S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    608
 
                        2025-2026 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 8, 2025
                                ___________
 
 Introduced  by M. of A. SOLAGES, WEPRIN, 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] 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] SUCH PERSON is  eligi-
 ble  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] SUCH PERSON'S determinate sentence, including any jail time credit-
 ed 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 indeter-
 minate 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD02167-01-5
 A. 608                              2
 
 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 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, 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 individual who is under sentence  for
 a crime involving: (a) infliction of serious physical injury upon anoth-
 er  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 tempo-
 rary release committee at each institution in order to aid such  commit-
 tees in [carrying out this mandate] DETERMINING WHICH INCARCERATED INDI-
 VIDUALS  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-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
 A. 608                              3
 
 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] SUCH INDIVIDUAL was subjected to substantial  physical,
 sexual  or  psychological  abuse  committed  by  the victim, such demon-
 stration 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 documen-
 tation 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 opinion of  the  sentencing  court.  If  such
 opinions are received within forty-five days of the request, the commis-
 sioner  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.
   § 3. 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.
   § 4. 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 expire on the same date as  subdi-
 vision  (c) of section 46 of chapter 60 of the laws of 1994, as amended,
 expires; provided, further, that the amendments to subdivisions 2-a  and
 2-b of section 851 of the correction law, made by sections two and three
 of  this  act  shall not affect the expiration of such section and shall
 expire therewith.