* § 806. Presumptive release program for nonviolent incarcerated
individuals. 1. Notwithstanding any other provision of law to the
contrary and except as provided in subdivision two of this section, an
incarcerated individual who has been awarded a certificate of earned
eligibility by the commissioner as set forth in section eight hundred
five of this article may be entitled to presumptive release at the
expiration of the minimum or aggregate minimum period of his or her
indeterminate term of imprisonment, provided that:

(i) the incarcerated individual has not been convicted previously of,
nor is presently serving a sentence imposed for a class A-I felony, a
violent felony offense as defined in section 70.02 of the penal law,
manslaughter in the second degree, vehicular manslaughter in the second
degree, vehicular manslaughter in the first degree, criminally negligent
homicide, an offense defined in article one hundred thirty of the penal
law, incest, or an offense defined in article two hundred sixty-three of
the penal law,

(ii) the incarcerated individual has not committed any serious
disciplinary infraction, and

(iii) there has been no judicial determination that the person while
an incarcerated 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 has not been issued by a
federal court pursuant to rule 11 of the federal rules of civil
procedure imposing sanctions in an action commenced by the incarcerated
individual against a state agency, officer or employee.

2. In the case of an incarcerated individual who meets the criteria
set forth in subdivision one of this section and who also meets the
criteria for merit time as provided for in paragraph (d) of subdivision
one of section eight hundred three of this article, such incarcerated
individual may be entitled to presumptive release, as provided in this
section, at the expiration of five-sixths of the minimum or aggregate
minimum period of his or her indeterminate term of imprisonment.

3. Any incarcerated individual eligible for presumptive release
pursuant to this section shall be required to apply for such release
pursuant to section two hundred six of this chapter.

4. The commissioner shall promulgate rules and regulations for the
granting, withholding, cancellation and recission of presumptive release
authorized by this section in accordance with law.

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
incarcerated 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. The commissioner may
deny presumptive release to any incarcerated 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.

6. Any eligible incarcerated individual who is not released pursuant
to subdivision one or two of this section shall be considered for
discretionary release on parole pursuant to the provisions of section
eight hundred five of this article or section two hundred fifty-nine-i
of the executive law, whichever is applicable.

7. Any reference to parole and conditional release in this chapter
shall also be deemed to include presumptive release.

* NB Repealed September 1, 2025