S T A T E O F N E W Y O R K
________________________________________________________________________
975
2009-2010 Regular Sessions
I N S E N A T E
January 22, 2009
___________
Introduced by Sen. KRUGER -- read twice and ordered printed, and when
printed to be committed to the Committee on Crime Victims, Crime and
Correction
AN ACT to amend the correction law and the penal law, in relation to the
minimum amount of time served of an indeterminate sentence and repeal-
ing certain provisions of the correction law and the executive law
relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraphs (a), (b) and (c) of subdivision 1 and subdivi-
sions 2 and 5 of section 803 of the correction law, paragraph (a) of
subdivision 1 and subdivisions 2 and 5 as amended and paragraphs (b) and
(c) of subdivision 1 as added by chapter 3 of the laws of 1995, are
amended to read as follows:
(a) Every person confined in an institution of the department or a
facility in the department of mental hygiene serving an indeterminate or
determinate sentence of imprisonment, except a person serving a sentence
with a maximum term of life imprisonment, may receive time allowance
against the term or maximum term of his OR HER sentence imposed by the
court. Such allowances may be granted for good behavior and efficient
and willing performance of duties assigned or progress and achievement
in an assigned treatment program, and may be withheld, forfeited or
canceled in whole or in part for bad behavior, violation of institu-
tional rules or failure to perform properly in the duties or program
assigned.
(b) A person serving an indeterminate sentence of imprisonment may
receive time allowance against the maximum term of his OR HER sentence
not to exceed [one-third] FIFTEEN PERCENT of the maximum term imposed by
the court.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06549-01-9
S. 975 2
(c) A person serving a determinate sentence of imprisonment may
receive time allowance against the term of his OR HER sentence not to
exceed one-seventh of the term imposed by the court.
2. If a person is serving more than one sentence, the authorized
allowances may be granted separately against the term or maximum term of
each sentence or, where consecutive sentences are involved, against the
aggregate maximum term. Such allowances shall be calculated as follows:
(a) A person serving two or more indeterminate sentences which run
concurrently may receive time allowance not to exceed [one-third]
FIFTEEN PERCENT of the indeterminate sentence which has the longest
unexpired time to run.
(b) A person serving two or more indeterminate sentences which run
consecutively may receive time allowance not to exceed [one-third]
FIFTEEN PERCENT of the aggregate maximum term.
(c) A person serving two or more determinate sentences which run
concurrently may receive time allowance not to exceed one-seventh of the
determinate sentence which has the longest unexpired time to run.
(d) A person serving two or more determinate sentences which run
consecutively may receive time allowance not to exceed one-seventh of
the aggregate maximum term.
(e) A person serving one or more indeterminate sentence and one or
more determinate sentence which run concurrently may receive time allow-
ance not to exceed [one-third] FIFTEEN PERCENT of the indeterminate
sentence which has the longest unexpired term to run or one-seventh of
the determinate sentence which has the longest unexpired time to run,
whichever allowance is greater.
(f) A person serving one or more indeterminate sentence and one or
more determinate sentence which run consecutively may receive time
allowance not to exceed the sum of [one-third] FIFTEEN PERCENT of the
maximum or aggregate maximum of the indeterminate sentence or sentences
and one-seventh of the term or aggregate maximum of the determinate
sentence or sentences.
5. Time allowances granted prior to any release on parole or prior to
any conditional release shall be forfeited and shall not be restored if
the paroled or conditionally released person is returned to an institu-
tion under the jurisdiction of the [state] department [of correctional
services] for violation of parole, violation of the conditions of
release or by reason of a conviction for a crime committed while on
parole or conditional release. A person who is so returned may, however,
subsequently receive time allowances against the remaining portion of
his OR HER term, maximum term or aggregate maximum term pursuant to this
section and provided such remaining portion of his OR HER term, maximum
term, or aggregate maximum term is more than one year.
S 2. Paragraph (a) of subdivision 1 and subdivisions 2, 2-a and 5 of
section 803 of the correction law, as amended by chapter 126 of the laws
of 1987, paragraph (a) of subdivision 1 as designated and subdivision
2-a as added by chapter 738 of the laws of 2004, are amended to read as
follows:
(a) Every person confined in an institution of the department or a
facility in the department of mental hygiene serving an indeterminate
sentence of imprisonment, except a person serving a sentence with a
maximum term of life imprisonment, may receive time allowance against
the maximum term or period of his OR HER sentence not to exceed in the
aggregate [one-third] FIFTEEN PERCENT of the term or period imposed by
the court. Such allowances may be granted for good behavior and effi-
cient and willing performance of duties assigned or progress and
S. 975 3
achievement in an assigned treatment program, and may be withheld,
forfeited or canceled in whole or in part for bad behavior, violation of
institutional rules or failure to perform properly in the duties or
program assigned.
2. If a person is serving more than one sentence, the authorized
allowances may be granted separately against the maximum term of each
sentence or, where consecutive sentences are involved, against the
aggregate maximum term. In no case, however, shall the total of all
allowances granted to any such person under this section exceed [one-
third] FIFTEEN PERCENT of the time he OR SHE would be required to serve,
computed without regard to this section.
2-a. If a person is serving more than one sentence, the authorized
merit time allowances may be granted against the period or aggregate
minimum period of the indeterminate sentence or sentences, or against
the term or aggregate term of the determinate sentence or sentences, or
where consecutive determinate and indeterminate sentences are involved,
against the aggregate minimum period as calculated pursuant to subpara-
graph (iv) of paragraph (a) of subdivision one of section 70.40 of the
penal law. Such allowances shall be calculated as follows:
(a) A person serving two or more indeterminate sentences which run
concurrently may receive a merit time allowance not to exceed [one-
sixth] FIFTEEN PERCENT of the minimum period of the indeterminate
sentence imposed for an offense other than an A-I felony offense defined
in article two hundred twenty of the penal law, or one-third of the
minimum period of the indeterminate sentence imposed for an A-I felony
offense defined in article two hundred twenty of the penal law, whichev-
er allowance results in the longest unexpired time to run.
(b) A person serving two or more indeterminate sentences which run
consecutively may receive a merit time allowance not to exceed the
amount of [one-third] FIFTEEN PERCENT of the minimum or aggregate mini-
mum period of the sentences imposed for an A-I felony offense defined in
article two hundred twenty of the penal law, plus [one-sixth] FIFTEEN
PERCENT of the minimum or aggregate minimum period of the sentences
imposed for an offense other than such A-I felony offense.
(c) A person serving two or more determinate sentences for an offense
defined in article two hundred twenty or two hundred twenty-one of the
penal law which run concurrently may receive a merit time allowance not
to exceed one-seventh of the term of the determinate sentence which has
the longest unexpired time to run.
(d) A person serving two or more determinate sentences for an offense
defined in article two hundred twenty or two hundred twenty-one of the
penal law which run consecutively may receive a merit time allowance not
to exceed one-seventh of the aggregate term of such determinate
sentences.
(e) A person serving one or more indeterminate sentences and one or
more determinate sentences for an offense defined in article two hundred
twenty or two hundred twenty-one of the penal law which run concurrently
may receive a merit time allowance not to exceed [one-sixth] FIFTEEN
PERCENT of the minimum period of the indeterminate sentence imposed for
an offense other than an A-I felony offense defined in article two
hundred twenty of the penal law, [one-third] FIFTEEN PERCENT of the
minimum period of the indeterminate sentence imposed for an A-I felony
offense defined in article two hundred twenty of the penal law[, or
one-seventh of the term of the determinate sentence, whichever allowance
results in the largest unexpired time to run].
S. 975 4
(f) A person serving one or more indeterminate sentences and one or
more determinate sentences which run consecutively may receive a merit
time allowance not to exceed the sum of [one-sixth] FIFTEEN PERCENT of
the minimum or aggregate minimum period of the indeterminate sentence or
sentences imposed for an offense other than an A-I felony offense
defined in article two hundred twenty of the penal law, one-third of the
minimum or aggregate minimum period of the indeterminate sentence or
sentences imposed for an A-I felony offense defined in article two
hundred twenty of the penal law and one-seventh of the term or aggregate
term of the determinate sentence or sentences.
(g) The provisions of this subdivision shall apply to persons in
custody serving an indeterminate sentence on the effective date of this
subdivision as well as to persons sentenced to an indeterminate sentence
on and after the effective date of this subdivision and prior to Septem-
ber first, two thousand five and to persons sentenced to a determinate
sentence prior to September first, two thousand eleven for a felony as
defined in article two hundred twenty or two hundred twenty-one of the
penal law.
5. Time allowances granted prior to any release on parole or prior to
any conditional release shall be forfeited and shall not be restored if
the paroled or conditionally released person is returned to an institu-
tion under the jurisdiction of the [state] department [of correctional
services] for violation of parole, violation of the conditions of
release or by reason of a conviction for a crime committed while on
parole or conditional release. A person who is so returned may, however,
subsequently receive time allowances against the remaining portion of
his OR HER maximum or aggregate maximum term or period not to exceed in
the aggregate [one-third] FIFTEEN PERCENT of such portion provided such
remaining portion of his OR HER maximum or aggregate maximum term or
period is more than one year.
S 3. Paragraph (d) of subdivision 1 of section 803 of the correction
law is REPEALED.
S 4. Clause (C) of subparagraph (i) of paragraph (e) of subdivision 1
of section 632-a of the executive law is REPEALED.
S 5. Subparagraph (i) of paragraph (a) of subdivision 1 of section
70.40 of the penal law, as amended by chapter 435 of the laws of 1997,
is amended to read as follows:
(i) A person who is serving one or more than one indeterminate
sentence of imprisonment may be paroled from the institution in which he
is confined at any time after the expiration of the minimum or the
aggregate minimum period of the sentence or sentences [or, where appli-
cable, the minimum or aggregate minimum period reduced by the merit time
allowance granted pursuant to paragraph (d) of subdivision one of
section eight hundred three of the correction law].
S 6. This act shall take effect on the thirtieth day after it shall
have become a law, provided that the amendments to paragraphs (a), (b)
and (c) of subdivision 1, and subdivisions 2 and 5 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 subdivision d of
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 subparagraph (i) of paragraph
(a) of subdivision 1 of section 70.40 of the penal law made by section
five of this act shall not affect the repeal of such subparagraph and
shall be deemed repealed therewith.