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

                                  4198

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            February 1, 2013
                               ___________

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

AN ACT to amend the correction law, chapter 738  of  the  laws  of  2004
  amending  the  correction  law  and  other laws relating to controlled
  substances and indeterminate sentences, the executive law, in relation
  to merit time, and to repeal  section  803-b  of  the  correction  law
  relating to limited credit time allowances

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

  Section 1. Subparagraphs (i), (ii) and (iv) of paragraph (d) of subdi-
vision 1 of section 803 of the correction law, as added by section 7  of
chapter 738 of the laws of 2004, are amended to read as follows:
  (i)  Except  as provided in subparagraph (ii) of this paragraph, every
person under the custody of the department or confined in a facility  in
the  department  of  mental hygiene serving an indeterminate sentence of
imprisonment with a minimum period of one year or more or a  determinate
sentence  of  imprisonment  of  one  year  or  more [imposed pursuant to
section 70.70 or 70.71 of the penal law,] may earn a merit  time  allow-
ance.
  (ii)  Such  merit  time allowance shall not be available to any person
serving [an indeterminate] A 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, vehicu-
lar manslaughter in the first degree,  criminally  negligent  homicide,]
IMPOSED  FOR  MURDER IN THE FIRST DEGREE AS DEFINED IN SECTION 125.27 OF
THE PENAL LAW, 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] AN ACT OF  TERRORISM  AS  DEFINED  IN
ARTICLE  FOUR  HUNDRED NINETY OF THE PENAL LAW, aggravated harassment of

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03910-01-3
              

A. 4198                             2

an employee by an inmate, OR AN ATTEMPT OR CONSPIRACY TO COMMIT ANY SUCH
OFFENSE.
  (iv)  Such merit time allowance may be granted when an inmate success-
fully participates in the work and treatment program  assigned  pursuant
to  section  eight  hundred  five  of  this article and when such inmate
[obtains a] ACHIEVES ONE OF THE FOLLOWING:   (1) COMPLETES  HIS  OR  HER
general  equivalency  diploma,  HIS  OR  HER EDUCATIONAL REQUIREMENTS AS
DETERMINED BY THE  DEPARTMENT  OR  SATISFACTORILY  COMPLETES  COURSEWORK
SPONSORED  BY  AN INSTITUTION OF HIGHER LEARNING REPRESENTING A SEMESTER
OF ACADEMIC TRAINING; (2)  COMPLETES  an  alcohol  and  substance  abuse
treatment  [certificate,  a  vocational  trade  certificate following at
least six months of vocational  programming  or  performs]  PROGRAM,  OR
COMPLETES  A COMPARABLE PROGRAM OF A DIFFERENT TYPE AS DETERMINED BY THE
DEPARTMENT, INCLUDING, BUT NOT  LIMITED  TO,  ANGER  MANAGEMENT,  FAMILY
VIOLENCE, OR PARENTING; (3) COMPLETES A VOCATIONAL TRAINING PROGRAM OR A
COMPARABLE  AND EQUIVALENT TRAINING PROGRAM AS DETERMINED BY THE DEPART-
MENT; (4) PERFORMS SATISFACTORILY FOR AT LEAST SIX MONTHS IN  A  SKILLED
JOB ASSIGNMENT, INCLUDING BUT NOT LIMITED TO, INMATE PROGRAM AIDE (IPA),
LAW  LIBRARY  CLERK, MEDICAL/INFIRMARY AIDE, CHILDREN'S CENTER AIDE, AND
FOOD SERVICE WORKER; OR (5) COMPLETES at least  four  hundred  hours  of
service as part of a community work crew.
  Such  allowance shall be withheld for any serious disciplinary infrac-
tion or upon a judicial determination that the person, while an  inmate,
commenced  or  continued  a  civil  action, proceeding or claim that was
found to be frivolous as defined in subdivision  (c)  of  section  eight
thousand  three  hundred three-a of the civil practice law and rules, or
an order of a federal court pursuant to rule 11 of the federal rules  of
civil  procedure  imposing sanctions in an action commenced by a person,
while an inmate, against a state agency, officer or employee.
  S 2. Subparagraphs (i), (ii) and (iv) 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, are amended to read as follows:
  (i) Except as provided in subparagraph (ii) of this  paragraph,  every
person  under the custody of the department or confined in a facility in
the department of mental hygiene serving an  indeterminate  sentence  of
imprisonment  with a minimum period of one year or more or a determinate
sentence of imprisonment of  one  year  or  more  [imposed  pursuant  to
section  70.70  or 70.71 of the penal law,] may earn a merit time allow-
ance.
  (ii) Such merit time allowance shall not be available  to  any  person
serving  [an  indeterminate]  A  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,  vehicu-
lar  manslaughter  in  the first degree, criminally negligent homicide,]
IMPOSED FOR MURDER IN THE FIRST DEGREE AS DEFINED IN SECTION  125.27  OF
THE  PENAL  LAW, 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] AN ACT OF TERRORISM AS DEFINED IN
ARTICLE FOUR HUNDRED NINETY OF THE PENAL LAW, aggravated  harassment  of
an employee by an inmate, OR AN ATTEMPT OR CONSPIRACY TO COMMIT ANY SUCH
OFFENSE.
  (iv)  Such merit time allowance may be granted when an inmate success-
fully participates in the work and treatment program  assigned  pursuant
to  section  eight  hundred  five  of  this article and when such inmate

A. 4198                             3

[obtains a] ACHIEVES ONE OF THE FOLLOWING:  (1)  COMPLETES  HIS  OR  HER
general  equivalency  diploma,  HIS  OR  HER EDUCATIONAL REQUIREMENTS AS
DETERMINED BY THE  DEPARTMENT  OR  SATISFACTORILY  COMPLETES  COURSEWORK
SPONSORED  BY  AN INSTITUTION OF HIGHER LEARNING REPRESENTING A SEMESTER
OF ACADEMIC TRAINING; (2)  COMPLETES  an  alcohol  and  substance  abuse
treatment  [certificate,  a  vocational  trade  certificate following at
least six months of vocational  programming  or  performs]  PROGRAM,  OR
COMPLETES  A COMPARABLE PROGRAM OF A DIFFERENT TYPE AS DETERMINED BY THE
DEPARTMENT, INCLUDING, BUT NOT  LIMITED  TO,  ANGER  MANAGEMENT,  FAMILY
VIOLENCE, OR PARENTING; (3) COMPLETES A VOCATIONAL TRAINING PROGRAM OR A
COMPARABLE  AND EQUIVALENT TRAINING PROGRAM AS DETERMINED BY THE DEPART-
MENT; (4) PERFORMS SATISFACTORILY FOR AT LEAST SIX MONTHS IN  A  SKILLED
JOB ASSIGNMENT, INCLUDING BUT NOT LIMITED TO, INMATE PROGRAM AIDE (IPA),
LAW  LIBRARY  CLERK, MEDICAL/INFIRMARY AIDE, CHILDREN'S CENTER AIDE, AND
FOOD SERVICE WORKER; OR (5) COMPLETES at least  four  hundred  hours  of
service as part of a community work crew.
  Such  allowance shall be withheld for any serious disciplinary infrac-
tion or upon a judicial determination that the person, while an  inmate,
commenced  or  continued  a  civil  action, proceeding or claim that was
found to be frivolous as defined in subdivision  (c)  of  section  eight
thousand  three  hundred three-a of the civil practice law and rules, or
an order of a federal court pursuant to rule 11 of the federal rules  of
civil  procedure  imposing sanctions in an action commenced by a person,
while an inmate, against a state agency, officer or employee.
  S 3. Subparagraph (v) 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 to read as follows:
  (v) The provisions of this paragraph shall apply to persons in custody
serving  an  indeterminate  sentence on the effective date of this para-
graph as well as to persons sentenced to an  indeterminate  sentence  on
and  after  the  effective date of this paragraph and prior to September
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.
  S 4. Subparagraph (v) 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 to read as follows:
  (v) The provisions of this paragraph shall apply to persons in custody
serving  an  indeterminate  sentence on the effective date of this para-
graph as well as to persons sentenced to an  indeterminate  sentence  on
and  after  the  effective date of this paragraph and prior to September
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.
  S 5. Paragraph (g) of subdivision 2-a of section 803 of the correction
law, as added by section 9 of chapter  738  of  the  laws  of  2004,  is
amended to read as follows:
  (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

A. 4198                             4

defined in article two hundred twenty or two hundred twenty-one  of  the
penal law.
  S 6. Paragraph (g) of subdivision 2-a of section 803 of the correction
law,  as  added  by  section  11  of chapter 738 of the laws of 2004, is
amended to read as follows:
  (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.
  S 7. Section 803-b of the correction law is REPEALED.
  S 8. Subdivision (c-1) of section 41 of chapter 738  of  the  laws  of
2004  amending  the correction law and other laws relating to controlled
substances and indeterminate sentences is amended to read as follows:
  (c-1) the provisions of sections seven, eight, nine, ten and ten-a  of
this  act,  and subdivision 2-a of section 803 of the correction law, as
added by section eleven of this act shall apply to  persons  in  custody
serving  an  indeterminate  sentence  on  the  effective  date  of  such
provisions as well as to persons sentenced to an indeterminate  sentence
on  and after the effective date of such provisions and prior to Septem-
ber 1, 2005 and to persons sentenced to a determinate sentence [prior to
September 1, 2011] for a felony as defined in article 220 or 221 of  the
penal law;
  S  9. Clause (C) of subparagraph (i) of paragraph (e) of subdivision 1
of section 632-a of the executive law, as amended by section 24 of  part
A-1 of chapter 56 of the laws of 2010, is amended to read as follows:
  (C)  [an  offense for which a merit time allowance may not be received
against the sentence pursuant to paragraph (d)  of  subdivision  one  of
section  eight  hundred  three  of  the  correction  law]  AN A-I FELONY
OFFENSE, OTHER THAN AN A-I FELONY OFFENSE DEFINED IN ARTICLE TWO HUNDRED
TWENTY 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, AN OFFENSE DEFINED  IN  ARTICLE
TWO  HUNDRED  SIXTY-THREE  OF THE PENAL LAW, AGGRAVATED HARASSMENT OF AN
EMPLOYEE BY AN INMATE;
  S 10. This act shall take effect on the ninetieth day after  it  shall
have  become a law and shall apply to: (i) persons in custody serving an
indeterminate or determinate sentence  or  sentences  on  the  effective
date; (ii) persons sentenced to an indeterminate or determinate sentence
or  sentences on or after the effective date; and (iii) persons who have
not completed service of an indeterminate  or  determinate  sentence  or
sentences  imposed  prior to the effective date; provided, however, that
the amendments to section 803 of the correction  law  made  by  sections
one,  three, and five 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 sections two, four and six of this act shall take effect.