S T A T E   O F   N E W   Y O R K
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                                  2920--A
     Cal. No. 711
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             January 25, 2023
                                ___________
 
 Introduced  by  Sen.  CLEARE -- read twice and ordered printed, and when
   printed to be committed to the Committee on Crime Victims,  Crime  and
   Correction -- reported favorably from said committee, ordered to first
   and  second  report,  ordered  to a third reading, amended and ordered
   reprinted, retaining its place in the order of third reading
 
 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] THREE
 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] THIRTY  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 determi-
 nate  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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD07516-02-3
 S. 2920--A                          2
 
 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
 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. Further, no person
 under sentence for aggravated harassment of an employee by an  incarcer-
 ated  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,  FOR  AN ACT OF TERRORISM AS DEFINED IN ARTICLE FOUR HUNDRED
 NINETY OF THE PENAL LAW, FOR AN OFFENSE INVOLVING THE SEXUAL PERFORMANCE
 OF A CHILD AS DEFINED IN ARTICLE TWO HUNDRED SIXTY-THREE  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 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 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 regu-
 lations giving direction to the  temporary  release  committee  at  each
 institution  in  order  to  aid  such  committees  in [carrying out this
 mandate] DETERMINING WHICH INCARCERATED  INDIVIDUALS  ARE  ELIGIBLE  AND
 APPROPRIATE TO PARTICIPATE IN THE TEMPORARY RELEASE PROGRAMS.
   The governor[, by executive order,] may NOT ISSUE OR ENFORCE ANY EXEC-
 UTIVE  ORDER  TO  exclude  or  limit  the  participation 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 individ-
 uals in such program or] the authority of  the  commissioner  to  impose
 appropriate  regulations  [limiting  such participation] FOR DETERMINING
 WHICH INCARCERATED INDIVIDUALS ARE ELIGIBLE AND APPROPRIATE  TO  PARTIC-
 IPATE  IN THE TEMPORARY RELEASE PROGRAMS. THE COMMISSIONER SHALL PROMUL-
 GATE  REGULATIONS  GIVING  DIRECTION  TO  DEPARTMENT  AND   TRANSITIONAL
 SERVICES  STAFF  WITH  REGARD  TO  DEVELOPING AND PROVIDING PROGRAMMATIC
 SUPPORT TO TEMPORARY RELEASE PARTICIPANTS WITH  EMPHASIS  ON  THE  FIRST
 THREE MONTHS OF WORK RELEASE.
   § 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
 S. 2920--A                          3
 
 eligible for release on parole or conditional release within [two] THREE
 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
 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. FURTHER, NO PERSON
 UNDER SENTENCE FOR AGGRAVATED HARASSMENT OF AN EMPLOYEE BY AN  INCARCER-
 ATED  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,  FOR  AN ACT OF TERRORISM AS DEFINED IN ARTICLE FOUR HUNDRED
 NINETY OF THE PENAL LAW, FOR AN OFFENSE INVOLVING THE SEXUAL PERFORMANCE
 OF A CHILD AS DEFINED IN ARTICLE TWO HUNDRED SIXTY-THREE  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.   [Notwithstand-
 ing  the  foregoing, no person who is an otherwise eligible incarcerated
 individual 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.] 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]  DETERMINING
 WHICH  INCARCERATED  INDIVIDUALS ARE ELIGIBLE AND APPROPRIATE TO PARTIC-
 IPATE IN THE TEMPORARY RELEASE PROGRAMS.
   The governor[, by executive order,] may NOT ISSUE OR ENFORCE ANY EXEC-
 UTIVE ORDER TO exclude or  limit  the  participation  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  individ-
 uals  in  such  program  or] the authority of the commissioner to impose
 appropriate regulations [limiting such  participation]  FOR  DETERMINING
 S. 2920--A                          4
 
 WHICH  INCARCERATED  INDIVIDUALS ARE ELIGIBLE AND APPROPRIATE TO PARTIC-
 IPATE IN TEMPORARY RELEASE PROGRAMS. THE COMMISSIONER  SHALL  PROMULGATE
 REGULATIONS  GIVING  DIRECTION  TO  DEPARTMENT AND TRANSITIONAL SERVICES
 STAFF  WITH  REGARD  TO DEVELOPING AND PROVIDING PROGRAMMATIC SUPPORT TO
 TEMPORARY RELEASE PARTICIPANTS WITH EMPHASIS ON THE FIRST  THREE  MONTHS
 OF WORK RELEASE.
   § 3. Subdivision 2 of section 851 of the correction law, as amended by
 section  228-d 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  where  a  work  release program has been established who is
 eligible for release on parole or who will become eligible  for  release
 on parole within [one year] THREE YEARS.
   §  4. 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] THREE
 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.
   § 5. 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
 S. 2920--A                          5

 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.
   §  6.  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 of such section pursuant  to  subdivi-
 sion  (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 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, when upon such date the
 provisions of section three of this act  shall  take  effect;  provided,
 further,  that the amendments to subdivisions 2-a and 2-b of section 851
 of the correction law, made by sections four and five of this act  shall
 not affect the expiration of such section and shall expire therewith.