution delegated to make discretionary  deter-
    28  minations  with  respect  to the allowances, the books and records to be
    29  kept, and a procedure for review of the institutional determinations  by
    30  the commissioner.
    31    4. [No person shall have the right to demand or require the allowances
    32  authorized  by  this  section.  The  decision  of  the  commissioner  of
    33  corrections and community supervision as to the  granting,  withholding,
    34  forfeiture,  cancellation  or  restoration  of  such allowances shall be
    35  final and shall not be reviewable if made in accordance with law.
    36    5.] Time allowances granted prior to any release to  community  super-
    37  vision  shall  be  forfeited  and  shall not be restored if the released
    38  person is returned to an institution under the jurisdiction of the state
    39  department of corrections and community  supervision  for  violation  of
    40  community supervision or by reason of a conviction for a crime committed
    41  while  on community supervision. A person who is so returned may, howev-
    42  er, subsequently receive time allowances against the  remaining  portion
    43  of  [his  or  her]  their  term,  maximum term or aggregate maximum term
    44  pursuant to this section [and provided such remaining portion of his  or
    45  her  term,  maximum  term,  or  aggregate  maximum term is more than one
    46  year].
    47    [6.] 5.  Upon  commencement  of  an  indeterminate  or  a  determinate
    48  sentence the provisions of this section shall be furnished to the person
    49  serving the sentence and the meaning of same shall be fully explained to
    50  [him]  them  by  a person designated by the commissioner to perform such
    51  duty.
    52    § 4. Section 804 of the correction law, as added by chapter 680 of the
    53  laws of 1967, subdivisions 1 and 2 as amended by chapter 145 of the laws
    54  of 1976, and subdivision 6 as amended by section 39 of subpart B of part
    55  C of chapter 62 of the laws of 2011, is amended to read as follows:
        S. 7873--A                          7

     1    § 804. Good behavior allowances against definite sentences.  1.  Every
     2  person  confined in an institution serving a definite sentence of impri-
     3  sonment  [may]  shall  receive  a  time  [allowances  as   discretionary
     4  reductions  of  the  term of his sentence not to exceed in the aggregate
     5  one-third]  allowance of one-half of the term imposed by the court. Such
     6  allowances [may be granted for good behavior and efficient  and  willing
     7  performance  of  duties  assigned  or  progress  and  achievement  in an
     8  assigned treatment program, and may be withheld, forfeited or  cancelled
     9  in  whole  or in part for bad behavior, violation of institutional rules
    10  or failure to perform properly in the duties or program assigned]  shall
    11  be  credited toward a person's sentence on an annual pro rata basis, and
    12  any credit awarded over the course of the calendar year  shall  vest  on
    13  the  final day of the calendar year.  Once vested, such credit shall not
    14  be withheld, forfeited, or canceled.
    15    1-a. Time allowances that have not yet been granted toward a  person's
    16  sentence  may be withheld, forfeited or canceled in whole or in part for
    17  violation of institutional rules, as demonstrated  at  a  hearing  by  a
    18  preponderance of the evidence. Such restrictions shall be limited to the
    19  pro  rata  share  of credit within the calendar year that the offense is
    20  committed. If such time allowance is withheld, forfeited or canceled  in
    21  whole or in part, further allowances, not to exceed one-half of the term
    22  imposed  by the court, may be reinstated for good behavior and efficient
    23  and willing performance of duties assigned or progress  and  achievement
    24  in  an  assigned  treatment  program.  Following any final determination
    25  withholding, forfeiting, or canceling a time allowance, the incarcerated
    26  person shall have the right to take  an  administrative  appeal  to  the
    27  sheriff  and  shall  be advised of the right to seek legal assistance in
    28  the taking of such  appeal.  The  sheriff  shall  adopt  regulations  in
    29  accordance with this provision.
    30    2.  If  a  person  is  serving  more than one sentence, the authorized
    31  allowances may be granted separately against the term of  each  sentence
    32  or,  where  consecutive  sentences  are  involved, against the aggregate
    33  term. Allowances based upon sentences of less  than  one  month  may  be
    34  granted,  and  in  such  case the maximum allowance shall be one day for
    35  every [three] two days of the sentence. In no case, however,  shall  the
    36  total  of  all  allowances granted to any such person exceed [one-third]
    37  one-half of the time [he] they would  be  required  to  serve,  computed
    38  without regard to this section.
    39    3. [No person shall have the right to demand or require the allowances
    40  authorized by this section. The decision of the sheriff, superintendent,
    41  warden  or  other  person  in  charge  of the institution, or where such
    42  institution is under the jurisdiction of a county or city department the
    43  decision of the head of such department, as to the  granting,  withhold-
    44  ing, forfeiture, cancellation or restoration of such allowances shall be
    45  final and shall not be reviewable if made in accordance with law.
    46    4.]  A  person who has earned a reduction of sentence pursuant to this
    47  section and who has been conditionally released under subdivision two of
    48  section 70.40 of the penal law  shall  not  forfeit  such  reduction  by
    49  reason  of  conduct  causing  [his]  their  return  to  the institution.
    50  Provided, nevertheless, that such reduction may be forfeited  by  reason
    51  of subsequent conduct while serving the remainder of [his] their term.
    52    [5.]  4.  The  state  commission of correction shall promulgate record
    53  keeping rules and regulations for the fair and equitable granting, with-
    54  holding, forfeiture, cancellation and restoration of allowances  author-
    55  ized  by  this section.  Such rules and regulations shall specify proce-
    56  dures to ensure that similarly situated incarcerated persons are treated
        S. 7873--A                          8

     1  similarly with respect  to  the  granting,  withholding,  forfeiture  or
     2  cancellation of allowances.
     3    [6.]  5.  Notwithstanding anything to the contrary in this section, in
     4  any case where a person is serving a definite sentence in an institution
     5  under the jurisdiction of the state department of corrections and commu-
     6  nity supervision, [subdivisions] subdivision three [and four] of section
     7  eight hundred three of this [chapter] article shall apply.
     8    [7.] 6. Upon commencement of any definite sentence the  provisions  of
     9  this  section  shall be furnished to the person serving the sentence and
    10  the meaning of same shall be fully explained to [him] them by an officer
    11  designated in the regulation to perform such duty.
    12    § 5. Section 804-a of the correction law, as added by chapter  220  of
    13  the laws of 1987, is amended to read as follows:
    14    §  804-a.  Good  behavior allowances for certain civil commitments. 1.
    15  Every person confined in an institution serving a civil commitment for a
    16  fixed period of time, whose release is  not  conditional  upon  any  act
    17  within [his] their power to perform, [may] shall receive time allowances
    18  as discretionary reductions of the term of [his] their commitment not to
    19  exceed,  in  the  aggregate, [one-third] one-half of the term imposed by
    20  the court.  Such allowances [may be granted for good behavior and  effi-
    21  cient  and  willing  performance  of  duties  assigned  or  progress and
    22  achievement in an assigned  treatment  program,  and  may  be  withheld,
    23  forfeited  or  cancelled in whole or in part for bad behavior, violation
    24  of institutional rules or failure to perform properly in the  duties  or
    25  program  assigned]  shall  be  credited toward a person's sentence on an
    26  annual pro rata basis, and any credit awarded over  the  course  of  the
    27  calendar  year  shall  vest on the final day of the calendar year.  Once
    28  vested, such credit shall not be withheld, forfeited, or canceled.
    29    1-a. Time allowances that have not yet been granted toward a  person's
    30  sentence  may be withheld, forfeited or canceled in whole or in part for
    31  violation of institutional rules, as demonstrated  at  a  hearing  by  a
    32  preponderance of the evidence. Such restrictions shall be limited to the
    33  pro  rata  share  of credit within the calendar year that the offense is
    34  committed. If such time allowance is withheld, forfeited or canceled  in
    35  whole or in part, further allowances, not to exceed one-half of the term
    36  imposed  by the court, may be reinstated for good behavior and efficient
    37  and willing performance of duties assigned or progress  and  achievement
    38  in  an  assigned  treatment  program.  Following any final determination
    39  withholding, forfeiting, or canceling a time allowance, the incarcerated
    40  person shall have the right to take  an  administrative  appeal  to  the
    41  central  office  of  the department and shall be advised of the right to
    42  seek legal assistance in the taking of such appeal. The department shall
    43  adopt regulations in accordance with this provision.
    44    2. Allowances based upon commitments of less than  one  month  may  be
    45  granted,  and  in  such case the maximum allowances shall be one day for
    46  every [three] two days of the commitment. In no case, however, shall the
    47  total of all allowances granted to any such  person  exceed  [one-third]
    48  one-half  of  the  time  [he]  they would be required to serve, computed
    49  without regard to this section.
    50    3. [No person shall have the right to demand or require the allowances
    51  authorized by this section. The decision of the sheriff, superintendent,
    52  warden or other person in charge  of  the  institution,  or  where  such
    53  institution is under the jurisdiction of a county or city department the
    54  decision  of  the head of such department, as to the granting, withhold-
    55  ing, forfeiture, cancellation, or restoration of such  allowances  shall
    56  be final and shall not be reviewable if made in accordance with law.
        S. 7873--A                          9

     1    4.] The state commission of correction shall promulgate record keeping
     2  rules and regulations for the granting, withholding, forfeiture, cancel-
     3  lation and restoration of allowances authorized by this section.
     4    [5.]  4.  Upon  commencement  of  any civil commitment as described in
     5  subdivision one of this section, the provisions of this section shall be
     6  furnished to the person serving the commitment and the meaning  of  same
     7  shall  be  fully explained to [him] them by an officer designated in the
     8  regulation to perform such duty.
     9    § 6. Section 865 of the correction law, as added by chapter 261 of the
    10  laws of 1987, subdivisions 1 and 2 as amended by chapter 322 of the laws
    11  of 2021, is amended to read as follows:
    12    § 865. Definitions. As used in  this  article,  [the  following  terms
    13  mean:
    14    1.  "Eligible  incarcerated individual" means a person sentenced to an
    15  indeterminate term of imprisonment who will become eligible for  release
    16  on  parole  within  three  years  or  sentenced to a determinate term of
    17  imprisonment who will become eligible  for  conditional  release  within
    18  three  years,  who  has  not reached the age of fifty years, who has not
    19  previously been convicted of a violent  felony  as  defined  in  article
    20  seventy  of  the  penal law, or a felony in any other jurisdiction which
    21  includes all of the essential elements of any such violent felony,  upon
    22  which  an  indeterminate or determinate term of imprisonment was imposed
    23  and who was between the ages of sixteen and fifty years at the  time  of
    24  commission  of  the  crime  upon  which  his or her present sentence was
    25  based. Notwithstanding the foregoing, no person who is convicted of  any
    26  of  the following crimes shall be deemed eligible to participate in this
    27  program: (a) a violent felony offense as defined in article  seventy  of
    28  the  penal  law;  provided,  however,  that a person who is convicted of
    29  burglary in the second degree as defined in subdivision two  of  section
    30  140.25  of  the penal law, or robbery in the second degree as defined in
    31  subdivision one of section 160.10 of the penal law, or an attempt there-
    32  of, is eligible to participate, (b) an A-I felony offense, (c) any homi-
    33  cide offense as defined in article one hundred twenty-five of the  penal
    34  law, (d) any felony sex offense as defined in article one hundred thirty
    35  of  the penal law and (e) any escape or absconding offense as defined in
    36  article two hundred five of the penal law.
    37    2. "Shock] "shock incarceration program" means a program  pursuant  to
    38  which  eligible  incarcerated individuals are selected to participate in
    39  the program and serve a period of six months in  a  shock  incarceration
    40  facility,  which  shall  provide  rigorous  physical activity, intensive
    41  regimentation and discipline and rehabilitation therapy and programming.
    42  Such incarcerated individuals may be selected either: (i) at a reception
    43  center; or (ii) at a general confinement facility  [when  the  otherwise
    44  eligible  incarcerated  individual  then becomes eligible for release on
    45  parole within three years in the case of an indeterminate term of impri-
    46  sonment, or then becomes eligible for conditional release  within  three
    47  years in the case of a determinate term of imprisonment].
    48    §  7.  Section 867 of the correction law, as amended by chapter 322 of
    49  the laws of 2021, is amended to read as follows:
    50    § 867. Procedure for selection of participants in shock  incarceration
    51  program.  1.  An [eligible] incarcerated individual may make an applica-
    52  tion to the shock incarceration screening committee  for  permission  to
    53  participate in the shock incarceration program.
    54    2.  If  the shock incarceration screening committee determines that an
    55  incarcerated  individual's  participation  in  the  shock  incarceration
    56  program  is  consistent with the safety of the community, the welfare of
        S. 7873--A                         10

     1  the applicant and the rules  and  regulations  of  the  department,  the
     2  committee  shall  forward the application to the commissioner or [his] a
     3  designee for approval or disapproval.
     4    2-a.  Subdivisions  one and two of this section shall apply to a judi-
     5  cially sentenced shock incarceration incarcerated individual only to the
     6  extent that the screening committee may determine whether the  incarcer-
     7  ated  individual  has  a  medical  or  mental health condition that will
     8  render the incarcerated individual unable to successfully  complete  the
     9  shock  incarceration program, and the facility in which the incarcerated
    10  individual will participate in such program.   Notwithstanding  subdivi-
    11  sion five of this section, an incarcerated individual sentenced to shock
    12  incarceration shall promptly commence participation in the program [when
    13  such  incarcerated  individual  is  an  eligible incarcerated individual
    14  pursuant to subdivision one of section eight hundred sixty-five of  this
    15  article].
    16    3.  Applicants  cannot  participate in the shock incarceration program
    17  unless they agree to be bound by all the terms  and  conditions  thereof
    18  and  indicate  such  agreement  by signing the memorandum of the program
    19  immediately below a statement reading as follows:
    20    "I accept the foregoing program and agree to be bound by the terms and
    21  conditions thereof. I understand that my participation in the program is
    22  a privilege that may be revoked at any time at the  sole  discretion  of
    23  the  commissioner.  I  understand  that I must successfully complete the
    24  entire program to obtain a certificate of earned  eligibility  upon  the
    25  completion  of said program, and in the event that I do not successfully
    26  complete said program, for any  reason,  I  will  be  transferred  to  a
    27  nonshock  incarceration  correctional facility to continue service of my
    28  sentence."
    29    4. An incarcerated individual who has successfully completed  a  shock
    30  incarceration program shall be eligible to receive such a certificate of
    31  earned  eligibility pursuant to section eight hundred five of this chap-
    32  ter. Notwithstanding any other provision of law, an  incarcerated  indi-
    33  vidual  sentenced  to  a  determinate  sentence  of imprisonment who has
    34  successfully completed a shock incarceration program shall  be  eligible
    35  to  receive  such a certificate of earned eligibility and shall be imme-
    36  diately eligible to be conditionally released.
    37    5. Participation in the shock incarceration program shall be a  privi-
    38  lege.  Nothing contained in this article may be construed to confer upon
    39  any incarcerated individual the right  to  participate  or  continue  to
    40  participate therein.
    41    § 8. Clause (B) of subparagraph (ii) of paragraph (e) of subdivision 1
    42  of  section  70.30 of the penal law, as amended by chapter 3 of the laws
    43  of 1995, is amended to read as follows:
    44    (B) if the aggregate maximum  term  of  the  determinate  sentence  or
    45  sentences is less than twenty years, the defendant shall be deemed to be
    46  serving  an  indeterminate  sentence  the maximum term of which shall be
    47  deemed to be twenty years. In such instances, the minimum sentence shall
    48  be deemed to be ten years or [six-sevenths]  one-half  of  the  term  or
    49  aggregate  maximum term of the determinate sentence or sentences, which-
    50  ever is greater.
    51    § 9. Clause (B) of subparagraph (iii) of paragraph (e) of  subdivision
    52  1 of section 70.30 of the penal law, as amended by chapter 3 of the laws
    53  of 1995, is amended to read as follows:
    54    (B)  if  the  aggregate  maximum  term  of the determinate sentence or
    55  sentences is less than thirty years, the defendant shall be deemed to be
    56  serving an indeterminate sentence the maximum term  of  which  shall  be
        S. 7873--A                         11

     1  deemed to be thirty years. In such instances, the minimum sentence shall
     2  be  deemed to be fifteen years or [six-sevenths] one-half of the term or
     3  aggregate maximum term of the determinate sentence or sentences,  which-
     4  ever is greater.
     5    § 10. Clause (B) of subparagraph (v) of paragraph (e) of subdivision 1
     6  of  section  70.30 of the penal law, as amended by chapter 3 of the laws
     7  of 1995, is amended to read as follows:
     8    (B) if the aggregate maximum  term  of  the  determinate  sentence  or
     9  sentences  is less than forty years, the defendant shall be deemed to be
    10  serving an indeterminate sentence the maximum term  of  which  shall  be
    11  deemed  to be forty years. In such instances, the minimum sentence shall
    12  be deemed to be twenty years or [six-sevenths] one-half of the  term  or
    13  aggregate  maximum term of the determinate sentence or sentences, which-
    14  ever is greater.
    15    § 11. Clause (B) of subparagraph (vii) of paragraph (e) of subdivision
    16  1 of section 70.30 of the penal law, as amended by chapter 3 of the laws
    17  of 1995, is amended to read as follows:
    18    (B) if the aggregate maximum  term  of  the  determinate  sentence  or
    19  sentences  is less than fifty years, the defendant shall be deemed to be
    20  serving an indeterminate sentence the maximum term  of  which  shall  be
    21  deemed  to be fifty years. In such instances, the minimum sentence shall
    22  be deemed to be twenty-five years or [six-sevenths] one-half of the term
    23  or aggregate maximum term of  the  determinate  sentence  or  sentences,
    24  whichever is greater.
    25    §  12.  Paragraph  (b)  of subdivision 4 of section 70.30 of the penal
    26  law, as amended by chapter 3 of the laws of 1995, is amended to read  as
    27  follows:
    28    (b)  In the case of a person serving a definite sentence, the total of
    29  such allowances shall not exceed [one-third]  one-half  of  [his]  their
    30  term  or  aggregate term and the allowances shall be applied as a credit
    31  against such term.
    32    § 13. Subparagraphs (iii) and (iv) of paragraph (a) of  subdivision  1
    33  of  section  70.40  of  the  penal  law,  as amended by section 127-c of
    34  subpart B of part C of chapter 62 of the laws of 2011,  are  amended  to
    35  read as follows:
    36    (iii)  A  person  who  is  serving  one or more than one indeterminate
    37  sentence of imprisonment and one or more than one  determinate  sentence
    38  of imprisonment, which run concurrently may be paroled at any time after
    39  the  expiration  of the minimum period of imprisonment of the indetermi-
    40  nate sentence or sentences, or upon  the  expiration  of  [six-sevenths]
    41  one-half  of  the  term  of  imprisonment of the determinate sentence or
    42  sentences, whichever is later.
    43    (iv) A person who is  serving  one  or  more  than  one  indeterminate
    44  sentence  of  imprisonment and one or more than one determinate sentence
    45  of imprisonment which run consecutively may be paroled at any time after
    46  the expiration of the sum of the minimum or aggregate minimum period  of
    47  the  indeterminate  sentence or sentences and [six-sevenths] one-half of
    48  the term or aggregate term of imprisonment of the  determinate  sentence
    49  or sentences.
    50    §  14.  Paragraph  (b)  of subdivision 1 of section 70.40 of the penal
    51  law, as amended by section 127-d-1 of subpart B of part C of chapter  62
    52  of the laws of 2011, is amended to read as follows:
    53    (b)  A  person  who  is  serving one or more than one indeterminate or
    54  determinate sentence of imprisonment shall, if [he or she  so  requests]
    55  they  request,  be  conditionally released from the institution in which
    56  [he or she is] they are confined  when  the  total  good  behavior  time
        S. 7873--A                         12

     1  allowed  to  [him  or  her]  them,  pursuant  to  the  provisions of the
     2  correction law, is equal to the unserved portion of [his or  her]  their
     3  term,  maximum  term  or aggregate maximum term; provided, however, that
     4  (i)  in  no  event  shall  a  person  serving  one or more indeterminate
     5  sentence of imprisonment and one or more determinate sentence of  impri-
     6  sonment  which  run concurrently be conditionally released until serving
     7  at least [six-sevenths] one-half of the determinate term of imprisonment
     8  which has the longest unexpired time to run and (ii) in no event shall a
     9  person be conditionally released prior to the date on which such  person
    10  is  first  eligible  for discretionary parole release. The conditions of
    11  release, including those governing post-release  supervision,  shall  be
    12  such  as  may be imposed by the state board of parole in accordance with
    13  the provisions of the executive law.
    14    Every person so released shall be under the supervision of  the  state
    15  department  of  corrections and community supervision for a period equal
    16  to the unserved portion of the term,  maximum  term,  aggregate  maximum
    17  term, or period of post-release supervision.
    18    §  15. This act shall take effect immediately; provided, however, that
    19  the amendments to section 803 of the  correction  law  made  by  section
    20  three  of  this  act shall not affect the expiration of such section and
    21  shall be deemed to expire therewith; provided, further that  the  amend-
    22  ments  to  subdivision  2-b of section 803 of the correction law made by
    23  section three of this act shall not affect the repeal of  such  subdivi-
    24  sion  and shall be deemed repealed therewith; provided further, however,
    25  that the amendments to paragraph (e) of subdivision 1 and paragraph  (b)
    26  of  subdivision  four of section 70.30 of the penal law made by sections
    27  eight, nine, ten, eleven, and twelve of this act shall  not  affect  the
    28  expiration  of  such paragraphs and shall be deemed to expire therewith;
    29  and provided further, however, that the amendments to paragraphs (a) and
    30  (b) of subdivision 1 of section 70.40 of the penal law made by  sections
    31  thirteen  and  fourteen  of  this act shall not affect the expiration of
    32  such paragraphs and shall be deemed to expire therewith.