Bill Text: NY A01128 | 2023-2024 | General Assembly | Amended
Bill Title: Establishes the "earned time act" providing for time allowances against the term or maximum term of sentences imposed by the court to be credited on an annual pro rata basis.
Spectrum: Partisan Bill (Democrat 63-0)
Status: (Introduced) 2024-05-14 - print number 1128a [A01128 Detail]
Download: New_York-2023-A01128-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 1128--A 2023-2024 Regular Sessions IN ASSEMBLY January 13, 2023 ___________ Introduced by M. of A. KELLES, WEPRIN, REYES, JACKSON, EPSTEIN, BURDICK, MEEKS, CRUZ, MAMDANI, AUBRY, SIMON, GLICK, ANDERSON, DAVILA, CARROLL, WALKER, BURGOS, GONZALEZ-ROJAS, L. ROSENTHAL, GALLAGHER, MITAYNES, GIBBS, LUCAS, HEVESI, COOK, DARLING, SEPTIMO, JEAN-PIERRE, FORREST, CLARK, TAYLOR, TAPIA, ARDILA, BORES, SHRESTHA, DICKENS, KIM, SIMONE, ALVAREZ, ZINERMAN, RAGA, CUNNINGHAM, SHIMSKY, CHANDLER-WATERMAN, PRET- LOW, LUNSFORD, LEVENBERG, DE LOS SANTOS, RIVERA, SOLAGES, BICHOTTE HERMELYN, ZACCARO, HUNTER, SEAWRIGHT, LEE, STIRPE, BRONSON, FAHY, DAIS, STECK, BURKE, O'DONNELL, GUNTHER -- read once and referred to the Committee on Correction -- recommitted to the Committee on Correction in accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee 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. Short title. This act shall be known and may be cited as 2 the "earned 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- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD02637-03-4A. 1128--A 2 1 tification of assigned treatment program in which the incarcerated 2 person was determined to have failed to perform properly. The report 3 shall additionally specify the department facility in which the recom- 4 mendation to withhold, forfeit or cancel good time was made and the 5 names of the department personnel on such facility's time allowance 6 committee who made such recommendation. 7 § 3. Section 803 of the correction law, as amended by chapter 3 of the 8 laws of 1995, paragraphs (a), (b), and (c) of subdivision 1 and subdivi- 9 sions 3, 4, and 5 as amended by section 37 of subpart B of part C of 10 chapter 62 of the laws of 2011, paragraph (d) of subdivision 1 and 11 subdivision 2-a as added by chapter 738 of the laws of 2004, subpara- 12 graph (ii) of paragraph (d) of subdivision 1 as amended by chapter 322 13 of the laws of 2021, subparagraph (iv) of paragraph (d) of subdivision 1 14 as separately amended by chapters 242 and 322 of the laws of 2021 and 15 subdivision 2-b as added by section 3 of part E of chapter 62 of the 16 laws of 2003, is amended to read as follows: 17 § 803. Good behavior allowances against indeterminate and determinate 18 sentences. 1. (a) Every person confined in an institution of the depart- 19 ment or a facility in the department of mental hygiene serving an inde- 20 terminate or determinate sentence of imprisonment, except a person serv- 21 ing a sentence with a maximum term of life imprisonment, [may] shall 22 receive a time allowance against the term or maximum term of [his or23her] their sentence imposed by the court. Such allowances [may be grant-24ed for good behavior and efficient and willing performance of duties25assigned or progress and achievement in an assigned treatment program,26and may be withheld, forfeited or canceled in whole or in part for bad27behavior, violation of institutional rules or failure to perform proper-28ly in the duties or program assigned] shall be credited toward a 29 person's sentence on an annual pro rata basis, and any credit awarded 30 over the course of the calendar year shall vest on the final day of the 31 calendar year. Once vested, such credit shall not be withheld, 32 forfeited, or canceled. 33 (a-1) Time allowances that have not yet been credited toward a 34 person's sentence may be withheld, forfeited or canceled in whole or in 35 part for violation of institutional rules, as demonstrated at a hearing 36 by a preponderance of the evidence. Such restrictions shall be limited 37 to the pro rata share of credit within the calendar year that the 38 offense is committed. If such time allowance is withheld, forfeited or 39 canceled in whole or in part, further allowances, not to exceed the 40 allowances set forth in paragraphs (b) and (c) of this subdivision, may 41 be reinstated for good behavior and efficient and willing performance of 42 duties assigned or progress and achievement in an assigned treatment 43 program. Following any final determination withholding, forfeiting, or 44 canceling a time allowance, the incarcerated person shall have the right 45 to take an administrative appeal to the central office of the department 46 and shall be advised of the right to seek legal assistance in the taking 47 of such appeal. The department shall adopt regulations in accordance 48 with this provision. 49 (b) A person serving an indeterminate sentence of imprisonment [may] 50 shall receive a time allowance against the maximum term of [his or her] 51 their sentence [not to exceed one-third] of one-half of the maximum term 52 imposed by the court. 53 (c) A person serving a determinate sentence of imprisonment [may] 54 shall receive a time allowance against the term of [his or her] their 55 sentence [not to exceed one-seventh] of one-half of the term imposed by 56 the court.A. 1128--A 3 1 (d) (i) [Except as provided in subparagraph (ii) of this paragraph,2every] Every person under the custody of the department or confined in a 3 facility in the department of mental hygiene serving an indeterminate 4 sentence of imprisonment with a minimum period of one year or more or a 5 determinate sentence of imprisonment of one year or more [imposed pursu-6ant to section 70.70 or 70.71 of the penal law,] may earn a merit time 7 allowance. 8 (ii) [Such merit time allowance shall not be available to any person9serving an indeterminate sentence authorized for an A-I felony offense,10other than an A-I felony offense defined in article two hundred twenty11of the penal law, or any sentence imposed for a violent felony offense12as defined in section 70.02 of the penal law, manslaughter in the second13degree, vehicular manslaughter in the second degree, vehicular14manslaughter in the first degree, criminally negligent homicide, an15offense defined in article one hundred thirty of the penal law, incest,16or an offense defined in article two hundred sixty-three of the penal17law, or aggravated harassment of an employee by an incarcerated individ-18ual.19(iii)] The merit time allowance credit against the minimum period of 20 the indeterminate sentence shall be [one-sixth] one-half of the minimum 21 period imposed by the court [except that such credit shall be one-third22of the minimum period imposed by the court for an A-I felony offense23defined in article two hundred twenty of the penal law]. In the case of 24 such a determinate sentence, in addition to the time allowance credit 25 authorized by paragraph (c) of this subdivision, the merit time allow- 26 ance credited against the term of the determinate sentence pursuant to 27 this paragraph shall be [one-seventh] one-quarter of the term imposed by 28 the court. 29 [(iv)] (iii) Such merit time allowance [may] shall be granted when an 30 incarcerated individual successfully participates in the work and treat- 31 ment program assigned pursuant to section eight hundred five of this 32 article [and], including but not limited to when such incarcerated indi- 33 vidual obtains a general equivalency diploma, an alcohol and substance 34 abuse treatment certificate, a vocational trade certificate [following35at least six months of vocational programming], at least eighteen cred- 36 its in a program registered by the state education department from a 37 degree-granting higher education institution or performs at least four 38 hundred hours of service as part of a community work crew, or success- 39 fully completes one or more "significant programmatic accomplishments" 40 as defined in paragraph (c) of subdivision one of section eight hundred 41 three-b of this article. The commissioner may designate additional 42 programs and achievements for which merit time shall be granted. Once 43 granted, such allowances shall not be withheld, forfeited, or cancelled. 44 Where the institution in which the incarcerated individual is confined 45 does not provide opportunities for every incarcerated individual to earn 46 merit time allowances, such merit time allowance shall be automatically 47 credited against the incarcerated individual's sentence according to 48 subparagraph (ii) of this paragraph. 49 [Such allowance shall be withheld for any serious disciplinary infrac-50tion or upon a judicial determination that the person, while an incar-51cerated individual, commenced or continued a civil action, proceeding or52claim that was found to be frivolous as defined in subdivision (c) of53section eight thousand three hundred three-a of the civil practice law54and rules, or an order of a federal court pursuant to rule 11 of the55federal rules of civil procedure imposing sanctions in an actionA. 1128--A 4 1commenced by a person, while an incarcerated individual, against a state2agency, officer or employee.3(v)] (iv) The provisions of this paragraph shall apply to persons in 4 custody serving [an] a determinate or indeterminate sentence on the 5 effective date of this paragraph as well as to persons sentenced to [an] 6 a determinate or indeterminate sentence on and after the effective date 7 of this paragraph [and prior to September first, two thousand five and8to persons sentenced to a determinate sentence prior to September first,9two thousand eleven for a felony as defined in article two hundred twen-10ty or two hundred twenty-one of the penal law]. The time allowances set 11 forth in this paragraph shall apply retroactively and shall be credited 12 toward every incarcerated individual's sentence within ninety days of 13 the chapter of the laws of two thousand twenty-four that amended this 14 paragraph. 15 2. If a person is serving more than one sentence, the authorized 16 allowances may be granted separately against the term or maximum term of 17 each sentence or, where consecutive sentences are involved, against the 18 aggregate maximum term. Such allowances shall be calculated as follows: 19 (a) A person serving two or more indeterminate sentences which run 20 concurrently [may] shall receive a time allowance [not to exceed one-21third] of one-half of the indeterminate sentence which has the longest 22 unexpired time to run. 23 (b) A person serving two or more indeterminate sentences which run 24 consecutively [may] shall receive a time allowance [not to exceed one-25third] of one-half of the aggregate maximum term. 26 (c) A person serving two or more determinate sentences which run 27 concurrently [may] shall receive a time allowance [not to exceed one-28seventh] of one-half of the determinate sentence which has the longest 29 unexpired time to run. 30 (d) A person serving two or more determinate sentences which run 31 consecutively [may] shall receive a time allowance [not to exceed one-32seventh] of one-half of the aggregate maximum term. 33 (e) A person serving one or more indeterminate sentence and one or 34 more determinate sentence which run concurrently [may] shall receive a 35 time allowance [not to exceed one-third] of one-half of the indetermi- 36 nate sentence which has the longest unexpired term to run or [one-sev-37enth] one-half of the determinate sentence which has the longest unex- 38 pired time to run, whichever allowance is greater. 39 (f) A person serving one or more indeterminate sentence and one or 40 more determinate sentence which run consecutively [may] shall receive a 41 time allowance [not to exceed] of the sum of [one-third] one-half of the 42 maximum or aggregate maximum of the indeterminate sentence or sentences 43 and [one-seventh] one-half of the term or aggregate maximum of the 44 determinate sentence or sentences. 45 2-a. If a person is serving more than one sentence, the authorized 46 merit time allowances may be granted against the period or aggregate 47 minimum period of the indeterminate sentence or sentences, or against 48 the term or aggregate term of the determinate sentence or sentences, or 49 where consecutive determinate and indeterminate sentences are involved, 50 against the aggregate minimum period as calculated pursuant to subpara- 51 graph (iv) of paragraph (a) of subdivision one of section 70.40 of the 52 penal law. Such allowances shall be calculated as follows: 53 (a) A person serving two or more indeterminate sentences which run 54 concurrently may receive a merit time allowance not to exceed [one-55sixth] one-half of the minimum period of the indeterminate sentence 56 imposed [for an offense other than an A-I felony offense defined inA. 1128--A 5 1article two hundred twenty of the penal law, or one-third of the minimum2period of the indeterminate sentence imposed for an A-I felony offense3defined in article two hundred twenty of the penal law, whichever allow-4ance results in the longest unexpired time to run] by the court. 5 (b) A person serving two or more indeterminate sentences which run 6 consecutively may receive a merit time allowance not to exceed the 7 amount of [one-third] one-half of the minimum or aggregate minimum peri- 8 od of the sentences imposed [for an A-I felony offense defined in arti-9cle two hundred twenty of the penal law, plus one-sixth of the minimum10or aggregate minimum period of the sentences imposed for an offense11other than such A-I felony offense] by the court. 12 (c) A person serving two or more determinate sentences [for an offense13defined in article two hundred twenty or two hundred twenty-one of the14penal law] which run concurrently may receive a merit time allowance not 15 to exceed [one-seventh] one-quarter of the term of the determinate 16 sentence which has the longest unexpired time to run. 17 (d) A person serving two or more determinate sentences [for an offense18defined in article two hundred twenty or two hundred twenty-one of the19penal law] which run consecutively may receive a merit time allowance 20 not to exceed [one-seventh] one-quarter of the aggregate term of such 21 determinate sentences. 22 (e) A person serving one or more indeterminate sentences and one or 23 more determinate sentences [for an offense defined in article two24hundred twenty or two hundred twenty-one of the penal law] which run 25 concurrently may receive a merit time allowance not to exceed [one-26sixth] one-half of the minimum period of the indeterminate sentence 27 imposed [for an offense other than an A-I felony offense defined in28article two hundred twenty of the penal law, one-third of the minimum29period of the indeterminate sentence imposed for an A-I felony offense30defined in article two hundred twenty of the penal law,] or [one-sev-31enth] one-quarter of the term of the determinate sentence, whichever 32 allowance results in the largest unexpired time to run. 33 (f) A person serving one or more indeterminate sentences and one or 34 more determinate sentences which run consecutively may receive a merit 35 time allowance not to exceed the sum of [one-sixth] one-half of the 36 minimum or aggregate minimum period of the indeterminate sentence or 37 sentences imposed [for an offense other than an A-I felony offense38defined in article two hundred twenty of the penal law, one-third of the39minimum or aggregate minimum period of the indeterminate sentence or40sentences imposed for an A-I felony offense defined in article two41hundred twenty of the penal law] and [one-seventh] one-quarter of the 42 term or aggregate term of the determinate sentence or sentences. 43 (g) The provisions of this subdivision shall apply to persons in 44 custody serving [an] a determinate or indeterminate sentence on the 45 effective date of this subdivision as well as to persons sentenced to 46 [an] a determinate or indeterminate sentence on and after the effective 47 date of this subdivision [and prior to September first, two thousand48five and to persons sentenced to a determinate sentence prior to Septem-49ber first, two thousand eleven for a felony as defined in article two50hundred twenty or two hundred twenty-one of the penal law]. The merit 51 time allowances set forth in this subdivision shall apply retroactively, 52 and shall be credited toward every incarcerated individual's sentence 53 within ninety days of the effective date of the chapter of the laws of 54 two thousand twenty-four that amended this subdivision. 55 [2-b. Notwithstanding the foregoing, if a person is serving more than56one indeterminate sentence, at least one of which is imposed for a classA. 1128--A 6 1A-I felony offense defined in article two hundred twenty of the penal2law, the authorized merit time allowance granted pursuant to paragraph3(d) of subdivision one of this section shall be calculated as follows:4(a) In the event a person is serving two or more indeterminate5sentences with different minimum periods which run concurrently, the6merit time allowance shall be based upon the sentence with the longest7unexpired minimum period. If the sentence with the longest unexpired8minimum period was imposed for a class A-I felony, the merit time credit9shall be one-third of such sentence's minimum period; if such sentence10was imposed for an offense other than a class A-I felony, such merit11time credit shall be one-sixth of such sentence's minimum period.12Provided, however, that where the minimum period of any other concurrent13indeterminate sentence is greater than such reduced minimum period, the14minimum period of such other concurrent indeterminate sentence shall15also be reduced but only to the extent that the minimum period of such16other concurrent sentence, as so reduced, is equal to the reduced mini-17mum period of such sentence with the longest unexpired minimum period to18run.19(b) A person serving two or more indeterminate sentences with the same20minimum periods which run concurrently, and no concurrent indeterminate21sentence with any greater minimum period, shall have the minimum period22of each such sentence reduced in the amount of one-third of such minimum23period if all such sentences were imposed for a class A-I felony.24(c) A person serving two or more indeterminate sentences that run25consecutively shall have the aggregate minimum period of such sentences26reduced in the amount of one-third of such aggregate minimum period of27the sentences imposed for a class A-I felony, plus one-sixth of such28aggregate minimum period of the sentences imposed for an offense other29than a class A-I felony.] 30 3. The commissioner of corrections and community supervision shall 31 promulgate rules and regulations for the fair and equitable granting, 32 withholding, forfeiture, cancellation and restoration of allowances 33 authorized by this section in accordance with the criteria herein speci- 34 fied. Such rules and regulations shall specify procedures to ensure that 35 similarly situated incarcerated persons are treated similarly with 36 respect to the granting, withholding, forfeiture or cancellation of 37 allowances, and include provisions designating the person or committee 38 in each correctional institution delegated to make discretionary deter- 39 minations with respect to the allowances, the books and records to be 40 kept, and a procedure for review of the institutional determinations by 41 the commissioner. 42 4. [No person shall have the right to demand or require the allowances43authorized by this section. The decision of the commissioner of44corrections and community supervision as to the granting, withholding,45forfeiture, cancellation or restoration of such allowances shall be46final and shall not be reviewable if made in accordance with law.475.] Time allowances granted prior to any release to community super- 48 vision shall be forfeited and shall not be restored if the released 49 person is returned to an institution under the jurisdiction of the state 50 department of corrections and community supervision for violation of 51 community supervision or by reason of a conviction for a crime committed 52 while on community supervision. A person who is so returned may, howev- 53 er, subsequently receive time allowances against the remaining portion 54 of [his or her] their term, maximum term or aggregate maximum term 55 pursuant to this section [and provided such remaining portion of his orA. 1128--A 7 1her term, maximum term, or aggregate maximum term is more than one2year]. 3 [6.] 5. Upon commencement of an indeterminate or a determinate 4 sentence the provisions of this section shall be furnished to the person 5 serving the sentence and the meaning of same shall be fully explained to 6 [him] them by a person designated by the commissioner to perform such 7 duty. 8 § 4. Section 804 of the correction law, as added by chapter 680 of the 9 laws of 1967, subdivisions 1 and 2 as amended by chapter 145 of the laws 10 of 1976, and subdivision 6 as amended by section 39 of subpart B of part 11 C of chapter 62 of the laws of 2011, is amended to read as follows: 12 § 804. Good behavior allowances against definite sentences. 1. Every 13 person confined in an institution serving a definite sentence of impri- 14 sonment [may] shall receive a time [allowances as discretionary15reductions of the term of his sentence not to exceed in the aggregate16one-third] allowance of one-half of the term imposed by the court. Such 17 allowances [may be granted for good behavior and efficient and willing18performance of duties assigned or progress and achievement in an19assigned treatment program, and may be withheld, forfeited or cancelled20in whole or in part for bad behavior, violation of institutional rules21or failure to perform properly in the duties or program assigned] shall 22 be credited toward a person's sentence on an annual pro rata basis, and 23 any credit awarded over the course of the calendar year shall vest on 24 the final day of the calendar year. Once vested, such credit shall not 25 be withheld, forfeited, or canceled. 26 1-a. Time allowances that have not yet been granted toward a person's 27 sentence may be withheld, forfeited or canceled in whole or in part for 28 violation of institutional rules, as demonstrated at a hearing by a 29 preponderance of the evidence. Such restrictions shall be limited to the 30 pro rata share of credit within the calendar year that the offense is 31 committed. If such time allowance is withheld, forfeited or canceled in 32 whole or in part, further allowances, not to exceed one-half of the term 33 imposed by the court, may be reinstated for good behavior and efficient 34 and willing performance of duties assigned or progress and achievement 35 in an assigned treatment program. Following any final determination 36 withholding, forfeiting, or canceling a time allowance, the incarcerated 37 person shall have the right to take an administrative appeal to the 38 sheriff and shall be advised of the right to seek legal assistance in 39 the taking of such appeal. The sheriff shall adopt regulations in 40 accordance with this provision. 41 2. If a person is serving more than one sentence, the authorized 42 allowances may be granted separately against the term of each sentence 43 or, where consecutive sentences are involved, against the aggregate 44 term. Allowances based upon sentences of less than one month may be 45 granted, and in such case the maximum allowance shall be one day for 46 every [three] two days of the sentence. In no case, however, shall the 47 total of all allowances granted to any such person exceed [one-third] 48 one-half of the time [he] they would be required to serve, computed 49 without regard to this section. 50 3. [No person shall have the right to demand or require the allowances51authorized by this section. The decision of the sheriff, superintendent,52warden or other person in charge of the institution, or where such53institution is under the jurisdiction of a county or city department the54decision of the head of such department, as to the granting, withhold-55ing, forfeiture, cancellation or restoration of such allowances shall be56final and shall not be reviewable if made in accordance with law.A. 1128--A 8 14.] A person who has earned a reduction of sentence pursuant to this 2 section and who has been conditionally released under subdivision two of 3 section 70.40 of the penal law shall not forfeit such reduction by 4 reason of conduct causing [his] their return to the institution. 5 Provided, nevertheless, that such reduction may be forfeited by reason 6 of subsequent conduct while serving the remainder of [his] their term. 7 [5.] 4. The state commission of correction shall promulgate record 8 keeping rules and regulations for the fair and equitable granting, with- 9 holding, forfeiture, cancellation and restoration of allowances author- 10 ized by this section. Such rules and regulations shall specify proce- 11 dures to ensure that similarly situated incarcerated persons are treated 12 similarly with respect to the granting, withholding, forfeiture or 13 cancellation of allowances. 14 [6.] 5. Notwithstanding anything to the contrary in this section, in 15 any case where a person is serving a definite sentence in an institution 16 under the jurisdiction of the state department of corrections and commu- 17 nity supervision, [subdivisions] subdivision three [and four] of section 18 eight hundred three of this [chapter] article shall apply. 19 [7.] 6. Upon commencement of any definite sentence the provisions of 20 this section shall be furnished to the person serving the sentence and 21 the meaning of same shall be fully explained to [him] them by an officer 22 designated in the regulation to perform such duty. 23 § 5. Section 804-a of the correction law, as added by chapter 220 of 24 the laws of 1987, is amended to read as follows: 25 § 804-a. Good behavior allowances for certain civil commitments. 1. 26 Every person confined in an institution serving a civil commitment for a 27 fixed period of time, whose release is not conditional upon any act 28 within [his] their power to perform, [may] shall receive time allowances 29 as discretionary reductions of the term of [his] their commitment not to 30 exceed, in the aggregate, [one-third] one-half of the term imposed by 31 the court. Such allowances [may be granted for good behavior and effi-32cient and willing performance of duties assigned or progress and33achievement in an assigned treatment program, and may be withheld,34forfeited or cancelled in whole or in part for bad behavior, violation35of institutional rules or failure to perform properly in the duties or36program assigned] shall be credited toward a person's sentence on an 37 annual pro rata basis, and any credit awarded over the course of the 38 calendar year shall vest on the final day of the calendar year. Once 39 vested, such credit shall not be withheld, forfeited, or canceled. 40 1-a. Time allowances that have not yet been granted toward a person's 41 sentence may be withheld, forfeited or canceled in whole or in part for 42 violation of institutional rules, as demonstrated at a hearing by a 43 preponderance of the evidence. Such restrictions shall be limited to the 44 pro rata share of credit within the calendar year that the offense is 45 committed. If such time allowance is withheld, forfeited or canceled in 46 whole or in part, further allowances, not to exceed one-half of the term 47 imposed by the court, may be reinstated for good behavior and efficient 48 and willing performance of duties assigned or progress and achievement 49 in an assigned treatment program. Following any final determination 50 withholding, forfeiting, or canceling a time allowance, the incarcerated 51 person shall have the right to take an administrative appeal to the 52 central office of the department and shall be advised of the right to 53 seek legal assistance in the taking of such appeal. The department shall 54 adopt regulations in accordance with this provision. 55 2. Allowances based upon commitments of less than one month may be 56 granted, and in such case the maximum allowances shall be one day forA. 1128--A 9 1 every [three] two days of the commitment. In no case, however, shall the 2 total of all allowances granted to any such person exceed [one-third] 3 one-half of the time [he] they would be required to serve, computed 4 without regard to this section. 5 3. [No person shall have the right to demand or require the allowances6authorized by this section. The decision of the sheriff, superintendent,7warden or other person in charge of the institution, or where such8institution is under the jurisdiction of a county or city department the9decision of the head of such department, as to the granting, withhold-10ing, forfeiture, cancellation, or restoration of such allowances shall11be final and shall not be reviewable if made in accordance with law.124.] The state commission of correction shall promulgate record keeping 13 rules and regulations for the granting, withholding, forfeiture, cancel- 14 lation and restoration of allowances authorized by this section. 15 [5.] 4. Upon commencement of any civil commitment as described in 16 subdivision one of this section, the provisions of this section shall be 17 furnished to the person serving the commitment and the meaning of same 18 shall be fully explained to [him] them by an officer designated in the 19 regulation to perform such duty. 20 § 6. Section 865 of the correction law, as added by chapter 261 of the 21 laws of 1987, subdivisions 1 and 2 as amended by chapter 322 of the laws 22 of 2021, is amended to read as follows: 23 § 865. Definitions. As used in this article, [the following terms24mean:251. "Eligible incarcerated individual" means a person sentenced to an26indeterminate term of imprisonment who will become eligible for release27on parole within three years or sentenced to a determinate term of28imprisonment who will become eligible for conditional release within29three years, who has not reached the age of fifty years, who has not30previously been convicted of a violent felony as defined in article31seventy of the penal law, or a felony in any other jurisdiction which32includes all of the essential elements of any such violent felony, upon33which an indeterminate or determinate term of imprisonment was imposed34and who was between the ages of sixteen and fifty years at the time of35commission of the crime upon which his or her present sentence was36based. Notwithstanding the foregoing, no person who is convicted of any37of the following crimes shall be deemed eligible to participate in this38program: (a) a violent felony offense as defined in article seventy of39the penal law; provided, however, that a person who is convicted of40burglary in the second degree as defined in subdivision two of section41140.25 of the penal law, or robbery in the second degree as defined in42subdivision one of section 160.10 of the penal law, or an attempt there-43of, is eligible to participate, (b) an A-I felony offense, (c) any homi-44cide offense as defined in article one hundred twenty-five of the penal45law, (d) any felony sex offense as defined in article one hundred thirty46of the penal law and (e) any escape or absconding offense as defined in47article two hundred five of the penal law.482. "Shock] "shock incarceration program" means a program pursuant to 49 which eligible incarcerated individuals are selected to participate in 50 the program and serve a period of six months in a shock incarceration 51 facility, which shall provide rigorous physical activity, intensive 52 regimentation and discipline and rehabilitation therapy and programming. 53 Such incarcerated individuals may be selected either: (i) at a reception 54 center; or (ii) at a general confinement facility [when the otherwise55eligible incarcerated individual then becomes eligible for release on56parole within three years in the case of an indeterminate term of impri-A. 1128--A 10 1sonment, or then becomes eligible for conditional release within three2years in the case of a determinate term of imprisonment]. 3 § 7. Section 867 of the correction law, as amended by chapter 322 of 4 the laws of 2021, is amended to read as follows: 5 § 867. Procedure for selection of participants in shock incarceration 6 program. 1. An [eligible] incarcerated individual may make an applica- 7 tion to the shock incarceration screening committee for permission to 8 participate in the shock incarceration program. 9 2. If the shock incarceration screening committee determines that an 10 incarcerated individual's participation in the shock incarceration 11 program is consistent with the safety of the community, the welfare of 12 the applicant and the rules and regulations of the department, the 13 committee shall forward the application to the commissioner or [his] a 14 designee for approval or disapproval. 15 2-a. Subdivisions one and two of this section shall apply to a judi- 16 cially sentenced shock incarceration incarcerated individual only to the 17 extent that the screening committee may determine whether the incarcer- 18 ated individual has a medical or mental health condition that will 19 render the incarcerated individual unable to successfully complete the 20 shock incarceration program, and the facility in which the incarcerated 21 individual will participate in such program. Notwithstanding subdivi- 22 sion five of this section, an incarcerated individual sentenced to shock 23 incarceration shall promptly commence participation in the program [when24such incarcerated individual is an eligible incarcerated individual25pursuant to subdivision one of section eight hundred sixty-five of this26article]. 27 3. Applicants cannot participate in the shock incarceration program 28 unless they agree to be bound by all the terms and conditions thereof 29 and indicate such agreement by signing the memorandum of the program 30 immediately below a statement reading as follows: 31 "I accept the foregoing program and agree to be bound by the terms and 32 conditions thereof. I understand that my participation in the program is 33 a privilege that may be revoked at any time at the sole discretion of 34 the commissioner. I understand that I must successfully complete the 35 entire program to obtain a certificate of earned eligibility upon the 36 completion of said program, and in the event that I do not successfully 37 complete said program, for any reason, I will be transferred to a 38 nonshock incarceration correctional facility to continue service of my 39 sentence." 40 4. An incarcerated individual who has successfully completed a shock 41 incarceration program shall be eligible to receive such a certificate of 42 earned eligibility pursuant to section eight hundred five of this chap- 43 ter. Notwithstanding any other provision of law, an incarcerated indi- 44 vidual sentenced to a determinate sentence of imprisonment who has 45 successfully completed a shock incarceration program shall be eligible 46 to receive such a certificate of earned eligibility and shall be imme- 47 diately eligible to be conditionally released. 48 5. Participation in the shock incarceration program shall be a privi- 49 lege. Nothing contained in this article may be construed to confer upon 50 any incarcerated individual the right to participate or continue to 51 participate therein. 52 § 8. Clause (B) of subparagraph (ii) of paragraph (e) of subdivision 1 53 of section 70.30 of the penal law, as amended by chapter 3 of the laws 54 of 1995, is amended to read as follows: 55 (B) if the aggregate maximum term of the determinate sentence or 56 sentences is less than twenty years, the defendant shall be deemed to beA. 1128--A 11 1 serving an indeterminate sentence the maximum term of which shall be 2 deemed to be twenty years. In such instances, the minimum sentence shall 3 be deemed to be ten years or [six-sevenths] one-half of the term or 4 aggregate maximum term of the determinate sentence or sentences, which- 5 ever is greater. 6 § 9. Clause (B) of subparagraph (iii) of paragraph (e) of subdivision 7 1 of section 70.30 of the penal law, as amended by chapter 3 of the laws 8 of 1995, is amended to read as follows: 9 (B) if the aggregate maximum term of the determinate sentence or 10 sentences is less than thirty years, the defendant shall be deemed to be 11 serving an indeterminate sentence the maximum term of which shall be 12 deemed to be thirty years. In such instances, the minimum sentence shall 13 be deemed to be fifteen years or [six-sevenths] one-half of the term or 14 aggregate maximum term of the determinate sentence or sentences, which- 15 ever is greater. 16 § 10. Clause (B) of subparagraph (v) of paragraph (e) of subdivision 1 17 of section 70.30 of the penal law, as amended by chapter 3 of the laws 18 of 1995, is amended to read as follows: 19 (B) if the aggregate maximum term of the determinate sentence or 20 sentences is less than forty years, the defendant shall be deemed to be 21 serving an indeterminate sentence the maximum term of which shall be 22 deemed to be forty years. In such instances, the minimum sentence shall 23 be deemed to be twenty years or [six-sevenths] one-half of the term or 24 aggregate maximum term of the determinate sentence or sentences, which- 25 ever is greater. 26 § 11. Clause (B) of subparagraph (vii) of paragraph (e) of subdivision 27 1 of section 70.30 of the penal law, as amended by chapter 3 of the laws 28 of 1995, is amended to read as follows: 29 (B) if the aggregate maximum term of the determinate sentence or 30 sentences is less than fifty years, the defendant shall be deemed to be 31 serving an indeterminate sentence the maximum term of which shall be 32 deemed to be fifty years. In such instances, the minimum sentence shall 33 be deemed to be twenty-five years or [six-sevenths] one-half of the term 34 or aggregate maximum term of the determinate sentence or sentences, 35 whichever is greater. 36 § 12. Paragraph (b) of subdivision 4 of section 70.30 of the penal 37 law, as amended by chapter 3 of the laws of 1995, is amended to read as 38 follows: 39 (b) In the case of a person serving a definite sentence, the total of 40 such allowances shall not exceed [one-third] one-half of [his] their 41 term or aggregate term and the allowances shall be applied as a credit 42 against such term. 43 § 13. Subparagraphs (iii) and (iv) of paragraph (a) of subdivision 1 44 of section 70.40 of the penal law, as amended by section 127-c of 45 subpart B of part C of chapter 62 of the laws of 2011, are amended to 46 read as follows: 47 (iii) A person who is serving one or more than one indeterminate 48 sentence of imprisonment and one or more than one determinate sentence 49 of imprisonment, which run concurrently may be paroled at any time after 50 the expiration of the minimum period of imprisonment of the indetermi- 51 nate sentence or sentences, or upon the expiration of [six-sevenths] 52 one-half of the term of imprisonment of the determinate sentence or 53 sentences, whichever is later. 54 (iv) A person who is serving one or more than one indeterminate 55 sentence of imprisonment and one or more than one determinate sentence 56 of imprisonment which run consecutively may be paroled at any time afterA. 1128--A 12 1 the expiration of the sum of the minimum or aggregate minimum period of 2 the indeterminate sentence or sentences and [six-sevenths] one-half of 3 the term or aggregate term of imprisonment of the determinate sentence 4 or sentences. 5 § 14. Paragraph (b) of subdivision 1 of section 70.40 of the penal 6 law, as amended by section 127-d-1 of subpart B of part C of chapter 62 7 of the laws of 2011, is amended to read as follows: 8 (b) A person who is serving one or more than one indeterminate or 9 determinate sentence of imprisonment shall, if [he or she so requests] 10 they request, be conditionally released from the institution in which 11 [he or she is] they are confined when the total good behavior time 12 allowed to [him or her] them, pursuant to the provisions of the 13 correction law, is equal to the unserved portion of [his or her] their 14 term, maximum term or aggregate maximum term; provided, however, that 15 (i) in no event shall a person serving one or more indeterminate 16 sentence of imprisonment and one or more determinate sentence of impri- 17 sonment which run concurrently be conditionally released until serving 18 at least [six-sevenths] one-half of the determinate term of imprisonment 19 which has the longest unexpired time to run and (ii) in no event shall a 20 person be conditionally released prior to the date on which such person 21 is first eligible for discretionary parole release. The conditions of 22 release, including those governing post-release supervision, shall be 23 such as may be imposed by the state board of parole in accordance with 24 the provisions of the executive law. 25 Every person so released shall be under the supervision of the state 26 department of corrections and community supervision for a period equal 27 to the unserved portion of the term, maximum term, aggregate maximum 28 term, or period of post-release supervision. 29 § 15. This act shall take effect immediately; provided, however, that 30 the amendments to section 803 of the correction law made by section 31 three of this act shall not affect the expiration of such section and 32 shall be deemed to expire therewith; provided, further that the amend- 33 ments to subdivision 2-b of section 803 of the correction law made by 34 section three of this act shall not affect the repeal of such subdivi- 35 sion and shall be deemed repealed therewith; provided further, however, 36 that the amendments to paragraph (e) of subdivision 1 of section 70.30 37 of the penal law made by sections eight, nine, ten and eleven of this 38 act shall not affect the expiration of such paragraph and shall be 39 deemed to expire therewith; provided further, however, that the amend- 40 ments to paragraph (b) of subdivision 4 of section 70.30 of the penal 41 law made by section twelve of this act shall not affect the expiration 42 of such subdivision and shall expire therewith; and provided further, 43 however, that the amendments to paragraphs (a) and (b) of subdivision 1 44 of section 70.40 of the penal law made by sections thirteen and fourteen 45 of this act shall not affect the expiration of such paragraphs and shall 46 be deemed to expire therewith.
