S T A T E O F N E W Y O R K
________________________________________________________________________
8961
I N A S S E M B L Y
January 10, 2012
___________
Introduced by M. of A. AUBRY -- read once and referred to the Committee
on Correction
AN ACT to amend the correction law, in relation to expanding prison work
release program eligibility and participation
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 2 of section 851 of the correction law, as
amended by chapter 60 of the laws of 1994, the opening paragraph as
amended by chapter 320 of the laws of 2006, the closing paragraph as
amended by section 42 of subpart B of part C of chapter 62 of the laws
of 2011, is amended to read as follows:
2. "Eligible inmate" means: 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] THREE years. Provided,
however, that a person under sentence for an offense defined in para-
graphs (a) and (b) of subdivision one of section 70.02 of the penal law,
where such offense involved the use or threatened use of a deadly weapon
or dangerous instrument shall not be eligible to participate in a work
release program until he or she is eligible for release on parole or who
will be eligible for release on parole or conditional release within
[eighteen] THIRTY months. Provided, further, however, that a person
under a determinate sentence as a second felony drug offender for a
class B felony offense defined in article two hundred twenty of the
penal law, who was sentenced pursuant to section 70.70 of such law,
shall not be eligible to participate in a temporary release program
until the time served under imprisonment for his or her determinate
sentence, including any jail time credited pursuant to the provisions of
article seventy of the penal law, shall be at least eighteen months. In
the case of a person serving an indeterminate sentence of imprisonment
imposed pursuant to the penal law in effect after September one, nine-
teen hundred sixty-seven, for the purposes of this article parole eligi-
bility shall be upon the expiration of the minimum period of imprison-
ment fixed by the court or where the court has not fixed any period,
after service of the minimum period fixed by the state board of parole.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD13630-02-1
A. 8961 2
[If an inmate is denied release on parole, such inmate shall not be
deemed an eligible inmate until he or she is within two years of his or
her next scheduled appearance before the state parole board.] In any
case where an inmate is denied release on parole while participating in
a temporary release program, the department shall review the status of
the inmate to determine if continued placement in the program is appro-
priate. No person convicted of any escape or absconding offense defined
in article two hundred five of the penal law shall be eligible for
temporary release. Further, no person under sentence for aggravated
harassment of an employee by an inmate as defined in section 240.32 of
the penal law for, any homicide offense defined in article one hundred
twenty-five of the penal law, for any sex offense defined in article one
hundred thirty of the penal law, FOR AN ACT OF TERRORISM AS DEFINED IN
ARTICLE FOUR HUNDRED NINETY OF THE PENAL LAW, FOR AN OFFENSE INVOLVING
THE SEXUAL PERFORMANCE OF A CHILD AS DEFINED IN ARTICLE TWO HUNDRED
SIXTY-THREE OF THE PENAL LAW, or for an offense defined in section
255.25, 255.26 or 255.27 of the penal law shall be eligible to partic-
ipate in a work release program as defined in subdivision three of this
section. Nor shall any person under sentence for any sex offense defined
in article one hundred thirty of the penal law be eligible to partic-
ipate in a community services program as defined in subdivision five of
this section. [Notwithstanding the foregoing, no person who is an other-
wise eligible inmate who is under sentence for a crime involving: (a)
infliction of serious physical injury upon another as defined in the
penal law or (b) any other offense involving the use or threatened use
of a deadly weapon may participate in a temporary release program with-
out the written approval of the commissioner.] The commissioner shall
promulgate regulations giving direction to the temporary release commit-
tee at each institution in order to aid such committees in [carrying out
this mandate] DETERMINING WHICH INMATES ARE ELIGIBLE AND APPROPRIATE TO
PARTICIPATE IN THE TEMPORARY RELEASE PROGRAMS.
The governor[, by executive order,] may NOT ISSUE OR ENFORCE ANY EXEC-
UTIVE ORDER TO exclude or limit the participation of any class of
[otherwise] eligible inmates from participation in a temporary release
program. Nothing in this paragraph shall be construed to affect [either
the validity of any executive order previously issued limiting the
participation of otherwise eligible inmates in such program or] the
authority of the commissioner OF THE DEPARTMENT OF CORRECTIONS AND
COMMUNITY SUPERVISION to impose appropriate regulations [limiting such
participation] FOR DETERMINING WHICH INMATES ARE ELIGIBLE AND APPROPRI-
ATE TO PARTICIPATE IN THE TEMPORARY RELEASE PROGRAMS. THE COMMISSIONER
SHALL PROMULGATE REGULATIONS GIVING DIRECTION TO DEPARTMENT AND TRANSI-
TIONAL SERVICES STAFF WITH REGARD TO DEVELOPING AND PROVIDING PROGRAM-
MATIC SUPPORT TO TEMPORARY RELEASE PARTICIPANTS WITH EMPHASIS ON THE
FIRST THREE MONTHS OF WORK RELEASE.
S 2. Subdivision 2 of section 851 of the correction law, as amended by
chapter 447 of the laws of 1991, the opening paragraph as amended by
chapter 252 of the laws of 2005, and the closing paragraph as amended by
section 43 of subpart B of part C of chapter 62 of the laws of 2011, is
amended to read as follows:
2. "Eligible inmate" means: 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] THREE years. Provided,
that a person under a determinate sentence as a second felony drug
offender for a class B felony offense defined in article two hundred
twenty of the penal law, who was sentenced pursuant to section 70.70 of
A. 8961 3
such law, shall not be eligible to participate in a temporary release
program until the time served under imprisonment for his or her determi-
nate sentence, including any jail time credited pursuant to the
provisions of article seventy of the penal law, shall be at least eigh-
teen months. In the case of a person serving an indeterminate sentence
of imprisonment imposed pursuant to the penal law in effect after
September one, nineteen hundred sixty-seven, for the purposes of this
article parole eligibility shall be upon the expiration of the minimum
period of imprisonment fixed by the court or where the court has not
fixed any period, after service of the minimum period fixed by the state
board of parole. [If an inmate is denied release on parole, such inmate
shall not be deemed an eligible inmate until he or she is within two
years of his or her next scheduled appearance before the state parole
board.] In any case where an inmate is denied release on parole while
participating in a temporary release program, the department shall
review the status of the inmate to determine if continued placement in
the program is appropriate. No person convicted of any escape or
absconding offense defined in article two hundred five of the penal law
shall be eligible for temporary release. FURTHER, NO PERSON UNDER
SENTENCE FOR AGGRAVATED HARASSMENT OF AN EMPLOYEE BY AN INMATE AS
DEFINED IN SECTION 240.32 OF THE PENAL LAW FOR, ANY HOMICIDE OFFENSE
DEFINED IN ARTICLE ONE HUNDRED TWENTY-FIVE OF THE PENAL LAW, FOR ANY SEX
OFFENSE DEFINED IN ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW, FOR AN
ACT OF TERRORISM AS DEFINED IN ARTICLE FOUR HUNDRED NINETY OF THE PENAL
LAW, FOR AN OFFENSE INVOLVING THE SEXUAL PERFORMANCE OF A CHILD AS
DEFINED IN ARTICLE TWO HUNDRED SIXTY-THREE OF THE PENAL LAW, OR FOR AN
OFFENSE DEFINED IN SECTION 255.25, 255.26 OR 255.27 OF THE PENAL LAW
SHALL BE ELIGIBLE TO PARTICIPATE IN A WORK RELEASE PROGRAM AS DEFINED IN
SUBDIVISION THREE OF THIS SECTION. Nor shall any person under sentence
for any sex offense defined in article one hundred thirty of the penal
law be eligible to participate in a community services program as
defined in subdivision five of this section. [Notwithstanding the fore-
going, no person who is an otherwise eligible inmate who is under
sentence for a crime involving: (a) infliction of serious physical inju-
ry upon another as defined in the penal law, (b) a sex offense involving
forcible compulsion, or (c) any other offense involving the use or
threatened use of a deadly weapon may participate in a temporary release
program without the written approval of the commissioner.] The commis-
sioner shall promulgate regulations giving direction to the temporary
release committee at each institution in order to aid such committees in
[carrying out this mandate] DETERMINING WHICH INMATES ARE ELIGIBLE AND
APPROPRIATE TO PARTICIPATE IN THE TEMPORARY RELEASE PROGRAMS.
The governor[, by executive order,] may NOT ISSUE OR ENFORCE ANY EXEC-
UTIVE ORDER TO exclude or limit the participation of any class of
[otherwise] eligible inmates from participation in a temporary release
program. Nothing in this paragraph shall be construed to affect [either
the validity of any executive order previously issued limiting the
participation of otherwise eligible inmates in such program or] the
authority of the commissioner to impose appropriate regulations [limit-
ing such participation] FOR DETERMINING WHICH INMATES ARE ELIGIBLE AND
APPROPRIATE TO PARTICIPATE IN TEMPORARY RELEASE PROGRAMS. THE COMMIS-
SIONER SHALL PROMULGATE REGULATIONS GIVING DIRECTION TO DEPARTMENT AND
TRANSITIONAL SERVICES STAFF WITH REGARD TO DEVELOPING AND PROVIDING
PROGRAMMATIC SUPPORT TO TEMPORARY RELEASE PARTICIPANTS WITH EMPHASIS ON
THE FIRST THREE MONTHS OF WORK RELEASE.
A. 8961 4
S 3. Subdivision 2 of section 851 of the correction law, as added by
chapter 472 of the laws of 1969, is amended to read as follows:
2. "Eligible inmate" means a person confined in an institution where a
work release program has been established who is eligible for release on
parole or who will become eligible for release on parole within [one
year] THREE YEARS.
S 4. 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] THREE years, and
who was convicted of a homicide offense as defined in article one
hundred twenty-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 commissioner 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. With respect to an inmate's claim that
he or she was subjected to substantial physical, sexual or psychological
abuse committed by the victim, such demonstration shall include corrobo-
rative material that may include, but is not limited to, witness state-
ments, social services records, hospital records, law enforcement
records 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. 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. If
such opinions are not so received, the commissioner may proceed with the
determination. Any action by the commissioner pursuant to this subdivi-
sion shall be deemed a judicial function and shall not be reviewable in
any court.
S 5. Subdivision 2-b of section 851 of the correction law, as added by
chapter 738 of the laws of 2004, is amended to read as follows:
2-b. When calculating in advance the date on which a person is or will
be eligible for release on parole or conditional release, for purposes
of determining eligibility for temporary release or for placement at an
alcohol and substance abuse treatment correctional annex, the commis-
sioner shall consider and include credit for all potential credits and
reductions including but not limited to merit time, ADDITIONAL MERIT
TIME and good behavior allowances. Nothing in this subdivision shall be
interpreted as precluding the consideration and inclusion of credit for
all potential credits and reductions including, but not limited to,
merit time, ADDITIONAL MERIT TIME and good behavior allowances when
calculating in advance for any other purpose the date on which a person
is or will be eligible for release on parole or conditional release.
S 6. This act shall take effect immediately, provided however, that
the amendments to subdivision 2 of section 851 of the correction law
made by section one of this act shall be subject to the expiration and
reversion of such subdivision and section pursuant to subdivision (c) of
A. 8961 5
section 46 of chapter 60 of the laws of 1994 and section 10 of chapter
339 of the laws of 1972, as amended, when upon such date the provisions
of section two of this act shall take effect; provided further, that the
amendments to subdivision 2 of section 851 of the correction law made by
section two of this act shall expire on the same date as subdivision (c)
of section 46 of chapter 60 of the laws of 1994, section 10 of chapter
339 of the laws of 1972, and section 5 of chapter 554 of the laws of
1986, as amended, expire, when upon such date the provisions of section
three of this act shall take effect; provided further that the amend-
ments to subdivisions 2-a and 2-b of section 851 of the correction law,
made by sections four and five of this act shall not affect the expira-
tion of such section and shall expire therewith.