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.
                                                                   LBD02637-03-4

        A. 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  or
    23  her] their sentence imposed by the court. Such allowances [may be grant-
    24  ed  for  good  behavior  and efficient and willing performance of duties
    25  assigned or progress and achievement in an assigned  treatment  program,
    26  and  may  be withheld, forfeited or canceled in whole or in part for bad
    27  behavior, violation of institutional rules or failure to perform proper-
    28  ly 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,
     2  every] 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-
     6  ant  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  person
     9  serving  an indeterminate sentence authorized for an A-I felony offense,
    10  other than an A-I felony offense defined in article two  hundred  twenty
    11  of  the  penal law, or any sentence imposed for a violent felony offense
    12  as defined in section 70.02 of the penal law, manslaughter in the second
    13  degree,  vehicular  manslaughter  in  the   second   degree,   vehicular
    14  manslaughter  in  the  first  degree,  criminally negligent homicide, an
    15  offense defined in article one hundred thirty of the penal law,  incest,
    16  or  an  offense  defined in article two hundred sixty-three of the penal
    17  law, or aggravated harassment of an employee by an incarcerated individ-
    18  ual.
    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-third
    22  of  the  minimum  period  imposed by the court for an A-I felony offense
    23  defined 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 [following
    35  at 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-
    50  tion  or  upon a judicial determination that the person, while an incar-
    51  cerated individual, commenced or continued a civil action, proceeding or
    52  claim that was found to be frivolous as defined in  subdivision  (c)  of
    53  section  eight  thousand three hundred three-a of the civil practice law
    54  and rules, or an order of a federal court pursuant to  rule  11  of  the
    55  federal  rules  of  civil  procedure  imposing  sanctions  in  an action

        A. 1128--A                          4

     1  commenced by a person, while an incarcerated individual, against a state
     2  agency, 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  and
     8  to persons sentenced to a determinate sentence prior to September first,
     9  two thousand eleven for a felony as defined in article two hundred twen-
    10  ty  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-
    21  third]  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-
    25  third] 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-
    28  seventh] 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-
    32  seventh] 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-
    37  enth]  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-
    55  sixth]  one-half  of  the  minimum  period of the indeterminate sentence
    56  imposed [for an offense other than an  A-I  felony  offense  defined  in

        A. 1128--A                          5

     1  article two hundred twenty of the penal law, or one-third of the minimum
     2  period  of  the indeterminate sentence imposed for an A-I felony offense
     3  defined in article two hundred twenty of the penal law, whichever allow-
     4  ance 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-
     9  cle two hundred twenty of the penal law, plus one-sixth of  the  minimum
    10  or  aggregate  minimum  period  of  the sentences imposed for an offense
    11  other than such A-I felony offense] by the court.
    12    (c) A person serving two or more determinate sentences [for an offense
    13  defined in article two hundred twenty or two hundred twenty-one  of  the
    14  penal 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 offense
    18  defined in article two hundred twenty or two hundred twenty-one  of  the
    19  penal  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  two
    24  hundred  twenty  or  two  hundred twenty-one of the penal law] which run
    25  concurrently may receive a merit time  allowance  not  to  exceed  [one-
    26  sixth]  one-half  of  the  minimum  period of the indeterminate sentence
    27  imposed [for an offense other than an  A-I  felony  offense  defined  in
    28  article  two  hundred  twenty of the penal law, one-third of the minimum
    29  period of the indeterminate sentence imposed for an A-I  felony  offense
    30  defined  in  article  two hundred twenty of the penal law,] or [one-sev-
    31  enth] 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 offense
    38  defined in article two hundred twenty of the penal law, one-third of the
    39  minimum or aggregate minimum period of  the  indeterminate  sentence  or
    40  sentences  imposed  for  an  A-I  felony  offense defined in article two
    41  hundred 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 thousand
    48  five and to persons sentenced to a determinate sentence prior to Septem-
    49  ber first, two thousand eleven for a felony as defined  in  article  two
    50  hundred  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  than
    56  one indeterminate sentence, at least one of which is imposed for a class

        A. 1128--A                          6

     1  A-I  felony  offense  defined in article two hundred twenty of the penal
     2  law, the authorized merit time allowance granted pursuant  to  paragraph
     3  (d) of subdivision one of this section shall be calculated as follows:
     4    (a)  In  the  event  a  person  is  serving  two or more indeterminate
     5  sentences with different minimum periods  which  run  concurrently,  the
     6  merit  time  allowance shall be based upon the sentence with the longest
     7  unexpired minimum period. If the sentence  with  the  longest  unexpired
     8  minimum period was imposed for a class A-I felony, the merit time credit
     9  shall  be  one-third of such sentence's minimum period; if such sentence
    10  was imposed for an offense other than a class  A-I  felony,  such  merit
    11  time  credit  shall  be  one-sixth  of  such  sentence's minimum period.
    12  Provided, however, that where the minimum period of any other concurrent
    13  indeterminate sentence is greater than such reduced minimum period,  the
    14  minimum  period  of  such  other concurrent indeterminate sentence shall
    15  also be reduced but only to the extent that the minimum period  of  such
    16  other  concurrent sentence, as so reduced, is equal to the reduced mini-
    17  mum period of such sentence with the longest unexpired minimum period to
    18  run.
    19    (b) A person serving two or more indeterminate sentences with the same
    20  minimum periods which run concurrently, and no concurrent  indeterminate
    21  sentence  with any greater minimum period, shall have the minimum period
    22  of each such sentence reduced in the amount of one-third of such minimum
    23  period if all such sentences were imposed for a class A-I felony.
    24    (c) A person serving two or  more  indeterminate  sentences  that  run
    25  consecutively  shall have the aggregate minimum period of such sentences
    26  reduced in the amount of one-third of such aggregate minimum  period  of
    27  the  sentences  imposed  for  a class A-I felony, plus one-sixth of such
    28  aggregate minimum period of the sentences imposed for an  offense  other
    29  than 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 allowances
    43  authorized  by  this  section.  The  decision  of  the  commissioner  of
    44  corrections  and  community supervision as to the granting, withholding,
    45  forfeiture, cancellation or restoration  of  such  allowances  shall  be
    46  final and shall not be reviewable if made in accordance with law.
    47    5.]  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 or

        A. 1128--A                          7

     1  her term, maximum term, or aggregate  maximum  term  is  more  than  one
     2  year].
     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  discretionary
    15  reductions of the term of his sentence not to exceed  in  the  aggregate
    16  one-third]  allowance of one-half of the term imposed by the court. Such
    17  allowances [may be granted for good behavior and efficient  and  willing
    18  performance  of  duties  assigned  or  progress  and  achievement  in an
    19  assigned treatment program, and may be withheld, forfeited or  cancelled
    20  in  whole  or in part for bad behavior, violation of institutional rules
    21  or 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 allowances
    51  authorized by this section. The decision of the sheriff, superintendent,
    52  warden  or  other  person  in  charge  of the institution, or where such
    53  institution is under the jurisdiction of a county or city department the
    54  decision of the head of such department, as to the  granting,  withhold-
    55  ing, forfeiture, cancellation or restoration of such allowances shall be
    56  final and shall not be reviewable if made in accordance with law.

        A. 1128--A                          8

     1    4.]  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-
    32  cient and  willing  performance  of  duties  assigned  or  progress  and
    33  achievement  in  an  assigned  treatment  program,  and may be withheld,
    34  forfeited or cancelled in whole or in part for bad  behavior,  violation
    35  of  institutional  rules or failure to perform properly in the duties or
    36  program 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  for

        A. 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 allowances
     6  authorized by this section. The decision of the sheriff, superintendent,
     7  warden  or  other  person  in  charge  of the institution, or where such
     8  institution is under the jurisdiction of a county or city department the
     9  decision of the head of such department, as to the  granting,  withhold-
    10  ing,  forfeiture,  cancellation, or restoration of such allowances shall
    11  be final and shall not be reviewable if made in accordance with law.
    12    4.] 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 terms
    24  mean:
    25    1. "Eligible incarcerated individual" means a person sentenced  to  an
    26  indeterminate  term of imprisonment who will become eligible for release
    27  on parole within three years or  sentenced  to  a  determinate  term  of
    28  imprisonment  who  will  become  eligible for conditional release within
    29  three years, who has not reached the age of fifty  years,  who  has  not
    30  previously  been  convicted  of  a  violent felony as defined in article
    31  seventy of the penal law, or a felony in any  other  jurisdiction  which
    32  includes  all of the essential elements of any such violent felony, upon
    33  which an indeterminate or determinate term of imprisonment  was  imposed
    34  and  who  was between the ages of sixteen and fifty years at the time of
    35  commission of the crime upon which  his  or  her  present  sentence  was
    36  based.  Notwithstanding the foregoing, no person who is convicted of any
    37  of the following crimes shall be deemed eligible to participate in  this
    38  program:  (a)  a violent felony offense as defined in article seventy of
    39  the penal law; provided, however, that a  person  who  is  convicted  of
    40  burglary  in  the second degree as defined in subdivision two of section
    41  140.25 of the penal law, or robbery in the second degree as  defined  in
    42  subdivision one of section 160.10 of the penal law, or an attempt there-
    43  of, is eligible to participate, (b) an A-I felony offense, (c) any homi-
    44  cide  offense as defined in article one hundred twenty-five of the penal
    45  law, (d) any felony sex offense as defined in article one hundred thirty
    46  of the penal law and (e) any escape or absconding offense as defined  in
    47  article two hundred five of the penal law.
    48    2.  "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 otherwise
    55  eligible incarcerated individual then becomes eligible  for  release  on
    56  parole within three years in the case of an indeterminate term of impri-

        A. 1128--A                         10

     1  sonment,  or  then becomes eligible for conditional release within three
     2  years 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 [when
    24  such incarcerated individual  is  an  eligible  incarcerated  individual
    25  pursuant  to subdivision one of section eight hundred sixty-five of this
    26  article].
    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 be

        A. 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 after

        A. 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.
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