NY State Senate Bill 2009-S3438

Archive: Last Bill Status Via A4516 - On Floor Calendar

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 19, 2010	amended on third reading 4516d
Jan 06, 2010	ordered to third reading cal.335 returned to assembly died in senate
Jul 16, 2009	committed to rules
May 26, 2009	3rd reading cal.345 substituted for s3438a
Apr 19, 2010	advanced to third reading
Apr 14, 2010	2nd report cal.
Apr 13, 2010	1st report cal.374
Mar 22, 2010	reported and committed to codes
Jan 19, 2010	print number 3438b
Jan 19, 2010	amend and recommit to crime victims, crime and correction
Jan 06, 2010	referred to crime victims, crime and correction
May 26, 2009	substituted by a4516c
May 20, 2009	advanced to third reading
May 19, 2009	2nd report cal.
May 18, 2009	1st report cal.345
May 06, 2009	print number 3438a
May 06, 2009	amend and recommit to crime victims, crime and correction
Mar 19, 2009	referred to crime victims, crime and correction

Votes

- Mar 22, 2010 - Crime Victims, Crime And Correction Committee Vote
  S3438
  
  9
  
  Aye
  
  1
  
  Nay
  
  4
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Crime Victims, Crime And Correction Committee Vote: Mar 22, 2010
      
      aye (9)
      
      Duane
      
      Foley
      
      Hassell-Thompson
      
      Kruger
      
      Little
      
      Montgomery
      
      Sampson
      
      Serrano
      
      Volker
      
      nay (1)
      
      Aubertine
      
      aye wr (4)
      
      Golden
      
      Maziarz
      
      Nozzolio
      
      Winner
  Apr 13, 2010 - Codes Committee Vote
  S3438
  
  14
  
  Aye
  
  1
  
  Nay
  
  1
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Codes Committee Vote: Apr 13, 2010
      
      aye (14)
      
      Bonacic
      
      Breslin
      
      Duane
      
      Flanagan
      
      Huntley
      
      Klein
      
      Lanza
      
      Parker
      
      Perkins
      
      Saland
      
      Sampson
      
      Schneiderman
      
      Squadron
      
      Volker
      
      nay (1)
      
      Golden
      
      aye wr (1)
      
      DeFrancisco

Bill Amendments

Original

B (Active)

2009-S3438 - Details

Laws Affected:: Amd §§803, 805, 806 & 851, Cor L
Versions Introduced in 2011-2012 Legislative Session:: S329

2009-S3438 - Summary

Allows certain inmates to be granted a merit time allowance; allows inmates who are victims are able to prove that they were subjected to substantial physical, sexual or psychological abuse, that the abuse was inflicted by a member of their same family or household or a member of the person's immediate family, and that the abuse was a substantial factor in causing them to commit the crime to be eligible to earn merit time in the amount of one-third off either their minimum sentence (if inmate has an indeterminate sentence) or their flat sentence; allows such inmates to be eligible for presumptive release; expands the criteria that a person in custody of the department of correctional services may meet in order to earn merit time.

2009-S3438 - Sponsor Memo

                                 BILL NUMBER:  S3438

 TITLE OF BILL :
An act to amend the correction law, in relation to merit time
allowances


 PURPOSE OF BILL :
This bill would allow domestic violence survivors for committing
crimes as a result of the abuse they have earn merit time and
participate in temporary and early release programs.

 SUMMARY OF PROVISIONS OF BILL :
This bill allows inmates who are able to prove that they were
subjected to substantial physical, sexual or psychological abuse, that
the abuse was inflicted by a member of their same family or household
as that term is defined in section 530.11 of the criminal procedure
law or a member of the person's immediate family as that term is
defined in section 120.40 of the penal law, and that the abuse was a
substantial factor in causing them to commit the crime to be eligible
to earn merit time in the amount of one-third off either their minimum
sentence (if inmate has an indeterminate sentence) or their flat
sentence (if inmate has a determinate sentence). The bill further
allows these same inmates to be eligible for presumptive release.
Inmates serving a sentence for a sex offense or an act of terrorism
are not eligible for the merit time or presumptive release provided

for in the bill.

This bill expands the criteria that a person in the custody of the
Department of correctional services (DOCS) may meet in order to earn
merit time. This bill also amends the temporary release statute to be
consistent with the merit time and presumptive release provisions of
the bill.

Finally, the bill requires the Department of Correctional Services to
consult with the Office for the Prevention of Domestic Violence in
implementing the provisions of the bill.

 JUSTIFICATION :
Over the past 30 years, domestic violence has been increasingly
recognized as a serious national problem. Battering is the number one
cause of injury to women in the united States. Attacks by husbands on
wives result in more injuries requiring medical treatment than rapes,
muggings, and auto accidents combined. New York has made significant
advances in curbing domestic violence. This by allowing inmates
incarcerated batterers or for committing crimes to earn merit time
allowances.

Established in New York in 1997, merit time allows DOCS to grant early
release to inmates who meet certain criteria. People convicted of
violent offenses - including inmates convicted of defending themselves
against their abusers or of committing crimes because of abuse - are
not currently eligible for merit time.

The bill does not seek to diminish the seriousness of these crimes but
rather reflects a growing understanding of the prevalence of abuse
experienced by women prisoners, and the unique situation of
incarcerated women who have experienced battering. A 1999 study of
female inmates at New York's Bedford Hills correctional Facility found
that more than 8O% of the women inmates had a childhood history of
severe physical and/or sexual abuse and that more than 90% had endured
physical or sexual violence in their lifetimes. Many female inmates
with such histories pose virtually no threat to public safety: many
have extremely low rates of recidivism, no prior criminal records,
and, most often, no history of violence other than the offense for
which they are in prison. Not allowing inmates with such histories to
earn merit time and have the opportunity for DOCS to grant them an
earlier release also places added financial burden on the state.

Moreover, many inmates with histories of abuse are mothers whose
children have been traumatized both by the events leading up to their
mother's incarceration and by their separation from her during her
incarceration.  Reuniting a mother with her children more quickly will
help diminish the trauma of separation and the likelihood that the
children themselves will become involved in the criminal justice
system as adults.

This bill enables incarcerated survivors of abuse to benefit from
society's growing awareness of the pervasive and terrible nature of
domestic violence. It is a pragmatic and compassionate remedy that
allows incarcerated survivors the opportunity to more quickly begin
the important journey of returning to their communities and children,
rebuilding their lives, and recovering from abuse.

 LEGISLATIVE HISTORY :
2008: A.6150-A/S.3164; Passed Assembly/S.Rules 2007; A.6150/S.3164-A.
Correction Committee/S. Crime Victims, Crime and Correction 2005;
A.8024/S.5124-A. Correction Committee/S. Crime Victims, Crime and
Correction

 FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS :
Enactment of this bill will result in estimated cost savings for FY
2009-10 of $2.8 million and annualized cost savings of over $6 million
for the State.

 EFFECTIVE DATE :
180 day and shall apply to persons in custody on the effective date of
the act and to persons sentenced to an indeterminate or determinate
sentence on or after the effective date of this act.

2009-S3438 - Bill Text download pdf

co-Sponsors

2009-S3438A - Details

Laws Affected:: Amd §§803, 805, 806 & 851, Cor L
Versions Introduced in 2011-2012 Legislative Session:: S329

2009-S3438A - Summary

2009-S3438A - Sponsor Memo

                                 BILL NUMBER:  S3438A         REVISED 06/03/09

 TITLE OF BILL :
An act to amend the correction law, in relation to merit time
allowances


 GENERAL IDEA OF BILL :
This bill would allow domestic violence survivors for committing
crimes as a result of the abuse they have earn merit time and
participate in temporary and early release programs.

 SUMMARY OF SPECIFIC PROVISIONS :
This bill allows inmates who can demonstrate that they are victims of
domestic violence who were subjected to substantial physical, sexual
or psychological abuse inflicted by a member of their same family or
household as that term is defined in section 530.11 of the criminal
procedure law or a member of the person's immediate family as that
term is defined in section 120.40 of the penal law, and that the
commission of the offense was a direct result of such abuse, to be
eligible to earn a merit time allowance. The bill further allows such
inmates who are serving an indeterminate term to be eligible for
presumptive release. Inmates serving a sentence for a sex offense or
an act of terrorism are not eligible for the merit time or presumptive
release provided for in the bill.

This bill also makes a conforming change to the work release statute
to allow inmates who are victims of domestic violence who commit their
crime as a result of abuse to be eligible for work release.

The bill requires the Department of Correctional Services to consult
with the Office for the Prevention of Domestic Violence, in
implementing the provisions of the bill.

 JUSTIFICATION :
Over the past 30 years, domestic violence has been increasingly
recognized as a serious national problem. Battering is the number one'
cause of injury to women in the United States. Attacks by husbands
against their wives result in more injuries requiring medical
treatment than rapes, muggings and auto accidents combined.  New York
has made significant advances in curbing domestic violence.  This
legislation would build on these advances by allowing inmates
incarcerated for defending themselves against their batterers or for
committing crimes as a result of the abuse they have endured to earn
merit time allowances.

The merit time program was established by DOCS in 1997. The program
grants the opportunity for early release to inmates who meet certain
criteria. People convicted of violent offenses including inmates
convicted of defending themselves against their abusers or of
committing crimes because of abuse - are not currently eligible for
merit time.

The bill does not seek to diminish the seriousness of these crimes but
rather reflects a growing understanding of the prevalence of abuse
experienced by women prisoners, and the unique situation of
incarcerated women who have experienced battering. A 1999 study of
female inmates at New York's Bedford Hills correctional Facility found
that more than 80% of the women inmates had a childhood history of
severe physical and/or sexual abuse and that more than 90% had endured
physical or sexual violence in their lifetimes. Many female inmates
with such histories pose virtually no threat to public safety: many
have extremely low rates of recidivism, no prior criminal records,
and, most often, no history of violence other than the offense for
which they are in prison. Not allowing inmates with such histories to

earn merit time and have the opportunity for DOGS to grant them an
earlier release also places added financial burden on the state.

Moreover, many inmates with histories of abuse are mothers whose
children have been traumatized both by the events leading up to their
mother's incarceration and by their separation from her during her
incarceration. Reuniting a mother with her children more quickly will
help diminish the trauma of separation and the likelihood that the
children themselves will become involved in the criminal justice
system as adults.

This bill enables incarcerated survivors of abuse to benefit from
society's growing awareness of the pervasive and terrible nature of
domestic violence. It is a pragmatic and compassionate remedy that
allows incarcerated survivors the opportunity to more quickly begin
the important journey of returning to their communities and children,
rebuilding their lives, and recovering from abuse.

 PRIOR LEGISLATIVE HISTORY :
2008: A.6150-A/S.3164; Passed Assembly/S. Rules
2007: A.6150/S.3164-A.  Correction Committee/S. Crime Victims, Crime
and Correction
2005:  A.8024/S.5124-A. Correction Committee/S. Crime Victims, Crime
and Correction

 FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS :
Enactment of this bill will result in estimated cost savings for FY
2009-10 of $2.8 million and annualized cost savings of over $6 million
for the State.

 EFFECTIVE DATE :
180 day and shall apply to persons in custody on the effective date of
the act and to persons sentenced to an indeterminate or determinate
sentence on or after the effective date of this act.

2009-S3438A - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3438--A

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             March 19, 2009
                               ___________

Introduced  by  Sens. MONTGOMERY, HASSELL-THOMPSON, PARKER -- read twice
  and ordered printed, and when printed to be committed to the Committee
  on Crime Victims, Crime and Correction -- committee  discharged,  bill
  amended,  ordered reprinted as amended and recommitted to said commit-
  tee

AN ACT to amend the correction law, in relation to merit time allowances

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subparagraph  (ii)  of  paragraph (d) of subdivision 1 of
section 803 of the correction law, as added by section 7 of chapter  738
of  the laws of 2004, is amended and a new subparagraph (vi) is added to
read as follows:
  (ii) [Such] EXCEPT AS PROVIDED IN SUBPARAGRAPH (VI) OF THIS PARAGRAPH,
SUCH merit time allowance shall not be available to any  person  serving
an  indeterminate  sentence  authorized for an A-I felony offense, other
than an A-I felony offense defined in article two hundred twenty of  the
penal  law,  or  any  sentence  imposed  for a violent felony offense as
defined in section 70.02 of the penal law, manslaughter  in  the  second
degree,   vehicular   manslaughter   in  the  second  degree,  vehicular
manslaughter in the first  degree,  criminally  negligent  homicide,  an
offense  defined in article one hundred thirty of the penal law, incest,
or an offense defined in article two hundred sixty-three  of  the  penal
law, or aggravated harassment of an employee by an inmate.
  (VI)  A  PERSON  CONVICTED OF A HOMICIDE OFFENSE AS DEFINED IN ARTICLE
ONE HUNDRED TWENTY-FIVE OF THE PENAL LAW, AN ASSAULT OFFENSE DEFINED  IN
ARTICLE  ONE  HUNDRED  TWENTY  OF  THE  PENAL  LAW, A ROBBERY OFFENSE AS
DEFINED BY ARTICLE ONE HUNDRED SIXTY OF  THE  PENAL  LAW,  A  KIDNAPPING
OFFENSE  AS DEFINED BY ARTICLE ONE HUNDRED THIRTY-FIVE OF THE PENAL LAW,
AN ARSON OFFENSE AS DEFINED BY ARTICLE ONE HUNDRED FIFTY  OF  THE  PENAL
LAW,  A  CRIMINAL  MISCHIEF  OFFENSE  AS  DEFINED BY ARTICLE ONE HUNDRED
FORTY-FIVE OF THE PENAL LAW, A BURGLARY OFFENSE AS  DEFINED  BY  ARTICLE
ONE  HUNDRED  FORTY OF THE PENAL LAW, CRIMINAL POSSESSION OF A WEAPON IN
THE SECOND DEGREE AS DEFINED BY SUBDIVISIONS TWO AND  THREE  OF  SECTION
265.03  OF  THE PENAL LAW, CRIMINAL USE OF A FIREARM IN THE FIRST DEGREE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06407-12-9

S. 3438--A                          2

AS DEFINED BY SECTION 265.09 OF THE PENAL LAW, CRIMINAL USE OF A FIREARM
IN THE SECOND DEGREE AS DEFINED BY SECTION 265.08 OF THE  PENAL  LAW,  A
CONSPIRACY  TO COMMIT SUCH CRIMES AS DEFINED IN ARTICLE ONE HUNDRED FIVE
OF THE PENAL LAW, AN ATTEMPT TO COMMIT SUCH CRIMES AS DEFINED IN ARTICLE
ONE HUNDRED TEN OF THE PENAL LAW AND SERVING A DETERMINATE OR INDETERMI-
NATE  SENTENCE  OR SENTENCES AND WHO CAN DEMONSTRATE TO THE COMMISSIONER
THAT: (1) THE PERSON IS A VICTIM OF DOMESTIC VIOLENCE WHO WAS  SUBJECTED
TO  SUBSTANTIAL  PHYSICAL,  SEXUAL OR PSYCHOLOGICAL ABUSE INFLICTED BY A
MEMBER OF THE PERSON'S SAME FAMILY OR HOUSEHOLD AS THAT TERM IS  DEFINED
IN  SUBDIVISION ONE OF SECTION 530.11 OF THE CRIMINAL PROCEDURE LAW OR A
MEMBER OF THE PERSON'S IMMEDIATE FAMILY  AS  THAT  TERM  IS  DEFINED  IN
SUBDIVISION  FOUR  OF  SECTION  120.40  OF  THE  PENAL LAW; AND (2) SUCH
OFFENSE WAS COMMITTED AS A DIRECT RESULT  OF  SUCH  ABUSE,  MAY  RECEIVE
MERIT  TIME  ALLOWANCE CREDIT IN THE AMOUNT PROVIDED FOR IN SUBPARAGRAPH
(III) OF THIS PARAGRAPH.  THE MERIT TIME ALLOWANCE ESTABLISHED  PURSUANT
TO  THIS SUBPARAGRAPH SHALL BE GRANTED IN THE SAME MANNER AS REQUIRED BY
SUBPARAGRAPH (IV) OF THIS PARAGRAPH.
  TO APPLY FOR MERIT TIME ELIGIBILITY  UNDER  THIS  SUBDIVISION  AND  TO
DEMONSTRATE SUCH PERSON'S CLAIM THAT SHE OR HE WAS SUBJECTED TO SUBSTAN-
TIAL  PHYSICAL,  SEXUAL OR PSYCHOLOGICAL ABUSE AND THAT SUCH OFFENSE WAS
COMMITTED AS A DIRECT RESULT OF SUCH ABUSE, SUCH PERSON MUST  SUBMIT  AN
APPLICATION  TO  THE  COMMISSIONER OR COMMISSIONER'S DESIGNEE ALONG WITH
CORROBORATIVE MATERIAL THAT SHALL INCLUDE ONE OR MORE OF  THE  FOLLOWING
DOCUMENTS:    WITNESS  STATEMENTS,  COURT RECORDS, PRE-SENTENCE REPORTS,
SOCIAL SERVICES  RECORDS,  CITY  AND  STATE  DEPARTMENT  OF  CORRECTIONS
RECORDS,  HOSPITAL  RECORDS,  LAW ENFORCEMENT RECORDS, DOMESTIC INCIDENT
REPORTS, ORDERS OF PROTECTION, A SHOWING BASED IN PART ON  DOCUMENTATION
PREPARED  AT  OR  NEAR  THE TIME OF THE COMMISSION OF THE OFFENSE OR THE
PROSECUTION THEREOF TENDING TO SUPPORT THE PERSON'S CLAIM, OR WHEN THERE
IS VERIFICATION OF CONSULTATION WITH A LICENSED MEDICAL OR MENTAL HEALTH
CARE PROVIDER, EMPLOYEE OF A COURT ACTING WITHIN THE SCOPE OF HIS OR HER
EMPLOYMENT, MEMBER OF THE  CLERGY,  ATTORNEY,  SOCIAL  WORKER,  OR  RAPE
CRISIS  COUNSELOR  AS  DEFINED  IN SECTION FORTY-FIVE HUNDRED TEN OF THE
CIVIL PRACTICE LAW AND RULES, OR OTHER ADVOCATE ACTING ON BEHALF  OF  AN
AGENCY  THAT  ASSISTS  VICTIMS  OF  DOMESTIC  VIOLENCE, OR OTHER SIMILAR
DOCUMENTATION THAT CORROBORATES SUCH PERSON'S CLAIM.
  S 2. Subparagraph (ii) of paragraph (d) of subdivision  1  of  section
803  of  the  correction law, as added by section 10-a of chapter 738 of
the laws of 2004, is amended and a new subparagraph  (vi)  is  added  to
read as follows:
  (ii) [Such] EXCEPT AS PROVIDED IN SUBPARAGRAPH (VI) OF THIS PARAGRAPH,
SUCH  merit  time allowance shall not be available to any person serving
an indeterminate sentence authorized for an A-I  felony  offense,  other
than  an A-I felony offense defined in article two hundred twenty of the
penal law, or any sentence imposed  for  a  violent  felony  offense  as
defined  in  section  70.02 of the penal law, manslaughter in the second
degree,  vehicular  manslaughter  in  the   second   degree,   vehicular
manslaughter  in  the  first  degree,  criminally negligent homicide, an
offense defined in article one hundred thirty of the penal law,  incest,
or  an  offense  defined in article two hundred sixty-three of the penal
law, or aggravated harassment of an employee by an inmate.
  (VI) A PERSON CONVICTED OF A HOMICIDE OFFENSE AS  DEFINED  IN  ARTICLE
ONE  HUNDRED TWENTY-FIVE OF THE PENAL LAW, AN ASSAULT OFFENSE DEFINED IN
ARTICLE ONE HUNDRED TWENTY OF  THE  PENAL  LAW,  A  ROBBERY  OFFENSE  AS
DEFINED  BY  ARTICLE  ONE  HUNDRED  SIXTY OF THE PENAL LAW, A KIDNAPPING
OFFENSE AS DEFINED BY ARTICLE ONE HUNDRED THIRTY-FIVE OF THE PENAL  LAW,

S. 3438--A                          3

AN  ARSON  OFFENSE  AS DEFINED BY ARTICLE ONE HUNDRED FIFTY OF THE PENAL
LAW, A CRIMINAL MISCHIEF OFFENSE  AS  DEFINED  BY  ARTICLE  ONE  HUNDRED
FORTY-FIVE  OF  THE  PENAL LAW, A BURGLARY OFFENSE AS DEFINED BY ARTICLE
ONE  HUNDRED  FORTY OF THE PENAL LAW, CRIMINAL POSSESSION OF A WEAPON IN
THE SECOND DEGREE AS DEFINED BY SUBDIVISIONS TWO AND  THREE  OF  SECTION
265.03  OF  THE PENAL LAW, CRIMINAL USE OF A FIREARM IN THE FIRST DEGREE
AS DEFINED BY SECTION 265.09 OF THE PENAL LAW, CRIMINAL USE OF A FIREARM
IN THE SECOND DEGREE AS DEFINED BY SECTION 265.08 OF THE  PENAL  LAW,  A
CONSPIRACY  TO COMMIT SUCH CRIMES AS DEFINED IN ARTICLE ONE HUNDRED FIVE
OF THE PENAL LAW, AN ATTEMPT TO COMMIT SUCH CRIMES AS DEFINED IN ARTICLE
ONE HUNDRED TEN OF THE PENAL LAW AND SERVING A DETERMINATE OR INDETERMI-
NATE SENTENCE OR SENTENCES AND WHO CAN DEMONSTRATE TO  THE  COMMISSIONER
THAT:  (1) THE PERSON IS A VICTIM OF DOMESTIC VIOLENCE WHO WAS SUBJECTED
TO SUBSTANTIAL PHYSICAL, SEXUAL OR PSYCHOLOGICAL ABUSE  INFLICTED  BY  A
MEMBER  OF THE PERSON'S SAME FAMILY OR HOUSEHOLD AS THAT TERM IS DEFINED
IN SUBDIVISION ONE OF SECTION 530.11 OF THE CRIMINAL PROCEDURE LAW OR  A
MEMBER  OF  THE  PERSON'S  IMMEDIATE  FAMILY  AS THAT TERM IS DEFINED IN
SUBDIVISION FOUR OF SECTION 120.40  OF  THE  PENAL  LAW;  AND  (2)  SUCH
OFFENSE  WAS  COMMITTED  AS  A  DIRECT RESULT OF SUCH ABUSE, MAY RECEIVE
MERIT TIME ALLOWANCE CREDIT IN THE AMOUNT PROVIDED FOR  IN  SUBPARAGRAPH
(III)  OF THIS PARAGRAPH.  THE MERIT TIME ALLOWANCE ESTABLISHED PURSUANT
TO THIS SUBPARAGRAPH SHALL BE GRANTED IN THE SAME MANNER AS REQUIRED  BY
SUBPARAGRAPH (IV) OF THIS PARAGRAPH.
  TO  APPLY  FOR  MERIT  TIME  ELIGIBILITY UNDER THIS SUBDIVISION AND TO
DEMONSTRATE SUCH PERSON'S CLAIM THAT SHE OR HE WAS SUBJECTED TO SUBSTAN-
TIAL PHYSICAL, SEXUAL OR PSYCHOLOGICAL ABUSE AND THAT SUCH  OFFENSE  WAS
COMMITTED  AS  A DIRECT RESULT OF SUCH ABUSE, SUCH PERSON MUST SUBMIT AN
APPLICATION TO THE COMMISSIONER OR COMMISSIONER'S  DESIGNEE  ALONG  WITH
CORROBORATIVE  MATERIAL  THAT SHALL INCLUDE ONE OR MORE OF THE FOLLOWING
DOCUMENTS:   WITNESS STATEMENTS, COURT  RECORDS,  PRE-SENTENCE  REPORTS,
SOCIAL  SERVICES  RECORDS,  CITY  AND  STATE  DEPARTMENT  OF CORRECTIONS
RECORDS, HOSPITAL RECORDS, LAW ENFORCEMENT  RECORDS,  DOMESTIC  INCIDENT
REPORTS,  ORDERS OF PROTECTION, A SHOWING BASED IN PART ON DOCUMENTATION
PREPARED AT OR NEAR THE TIME OF THE COMMISSION OF  THE  OFFENSE  OR  THE
PROSECUTION THEREOF TENDING TO SUPPORT THE PERSON'S CLAIM, OR WHEN THERE
IS VERIFICATION OF CONSULTATION WITH A LICENSED MEDICAL OR MENTAL HEALTH
CARE PROVIDER, EMPLOYEE OF A COURT ACTING WITHIN THE SCOPE OF HIS OR HER
EMPLOYMENT,  MEMBER  OF  THE  CLERGY,  ATTORNEY,  SOCIAL WORKER, OR RAPE
CRISIS COUNSELOR AS DEFINED IN SECTION FORTY-FIVE  HUNDRED  TEN  OF  THE
CIVIL  PRACTICE  LAW AND RULES, OR OTHER ADVOCATE ACTING ON BEHALF OF AN
AGENCY THAT ASSISTS VICTIMS  OF  DOMESTIC  VIOLENCE,  OR  OTHER  SIMILAR
DOCUMENTATION THAT CORROBORATES SUCH PERSON'S CLAIM.
  S 3. Subdivision 3 of section 803 of the correction law, as amended by
chapter 3 of the laws of 1995, is amended to read as follows:
  3.  The  commissioner  of correctional services shall promulgate rules
and regulations for the granting, withholding, forfeiture,  cancellation
and  restoration  of allowances authorized by this section in accordance
with the criteria herein specified. Such  rules  and  regulations  shall
include  provisions  designating the person or committee in each correc-
tional institution delegated to make discretionary  determinations  with
respect  to  the  allowances,  the  books  and records to be kept, and a
procedure for review of the institutional determinations by the  commis-
sioner.    FURTHER,  THE COMMISSIONER OR THE COMMISSIONER'S DESIGNEE MAY
CONSULT WITH THE OFFICE FOR THE PREVENTION OF DOMESTIC VIOLENCE  REGARD-
ING THE PROMULGATION OF RULES AND REGULATIONS FOR GRANTING, WITHHOLDING,
FORFEITURE, CANCELLATION AND RESTORATION OF MERIT TIME ALLOWANCES PURSU-

S. 3438--A                          4

ANT  TO  SUBPARAGRAPH  (VI)  OF PARAGRAPH (D) OF SUBDIVISION ONE OF THIS
SECTION. TO ASSIST IN THE IMPLEMENTATION OF SUBPARAGRAPH (VI)  OF  PARA-
GRAPH  (D)  OF  SUBDIVISION  ONE  OF  THIS  SECTION,  THE OFFICE FOR THE
PREVENTION  OF  DOMESTIC  VIOLENCE  SHALL PROVIDE TRAINING TO DEPARTMENT
STAFF DELEGATED TO MAKE DETERMINATIONS REGARDING  SUCH  ALLOWANCES.  THE
COMMISSIONER  OR THE COMMISSIONER'S DESIGNEE MAY ALSO REQUEST ASSISTANCE
FROM THE OFFICE FOR THE PREVENTION OF  DOMESTIC  VIOLENCE  IN  MAKING  A
DETERMINATION  ABOUT  WHETHER  AN  INDIVIDUAL  INMATE  IS AN APPROPRIATE
CANDIDATE FOR MERIT TIME ELIGIBILITY PURSUANT TO  SUBPARAGRAPH  (VI)  OF
PARAGRAPH  (D)  OF  SUBDIVISION  ONE OF THIS SECTION, PROVIDED, HOWEVER,
THAT THE COMMISSIONER SHALL MAKE THE FINAL DETERMINATION ON  THE  GRANT-
ING, WITHHOLDING, FORFEITURE, CANCELLATION AND RESTORATION OF MERIT TIME
ALLOWANCES PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION
ONE OF THIS SECTION.
  S 4. Subdivision 3 of section 803 of the correction law, as amended by
chapter 126 of the laws of 1987, is amended to read as follows:
  3.  The  commissioner  of correctional services shall promulgate rules
and regulations for the granting, withholding, forfeiture,  cancellation
and  restoration  of allowances authorized by this section in accordance
with the criteria herein specified. Such  rules  and  regulations  shall
include  provisions  designating the person or committee in each correc-
tional institution delegated to make discretionary  determinations  with
respect  to  the  allowances,  the  books  and records to be kept, and a
procedure for review of the institutional determinations by the  commis-
sioner.    FURTHER,  THE COMMISSIONER OR THE COMMISSIONER'S DESIGNEE MAY
CONSULT WITH THE OFFICE FOR THE PREVENTION OF DOMESTIC VIOLENCE  REGARD-
ING THE PROMULGATION OF RULES AND REGULATIONS FOR GRANTING, WITHHOLDING,
FORFEITURE, CANCELLATION AND RESTORATION OF MERIT TIME ALLOWANCES PURSU-
ANT  TO  SUBPARAGRAPH  (VI)  OF PARAGRAPH (D) OF SUBDIVISION ONE OF THIS
SECTION. TO ASSIST IN THE IMPLEMENTATION OF SUBPARAGRAPH (VI)  OF  PARA-
GRAPH  (D)  OF  SUBDIVISION  ONE  OF  THIS  SECTION,  THE OFFICE FOR THE
PREVENTION OF DOMESTIC VIOLENCE SHALL  PROVIDE  TRAINING  TO  DEPARTMENT
STAFF  DELEGATED  TO  MAKE DETERMINATIONS REGARDING SUCH ALLOWANCES. THE
COMMISSIONER OR THE COMMISSIONER'S DESIGNEE MAY ALSO REQUEST  ASSISTANCE
FROM  THE  OFFICE  FOR  THE  PREVENTION OF DOMESTIC VIOLENCE IN MAKING A
DETERMINATION ABOUT WHETHER  AN  INDIVIDUAL  INMATE  IS  AN  APPROPRIATE
CANDIDATE  FOR  MERIT  TIME ELIGIBILITY PURSUANT TO SUBPARAGRAPH (VI) OF
PARAGRAPH (D) OF SUBDIVISION ONE OF  THIS  SECTION,  PROVIDED,  HOWEVER,
THAT  THE  COMMISSIONER SHALL MAKE THE FINAL DETERMINATION ON THE GRANT-
ING, WITHHOLDING, FORFEITURE, CANCELLATION AND RESTORATION OF MERIT TIME
ALLOWANCES PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION
ONE OF THIS SECTION.
  S 5. Section 805 of the correction law, as amended  by  section  4  of
part E of chapter 62 of the laws of 2003, is amended to read as follows:
  S 805. Earned eligibility program. Persons committed to the custody of
the  department under an indeterminate or determinate sentence of impri-
sonment shall be assigned a work and treatment program as soon as  prac-
ticable. No earlier than two months prior to the inmate's eligibility to
be  paroled  pursuant  to  subdivision one of section 70.40 of the penal
law, the commissioner shall review the inmate's institutional record  to
determine  whether  he OR SHE has complied with the assigned program. If
the commissioner determines that the  inmate  has  successfully  partic-
ipated  in  the  program he OR SHE may issue the inmate a certificate of
earned eligibility. Notwithstanding  any  other  provision  of  law,  an
inmate  who  is  serving a sentence with a minimum term of not more than
eight years and who has been issued a certificate of earned eligibility,

S. 3438--A                          5

shall be granted parole release at the expiration of his OR HER  minimum
term  or  as  authorized  by  subdivision  four of section eight hundred
sixty-seven of this chapter unless the board of parole  determines  that
there  is  a reasonable probability that, if such inmate is released, he
OR SHE will not live and remain at liberty without violating the law and
that his OR HER release is not compatible with the welfare  of  society.
Any  action by the commissioner pursuant to this section shall be deemed
a judicial function and shall not be reviewable if  done  in  accordance
with law.
  NOTWITHSTANDING THE OPENING PARAGRAPH OF THIS SECTION, A PERSON WHO IS
ELIGIBLE  FOR  MERIT  TIME  UNDER  SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF
SUBDIVISION ONE OF SECTION EIGHT HUNDRED THREE OF THIS ARTICLE  WHO  HAS
BEEN  ISSUED  A  CERTIFICATE  OF  EARNED  ELIGIBILITY  AND  IS SERVING A
SENTENCE WITH A MINIMUM TERM OF MORE THAN EIGHT YEARS SHALL  BE  GRANTED
PAROLE  RELEASE  AT THE EXPIRATION OF HIS OR HER MINIMUM TERM UNLESS THE
BOARD OF PAROLE DETERMINES THAT THERE IS A REASONABLE PROBABILITY  THAT,
IF  SUCH  PERSON  IS  RELEASED,  HE  OR SHE WOULD NOT LIVE AND REMAIN AT
LIBERTY WITHOUT VIOLATING THE LAW AND THAT HIS OR  HER  RELEASE  IS  NOT
COMPATIBLE  WITH  THE WELFARE OF SOCIETY. ANY ACTION BY THE COMMISSIONER
PURSUANT TO THIS SECTION SHALL BE DEEMED A JUDICIAL FUNCTION  AND  SHALL
NOT BE REVIEWABLE IF DONE IN ACCORDANCE WITH THE LAW.
  S  6.  Section 805 of the correction law, as amended by chapter 262 of
the laws of 1987, is amended to read as follows:
  S 805. Earned eligibility program. Persons committed to the custody of
the department under an indeterminate sentence of imprisonment shall  be
assigned a work and treatment program as soon as practicable. No earlier
than two months prior to the expiration of an inmate's minimum period of
imprisonment,  the  commissioner shall review the inmate's institutional
record to determine whether he OR SHE has  complied  with  the  assigned
program.  If the commissioner determines that the inmate has successful-
ly  participated in the program he OR SHE may issue the inmate a certif-
icate of earned eligibility. Notwithstanding any other provision of law,
an inmate who is serving a sentence with a minimum term of not more than
six years and who has been issued a certificate of  earned  eligibility,
shall  be granted parole release at the expiration of his OR HER minimum
term or as authorized by  subdivision  four  of  section  eight  hundred
sixty-seven  OF  THIS CHAPTER unless the board of parole determines that
there is a reasonable probability that, if such inmate is  released,  he
OR SHE will not live and remain at liberty without violating the law and
that  his  OR HER release is not compatible with the welfare of society.
Any action by the commissioner pursuant to this section shall be  deemed
a  judicial  function  and shall not be reviewable if done in accordance
with law.
  NOTWITHSTANDING THE OPENING PARAGRAPH OF THIS SECTION, A PERSON WHO IS
ELIGIBLE FOR MERIT TIME UNDER SUBPARAGRAPH  (VI)  OF  PARAGRAPH  (D)  OF
SUBDIVISION  ONE  OF SECTION EIGHT HUNDRED THREE OF THIS ARTICLE WHO HAS
BEEN ISSUED A  CERTIFICATE  OF  EARNED  ELIGIBILITY  AND  IS  SERVING  A
SENTENCE  WITH  A  MINIMUM  TERM OF MORE THAN SIX YEARS SHALL BE GRANTED
PAROLE RELEASE AT THE EXPIRATION OF HIS OR HER MINIMUM TERM  UNLESS  THE
BOARD  OF PAROLE DETERMINES THAT THERE IS A REASONABLE PROBABILITY THAT,
IF SUCH PERSON IS RELEASED, HE OR SHE  WOULD  NOT  LIVE  AND  REMAIN  AT
LIBERTY  WITHOUT  VIOLATING  THE  LAW AND THAT HIS OR HER RELEASE IS NOT
COMPATIBLE WITH THE WELFARE OF SOCIETY. ANY ACTION BY  THE  COMMISSIONER
PURSUANT  TO  THIS SECTION SHALL BE DEEMED A JUDICIAL FUNCTION AND SHALL
NOT BE REVIEWABLE IF DONE IN ACCORDANCE WITH THE LAW.

S. 3438--A                          6

  S 7. Section 806 of the correction law is  amended  by  adding  a  new
subdivision 8 to read as follows:
  8.  NOTWITHSTANDING  ANY  INCONSISTENT  PROVISION  OF  THIS SECTION, A
PERSON THAT IS ELIGIBLE FOR A MERIT TIME ALLOWANCE PURSUANT TO  SUBPARA-
GRAPH  (VI) OF PARAGRAPH (D) OF SUBDIVISION ONE OF SECTION EIGHT HUNDRED
THREE OF THIS ARTICLE MAY BE ENTITLED  TO  PRESUMPTIVE  RELEASE  AT  THE
EXPIRATION  OF FIVE-SIXTHS OF THE MINIMUM OR AGGREGATE MINIMUM PERIOD OF
THE INDETERMINATE TERM IMPOSED BY THE COURT.
  S 8. Subdivision 2-a of section 851 of the correction law, as added by
chapter 251 of the laws of 2002, is amended to read as follows:
  2-a. Notwithstanding subdivision two of this section, the term "eligi-
ble inmate" shall also include a person confined in an  institution  who
is  eligible  for  release  on  parole  or  who will become eligible for
release on parole or conditional release within two years, and who  [was
convicted  of a homicide offense as defined in article one hundred twen-
ty-five of the penal law or an assault offense defined  in  article  one
hundred  twenty of the penal law, and who can demonstrate to the commis-
sioner that: (a) the victim of such homicide or assault was a member  of
the  inmate's immediate family as that term is defined in section 120.40
of the penal law or had a child in  common  with  the  inmate;  (b)  the
inmate  was  subjected  to substantial physical, sexual or psychological
abuse committed by the victim of such homicide or assault; and (c)  such
abuse  was  a  substantial  factor  in causing the inmate to commit such
homicide or assault] IS ELIGIBLE FOR A MERIT TIME ALLOWANCE PURSUANT  TO
SUBPARAGRAPH  (VI)  OF PARAGRAPH (D) OF SUBDIVISION ONE OF SECTION EIGHT
HUNDRED THREE OF THIS CHAPTER.  With respect to an inmate's  claim  that
he or she was subjected to substantial physical, sexual or psychological
abuse  [committed by the victim] AND THAT THE OFFENSE WAS COMMITTED AS A
DIRECT RESULT OF SUCH ABUSE, such demonstration shall include corrobora-
tive material that may include, but is not limited  to,  witness  state-
ments,  COURT  RECORDS,  PRE-SENTENCE  REPORTS, social services records,
CITY AND STATE DEPARTMENT OF CORRECTION RECORDS, hospital  records,  law
enforcement records, DOMESTIC INCIDENT REPORTS, ORDERS OF PROTECTION and
a showing based in part on documentation prepared at or near the time of
the  commission  of  the  offense  or the prosecution thereof tending to
support the inmate's claim, OR WHEN THERE IS VERIFICATION  OF  CONSULTA-
TION WITH A LICENSED MEDICAL OR MENTAL HEALTH CARE PROVIDER, EMPLOYEE OF
A  COURT ACTING WITHIN THE SCOPE OF HIS OR HER EMPLOYMENT, MEMBER OF THE
CLERGY, ATTORNEY, SOCIAL WORKER, OR RAPE CRISIS COUNSELOR AS DEFINED  IN
PARAGRAPH  TWO  OF  SUBDIVISION (A) OF SECTION FORTY-FIVE HUNDRED TEN OF
THE CIVIL PRACTICE LAW AND RULES, OR OTHER ADVOCATE ACTING ON BEHALF  OF
AN  AGENCY THAT ASSISTS VICTIMS OF DOMESTIC VIOLENCE.  Prior to making a
determination under this subdivision, the commissioner  is  required  to
request and take into consideration the opinion of the district attorney
who  prosecuted  the  underlying  [homicide  or assault] offense and the
opinion of the sentencing court. If such opinions  are  received  within
forty-five  days  of  the request, the commissioner shall take them into
consideration.  DURING THE FORTY-FIVE DAY WAITING PERIOD, THE INMATE MAY
BE PERMITTED TO CONTINUE TO GATHER ADDITIONAL  CORROBORATIVE  MATERIALS.
If  such opinions are not so received, the commissioner may proceed with
the determination.  THE COMMISSIONER OR THE COMMISSIONER'S DESIGNEE  MAY
CONSULT  WITH  THE  OFFICE  FOR  THE  PREVENTION OF DOMESTIC VIOLENCE TO
PROMULGATE RULES AND  REGULATIONS  TO  IMPLEMENT  THIS  SUBDIVISION.  TO
ASSIST  IN  THE  IMPLEMENTATION  OF THIS SUBDIVISION, THE OFFICE FOR THE
PREVENTION OF DOMESTIC VIOLENCE SHALL  PROVIDE  TRAINING  TO  DEPARTMENT
STAFF DELEGATED TO MAKE DETERMINATIONS PURSUANT TO THIS SUBDIVISION. THE

S. 3438--A                          7

COMMISSIONER  OR THE COMMISSIONER'S DESIGNEE MAY ALSO REQUEST ASSISTANCE
FROM THE OFFICE FOR THE PREVENTION OF  DOMESTIC  VIOLENCE  IN  MAKING  A
DETERMINATION  ABOUT  WHETHER  AN  INDIVIDUAL  INMATE  IS AN APPROPRIATE
CANDIDATE  FOR  WORK  RELEASE  PURSUANT  TO  THIS SUBDIVISION, PROVIDED,
HOWEVER, THAT THE COMMISSIONER SHALL MAKE  THE  FINAL  DETERMINATION  OF
WHETHER  TO  GRANT WORK RELEASE PURSUANT TO THIS SUBDIVISION. Any action
by the commissioner pursuant to this subdivision shall be deemed a judi-
cial function and shall not be reviewable in any court.
  S 9. The commissioner of the department of correctional services shall
present to the governor, the temporary president of the senate  and  the
speaker  of  the  assembly an annual report about the granting and with-
holding of merit time allowance pursuant to subparagraph (vi)  of  para-
graph  (d) of subdivision 1 of section 803 of the correction law and the
operation of the work release  program  as  applied  to  inmates  deemed
eligible  pursuant  to  subdivision 2-a of section 851 of the correction
law. Such report shall include, but not be limited  to,  the  number  of
inmates  who  apply for such merit time allowance, the number of inmates
approved for such merit time allowance, the number of denials of  appli-
cations for such merit time allowance, the reasons for denials of appli-
cations  for  such merit time allowance, the crime of conviction and the
sentence for each inmate granted such merit time allowance,  the  number
of inmates eligible for work release, the number of inmates granted work
release  pursuant  to  subdivision  2-a of section 851 of the correction
law, the number of denials of applications for such  work  release,  the
reasons  for denials of applications for such work release, and the role
of the office for the prevention of domestic violence in  assisting  the
department of correctional services to make determinations regarding the
granting or withholding of such merit time allowance and the eligibility
for  work  release  pursuant  to  subdivision  2-a of section 851 of the
correction law. The initial report required by  this  section  shall  be
presented  by  December  31, 2011. Thereafter, an annual report shall be
presented no later than December 31 of each year.
  S 10. This act shall take effect on  the  one  hundred  eightieth  day
after  it  shall have become a law and shall apply to persons in custody
serving an indeterminate or determinate sentence on the  effective  date
of  this  act  as  well  as  to persons sentenced to an indeterminate or
determinate sentence on  or  after  the  effective  date  of  this  act;
provided  that  the  amendments  to  paragraph  (d)  of subdivision 1 of
section 803 of the correction law made by section one of this act  shall
be  subject  to the expiration and reversion of such section pursuant to
section 74 of chapter 3 of the laws of 1995, as amended, when upon  such
date  the  provisions  of  section  two  of  this act shall take effect;
provided further that the amendments to subdivision 3 of section 803  of
the correction law made by section three of this act shall be subject to
the  expiration  and reversion of such section pursuant to section 74 of
chapter 3 of the laws of 1995, as  amended,  when  upon  such  date  the
provisions  of section four of this act shall take effect; and provided,
further, that the amendments to sections 806 and 851 of  the  correction
law  made  by  sections seven and eight of this act shall not affect the
expiration or repeal of such sections and  shall  expire  or  be  deemed
repealed  therewith;  and  provided,  further,  that  the  amendments to
section 805 of the correction law made by section five of this act shall
be subject to the expiration and reversion of such section  pursuant  to
chapter  261  of  the laws of 1987 and chapter 3 of the laws of 1995, as
amended, when upon such date the provisions of section six of  this  act
shall take effect.

co-Sponsors

2009-S3438B (ACTIVE) - Details

Laws Affected:: Amd §§803, 805, 806 & 851, Cor L
Versions Introduced in 2011-2012 Legislative Session:: S329

2009-S3438B (ACTIVE) - Summary

2009-S3438B (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S3438B

 TITLE OF BILL :
An act to amend the correction law, in relation to merit time
allowances


 PURPOSE OF BILL :
This bill would allow domestic violence survivors incarcerated for
committing crimes as a result of the abuse they have endured, to earn
merit time and participate in temporary and early release programs.

 SUMMARY OF PROVISIONS :
This bill allows inmates who can demonstrate that they are victims of
domestic violence who were subjected to substantial physical, sexual
or psychological abuse inflicted by a member of their same family or
household as that term is defined in section 530.11 of the criminal
procedure law or a member of the person's immediate family as that
term is defined in section 120.40 of the penal law, and that the
commission of the offense was a direct result of such abuse, to be
eligible to earn a merit time allowance.

The bill further allows such inmates who are serving an indeterminate
term to be eligible for presumptive release. Inmates serving a
sentence for a sex offense or an act of terrorism are not eligible for
the merit time or presumptive release provided for in the bill.

This bill also makes a conforming change to the work release statute
to allow inmates who are victims of domestic violence who commit their
crime as a result of abuse to be eligible for work release.

The bill requires the Department of Correctional Services to consult
with the Office for the Prevention of Domestic Violence, in
implementing the provisions of the bill.

 JUSTIFICATION :
Over the past 30 years, domestic violence has been increasingly
recognized as a serious national problem. Battering is the number one
cause of injury to women in the United States.  Attacks by husbands on
wives result in more injuries requiring medic al treatment than rapes,
muggings and auto accidents combined. New York has made significant
advances in curbing domestic violence.  his legislation would build on
these advances by allowing inmates incarcerated for defending
themselves against their batterers or for committing crimes as a
result of the abuse they have endured to earn merit time allowances.

Established in New York in 1997, merit time allows DOCS to grant early
release to inmates who meet certain criteria. People convicted of
violent offenses - including inmates convicted of defending themselves
against their abusers or of committing crimes because of abuse - are
not currently eligible for merit time.

The bill does not seek, to diminish the seriousness of these crimes
but rather reflects a growing understanding of the prevalence of abuse
experienced by women prisoners, and the unique situation of
incarcerated women who have experienced battering. A 1999 study of
female inmates at New York's Bedford Hills correctional Facility found
that more than 80% of the women inmates had a childhood history of
severe physical and/or sexual abuse and that more than 90% had endured
physical or sexual violence in their lifetimes.

Many female inmates with such histories pose virtually no threat to
public safety: many have extremely low rates of recidivism, no prior
criminal records, and, most often, no history of violence other than
the offense for which they are in prison. Not allowing inmates with
such histories to earn merit time and have the opportunity for DOGS to
grant them an earlier release also places added financial burden on
the state.

Moreover, many inmates with histories of abuse are mothers whose
children have been traumatized both by the events leading up to their
mother's incarceration and by their separation from her during her
incarceration. Reuniting a mother with her children more quickly will
help diminish the trauma of separation and the likelihood that the
children themselves will become involved in the criminal justice
system as adults.

This bill enables incarcerated survivors of abuse to benefit from
society's growing awareness of the pervasive and terrible nature of
domestic violence. It is a pragmatic and compassionate remedy that
allows incarcerated survivors the opportunity to more quickly beg in
the important journey of returning to their communities and children,
rebuilding their lives, and recovering from abuse.

 LEGISLATIVE HISTORY :

2008: A.6150-A/S.3164-A: Passed Assembly/S. Rules
2007: A.6150/S.3164-A:  Correction Committee/S. Crime Victims, Crime
and Correction
2005: A.8024-A/S.5124-A: Correction Committee/S. Crime Victims, Crime
and Correction

 FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS :
Enactment of this bill will result in cost savings.

 EFFECTIVE DATE :
This act shall take effect on the 180th day after it shall have become
law and shall apply to persons in custody on the effective date of the
act and to persons sentenced to an indeterminate or determinate
sentence on or after the effective date of this act.

2009-S3438B (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3438--B

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             March 19, 2009
                               ___________

Introduced  by Sens. MONTGOMERY, HASSELL-THOMPSON, KRUEGER, OPPENHEIMER,
  PARKER, SCHNEIDERMAN, SERRANO, VOLKER -- read twice and ordered print-
  ed, and when printed  to  be  committed  to  the  Committee  on  Crime
  Victims,  Crime  and Correction -- committee discharged, bill amended,
  ordered reprinted as amended and  recommitted  to  said  committee  --
  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  commit-
  tee

AN ACT to amend the correction law, in relation to merit time allowances

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subparagraph (ii) of paragraph  (d)  of  subdivision  1  of
section  803 of the correction law, as added by section 7 of chapter 738
of the laws of 2004, is amended and a new subparagraph (vi) is added  to
read as follows:
  (ii) [Such] EXCEPT AS PROVIDED IN SUBPARAGRAPH (VI) OF THIS PARAGRAPH,
SUCH  merit  time allowance shall not be available to any person serving
an indeterminate sentence authorized for an A-I  felony  offense,  other
than  an A-I felony offense defined in article two hundred twenty of the
penal law, or any sentence imposed  for  a  violent  felony  offense  as
defined  in  section  70.02 of the penal law, manslaughter in the second
degree,  vehicular  manslaughter  in  the   second   degree,   vehicular
manslaughter  in  the  first  degree,  criminally negligent homicide, an
offense defined in article one hundred thirty of the penal law,  incest,
or  an  offense  defined in article two hundred sixty-three of the penal
law, or aggravated harassment of an employee by an inmate.
  (VI) A PERSON CONVICTED OF A HOMICIDE OFFENSE AS  DEFINED  IN  ARTICLE
ONE  HUNDRED TWENTY-FIVE OF THE PENAL LAW, AN ASSAULT OFFENSE DEFINED IN
ARTICLE ONE HUNDRED TWENTY OF  THE  PENAL  LAW,  A  ROBBERY  OFFENSE  AS
DEFINED  BY  ARTICLE  ONE  HUNDRED  SIXTY OF THE PENAL LAW, A KIDNAPPING

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06407-14-0

S. 3438--B                          2

OFFENSE AS DEFINED BY ARTICLE ONE HUNDRED THIRTY-FIVE OF THE PENAL  LAW,
AN  ARSON  OFFENSE  AS DEFINED BY ARTICLE ONE HUNDRED FIFTY OF THE PENAL
LAW, A BURGLARY OFFENSE AS DEFINED BY ARTICLE ONE HUNDRED FORTY  OF  THE
PENAL  LAW,  CRIMINAL  POSSESSION  OF  A  WEAPON IN THE SECOND DEGREE AS
DEFINED BY SUBDIVISIONS TWO AND THREE OF SECTION  265.03  OF  THE  PENAL
LAW, CRIMINAL USE OF A FIREARM IN THE FIRST DEGREE AS DEFINED BY SECTION
265.09  OF THE PENAL LAW, CRIMINAL USE OF A FIREARM IN THE SECOND DEGREE
AS DEFINED BY SECTION 265.08 OF THE PENAL LAW, A  CONSPIRACY  TO  COMMIT
SUCH  CRIMES AS DEFINED IN ARTICLE ONE HUNDRED FIVE OF THE PENAL LAW, AN
ATTEMPT TO COMMIT SUCH CRIMES AS DEFINED IN ARTICLE ONE HUNDRED  TEN  OF
THE  PENAL  LAW  AND  SERVING A DETERMINATE OR INDETERMINATE SENTENCE OR
SENTENCES AND WHO CAN DEMONSTRATE TO  THE  COMMISSIONER  THAT:  (1)  THE
PERSON IS A VICTIM OF DOMESTIC VIOLENCE WHO WAS SUBJECTED TO SUBSTANTIAL
PHYSICAL,  SEXUAL  OR  PSYCHOLOGICAL  ABUSE INFLICTED BY A MEMBER OF THE
PERSON'S SAME FAMILY OR HOUSEHOLD AS THAT TERM IS DEFINED IN SUBDIVISION
ONE OF SECTION 530.11 OF THE CRIMINAL PROCEDURE LAW OR A MEMBER  OF  THE
PERSON'S IMMEDIATE FAMILY AS THAT TERM IS DEFINED IN SUBDIVISION FOUR OF
SECTION 120.40 OF THE PENAL LAW; AND (2) SUCH OFFENSE WAS COMMITTED AS A
DIRECT  RESULT OF SUCH ABUSE, MAY RECEIVE MERIT TIME ALLOWANCE CREDIT IN
THE AMOUNT PROVIDED FOR IN SUBPARAGRAPH (III) OF THIS  PARAGRAPH.    THE
MERIT  TIME ALLOWANCE ESTABLISHED PURSUANT TO THIS SUBPARAGRAPH SHALL BE
GRANTED IN THE SAME MANNER AS REQUIRED  BY  SUBPARAGRAPH  (IV)  OF  THIS
PARAGRAPH.
  TO  APPLY  FOR  MERIT  TIME  ELIGIBILITY UNDER THIS SUBDIVISION AND TO
DEMONSTRATE SUCH PERSON'S CLAIM THAT SHE OR HE WAS SUBJECTED TO SUBSTAN-
TIAL PHYSICAL, SEXUAL OR PSYCHOLOGICAL ABUSE AND THAT SUCH  OFFENSE  WAS
COMMITTED  AS  A DIRECT RESULT OF SUCH ABUSE, SUCH PERSON MUST SUBMIT AN
APPLICATION TO THE COMMISSIONER OR COMMISSIONER'S  DESIGNEE  ALONG  WITH
CORROBORATIVE  MATERIAL  THAT SHALL INCLUDE ONE OR MORE OF THE FOLLOWING
DOCUMENTS:   WITNESS STATEMENTS, COURT  RECORDS,  PRE-SENTENCE  REPORTS,
SOCIAL  SERVICES  RECORDS,  CITY  AND  STATE  DEPARTMENT  OF CORRECTIONS
RECORDS, HOSPITAL RECORDS, LAW ENFORCEMENT  RECORDS,  DOMESTIC  INCIDENT
REPORTS,  ORDERS OF PROTECTION, A SHOWING BASED IN PART ON DOCUMENTATION
PREPARED AT OR NEAR THE TIME OF THE COMMISSION OF  THE  OFFENSE  OR  THE
PROSECUTION THEREOF TENDING TO SUPPORT THE PERSON'S CLAIM, OR WHEN THERE
IS VERIFICATION OF CONSULTATION WITH A LICENSED MEDICAL OR MENTAL HEALTH
CARE PROVIDER, EMPLOYEE OF A COURT ACTING WITHIN THE SCOPE OF HIS OR HER
EMPLOYMENT,  MEMBER  OF  THE  CLERGY,  ATTORNEY,  SOCIAL WORKER, OR RAPE
CRISIS COUNSELOR AS DEFINED IN SECTION FORTY-FIVE  HUNDRED  TEN  OF  THE
CIVIL  PRACTICE  LAW AND RULES, OR OTHER ADVOCATE ACTING ON BEHALF OF AN
AGENCY THAT ASSISTS VICTIMS  OF  DOMESTIC  VIOLENCE,  OR  OTHER  SIMILAR
DOCUMENTATION THAT CORROBORATES SUCH PERSON'S CLAIM.
  S  2.  Subparagraph  (ii) of paragraph (d) of subdivision 1 of section
803 of the correction law, as added by section 10-a of  chapter  738  of
the  laws  of  2004,  is amended and a new subparagraph (vi) is added to
read as follows:
  (ii) [Such] EXCEPT AS PROVIDED IN SUBPARAGRAPH (VI) OF THIS PARAGRAPH,
SUCH merit time allowance shall not be available to any  person  serving
an  indeterminate  sentence  authorized for an A-I felony offense, other
than an A-I felony offense defined in article two hundred twenty of  the
penal  law,  or  any  sentence  imposed  for a violent felony offense as
defined in section 70.02 of the penal law, manslaughter  in  the  second
degree,   vehicular   manslaughter   in  the  second  degree,  vehicular
manslaughter in the first  degree,  criminally  negligent  homicide,  an
offense  defined in article one hundred thirty of the penal law, incest,

S. 3438--B                          3

or an offense defined in article two hundred sixty-three  of  the  penal
law, or aggravated harassment of an employee by an inmate.
  (VI)  A  PERSON  CONVICTED OF A HOMICIDE OFFENSE AS DEFINED IN ARTICLE
ONE HUNDRED TWENTY-FIVE OF THE PENAL LAW, AN ASSAULT OFFENSE DEFINED  IN
ARTICLE  ONE  HUNDRED  TWENTY  OF  THE  PENAL  LAW, A ROBBERY OFFENSE AS
DEFINED BY ARTICLE ONE HUNDRED SIXTY OF  THE  PENAL  LAW,  A  KIDNAPPING
OFFENSE  AS DEFINED BY ARTICLE ONE HUNDRED THIRTY-FIVE OF THE PENAL LAW,
AN ARSON OFFENSE AS DEFINED BY ARTICLE ONE HUNDRED FIFTY  OF  THE  PENAL
LAW,  A  BURGLARY OFFENSE AS DEFINED BY ARTICLE ONE HUNDRED FORTY OF THE
PENAL LAW, CRIMINAL POSSESSION OF A  WEAPON  IN  THE  SECOND  DEGREE  AS
DEFINED  BY  SUBDIVISIONS  TWO  AND THREE OF SECTION 265.03 OF THE PENAL
LAW, CRIMINAL USE OF A FIREARM IN THE FIRST DEGREE AS DEFINED BY SECTION
265.09 OF THE PENAL LAW, CRIMINAL USE OF A FIREARM IN THE SECOND  DEGREE
AS  DEFINED  BY  SECTION 265.08 OF THE PENAL LAW, A CONSPIRACY TO COMMIT
SUCH CRIMES AS DEFINED IN ARTICLE ONE HUNDRED FIVE OF THE PENAL LAW,  AN
ATTEMPT  TO  COMMIT SUCH CRIMES AS DEFINED IN ARTICLE ONE HUNDRED TEN OF
THE PENAL LAW AND SERVING A DETERMINATE  OR  INDETERMINATE  SENTENCE  OR
SENTENCES  AND  WHO  CAN  DEMONSTRATE  TO THE COMMISSIONER THAT: (1) THE
PERSON IS A VICTIM OF DOMESTIC VIOLENCE WHO WAS SUBJECTED TO SUBSTANTIAL
PHYSICAL, SEXUAL OR PSYCHOLOGICAL ABUSE INFLICTED BY  A  MEMBER  OF  THE
PERSON'S SAME FAMILY OR HOUSEHOLD AS THAT TERM IS DEFINED IN SUBDIVISION
ONE  OF  SECTION 530.11 OF THE CRIMINAL PROCEDURE LAW OR A MEMBER OF THE
PERSON'S IMMEDIATE FAMILY AS THAT TERM IS DEFINED IN SUBDIVISION FOUR OF
SECTION 120.40 OF THE PENAL LAW; AND (2) SUCH OFFENSE WAS COMMITTED AS A
DIRECT RESULT OF SUCH ABUSE, MAY RECEIVE MERIT TIME ALLOWANCE CREDIT  IN
THE  AMOUNT  PROVIDED  FOR IN SUBPARAGRAPH (III) OF THIS PARAGRAPH.  THE
MERIT TIME ALLOWANCE ESTABLISHED PURSUANT TO THIS SUBPARAGRAPH SHALL  BE
GRANTED  IN  THE  SAME  MANNER  AS REQUIRED BY SUBPARAGRAPH (IV) OF THIS
PARAGRAPH.
  TO APPLY FOR MERIT TIME ELIGIBILITY  UNDER  THIS  SUBDIVISION  AND  TO
DEMONSTRATE SUCH PERSON'S CLAIM THAT SHE OR HE WAS SUBJECTED TO SUBSTAN-
TIAL  PHYSICAL,  SEXUAL OR PSYCHOLOGICAL ABUSE AND THAT SUCH OFFENSE WAS
COMMITTED AS A DIRECT RESULT OF SUCH ABUSE, SUCH PERSON MUST  SUBMIT  AN
APPLICATION  TO  THE  COMMISSIONER OR COMMISSIONER'S DESIGNEE ALONG WITH
CORROBORATIVE MATERIAL THAT SHALL INCLUDE ONE OR MORE OF  THE  FOLLOWING
DOCUMENTS:    WITNESS  STATEMENTS,  COURT RECORDS, PRE-SENTENCE REPORTS,
SOCIAL SERVICES  RECORDS,  CITY  AND  STATE  DEPARTMENT  OF  CORRECTIONS
RECORDS,  HOSPITAL  RECORDS,  LAW ENFORCEMENT RECORDS, DOMESTIC INCIDENT
REPORTS, ORDERS OF PROTECTION, A SHOWING BASED IN PART ON  DOCUMENTATION
PREPARED  AT  OR  NEAR  THE TIME OF THE COMMISSION OF THE OFFENSE OR THE
PROSECUTION THEREOF TENDING TO SUPPORT THE PERSON'S CLAIM, OR WHEN THERE
IS VERIFICATION OF CONSULTATION WITH A LICENSED MEDICAL OR MENTAL HEALTH
CARE PROVIDER, EMPLOYEE OF A COURT ACTING WITHIN THE SCOPE OF HIS OR HER
EMPLOYMENT, MEMBER OF THE  CLERGY,  ATTORNEY,  SOCIAL  WORKER,  OR  RAPE
CRISIS  COUNSELOR  AS  DEFINED  IN SECTION FORTY-FIVE HUNDRED TEN OF THE
CIVIL PRACTICE LAW AND RULES, OR OTHER ADVOCATE ACTING ON BEHALF  OF  AN
AGENCY  THAT  ASSISTS  VICTIMS  OF  DOMESTIC  VIOLENCE, OR OTHER SIMILAR
DOCUMENTATION THAT CORROBORATES SUCH PERSON'S CLAIM.
  S 3. Subdivision 3 of section 803 of the correction law, as amended by
chapter 3 of the laws of 1995, is amended to read as follows:
  3. The commissioner of correctional services  shall  promulgate  rules
and  regulations for the granting, withholding, forfeiture, cancellation
and restoration of allowances authorized by this section  in  accordance
with  the  criteria  herein  specified. Such rules and regulations shall
include provisions designating the person or committee in  each  correc-
tional  institution  delegated to make discretionary determinations with

S. 3438--B                          4

respect to the allowances, the books and  records  to  be  kept,  and  a
procedure  for review of the institutional determinations by the commis-
sioner.  FURTHER, THE COMMISSIONER OR THE  COMMISSIONER'S  DESIGNEE  MAY
CONSULT  WITH THE OFFICE FOR THE PREVENTION OF DOMESTIC VIOLENCE REGARD-
ING THE PROMULGATION OF RULES AND REGULATIONS FOR GRANTING, WITHHOLDING,
FORFEITURE, CANCELLATION AND RESTORATION OF MERIT TIME ALLOWANCES PURSU-
ANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF  SUBDIVISION  ONE  OF  THIS
SECTION.  TO  ASSIST IN THE IMPLEMENTATION OF SUBPARAGRAPH (VI) OF PARA-
GRAPH (D) OF SUBDIVISION  ONE  OF  THIS  SECTION,  THE  OFFICE  FOR  THE
PREVENTION  OF  DOMESTIC  VIOLENCE  SHALL PROVIDE TRAINING TO DEPARTMENT
STAFF DELEGATED TO MAKE DETERMINATIONS REGARDING  SUCH  ALLOWANCES.  THE
COMMISSIONER  OR THE COMMISSIONER'S DESIGNEE MAY ALSO REQUEST ASSISTANCE
FROM THE OFFICE FOR THE PREVENTION OF  DOMESTIC  VIOLENCE  IN  MAKING  A
DETERMINATION  ABOUT  WHETHER  AN  INDIVIDUAL  INMATE  IS AN APPROPRIATE
CANDIDATE FOR MERIT TIME ELIGIBILITY PURSUANT TO  SUBPARAGRAPH  (VI)  OF
PARAGRAPH  (D)  OF  SUBDIVISION  ONE OF THIS SECTION, PROVIDED, HOWEVER,
THAT THE COMMISSIONER SHALL MAKE THE FINAL DETERMINATION ON  THE  GRANT-
ING, WITHHOLDING, FORFEITURE, CANCELLATION AND RESTORATION OF MERIT TIME
ALLOWANCES PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION
ONE OF THIS SECTION.
  S 4. Subdivision 3 of section 803 of the correction law, as amended by
chapter 126 of the laws of 1987, is amended to read as follows:
  3.  The  commissioner  of correctional services shall promulgate rules
and regulations for the granting, withholding, forfeiture,  cancellation
and  restoration  of allowances authorized by this section in accordance
with the criteria herein specified. Such  rules  and  regulations  shall
include  provisions  designating the person or committee in each correc-
tional institution delegated to make discretionary  determinations  with
respect  to  the  allowances,  the  books  and records to be kept, and a
procedure for review of the institutional determinations by the  commis-
sioner.    FURTHER,  THE COMMISSIONER OR THE COMMISSIONER'S DESIGNEE MAY
CONSULT WITH THE OFFICE FOR THE PREVENTION OF DOMESTIC VIOLENCE  REGARD-
ING THE PROMULGATION OF RULES AND REGULATIONS FOR GRANTING, WITHHOLDING,
FORFEITURE, CANCELLATION AND RESTORATION OF MERIT TIME ALLOWANCES PURSU-
ANT  TO  SUBPARAGRAPH  (VI)  OF PARAGRAPH (D) OF SUBDIVISION ONE OF THIS
SECTION. TO ASSIST IN THE IMPLEMENTATION OF SUBPARAGRAPH (VI)  OF  PARA-
GRAPH  (D)  OF  SUBDIVISION  ONE  OF  THIS  SECTION,  THE OFFICE FOR THE
PREVENTION OF DOMESTIC VIOLENCE SHALL  PROVIDE  TRAINING  TO  DEPARTMENT
STAFF  DELEGATED  TO  MAKE DETERMINATIONS REGARDING SUCH ALLOWANCES. THE
COMMISSIONER OR THE COMMISSIONER'S DESIGNEE MAY ALSO REQUEST  ASSISTANCE
FROM  THE  OFFICE  FOR  THE  PREVENTION OF DOMESTIC VIOLENCE IN MAKING A
DETERMINATION ABOUT WHETHER  AN  INDIVIDUAL  INMATE  IS  AN  APPROPRIATE
CANDIDATE  FOR  MERIT  TIME ELIGIBILITY PURSUANT TO SUBPARAGRAPH (VI) OF
PARAGRAPH (D) OF SUBDIVISION ONE OF  THIS  SECTION,  PROVIDED,  HOWEVER,
THAT  THE  COMMISSIONER SHALL MAKE THE FINAL DETERMINATION ON THE GRANT-
ING, WITHHOLDING, FORFEITURE, CANCELLATION AND RESTORATION OF MERIT TIME
ALLOWANCES PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION
ONE OF THIS SECTION.
  S 5. Section 805 of the correction law, as amended  by  section  4  of
part E of chapter 62 of the laws of 2003, is amended to read as follows:
  S 805. Earned eligibility program. Persons committed to the custody of
the  department under an indeterminate or determinate sentence of impri-
sonment shall be assigned a work and treatment program as soon as  prac-
ticable. No earlier than two months prior to the inmate's eligibility to
be  paroled  pursuant  to  subdivision one of section 70.40 of the penal
law, the commissioner shall review the inmate's institutional record  to

S. 3438--B                          5

determine  whether  he OR SHE has complied with the assigned program. If
the commissioner determines that the  inmate  has  successfully  partic-
ipated  in  the  program he OR SHE may issue the inmate a certificate of
earned  eligibility.  Notwithstanding  any  other  provision  of law, an
inmate who is serving a sentence with a minimum term of  not  more  than
eight years and who has been issued a certificate of earned eligibility,
shall  be granted parole release at the expiration of his OR HER minimum
term or as authorized by  subdivision  four  of  section  eight  hundred
sixty-seven  of  this chapter unless the board of parole determines that
there is a reasonable probability that, if such inmate is  released,  he
OR SHE will not live and remain at liberty without violating the law and
that  his  OR HER release is not compatible with the welfare of society.
Any action by the commissioner pursuant to this section shall be  deemed
a  judicial  function  and shall not be reviewable if done in accordance
with law.
  NOTWITHSTANDING THE OPENING PARAGRAPH OF THIS SECTION, A PERSON WHO IS
ELIGIBLE FOR MERIT TIME UNDER SUBPARAGRAPH  (VI)  OF  PARAGRAPH  (D)  OF
SUBDIVISION  ONE  OF SECTION EIGHT HUNDRED THREE OF THIS ARTICLE WHO HAS
BEEN ISSUED A  CERTIFICATE  OF  EARNED  ELIGIBILITY  AND  IS  SERVING  A
SENTENCE  WITH  A MINIMUM TERM OF MORE THAN EIGHT YEARS SHALL BE GRANTED
PAROLE RELEASE AT THE EXPIRATION OF HIS OR HER MINIMUM TERM  UNLESS  THE
BOARD  OF PAROLE DETERMINES THAT THERE IS A REASONABLE PROBABILITY THAT,
IF SUCH PERSON IS RELEASED, HE OR SHE  WOULD  NOT  LIVE  AND  REMAIN  AT
LIBERTY  WITHOUT  VIOLATING  THE  LAW AND THAT HIS OR HER RELEASE IS NOT
COMPATIBLE WITH THE WELFARE OF SOCIETY. ANY ACTION BY  THE  COMMISSIONER
PURSUANT  TO  THIS SECTION SHALL BE DEEMED A JUDICIAL FUNCTION AND SHALL
NOT BE REVIEWABLE IF DONE IN ACCORDANCE WITH THE LAW.
  S 6. Section 805 of the correction law, as amended by chapter  262  of
the laws of 1987, is amended to read as follows:
  S 805. Earned eligibility program. Persons committed to the custody of
the  department under an indeterminate sentence of imprisonment shall be
assigned a work and treatment program as soon as practicable. No earlier
than two months prior to the expiration of an inmate's minimum period of
imprisonment, the commissioner shall review the  inmate's  institutional
record  to  determine  whether  he OR SHE has complied with the assigned
program.  If the commissioner determines that the inmate has successful-
ly participated in the program he OR SHE may issue the inmate a  certif-
icate of earned eligibility. Notwithstanding any other provision of law,
an inmate who is serving a sentence with a minimum term of not more than
six  years  and who has been issued a certificate of earned eligibility,
shall be granted parole release at the expiration of his OR HER  minimum
term  or  as  authorized  by  subdivision  four of section eight hundred
sixty-seven OF THIS CHAPTER unless the board of parole  determines  that
there  is  a reasonable probability that, if such inmate is released, he
OR SHE will not live and remain at liberty without violating the law and
that his OR HER release is not compatible with the welfare  of  society.
Any  action by the commissioner pursuant to this section shall be deemed
a judicial function and shall not be reviewable if  done  in  accordance
with law.
  NOTWITHSTANDING THE OPENING PARAGRAPH OF THIS SECTION, A PERSON WHO IS
ELIGIBLE  FOR  MERIT  TIME  UNDER  SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF
SUBDIVISION ONE OF SECTION EIGHT HUNDRED THREE OF THIS ARTICLE  WHO  HAS
BEEN  ISSUED  A  CERTIFICATE  OF  EARNED  ELIGIBILITY  AND  IS SERVING A
SENTENCE WITH A MINIMUM TERM OF MORE THAN SIX  YEARS  SHALL  BE  GRANTED
PAROLE  RELEASE  AT THE EXPIRATION OF HIS OR HER MINIMUM TERM UNLESS THE
BOARD OF PAROLE DETERMINES THAT THERE IS A REASONABLE PROBABILITY  THAT,

S. 3438--B                          6

IF  SUCH  PERSON  IS  RELEASED,  HE  OR SHE WOULD NOT LIVE AND REMAIN AT
LIBERTY WITHOUT VIOLATING THE LAW AND THAT HIS OR  HER  RELEASE  IS  NOT
COMPATIBLE  WITH  THE WELFARE OF SOCIETY. ANY ACTION BY THE COMMISSIONER
PURSUANT  TO  THIS SECTION SHALL BE DEEMED A JUDICIAL FUNCTION AND SHALL
NOT BE REVIEWABLE IF DONE IN ACCORDANCE WITH THE LAW.
  S 7. Section 806 of the correction law is  amended  by  adding  a  new
subdivision 8 to read as follows:
  8.  NOTWITHSTANDING  ANY  INCONSISTENT  PROVISION  OF  THIS SECTION, A
PERSON THAT IS ELIGIBLE FOR A MERIT TIME ALLOWANCE PURSUANT TO  SUBPARA-
GRAPH  (VI) OF PARAGRAPH (D) OF SUBDIVISION ONE OF SECTION EIGHT HUNDRED
THREE OF THIS ARTICLE MAY BE ENTITLED  TO  PRESUMPTIVE  RELEASE  AT  THE
EXPIRATION  OF FIVE-SIXTHS OF THE MINIMUM OR AGGREGATE MINIMUM PERIOD OF
THE INDETERMINATE TERM IMPOSED BY THE COURT.
  S 8. Subdivision 2-a of section 851 of the correction law, as added by
chapter 251 of the laws of 2002, is amended to read as follows:
  2-a. Notwithstanding subdivision two of this section, the term "eligi-
ble inmate" shall also include a person confined in an  institution  who
is  eligible  for  release  on  parole  or  who will become eligible for
release on parole or conditional release within two years, and who  [was
convicted  of a homicide offense as defined in article one hundred twen-
ty-five of the penal law or an assault offense defined  in  article  one
hundred  twenty of the penal law, and who can demonstrate to the commis-
sioner that: (a) the victim of such homicide or assault was a member  of
the  inmate's immediate family as that term is defined in section 120.40
of the penal law or had a child in  common  with  the  inmate;  (b)  the
inmate  was  subjected  to substantial physical, sexual or psychological
abuse committed by the victim of such homicide or assault; and (c)  such
abuse  was  a  substantial  factor  in causing the inmate to commit such
homicide or assault] IS ELIGIBLE FOR A MERIT TIME ALLOWANCE PURSUANT  TO
SUBPARAGRAPH  (VI)  OF PARAGRAPH (D) OF SUBDIVISION ONE OF SECTION EIGHT
HUNDRED THREE OF THIS CHAPTER.  With respect to an inmate's  claim  that
he or she was subjected to substantial physical, sexual or psychological
abuse  [committed by the victim] AND THAT THE OFFENSE WAS COMMITTED AS A
DIRECT RESULT OF SUCH ABUSE, such demonstration shall include corrobora-
tive material that may include, but is not limited  to,  witness  state-
ments,  COURT  RECORDS,  PRE-SENTENCE  REPORTS, social services records,
CITY AND STATE DEPARTMENT OF CORRECTION RECORDS, hospital  records,  law
enforcement records, DOMESTIC INCIDENT REPORTS, ORDERS OF PROTECTION and
a showing based in part on documentation prepared at or near the time of
the  commission  of  the  offense  or the prosecution thereof tending to
support the inmate's claim, OR WHEN THERE IS VERIFICATION  OF  CONSULTA-
TION WITH A LICENSED MEDICAL OR MENTAL HEALTH CARE PROVIDER, EMPLOYEE OF
A  COURT ACTING WITHIN THE SCOPE OF HIS OR HER EMPLOYMENT, MEMBER OF THE
CLERGY, ATTORNEY, SOCIAL WORKER, OR RAPE CRISIS COUNSELOR AS DEFINED  IN
PARAGRAPH  TWO  OF  SUBDIVISION (A) OF SECTION FORTY-FIVE HUNDRED TEN OF
THE CIVIL PRACTICE LAW AND RULES, OR OTHER ADVOCATE ACTING ON BEHALF  OF
AN  AGENCY THAT ASSISTS VICTIMS OF DOMESTIC VIOLENCE.  Prior to making a
determination under this subdivision, the commissioner  is  required  to
request and take into consideration the opinion of the district attorney
who  prosecuted  the  underlying  [homicide  or assault] offense and the
opinion of the sentencing court. If such opinions  are  received  within
forty-five  days  of  the request, the commissioner shall take them into
consideration.  DURING THE FORTY-FIVE DAY WAITING PERIOD, THE INMATE MAY
BE PERMITTED TO CONTINUE TO GATHER ADDITIONAL  CORROBORATIVE  MATERIALS.
If  such opinions are not so received, the commissioner may proceed with
the determination.  THE COMMISSIONER OR THE COMMISSIONER'S DESIGNEE  MAY

S. 3438--B                          7

CONSULT  WITH  THE  OFFICE  FOR  THE  PREVENTION OF DOMESTIC VIOLENCE TO
PROMULGATE RULES AND  REGULATIONS  TO  IMPLEMENT  THIS  SUBDIVISION.  TO
ASSIST  IN  THE  IMPLEMENTATION  OF THIS SUBDIVISION, THE OFFICE FOR THE
PREVENTION  OF  DOMESTIC  VIOLENCE  SHALL PROVIDE TRAINING TO DEPARTMENT
STAFF DELEGATED TO MAKE DETERMINATIONS PURSUANT TO THIS SUBDIVISION. THE
COMMISSIONER OR THE COMMISSIONER'S DESIGNEE MAY ALSO REQUEST  ASSISTANCE
FROM  THE  OFFICE  FOR  THE  PREVENTION OF DOMESTIC VIOLENCE IN MAKING A
DETERMINATION ABOUT WHETHER  AN  INDIVIDUAL  INMATE  IS  AN  APPROPRIATE
CANDIDATE  FOR  WORK  RELEASE  PURSUANT  TO  THIS SUBDIVISION, PROVIDED,
HOWEVER, THAT THE COMMISSIONER SHALL MAKE  THE  FINAL  DETERMINATION  OF
WHETHER  TO  GRANT WORK RELEASE PURSUANT TO THIS SUBDIVISION. Any action
by the commissioner pursuant to this subdivision shall be deemed a judi-
cial function and shall not be reviewable in any court.
  S 9. The commissioner of the department of correctional services shall
present to the governor, the temporary president of the senate  and  the
speaker  of  the  assembly an annual report about the granting and with-
holding of merit time allowance pursuant to subparagraph (vi)  of  para-
graph  (d) of subdivision 1 of section 803 of the correction law and the
operation of the work release  program  as  applied  to  inmates  deemed
eligible  pursuant  to  subdivision 2-a of section 851 of the correction
law. Such report shall include, but not be limited  to,  the  number  of
inmates  who  apply for such merit time allowance, the number of inmates
approved for such merit time allowance, the number of denials of  appli-
cations for such merit time allowance, the reasons for denials of appli-
cations  for  such merit time allowance, the crime of conviction and the
sentence for each inmate granted such merit time allowance,  the  number
of inmates eligible for work release, the number of inmates granted work
release  pursuant  to  subdivision  2-a of section 851 of the correction
law, the number of denials of applications for such  work  release,  the
reasons  for denials of applications for such work release, and the role
of the office for the prevention of domestic violence in  assisting  the
department of correctional services to make determinations regarding the
granting or withholding of such merit time allowance and the eligibility
for  work  release  pursuant  to  subdivision  2-a of section 851 of the
correction law. The initial report required by  this  section  shall  be
presented  by  December  31, 2011. Thereafter, an annual report shall be
presented no later than December 31 of each year.
  S 10. This act shall take effect on  the  one  hundred  eightieth  day
after  it  shall have become a law and shall apply to persons in custody
serving an indeterminate or determinate sentence on the  effective  date
of  this  act  as  well  as  to persons sentenced to an indeterminate or
determinate sentence on  or  after  the  effective  date  of  this  act;
provided  that  the  amendments  to  paragraph  (d)  of subdivision 1 of
section 803 of the correction law made by section one of this act  shall
be  subject  to the expiration and reversion of such section pursuant to
section 74 of chapter 3 of the laws of 1995, as amended, when upon  such
date  the  provisions  of  section  two  of  this act shall take effect;
provided further that the amendments to subdivision 3 of section 803  of
the correction law made by section three of this act shall be subject to
the  expiration  and reversion of such section pursuant to section 74 of
chapter 3 of the laws of 1995, as  amended,  when  upon  such  date  the
provisions  of section four of this act shall take effect; and provided,
further, that the amendments to sections 806 and 851 of  the  correction
law  made  by  sections seven and eight of this act shall not affect the
expiration or repeal of such sections and  shall  expire  or  be  deemed
repealed  therewith;  and  provided,  further,  that  the  amendments to

S. 3438--B                          8

section 805 of the correction law made by section five of this act shall
be subject to the expiration and reversion of such section  pursuant  to
chapter  261  of  the laws of 1987 and chapter 3 of the laws of 1995, as
amended,  when  upon such date the provisions of section six of this act
shall take effect.

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Senate Bill S3438

Sponsored By

Archive: Last Bill Status Via A4516 - On Floor Calendar

Mar 22, 2010 - Crime Victims, Crime And Correction Committee Vote

Crime Victims, Crime And Correction Committee Vote: Mar 22, 2010

Apr 13, 2010 - Codes Committee Vote

Codes Committee Vote: Apr 13, 2010

Bill Amendments

2009-S3438 - Details

2009-S3438 - Summary

2009-S3438 - Sponsor Memo

2009-S3438 - Bill Text download pdf

co-Sponsors

2009-S3438A - Details

2009-S3438A - Summary

2009-S3438A - Sponsor Memo

2009-S3438A - Bill Text download pdf

co-Sponsors

2009-S3438B (ACTIVE) - Details

2009-S3438B (ACTIVE) - Summary

2009-S3438B (ACTIVE) - Sponsor Memo

2009-S3438B (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S3438

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Sponsored By

Velmanette Montgomery

Archive: Last Bill Status Via A4516 - On Floor Calendar

Bill Amendments

2009-S3438 - Details

2009-S3438 - Summary

2009-S3438 - Sponsor Memo

2009-S3438 - Bill Text download pdf

co-Sponsors

Ruth Hassell-Thompson

Liz Krueger

Kevin S. Parker

2009-S3438A - Details

2009-S3438A - Summary

2009-S3438A - Sponsor Memo

2009-S3438A - Bill Text download pdf

co-Sponsors

Ruth Hassell-Thompson

Liz Krueger

Kevin S. Parker

2009-S3438B (ACTIVE) - Details

2009-S3438B (ACTIVE) - Summary

2009-S3438B (ACTIVE) - Sponsor Memo

2009-S3438B (ACTIVE) - Bill Text download pdf

Comments