Bill Text: NY S00342 | 2025-2026 | General Assembly | Introduced

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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 27-0)

Status: (Introduced) 2025-01-08 - REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION [S00342 Detail]

Download: New_York-2025-S00342-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                           342

                               2025-2026 Regular Sessions

                    IN SENATE

                                       (Prefiled)

                                     January 8, 2025
                                       ___________

        Introduced  by  Sens.  COONEY,  BAILEY, BRISPORT, BROUK, CLEARE, COMRIE,
          FERNANDEZ, GIANARIS, GONZALEZ, GOUNARDES, HARCKHAM, HINCHEY,  HOYLMAN-
          SIGAL,  JACKSON,  KAVANAGH, KRUEGER, MAY, MAYER, MYRIE, PARKER, RAMOS,
          RIVERA, SALAZAR, SANDERS, SEPULVEDA, SERRANO, WEBB -- read  twice  and
          ordered  printed, and when printed to be committed to the Committee on
          Crime Victims, Crime and Correction

        AN ACT to amend the correction law and the penal law, in relation to the
          early release of incarcerated individuals

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  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 incarcerated individ-
    14  ual's rule  handbook,  and,  where  applicable,  a  description  of  the
    15  assigned  duty  and/or  identification  of assigned treatment program in
    16  which the incarcerated person was determined to have failed  to  perform
    17  properly.  The report shall additionally specify the department facility
    18  in which the recommendation to withhold, forfeit or cancel good time was
    19  made and the names of the department personnel on such  facility's  time
    20  allowance committee who made such recommendation.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00467-01-5
        S. 342                              2

     1    § 3. Section 803 of the correction law, as amended by chapter 3 of the
     2  laws of 1995, paragraphs (a), (b), and (c) of subdivision 1 and subdivi-
     3  sions  3,  4,  and  5 as amended by section 37 of subpart B of part C of
     4  chapter 62 of the laws of 2011,  paragraph  (d)  of  subdivision  1  and
     5  subdivision  2-a  as  added by chapter 738 of the laws of 2004, subpara-
     6  graph (ii) of paragraph (d) of subdivision 1 as amended by  chapter  322
     7  of the laws of 2021, subparagraph (iv) of paragraph (d) of subdivision 1
     8  as  separately  amended  by chapters 242 and 322 of the laws of 2021 and
     9  subdivision 2-b as added by section 3 of part E of  chapter  62  of  the
    10  laws of 2003, is amended to read as follows:
    11    §  803. Good behavior allowances against indeterminate and determinate
    12  sentences. 1. (a) Every person confined in an institution of the depart-
    13  ment or a facility in the department of mental hygiene serving an  inde-
    14  terminate or determinate sentence of imprisonment, except a person serv-
    15  ing  a  sentence  with  a maximum term of life imprisonment, [may] shall
    16  receive a time allowance against the term or maximum  term  of  [his  or
    17  her] their sentence imposed by the court. Such allowances [may be grant-
    18  ed  for  good  behavior  and efficient and willing performance of duties
    19  assigned or progress and achievement in an assigned  treatment  program,
    20  and  may  be withheld, forfeited or canceled in whole or in part for bad
    21  behavior, violation of institutional rules or failure to perform proper-
    22  ly in the duties  or  program  assigned]  shall  be  credited  toward  a
    23  person's  sentence  on  an annual pro rata basis, and any credit awarded
    24  over the course of the calendar year shall vest on the final day of  the
    25  calendar   year.  Once  vested,  such  credit  shall  not  be  withheld,
    26  forfeited, or canceled.
    27    (a-1)   Time allowances that have  not  yet  been  credited  toward  a
    28  person's  sentence may be withheld, forfeited or canceled in whole or in
    29  part for violation of institutional rules, as demonstrated at a  hearing
    30  by  a preponderance of the evidence.  Such restrictions shall be limited
    31  to the pro rata share of  credit  within  the  calendar  year  that  the
    32  offense  is committed.  If such time allowance is withheld, forfeited or
    33  canceled in whole or in part, further  allowances,  not  to  exceed  the
    34  allowances  set forth in paragraphs (b) and (c) of this subdivision, may
    35  be reinstated for good behavior and efficient and willing performance of
    36  duties assigned or progress and achievement  in  an  assigned  treatment
    37  program.   Following any final determination withholding, forfeiting, or
    38  canceling a time allowance, the incarcerated person shall have the right
    39  to take an administrative appeal to the central office of the department
    40  and shall be advised of the right to seek legal assistance in the taking
    41  of such appeal.  The department shall adopt  regulations  in  accordance
    42  with this provision.
    43    (b)  A  person serving an indeterminate sentence of imprisonment [may]
    44  shall receive a time allowance against the maximum term of [his or  her]
    45  their sentence [not to exceed one-third] of one-half of the maximum term
    46  imposed by the court.
    47    (c)  A  person  serving  a  determinate sentence of imprisonment [may]
    48  shall receive a time allowance against the term of [his  or  her]  their
    49  sentence  [not to exceed one-seventh] of one-half of the term imposed by
    50  the court.
    51    (d) (i) [Except as provided in subparagraph (ii)  of  this  paragraph,
    52  every] Every person under the custody of the department or confined in a
    53  facility  in  the  department of mental hygiene serving an indeterminate
    54  sentence of imprisonment with a minimum period of one year or more or  a
    55  determinate sentence of imprisonment of one year or more [imposed pursu-
        S. 342                              3

     1  ant  to  section 70.70 or 70.71 of the penal law,] may earn a merit time
     2  allowance.
     3    (ii)  [Such  merit time allowance shall not be available to any person
     4  serving an indeterminate sentence authorized for an A-I felony  offense,
     5  other  than  an A-I felony offense defined in article two hundred twenty
     6  of the penal law, or any sentence imposed for a violent  felony  offense
     7  as defined in section 70.02 of the penal law, manslaughter in the second
     8  degree,   vehicular   manslaughter   in  the  second  degree,  vehicular
     9  manslaughter in the first  degree,  criminally  negligent  homicide,  an
    10  offense  defined in article one hundred thirty of the penal law, incest,
    11  or an offense defined in article two hundred sixty-three  of  the  penal
    12  law, or aggravated harassment of an employee by an incarcerated individ-
    13  ual.
    14    (iii)]  The  merit time allowance credit against the minimum period of
    15  the indeterminate sentence shall be [one-sixth] one-half of the  minimum
    16  period  imposed by the court [except that such credit shall be one-third
    17  of the minimum period imposed by the court for  an  A-I  felony  offense
    18  defined  in article two hundred twenty of the penal law]. In the case of
    19  such a determinate sentence, in addition to the  time  allowance  credit
    20  authorized  by  paragraph (c) of this subdivision, the merit time allow-
    21  ance credited against the term of the determinate sentence  pursuant  to
    22  this paragraph shall be [one-seventh] one-quarter of the term imposed by
    23  the court.
    24    [(iv)]  (iii) Such merit time allowance [may] shall be granted when an
    25  incarcerated individual successfully participates in the work and treat-
    26  ment program assigned pursuant to section eight  hundred  five  of  this
    27  article [and], including but not limited to when such incarcerated indi-
    28  vidual  obtains  a general equivalency diploma, an alcohol and substance
    29  abuse treatment certificate, a vocational trade  certificate  [following
    30  at  least six months of vocational programming], at least eighteen cred-
    31  its in a program registered by the state  education  department  from  a
    32  degree-granting  higher  education institution or performs at least four
    33  hundred hours of service as part of a community work crew,  or  success-
    34  fully  completes  one or more "significant programmatic accomplishments"
    35  as defined in paragraph (c) of subdivision one of section eight  hundred
    36  three-b  of  this  article.  The  commissioner  may designate additional
    37  programs and achievements for which merit time shall  be  granted.  Once
    38  granted, such allowances shall not be withheld, forfeited, or cancelled.
    39  Where  the  institution in which the incarcerated individual is confined
    40  does not provide opportunities for every incarcerated individual to earn
    41  merit time allowances, such merit time allowance shall be  automatically
    42  credited  against  the  incarcerated  individual's sentence according to
    43  subparagraph (ii) of this paragraph.
    44    [Such allowance shall be withheld for any serious disciplinary infrac-
    45  tion or upon a judicial determination that the person, while  an  incar-
    46  cerated individual, commenced or continued a civil action, proceeding or
    47  claim  that  was  found to be frivolous as defined in subdivision (c) of
    48  section eight thousand three hundred three-a of the civil  practice  law
    49  and  rules,  or  an  order of a federal court pursuant to rule 11 of the
    50  federal rules  of  civil  procedure  imposing  sanctions  in  an  action
    51  commenced by a person, while an incarcerated individual, against a state
    52  agency, officer or employee.
    53    (v)]  (iv)  The provisions of this paragraph shall apply to persons in
    54  custody serving [an] a determinate  or  indeterminate  sentence  on  the
    55  effective date of this paragraph as well as to persons sentenced to [an]
    56  a  determinate or indeterminate sentence on and after the effective date
        S. 342                              4

     1  of this paragraph [and prior to September first, two thousand  five  and
     2  to persons sentenced to a determinate sentence prior to September first,
     3  two thousand eleven for a felony as defined in article two hundred twen-
     4  ty  or two hundred twenty-one of the penal law]. The time allowances set
     5  forth in this paragraph shall apply retroactively and shall be  credited
     6  toward  every  incarcerated  individual's sentence within ninety days of
     7  the chapter of the laws of two thousand twenty-five  that  amended  this
     8  paragraph.
     9    2.  If  a  person  is  serving  more than one sentence, the authorized
    10  allowances may be granted separately against the term or maximum term of
    11  each sentence or, where consecutive sentences are involved, against  the
    12  aggregate maximum term. Such allowances shall be calculated as follows:
    13    (a)  A  person  serving  two or more indeterminate sentences which run
    14  concurrently [may] shall receive a time allowance [not  to  exceed  one-
    15  third]  of  one-half of the indeterminate sentence which has the longest
    16  unexpired time to run.
    17    (b) A person serving two or more  indeterminate  sentences  which  run
    18  consecutively  [may]  shall receive a time allowance [not to exceed one-
    19  third] of one-half of the aggregate maximum term.
    20    (c) A person serving two  or  more  determinate  sentences  which  run
    21  concurrently  [may]  shall  receive a time allowance [not to exceed one-
    22  seventh] of one-half of the determinate sentence which has  the  longest
    23  unexpired time to run.
    24    (d)  A  person  serving  two  or  more determinate sentences which run
    25  consecutively [may] shall receive a time allowance [not to  exceed  one-
    26  seventh] of one-half of the aggregate maximum term.
    27    (e)  A  person  serving  one or more indeterminate sentence and one or
    28  more determinate sentence which run concurrently [may] shall  receive  a
    29  time  allowance  [not to exceed one-third] of one-half of the indetermi-
    30  nate sentence which has the longest unexpired term to run  or  [one-sev-
    31  enth]  one-half  of the determinate sentence which has the longest unex-
    32  pired time to run, whichever allowance is greater.
    33    (f) A person serving one or more indeterminate  sentence  and  one  or
    34  more  determinate sentence which run consecutively [may] shall receive a
    35  time allowance [not to exceed] of the sum of [one-third] one-half of the
    36  maximum or aggregate maximum of the indeterminate sentence or  sentences
    37  and  [one-seventh]  one-half  of  the  term  or aggregate maximum of the
    38  determinate sentence or sentences.
    39    2-a. If a person is serving more than  one  sentence,  the  authorized
    40  merit  time  allowances  may  be granted against the period or aggregate
    41  minimum period of the indeterminate sentence or  sentences,  or  against
    42  the  term or aggregate term of the determinate sentence or sentences, or
    43  where consecutive determinate and indeterminate sentences are  involved,
    44  against  the aggregate minimum period as calculated pursuant to subpara-
    45  graph (iv) of paragraph (a) of subdivision one of section 70.40  of  the
    46  penal law. Such allowances shall be calculated as follows:
    47    (a)  A  person  serving  two or more indeterminate sentences which run
    48  concurrently may receive a merit time  allowance  not  to  exceed  [one-
    49  sixth]  one-half  of  the  minimum  period of the indeterminate sentence
    50  imposed [for an offense other than an  A-I  felony  offense  defined  in
    51  article two hundred twenty of the penal law, or one-third of the minimum
    52  period  of  the indeterminate sentence imposed for an A-I felony offense
    53  defined in article two hundred twenty of the penal law, whichever allow-
    54  ance results in the longest unexpired time to run] by the court.
    55    (b) A person serving two or more  indeterminate  sentences  which  run
    56  consecutively  may  receive  a  merit  time  allowance not to exceed the
        S. 342                              5

     1  amount of [one-third] one-half of the minimum or aggregate minimum peri-
     2  od of the sentences imposed [for an A-I felony offense defined in  arti-
     3  cle  two  hundred twenty of the penal law, plus one-sixth of the minimum
     4  or  aggregate  minimum  period  of  the sentences imposed for an offense
     5  other than such A-I felony offense] by the court.
     6    (c) A person serving two or more determinate sentences [for an offense
     7  defined in article two hundred twenty or two hundred twenty-one  of  the
     8  penal law] which run concurrently may receive a merit time allowance not
     9  to  exceed  [one-seventh]  one-quarter  of  the  term of the determinate
    10  sentence which has the longest unexpired time to run.
    11    (d) A person serving two or more determinate sentences [for an offense
    12  defined in article two hundred twenty or two hundred twenty-one  of  the
    13  penal  law]  which  run consecutively may receive a merit time allowance
    14  not to exceed [one-seventh] one-quarter of the aggregate  term  of  such
    15  determinate sentences.
    16    (e)  A  person  serving one or more indeterminate sentences and one or
    17  more determinate sentences  [for  an  offense  defined  in  article  two
    18  hundred  twenty  or  two  hundred twenty-one of the penal law] which run
    19  concurrently may receive a merit time  allowance  not  to  exceed  [one-
    20  sixth]  one-half  of  the  minimum  period of the indeterminate sentence
    21  imposed [for an offense other than an  A-I  felony  offense  defined  in
    22  article  two  hundred  twenty of the penal law, one-third of the minimum
    23  period of the indeterminate sentence imposed for an A-I  felony  offense
    24  defined  in  article  two hundred twenty of the penal law,] or [one-sev-
    25  enth] one-quarter of the term of  the  determinate  sentence,  whichever
    26  allowance results in the largest unexpired time to run.
    27    (f)  A  person  serving one or more indeterminate sentences and one or
    28  more determinate sentences which run consecutively may receive  a  merit
    29  time  allowance  not  to  exceed  the sum of [one-sixth] one-half of the
    30  minimum or aggregate minimum period of  the  indeterminate  sentence  or
    31  sentences  imposed  [for  an  offense  other  than an A-I felony offense
    32  defined in article two hundred twenty of the penal law, one-third of the
    33  minimum or aggregate minimum period of  the  indeterminate  sentence  or
    34  sentences  imposed  for  an  A-I  felony  offense defined in article two
    35  hundred twenty of the penal law] and [one-seventh]  one-quarter  of  the
    36  term or aggregate term of the determinate sentence or sentences.
    37    (g)  The  provisions  of  this  subdivision  shall apply to persons in
    38  custody serving [an] a determinate  or  indeterminate  sentence  on  the
    39  effective  date  of  this subdivision as well as to persons sentenced to
    40  [an] a determinate or indeterminate sentence on and after the  effective
    41  date  of  this  subdivision  [and prior to September first, two thousand
    42  five and to persons sentenced to a determinate sentence prior to Septem-
    43  ber first, two thousand eleven for a felony as defined  in  article  two
    44  hundred  twenty  or  two hundred twenty-one of the penal law]. The merit
    45  time allowances set forth in this subdivision shall apply retroactively,
    46  and shall be credited toward every  incarcerated  individual's  sentence
    47  within  ninety  days of the effective date of the chapter of the laws of
    48  two thousand twenty-five that amended this subdivision.
    49    [2-b. Notwithstanding the foregoing, if a person is serving more  than
    50  one indeterminate sentence, at least one of which is imposed for a class
    51  A-I  felony  offense  defined in article two hundred twenty of the penal
    52  law, the authorized merit time allowance granted pursuant  to  paragraph
    53  (d) of subdivision one of this section shall be calculated as follows:
    54    (a)  In  the  event  a  person  is  serving  two or more indeterminate
    55  sentences with different minimum periods  which  run  concurrently,  the
    56  merit  time  allowance shall be based upon the sentence with the longest
        S. 342                              6

     1  unexpired minimum period. If the sentence  with  the  longest  unexpired
     2  minimum period was imposed for a class A-I felony, the merit time credit
     3  shall  be  one-third of such sentence's minimum period; if such sentence
     4  was  imposed  for  an  offense other than a class A-I felony, such merit
     5  time credit shall  be  one-sixth  of  such  sentence's  minimum  period.
     6  Provided, however, that where the minimum period of any other concurrent
     7  indeterminate  sentence is greater than such reduced minimum period, the
     8  minimum period of such other  concurrent  indeterminate  sentence  shall
     9  also  be  reduced but only to the extent that the minimum period of such
    10  other concurrent sentence, as so reduced, is equal to the reduced  mini-
    11  mum period of such sentence with the longest unexpired minimum period to
    12  run.
    13    (b) A person serving two or more indeterminate sentences with the same
    14  minimum  periods which run concurrently, and no concurrent indeterminate
    15  sentence with any greater minimum period, shall have the minimum  period
    16  of each such sentence reduced in the amount of one-third of such minimum
    17  period if all such sentences were imposed for a class A-I felony.
    18    (c)  A  person  serving  two  or more indeterminate sentences that run
    19  consecutively shall have the aggregate minimum period of such  sentences
    20  reduced  in  the amount of one-third of such aggregate minimum period of
    21  the sentences imposed for a class A-I felony,  plus  one-sixth  of  such
    22  aggregate  minimum  period of the sentences imposed for an offense other
    23  than a class A-I felony.]
    24    3. The commissioner of corrections  and  community  supervision  shall
    25  promulgate  rules  and  regulations for the fair and equitable granting,
    26  withholding, forfeiture,  cancellation  and  restoration  of  allowances
    27  authorized by this section in accordance with the criteria herein speci-
    28  fied. Such rules and regulations shall specify procedures to ensure that
    29  similarly  situated  incarcerated  persons  are  treated  similarly with
    30  respect to the granting,  withholding,  forfeiture  or  cancellation  of
    31  allowances,  and  include provisions designating the person or committee
    32  in each correctional institution delegated to make discretionary  deter-
    33  minations  with  respect  to the allowances, the books and records to be
    34  kept, and a procedure for review of the institutional determinations  by
    35  the commissioner.
    36    4. [No person shall have the right to demand or require the allowances
    37  authorized  by  this  section.  The  decision  of  the  commissioner  of
    38  corrections and community supervision as to the  granting,  withholding,
    39  forfeiture,  cancellation  or  restoration  of  such allowances shall be
    40  final and shall not be reviewable if made in accordance with law.
    41    5.] Time allowances granted prior to any release to  community  super-
    42  vision  shall  be  forfeited  and  shall not be restored if the released
    43  person is returned to an institution under the jurisdiction of the state
    44  department of corrections and community  supervision  for  violation  of
    45  community supervision or by reason of a conviction for a crime committed
    46  while  on community supervision. A person who is so returned may, howev-
    47  er, subsequently receive time allowances against the  remaining  portion
    48  of  [his  or  her]  their  term,  maximum term or aggregate maximum term
    49  pursuant to this section [and provided such remaining portion of [his or
    50  her] their term, maximum term, or aggregate maximum term  is  more  than
    51  one year].
    52    [6.]  5.  Upon  commencement  of  an  indeterminate  or  a determinate
    53  sentence the provisions of this section shall be furnished to the person
    54  serving the sentence and the meaning of same shall be fully explained to
    55  [him] them by a person designated by the commissioner  to  perform  such
    56  duty.
        S. 342                              7

     1    § 4. Section 804 of the correction law, as added by chapter 680 of the
     2  laws of 1967, subdivisions 1 and 2 as amended by chapter 145 of the laws
     3  of 1976, and subdivision 6 as amended by section 39 of subpart B of part
     4  C of chapter 62 of the laws of 2011, is amended to read as follows:
     5    §  804.  Good behavior allowances against definite sentences. 1. Every
     6  person confined in an institution serving a definite sentence of  impri-
     7  sonment   [may]  shall  receive  a  time  [allowances  as  discretionary
     8  reductions of the term of his sentence not to exceed  in  the  aggregate
     9  one-third]  allowance of one-half of the term imposed by the court. Such
    10  allowances [may be granted for good behavior and efficient  and  willing
    11  performance  of  duties  assigned  or  progress  and  achievement  in an
    12  assigned treatment program, and may be withheld, forfeited or  cancelled
    13  in  whole  or in part for bad behavior, violation of institutional rules
    14  or failure to perform properly in the duties or program assigned]  shall
    15  be  credited toward a person's sentence on an annual pro rata basis, and
    16  any credit awarded over the course of the calendar year  shall  vest  on
    17  the  final day of the calendar year.  Once vested, such credit shall not
    18  be withheld, forfeited, or canceled.
    19    1-a. Time allowances that have not yet been granted toward a  person's
    20  sentence  may be withheld, forfeited or canceled in whole or in part for
    21  violation of institutional rules, as demonstrated  at  a  hearing  by  a
    22  preponderance of the evidence. Such restrictions shall be limited to the
    23  pro  rata  share  of credit within the calendar year that the offense is
    24  committed. If such time allowance is withheld, forfeited or canceled  in
    25  whole or in part, further allowances, not to exceed one-half of the term
    26  imposed  by the court, may be reinstated for good behavior and efficient
    27  and willing performance of duties assigned or progress  and  achievement
    28  in  an  assigned  treatment  program.  Following any final determination
    29  withholding, forfeiting, or canceling a time allowance, the incarcerated
    30  person shall have the right to take  an  administrative  appeal  to  the
    31  sheriff  and  shall  be advised of the right to seek legal assistance in
    32  the taking of such  appeal.  The  sheriff  shall  adopt  regulations  in
    33  accordance with this provision.
    34    2.  If  a  person  is  serving  more than one sentence, the authorized
    35  allowances may be granted separately against the term of  each  sentence
    36  or,  where  consecutive  sentences  are  involved, against the aggregate
    37  term. Allowances based upon sentences of less  than  one  month  may  be
    38  granted,  and  in  such  case the maximum allowance shall be one day for
    39  every [three] two days of the sentence. In no case, however,  shall  the
    40  total  of  all  allowances granted to any such person exceed [one-third]
    41  one-half of the time [he] they would  be  required  to  serve,  computed
    42  without regard to this section.
    43    3. [No person shall have the right to demand or require the allowances
    44  authorized by this section. The decision of the sheriff, superintendent,
    45  warden  or  other  person  in  charge  of the institution, or where such
    46  institution is under the jurisdiction of a county or city department the
    47  decision of the head of such department, as to the  granting,  withhold-
    48  ing, forfeiture, cancellation or restoration of such allowances shall be
    49  final and shall not be reviewable if made in accordance with law.
    50    4.]  A  person who has earned a reduction of sentence pursuant to this
    51  section and who has been conditionally released under subdivision two of
    52  section 70.40 of the penal law  shall  not  forfeit  such  reduction  by
    53  reason  of  conduct  causing  [his]  their  return  to  the institution.
    54  Provided, nevertheless, that such reduction may be forfeited  by  reason
    55  of subsequent conduct while serving the remainder of [his] their term.
        S. 342                              8

     1    [5.]  4.  The  state  commission of correction shall promulgate record
     2  keeping rules and regulations for the fair and equitable granting, with-
     3  holding, forfeiture, cancellation and restoration of allowances  author-
     4  ized  by  this  section. Such rules and regulations shall specify proce-
     5  dures to ensure that similarly situated incarcerated persons are treated
     6  similarly  with  respect  to  the  granting,  withholding, forfeiture or
     7  cancellation of allowances.
     8    [6.] 5. Notwithstanding anything to the contrary in this  section,  in
     9  any case where a person is serving a definite sentence in an institution
    10  under the jurisdiction of the state department of corrections and commu-
    11  nity supervision, [subdivisions] subdivision three [and four] of section
    12  eight hundred three of this [chapter] article shall apply.
    13    [7.]  6.  Upon commencement of any definite sentence the provisions of
    14  this section shall be furnished to the person serving the  sentence  and
    15  the meaning of same shall be fully explained to [him] them by an officer
    16  designated in the regulation to perform such duty.
    17    §  5.  Section 804-a of the correction law, as added by chapter 220 of
    18  the laws of 1987, is amended to read as follows:
    19    § 804-a. Good behavior allowances for certain  civil  commitments.  1.
    20  Every person confined in an institution serving a civil commitment for a
    21  fixed  period  of  time,  whose  release is not conditional upon any act
    22  within [his] their power to perform, [may] shall receive time allowances
    23  as discretionary reductions of the term of [his] their commitment not to
    24  exceed, in the aggregate, [one-third] one-half of the  term  imposed  by
    25  the  court.  Such allowances [may be granted for good behavior and effi-
    26  cient and  willing  performance  of  duties  assigned  or  progress  and
    27  achievement  in  an  assigned  treatment  program,  and may be withheld,
    28  forfeited or cancelled in whole or in part for bad  behavior,  violation
    29  of  institutional  rules or failure to perform properly in the duties or
    30  program assigned] shall be credited toward a  person's  sentence  on  an
    31  annual  pro  rata  basis,  and any credit awarded over the course of the
    32  calendar year shall vest on the final day of the calendar  year.    Once
    33  vested, such credit shall not be withheld, forfeited, or canceled.
    34    1-a.  Time allowances that have not yet been granted toward a person's
    35  sentence may be withheld, forfeited or canceled in whole or in part  for
    36  violation  of  institutional  rules,  as  demonstrated at a hearing by a
    37  preponderance of the evidence. Such restrictions shall be limited to the
    38  pro rata share of credit within the calendar year that  the  offense  is
    39  committed.  If such time allowance is withheld, forfeited or canceled in
    40  whole or in part, further allowances, not to exceed one-half of the term
    41  imposed by the court, may be reinstated for good behavior and  efficient
    42  and  willing  performance of duties assigned or progress and achievement
    43  in an assigned treatment  program.  Following  any  final  determination
    44  withholding, forfeiting, or canceling a time allowance, the incarcerated
    45  person  shall  have  the  right  to take an administrative appeal to the
    46  central office of the department and shall be advised of  the  right  to
    47  seek legal assistance in the taking of such appeal. The department shall
    48  adopt regulations in accordance with this provision.
    49    2.  Allowances  based  upon  commitments of less than one month may be
    50  granted, and in such case the maximum allowances shall be  one  day  for
    51  every [three] two days of the commitment. In no case, however, shall the
    52  total  of  all  allowances granted to any such person exceed [one-third]
    53  one-half of the time [he] they would  be  required  to  serve,  computed
    54  without regard to this section.
    55    3. [No person shall have the right to demand or require the allowances
    56  authorized by this section. The decision of the sheriff, superintendent,
        S. 342                              9

     1  warden  or  other  person  in  charge  of the institution, or where such
     2  institution is under the jurisdiction of a county or city department the
     3  decision of the head of such department, as to the  granting,  withhold-
     4  ing,  forfeiture,  cancellation, or restoration of such allowances shall
     5  be final and shall not be reviewable if made in accordance with law.
     6    4.] The state commission of correction shall promulgate record keeping
     7  rules and regulations for the granting, withholding, forfeiture, cancel-
     8  lation and restoration of allowances authorized by this section.
     9    [5.] 4. Upon commencement of any  civil  commitment  as  described  in
    10  subdivision one of this section, the provisions of this section shall be
    11  furnished  to  the person serving the commitment and the meaning of same
    12  shall be fully explained to [him] them by an officer designated  in  the
    13  regulation to perform such duty.
    14    § 6. Section 865 of the correction law, as added by chapter 261 of the
    15  laws of 1987, subdivisions 1 and 2 as amended by chapter 322 of the laws
    16  of 2021, is amended to read as follows:
    17    §  865.  Definitions.  As  used  in this article, [the following terms
    18  mean:
    19    1. "Eligible incarcerated individual" means a person sentenced  to  an
    20  indeterminate  term of imprisonment who will become eligible for release
    21  on parole within three years or  sentenced  to  a  determinate  term  of
    22  imprisonment  who  will  become  eligible for conditional release within
    23  three years, who has not reached the age of fifty  years,  who  has  not
    24  previously  been  convicted  of  a  violent felony as defined in article
    25  seventy of the penal law, or a felony in any  other  jurisdiction  which
    26  includes  all of the essential elements of any such violent felony, upon
    27  which an indeterminate or determinate term of imprisonment  was  imposed
    28  and  who  was between the ages of sixteen and fifty years at the time of
    29  commission of the crime upon which  his  or  her  present  sentence  was
    30  based.  Notwithstanding the foregoing, no person who is convicted of any
    31  of the following crimes shall be deemed eligible to participate in  this
    32  program:  (a)  a violent felony offense as defined in article seventy of
    33  the penal law; provided, however, that a  person  who  is  convicted  of
    34  burglary  in  the second degree as defined in subdivision two of section
    35  140.25 of the penal law, or robbery in the second degree as  defined  in
    36  subdivision one of section 160.10 of the penal law, or an attempt there-
    37  of, is eligible to participate, (b) an A-I felony offense, (c) any homi-
    38  cide  offense as defined in article one hundred twenty-five of the penal
    39  law, (d) any felony sex offense as defined in article one hundred thirty
    40  of the penal law and (e) any escape or absconding offense as defined  in
    41  article two hundred five of the penal law.
    42    2.  "Shock]  "shock incarceration program" means a program pursuant to
    43  which eligible incarcerated individuals are selected to  participate  in
    44  the  program  and  serve a period of six months in a shock incarceration
    45  facility, which shall  provide  rigorous  physical  activity,  intensive
    46  regimentation and discipline and rehabilitation therapy and programming.
    47  Such incarcerated individuals may be selected either: (i) at a reception
    48  center;  or  (ii)  at a general confinement facility [when the otherwise
    49  eligible incarcerated individual then becomes eligible  for  release  on
    50  parole within three years in the case of an indeterminate term of impri-
    51  sonment,  or  then becomes eligible for conditional release within three
    52  years in the case of a determinate term of imprisonment].
    53    § 7. Section 867 of the correction law, as amended by chapter  322  of
    54  the laws of 2021, is amended to read as follows:
    55    §  867. Procedure for selection of participants in shock incarceration
    56  program. 1. An [eligible] incarcerated individual may make  an  applica-
        S. 342                             10

     1  tion  to  the  shock incarceration screening committee for permission to
     2  participate in the shock incarceration program.
     3    2.  If  the shock incarceration screening committee determines that an
     4  incarcerated  individual's  participation  in  the  shock  incarceration
     5  program  is  consistent with the safety of the community, the welfare of
     6  the applicant and the rules  and  regulations  of  the  department,  the
     7  committee  shall  forward the application to the commissioner or [his] a
     8  designee for approval or disapproval.
     9    2-a. Subdivisions one and two of this section shall apply to  a  judi-
    10  cially sentenced shock incarceration incarcerated individual only to the
    11  extent  that the screening committee may determine whether the incarcer-
    12  ated individual has a medical  or  mental  health  condition  that  will
    13  render  the  incarcerated individual unable to successfully complete the
    14  shock incarceration program, and the facility in which the  incarcerated
    15  individual  will  participate in such program.  Notwithstanding subdivi-
    16  sion five of this section, an incarcerated individual sentenced to shock
    17  incarceration shall promptly commence participation in the program [when
    18  such incarcerated individual  is  an  eligible  incarcerated  individual
    19  pursuant  to subdivision one of section eight hundred sixty-five of this
    20  article].
    21    3. Applicants cannot participate in the  shock  incarceration  program
    22  unless  they  agree  to be bound by all the terms and conditions thereof
    23  and indicate such agreement by signing the  memorandum  of  the  program
    24  immediately below a statement reading as follows:
    25    "I accept the foregoing program and agree to be bound by the terms and
    26  conditions thereof. I understand that my participation in the program is
    27  a  privilege  that  may be revoked at any time at the sole discretion of
    28  the commissioner. I understand that I  must  successfully  complete  the
    29  entire  program  to  obtain a certificate of earned eligibility upon the
    30  completion of said program, and in the event that I do not  successfully
    31  complete  said  program,  for  any  reason,  I  will be transferred to a
    32  nonshock incarceration correctional facility to continue service  of  my
    33  sentence."
    34    4.  An  incarcerated individual who has successfully completed a shock
    35  incarceration program shall be eligible to receive such a certificate of
    36  earned eligibility pursuant to section eight hundred five of this  chap-
    37  ter.  Notwithstanding  any other provision of law, an incarcerated indi-
    38  vidual sentenced to a  determinate  sentence  of  imprisonment  who  has
    39  successfully  completed  a shock incarceration program shall be eligible
    40  to receive such a certificate of earned eligibility and shall  be  imme-
    41  diately eligible to be conditionally released.
    42    5.  Participation in the shock incarceration program shall be a privi-
    43  lege. Nothing contained in this article may be construed to confer  upon
    44  any  incarcerated  individual  the  right  to participate or continue to
    45  participate therein.
    46    § 8. Clause (B) of subparagraph (ii) of paragraph (e) of subdivision 1
    47  of section 70.30 of the penal law, as amended by chapter 3 of  the  laws
    48  of 1995, is amended to read as follows:
    49    (B)  if  the  aggregate  maximum  term  of the determinate sentence or
    50  sentences is less than twenty years, the defendant shall be deemed to be
    51  serving an indeterminate sentence the maximum term  of  which  shall  be
    52  deemed to be twenty years. In such instances, the minimum sentence shall
    53  be  deemed  to  be  ten  years or [six-sevenths] one-half of the term or
    54  aggregate maximum term of the determinate sentence or sentences,  which-
    55  ever is greater.
        S. 342                             11

     1    §  9. Clause (B) of subparagraph (iii) of paragraph (e) of subdivision
     2  1 of section 70.30 of the penal law, as amended by chapter 3 of the laws
     3  of 1995, is amended to read as follows:
     4    (B)  if  the  aggregate  maximum  term  of the determinate sentence or
     5  sentences is less than thirty years, the defendant shall be deemed to be
     6  serving an indeterminate sentence the maximum term  of  which  shall  be
     7  deemed to be thirty years. In such instances, the minimum sentence shall
     8  be  deemed to be fifteen years or [six-sevenths] one-half of the term or
     9  aggregate maximum term of the determinate sentence or sentences,  which-
    10  ever is greater.
    11    § 10. Clause (B) of subparagraph (v) of paragraph (e) of subdivision 1
    12  of  section  70.30 of the penal law, as amended by chapter 3 of the laws
    13  of 1995, is amended to read as follows:
    14    (B) if the aggregate maximum  term  of  the  determinate  sentence  or
    15  sentences  is less than forty years, the defendant shall be deemed to be
    16  serving an indeterminate sentence the maximum term  of  which  shall  be
    17  deemed  to be forty years. In such instances, the minimum sentence shall
    18  be deemed to be twenty years or [six-sevenths] one-half of the  term  or
    19  aggregate  maximum term of the determinate sentence or sentences, which-
    20  ever is greater.
    21    § 11. Clause (B) of subparagraph (vii) of paragraph (e) of subdivision
    22  1 of section 70.30 of the penal law, as amended by chapter 3 of the laws
    23  of 1995, is amended to read as follows:
    24    (B) if the aggregate maximum  term  of  the  determinate  sentence  or
    25  sentences  is less than fifty years, the defendant shall be deemed to be
    26  serving an indeterminate sentence the maximum term  of  which  shall  be
    27  deemed  to be fifty years. In such instances, the minimum sentence shall
    28  be deemed to be twenty-five years or [six-sevenths] one-half of the term
    29  or aggregate maximum term of  the  determinate  sentence  or  sentences,
    30  whichever is greater.
    31    §  12.  Paragraph  (b)  of subdivision 4 of section 70.30 of the penal
    32  law, as amended by chapter 3 of the laws of 1995, is amended to read  as
    33  follows:
    34    (b)  In the case of a person serving a definite sentence, the total of
    35  such allowances shall not exceed [one-third]  one-half  of  [his]  their
    36  term  or  aggregate term and the allowances shall be applied as a credit
    37  against such term.
    38    § 13. Subparagraphs (iii) and (iv) of paragraph (a) of  subdivision  1
    39  of  section  70.40  of  the  penal  law,  as amended by section 127-c of
    40  subpart B of part C of chapter 62 of the laws of 2011,  are  amended  to
    41  read as follows:
    42    (iii)  A  person  who  is  serving  one or more than one indeterminate
    43  sentence of imprisonment and one or more than one  determinate  sentence
    44  of imprisonment, which run concurrently may be paroled at any time after
    45  the  expiration  of the minimum period of imprisonment of the indetermi-
    46  nate sentence or sentences, or upon  the  expiration  of  [six-sevenths]
    47  one-half  of  the  term  of  imprisonment of the determinate sentence or
    48  sentences, whichever is later.
    49    (iv) A person who is  serving  one  or  more  than  one  indeterminate
    50  sentence  of  imprisonment and one or more than one determinate sentence
    51  of imprisonment which run consecutively may be paroled at any time after
    52  the expiration of the sum of the minimum or aggregate minimum period  of
    53  the  indeterminate  sentence or sentences and [six-sevenths] one-half of
    54  the term or aggregate term of imprisonment of the  determinate  sentence
    55  or sentences.
        S. 342                             12

     1    §  14.  Paragraph  (b)  of subdivision 1 of section 70.40 of the penal
     2  law, as amended by section 127-d-1 of subpart B of part C of chapter  62
     3  of the laws of 2011, is amended to read as follows:
     4    (b)  A  person  who  is  serving one or more than one indeterminate or
     5  determinate sentence of imprisonment shall, if [he or she  so  requests]
     6  they  request,  be  conditionally released from the institution in which
     7  [he or she is] they are confined  when  the  total  good  behavior  time
     8  allowed  to  [him  or  her]  them,  pursuant  to  the  provisions of the
     9  correction law, is equal to the unserved portion of [his or  her]  their
    10  term,  maximum  term  or aggregate maximum term; provided, however, that
    11  (i) in no event  shall  a  person  serving  one  or  more  indeterminate
    12  sentence  of imprisonment and one or more determinate sentence of impri-
    13  sonment which run concurrently be conditionally released  until  serving
    14  at least [six-sevenths] one-half of the determinate term of imprisonment
    15  which has the longest unexpired time to run and (ii) in no event shall a
    16  person  be conditionally released prior to the date on which such person
    17  is first eligible for discretionary parole release.  The  conditions  of
    18  release,  including  those  governing post-release supervision, shall be
    19  such as may be imposed by the state board of parole in  accordance  with
    20  the provisions of the executive law.
    21    Every  person  so released shall be under the supervision of the state
    22  department of corrections and community supervision for a  period  equal
    23  to  the  unserved  portion  of the term, maximum term, aggregate maximum
    24  term, or period of post-release supervision.
    25    § 15. This act shall take effect immediately; provided, however,  that
    26  the  amendments  to  section  803  of the correction law made by section
    27  three of this act shall not affect the expiration of  such  section  and
    28  shall  be  deemed to expire therewith; provided, further that the amend-
    29  ments to subdivision 2-b of section 803 of the correction  law  made  by
    30  section  three  of this act shall not affect the repeal of such subdivi-
    31  sion and shall be deemed repealed therewith; provided further,  however,
    32  that  the  amendments to paragraph (e) of subdivision 1 of section 70.30
    33  of the penal law made by sections  eight, nine, ten and eleven  of  this
    34  act  shall  not  affect  the  expiration  of such paragraph and shall be
    35  deemed to expire therewith; provided further, however, that  the  amend-
    36  ments  to  paragraph  (b) of subdivision 4 of section 70.30 of the penal
    37  law made by section twelve of this act shall not affect  the  expiration
    38  of  such  subdivision  and shall expire therewith; and provided further,
    39  however, that the amendments to paragraphs (a) and (b) of subdivision  1
    40  of section 70.40 of the penal law made by sections thirteen and fourteen
    41  of this act shall not affect the expiration of such paragraphs and shall
    42  be deemed to expire therewith.