STATE OF NEW YORK
________________________________________________________________________
774
2023-2024 Regular Sessions
IN SENATE
January 6, 2023
___________
Introduced by Sens. COONEY, BRISPORT, BROUK, CLEARE, COMRIE, GIANARIS,
HOYLMAN, JACKSON, MAY, MYRIE, PARKER, RAMOS, RIVERA, SALAZAR, SEPULVE-
DA -- 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 and the penal law, in relation to the
early release of incarcerated individuals
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as the "earned
2 time act".
3 § 2. The correction law is amended by adding a new section 802 to read
4 as follows:
5 § 802. Data collection. The department shall report annually to the
6 governor and the legislature with respect to each instance in which time
7 allowance credit has been withheld, forfeited or cancelled. The report
8 shall provide the following information: the name, department identifi-
9 cation number and race of each incarcerated individual who has been
10 denied credit and the amount of credit involved, the reason or reasons
11 for the denial, including, where applicable, a description of the bad
12 behavior or institutional rule violation or violations (including the
13 corresponding numerical code in the department's inmate rule handbook),
14 and, where applicable, a description of the assigned duty and/or iden-
15 tification of assigned treatment program in which the incarcerated
16 person was determined to have failed to perform properly. The report
17 shall additionally specify the department facility in which the recom-
18 mendation to withhold, forfeit or cancel good time was made and the
19 names of the department personnel on such facility's time allowance
20 committee who made such recommendation.
21 § 3. Section 803 of the correction law, as amended by chapter 3 of the
22 laws of 1995, paragraphs (a), (b), and (c) of subdivision 1 and subdivi-
23 sions 3, 4, and 5 as amended by section 37 of subpart B of part C of
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02637-01-3
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1 chapter 62 of the laws of 2011, paragraph (d) of subdivision 1 and
2 subdivision 2-a as added by chapter 738 of the laws of 2004, subpara-
3 graph (ii) of paragraph (d) of subdivision 1 as amended by chapter 322
4 of the laws of 2021, subparagraph (iv) of paragraph (d) of subdivision 1
5 as separately amended by chapters 242 and 322 of the laws of 2021,
6 subdivision 2-b as added by section 3 of part E of chapter 62 of the
7 laws of 2003, is amended to read as follows:
8 § 803. Good behavior allowances against indeterminate and determinate
9 sentences. 1. (a) Every person confined in an institution of the depart-
10 ment or a facility in the department of mental hygiene serving an inde-
11 terminate or determinate sentence of imprisonment, except a person serv-
12 ing a sentence with a maximum term of life imprisonment, [may] shall
13 receive a time allowance against the term or maximum term of [his or
14 her] their sentence imposed by the court. Such allowances [may be grant-
15 ed for good behavior and efficient and willing performance of duties
16 assigned or progress and achievement in an assigned treatment program,
17 and may be withheld, forfeited or canceled in whole or in part for bad
18 behavior, violation of institutional rules or failure to perform proper-
19 ly in the duties or program assigned] shall be credited toward a
20 person's sentence on an annual pro rata basis, and any credit awarded
21 over the course of the calendar year shall vest on the final day of the
22 calendar year. Once vested, such credit shall not be withheld,
23 forfeited, or canceled.
24 (a-1) Time allowances that have not yet been credited toward a
25 person's sentence may be withheld, forfeited or canceled in whole or in
26 part for violation of institutional rules, as demonstrated at a hearing
27 by a preponderance of the evidence. Such restrictions shall be limited
28 to the pro rata share of credit within the calendar year that the
29 offense is committed. If such time allowance is withheld, forfeited or
30 canceled in whole or in part, further allowances, not to exceed the
31 allowances set forth in paragraphs (b) and (c) of this subdivision, may
32 be reinstated for good behavior and efficient and willing performance of
33 duties assigned or progress and achievement in an assigned treatment
34 program. Following any final determination withholding, forfeiting, or
35 canceling a time allowance, the incarcerated person shall have the right
36 to take an administrative appeal to the central office of the department
37 and shall be advised of the right to seek legal assistance in the taking
38 of such appeal. The department shall adopt regulations in accordance
39 with this provision.
40 (b) A person serving an indeterminate sentence of imprisonment [may]
41 shall receive a time allowance against the maximum term of [his or her]
42 their sentence [not to exceed one-third] of one-half of the maximum term
43 imposed by the court.
44 (c) A person serving a determinate sentence of imprisonment [may]
45 shall receive a time allowance against the term of [his or her] their
46 sentence [not to exceed one-seventh] of one-half of the term imposed by
47 the court.
48 (d) (i) [Except as provided in subparagraph (ii) of this paragraph,
49 every] Every person under the custody of the department or confined in a
50 facility in the department of mental hygiene serving an indeterminate
51 sentence of imprisonment with a minimum period of one year or more or a
52 determinate sentence of imprisonment of one year or more [imposed pursu-
53 ant to section 70.70 or 70.71 of the penal law,] may earn a merit time
54 allowance.
55 (ii) [Such merit time allowance shall not be available to any person
56 serving an indeterminate sentence authorized for an A-I felony offense,
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1 other than an A-I felony offense defined in article two hundred twenty
2 of the penal law, or any sentence imposed for a violent felony offense
3 as defined in section 70.02 of the penal law, manslaughter in the second
4 degree, vehicular manslaughter in the second degree, vehicular
5 manslaughter in the first degree, criminally negligent homicide, an
6 offense defined in article one hundred thirty of the penal law, incest,
7 or an offense defined in article two hundred sixty-three of the penal
8 law, or aggravated harassment of an employee by an incarcerated individ-
9 ual.
10 (iii)] The merit time allowance credit against the minimum period of
11 the indeterminate sentence shall be [one-sixth] one-half of the minimum
12 period imposed by the court [except that such credit shall be one-third
13 of the minimum period imposed by the court for an A-I felony offense
14 defined in article two hundred twenty of the penal law]. In the case of
15 such a determinate sentence, in addition to the time allowance credit
16 authorized by paragraph (c) of this subdivision, the merit time allow-
17 ance credited against the term of the determinate sentence pursuant to
18 this paragraph shall be [one-seventh] one-quarter of the term imposed by
19 the court.
20 [(iv)] (iii) Such merit time allowance [may] shall be granted when an
21 incarcerated individual successfully participates in the work and treat-
22 ment program assigned pursuant to section eight hundred five of this
23 article [and], including but not limited to when such incarcerated indi-
24 vidual obtains a general equivalency diploma, an alcohol and substance
25 abuse treatment certificate, a vocational trade certificate [following
26 at least six months of vocational programming], at least eighteen cred-
27 its in a program registered by the state education department from a
28 degree-granting higher education institution or performs at least four
29 hundred hours of service as part of a community work crew, or success-
30 fully completes one or more "significant programmatic accomplishments"
31 as defined in paragraph (c) of subdivision one of section eight hundred
32 three-b of this article. The commissioner may designate additional
33 programs and achievements for which merit time shall be granted. Once
34 granted, such allowances shall not be withheld, forfeited, or cancelled.
35 Where the institution in which the incarcerated individual is confined
36 does not provide opportunities for every incarcerated individual to earn
37 merit time allowances, such merit time allowance shall be automatically
38 credited against the incarcerated individual's sentence according to
39 subparagraph (ii) of this paragraph.
40 [Such allowance shall be withheld for any serious disciplinary infrac-
41 tion or upon a judicial determination that the person, while an incar-
42 cerated individual, commenced or continued a civil action, proceeding or
43 claim that was found to be frivolous as defined in subdivision (c) of
44 section eight thousand three hundred three-a of the civil practice law
45 and rules, or an order of a federal court pursuant to rule 11 of the
46 federal rules of civil procedure imposing sanctions in an action
47 commenced by a person, while an incarcerated individual, against a state
48 agency, officer or employee.
49 (v)] (iv) The provisions of this paragraph shall apply to persons in
50 custody serving [an] a determinate or indeterminate sentence on the
51 effective date of this paragraph as well as to persons sentenced to [an]
52 a determinate or indeterminate sentence on and after the effective date
53 of this paragraph [and prior to September first, two thousand five and
54 to persons sentenced to a determinate sentence prior to September first,
55 two thousand eleven for a felony as defined in article two hundred twen-
56 ty or two hundred twenty-one of the penal law]. The time allowances set
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1 forth in this paragraph shall apply retroactively and shall be credited
2 toward every incarcerated individual's sentence within ninety days of
3 the chapter of the laws of two thousand twenty-three that amended this
4 paragraph.
5 2. If a person is serving more than one sentence, the authorized
6 allowances may be granted separately against the term or maximum term of
7 each sentence or, where consecutive sentences are involved, against the
8 aggregate maximum term. Such allowances shall be calculated as follows:
9 (a) A person serving two or more indeterminate sentences which run
10 concurrently [may] shall receive a time allowance [not to exceed one-
11 third] of one-half of the indeterminate sentence which has the longest
12 unexpired time to run.
13 (b) A person serving two or more indeterminate sentences which run
14 consecutively [may] shall receive a time allowance [not to exceed one-
15 third] of one-half of the aggregate maximum term.
16 (c) A person serving two or more determinate sentences which run
17 concurrently [may] shall receive a time allowance [not to exceed one-
18 seventh] of one-half of the determinate sentence which has the longest
19 unexpired time to run.
20 (d) A person serving two or more determinate sentences which run
21 consecutively [may] shall receive a time allowance [not to exceed one-
22 seventh] of one-half of the aggregate maximum term.
23 (e) A person serving one or more indeterminate sentence and one or
24 more determinate sentence which run concurrently [may] shall receive a
25 time allowance [not to exceed one-third] of one-half of the indetermi-
26 nate sentence which has the longest unexpired term to run or [one-sev-
27 enth] one-half of the determinate sentence which has the longest unex-
28 pired time to run, whichever allowance is greater.
29 (f) A person serving one or more indeterminate sentence and one or
30 more determinate sentence which run consecutively [may] shall receive a
31 time allowance [not to exceed] of the sum of [one-third] one-half of the
32 maximum or aggregate maximum of the indeterminate sentence or sentences
33 and [one-seventh] one-half of the term or aggregate maximum of the
34 determinate sentence or sentences.
35 2-a. If a person is serving more than one sentence, the authorized
36 merit time allowances may be granted against the period or aggregate
37 minimum period of the indeterminate sentence or sentences, or against
38 the term or aggregate term of the determinate sentence or sentences, or
39 where consecutive determinate and indeterminate sentences are involved,
40 against the aggregate minimum period as calculated pursuant to subpara-
41 graph (iv) of paragraph (a) of subdivision one of section 70.40 of the
42 penal law. Such allowances shall be calculated as follows:
43 (a) A person serving two or more indeterminate sentences which run
44 concurrently may receive a merit time allowance not to exceed [one-
45 sixth] one-half of the minimum period of the indeterminate sentence
46 imposed [for an offense other than an A-I felony offense defined in
47 article two hundred twenty of the penal law, or one-third of the minimum
48 period of the indeterminate sentence imposed for an A-I felony offense
49 defined in article two hundred twenty of the penal law, whichever allow-
50 ance results in the longest unexpired time to run] by the court.
51 (b) A person serving two or more indeterminate sentences which run
52 consecutively may receive a merit time allowance not to exceed the
53 amount of [one-third] one-half of the minimum or aggregate minimum peri-
54 od of the sentences imposed [for an A-I felony offense defined in arti-
55 cle two hundred twenty of the penal law, plus one-sixth of the minimum
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1 or aggregate minimum period of the sentences imposed for an offense
2 other than such A-I felony offense] by the court.
3 (c) A person serving two or more determinate sentences [for an offense
4 defined in article two hundred twenty or two hundred twenty-one of the
5 penal law] which run concurrently may receive a merit time allowance not
6 to exceed [one-seventh] one-quarter of the term of the determinate
7 sentence which has the longest unexpired time to run.
8 (d) A person serving two or more determinate sentences [for an offense
9 defined in article two hundred twenty or two hundred twenty-one of the
10 penal law] which run consecutively may receive a merit time allowance
11 not to exceed [one-seventh] one-quarter of the aggregate term of such
12 determinate sentences.
13 (e) A person serving one or more indeterminate sentences and one or
14 more determinate sentences [for an offense defined in article two
15 hundred twenty or two hundred twenty-one of the penal law] which run
16 concurrently may receive a merit time allowance not to exceed [one-
17 sixth] one-half of the minimum period of the indeterminate sentence
18 imposed [for an offense other than an A-I felony offense defined in
19 article two hundred twenty of the penal law, one-third of the minimum
20 period of the indeterminate sentence imposed for an A-I felony offense
21 defined in article two hundred twenty of the penal law,] or [one-sev-
22 enth] one-quarter of the term of the determinate sentence, whichever
23 allowance results in the largest unexpired time to run.
24 (f) A person serving one or more indeterminate sentences and one or
25 more determinate sentences which run consecutively may receive a merit
26 time allowance not to exceed the sum of [one-sixth] one-half of the
27 minimum or aggregate minimum period of the indeterminate sentence or
28 sentences imposed [for an offense other than an A-I felony offense
29 defined in article two hundred twenty of the penal law, one-third of the
30 minimum or aggregate minimum period of the indeterminate sentence or
31 sentences imposed for an A-I felony offense defined in article two
32 hundred twenty of the penal law] and [one-seventh] one-quarter of the
33 term or aggregate term of the determinate sentence or sentences.
34 (g) The provisions of this subdivision shall apply to persons in
35 custody serving [an] a determinate or indeterminate sentence on the
36 effective date of this subdivision as well as to persons sentenced to
37 [an] a determinate or indeterminate sentence on and after the effective
38 date of this subdivision [and prior to September first, two thousand
39 five and to persons sentenced to a determinate sentence prior to Septem-
40 ber first, two thousand eleven for a felony as defined in article two
41 hundred twenty or two hundred twenty-one of the penal law]. The merit
42 time allowances set forth in this subdivision shall apply retroactively,
43 and shall be credited toward every incarcerated individual's sentence
44 within ninety days of the effective date of the chapter of the laws of
45 two thousand twenty-three that amended this subdivision.
46 [2-b. Notwithstanding the foregoing, if a person is serving more than
47 one indeterminate sentence, at least one of which is imposed for a class
48 A-I felony offense defined in article two hundred twenty of the penal
49 law, the authorized merit time allowance granted pursuant to paragraph
50 (d) of subdivision one of this section shall be calculated as follows:
51 (a) In the event a person is serving two or more indeterminate
52 sentences with different minimum periods which run concurrently, the
53 merit time allowance shall be based upon the sentence with the longest
54 unexpired minimum period. If the sentence with the longest unexpired
55 minimum period was imposed for a class A-I felony, the merit time credit
56 shall be one-third of such sentence's minimum period; if such sentence
S. 774 6
1 was imposed for an offense other than a class A-I felony, such merit
2 time credit shall be one-sixth of such sentence's minimum period.
3 Provided, however, that where the minimum period of any other concurrent
4 indeterminate sentence is greater than such reduced minimum period, the
5 minimum period of such other concurrent indeterminate sentence shall
6 also be reduced but only to the extent that the minimum period of such
7 other concurrent sentence, as so reduced, is equal to the reduced mini-
8 mum period of such sentence with the longest unexpired minimum period to
9 run.
10 (b) A person serving two or more indeterminate sentences with the same
11 minimum periods which run concurrently, and no concurrent indeterminate
12 sentence with any greater minimum period, shall have the minimum period
13 of each such sentence reduced in the amount of one-third of such minimum
14 period if all such sentences were imposed for a class A-I felony.
15 (c) A person serving two or more indeterminate sentences that run
16 consecutively shall have the aggregate minimum period of such sentences
17 reduced in the amount of one-third of such aggregate minimum period of
18 the sentences imposed for a class A-I felony, plus one-sixth of such
19 aggregate minimum period of the sentences imposed for an offense other
20 than a class A-I felony.]
21 3. The commissioner of corrections and community supervision shall
22 promulgate rules and regulations for the fair and equitable granting,
23 withholding, forfeiture, cancellation and restoration of allowances
24 authorized by this section in accordance with the criteria herein speci-
25 fied. Such rules and regulations shall specify procedures to ensure that
26 similarly situated incarcerated persons are treated similarly with
27 respect to the granting, withholding, forfeiture or cancellation of
28 allowances, and include provisions designating the person or committee
29 in each correctional institution delegated to make discretionary deter-
30 minations with respect to the allowances, the books and records to be
31 kept, and a procedure for review of the institutional determinations by
32 the commissioner.
33 4. [No person shall have the right to demand or require the allowances
34 authorized by this section. The decision of the commissioner of
35 corrections and community supervision as to the granting, withholding,
36 forfeiture, cancellation or restoration of such allowances shall be
37 final and shall not be reviewable if made in accordance with law.
38 5.] Time allowances granted prior to any release to community super-
39 vision shall be forfeited and shall not be restored if the released
40 person is returned to an institution under the jurisdiction of the state
41 department of corrections and community supervision for violation of
42 community supervision or by reason of a conviction for a crime committed
43 while on community supervision. A person who is so returned may, howev-
44 er, subsequently receive time allowances against the remaining portion
45 of [his or her] their term, maximum term or aggregate maximum term
46 pursuant to this section [and provided such remaining portion of his or
47 her term, maximum term, or aggregate maximum term is more than one
48 year].
49 [6.] 5. Upon commencement of an indeterminate or a determinate
50 sentence the provisions of this section shall be furnished to the person
51 serving the sentence and the meaning of same shall be fully explained to
52 [him] them by a person designated by the commissioner to perform such
53 duty.
54 § 4. Section 804 of the correction law, as added by chapter 680 of the
55 laws of 1967, subdivisions 1 and 2 as amended by chapter 145 of the laws
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1 of 1976, and subdivision 6 as amended by section 39 of subpart B of part
2 C of chapter 62 of the laws of 2011, is amended to read as follows:
3 § 804. Good behavior allowances against definite sentences. 1. Every
4 person confined in an institution serving a definite sentence of impri-
5 sonment [may] shall receive a time [allowances as discretionary
6 reductions of the term of his sentence not to exceed in the aggregate
7 one-third] allowance of one-half of the term imposed by the court. Such
8 allowances [may be granted for good behavior and efficient and willing
9 performance of duties assigned or progress and achievement in an
10 assigned treatment program, and may be withheld, forfeited or cancelled
11 in whole or in part for bad behavior, violation of institutional rules
12 or failure to perform properly in the duties or program assigned] shall
13 be credited toward a person's sentence on an annual pro rata basis, and
14 any credit awarded over the course of the calendar year shall vest on
15 the final day of the calendar year. Once vested, such credit shall not
16 be withheld, forfeited, or canceled.
17 1-a. Time allowances that have not yet been granted toward a person's
18 sentence may be withheld, forfeited or canceled in whole or in part for
19 violation of institutional rules, as demonstrated at a hearing by a
20 preponderance of the evidence. Such restrictions shall be limited to the
21 pro rata share of credit within the calendar year that the offense is
22 committed. If such time allowance is withheld, forfeited or canceled in
23 whole or in part, further allowances, not to exceed one-half of the term
24 imposed by the court, may be reinstated for good behavior and efficient
25 and willing performance of duties assigned or progress and achievement
26 in an assigned treatment program. Following any final determination
27 withholding, forfeiting, or canceling a time allowance, the incarcerated
28 person shall have the right to take an administrative appeal to the
29 sheriff and shall be advised of the right to seek legal assistance in
30 the taking of such appeal. The sheriff shall adopt regulations in
31 accordance with this provision.
32 2. If a person is serving more than one sentence, the authorized
33 allowances may be granted separately against the term of each sentence
34 or, where consecutive sentences are involved, against the aggregate
35 term. Allowances based upon sentences of less than one month may be
36 granted, and in such case the maximum allowance shall be one day for
37 every [three] two days of the sentence. In no case, however, shall the
38 total of all allowances granted to any such person exceed [one-third]
39 one-half of the time [he] they would be required to serve, computed
40 without regard to this section.
41 3. [No person shall have the right to demand or require the allowances
42 authorized by this section. The decision of the sheriff, superintendent,
43 warden or other person in charge of the institution, or where such
44 institution is under the jurisdiction of a county or city department the
45 decision of the head of such department, as to the granting, withhold-
46 ing, forfeiture, cancellation or restoration of such allowances shall be
47 final and shall not be reviewable if made in accordance with law.
48 4.] A person who has earned a reduction of sentence pursuant to this
49 section and who has been conditionally released under subdivision two of
50 section 70.40 of the penal law shall not forfeit such reduction by
51 reason of conduct causing [his] their return to the institution.
52 Provided, nevertheless, that such reduction may be forfeited by reason
53 of subsequent conduct while serving the remainder of [his] their term.
54 [5.] 4. The state commission of correction shall promulgate record
55 keeping rules and regulations for the fair and equitable granting, with-
56 holding, forfeiture, cancellation and restoration of allowances author-
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1 ized by this section. Such rules and regulations shall specify proce-
2 dures to ensure that similarly situated incarcerated persons are treated
3 similarly with respect to the granting, withholding, forfeiture or
4 cancellation of allowances.
5 [6.] 5. Notwithstanding anything to the contrary in this section, in
6 any case where a person is serving a definite sentence in an institution
7 under the jurisdiction of the state department of corrections and commu-
8 nity supervision, [subdivisions] subdivision three [and four] of section
9 eight hundred three of this [chapter] article shall apply.
10 [7.] 6. Upon commencement of any definite sentence the provisions of
11 this section shall be furnished to the person serving the sentence and
12 the meaning of same shall be fully explained to [him] them by an officer
13 designated in the regulation to perform such duty.
14 § 5. Section 804-a of the correction law, as added by chapter 220 of
15 the laws of 1987, is amended to read as follows:
16 § 804-a. Good behavior allowances for certain civil commitments. 1.
17 Every person confined in an institution serving a civil commitment for a
18 fixed period of time, whose release is not conditional upon any act
19 within [his] their power to perform, [may] shall receive time allowances
20 as discretionary reductions of the term of [his] their commitment not to
21 exceed, in the aggregate, [one-third] one-half of the term imposed by
22 the court. Such allowances [may be granted for good behavior and effi-
23 cient and willing performance of duties assigned or progress and
24 achievement in an assigned treatment program, and may be withheld,
25 forfeited or cancelled in whole or in part for bad behavior, violation
26 of institutional rules or failure to perform properly in the duties or
27 program assigned] shall be credited toward a person's sentence on an
28 annual pro rata basis, and any credit awarded over the course of the
29 calendar year shall vest on the final day of the calendar year. Once
30 vested, such credit shall not be withheld, forfeited, or canceled.
31 1-a. Time allowances that have not yet been granted toward a person's
32 sentence may be withheld, forfeited or canceled in whole or in part for
33 violation of institutional rules, as demonstrated at a hearing by a
34 preponderance of the evidence. Such restrictions shall be limited to the
35 pro rata share of credit within the calendar year that the offense is
36 committed. If such time allowance is withheld, forfeited or canceled in
37 whole or in part, further allowances, not to exceed one-half of the term
38 imposed by the court, may be reinstated for good behavior and efficient
39 and willing performance of duties assigned or progress and achievement
40 in an assigned treatment program. Following any final determination
41 withholding, forfeiting, or canceling a time allowance, the incarcerated
42 person shall have the right to take an administrative appeal to the
43 central office of the department and shall be advised of the right to
44 seek legal assistance in the taking of such appeal. The department shall
45 adopt regulations in accordance with this provision.
46 2. Allowances based upon commitments of less than one month may be
47 granted, and in such case the maximum allowances shall be one day for
48 every [three] two days of the commitment. In no case, however, shall the
49 total of all allowances granted to any such person exceed [one-third]
50 one-half of the time [he] they would be required to serve, computed
51 without regard to this section.
52 3. [No person shall have the right to demand or require the allowances
53 authorized by this section. The decision of the sheriff, superintendent,
54 warden or other person in charge of the institution, or where such
55 institution is under the jurisdiction of a county or city department the
56 decision of the head of such department, as to the granting, withhold-
S. 774 9
1 ing, forfeiture, cancellation, or restoration of such allowances shall
2 be final and shall not be reviewable if made in accordance with law.
3 4.] The state commission of correction shall promulgate record keeping
4 rules and regulations for the granting, withholding, forfeiture, cancel-
5 lation and restoration of allowances authorized by this section.
6 [5.] 4. Upon commencement of any civil commitment as described in
7 subdivision one of this section, the provisions of this section shall be
8 furnished to the person serving the commitment and the meaning of same
9 shall be fully explained to [him] them by an officer designated in the
10 regulation to perform such duty.
11 § 6. Section 865 of the correction law, as added by chapter 261 of the
12 laws of 1987, subdivisions 1 and 2 as amended by chapter 322 of the laws
13 of 2021, is amended to read as follows:
14 § 865. Definitions. As used in this article, [the following terms
15 mean:
16 1. "Eligible incarcerated individual" means a person sentenced to an
17 indeterminate term of imprisonment who will become eligible for release
18 on parole within three years or sentenced to a determinate term of
19 imprisonment who will become eligible for conditional release within
20 three years, who has not reached the age of fifty years, who has not
21 previously been convicted of a violent felony as defined in article
22 seventy of the penal law, or a felony in any other jurisdiction which
23 includes all of the essential elements of any such violent felony, upon
24 which an indeterminate or determinate term of imprisonment was imposed
25 and who was between the ages of sixteen and fifty years at the time of
26 commission of the crime upon which his or her present sentence was
27 based. Notwithstanding the foregoing, no person who is convicted of any
28 of the following crimes shall be deemed eligible to participate in this
29 program: (a) a violent felony offense as defined in article seventy of
30 the penal law; provided, however, that a person who is convicted of
31 burglary in the second degree as defined in subdivision two of section
32 140.25 of the penal law, or robbery in the second degree as defined in
33 subdivision one of section 160.10 of the penal law, or an attempt there-
34 of, is eligible to participate, (b) an A-I felony offense, (c) any homi-
35 cide offense as defined in article one hundred twenty-five of the penal
36 law, (d) any felony sex offense as defined in article one hundred thirty
37 of the penal law and (e) any escape or absconding offense as defined in
38 article two hundred five of the penal law.
39 2. "Shock] "shock incarceration program" means a program pursuant to
40 which eligible incarcerated individuals are selected to participate in
41 the program and serve a period of six months in a shock incarceration
42 facility, which shall provide rigorous physical activity, intensive
43 regimentation and discipline and rehabilitation therapy and programming.
44 Such incarcerated individuals may be selected either: (i) at a reception
45 center; or (ii) at a general confinement facility [when the otherwise
46 eligible incarcerated individual then becomes eligible for release on
47 parole within three years in the case of an indeterminate term of impri-
48 sonment, or then becomes eligible for conditional release within three
49 years in the case of a determinate term of imprisonment].
50 § 7. Section 867 of the correction law, as amended by chapter 322 of
51 the laws of 2021, is amended to read as follows:
52 § 867. Procedure for selection of participants in shock incarceration
53 program. 1. An [eligible] incarcerated individual may make an applica-
54 tion to the shock incarceration screening committee for permission to
55 participate in the shock incarceration program.
S. 774 10
1 2. If the shock incarceration screening committee determines that an
2 incarcerated individual's participation in the shock incarceration
3 program is consistent with the safety of the community, the welfare of
4 the applicant and the rules and regulations of the department, the
5 committee shall forward the application to the commissioner or [his] a
6 designee for approval or disapproval.
7 2-a. Subdivisions one and two of this section shall apply to a judi-
8 cially sentenced shock incarceration incarcerated individual only to the
9 extent that the screening committee may determine whether the incarcer-
10 ated individual has a medical or mental health condition that will
11 render the incarcerated individual unable to successfully complete the
12 shock incarceration program, and the facility in which the incarcerated
13 individual will participate in such program. Notwithstanding subdivi-
14 sion five of this section, an incarcerated individual sentenced to shock
15 incarceration shall promptly commence participation in the program [when
16 such incarcerated individual is an eligible incarcerated individual
17 pursuant to subdivision one of section eight hundred sixty-five of this
18 article].
19 3. Applicants cannot participate in the shock incarceration program
20 unless they agree to be bound by all the terms and conditions thereof
21 and indicate such agreement by signing the memorandum of the program
22 immediately below a statement reading as follows:
23 "I accept the foregoing program and agree to be bound by the terms and
24 conditions thereof. I understand that my participation in the program is
25 a privilege that may be revoked at any time at the sole discretion of
26 the commissioner. I understand that I must successfully complete the
27 entire program to obtain a certificate of earned eligibility upon the
28 completion of said program, and in the event that I do not successfully
29 complete said program, for any reason, I will be transferred to a
30 nonshock incarceration correctional facility to continue service of my
31 sentence."
32 4. An incarcerated individual who has successfully completed a shock
33 incarceration program shall be eligible to receive such a certificate of
34 earned eligibility pursuant to section eight hundred five of this chap-
35 ter. Notwithstanding any other provision of law, an incarcerated indi-
36 vidual sentenced to a determinate sentence of imprisonment who has
37 successfully completed a shock incarceration program shall be eligible
38 to receive such a certificate of earned eligibility and shall be imme-
39 diately eligible to be conditionally released.
40 5. Participation in the shock incarceration program shall be a privi-
41 lege. Nothing contained in this article may be construed to confer upon
42 any incarcerated individual the right to participate or continue to
43 participate therein.
44 § 8. Clause (B) of subparagraph (ii) of paragraph (e) of subdivision 1
45 of section 70.30 of the penal law, as amended by chapter 3 of the laws
46 of 1995, is amended to read as follows:
47 (B) if the aggregate maximum term of the determinate sentence or
48 sentences is less than twenty years, the defendant shall be deemed to be
49 serving an indeterminate sentence the maximum term of which shall be
50 deemed to be twenty years. In such instances, the minimum sentence shall
51 be deemed to be ten years or [six-sevenths] one-half of the term or
52 aggregate maximum term of the determinate sentence or sentences, which-
53 ever is greater.
54 § 9. Clause (B) of subparagraph (iii) of paragraph (e) of subdivision
55 1 of section 70.30 of the penal law, as amended by chapter 3 of the laws
56 of 1995, is amended to read as follows:
S. 774 11
1 (B) if the aggregate maximum term of the determinate sentence or
2 sentences is less than thirty years, the defendant shall be deemed to be
3 serving an indeterminate sentence the maximum term of which shall be
4 deemed to be thirty years. In such instances, the minimum sentence shall
5 be deemed to be fifteen years or [six-sevenths] one-half of the term or
6 aggregate maximum term of the determinate sentence or sentences, which-
7 ever is greater.
8 § 10. Clause (B) of subparagraph (v) of paragraph (e) of subdivision 1
9 of section 70.30 of the penal law, as amended by chapter 3 of the laws
10 of 1995, is amended to read as follows:
11 (B) if the aggregate maximum term of the determinate sentence or
12 sentences is less than forty years, the defendant shall be deemed to be
13 serving an indeterminate sentence the maximum term of which shall be
14 deemed to be forty years. In such instances, the minimum sentence shall
15 be deemed to be twenty years or [six-sevenths] one-half of the term or
16 aggregate maximum term of the determinate sentence or sentences, which-
17 ever is greater.
18 § 11. Clause (B) of subparagraph (vii) of paragraph (e) of subdivision
19 1 of section 70.30 of the penal law, as amended by chapter 3 of the laws
20 of 1995, is amended to read as follows:
21 (B) if the aggregate maximum term of the determinate sentence or
22 sentences is less than fifty years, the defendant shall be deemed to be
23 serving an indeterminate sentence the maximum term of which shall be
24 deemed to be fifty years. In such instances, the minimum sentence shall
25 be deemed to be twenty-five years or [six-sevenths] one-half of the term
26 or aggregate maximum term of the determinate sentence or sentences,
27 whichever is greater.
28 § 12. Paragraph (b) of subdivision 4 of section 70.30 of the penal
29 law, as amended by chapter 3 of the laws of 1995, is amended to read as
30 follows:
31 (b) In the case of a person serving a definite sentence, the total of
32 such allowances shall not exceed [one-third] one-half of [his] their
33 term or aggregate term and the allowances shall be applied as a credit
34 against such term.
35 § 13. Subparagraphs (iii) and (iv) of paragraph (a) of subdivision 1
36 of section 70.40 of the penal law, as amended by section 127-c of
37 subpart B of part C of chapter 62 of the laws of 2011, are amended to
38 read as follows:
39 (iii) A person who is serving one or more than one indeterminate
40 sentence of imprisonment and one or more than one determinate sentence
41 of imprisonment, which run concurrently may be paroled at any time after
42 the expiration of the minimum period of imprisonment of the indetermi-
43 nate sentence or sentences, or upon the expiration of [six-sevenths]
44 one-half of the term of imprisonment of the determinate sentence or
45 sentences, whichever is later.
46 (iv) A person who is serving one or more than one indeterminate
47 sentence of imprisonment and one or more than one determinate sentence
48 of imprisonment which run consecutively may be paroled at any time after
49 the expiration of the sum of the minimum or aggregate minimum period of
50 the indeterminate sentence or sentences and [six-sevenths] one-half of
51 the term or aggregate term of imprisonment of the determinate sentence
52 or sentences.
53 § 14. Paragraph (b) of subdivision 1 of section 70.40 of the penal
54 law, as amended by section 127-d-1 of subpart B of part C of chapter 62
55 of the laws of 2011, is amended to read as follows:
S. 774 12
1 (b) A person who is serving one or more than one indeterminate or
2 determinate sentence of imprisonment shall, if [he or she so requests]
3 they request, be conditionally released from the institution in which
4 [he or she is] they are confined when the total good behavior time
5 allowed to [him or her] them, pursuant to the provisions of the
6 correction law, is equal to the unserved portion of [his or her] their
7 term, maximum term or aggregate maximum term; provided, however, that
8 (i) in no event shall a person serving one or more indeterminate
9 sentence of imprisonment and one or more determinate sentence of impri-
10 sonment which run concurrently be conditionally released until serving
11 at least [six-sevenths] one-half of the determinate term of imprisonment
12 which has the longest unexpired time to run and (ii) in no event shall a
13 person be conditionally released prior to the date on which such person
14 is first eligible for discretionary parole release. The conditions of
15 release, including those governing post-release supervision, shall be
16 such as may be imposed by the state board of parole in accordance with
17 the provisions of the executive law.
18 Every person so released shall be under the supervision of the state
19 department of corrections and community supervision for a period equal
20 to the unserved portion of the term, maximum term, aggregate maximum
21 term, or period of post-release supervision.
22 § 15. This act shall take effect immediately; provided, however, that
23 the amendments to section 803 of the correction law made by section
24 three of this act shall not affect the expiration of such section and
25 shall be deemed to expire therewith; provided, further that the amend-
26 ments to subdivision 2-b of section 803 of the correction law made by
27 section three of this act shall not affect the repeal of such subdivi-
28 sion and shall be deemed repealed therewith; provided further, however,
29 that the amendments to paragraph (e) of subdivision 1 and paragraph (b)
30 of subdivision four of section 70.30 of the penal law made by sections
31 eight, nine, ten, eleven, and twelve of this act shall not affect the
32 expiration of such paragraphs and shall be deemed to expire therewith;
33 and provided further, however, that the amendments to paragraphs (a) and
34 (b) of subdivision 1 of section 70.40 of the penal law made by sections
35 thirteen and fourteen of this act shall not affect the expiration of
36 such paragraphs and shall be deemed to expire therewith.