S T A T E   O F   N E W   Y O R K
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                                  7939

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                              May 25, 2011
                               ___________

Introduced  by M. of A. AUBRY -- read once and referred to the Committee
  on Correction

AN ACT to amend the executive law, in relation to modifying  the  proce-
  dure  for  interviews  of  parole  applicants and to the disclosure of
  parole applicant records

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

  Section  1.  Paragraph  (a)  of  subdivision 2 of section 259-i of the
executive law, as amended by section 38-f-1 of subpart A of  part  C  of
chapter 62 of the laws of 2011, is amended to read as follows:
  (a)  (i) Except as provided in subparagraph (ii) of this paragraph, at
least [one month] THREE MONTHS prior to the date on which [an inmate]  A
PAROLE  APPLICANT  may be paroled pursuant to subdivision one of section
70.40 of the penal law, a member or members as determined by  the  rules
of  the  board shall personally interview such [inmate] PAROLE APPLICANT
and determine whether he OR SHE should be paroled in accordance with the
[guidelines] PROCEDURES adopted pursuant to subdivision four of  section
two  hundred  fifty-nine-c  of  this article.   THE INTERVIEW SHALL TAKE
PLACE WITH ALL PARTIES PRESENT IN THE SAME ROOM. THE INTERVIEW SHALL  BE
RECORDED  AUDIO-VISUALLY  AND  THIS RECORDING SHALL BE MADE AVAILABLE TO
THE BOARD AND THE PAROLE APPLICANT OR THE PAROLE  APPLICANT'S  REPRESEN-
TATIVE  ONLY.  AT  LEAST  ONE  MONTH  PRIOR TO THE PAROLE HEARING PAROLE
APPLICANTS SHALL BE PROVIDED THE OPPORTUNITY  TO  REVIEW  ALL  DOCUMENTS
CONTAINED  IN THEIR PAROLE FILE OR THAT OTHERWISE WILL BE MADE AVAILABLE
FOR THE BOARD'S DISCRETIONARY RELEASE CONSIDERATION. NO DOCUMENTS  SHALL
BE  CONSIDERED  CONFIDENTIAL  EXCEPT  AS PROVIDED IN SUBPARAGRAPH (I) OF
PARAGRAPH (C) OF THIS SUBDIVISION. RECORDS CONCERNING OR RELATING TO THE
MENTAL HEALTH EXAMINATION OR TREATMENT OF THE PAROLE APPLICANT SHALL  BE
DISCLOSED  UNLESS,  IN  ACCORDANCE WITH THE STANDARDS AND PROCEDURES SET
FORTH IN SECTION 33.16 OF THE MENTAL HYGIENE LAW, IT IS DETERMINED BY  A
MENTAL  HEALTH  PRACTITIONER  THAT  SUCH  DISCLOSURE  CAN  REASONABLY BE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11519-01-1
              

A. 7939                             2

EXPECTED TO CAUSE SUBSTANTIAL AND IDENTIFIABLE HARM TO THE PAROLE APPLI-
CANT OR OTHERS AND THAT THIS HARM WOULD OUTWEIGH THE PAROLE  APPLICANT'S
RIGHT  OF  ACCESS  TO THE RECORD. AT LEAST THIRTY DAYS BEFORE THE PAROLE
HEARING,  IF  REQUESTED  BY THE VICTIM, AS THE TERM VICTIM IS DEFINED IN
SUBDIVISION TWO OF SECTION 380.50 OF THE  CRIMINAL  PROCEDURE  LAW,  THE
FOLLOWING  INFORMATION  SHALL BE PROVIDED TO THE VICTIM, OR THE VICTIM'S
REPRESENTATIVE: INMATE STATUS REPORTS; INMATE'S PSYCHIATRIC  EVALUATION,
IF  THERE  IS  ONE AVAILABLE AND ONLY UPON  CONSENT OF THE PAROLE APPLI-
CANT; AND A COPY OF THE PAROLE APPLICANT'S "PAROLE RELEASE PLAN" IN  THE
EVENT THAT THE APPLICANT SUBMITS ONE. If parole is not granted upon such
review,  the  [inmate] BOARD WILL BE REQUIRED TO STATE IN DETAIL AND NOT
IN CONCLUSORY TERMS THE FACTORS AND  REASONS  FOR  THE  DENIAL  AND  THE
SPECIFIC  REQUIREMENTS  FOR ACTIONS TO BE TAKEN, PROGRAMS OR ACCOMPLISH-
MENTS TO BE COMPLETED, OR CHANGES IN PERFORMANCE OR CONDUCT TO BE  MADE,
OR  CORRECTIVE  ACTION  OR  ACTIONS TO BE TAKEN, IN ORDER TO QUALIFY FOR
PAROLE RELEASE. THE BOARD SHALL SPECIFY A DATE NOT MORE THAN TWENTY-FOUR
MONTHS FROM SUCH DETERMINATION FOR RECONSIDERATION. THE PAROLE APPLICANT
shall be informed in writing within two weeks of such appearance of  the
factors  and  reasons  for such denial of parole[. Such reasons shall be
given in detail and not in conclusory terms. The board shall  specify  a
date not more than twenty-four months from such determination for recon-
sideration, and the procedures to be followed upon reconsideration shall
be  the same] AND THE SPECIFIC REQUIREMENTS AND SHALL BE PROVIDED WITH A
COPY OF THE SCORED RISK AND NEEDS ASSESSMENT  INSTRUMENT  CONSIDERED  BY
THE  BOARD.   WITHIN NINETY DAYS OF THE HEARING DECISION, THE DEPARTMENT
SHALL PROVIDE TO THE PAROLE APPLICANT ACCESS TO THE PROGRAM OR PROGRAMS,
ACTIVITIES AND/OR FACILITIES NEEDED IN ORDER TO PROVIDE THE  OPPORTUNITY
TO FULFILL THE REQUIREMENTS SET FORTH BY THE BOARD. THE PAROLE APPLICANT
SHALL  BE  SCHEDULED FOR A REAPPEARANCE BEFORE THE BOARD UPON COMPLETION
OF THE SPECIFIC REQUIREMENTS AS PREVIOUSLY SET FORTH  BY  THE  BOARD  IF
SUCH  COMPLETION  OCCURS SOONER THAN THE DATE SPECIFIED BY THE BOARD. IF
THE REQUIREMENTS PREVIOUSLY SET FORTH BY THE BOARD HAVE BEEN SUCCESSFUL-
LY COMPLETED AND THE PAROLE APPLICANT'S INSTITUTIONAL  RECORD  HAS  BEEN
SATISFACTORY  DURING  THE  TIME  BETWEEN THE PREVIOUS AND CURRENT PAROLE
HEARING, RELEASE SHALL BE GRANTED.  If the [inmate] PAROLE APPLICANT  is
released,  he  OR SHE shall be given a copy of the conditions of parole.
Such conditions shall where appropriate, include a requirement that  the
parolee  comply  with  any  restitution  order, mandatory surcharge, sex
offender registration fee and DNA databank fee previously imposed  by  a
court  of competent jurisdiction that applies to the parolee. The condi-
tions shall indicate which  restitution  collection  agency  established
under subdivision eight of section 420.10 of the criminal procedure law,
shall be responsible for collection of restitution, mandatory surcharge,
sex  offender registration fees and DNA databank fees as provided for in
section 60.35 of the penal law and section eighteen hundred nine of  the
vehicle and traffic law.
  (ii)  Any  [inmate]  PAROLE APPLICANT who is scheduled for presumptive
release pursuant to section eight hundred  six  of  the  correction  law
shall  not  appear  before  the board as provided in subparagraph (i) of
this paragraph  unless  such  [inmate's]  PAROLE  APPLICANT'S  scheduled
presumptive release is forfeited, canceled, or rescinded subsequently as
provided in such law. In such event, the [inmate] PAROLE APPLICANT shall
appear before the board for release consideration as provided in subpar-
agraph (i) of this paragraph as soon thereafter as is practicable.

A. 7939                             3

  S  2. Paragraph (a) of subdivision 2 of section 259-i of the executive
law, as amended by section 38-f-2 of subpart A of part C of  chapter  62
of the laws of 2011, is amended to read as follows:
  (a)  At  least [one month] THREE MONTHS prior to the expiration of the
minimum period or periods of imprisonment fixed by the court or board, a
member or members  as  determined  by  the  rules  of  the  board  shall
personally  interview [an inmate] A PAROLE APPLICANT serving an indeter-
minate sentence and determine whether he OR SHE should be paroled at the
expiration of the minimum period  or  periods  in  accordance  with  the
procedures  adopted  pursuant to subdivision four of section two hundred
fifty-nine-c.  THE INTERVIEW SHALL TAKE PLACE WITH ALL  PARTIES  PRESENT
IN  THE  SAME  ROOM.  THE INTERVIEW SHALL BE RECORDED AUDIO-VISUALLY AND
THIS RECORDING SHALL BE MADE AVAILABLE  TO  THE  BOARD  AND  THE  PAROLE
APPLICANT  OR  THE  PAROLE APPLICANT'S REPRESENTATIVE ONLY. AT LEAST ONE
MONTH PRIOR TO THE PAROLE HEARING PAROLE APPLICANTS  SHALL  BE  PROVIDED
THE  OPPORTUNITY  TO REVIEW ALL DOCUMENTS CONTAINED IN THEIR PAROLE FILE
OR THAT OTHERWISE WILL BE MADE AVAILABLE FOR THE  BOARD'S  DISCRETIONARY
RELEASE  CONSIDERATION.  NO  DOCUMENTS  SHALL BE CONSIDERED CONFIDENTIAL
EXCEPT AS PROVIDED IN SUBPARAGRAPH (I) OF PARAGRAPH (C) OF THIS SUBDIVI-
SION.  RECORDS CONCERNING OR RELATING TO THE MENTAL  HEALTH  EXAMINATION
OR  TREATMENT  OF  THE  PAROLE  APPLICANT  SHALL BE DISCLOSED UNLESS, IN
ACCORDANCE WITH THE STANDARDS AND PROCEDURES SET FORTH IN SECTION  33.16
OF  THE  MENTAL HYGIENE LAW, IT IS DETERMINED BY A MENTAL HEALTH PRACTI-
TIONER THAT SUCH DISCLOSURE CAN REASONABLY BE EXPECTED TO CAUSE SUBSTAN-
TIAL AND IDENTIFIABLE HARM TO THE PAROLE APPLICANT OR  OTHERS  AND  THAT
THIS  HARM  WOULD OUTWEIGH THE PAROLE APPLICANT'S RIGHT OF ACCESS TO THE
RECORD. AT LEAST THIRTY DAYS BEFORE THE PAROLE HEARING, IF REQUESTED  BY
THE  VICTIM, AS THE TERM VICTIM IS DEFINED IN SUBDIVISION TWO OF SECTION
380.50 OF THE CRIMINAL PROCEDURE LAW, THE FOLLOWING INFORMATION SHALL BE
PROVIDED TO THE VICTIM, OR THE VICTIM'S  REPRESENTATIVE:  INMATE  STATUS
REPORTS;  INMATE'S PSYCHIATRIC EVALUATION, IF THERE IS ONE AVAILABLE AND
ONLY UPON CONSENT OF THE PAROLE APPLICANT; AND  A  COPY  OF  THE  PAROLE
APPLICANT'S  "PAROLE  RELEASE  PLAN"  IN  THE  EVENT  THAT THE APPLICANT
SUBMITS ONE. If parole is not granted upon  such  review,  the  [inmate]
BOARD  WILL  BE  REQUIRED TO STATE IN DETAIL AND NOT IN CONCLUSORY TERMS
THE FACTORS AND REASONS FOR THE DENIAL AND THE SPECIFIC REQUIREMENTS FOR
ACTIONS TO BE TAKEN, PROGRAMS OR ACCOMPLISHMENTS  TO  BE  COMPLETED,  OR
CHANGES  IN  PERFORMANCE  OR CONDUCT TO BE MADE, OR CORRECTIVE ACTION OR
ACTIONS TO BE TAKEN, IN ORDER TO QUALIFY FOR PAROLE RELEASE.  THE  BOARD
SHALL SPECIFY A DATE NOT MORE THAN TWENTY-FOUR MONTHS FROM SUCH DETERMI-
NATION  FOR  RECONSIDERATION.  THE PAROLE APPLICANT shall be informed in
writing within two weeks of such appearance of the factors  and  reasons
for  such  denial  of parole[. Such reasons shall be given in detail and
not in conclusory terms. The board shall specify a date  not  more  than
twenty-four  months from such determination for reconsideration, and the
procedures to be followed upon reconsideration shall be  the  same]  AND
THE  SPECIFIC  REQUIREMENTS  AND  SHALL  BE  PROVIDED WITH A COPY OF THE
SCORED RISK AND NEEDS ASSESSMENT INSTRUMENT  CONSIDERED  BY  THE  BOARD.
WITHIN NINETY DAYS OF THE HEARING DECISION, THE DEPARTMENT SHALL PROVIDE
TO  THE  PAROLE  APPLICANT ACCESS TO THE PROGRAM OR PROGRAMS, ACTIVITIES
AND/OR FACILITIES NEEDED IN ORDER TO PROVIDE THE OPPORTUNITY TO  FULFILL
THE  REQUIREMENTS  SET FORTH BY THE BOARD. THE PAROLE APPLICANT SHALL BE
SCHEDULED FOR A REAPPEARANCE BEFORE THE BOARD  UPON  COMPLETION  OF  THE
SPECIFIC  REQUIREMENTS  AS  PREVIOUSLY  SET  FORTH  BY THE BOARD IF SUCH
COMPLETION OCCURS SOONER THAN THE DATE SPECIFIED BY THE  BOARD.  IF  THE
REQUIREMENTS  PREVIOUSLY  SET  FORTH BY THE BOARD HAVE BEEN SUCCESSFULLY

A. 7939                             4

COMPLETED AND THE  PAROLE  APPLICANT'S  INSTITUTIONAL  RECORD  HAS  BEEN
SATISFACTORY  DURING  THE  TIME  BETWEEN THE PREVIOUS AND CURRENT PAROLE
HEARING, RELEASE SHALL BE GRANTED.  If the [inmate] PAROLE APPLICANT  is
released,  he  OR SHE shall be given a copy of the conditions of parole.
Such conditions shall where appropriate, include a requirement that  the
parolee comply with any restitution order and mandatory surcharge previ-
ously  imposed  by a court of competent jurisdiction that applies to the
parolee. The conditions  shall  indicate  which  restitution  collection
agency  established  under  subdivision  eight  of section 420.10 of the
criminal procedure law, shall be responsible for collection of  restitu-
tion  and  mandatory  surcharge  as provided for in section 60.35 of the
penal law and section eighteen hundred nine of the vehicle  and  traffic
law.
  S  3. Paragraph (c) of subdivision 2 of section 259-i of the executive
law, as separately amended by chapters 40 and 126 of the  laws  of  1999
and subparagraph (A) as amended by section 38-f-1 of subpart A of part C
of chapter 62 of the laws of 2011, is amended to read as follows:
  (c)  [(A)]  (I) Discretionary release on parole shall [not] be granted
[merely as a reward] for good conduct [or] AND efficient performance  of
duties  while  confined  [but after considering if there is a reasonable
probability], AND FOR PREPAREDNESS FOR REENTRY  AND  REINTEGRATION  INTO
SOCIETY,  THEREBY PROVIDING A REASONABLE BASIS TO CONCLUDE that, if such
[inmate] PERSON is released, he OR SHE will live and remain  at  liberty
without  violating the law, and THEREFORE that his OR HER release is not
incompatible with the welfare of society [and will not so deprecate  the
seriousness of his crime as to undermine respect for law]. In making the
parole  release decision, the procedures adopted pursuant to subdivision
four of section two hundred fifty-nine-c of this article  shall  require
that  the [following be considered] DECISION BE BASED UPON THE FOLLOWING
CONSIDERATIONS: [(i) the institutional record  including  program  goals
and accomplishments, academic achievements, vocational education, train-
ing  or  work  assignments,  therapy  and  interactions  with  staff and
inmates] (A) PREPAREDNESS FOR REENTRY AND REINTEGRATION AS EVIDENCED  BY
THE  APPLICANT'S  INSTITUTIONAL  RECORD  PERTAINING TO PROGRAM GOALS AND
ACCOMPLISHMENTS AS STATED IN THE FACILITY PERFORMANCE REPORTS,  ACADEMIC
ACHIEVEMENTS, VOCATIONAL EDUCATION, TRAINING OR WORK ASSIGNMENTS, THERA-
PY  AND  INTERACTIONS  WITH STAFF AND OTHER SENTENCED PERSONS, AND OTHER
INDICATIONS OF PRO-SOCIAL ACTIVITY, CHANGE  AND  TRANSFORMATION;  [(ii)]
(B)  performance,  if  any,  as  a  participant  in  a temporary release
program;  [(iii)]  (C)  release  plans  including  community  resources,
employment, education and training and support services available to the
[inmate]  PAROLE  APPLICANT;  [(iv)] (D) any deportation order issued by
the federal government against the [inmate] PAROLE  APPLICANT  while  in
the  custody of the department and any recommendation regarding deporta-
tion made by the commissioner of the department pursuant to section  one
hundred  forty-seven  of  the  correction  law; [(v)] (E) any statement,
WHETHER SUPPORTIVE OR CRITICAL, made to the board by the crime victim or
the victim's representative, where the crime victim is  deceased  or  is
mentally or physically incapacitated, TO ASSIST THE BOARD IN DETERMINING
WHETHER  AT  THIS  TIME  THERE  IS  REASONABLE CAUSE TO BELIEVE THAT THE
RELEASE OF THE PAROLE APPLICANT WOULD CREATE A  PRESENT  DANGER  TO  THE
VICTIM  OR  THE  VICTIM'S  REPRESENTATIVE,  OR  THE EXTENT OF THE PAROLE
APPLICANT'S PREPAREDNESS FOR REENTRY AND REINTEGRATION AS SET  FORTH  IN
CLAUSE  (A)  OF THIS SUBPARAGRAPH; [(vi)] (F) the length of the determi-
nate sentence to which the  inmate  would  be  subject  had  he  or  she
received  a  sentence  pursuant to section 70.70 or section 70.71 of the

A. 7939                             5

penal law for a felony defined in article two hundred twenty or  article
two  hundred  twenty-one of the penal law; [(vii) the seriousness of the
offense with due consideration  to  the  type  of  sentence,  length  of
sentence  and  recommendations  of  the  sentencing  court, the district
attorney, the attorney for the inmate, the pre-sentence probation report
as well as consideration of any mitigating and aggravating factors,  and
activities following arrest prior to confinement; and (viii) prior crim-
inal record, including the nature and pattern of offenses, adjustment to
any  previous probation or parole supervision and institutional confine-
ment]   (G)   PARTICIPATION   AND   PERFORMANCE,   IF    ANY,    IN    A
RECONCILIATION/RESTORATIVE  JUSTICE-TYPE  CONFERENCE  WITH THE VICTIM OR
VICTIM'S REPRESENTATIVES; (H) THE PROGRESS MADE TOWARDS  THE  COMPLETION
OF  THE  SPECIFIC REQUIREMENTS PREVIOUSLY SET FORTH BY THE BOARD FOR THE
PAROLE APPLICANT, IN THE CASE OF A REAPPEARANCE; AND  (I)  THE  PROGRESS
MADE  TOWARDS ACHIEVING THE PROGRAMMING AND TREATMENT NEEDS DEVELOPED IN
THE TRANSITIONAL ACCOUNTABILITY PLAN. The board shall provide toll  free
telephone  access  for  crime  victims. In the case of an oral statement
made in accordance with subdivision one of section 440.50 of the  crimi-
nal  procedure  law,  the  parole  board  member shall present a written
report of the statement to the parole board. A crime victim's  represen-
tative  shall  mean  [the  crime  victim's closest surviving relative] A
MEMBER OF THE FAMILY OR DOMESTIC  PARTNER  OF  SUCH  CRIME  VICTIM,  the
committee or guardian of such person, or the legal representative of any
such  person.  Such statement submitted by the victim or victim's repre-
sentative may include information concerning threatening or intimidating
conduct toward the victim, the victim's representative, or the  victim's
family, made by the person sentenced and occurring after the sentencing.
Such  information may include, but need not be limited to, the threaten-
ing or intimidating conduct of any other person who or which is directed
by the person sentenced.
  [(B)] (II) Where a crime victim or victim's representative as  defined
in  subparagraph [(A)] (I) of this paragraph, or other person submits to
the parole board a written  statement  concerning  the  release  of  [an
inmate]  A  PAROLE  APPLICANT, the parole board shall keep that individ-
ual's name and address confidential. WITH REGARD TO ANY STATEMENT FROM A
JUDGE OR DISTRICT ATTORNEY, THE ADDRESS, IF RESIDENTIAL, SHALL  BE  KEPT
CONFIDENTIAL BY THE BOARD.
  S 4. This act shall take effect on the one hundred eightieth day after
it  shall  have  become a law; provided that the amendments to paragraph
(a) of subdivision 2 of section 259-i  of  the  executive  law  made  by
section one of this act shall be subject to the expiration and reversion
of  such paragraph as provided by 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.