S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6481
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              April 11, 2023
                                ___________
 
 Introduced by M. of A. WEPRIN, AUBRY, STECK -- read once and referred to
   the Committee on Correction
 
 AN ACT to amend the correction law, in relation to expanding prison work
   release program eligibility and participation
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. Subdivision 2 of section 851  of  the  correction  law,  as
 amended by section 228 of chapter 322 of the laws of 2021, is amended to
 read as follows:
   2.  "Eligible  incarcerated individual" means: a person confined in an
 institution who is eligible for release on parole  or  who  will  become
 eligible  for release on parole or conditional release within two years.
 [Provided, however, that a person under sentence for an offense  defined
 in  paragraphs  (a)  and  (b) of subdivision one of section 70.02 of the
 penal law, where such offense involved the use or threatened  use  of  a
 deadly  weapon  or dangerous instrument shall not be eligible to partic-
 ipate in a work release program until he or she is eligible for  release
 on  parole  or who will be eligible for release on parole or conditional
 release within eighteen  months.  Provided,  further,  however,  that  a
 person under a determinate sentence as a second felony drug offender for
 a  class  B  felony offense defined in article two hundred twenty of the
 penal law, who was sentenced pursuant to  section  70.70  of  such  law,
 shall  not  be  eligible  to  participate in a temporary release program
 until the time served under imprisonment  for  his  or  her  determinate
 sentence, including any jail time credited pursuant to the provisions of
 article seventy of the penal law, shall be at least eighteen months.] In
 the  case  of a person serving an indeterminate sentence of imprisonment
 imposed pursuant to the penal law in effect after September  one,  nine-
 teen hundred sixty-seven, for the purposes of this article parole eligi-
 bility  shall  be upon the expiration of the minimum period of imprison-
 ment fixed by the court or where the court has  not  fixed  any  period,
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD00643-01-3
              

 A. 6481                             2
 
 after  service of the minimum period fixed by the state board of parole.
 If an incarcerated individual is denied release on parole,  such  incar-
 cerated individual shall not be deemed an eligible incarcerated individ-
 ual  until  he  or  she is within two years of his or her next scheduled
 appearance before the state parole board. In any case where an incarcer-
 ated individual is denied release on parole  while  participating  in  a
 temporary release program, the department shall review the status of the
 incarcerated  individual  to  determine  if  continued  placement in the
 program is appropriate. No person convicted of any escape or  absconding
 offense  defined  in  article two hundred five of the penal law shall be
 eligible for temporary release. [Further, no person under  sentence  for
 aggravated  harassment  of  an employee by an incarcerated individual as
 defined in section 240.32 of the penal law  for,  any  homicide  offense
 defined in article one hundred twenty-five of the penal law, for any sex
 offense  defined  in article one hundred thirty of the penal law, or for
 an offense defined in section 255.25, 255.26 or 255.27 of the penal  law
 shall be eligible to participate in a work release program as defined in
 subdivision  three  of this section. Nor shall any person under sentence
 for any sex offense defined in article one hundred thirty of  the  penal
 law  be  eligible  to  participate  in  a  community services program as
 defined in subdivision five of this section. Notwithstanding the forego-
 ing, no person who is an otherwise eligible incarcerated individual  who
 is under sentence for a crime involving: (a) infliction of serious phys-
 ical  injury  upon  another as defined in the penal law or (b) any other
 offense involving the use or threatened  use  of  a  deadly  weapon  may
 participate  in a temporary release program without the written approval
 of the commissioner.]  The  commissioner  shall  promulgate  regulations
 giving  direction to the temporary release committee at each institution
 in order to aid such committees in carrying out this mandate.
   [The governor, by executive order, may exclude or  limit  the  partic-
 ipation of any class of otherwise eligible incarcerated individuals from
 participation  in a temporary release program. Nothing in this paragraph
 shall be construed to affect either the validity of any executive  order
 previously  issued  limiting  the  participation  of  otherwise eligible
 incarcerated individuals in such program or the authority of the commis-
 sioner to impose appropriate regulations limiting such participation.]
   § 2. Subdivision 2 of section 851 of the correction law, as amended by
 section 228-b of chapter 322 of the laws of 2021, is amended to read  as
 follows:
   2.  "Eligible  incarcerated individual" means: a person confined in an
 institution who is eligible for release on parole  or  who  will  become
 eligible  for release on parole or conditional release within two years.
 [Provided, that a person under a determinate sentence as a second felony
 drug offender for a class  B  felony  offense  defined  in  article  two
 hundred  twenty  of the penal law, who was sentenced pursuant to section
 70.70 of such law, shall not be eligible to participate in  a  temporary
 release  program until the time served under imprisonment for his or her
 determinate sentence, including any jail time credited pursuant  to  the
 provisions  of article seventy of the penal law, shall be at least eigh-
 teen months.] In the case of a person serving an indeterminate  sentence
 of  imprisonment  imposed  pursuant  to  the  penal  law in effect after
 September one, nineteen hundred sixty-seven, for the  purposes  of  this
 article  parole  eligibility shall be upon the expiration of the minimum
 period of imprisonment fixed by the court or where  the  court  has  not
 fixed any period, after service of the minimum period fixed by the state
 board  of  parole.  [If  an incarcerated individual is denied release on
 A. 6481                             3

 parole, such incarcerated individual shall not  be  deemed  an  eligible
 incarcerated  individual  until  he or she is within two years of his or
 her next scheduled appearance before the state  parole  board.]  In  any
 case  where an incarcerated individual is denied release on parole while
 participating in a  temporary  release  program,  the  department  shall
 review the status of the incarcerated individual to determine if contin-
 ued  placement in the program is appropriate. No person convicted of any
 escape or absconding offense defined in article two hundred five of  the
 penal law shall be eligible for temporary release. [Nor shall any person
 under sentence for any sex offense defined in article one hundred thirty
 of  the  penal  law  be  eligible to participate in a community services
 program as defined in subdivision five of this section.  Notwithstanding
 the foregoing, no person who is an otherwise eligible incarcerated indi-
 vidual who is under sentence for a crime involving:  (a)  infliction  of
 serious  physical injury upon another as defined in the penal law, (b) a
 sex offense involving forcible compulsion,  or  (c)  any  other  offense
 involving  the  use or threatened use of a deadly weapon may participate
 in a temporary release program  without  the  written  approval  of  the
 commissioner.] AN INCARCERATED INDIVIDUAL SHALL NOT BE ELIGIBLE FOR WORK
 RELEASE  IF  HE  OR  SHE IS SUBJECT TO A SENTENCE IMPOSED FOR AGGRAVATED
 MURDER AS DEFINED IN SECTION 125.26 OF THE  PENAL  LAW,  MURDER  IN  THE
 FIRST  DEGREE AS DEFINED IN SECTION 125.27 OF THE PENAL LAW, RAPE IN THE
 THIRD DEGREE AS DEFINED IN SECTION 130.25 OF THE PENAL LAW, RAPE IN  THE
 SECOND DEGREE AS DEFINED IN SECTION 130.30 OF THE PENAL LAW, RAPE IN THE
 FIRST  DEGREE  AS  DEFINED  IN SECTION 130.35 OF THE PENAL LAW, CRIMINAL
 SEXUAL ACT IN THE SECOND DEGREE AS DEFINED  IN  SECTION  130.45  OF  THE
 PENAL LAW, CRIMINAL SEXUAL ACT IN THE FIRST DEGREE AS DEFINED IN SECTION
 130.50  OF  THE PENAL LAW, PERSISTENT SEXUAL ABUSE AS DEFINED IN SECTION
 130.53 OF THE PENAL LAW, SEXUAL ABUSE IN THE FIRST DEGREE AS DEFINED  IN
 SECTION  130.65  OF  THE PENAL LAW, AGGRAVATED SEXUAL ABUSE IN THE THIRD
 DEGREE AS DEFINED IN SECTION 130.66 OF THE PENAL LAW, AGGRAVATED  SEXUAL
 ABUSE  IN  THE  SECOND  DEGREE AS DEFINED IN SECTION 130.67 OF THE PENAL
 LAW, AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE AS DEFINED  IN  SECTION
 130.70 OF THE PENAL LAW, COURSE OF SEXUAL CONDUCT AGAINST A CHILD IN THE
 FIRST  DEGREE  AS  DEFINED IN SECTION 130.75 OF THE PENAL LAW, COURSE OF
 SEXUAL CONDUCT AGAINST A CHILD  IN  THE  SECOND  DEGREE  AS  DEFINED  IN
 SECTION  130.80 OF THE PENAL LAW, PREDATORY SEXUAL ASSAULT AS DEFINED IN
 SECTION 130.95 OF THE PENAL LAW,  PREDATORY  SEXUAL  ASSAULT  AGAINST  A
 CHILD AS DEFINED IN SECTION 130.96 OF THE PENAL LAW, PROMOTING PROSTITU-
 TION IN THE SECOND DEGREE AS DEFINED IN SECTION 230.30 OF THE PENAL LAW,
 PROMOTING  PROSTITUTION IN THE FIRST DEGREE AS DEFINED IN SECTION 230.32
 OF THE PENAL LAW, COMPELLING PROSTITUTION AS DEFINED IN  SECTION  230.33
 OF  THE  PENAL  LAW, SEX TRAFFICKING AS DEFINED IN SECTION 230.34 OF THE
 PENAL LAW, INCEST IN THE FIRST OR SECOND DEGREE AS  DEFINED  IN  ARTICLE
 TWO HUNDRED FIFTY-FIVE OF THE PENAL LAW, AN OFFENSE OF TERRORISM DEFINED
 IN  ARTICLE  FOUR  HUNDRED  NINETY  OF THE PENAL LAW, OR AN ATTEMPT OR A
 CONSPIRACY TO COMMIT ANY SUCH OFFENSE. The commissioner shall promulgate
 regulations giving direction to the temporary release committee at  each
 institution  in  order  to  aid  such  committees  in  carrying out this
 mandate.
   [The governor, by executive order, may exclude or  limit  the  partic-
 ipation of any class of otherwise eligible incarcerated individuals from
 participation  in a temporary release program. Nothing in this paragraph
 shall be construed to affect either the validity of any executive  order
 previously  issued  limiting  the  participation  of  otherwise eligible
 A. 6481                             4

 incarcerated individuals in such program or the authority of the commis-
 sioner to impose appropriate regulations limiting such participation.]
   §  3. Subdivision 2-a of section 851 of the correction law, as amended
 by chapter 322 of the laws of 2021, is amended to read as follows:
   2-a. Notwithstanding subdivision two of this section, the term "eligi-
 ble incarcerated individual" shall also include a person confined in  an
 institution  who  is  eligible  for release on parole or who will become
 eligible for release on parole or conditional release within [two]  FOUR
 years, and who was convicted of a homicide offense as defined in article
 one  hundred  twenty-five of the penal law or an assault offense defined
 in article one hundred twenty of the penal law, and who can  demonstrate
 to the commissioner that: (a) the victim of such homicide or assault was
 a  member of the incarcerated individual's immediate family as that term
 is defined in section 120.40 of the penal law or had a child  in  common
 with  the  incarcerated  individual; (b) the incarcerated individual was
 subjected to substantial physical, sexual or psychological abuse commit-
 ted by the victim of such homicide or assault; and (c) such abuse was  a
 substantial factor in causing the incarcerated individual to commit such
 homicide  or assault. With respect to an incarcerated individual's claim
 that he or she was subjected to substantial physical, sexual or  psycho-
 logical  abuse committed by the victim, such demonstration shall include
 corroborative material that may include, but is not limited to,  witness
 statements,  social  services records, hospital records, law enforcement
 records and a showing based in part on documentation prepared at or near
 the time of the commission of the offense  or  the  prosecution  thereof
 tending  to support the incarcerated individual's claim. Prior to making
 a determination under this subdivision, the commissioner is required  to
 request and take into consideration the opinion of the district attorney
 who  prosecuted the underlying homicide or assault offense and the opin-
 ion of the sentencing  court.  If  such  opinions  are  received  within
 forty-five  days  of  the request, the commissioner shall take them into
 consideration. If such opinions are not so  received,  the  commissioner
 may  proceed  with  the  determination.  Any  action by the commissioner
 pursuant to this subdivision shall be deemed  a  judicial  function  and
 shall not be reviewable in any court.
   § 4. Subdivision 2-b of section 851 of the correction law, as added by
 chapter 738 of the laws of 2004, is amended to read as follows:
   2-b. When calculating in advance the date on which a person is or will
 be  eligible  for release on parole or conditional release, for purposes
 of determining eligibility for temporary release or for placement at  an
 alcohol  and  substance  abuse treatment correctional annex, the commis-
 sioner shall consider and include credit for all potential  credits  and
 reductions  including  but  not  limited to merit time, ADDITIONAL MERIT
 TIME and good behavior allowances. Nothing in this subdivision shall  be
 interpreted  as precluding the consideration and inclusion of credit for
 all potential credits and reductions  including,  but  not  limited  to,
 merit  time,  ADDITIONAL  MERIT  TIME  and good behavior allowances when
 calculating in advance for any other purpose the date on which a  person
 is or will be eligible for release on parole or conditional release.
   §  5.  This  act shall take effect immediately, provided however, that
 the amendments to subdivision 2 of section 851  of  the  correction  law
 made  by  section one of this act shall be subject to the expiration and
 reversion of such subdivision and section pursuant to subdivision (c) of
 section 46 of chapter 60 of the laws of 1994 and section 10  of  chapter
 339  of the laws of 1972, as amended, when upon such date the provisions
 of section two of this act shall take effect; provided further, that the
 A. 6481                             5

 amendments to subdivision 2 of section 851 of the correction law made by
 section two of this act shall expire on the same date as subdivision (c)
 of section 46 of chapter 60 of the laws of 1994, section 10  of  chapter
 339  of  the  laws  of 1972, and section 5 of chapter 554 of the laws of
 1986, as amended, expire; provided further that the amendments to subdi-
 visions 2-a and 2-b of section  851  of  the  correction  law,  made  by
 sections  three  and four of this act shall not affect the expiration of
 such section and shall expire therewith.