S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8433
 
                             I N  S E N A T E
 
                             January 29, 2024
                                ___________
 
 Introduced  by Sen. SCARCELLA-SPANTON -- read twice and ordered printed,
   and when printed to be committed to the Committee on Codes
 
 AN ACT to amend the penal law and the correction  law,  in  relation  to
   establishing the crime of harassment of an employee by an incarcerated
   individual
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The penal law is amended by adding a new section 240.33  to
 read as follows:
 § 240.33 HARASSMENT OF AN EMPLOYEE BY AN INCARCERATED INDIVIDUAL.
   AN INCARCERATED INDIVIDUAL OR RESPONDENT IS GUILTY OF HARASSMENT OF AN
 EMPLOYEE  BY  AN  INCARCERATED  INDIVIDUAL  WHEN, WITH INTENT TO HARASS,
 ANNOY, THREATEN OR ALARM A PERSON IN A FACILITY WHOM  SUCH  INCARCERATED
 INDIVIDUAL  KNOWS  OR  REASONABLY  SHOULD KNOW TO BE AN EMPLOYEE OF SUCH
 FACILITY OR THE BOARD OF PAROLE OR THE OFFICE OF  MENTAL  HEALTH,  OR  A
 PROBATION DEPARTMENT, BUREAU OR UNIT OR A POLICE OFFICER, SUCH INCARCER-
 ATED INDIVIDUAL, FOR THE PURPOSE OF DEGRADING OR ABUSING AN EMPLOYEE, OR
 FOR  THE  PURPOSE  OF  GRATIFYING  SUCH INCARCERATED INDIVIDUAL'S SEXUAL
 DESIRE:
   1. DISPLAYS OR TOUCHES THEIR INTIMATE PARTS WHILE IN CLEAR VIEW OF  AN
 EMPLOYEE; OR
   2.  INTENTIONALLY ENGAGES IN CONDUCT THAT SUCH INCARCERATED INDIVIDUAL
 KNOWS WOULD CAUSE AN EMPLOYEE TO BE IN CLEAR VIEW OF  SUCH  INCARCERATED
 INDIVIDUAL  WHILE SUCH INCARCERATED INDIVIDUAL DISPLAYS OR TOUCHES THEIR
 INTIMATE PARTS; OR
   3. COMMUNICATES TO AN EMPLOYEE SUCH INCARCERATED PERSON WILL, AT  SOME
 TIME  IN  THE  FUTURE,  CAUSE SUCH EMPLOYEE TO COME IN CONTACT WITH SUCH
 INCARCERATED PERSON'S BLOOD, URINE, SEMINAL FLUID, OR FECES.
   FOR PURPOSES OF  THIS  SECTION,  "INCARCERATED  INDIVIDUAL"  MEANS  AN
 INCARCERATED  INDIVIDUAL  OR  DETAINEE IN A CORRECTIONAL FACILITY, LOCAL
 CORRECTIONAL FACILITY OR A HOSPITAL, AS SUCH TERM IS DEFINED IN SUBDIVI-
 SION TWO OF SECTION FOUR HUNDRED OF THE CORRECTION LAW. FOR PURPOSES  OF
 THIS  SECTION,  "RESPONDENT" MEANS A JUVENILE IN A SECURE FACILITY OPER-
 ATED AND MAINTAINED BY THE OFFICE OF CHILDREN AND FAMILY SERVICES WHO IS
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD11749-01-3
 S. 8433                             2
 
 PLACED WITH OR COMMITTED TO THE OFFICE OF CHILDREN AND FAMILY  SERVICES.
 FOR  PURPOSES  OF THIS SECTION, "FACILITY" MEANS A CORRECTIONAL FACILITY
 OR LOCAL CORRECTIONAL FACILITY, HOSPITAL, AS SUCH  TERM  IS  DEFINED  IN
 SUBDIVISION  TWO  OF  SECTION  FOUR  HUNDRED OF THE CORRECTION LAW, OR A
 SECURE FACILITY OPERATED AND MAINTAINED BY THE OFFICE  OF  CHILDREN  AND
 FAMILY SERVICES.
   HARASSMENT  OF  AN EMPLOYEE BY AN INCARCERATED INDIVIDUAL IS A CLASS B
 MISDEMEANOR.
   § 2. 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,
 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, NO PERSON UNDER SENTENCE
 FOR  HARASSMENT  OF AN EMPLOYEE BY AN INCARCERATED INDIVIDUAL AS DEFINED
 IN SECTION 240.33 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-
 S. 8433                             3
 
 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.
   §  3.  This  act shall take effect on the thirtieth day after it shall
 have become a law; the amendments to subdivision 2 of section 851 of the
 correction  law  made  by  section  two  of this act  shall  not  affect
 the  expiration  of  such subdivision or section and shall expire and be
 deemed repealed therewith.