Bill Text: NY S00329 | 2011-2012 | General Assembly | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Allows certain inmates to be granted a merit time allowance; allows inmates who are victims are able to prove that they were subjected to substantial physical, sexual or psychological abuse, that the abuse was inflicted by a member of their same family or household or a member of the person's immediate family, and that the abuse was a substantial factor in causing them to commit the crime to be eligible to earn merit time in the amount of one-third off either their minimum sentence (if inmate has an indeterminate sentence) or their flat sentence; allows such inmates to be eligible for presumptive release; expands the criteria that a person in custody of the department of correctional services may meet in order to earn merit time.
Spectrum: Partisan Bill (Democrat 6-0)
Status: (Introduced - Dead) 2012-03-07 - DEFEATED IN CRIME VICTIMS, CRIME AND CORRECTION [S00329 Detail]
Download: New_York-2011-S00329-Amended.html
Bill Title: Allows certain inmates to be granted a merit time allowance; allows inmates who are victims are able to prove that they were subjected to substantial physical, sexual or psychological abuse, that the abuse was inflicted by a member of their same family or household or a member of the person's immediate family, and that the abuse was a substantial factor in causing them to commit the crime to be eligible to earn merit time in the amount of one-third off either their minimum sentence (if inmate has an indeterminate sentence) or their flat sentence; allows such inmates to be eligible for presumptive release; expands the criteria that a person in custody of the department of correctional services may meet in order to earn merit time.
Spectrum: Partisan Bill (Democrat 6-0)
Status: (Introduced - Dead) 2012-03-07 - DEFEATED IN CRIME VICTIMS, CRIME AND CORRECTION [S00329 Detail]
Download: New_York-2011-S00329-Amended.html
S T A T E O F N E W Y O R K
________________________________________________________________________
329--A
2011-2012 Regular Sessions
I N S E N A T E
(PREFILED)
January 5, 2011
___________
Introduced by Sens. MONTGOMERY, HASSELL-THOMPSON, KRUEGER, OPPENHEIMER,
PARKER, SERRANO -- read twice and ordered printed, and when printed to
be committed to the Committee on Crime Victims, Crime and Correction
-- recommitted to the Committee on Crime Victims, Crime and Correction
in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT to amend the correction law, in relation to merit time allowances
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Subparagraph (ii) of paragraph (d) of subdivision 1 of
2 section 803 of the correction law, as added by section 7 of chapter 738
3 of the laws of 2004, is amended and a new subparagraph (vi) is added to
4 read as follows:
5 (ii) [Such] EXCEPT AS PROVIDED IN SUBPARAGRAPH (VI) OF THIS PARAGRAPH,
6 SUCH merit time allowance shall not be available to any person serving
7 an indeterminate sentence authorized for an A-I felony offense, other
8 than an A-I felony offense defined in article two hundred twenty of the
9 penal law, or any sentence imposed for a violent felony offense as
10 defined in section 70.02 of the penal law, manslaughter in the second
11 degree, vehicular manslaughter in the second degree, vehicular
12 manslaughter in the first degree, criminally negligent homicide, an
13 offense defined in article one hundred thirty of the penal law, incest,
14 or an offense defined in article two hundred sixty-three of the penal
15 law, or aggravated harassment of an employee by an inmate.
16 (VI) A PERSON CONVICTED OF A HOMICIDE OFFENSE AS DEFINED IN ARTICLE
17 ONE HUNDRED TWENTY-FIVE OF THE PENAL LAW, AN ASSAULT OFFENSE DEFINED IN
18 ARTICLE ONE HUNDRED TWENTY OF THE PENAL LAW, A ROBBERY OFFENSE AS
19 DEFINED BY ARTICLE ONE HUNDRED SIXTY OF THE PENAL LAW, A KIDNAPPING
20 OFFENSE AS DEFINED BY ARTICLE ONE HUNDRED THIRTY-FIVE OF THE PENAL LAW,
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01519-03-2
S. 329--A 2
1 AN ARSON OFFENSE AS DEFINED BY ARTICLE ONE HUNDRED FIFTY OF THE PENAL
2 LAW, A BURGLARY OFFENSE AS DEFINED BY ARTICLE ONE HUNDRED FORTY OF THE
3 PENAL LAW, CRIMINAL POSSESSION OF A WEAPON IN THE SECOND DEGREE AS
4 DEFINED BY SUBDIVISIONS TWO AND THREE OF SECTION 265.03 OF THE PENAL
5 LAW, CRIMINAL USE OF A FIREARM IN THE FIRST DEGREE AS DEFINED BY SECTION
6 265.09 OF THE PENAL LAW, CRIMINAL USE OF A FIREARM IN THE SECOND DEGREE
7 AS DEFINED BY SECTION 265.08 OF THE PENAL LAW, A CONSPIRACY TO COMMIT
8 SUCH CRIMES AS DEFINED IN ARTICLE ONE HUNDRED FIVE OF THE PENAL LAW, AN
9 ATTEMPT TO COMMIT SUCH CRIMES AS DEFINED IN ARTICLE ONE HUNDRED TEN OF
10 THE PENAL LAW AND SERVING A DETERMINATE OR INDETERMINATE SENTENCE OR
11 SENTENCES AND WHO CAN DEMONSTRATE TO THE COMMISSIONER THAT: (1) THE
12 PERSON IS A VICTIM OF DOMESTIC VIOLENCE WHO WAS SUBJECTED TO SUBSTANTIAL
13 PHYSICAL, SEXUAL OR PSYCHOLOGICAL ABUSE INFLICTED BY A MEMBER OF THE
14 PERSON'S SAME FAMILY OR HOUSEHOLD AS THAT TERM IS DEFINED IN SUBDIVISION
15 ONE OF SECTION 530.11 OF THE CRIMINAL PROCEDURE LAW OR A MEMBER OF THE
16 PERSON'S IMMEDIATE FAMILY AS THAT TERM IS DEFINED IN SUBDIVISION FOUR OF
17 SECTION 120.40 OF THE PENAL LAW; AND (2) SUCH OFFENSE WAS COMMITTED AS A
18 DIRECT RESULT OF SUCH ABUSE, MAY RECEIVE MERIT TIME ALLOWANCE CREDIT IN
19 THE AMOUNT PROVIDED FOR IN SUBPARAGRAPH (III) OF THIS PARAGRAPH. THE
20 MERIT TIME ALLOWANCE ESTABLISHED PURSUANT TO THIS SUBPARAGRAPH SHALL BE
21 GRANTED IN THE SAME MANNER AS REQUIRED BY SUBPARAGRAPH (IV) OF THIS
22 PARAGRAPH.
23 TO APPLY FOR MERIT TIME ELIGIBILITY UNDER THIS SUBDIVISION AND TO
24 DEMONSTRATE SUCH PERSON'S CLAIM THAT SHE OR HE WAS SUBJECTED TO SUBSTAN-
25 TIAL PHYSICAL, SEXUAL OR PSYCHOLOGICAL ABUSE AND THAT SUCH OFFENSE WAS
26 COMMITTED AS A DIRECT RESULT OF SUCH ABUSE, SUCH PERSON MUST SUBMIT AN
27 APPLICATION TO THE COMMISSIONER OR COMMISSIONER'S DESIGNEE ALONG WITH
28 CORROBORATIVE MATERIAL THAT SHALL INCLUDE ONE OR MORE OF THE FOLLOWING
29 DOCUMENTS: WITNESS STATEMENTS, COURT RECORDS, PRE-SENTENCE REPORTS,
30 SOCIAL SERVICES RECORDS, CITY AND STATE DEPARTMENT OF CORRECTIONS
31 RECORDS, HOSPITAL RECORDS, LAW ENFORCEMENT RECORDS, DOMESTIC INCIDENT
32 REPORTS, ORDERS OF PROTECTION, A SHOWING BASED IN PART ON DOCUMENTATION
33 PREPARED AT OR NEAR THE TIME OF THE COMMISSION OF THE OFFENSE OR THE
34 PROSECUTION THEREOF TENDING TO SUPPORT THE PERSON'S CLAIM, OR WHEN THERE
35 IS VERIFICATION OF CONSULTATION WITH A LICENSED MEDICAL OR MENTAL HEALTH
36 CARE PROVIDER, EMPLOYEE OF A COURT ACTING WITHIN THE SCOPE OF HIS OR HER
37 EMPLOYMENT, MEMBER OF THE CLERGY, ATTORNEY, SOCIAL WORKER, OR RAPE
38 CRISIS COUNSELOR AS DEFINED IN SECTION FORTY-FIVE HUNDRED TEN OF THE
39 CIVIL PRACTICE LAW AND RULES, OR OTHER ADVOCATE ACTING ON BEHALF OF AN
40 AGENCY THAT ASSISTS VICTIMS OF DOMESTIC VIOLENCE, OR OTHER SIMILAR
41 DOCUMENTATION THAT CORROBORATES SUCH PERSON'S CLAIM.
42 S 2. Subparagraph (ii) of paragraph (d) of subdivision 1 of section
43 803 of the correction law, as added by section 10-a of chapter 738 of
44 the laws of 2004, is amended and a new subparagraph (vi) is added to
45 read as follows:
46 (ii) [Such] EXCEPT AS PROVIDED IN SUBPARAGRAPH (VI) OF THIS PARAGRAPH,
47 SUCH merit time allowance shall not be available to any person serving
48 an indeterminate sentence authorized for an A-I felony offense, other
49 than an A-I felony offense defined in article two hundred twenty of the
50 penal law, or any sentence imposed for a violent felony offense as
51 defined in section 70.02 of the penal law, manslaughter in the second
52 degree, vehicular manslaughter in the second degree, vehicular
53 manslaughter in the first degree, criminally negligent homicide, an
54 offense defined in article one hundred thirty of the penal law, incest,
55 or an offense defined in article two hundred sixty-three of the penal
56 law, or aggravated harassment of an employee by an inmate.
S. 329--A 3
1 (VI) A PERSON CONVICTED OF A HOMICIDE OFFENSE AS DEFINED IN ARTICLE
2 ONE HUNDRED TWENTY-FIVE OF THE PENAL LAW, AN ASSAULT OFFENSE DEFINED IN
3 ARTICLE ONE HUNDRED TWENTY OF THE PENAL LAW, A ROBBERY OFFENSE AS
4 DEFINED BY ARTICLE ONE HUNDRED SIXTY OF THE PENAL LAW, A KIDNAPPING
5 OFFENSE AS DEFINED BY ARTICLE ONE HUNDRED THIRTY-FIVE OF THE PENAL LAW,
6 AN ARSON OFFENSE AS DEFINED BY ARTICLE ONE HUNDRED FIFTY OF THE PENAL
7 LAW, A BURGLARY OFFENSE AS DEFINED BY ARTICLE ONE HUNDRED FORTY OF THE
8 PENAL LAW, CRIMINAL POSSESSION OF A WEAPON IN THE SECOND DEGREE AS
9 DEFINED BY SUBDIVISIONS TWO AND THREE OF SECTION 265.03 OF THE PENAL
10 LAW, CRIMINAL USE OF A FIREARM IN THE FIRST DEGREE AS DEFINED BY SECTION
11 265.09 OF THE PENAL LAW, CRIMINAL USE OF A FIREARM IN THE SECOND DEGREE
12 AS DEFINED BY SECTION 265.08 OF THE PENAL LAW, A CONSPIRACY TO COMMIT
13 SUCH CRIMES AS DEFINED IN ARTICLE ONE HUNDRED FIVE OF THE PENAL LAW, AN
14 ATTEMPT TO COMMIT SUCH CRIMES AS DEFINED IN ARTICLE ONE HUNDRED TEN OF
15 THE PENAL LAW AND SERVING A DETERMINATE OR INDETERMINATE SENTENCE OR
16 SENTENCES AND WHO CAN DEMONSTRATE TO THE COMMISSIONER THAT: (1) THE
17 PERSON IS A VICTIM OF DOMESTIC VIOLENCE WHO WAS SUBJECTED TO SUBSTANTIAL
18 PHYSICAL, SEXUAL OR PSYCHOLOGICAL ABUSE INFLICTED BY A MEMBER OF THE
19 PERSON'S SAME FAMILY OR HOUSEHOLD AS THAT TERM IS DEFINED IN SUBDIVISION
20 ONE OF SECTION 530.11 OF THE CRIMINAL PROCEDURE LAW OR A MEMBER OF THE
21 PERSON'S IMMEDIATE FAMILY AS THAT TERM IS DEFINED IN SUBDIVISION FOUR OF
22 SECTION 120.40 OF THE PENAL LAW; AND (2) SUCH OFFENSE WAS COMMITTED AS A
23 DIRECT RESULT OF SUCH ABUSE, MAY RECEIVE MERIT TIME ALLOWANCE CREDIT IN
24 THE AMOUNT PROVIDED FOR IN SUBPARAGRAPH (III) OF THIS PARAGRAPH. THE
25 MERIT TIME ALLOWANCE ESTABLISHED PURSUANT TO THIS SUBPARAGRAPH SHALL BE
26 GRANTED IN THE SAME MANNER AS REQUIRED BY SUBPARAGRAPH (IV) OF THIS
27 PARAGRAPH.
28 TO APPLY FOR MERIT TIME ELIGIBILITY UNDER THIS SUBDIVISION AND TO
29 DEMONSTRATE SUCH PERSON'S CLAIM THAT SHE OR HE WAS SUBJECTED TO SUBSTAN-
30 TIAL PHYSICAL, SEXUAL OR PSYCHOLOGICAL ABUSE AND THAT SUCH OFFENSE WAS
31 COMMITTED AS A DIRECT RESULT OF SUCH ABUSE, SUCH PERSON MUST SUBMIT AN
32 APPLICATION TO THE COMMISSIONER OR COMMISSIONER'S DESIGNEE ALONG WITH
33 CORROBORATIVE MATERIAL THAT SHALL INCLUDE ONE OR MORE OF THE FOLLOWING
34 DOCUMENTS: WITNESS STATEMENTS, COURT RECORDS, PRE-SENTENCE REPORTS,
35 SOCIAL SERVICES RECORDS, CITY AND STATE DEPARTMENT OF CORRECTIONS
36 RECORDS, HOSPITAL RECORDS, LAW ENFORCEMENT RECORDS, DOMESTIC INCIDENT
37 REPORTS, ORDERS OF PROTECTION, A SHOWING BASED IN PART ON DOCUMENTATION
38 PREPARED AT OR NEAR THE TIME OF THE COMMISSION OF THE OFFENSE OR THE
39 PROSECUTION THEREOF TENDING TO SUPPORT THE PERSON'S CLAIM, OR WHEN THERE
40 IS VERIFICATION OF CONSULTATION WITH A LICENSED MEDICAL OR MENTAL HEALTH
41 CARE PROVIDER, EMPLOYEE OF A COURT ACTING WITHIN THE SCOPE OF HIS OR HER
42 EMPLOYMENT, MEMBER OF THE CLERGY, ATTORNEY, SOCIAL WORKER, OR RAPE
43 CRISIS COUNSELOR AS DEFINED IN SECTION FORTY-FIVE HUNDRED TEN OF THE
44 CIVIL PRACTICE LAW AND RULES, OR OTHER ADVOCATE ACTING ON BEHALF OF AN
45 AGENCY THAT ASSISTS VICTIMS OF DOMESTIC VIOLENCE, OR OTHER SIMILAR
46 DOCUMENTATION THAT CORROBORATES SUCH PERSON'S CLAIM.
47 S 3. Subdivision 3 of section 803 of the correction law, as amended by
48 section 37 of subpart B of part C of chapter 62 of the laws of 2011, is
49 amended to read as follows:
50 3. The commissioner of corrections and community supervision shall
51 promulgate rules and regulations for the granting, withholding, forfei-
52 ture, cancellation and restoration of allowances authorized by this
53 section in accordance with the criteria herein specified. Such rules and
54 regulations shall include provisions designating the person or committee
55 in each correctional institution delegated to make discretionary deter-
56 minations with respect to the allowances, the books and records to be
S. 329--A 4
1 kept, and a procedure for review of the institutional determinations by
2 the commissioner. FURTHER, THE COMMISSIONER OR THE COMMISSIONER'S
3 DESIGNEE MAY CONSULT WITH THE OFFICE FOR THE PREVENTION OF DOMESTIC
4 VIOLENCE REGARDING THE PROMULGATION OF RULES AND REGULATIONS FOR GRANT-
5 ING, WITHHOLDING, FORFEITURE, CANCELLATION AND RESTORATION OF MERIT TIME
6 ALLOWANCES PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION
7 ONE OF THIS SECTION. TO ASSIST IN THE IMPLEMENTATION OF SUBPARAGRAPH
8 (VI) OF PARAGRAPH (D) OF SUBDIVISION ONE OF THIS SECTION, THE OFFICE FOR
9 THE PREVENTION OF DOMESTIC VIOLENCE SHALL PROVIDE TRAINING TO DEPARTMENT
10 STAFF DELEGATED TO MAKE DETERMINATIONS REGARDING SUCH ALLOWANCES. THE
11 COMMISSIONER OR THE COMMISSIONER'S DESIGNEE MAY ALSO REQUEST ASSISTANCE
12 FROM THE OFFICE FOR THE PREVENTION OF DOMESTIC VIOLENCE IN MAKING A
13 DETERMINATION ABOUT WHETHER AN INDIVIDUAL INMATE IS AN APPROPRIATE
14 CANDIDATE FOR MERIT TIME ELIGIBILITY PURSUANT TO SUBPARAGRAPH (VI) OF
15 PARAGRAPH (D) OF SUBDIVISION ONE OF THIS SECTION, PROVIDED, HOWEVER,
16 THAT THE COMMISSIONER SHALL MAKE THE FINAL DETERMINATION ON THE GRANT-
17 ING, WITHHOLDING, FORFEITURE, CANCELLATION AND RESTORATION OF MERIT TIME
18 ALLOWANCES PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION
19 ONE OF THIS SECTION.
20 S 4. Subdivision 3 of section 803 of the correction law, as amended by
21 section 38 of subpart B of part C of chapter 62 of the laws of 2011, is
22 amended to read as follows:
23 3. The commissioner of corrections and community supervision shall
24 promulgate rules and regulations for the granting, withholding, forfei-
25 ture, cancellation and restoration of allowances authorized by this
26 section in accordance with the criteria herein specified. Such rules and
27 regulations shall include provisions designating the person or committee
28 in each correctional institution delegated to make discretionary deter-
29 minations with respect to the allowances, the books and records to be
30 kept, and a procedure for review of the institutional determinations by
31 the commissioner. FURTHER, THE COMMISSIONER OR THE COMMISSIONER'S
32 DESIGNEE MAY CONSULT WITH THE OFFICE FOR THE PREVENTION OF DOMESTIC
33 VIOLENCE REGARDING THE PROMULGATION OF RULES AND REGULATIONS FOR GRANT-
34 ING, WITHHOLDING, FORFEITURE, CANCELLATION AND RESTORATION OF MERIT TIME
35 ALLOWANCES PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION
36 ONE OF THIS SECTION. TO ASSIST IN THE IMPLEMENTATION OF SUBPARAGRAPH
37 (VI) OF PARAGRAPH (D) OF SUBDIVISION ONE OF THIS SECTION, THE OFFICE FOR
38 THE PREVENTION OF DOMESTIC VIOLENCE SHALL PROVIDE TRAINING TO DEPARTMENT
39 STAFF DELEGATED TO MAKE DETERMINATIONS REGARDING SUCH ALLOWANCES. THE
40 COMMISSIONER OR THE COMMISSIONER'S DESIGNEE MAY ALSO REQUEST ASSISTANCE
41 FROM THE OFFICE FOR THE PREVENTION OF DOMESTIC VIOLENCE IN MAKING A
42 DETERMINATION ABOUT WHETHER AN INDIVIDUAL INMATE IS AN APPROPRIATE
43 CANDIDATE FOR MERIT TIME ELIGIBILITY PURSUANT TO SUBPARAGRAPH (VI) OF
44 PARAGRAPH (D) OF SUBDIVISION ONE OF THIS SECTION, PROVIDED, HOWEVER,
45 THAT THE COMMISSIONER SHALL MAKE THE FINAL DETERMINATION ON THE GRANT-
46 ING, WITHHOLDING, FORFEITURE, CANCELLATION AND RESTORATION OF MERIT TIME
47 ALLOWANCES PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION
48 ONE OF THIS SECTION.
49 S 5. Section 805 of the correction law, as amended by section 4 of
50 part E of chapter 62 of the laws of 2003, is amended to read as follows:
51 S 805. Earned eligibility program. Persons committed to the custody of
52 the department under an indeterminate or determinate sentence of impri-
53 sonment shall be assigned a work and treatment program as soon as prac-
54 ticable. No earlier than two months prior to the inmate's eligibility to
55 be paroled pursuant to subdivision one of section 70.40 of the penal
56 law, the commissioner shall review the inmate's institutional record to
S. 329--A 5
1 determine whether he OR SHE has complied with the assigned program. If
2 the commissioner determines that the inmate has successfully partic-
3 ipated in the program he OR SHE may issue the inmate a certificate of
4 earned eligibility. Notwithstanding any other provision of law, an
5 inmate who is serving a sentence with a minimum term of not more than
6 eight years and who has been issued a certificate of earned eligibility,
7 shall be granted parole release at the expiration of his OR HER minimum
8 term or as authorized by subdivision four of section eight hundred
9 sixty-seven of this chapter unless the board of parole determines that
10 there is a reasonable probability that, if such inmate is released, he
11 OR SHE will not live and remain at liberty without violating the law and
12 that his OR HER release is not compatible with the welfare of society.
13 Any action by the commissioner pursuant to this section shall be deemed
14 a judicial function and shall not be reviewable if done in accordance
15 with law.
16 NOTWITHSTANDING THE OPENING PARAGRAPH OF THIS SECTION, A PERSON WHO IS
17 ELIGIBLE FOR MERIT TIME UNDER SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF
18 SUBDIVISION ONE OF SECTION EIGHT HUNDRED THREE OF THIS ARTICLE WHO HAS
19 BEEN ISSUED A CERTIFICATE OF EARNED ELIGIBILITY AND IS SERVING A
20 SENTENCE WITH A MINIMUM TERM OF MORE THAN EIGHT YEARS SHALL BE GRANTED
21 PAROLE RELEASE AT THE EXPIRATION OF HIS OR HER MINIMUM TERM UNLESS THE
22 BOARD OF PAROLE DETERMINES THAT THERE IS A REASONABLE PROBABILITY THAT,
23 IF SUCH PERSON IS RELEASED, HE OR SHE WOULD NOT LIVE AND REMAIN AT
24 LIBERTY WITHOUT VIOLATING THE LAW AND THAT HIS OR HER RELEASE IS NOT
25 COMPATIBLE WITH THE WELFARE OF SOCIETY. ANY ACTION BY THE COMMISSIONER
26 PURSUANT TO THIS SECTION SHALL BE DEEMED A JUDICIAL FUNCTION AND SHALL
27 NOT BE REVIEWABLE IF DONE IN ACCORDANCE WITH THE LAW.
28 S 6. Section 805 of the correction law, as amended by chapter 262 of
29 the laws of 1987, is amended to read as follows:
30 S 805. Earned eligibility program. Persons committed to the custody of
31 the department under an indeterminate sentence of imprisonment shall be
32 assigned a work and treatment program as soon as practicable. No earlier
33 than two months prior to the expiration of an inmate's minimum period of
34 imprisonment, the commissioner shall review the inmate's institutional
35 record to determine whether he OR SHE has complied with the assigned
36 program. If the commissioner determines that the inmate has successful-
37 ly participated in the program he OR SHE may issue the inmate a certif-
38 icate of earned eligibility. Notwithstanding any other provision of law,
39 an inmate who is serving a sentence with a minimum term of not more than
40 six years and who has been issued a certificate of earned eligibility,
41 shall be granted parole release at the expiration of his OR HER minimum
42 term or as authorized by subdivision four of section eight hundred
43 sixty-seven OF THIS CHAPTER unless the board of parole determines that
44 there is a reasonable probability that, if such inmate is released, he
45 OR SHE will not live and remain at liberty without violating the law and
46 that his OR HER release is not compatible with the welfare of society.
47 Any action by the commissioner pursuant to this section shall be deemed
48 a judicial function and shall not be reviewable if done in accordance
49 with law.
50 NOTWITHSTANDING THE OPENING PARAGRAPH OF THIS SECTION, A PERSON WHO IS
51 ELIGIBLE FOR MERIT TIME UNDER SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF
52 SUBDIVISION ONE OF SECTION EIGHT HUNDRED THREE OF THIS ARTICLE WHO HAS
53 BEEN ISSUED A CERTIFICATE OF EARNED ELIGIBILITY AND IS SERVING A
54 SENTENCE WITH A MINIMUM TERM OF MORE THAN SIX YEARS SHALL BE GRANTED
55 PAROLE RELEASE AT THE EXPIRATION OF HIS OR HER MINIMUM TERM UNLESS THE
56 BOARD OF PAROLE DETERMINES THAT THERE IS A REASONABLE PROBABILITY THAT,
S. 329--A 6
1 IF SUCH PERSON IS RELEASED, HE OR SHE WOULD NOT LIVE AND REMAIN AT
2 LIBERTY WITHOUT VIOLATING THE LAW AND THAT HIS OR HER RELEASE IS NOT
3 COMPATIBLE WITH THE WELFARE OF SOCIETY. ANY ACTION BY THE COMMISSIONER
4 PURSUANT TO THIS SECTION SHALL BE DEEMED A JUDICIAL FUNCTION AND SHALL
5 NOT BE REVIEWABLE IF DONE IN ACCORDANCE WITH THE LAW.
6 S 7. Section 806 of the correction law is amended by adding a new
7 subdivision 8 to read as follows:
8 8. NOTWITHSTANDING ANY INCONSISTENT PROVISION OF THIS SECTION, A
9 PERSON THAT IS ELIGIBLE FOR A MERIT TIME ALLOWANCE PURSUANT TO SUBPARA-
10 GRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION ONE OF SECTION EIGHT HUNDRED
11 THREE OF THIS ARTICLE MAY BE ENTITLED TO PRESUMPTIVE RELEASE AT THE
12 EXPIRATION OF FIVE-SIXTHS OF THE MINIMUM OR AGGREGATE MINIMUM PERIOD OF
13 THE INDETERMINATE TERM IMPOSED BY THE COURT.
14 S 8. Subdivision 2-a of section 851 of the correction law, as added by
15 chapter 251 of the laws of 2002, is amended to read as follows:
16 2-a. Notwithstanding subdivision two of this section, the term "eligi-
17 ble inmate" shall also include a person confined in an institution who
18 is eligible for release on parole or who will become eligible for
19 release on parole or conditional release within two years, and who [was
20 convicted of a homicide offense as defined in article one hundred twen-
21 ty-five of the penal law or an assault offense defined in article one
22 hundred twenty of the penal law, and who can demonstrate to the commis-
23 sioner that: (a) the victim of such homicide or assault was a member of
24 the inmate's immediate family as that term is defined in section 120.40
25 of the penal law or had a child in common with the inmate; (b) the
26 inmate was subjected to substantial physical, sexual or psychological
27 abuse committed by the victim of such homicide or assault; and (c) such
28 abuse was a substantial factor in causing the inmate to commit such
29 homicide or assault] IS ELIGIBLE FOR A MERIT TIME ALLOWANCE PURSUANT TO
30 SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION ONE OF SECTION EIGHT
31 HUNDRED THREE OF THIS CHAPTER. With respect to an inmate's claim that
32 he or she was subjected to substantial physical, sexual or psychological
33 abuse [committed by the victim] AND THAT THE OFFENSE WAS COMMITTED AS A
34 DIRECT RESULT OF SUCH ABUSE, such demonstration shall include corrobora-
35 tive material that may include, but is not limited to, witness state-
36 ments, COURT RECORDS, PRE-SENTENCE REPORTS, social services records,
37 CITY AND STATE DEPARTMENT OF CORRECTION RECORDS, hospital records, law
38 enforcement records, DOMESTIC INCIDENT REPORTS, ORDERS OF PROTECTION and
39 a showing based in part on documentation prepared at or near the time of
40 the commission of the offense or the prosecution thereof tending to
41 support the inmate's claim, OR WHEN THERE IS VERIFICATION OF CONSULTA-
42 TION WITH A LICENSED MEDICAL OR MENTAL HEALTH CARE PROVIDER, EMPLOYEE OF
43 A COURT ACTING WITHIN THE SCOPE OF HIS OR HER EMPLOYMENT, MEMBER OF THE
44 CLERGY, ATTORNEY, SOCIAL WORKER, OR RAPE CRISIS COUNSELOR AS DEFINED IN
45 PARAGRAPH TWO OF SUBDIVISION (A) OF SECTION FORTY-FIVE HUNDRED TEN OF
46 THE CIVIL PRACTICE LAW AND RULES, OR OTHER ADVOCATE ACTING ON BEHALF OF
47 AN AGENCY THAT ASSISTS VICTIMS OF DOMESTIC VIOLENCE. Prior to making a
48 determination under this subdivision, the commissioner is required to
49 request and take into consideration the opinion of the district attorney
50 who prosecuted the underlying [homicide or assault] offense and the
51 opinion of the sentencing court. If such opinions are received within
52 forty-five days of the request, the commissioner shall take them into
53 consideration. DURING THE FORTY-FIVE DAY WAITING PERIOD, THE INMATE MAY
54 BE PERMITTED TO CONTINUE TO GATHER ADDITIONAL CORROBORATIVE MATERIALS.
55 If such opinions are not so received, the commissioner may proceed with
56 the determination. THE COMMISSIONER OR THE COMMISSIONER'S DESIGNEE MAY
S. 329--A 7
1 CONSULT WITH THE OFFICE FOR THE PREVENTION OF DOMESTIC VIOLENCE TO
2 PROMULGATE RULES AND REGULATIONS TO IMPLEMENT THIS SUBDIVISION. TO
3 ASSIST IN THE IMPLEMENTATION OF THIS SUBDIVISION, THE OFFICE FOR THE
4 PREVENTION OF DOMESTIC VIOLENCE SHALL PROVIDE TRAINING TO DEPARTMENT
5 STAFF DELEGATED TO MAKE DETERMINATIONS PURSUANT TO THIS SUBDIVISION. THE
6 COMMISSIONER OR THE COMMISSIONER'S DESIGNEE MAY ALSO REQUEST ASSISTANCE
7 FROM THE OFFICE FOR THE PREVENTION OF DOMESTIC VIOLENCE IN MAKING A
8 DETERMINATION ABOUT WHETHER AN INDIVIDUAL INMATE IS AN APPROPRIATE
9 CANDIDATE FOR WORK RELEASE PURSUANT TO THIS SUBDIVISION, PROVIDED,
10 HOWEVER, THAT THE COMMISSIONER SHALL MAKE THE FINAL DETERMINATION OF
11 WHETHER TO GRANT WORK RELEASE PURSUANT TO THIS SUBDIVISION. Any action
12 by the commissioner pursuant to this subdivision shall be deemed a judi-
13 cial function and shall not be reviewable in any court.
14 S 9. The commissioner of the department of corrections and community
15 supervision shall present to the governor, the temporary president of
16 the senate and the speaker of the assembly an annual report about the
17 granting and withholding of merit time allowance pursuant to subpara-
18 graph (vi) of paragraph (d) of subdivision 1 of section 803 of the
19 correction law and the operation of the work release program as applied
20 to inmates deemed eligible pursuant to subdivision 2-a of section 851 of
21 the correction law. Such report shall include, but not be limited to,
22 the number of inmates who apply for such merit time allowance, the
23 number of inmates approved for such merit time allowance, the number of
24 denials of applications for such merit time allowance, the reasons for
25 denials of applications for such merit time allowance, the crime of
26 conviction and the sentence for each inmate granted such merit time
27 allowance, the number of inmates eligible for work release, the number
28 of inmates granted work release pursuant to subdivision 2-a of section
29 851 of the correction law, the number of denials of applications for
30 such work release, the reasons for denials of applications for such work
31 release, and the role of the office for the prevention of domestic
32 violence in assisting the department of correctional services to make
33 determinations regarding the granting or withholding of such merit time
34 allowance and the eligibility for work release pursuant to subdivision
35 2-a of section 851 of the correction law. The initial report required by
36 this section shall be presented by December 31, 2013. Thereafter, an
37 annual report shall be presented no later than December 31 of each year.
38 S 10. This act shall take effect on the one hundred eightieth day
39 after it shall have become a law and shall apply to persons in custody
40 serving an indeterminate or determinate sentence on the effective date
41 of this act as well as to persons sentenced to an indeterminate or
42 determinate sentence on or after the effective date of this act;
43 provided that the amendments to paragraph (d) of subdivision 1 of
44 section 803 of the correction law made by section one of this act shall
45 be subject to the expiration and reversion of such section pursuant to
46 section 74 of chapter 3 of the laws of 1995, as amended, when upon such
47 date the provisions of section two of this act shall take effect;
48 provided further that the amendments to subdivision 3 of section 803 of
49 the correction law made by section three of this act shall be subject to
50 the expiration and reversion of such section pursuant to section 74 of
51 chapter 3 of the laws of 1995, as amended, when upon such date the
52 provisions of section four of this act shall take effect; and provided,
53 further, that the amendments to sections 806 and 851 of the correction
54 law made by sections seven and eight of this act shall not affect the
55 expiration or repeal of such sections and shall expire or be deemed
56 repealed therewith; and provided, further, that the amendments to
S. 329--A 8
1 section 805 of the correction law made by section five of this act shall
2 be subject to the expiration and reversion of such section pursuant to
3 chapter 261 of the laws of 1987 and chapter 3 of the laws of 1995, as
4 amended, when upon such date the provisions of section six of this act
5 shall take effect.
