LBD13507-04-2
S. 7873--A 2
subdivision 2-a as added by chapter 738 of the laws of 2004, subpara-
graph (ii) of paragraph (d) of subdivision 1 as amended by chapter 322
of the laws of 2021, subparagraph (iv) of paragraph (d) of subdivision 1
as separately amended by chapters 242 and 322 of the laws of 2021,
subdivision 2-b as added by section 3 of part E of chapter 62 of the
laws of 2003, is amended to read as follows:
§ 803. Good behavior allowances against indeterminate and determinate
sentences. 1. (a) Every person confined in an institution of the depart-
ment or a facility in the department of mental hygiene serving an inde-
terminate or determinate sentence of imprisonment, except a person serv-
ing a sentence with a maximum term of life imprisonment, [may] SHALL
receive A time allowance against the term or maximum term of [his or
her] THEIR sentence imposed by the court. Such allowances [may be grant-
ed 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 proper-
ly in the duties or program assigned] SHALL BE CREDITED TOWARD A
PERSON'S SENTENCE ON AN ANNUAL PRO RATA BASIS, AND ANY CREDIT AWARDED
OVER THE COURSE OF THE CALENDAR YEAR SHALL VEST ON THE FINAL DAY OF THE
CALENDAR YEAR. ONCE VESTED, SUCH CREDIT SHALL NOT BE WITHHELD,
FORFEITED, OR CANCELED.
(A-1) TIME ALLOWANCES THAT HAVE NOT YET BEEN CREDITED TOWARD A
PERSON'S SENTENCE MAY BE WITHHELD, FORFEITED OR CANCELED IN WHOLE OR IN
PART FOR VIOLATION OF INSTITUTIONAL RULES, AS DEMONSTRATED AT A HEARING
BY A PREPONDERANCE OF THE EVIDENCE. SUCH RESTRICTIONS SHALL BE LIMITED
TO THE PRO RATA SHARE OF CREDIT WITHIN THE CALENDAR YEAR THAT THE
OFFENSE IS COMMITTED. IF SUCH TIME ALLOWANCE IS WITHHELD, FORFEITED OR
CANCELED IN WHOLE OR IN PART, FURTHER ALLOWANCES, NOT TO EXCEED THE
ALLOWANCES SET FORTH IN PARAGRAPHS (B) AND (C) OF THIS SUBDIVISION, MAY
BE REINSTATED FOR GOOD BEHAVIOR AND EFFICIENT AND WILLING PERFORMANCE OF
DUTIES ASSIGNED OR PROGRESS AND ACHIEVEMENT IN AN ASSIGNED TREATMENT
PROGRAM. FOLLOWING ANY FINAL DETERMINATION WITHHOLDING, FORFEITING, OR
CANCELING A TIME ALLOWANCE, THE INCARCERATED PERSON SHALL HAVE THE RIGHT
TO TAKE AN ADMINISTRATIVE APPEAL TO THE CENTRAL OFFICE OF THE DEPARTMENT
AND SHALL BE ADVISED OF THE RIGHT TO SEEK LEGAL ASSISTANCE IN THE TAKING
OF SUCH APPEAL. THE DEPARTMENT SHALL ADOPT REGULATIONS IN ACCORDANCE
WITH THIS PROVISION.
(b) A person serving an indeterminate sentence of imprisonment [may]
SHALL receive A time allowance against the maximum term of [his or her]
THEIR sentence [not to exceed one-third] of ONE-HALF OF the maximum term
imposed by the court.
(c) A person serving a determinate sentence of imprisonment [may]
SHALL receive A time allowance against the term of [his or her] THEIR
sentence [not to exceed one-seventh] of ONE-HALF OF the term imposed by
the court.
(d) (i) [Except as provided in subparagraph (ii) of this paragraph,
every] 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 pursu-
ant to section 70.70 or 70.71 of the penal law,] may earn a merit time
allowance.
(ii) [Such merit time allowance shall not be available to any person
serving an indeterminate sentence authorized for an A-I felony offense,
other than an A-I felony offense defined in article two hundred twenty
S. 7873--A 3
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, vehicular
manslaughter in the first degree, criminally negligent homicide, 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 aggravated harassment of an employee by an incarcerated individ-
ual.
(iii)] The merit time allowance credit against the minimum period of
the indeterminate sentence shall be [one-sixth] ONE-HALF of the minimum
period imposed by the court [except that such credit shall be one-third
of the minimum period imposed by the court for an A-I felony offense
defined in article two hundred twenty of the penal law]. In the case of
such a determinate sentence, in addition to the time allowance credit
authorized by paragraph (c) of this subdivision, the merit time allow-
ance credited against the term of the determinate sentence pursuant to
this paragraph shall be [one-seventh] ONE-QUARTER of the term imposed by
the court.
[(iv)] (III) Such merit time allowance [may] SHALL be granted when an
incarcerated individual successfully participates in the work and treat-
ment program assigned pursuant to section eight hundred five of this
article [and], INCLUDING BUT NOT LIMITED TO when such incarcerated indi-
vidual 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 cred-
its 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, OR SUCCESS-
FULLY COMPLETES ONE OR MORE "SIGNIFICANT PROGRAMMATIC ACCOMPLISHMENTS"
AS DEFINED IN PARAGRAPH (C) OF SUBDIVISION ONE OF SECTION EIGHT HUNDRED
THREE-B OF THIS ARTICLE. THE COMMISSIONER MAY DESIGNATE ADDITIONAL
PROGRAMS AND ACHIEVEMENTS FOR WHICH MERIT TIME SHALL BE GRANTED. ONCE
GRANTED, SUCH ALLOWANCES SHALL NOT BE WITHHELD, FORFEITED, OR CANCELLED.
WHERE THE INSTITUTION IN WHICH THE INCARCERATED INDIVIDUAL IS CONFINED
DOES NOT PROVIDE OPPORTUNITIES FOR EVERY INCARCERATED INDIVIDUAL TO EARN
MERIT TIME ALLOWANCES, SUCH MERIT TIME ALLOWANCE SHALL BE AUTOMATICALLY
CREDITED AGAINST THE INCARCERATED INDIVIDUAL'S SENTENCE ACCORDING TO
SUBPARAGRAPH (II) OF THIS PARAGRAPH.
[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.
(v)] (IV) The provisions of this paragraph shall apply to persons in
custody serving [an] A DETERMINATE OR indeterminate sentence on the
effective date of this paragraph as well as to persons sentenced to [an]
A DETERMINATE OR 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 twen-
ty or two hundred twenty-one of the penal law]. THE TIME ALLOWANCES SET
FORTH IN THIS PARAGRAPH SHALL APPLY RETROACTIVELY AND SHALL BE CREDITED
S. 7873--A 4
TOWARD EVERY INCARCERATED INDIVIDUAL'S SENTENCE WITHIN NINETY DAYS OF
THE CHAPTER OF THE LAWS OF TWO THOUSAND TWENTY-TWO THAT AMENDED THIS
PARAGRAPH.
2. If a person is serving more than one sentence, the authorized
allowances may be granted separately against the term or maximum term of
each sentence or, where consecutive sentences are involved, against the
aggregate maximum term. Such allowances shall be calculated as follows:
(a) A person serving two or more indeterminate sentences which run
concurrently [may] SHALL receive A time allowance [not to exceed one-
third] of ONE-HALF OF the indeterminate sentence which has the longest
unexpired time to run.
(b) A person serving two or more indeterminate sentences which run
consecutively [may] SHALL receive A time allowance [not to exceed one-
third] of ONE-HALF OF the aggregate maximum term.
(c) A person serving two or more determinate sentences which run
concurrently [may] SHALL receive A time allowance [not to exceed one-
seventh] of ONE-HALF OF the determinate sentence which has the longest
unexpired time to run.
(d) A person serving two or more determinate sentences which run
consecutively [may] SHALL receive A time allowance [not to exceed one-
seventh] of ONE-HALF OF the aggregate maximum term.
(e) A person serving one or more indeterminate sentence and one or
more determinate sentence which run concurrently [may] SHALL receive A
time allowance [not to exceed one-third] of ONE-HALF OF the indetermi-
nate sentence which has the longest unexpired term to run or [one-sev-
enth] ONE-HALF of the determinate sentence which has the longest unex-
pired time to run, whichever allowance is greater.
(f) A person serving one or more indeterminate sentence and one or
more determinate sentence which run consecutively [may] SHALL receive A
time allowance [not to exceed] OF the sum of [one-third] ONE-HALF of the
maximum or aggregate maximum of the indeterminate sentence or sentences
and [one-seventh] ONE-HALF of the term or aggregate maximum of the
determinate sentence or sentences.
2-a. If a person is serving more than one sentence, the authorized
merit time allowances may be granted against the period or aggregate
minimum period of the indeterminate sentence or sentences, or against
the term or aggregate term of the determinate sentence or sentences, or
where consecutive determinate and indeterminate sentences are involved,
against the aggregate minimum period as calculated pursuant to subpara-
graph (iv) of paragraph (a) of subdivision one of section 70.40 of the
penal law. Such allowances shall be calculated as follows:
(a) A person serving two or more indeterminate sentences which run
concurrently may receive a merit time allowance not to exceed [one-
sixth] ONE-HALF of the minimum period of the indeterminate sentence
imposed [for an offense other than an A-I felony offense defined in
article two hundred twenty of the penal law, or one-third of the minimum
period of the indeterminate sentence imposed for an A-I felony offense
defined in article two hundred twenty of the penal law, whichever allow-
ance results in the longest unexpired time to run] BY THE COURT.
(b) A person serving two or more indeterminate sentences which run
consecutively may receive a merit time allowance not to exceed the
amount of [one-third] ONE-HALF of the minimum or aggregate minimum peri-
od of the sentences imposed [for an A-I felony offense defined in arti-
cle two hundred twenty of the penal law, plus one-sixth of the minimum
or aggregate minimum period of the sentences imposed for an offense
other than such A-I felony offense] BY THE COURT.
S. 7873--A 5
(c) A person serving two or more determinate sentences [for an offense
defined in article two hundred twenty or two hundred twenty-one of the
penal law] which run concurrently may receive a merit time allowance not
to exceed [one-seventh] ONE-QUARTER of the term of the determinate
sentence which has the longest unexpired time to run.
(d) A person serving two or more determinate sentences [for an offense
defined in article two hundred twenty or two hundred twenty-one of the
penal law] which run consecutively may receive a merit time allowance
not to exceed [one-seventh] ONE-QUARTER of the aggregate term of such
determinate sentences.
(e) A person serving one or more indeterminate sentences and one or
more determinate sentences [for an offense defined in article two
hundred twenty or two hundred twenty-one of the penal law] which run
concurrently may receive a merit time allowance not to exceed [one-
sixth] ONE-HALF of the minimum period of the indeterminate sentence
imposed [for an offense other than an A-I felony offense defined in
article two hundred twenty of the penal law, one-third of the minimum
period of the indeterminate sentence imposed for an A-I felony offense
defined in article two hundred twenty of the penal law,] or [one-sev-
enth] ONE-QUARTER of the term of the determinate sentence, whichever
allowance results in the largest unexpired time to run.
(f) A person serving one or more indeterminate sentences and one or
more determinate sentences which run consecutively may receive a merit
time allowance not to exceed the sum of [one-sixth] ONE-HALF of the
minimum or aggregate minimum period of the indeterminate sentence or
sentences imposed [for an offense other than an A-I felony offense
defined in article two hundred twenty of the penal law, one-third of the
minimum or aggregate minimum period of the indeterminate sentence or
sentences imposed for an A-I felony offense defined in article two
hundred twenty of the penal law] and [one-seventh] ONE-QUARTER of the
term or aggregate term of the determinate sentence or sentences.
(g) The provisions of this subdivision shall apply to persons in
custody serving [an] A DETERMINATE OR indeterminate sentence on the
effective date of this subdivision as well as to persons sentenced to
[an] A DETERMINATE OR indeterminate sentence on and after the effective
date of this subdivision [and prior to September first, two thousand
five and to persons sentenced to a determinate sentence prior to Septem-
ber first, two thousand eleven for a felony as defined in article two
hundred twenty or two hundred twenty-one of the penal law]. THE MERIT
TIME ALLOWANCES SET FORTH IN THIS SUBDIVISION SHALL APPLY RETROACTIVELY,
AND SHALL BE CREDITED TOWARD EVERY INCARCERATED INDIVIDUAL'S SENTENCE
WITHIN NINETY DAYS OF THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF
TWO THOUSAND TWENTY-TWO THAT AMENDED THIS SUBDIVISION.
[2-b. Notwithstanding the foregoing, if a person is serving more than
one indeterminate sentence, at least one of which is imposed for a class
A-I felony offense defined in article two hundred twenty of the penal
law, the authorized merit time allowance granted pursuant to paragraph
(d) of subdivision one of this section shall be calculated as follows:
(a) In the event a person is serving two or more indeterminate
sentences with different minimum periods which run concurrently, the
merit time allowance shall be based upon the sentence with the longest
unexpired minimum period. If the sentence with the longest unexpired
minimum period was imposed for a class A-I felony, the merit time credit
shall be one-third of such sentence's minimum period; if such sentence
was imposed for an offense other than a class A-I felony, such merit
time credit shall be one-sixth of such sentence's minimum period.
S. 7873--A 6
Provided, however, that where the minimum period of any other concurrent
indeterminate sentence is greater than such reduced minimum period, the
minimum period of such other concurrent indeterminate sentence shall
also be reduced but only to the extent that the minimum period of such
other concurrent sentence, as so reduced, is equal to the reduced mini-
mum period of such sentence with the longest unexpired minimum period to
run.
(b) A person serving two or more indeterminate sentences with the same
minimum periods which run concurrently, and no concurrent indeterminate
sentence with any greater minimum period, shall have the minimum period
of each such sentence reduced in the amount of one-third of such minimum
period if all such sentences were imposed for a class A-I felony.
(c) A person serving two or more indeterminate sentences that run
consecutively shall have the aggregate minimum period of such sentences
reduced in the amount of one-third of such aggregate minimum period of
the sentences imposed for a class A-I felony, plus one-sixth of such
aggregate minimum period of the sentences imposed for an offense other
than a class A-I felony.]
3. The commissioner of corrections and community supervision shall
promulgate rules and regulations for the FAIR AND EQUITABLE granting,
withholding, forfeiture, cancellation and restoration of allowances
authorized by this section in accordance with the criteria herein speci-
fied. Such rules and regulations shall SPECIFY PROCEDURES TO ENSURE THAT
SIMILARLY SITUATED INCARCERATED PERSONS ARE TREATED SIMILARLY WITH
RESPECT TO THE GRANTING, WITHHOLDING, FORFEITURE OR CANCELLATION OF
ALLOWANCES, AND include provisions designating the person or committee
in each correctional institution delegated to make discretionary deter-
minations with respect to the allowances, the books and records to be
kept, and a procedure for review of the institutional determinations by
the commissioner.
4. [No person shall have the right to demand or require the allowances
authorized by this section. The decision of the commissioner of
corrections and community supervision as to the granting, withholding,
forfeiture, cancellation or restoration of such allowances shall be
final and shall not be reviewable if made in accordance with law.
5.] Time allowances granted prior to any release to community super-
vision shall be forfeited and shall not be restored if the released
person is returned to an institution under the jurisdiction of the state
department of corrections and community supervision for violation of
community supervision or by reason of a conviction for a crime committed
while on community supervision. A person who is so returned may, howev-
er, subsequently receive time allowances against the remaining portion
of [his or her] THEIR term, maximum term or aggregate maximum term
pursuant to this section [and provided such remaining portion of his or
her term, maximum term, or aggregate maximum term is more than one
year].
[6.] 5. Upon commencement of an indeterminate or a determinate
sentence the provisions of this section shall be furnished to the person
serving the sentence and the meaning of same shall be fully explained to
[him] THEM by a person designated by the commissioner to perform such
duty.
§ 4. Section 804 of the correction law, as added by chapter 680 of the
laws of 1967, subdivisions 1 and 2 as amended by chapter 145 of the laws
of 1976, and subdivision 6 as amended by section 39 of subpart B of part
C of chapter 62 of the laws of 2011, is amended to read as follows:
S. 7873--A 7
§ 804. Good behavior allowances against definite sentences. 1. Every
person confined in an institution serving a definite sentence of impri-
sonment [may] SHALL receive A time [allowances as discretionary
reductions of the term of his sentence not to exceed in the aggregate
one-third] ALLOWANCE OF ONE-HALF 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 properly in the duties or program assigned] SHALL
BE CREDITED TOWARD A PERSON'S SENTENCE ON AN ANNUAL PRO RATA BASIS, AND
ANY CREDIT AWARDED OVER THE COURSE OF THE CALENDAR YEAR SHALL VEST ON
THE FINAL DAY OF THE CALENDAR YEAR. ONCE VESTED, SUCH CREDIT SHALL NOT
BE WITHHELD, FORFEITED, OR CANCELED.
1-A. TIME ALLOWANCES THAT HAVE NOT YET BEEN GRANTED TOWARD A PERSON'S
SENTENCE MAY BE WITHHELD, FORFEITED OR CANCELED IN WHOLE OR IN PART FOR
VIOLATION OF INSTITUTIONAL RULES, AS DEMONSTRATED AT A HEARING BY A
PREPONDERANCE OF THE EVIDENCE. SUCH RESTRICTIONS SHALL BE LIMITED TO THE
PRO RATA SHARE OF CREDIT WITHIN THE CALENDAR YEAR THAT THE OFFENSE IS
COMMITTED. IF SUCH TIME ALLOWANCE IS WITHHELD, FORFEITED OR CANCELED IN
WHOLE OR IN PART, FURTHER ALLOWANCES, NOT TO EXCEED ONE-HALF OF THE TERM
IMPOSED BY THE COURT, MAY BE REINSTATED FOR GOOD BEHAVIOR AND EFFICIENT
AND WILLING PERFORMANCE OF DUTIES ASSIGNED OR PROGRESS AND ACHIEVEMENT
IN AN ASSIGNED TREATMENT PROGRAM. FOLLOWING ANY FINAL DETERMINATION
WITHHOLDING, FORFEITING, OR CANCELING A TIME ALLOWANCE, THE INCARCERATED
PERSON SHALL HAVE THE RIGHT TO TAKE AN ADMINISTRATIVE APPEAL TO THE
SHERIFF AND SHALL BE ADVISED OF THE RIGHT TO SEEK LEGAL ASSISTANCE IN
THE TAKING OF SUCH APPEAL. THE SHERIFF SHALL ADOPT REGULATIONS IN
ACCORDANCE WITH THIS PROVISION.
2. If a person is serving more than one sentence, the authorized
allowances may be granted separately against the term of each sentence
or, where consecutive sentences are involved, against the aggregate
term. Allowances based upon sentences of less than one month may be
granted, and in such case the maximum allowance shall be one day for
every [three] TWO days of the sentence. In no case, however, shall the
total of all allowances granted to any such person exceed [one-third]
ONE-HALF of the time [he] THEY would be required to serve, computed
without regard to this section.
3. [No person shall have the right to demand or require the allowances
authorized by this section. The decision of the sheriff, superintendent,
warden or other person in charge of the institution, or where such
institution is under the jurisdiction of a county or city department the
decision of the head of such department, as to the granting, withhold-
ing, forfeiture, cancellation or restoration of such allowances shall be
final and shall not be reviewable if made in accordance with law.
4.] A person who has earned a reduction of sentence pursuant to this
section and who has been conditionally released under subdivision two of
section 70.40 of the penal law shall not forfeit such reduction by
reason of conduct causing [his] THEIR return to the institution.
Provided, nevertheless, that such reduction may be forfeited by reason
of subsequent conduct while serving the remainder of [his] THEIR term.
[5.] 4. The state commission of correction shall promulgate record
keeping rules and regulations for the FAIR AND EQUITABLE granting, with-
holding, forfeiture, cancellation and restoration of allowances author-
ized by this section. SUCH RULES AND REGULATIONS SHALL SPECIFY PROCE-
DURES TO ENSURE THAT SIMILARLY SITUATED INCARCERATED PERSONS ARE TREATED
S. 7873--A 8
SIMILARLY WITH RESPECT TO THE GRANTING, WITHHOLDING, FORFEITURE OR
CANCELLATION OF ALLOWANCES.
[6.] 5. Notwithstanding anything to the contrary in this section, in
any case where a person is serving a definite sentence in an institution
under the jurisdiction of the state department of corrections and commu-
nity supervision, [subdivisions] SUBDIVISION three [and four] of section
eight hundred three of this [chapter] ARTICLE shall apply.
[7.] 6. Upon commencement of any definite sentence the provisions of
this section shall be furnished to the person serving the sentence and
the meaning of same shall be fully explained to [him] THEM by an officer
designated in the regulation to perform such duty.
§ 5. Section 804-a of the correction law, as added by chapter 220 of
the laws of 1987, is amended to read as follows:
§ 804-a. Good behavior allowances for certain civil commitments. 1.
Every person confined in an institution serving a civil commitment for a
fixed period of time, whose release is not conditional upon any act
within [his] THEIR power to perform, [may] SHALL receive time allowances
as discretionary reductions of the term of [his] THEIR commitment not to
exceed, in the aggregate, [one-third] ONE-HALF of the term imposed by
the court. Such allowances [may be granted for good behavior and effi-
cient 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 properly in the duties or
program assigned] SHALL BE CREDITED TOWARD A PERSON'S SENTENCE ON AN
ANNUAL PRO RATA BASIS, AND ANY CREDIT AWARDED OVER THE COURSE OF THE
CALENDAR YEAR SHALL VEST ON THE FINAL DAY OF THE CALENDAR YEAR. ONCE
VESTED, SUCH CREDIT SHALL NOT BE WITHHELD, FORFEITED, OR CANCELED.
1-A. TIME ALLOWANCES THAT HAVE NOT YET BEEN GRANTED TOWARD A PERSON'S
SENTENCE MAY BE WITHHELD, FORFEITED OR CANCELED IN WHOLE OR IN PART FOR
VIOLATION OF INSTITUTIONAL RULES, AS DEMONSTRATED AT A HEARING BY A
PREPONDERANCE OF THE EVIDENCE. SUCH RESTRICTIONS SHALL BE LIMITED TO THE
PRO RATA SHARE OF CREDIT WITHIN THE CALENDAR YEAR THAT THE OFFENSE IS
COMMITTED. IF SUCH TIME ALLOWANCE IS WITHHELD, FORFEITED OR CANCELED IN
WHOLE OR IN PART, FURTHER ALLOWANCES, NOT TO EXCEED ONE-HALF OF THE TERM
IMPOSED BY THE COURT, MAY BE REINSTATED FOR GOOD BEHAVIOR AND EFFICIENT
AND WILLING PERFORMANCE OF DUTIES ASSIGNED OR PROGRESS AND ACHIEVEMENT
IN AN ASSIGNED TREATMENT PROGRAM. FOLLOWING ANY FINAL DETERMINATION
WITHHOLDING, FORFEITING, OR CANCELING A TIME ALLOWANCE, THE INCARCERATED
PERSON SHALL HAVE THE RIGHT TO TAKE AN ADMINISTRATIVE APPEAL TO THE
CENTRAL OFFICE OF THE DEPARTMENT AND SHALL BE ADVISED OF THE RIGHT TO
SEEK LEGAL ASSISTANCE IN THE TAKING OF SUCH APPEAL. THE DEPARTMENT SHALL
ADOPT REGULATIONS IN ACCORDANCE WITH THIS PROVISION.
2. Allowances based upon commitments of less than one month may be
granted, and in such case the maximum allowances shall be one day for
every [three] TWO days of the commitment. In no case, however, shall the
total of all allowances granted to any such person exceed [one-third]
ONE-HALF of the time [he] THEY would be required to serve, computed
without regard to this section.
3. [No person shall have the right to demand or require the allowances
authorized by this section. The decision of the sheriff, superintendent,
warden or other person in charge of the institution, or where such
institution is under the jurisdiction of a county or city department the
decision of the head of such department, as to the granting, withhold-
ing, forfeiture, cancellation, or restoration of such allowances shall
be final and shall not be reviewable if made in accordance with law.
S. 7873--A 9
4.] The state commission of correction shall promulgate record keeping
rules and regulations for the granting, withholding, forfeiture, cancel-
lation and restoration of allowances authorized by this section.
[5.] 4. Upon commencement of any civil commitment as described in
subdivision one of this section, the provisions of this section shall be
furnished to the person serving the commitment and the meaning of same
shall be fully explained to [him] THEM by an officer designated in the
regulation to perform such duty.
§ 6. Section 865 of the correction law, as added by chapter 261 of the
laws of 1987, subdivisions 1 and 2 as amended by chapter 322 of the laws
of 2021, is amended to read as follows:
§ 865. Definitions. As used in this article, [the following terms
mean:
1. "Eligible incarcerated individual" means a person sentenced to an
indeterminate term of imprisonment who will become eligible for release
on parole within three years or sentenced to a determinate term of
imprisonment who will become eligible for conditional release within
three years, who has not reached the age of fifty years, who has not
previously been convicted of a violent felony as defined in article
seventy of the penal law, or a felony in any other jurisdiction which
includes all of the essential elements of any such violent felony, upon
which an indeterminate or determinate term of imprisonment was imposed
and who was between the ages of sixteen and fifty years at the time of
commission of the crime upon which his or her present sentence was
based. Notwithstanding the foregoing, no person who is convicted of any
of the following crimes shall be deemed eligible to participate in this
program: (a) a violent felony offense as defined in article seventy of
the penal law; provided, however, that a person who is convicted of
burglary in the second degree as defined in subdivision two of section
140.25 of the penal law, or robbery in the second degree as defined in
subdivision one of section 160.10 of the penal law, or an attempt there-
of, is eligible to participate, (b) an A-I felony offense, (c) any homi-
cide offense as defined in article one hundred twenty-five of the penal
law, (d) any felony sex offense as defined in article one hundred thirty
of the penal law and (e) any escape or absconding offense as defined in
article two hundred five of the penal law.
2. "Shock] "SHOCK incarceration program" means a program pursuant to
which eligible incarcerated individuals are selected to participate in
the program and serve a period of six months in a shock incarceration
facility, which shall provide rigorous physical activity, intensive
regimentation and discipline and rehabilitation therapy and programming.
Such incarcerated individuals may be selected either: (i) at a reception
center; or (ii) at a general confinement facility [when the otherwise
eligible incarcerated individual then becomes eligible for release on
parole within three years in the case of an indeterminate term of impri-
sonment, or then becomes eligible for conditional release within three
years in the case of a determinate term of imprisonment].
§ 7. Section 867 of the correction law, as amended by chapter 322 of
the laws of 2021, is amended to read as follows:
§ 867. Procedure for selection of participants in shock incarceration
program. 1. An [eligible] incarcerated individual may make an applica-
tion to the shock incarceration screening committee for permission to
participate in the shock incarceration program.
2. If the shock incarceration screening committee determines that an
incarcerated individual's participation in the shock incarceration
program is consistent with the safety of the community, the welfare of
S. 7873--A 10
the applicant and the rules and regulations of the department, the
committee shall forward the application to the commissioner or [his] A
designee for approval or disapproval.
2-a. Subdivisions one and two of this section shall apply to a judi-
cially sentenced shock incarceration incarcerated individual only to the
extent that the screening committee may determine whether the incarcer-
ated individual has a medical or mental health condition that will
render the incarcerated individual unable to successfully complete the
shock incarceration program, and the facility in which the incarcerated
individual will participate in such program. Notwithstanding subdivi-
sion five of this section, an incarcerated individual sentenced to shock
incarceration shall promptly commence participation in the program [when
such incarcerated individual is an eligible incarcerated individual
pursuant to subdivision one of section eight hundred sixty-five of this
article].
3. Applicants cannot participate in the shock incarceration program
unless they agree to be bound by all the terms and conditions thereof
and indicate such agreement by signing the memorandum of the program
immediately below a statement reading as follows:
"I accept the foregoing program and agree to be bound by the terms and
conditions thereof. I understand that my participation in the program is
a privilege that may be revoked at any time at the sole discretion of
the commissioner. I understand that I must successfully complete the
entire program to obtain a certificate of earned eligibility upon the
completion of said program, and in the event that I do not successfully
complete said program, for any reason, I will be transferred to a
nonshock incarceration correctional facility to continue service of my
sentence."
4. An incarcerated individual who has successfully completed a shock
incarceration program shall be eligible to receive such a certificate of
earned eligibility pursuant to section eight hundred five of this chap-
ter. Notwithstanding any other provision of law, an incarcerated indi-
vidual sentenced to a determinate sentence of imprisonment who has
successfully completed a shock incarceration program shall be eligible
to receive such a certificate of earned eligibility and shall be imme-
diately eligible to be conditionally released.
5. Participation in the shock incarceration program shall be a privi-
lege. Nothing contained in this article may be construed to confer upon
any incarcerated individual the right to participate or continue to
participate therein.
§ 8. Clause (B) of subparagraph (ii) of paragraph (e) of subdivision 1
of section 70.30 of the penal law, as amended by chapter 3 of the laws
of 1995, is amended to read as follows:
(B) if the aggregate maximum term of the determinate sentence or
sentences is less than twenty years, the defendant shall be deemed to be
serving an indeterminate sentence the maximum term of which shall be
deemed to be twenty years. In such instances, the minimum sentence shall
be deemed to be ten years or [six-sevenths] ONE-HALF of the term or
aggregate maximum term of the determinate sentence or sentences, which-
ever is greater.
§ 9. Clause (B) of subparagraph (iii) of paragraph (e) of subdivision
1 of section 70.30 of the penal law, as amended by chapter 3 of the laws
of 1995, is amended to read as follows:
(B) if the aggregate maximum term of the determinate sentence or
sentences is less than thirty years, the defendant shall be deemed to be
serving an indeterminate sentence the maximum term of which shall be
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deemed to be thirty years. In such instances, the minimum sentence shall
be deemed to be fifteen years or [six-sevenths] ONE-HALF of the term or
aggregate maximum term of the determinate sentence or sentences, which-
ever is greater.
§ 10. Clause (B) of subparagraph (v) of paragraph (e) of subdivision 1
of section 70.30 of the penal law, as amended by chapter 3 of the laws
of 1995, is amended to read as follows:
(B) if the aggregate maximum term of the determinate sentence or
sentences is less than forty years, the defendant shall be deemed to be
serving an indeterminate sentence the maximum term of which shall be
deemed to be forty years. In such instances, the minimum sentence shall
be deemed to be twenty years or [six-sevenths] ONE-HALF of the term or
aggregate maximum term of the determinate sentence or sentences, which-
ever is greater.
§ 11. Clause (B) of subparagraph (vii) of paragraph (e) of subdivision
1 of section 70.30 of the penal law, as amended by chapter 3 of the laws
of 1995, is amended to read as follows:
(B) if the aggregate maximum term of the determinate sentence or
sentences is less than fifty years, the defendant shall be deemed to be
serving an indeterminate sentence the maximum term of which shall be
deemed to be fifty years. In such instances, the minimum sentence shall
be deemed to be twenty-five years or [six-sevenths] ONE-HALF of the term
or aggregate maximum term of the determinate sentence or sentences,
whichever is greater.
§ 12. Paragraph (b) of subdivision 4 of section 70.30 of the penal
law, as amended by chapter 3 of the laws of 1995, is amended to read as
follows:
(b) In the case of a person serving a definite sentence, the total of
such allowances shall not exceed [one-third] ONE-HALF of [his] THEIR
term or aggregate term and the allowances shall be applied as a credit
against such term.
§ 13. Subparagraphs (iii) and (iv) of paragraph (a) of subdivision 1
of section 70.40 of the penal law, as amended by section 127-c of
subpart B of part C of chapter 62 of the laws of 2011, are amended to
read as follows:
(iii) A person who is serving one or more than one indeterminate
sentence of imprisonment and one or more than one determinate sentence
of imprisonment, which run concurrently may be paroled at any time after
the expiration of the minimum period of imprisonment of the indetermi-
nate sentence or sentences, or upon the expiration of [six-sevenths]
ONE-HALF of the term of imprisonment of the determinate sentence or
sentences, whichever is later.
(iv) A person who is serving one or more than one indeterminate
sentence of imprisonment and one or more than one determinate sentence
of imprisonment which run consecutively may be paroled at any time after
the expiration of the sum of the minimum or aggregate minimum period of
the indeterminate sentence or sentences and [six-sevenths] ONE-HALF of
the term or aggregate term of imprisonment of the determinate sentence
or sentences.
§ 14. Paragraph (b) of subdivision 1 of section 70.40 of the penal
law, as amended by section 127-d-1 of subpart B of part C of chapter 62
of the laws of 2011, is amended to read as follows:
(b) A person who is serving one or more than one indeterminate or
determinate sentence of imprisonment shall, if [he or she so requests]
THEY REQUEST, be conditionally released from the institution in which
[he or she is] THEY ARE confined when the total good behavior time
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allowed to [him or her] THEM, pursuant to the provisions of the
correction law, is equal to the unserved portion of [his or her] THEIR
term, maximum term or aggregate maximum term; provided, however, that
(i) in no event shall a person serving one or more indeterminate
sentence of imprisonment and one or more determinate sentence of impri-
sonment which run concurrently be conditionally released until serving
at least [six-sevenths] ONE-HALF of the determinate term of imprisonment
which has the longest unexpired time to run and (ii) in no event shall a
person be conditionally released prior to the date on which such person
is first eligible for discretionary parole release. The conditions of
release, including those governing post-release supervision, shall be
such as may be imposed by the state board of parole in accordance with
the provisions of the executive law.
Every person so released shall be under the supervision of the state
department of corrections and community supervision for a period equal
to the unserved portion of the term, maximum term, aggregate maximum
term, or period of post-release supervision.
§ 15. This act shall take effect immediately; provided, however, that
the amendments to section 803 of the correction law made by section
three of this act shall not affect the expiration of such section and
shall be deemed to expire therewith; provided, further that the amend-
ments to subdivision 2-b of section 803 of the correction law made by
section three of this act shall not affect the repeal of such subdivi-
sion and shall be deemed repealed therewith; provided further, however,
that the amendments to paragraph (e) of subdivision 1 and paragraph (b)
of subdivision four of section 70.30 of the penal law made by sections
eight, nine, ten, eleven, and twelve of this act shall not affect the
expiration of such paragraphs and shall be deemed to expire therewith;
and provided further, however, that the amendments to paragraphs (a) and
(b) of subdivision 1 of section 70.40 of the penal law made by sections
thirteen and fourteen of this act shall not affect the expiration of
such paragraphs and shall be deemed to expire therewith.