S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1970
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             January 17, 2023
                                ___________
 
 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.
                                                            LBD01973-01-3
              

 S. 1970                             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 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
 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
 S. 1970                             3

 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
 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-
 S. 1970                             4
 
 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 section pursuant to subdivision d of section 74 of chapter 3 of the
 laws of 1995, as amended, when upon such date the provisions of sections
 two  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.