NY State Senate Bill 2021-S2776A

Senate Bill S2776A

2021-2022 Legislative Session

Relates to failure to complete a program for time allowances due to circumstances beyond an individual's control

download bill text pdf

Archive: Last Bill Status - In Senate Committee Crime Victims, Crime And Correction Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Feb 15, 2022	print number 2776a
Feb 15, 2022	amend and recommit to crime victims, crime and correction
Jan 05, 2022	referred to crime victims, crime and correction
Jan 25, 2021	referred to crime victims, crime and correction

Bill Amendments

Original

A (Active)

2021-S2776 - Details

See Assembly Version of this Bill:: A1957
Current Committee:: Senate Crime Victims, Crime And Correction
Law Section:: Correction Law
Laws Affected:: Amd §§803, 804, 805 & 806, Cor L
Versions Introduced in Other Legislative Sessions:: 2019-2020: S8499, A10818
2023-2024: S1970, A116
2025-2026: A206

2021-S2776 - Summary

Relates to failure to complete a program for time allowances due to circumstances beyond an individual's control.

2021-S2776 - Sponsor Memo

                                
 
BILL NUMBER: S2776

SPONSOR: SEPULVEDA
 
TITLE OF BILL:

An act to amend the correction law, in relation to failure to complete a
program for time allowances due to circumstances beyond an individual's
control

 
PURPOSE:

To waive the requirement that incarcerated individuals complete certain
programs if such failure to complete is due to circumstances beyond
their control.

 
SUMMARY OF PROVISIONS:

Sections 1 and 2 amend Correction Law § 803(1)(a).

Sections 3 and 4 amend Correction Law § 803(1)(d)(iv).

Section 5 amends Correction Law § 804(1). Sections 6 and 7 amend
Correction Law § 805. Section 8 amends Correction Law § 806(5).

Section 9 provides an effective date.

 
JUSTIFICATION:

In order to be considered for early release from prison, incarcerated
people have to complete programs mandated by DOCCS. For example, a
person with a drug or alcohol problem will have to take the six-month
alcohol and substance abuse treatment program in prison. Someone with a
violent crime might have to take the anger replacement therapy program.
People who are released from prison on their merit dates go out to
community supervision, where they frequently take other mandated
programs similar to the ones they took while they were inside.

At the time this bill was written, the COVID-19 pandemic has stopped all
programs at DOCCS, because civilian staff are not being allowed in and
the prisons are on lock down. It is likely that there will be six months
with no programming at DOCCS, meaning that people who would otherwise be
released on their merit dates will be held longer until they have a
chance to complete their programs. At other times, people are not able
to take or complete programs because a teacher gets sick or retires,
because the division of budget has not approved a replacement for a
missing instructor or because there is a long waiting list for a program
like the drug treatment program.

This bill would make it clear that when people fail to complete required
programs because of circumstances beyond their control, they should
still be released from prison at their merit dates. DOCCS can simply
require them to take the missing program while on community supervision
as a requirement of such supervision. People needing drug treatment can
go to drug treatment programs in the community and their participation
in such programs can be monitored by their parole officers. Right now,
while an epidemic is raging behind bars, it makes no sense to keep
people in prison longer when they are already scheduled for release and
can safely be sent home.

 
PRIOR LEGISLATIVE HISTORY:

S.8580 of 2020, Referred to Rules

 
FISCAL IMPLICATIONS:

Will save the state money. It costs the state roughly $60,000 per year
on each incarcerated individual yet, it only costs the state about
$25,000 a year to supervise someone on parole.

 
LOCAL FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
Immediately.

2021-S2776 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2776
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 25, 2021
                                ___________
 
 Introduced by Sen. SEPULVEDA -- 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, in relation to failure to complete a
   program for time allowances due to circumstances  beyond  an  individ-
   ual's control

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1.   Paragraph (a) of subdivision 1  of  section  803  of  the
 correction law, as amended by section 37 of subpart B of part C of chap-
 ter 62 of the laws of 2011, is 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.  SUCH  ALLOWANCES  SHALL  NOT BE WITHHELD IF A PERSON FAILS TO
 COMPLETE  A  PROGRAM  BECAUSE  OF  CIRCUMSTANCES  BEYOND  SUCH  PERSON'S
 CONTROL.
   §  2.  Paragraph (a) of subdivision 1 of section 803 of the correction
 law, as amended by chapter 126 of the laws of 1987 and as designated  by
 chapter 738 of the laws of 2004, is 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD06180-01-1

 S. 2776                             2
 
 the  maximum  term or period of his OR HER sentence not to exceed in the
 aggregate one-third of the term or period 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 institutional rules
 or failure to perform properly in the duties or program  assigned.  SUCH
 ALLOWANCES SHALL NOT BE WITHHELD IF A PERSON FAILS TO COMPLETE A PROGRAM
 BECAUSE OF CIRCUMSTANCES BEYOND SUCH PERSON'S CONTROL.
   §  3.  Subparagraph  (iv) 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:
   (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 general equivalency diploma, an alcohol  and  substance  abuse
 treatment certificate, a vocational trade certificate following at least
 six  months  of vocational programming or performs 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. SUCH
 ALLOWANCE SHALL NOT BE WITHHELD IF A PERSON FAILS TO COMPLETE A  PROGRAM
 BECAUSE OF CIRCUMSTANCES BEYOND HIS OR HER CONTROL.
   §  4.  Subparagraph  (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, is amended to read as follows:
   (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 general equivalency diploma, an alcohol  and  substance  abuse
 treatment certificate, a vocational trade certificate following at least
 six  months  of vocational programming or performs 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. SUCH
 ALLOWANCE SHALL NOT BE WITHHELD IF A PERSON FAILS TO COMPLETE A  PROGRAM
 BECAUSE OF CIRCUMSTANCES BEYOND SUCH PERSON'S CONTROL.
   § 5. Subdivision 1 of section 804 of the correction law, as amended by
 chapter 145 of the laws of 1976, is amended to read as follows:
   1. Every person confined in an institution serving a definite sentence
 of  imprisonment may receive time allowances as discretionary reductions
 of the term of his OR HER sentence not to exceed in the  aggregate  one-
 third  of  the term imposed by the court. Such allowances may be granted
 for good behavior  and  efficient  and  willing  performance  of  duties

 S. 2776                             3
 
 assigned  or  progress and achievement in an assigned treatment program,
 and may be withheld, forfeited or cancelled in whole or in part for  bad
 behavior, violation of institutional rules or failure to perform proper-
 ly in the duties or program assigned. SUCH ALLOWANCES SHALL NOT BE WITH-
 HELD,  FORFEITED OR CANCELLED IN WHOLE OR IN PART FOR A PERSON'S FAILURE
 TO COMPLETE AN ASSIGNED PROGRAM DUE TO CIRCUMSTANCES BEYOND HIS  OR  HER
 CONTROL.
   §  6.    Section 805 of the correction law, as amended by section 4 of
 part E of chapter 62 of the laws of 2003, is amended to read as follows:
   § 805. Earned eligibility program. Persons committed to the custody of
 the department under an indeterminate or determinate sentence of  impri-
 sonment  shall be assigned a work and treatment program as soon as prac-
 ticable. No earlier than two months prior to the inmate's eligibility to
 be paroled pursuant to subdivision one of section  70.40  of  the  penal
 law,  the commissioner shall review the inmate's institutional record to
 determine whether he OR SHE has  complied  with  the  assigned  program.
 CREDIT FOR SUCH ASSIGNED PROGRAM SHALL NOT BE WITHHELD IF A PERSON FAILS
 TO  COMPLETE  A  PROGRAM  BECAUSE  OF CIRCUMSTANCES BEYOND SUCH PERSON'S
 CONTROL. If the commissioner determines that the inmate has successfully
 participated in the program he OR SHE may issue the inmate a certificate
 of earned eligibility. Notwithstanding any other provision  of  law,  an
 inmate  who  is  serving a sentence with a minimum term of not more than
 eight years and who has been issued a certificate of earned eligibility,
 shall be granted parole release at the expiration of his OR HER  minimum
 term  or  as  authorized  by  subdivision  four of section eight hundred
 sixty-seven of this chapter unless the board of parole  determines  that
 there  is  a reasonable probability that, if such inmate is released, he
 OR SHE will not live and remain at liberty without violating the law and
 that his OR HER release is not compatible with the welfare  of  society.
 Any  action by the commissioner pursuant to this section shall be deemed
 a judicial function and shall not be reviewable if  done  in  accordance
 with law.
   §  7.  Section 805 of the correction law, as amended by chapter 262 of
 the laws of 1987, is amended to read as follows:
   § 805. Earned eligibility program. Persons committed to the custody of
 the department under an indeterminate sentence of imprisonment shall  be
 assigned a work and treatment program as soon as practicable. No earlier
 than two months prior to the expiration of an inmate's minimum period of
 imprisonment,  the  commissioner shall review the inmate's institutional
 record to determine whether he OR SHE has  complied  with  the  assigned
 program.  CREDIT  FOR  SUCH  ASSIGNED PROGRAM SHALL NOT BE WITHHELD IF A
 PERSON FAILS TO COMPLETE A PROGRAM BECAUSE OF CIRCUMSTANCES BEYOND  SUCH
 PERSON'S  CONTROL.  If  the  commissioner determines that the inmate has
 successfully participated in the program he OR SHE may issue the  inmate
 a certificate of earned eligibility. Notwithstanding any other provision
 of  law,  an inmate who is serving a sentence with a minimum term of not
 more than six years and who has been  issued  a  certificate  of  earned
 eligibility, shall be granted parole release at the expiration of his OR
 HER  minimum  term or as authorized by subdivision four of section eight
 hundred sixty-seven OF THIS CHAPTER unless the board  of  parole  deter-
 mines  that  there  is  a reasonable probability that, if such inmate is
 released, he OR SHE will not live and remain at liberty without  violat-
 ing  the  law  and  that  his  OR HER release is not compatible with the
 welfare of society. Any action by  the  commissioner  pursuant  to  this
 section  shall be deemed a judicial function and shall not be reviewable
 if done in accordance with law.

 S. 2776                             4
 
   § 8. Subdivision 5 of section 806 of the correction law, as  added  by
 section  5  of  part  E of chapter 62 of the laws of 2003, is amended to
 read as follows:
   5.  No  person  shall  have the right to demand or require presumptive
 release authorized by this section. The commissioner may revoke  at  any
 time  an inmate's scheduled presumptive release pursuant to this section
 for any disciplinary infraction committed by the inmate or for any fail-
 ure to continue to participate successfully in  any  assigned  work  and
 treatment  program  after the certificate of earned eligibility has been
 awarded, EXCEPT THAT ANY SUCH FAILURE TO CONTINUE TO PARTICIPATE  IN  AN
 ASSIGNED  WORK  OR TREATMENT PROGRAM SHALL NOT BE GROUNDS FOR REVOCATION
 OF PRESUMPTIVE RELEASE IF SUCH FAILURE IS DUE  TO  CIRCUMSTANCES  BEYOND
 THE  INCARCERATED  PERSON'S CONTROL.  The commissioner may deny presump-
 tive release to any inmate whenever  the  commissioner  determines  that
 such  release  may not be consistent with the safety of the community or
 the welfare of the inmate. Any action by the  commissioner  pursuant  to
 this  section  shall  be  deemed  a  judicial  function and shall not be
 reviewable if done in accordance with law.
   § 9. This act shall take effect immediately; provided that the  amend-
 ments  to paragraph (a) and subparagraph (iv) of paragraph (d) of subdi-
 vision 1 of section 803 of the correction law made by sections  one  and
 three  of  this  act shall be subject to the expiration and reversion of
 such subdivision pursuant subdivision d of section 74 of  chapter  3  of
 the  laws  of  1995,  as  amended, when upon such date the provisions of
 sections two and four of this act shall take effect; provided,  further,
 that the amendments to section 805 of the correction law made by section
 six 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 seven
 of  this  act  shall take effect; and provided, further, that the amend-
 ments to subdivision 5 of section 806 of  the  correction  law  made  by
 section  eight  of  this act shall not affect the repeal of such section
 and shall be deemed repealed therewith.

2021-S2776A (ACTIVE) - Details

See Assembly Version of this Bill:: A1957
Current Committee:: Senate Crime Victims, Crime And Correction
Law Section:: Correction Law
Laws Affected:: Amd §§803, 804, 805 & 806, Cor L
Versions Introduced in Other Legislative Sessions:: 2019-2020: S8499, A10818
2023-2024: S1970, A116
2025-2026: A206

2021-S2776A (ACTIVE) - Summary

Relates to failure to complete a program for time allowances due to circumstances beyond an individual's control.

2021-S2776A (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S2776A

SPONSOR: SEPULVEDA
 
TITLE OF BILL:

An act to amend the correction law, in relation to failure to complete a
program for time allowances due to circumstances beyond an individual's
control

 
PURPOSE:

To waive the requirement that incarcerated individuals complete certain
programs if such failure to complete is due to circumstances beyond
their control.

 
SUMMARY OF PROVISIONS:

Sections 1 and 2 amend Correction Law § 803(1)(a). Sections 3 and 4
amend Correction Law § 803(1)(d)(iv).

Section 5 amends Correction Law § 804(1). Sections 6 and 7 amend
Correction Law § 805. Section 8 amends Correction Law § 806(5).

Section 9 provides an effective date.

 
JUSTIFICATION:

In order to be considered for early release from prison, incarcerated
people have to complete programs mandated by DOCCS. For example, a
person with a drug or alcohol problem will have to take the six-month
alcohol and substance abuse treatment program in prison. Someone with a
violent crime might have to take the anger replacement therapy program.
People who are released from prison on their merit dates go out to
community supervision, where they frequently take other mandated
programs similar to the ones they took while they were inside.

At the time this bill was written, the COVID-19 pandemic has stopped all
programs at DOCCS, because civilian staff are not being allowed in and
the prisons are on lock down. It is likely that there will be six months
with no programming at DOCCS, meaning that people who would otherwise be
released on their merit dates will be held longer until they have a
chance to complete their programs. At other times, people are not able
to take or complete programs because a teacher gets sick or retires,
because the division of budget has not approved a replacement for a
missing instructor or because there is a long waiting list for a program
like the drug treatment program.

This bill would make it clear that when people fail to complete required
programs because of circumstances beyond their control, they should
still be released from prison at their merit dates. DOCCS can simply
require them to take the missing program while on community supervision
as a requirement of such supervision. People needing drug treatment can
go to drug treatment programs in the community and their participation
in such programs can be monitored by their parole officers. Right now,
while an epidemic is raging behind bars, it makes no sense to keep
people in prison longer when they are already scheduled for release and
can safely be sent home.

 
PRIOR LEGISLATIVE HISTORY:
S.8580 of 2020, Referred to Rules

 
FISCAL IMPLICATIONS:

Will save the state money. It costs the state roughly $60,000 per year
on each incarcerated individual yet, it only costs the state about
$25,000 a year to supervise someone on parole.

 
LOCAL FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
Immediately.

2021-S2776A (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  2776--A
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 25, 2021
                                ___________
 
 Introduced by Sen. SEPULVEDA -- read twice and ordered printed, and when
   printed  to  be committed to the Committee on Crime Victims, Crime and
   Correction -- recommitted to the Committee on Crime Victims, Crime and
   Correction in accordance with Senate  Rule  6,  sec.  8  --  committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to said committee
 
 AN ACT to amend the correction law, in relation to failure to complete a
   program  for  time  allowances due to circumstances beyond an individ-
   ual's control
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.    Paragraph  (a)  of  subdivision 1 of section 803 of the
 correction law, as amended by section 37 of subpart B of part C of chap-
 ter 62 of the laws of 2011, is 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. SUCH ALLOWANCES SHALL NOT BE WITHHELD IF  A  PERSON  FAILS  TO
 COMPLETE  A  PROGRAM  BECAUSE  OF  CIRCUMSTANCES  BEYOND  SUCH  PERSON'S
 CONTROL.
   § 2. Paragraph (a) of subdivision 1 of section 803 of  the  correction
 law,  as amended by chapter 126 of the laws of 1987 and as designated by
 chapter 738 of the laws of 2004, is amended to read as follows:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD06180-03-2
 S. 2776--A                          2

 
   (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 of the term or period 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  institutional  rules
 or  failure  to perform properly in the duties or program assigned. SUCH
 ALLOWANCES SHALL NOT BE WITHHELD IF A PERSON FAILS TO COMPLETE A PROGRAM
 BECAUSE OF CIRCUMSTANCES BEYOND SUCH PERSON'S CONTROL.
   § 3. Subparagraph (iv) of paragraph (d) of subdivision  1  of  section
 803 of the correction law, as separately amended by section 1 of chapter
 242  and  section  224 of chapter 322 of the laws of 2021, is amended to
 read as follows:
   (iv) Such merit time allowance may be  granted  when  an  incarcerated
 individual  successfully  participates in the work and treatment program
 assigned pursuant to section eight hundred five of this article and when
 such incarcerated individual obtains a general equivalency  diploma,  an
 alcohol  and  substance  abuse treatment certificate, a vocational trade
 certificate following at least six months of vocational programming,  at
 least  eighteen  credits  in a program registered by the state education
 department  from  a  degree-granting  higher  education  institution  or
 performs  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 incar-
 cerated individual, 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 incarcerated individual, against a state
 agency, officer or employee. SUCH ALLOWANCE SHALL NOT BE WITHHELD  IF  A
 PERSON  FAILS  TO COMPLETE A PROGRAM BECAUSE OF CIRCUMSTANCES BEYOND HIS
 OR HER CONTROL.
   § 4. Subparagraph (iv) of paragraph (d) of subdivision  1  of  section
 803 of the correction law, as separately amended by section 2 of chapter
 242  and section 224-a of chapter 322 of the laws of 2021, is amended to
 read as follows:
   (iv) Such merit time allowance may be  granted  when  an  incarcerated
 individual  successfully  participates in the work and treatment program
 assigned pursuant to section eight hundred five of this article and when
 such incarcerated individual obtains a general equivalency  diploma,  an
 alcohol  and  substance  abuse treatment certificate, a vocational trade
 certificate following at least six months of vocational programming,  at
 least  eighteen  credits  in a program registered by the state education
 department  from  a  degree-granting  higher  education  institution  or
 performs  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 incar-
 cerated individual, commenced or continued a civil action, proceeding or
 claim that was found to be frivolous as defined in  subdivision  (c)  of
 S. 2776--A                          3
 
 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 incarcerated individual, against a state
 agency,  officer or employee. SUCH ALLOWANCE  SHALL NOT BE WITHHELD IF A
 PERSON  FAILS TO COMPLETE A PROGRAM BECAUSE OF CIRCUMSTANCES BEYOND  HIS
 OR HER CONTROL.
   § 5. Subdivision 1 of section 804 of the correction law, as amended by
 chapter 145 of the laws of 1976, is amended to read as follows:
   1. Every person confined in an institution serving a definite sentence
 of  imprisonment may receive time allowances as discretionary reductions
 of the term of his OR HER sentence not to exceed in the  aggregate  one-
 third  of  the term 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 cancelled in whole or in part for  bad
 behavior, violation of institutional rules or failure to perform proper-
 ly in the duties or program assigned. SUCH ALLOWANCES SHALL NOT BE WITH-
 HELD,  FORFEITED OR CANCELLED IN WHOLE OR IN PART FOR A PERSON'S FAILURE
 TO COMPLETE AN ASSIGNED PROGRAM DUE TO CIRCUMSTANCES BEYOND HIS  OR  HER
 CONTROL.
   §  6.  Section 805 of the correction law, as amended by section 226 of
 chapter 322 of the laws of 2021, is amended to read as follows:
   § 805. Earned eligibility program. Persons committed to the custody of
 the department under an indeterminate or determinate sentence of  impri-
 sonment  shall be assigned a work and treatment program as soon as prac-
 ticable. No earlier than two months prior to the  incarcerated  individ-
 ual's  eligibility  to be paroled pursuant to subdivision one of section
 70.40 of the penal law, the commissioner shall review  the  incarcerated
 individual's  institutional  record  to  determine whether he or she has
 complied with the assigned program.   CREDIT FOR SUCH  ASSIGNED  PROGRAM
 SHALL NOT BE WITHHELD IF A PERSON FAILS TO COMPLETE A PROGRAM BECAUSE OF
 CIRCUMSTANCES  BEYOND  SUCH PERSON'S CONTROL. If the commissioner deter-
 mines that the incarcerated individual has successfully participated  in
 the  program  he  or she may issue the incarcerated individual a certif-
 icate of earned eligibility. Notwithstanding any other provision of law,
 an incarcerated individual who is serving a sentence with a minimum term
 of not more than eight years and who has been issued  a  certificate  of
 earned eligibility, shall be granted parole release at the expiration of
 his  or her minimum term or as authorized by subdivision four of section
 eight hundred sixty-seven of this chapter unless  the  board  of  parole
 determines  that  there is a reasonable probability that, if such incar-
 cerated individual is released, he or she will not live  and  remain  at
 liberty  without  violating  the  law and that his or her release is not
 compatible with the welfare of society. Any action by  the  commissioner
 pursuant  to  this section shall be deemed a judicial function and shall
 not be reviewable if done in accordance with law.
   § 7. Section 805 of the correction law, as amended by section 226-a of
 chapter 322 of the laws of 2021, is amended to read as follows:
   § 805. Earned eligibility program. Persons committed to the custody of
 the department under an indeterminate sentence of imprisonment shall  be
 assigned a work and treatment program as soon as practicable. No earlier
 than  two months prior to the expiration of an incarcerated individual's
 minimum period of imprisonment, the commissioner shall review the incar-
 cerated individual's institutional record to determine whether he or she
 has complied with the  assigned  program.    CREDIT  FOR  SUCH  ASSIGNED
 S. 2776--A                          4
 
 PROGRAM  SHALL  NOT  BE WITHHELD IF A PERSON FAILS TO COMPLETE A PROGRAM
 BECAUSE OF CIRCUMSTANCES BEYOND SUCH PERSON'S CONTROL.  If  the  commis-
 sioner  determines  that  the  incarcerated  individual has successfully
 participated  in  the program he or she may issue the incarcerated indi-
 vidual a certificate of earned eligibility.  Notwithstanding  any  other
 provision  of  law, an incarcerated individual who is serving a sentence
 with a minimum term of not more than six years and who has been issued a
 certificate of earned eligibility, shall be granted  parole  release  at
 the  expiration  of his or her minimum term or as authorized by subdivi-
 sion four of section eight hundred sixty-seven OF  THIS  CHAPTER  unless
 the  board  of  parole determines that there is a reasonable probability
 that, if such incarcerated individual is released, he or  she  will  not
 live and remain at liberty without violating the law and that his or her
 release is not compatible with the welfare of society. Any action by the
 commissioner  pursuant  to this section shall be deemed a judicial func-
 tion and shall not be reviewable if done in accordance with law.
   § 8. Subdivision 5 of section 806 of the correction law, as amended by
 chapter 322 of the laws of 2021, is amended to read as follows:
   5. No person shall have the right to  demand  or  require  presumptive
 release  authorized  by this section. The commissioner may revoke at any
 time an incarcerated individual's scheduled presumptive release pursuant
 to this section for any disciplinary infraction committed by the  incar-
 cerated  individual  or  for  any  failure  to  continue  to participate
 successfully in any  assigned  work  and  treatment  program  after  the
 certificate  of earned eligibility has been awarded EXCEPT THAT ANY SUCH
 FAILURE TO CONTINUE TO PARTICIPATE IN  AN  ASSIGNED  WORK  OR  TREATMENT
 PROGRAM  SHALL  NOT  BE GROUNDS FOR REVOCATION OF PRESUMPTIVE RELEASE IF
 SUCH FAILURE IS DUE TO CIRCUMSTANCES BEYOND  THE  INCARCERATED  PERSON'S
 CONTROL.  The commissioner may deny presumptive release to any incarcer-
 ated individual whenever the commissioner determines that  such  release
 may not be consistent with the safety of the community or the welfare of
 the incarcerated individual.  Any action by the commissioner pursuant to
 this  section  shall  be  deemed  a  judicial  function and shall not be
 reviewable if done in accordance with law.
   § 9. This act shall take effect immediately; provided that the  amend-
 ments  to paragraph (a) and subparagraph (iv) of paragraph (d) of subdi-
 vision 1 of section 803 of the correction law made by sections  one  and
 three  of  this  act shall be subject to the expiration and reversion of
 such subdivision pursuant subdivision d of section 74 of  chapter  3  of
 the  laws  of  1995,  as  amended, when upon such date the provisions of
 sections two and four of this act shall take effect; provided,  further,
 that the amendments to section 805 of the correction law made by section
 six 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 seven
 of  this  act  shall take effect; and provided, further, that the amend-
 ments to subdivision 5 of section 806 of  the  correction  law  made  by
 section  eight  of  this act shall not affect the repeal of such section
 and shall be deemed repealed therewith.

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