S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5800
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 19, 2019
                                ___________
 
 Introduced  by  M.  of  A.  O'DONNELL,  BLAKE,  WEPRIN  -- read once and
   referred to the Committee on Correction
 
 AN ACT to amend the executive law, in relation to the use  of  risk  and
   needs principles in parole decisions
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. Subdivision 4 of section 259-c of  the  executive  law,  as
 amended by section 38-b of subpart A of part C of chapter 62 of the laws
 of 2011, is amended to read as follows:
   4. establish written procedures for its use in making parole decisions
 as  required  by law. Such written procedures shall incorporate risk and
 needs principles to measure  the  rehabilitation  of  persons  appearing
 before  the  board,  the  likelihood  of  success  of  such persons upon
 release, and [assist] SHALL BE USED BY members of  the  state  board  of
 parole  in  determining  which  inmates may be released to parole super-
 vision. SUCH PRINCIPLES SHALL PROVIDE THE BASIS  UPON  WHICH  THE  BOARD
 SHALL  DETERMINE  IF  THERE  IS  A  REASONABLE PROBABILITY THAT, IF SUCH
 INMATE IS RELEASED, HE OR SHE WILL LIVE AND REMAIN  AT  LIBERTY  WITHOUT
 VIOLATING  THE  LAW. PROCEDURES WHICH INCORPORATE RISK AND NEEDS PRINCI-
 PLES SHALL INCLUDE, BUT SHALL NOT  BE  LIMITED  TO,  A  RISK  AND  NEEDS
 ASSESSMENT  PREPARED  PURSUANT  TO  SECTION  ONE  HUNDRED  TWELVE OF THE
 CORRECTION LAW OR OTHER VALIDATED RISK AND NEEDS  ASSESSMENT  INSTRUMENT
 ADOPTED  BY THE BOARD TO DETERMINE WHETHER OR NOT AN INMATE IS LIKELY TO
 RE-OFFEND UPON RELEASE FROM INCARCERATION.  SUCH RISK AND NEEDS  ASSESS-
 MENT  SHALL COMPRISE PRESUMPTIVE EVIDENCE OF THE INMATE'S RISK OF RE-OF-
 FENSE. SHOULD THE BOARD CHOOSE TO OVERRIDE SUCH RISK AND  NEEDS  ASSESS-
 MENT  IN  DECIDING  WHETHER  OR  NOT  AN  INMATE WILL LIVE AND REMAIN AT
 LIBERTY WITHOUT VIOLATING THE LAW, ITS DECISION MUST PROVIDE A DETAILED,
 INDIVIDUALIZED AND NONCONCLUSORY STATEMENT AS TO ITS REASONS FOR DEPART-
 ING FROM THE RISK AND NEEDS ASSESSMENT FINDINGS WHICH SHALL  BE  SUBJECT
 TO  JUDICIAL REVIEW. SUCH OVERRIDE DECISION SHALL NOT BE BASED SOLELY ON
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD03548-01-9

 A. 5800                             2
 
 INFORMATION RELATING TO THE INSTANT OFFENSE  AND/OR  THE  PRE-SENTENCING
 REPORT FOR SUCH OFFENSE. PURSUANT TO SUBDIVISION ELEVEN OF THIS SECTION,
 THE  BOARD  SHALL AMEND THE RULES AND REGULATIONS FOR THE CONDUCT OF ITS
 WORK TO REFLECT THE PROCEDURES ESTABLISHED BY THIS SUBDIVISION;
   §  2. Section 259-e of the executive law, as amended by chapter 473 of
 the laws of 2016, is amended to read as follows:
   § 259-e.  Institutional  parole  services.  1.  The  department  shall
 provide institutional parole services. Such services shall include prep-
 aration  of  RISK AND NEEDS ASSESSMENTS, reports and other data required
 by the state board of parole in  the  exercise  of  its  functions  with
 respect  to  release on presumptive release, parole, conditional release
 or post-release supervision of  inmates.  Additionally,  the  department
 shall determine which inmates are in need of a deaf language interpreter
 or  an  English language interpreter, and shall inform the board of such
 need within a reasonable period of time prior to an  inmate's  scheduled
 appearance  before  the  board.  Employees of the department who collect
 data, interview inmates and prepare  reports  for  the  state  board  of
 parole  in  institutions  under the jurisdiction of the department shall
 work under the direct supervision of  the  deputy  commissioner  of  the
 department  in charge of program services. Data and reports submitted to
 the board shall address the statutory factors to be  considered  by  the
 board  pursuant to the relevant provisions of section two hundred fifty-
 nine-i of this article.
   2. TWO MONTHS PRIOR TO A PAROLE BOARD APPEARANCE, AN INMATE  SHALL  BE
 PERMITTED  TO  REVIEW  HIS OR HER RISK AND NEEDS ASSESSMENT, REPORTS AND
 ANY OTHER NON-CONFIDENTIAL DOCUMENTS TO BE GIVEN TO THE BOARD  WITH  THE
 DEPARTMENT  EMPLOYEE CHARGED WITH PREPARING SUCH ASSESSMENT, REPORTS AND
 DOCUMENTS, AND MAY ASK FOR  ANY  SUCH  ASSESSMENT,  REPORT  OR  DOCUMENT
 PREPARED  BY  THE  DEPARTMENT  TO  BE  CORRECTED  IF IT CONTAINS FACTUAL
 MISTAKES OR OTHER ERRORS. THE DEPARTMENT SHALL  IMMEDIATELY  REVIEW  THE
 INMATE'S  RECORDS  AND  ANY  EVIDENCE OFFERED IN SUPPORT OF THE INMATE'S
 CONTENTION THAT THERE IS A FACTUAL MISTAKE OR OTHER ERROR IN HIS OR  HER
 RECORDS.    UPON  CONFIRMATION THAT SUCH MISTAKE OR ERROR HAS BEEN MADE,
 THE DEPARTMENT SHALL IMMEDIATELY CORRECT SUCH MISTAKE OR ERROR PRIOR  TO
 SUBMITTING  SUCH  ASSESSMENT,  RECORD  OR  DOCUMENT TO THE BOARD. IF THE
 DEPARTMENT DECIDES NOT TO CORRECT  AN  ALLEGED  MISTAKE  OR  ERROR,  THE
 INMATE  SHALL  BE  NOTIFIED OF HIS OR HER RIGHT TO SUBMIT EVIDENCE ABOUT
 ANY UNCORRECTED MISTAKE OR UNCORRECTED ERROR TO THE BOARD AND MAY APPEAL
 THE DECISION WITHIN FIFTEEN DAYS OF THE  DEPARTMENT'S  DECISION  NOT  TO
 CORRECT  THE  MISTAKE  OR  ERROR. THE COMMISSIONER SHALL DECIDE ANY SUCH
 APPEAL WITHIN THIRTY DAYS OF RECEIPT OF THE APPEAL, BUT  NO  LATER  THAN
 TWO  WEEKS  BEFORE  AN  INMATE'S  SCHEDULED APPEARANCE BEFORE THE PAROLE
 BOARD.
   3. IF A SUBSTANTIAL MISTAKE OR ERROR EXISTS  IN  THE  RISK  AND  NEEDS
 ASSESSMENT  OR  IN  OTHER REPORTS OR DOCUMENTS PROVIDED TO THE BOARD FOR
 USE AT A PAROLE INTERVIEW AND THE INMATE IS SUBSEQUENTLY DENIED  PAROLE,
 THE  INMATE  SHALL BE GIVEN A DE NOVO PAROLE INTERVIEW WITHIN TWO MONTHS
 OF THE DISCOVERY OF SUCH MISTAKE OR  ERROR.  A  SUBSTANTIAL  MISTAKE  OR
 ERROR  FOR THE PURPOSES OF THIS SUBDIVISION IS ANY MISTAKE OR ERROR THAT
 WORSENS THE INMATE'S OVERALL SCORE ON HIS OR HER RISK AND NEEDS  ASSESS-
 MENT.
   §  3.  Subparagraph  (A)  of paragraph (c) of subdivision 2 of section
 259-i of the executive law, as amended by chapter 130  of  the  laws  of
 2016, is amended to read as follows:
   (A)  Discretionary  release on parole shall not be granted merely as a
 reward for  good  conduct  or  efficient  performance  of  duties  while

 A. 5800                             3
 
 confined  but  after  considering  if  there is a reasonable probability
 that, if such inmate is released, he OR SHE  will  live  and  remain  at
 liberty  without  violating  the law, and that his OR HER release is not
 incompatible  with  the welfare of society and will not so deprecate the
 seriousness of his OR HER crime as to  undermine  respect  for  law.  In
 making  the  parole  release  decision,  the procedures, RULES AND REGU-
 LATIONS INCORPORATING RISK AND  NEEDS  PRINCIPLES  adopted  pursuant  to
 subdivision  four  of  section  two hundred fifty-nine-c of this article
 shall require that the following be considered IF NOT ALREADY TAKEN INTO
 ACCOUNT BY THE RISK AND NEEDS ASSESSMENT: (i) the  institutional  record
 including  program  goals  and  accomplishments,  academic achievements,
 vocational education, training or work assignments, therapy  and  inter-
 actions  with  staff and inmates; (ii) performance, if any, as a partic-
 ipant in a temporary release  program;  (iii)  release  plans  including
 community  resources,  employment,  education  and  training and support
 services available to the inmate; (iv) any deportation order  issued  by
 the  federal  government  against the inmate while in the custody of the
 department and any recommendation  regarding  deportation  made  by  the
 commissioner  of  the  department pursuant to section one hundred forty-
 seven of the correction law; (v) any current or prior statement 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;
 (vi) the length of the determinate 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 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-sen-
 tence probation report as well as consideration of  any  mitigating  and
 aggravating  factors,  and activities following arrest prior to confine-
 ment; and (viii) prior criminal record, including the nature and pattern
 of offenses, adjustment to any previous probation or parole  supervision
 and  institutional  confinement. The board shall provide toll free tele-
 phone access for crime victims. In the case of an oral statement made in
 accordance with subdivision one of section 440.50 of the criminal proce-
 dure law, the parole board member shall present a written report of  the
 statement  to  the  parole  board. A crime victim's representative shall
 mean the crime victim's closest surviving  relative,  the  committee  or
 guardian of such person, or the legal representative of any such person.
 Such  statement  submitted  by the victim or victim's representative 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 threatening or
 intimidating conduct of any other person who or which is directed by the
 person sentenced. Any statement by a victim or  the  victim's  represen-
 tative  made  to  the board shall be maintained by the department in the
 file provided to the board when interviewing the inmate in consideration
 of release. A victim or victim's  representative  who  has  submitted  a
 written  request  to the department for the transcript of such interview
 shall be provided such transcript as soon as it becomes available.
   § 4. This act shall take effect immediately.