Bill Text: NY S04916 | 2023-2024 | General Assembly | Introduced

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Bill Title: Relates to expanding prison work release program eligibility and participation.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced) 2024-01-03 - REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION [S04916 Detail]

Download: New_York-2023-S04916-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          4916

                               2023-2024 Regular Sessions

                    IN SENATE

                                    February 17, 2023
                                       ___________

        Introduced by Sen. SEPULVEDA -- 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, in relation to expanding prison work
          release program eligibility and participation

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

     1    Section  1.  Subdivision  2  of  section 851 of the correction law, as
     2  amended by section 228 of chapter 322 of the laws of 2021, is amended to
     3  read as follows:
     4    2. "Eligible incarcerated individual" means: a person confined  in  an
     5  institution  who  is  eligible  for release on parole or who will become
     6  eligible for release on parole or conditional release within two  years.
     7  [Provided,  however, that a person under sentence for an offense defined
     8  in paragraphs (a) and (b) of subdivision one of  section  70.02  of  the
     9  penal  law,  where  such offense involved the use or threatened use of a
    10  deadly weapon or dangerous instrument shall not be eligible  to  partic-
    11  ipate  in a work release program until he or she is eligible for release
    12  on parole or who will be eligible for release on parole  or  conditional
    13  release  within  eighteen  months.  Provided,  further,  however, that a
    14  person under a determinate sentence as a second felony drug offender for
    15  a class B felony offense defined in article two hundred  twenty  of  the
    16  penal  law,  who  was  sentenced  pursuant to section 70.70 of such law,
    17  shall not be eligible to participate  in  a  temporary  release  program
    18  until  the  time  served  under  imprisonment for his or her determinate
    19  sentence, including any jail time credited pursuant to the provisions of
    20  article seventy of the penal law, shall be at least eighteen months.] In
    21  the case of a person serving an indeterminate sentence  of  imprisonment
    22  imposed  pursuant  to the penal law in effect after September one, nine-
    23  teen hundred sixty-seven, for the purposes of this article parole eligi-
    24  bility shall be upon the expiration of the minimum period  of  imprison-

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00643-01-3
        S. 4916                             2

     1  ment  fixed  by  the  court or where the court has not fixed any period,
     2  after service of the minimum period fixed by the state board of  parole.
     3  If  an  incarcerated individual is denied release on parole, such incar-
     4  cerated individual shall not be deemed an eligible incarcerated individ-
     5  ual  until  he  or  she is within two years of his or her next scheduled
     6  appearance before the state parole board. In any case where an incarcer-
     7  ated individual is denied release on parole  while  participating  in  a
     8  temporary release program, the department shall review the status of the
     9  incarcerated  individual  to  determine  if  continued  placement in the
    10  program is appropriate. No person convicted of any escape or  absconding
    11  offense  defined  in  article two hundred five of the penal law shall be
    12  eligible for temporary release. [Further, no person under  sentence  for
    13  aggravated  harassment  of  an employee by an incarcerated individual as
    14  defined in section 240.32 of the penal law  for,  any  homicide  offense
    15  defined in article one hundred twenty-five of the penal law, for any sex
    16  offense  defined  in article one hundred thirty of the penal law, or for
    17  an offense defined in section 255.25, 255.26 or 255.27 of the penal  law
    18  shall be eligible to participate in a work release program as defined in
    19  subdivision  three  of this section. Nor shall any person under sentence
    20  for any sex offense defined in article one hundred thirty of  the  penal
    21  law  be  eligible  to  participate  in  a  community services program as
    22  defined in subdivision five of this section. Notwithstanding the forego-
    23  ing, no person who is an otherwise eligible incarcerated individual  who
    24  is under sentence for a crime involving: (a) infliction of serious phys-
    25  ical  injury  upon  another as defined in the penal law or (b) any other
    26  offense involving the use or threatened  use  of  a  deadly  weapon  may
    27  participate  in a temporary release program without the written approval
    28  of the commissioner.]  The  commissioner  shall  promulgate  regulations
    29  giving  direction to the temporary release committee at each institution
    30  in order to aid such committees in carrying out this mandate.
    31    [The governor, by executive order, may exclude or  limit  the  partic-
    32  ipation of any class of otherwise eligible incarcerated individuals from
    33  participation  in a temporary release program. Nothing in this paragraph
    34  shall be construed to affect either the validity of any executive  order
    35  previously  issued  limiting  the  participation  of  otherwise eligible
    36  incarcerated individuals in such program or the authority of the commis-
    37  sioner to impose appropriate regulations limiting such participation.]
    38    § 2. Subdivision 2 of section 851 of the correction law, as amended by
    39  section 228-b of chapter 322 of the laws of 2021, is amended to read  as
    40  follows:
    41    2.  "Eligible  incarcerated individual" means: a person confined in an
    42  institution who is eligible for release on parole  or  who  will  become
    43  eligible  for release on parole or conditional release within two years.
    44  [Provided, that a person under a determinate sentence as a second felony
    45  drug offender for a class  B  felony  offense  defined  in  article  two
    46  hundred  twenty  of the penal law, who was sentenced pursuant to section
    47  70.70 of such law, shall not be eligible to participate in  a  temporary
    48  release  program until the time served under imprisonment for his or her
    49  determinate sentence, including any jail time credited pursuant  to  the
    50  provisions  of article seventy of the penal law, shall be at least eigh-
    51  teen months.] In the case of a person serving an indeterminate  sentence
    52  of  imprisonment  imposed  pursuant  to  the  penal  law in effect after
    53  September one, nineteen hundred sixty-seven, for the  purposes  of  this
    54  article  parole  eligibility shall be upon the expiration of the minimum
    55  period of imprisonment fixed by the court or where  the  court  has  not
    56  fixed any period, after service of the minimum period fixed by the state
        S. 4916                             3

     1  board  of  parole.  [If  an incarcerated individual is denied release on
     2  parole, such incarcerated individual shall not  be  deemed  an  eligible
     3  incarcerated  individual  until  he or she is within two years of his or
     4  her  next  scheduled  appearance  before the state parole board.] In any
     5  case where an incarcerated individual is denied release on parole  while
     6  participating  in  a  temporary  release  program,  the department shall
     7  review the status of the incarcerated individual to determine if contin-
     8  ued placement in the program is appropriate. No person convicted of  any
     9  escape  or absconding offense defined in article two hundred five of the
    10  penal law shall be eligible for temporary release. [Nor shall any person
    11  under sentence for any sex offense defined in article one hundred thirty
    12  of the penal law be eligible to  participate  in  a  community  services
    13  program as defined in subdivision five of this section.  Notwithstanding
    14  the foregoing, no person who is an otherwise eligible incarcerated indi-
    15  vidual  who  is  under sentence for a crime involving: (a) infliction of
    16  serious physical injury upon another as defined in the penal law, (b)  a
    17  sex  offense  involving  forcible  compulsion,  or (c) any other offense
    18  involving the use or threatened use of a deadly weapon  may  participate
    19  in  a  temporary  release  program  without  the written approval of the
    20  commissioner.] An incarcerated individual shall not be eligible for work
    21  release if he or she is subject to a  sentence  imposed  for  aggravated
    22  murder  as  defined  in  section  125.26 of the penal law, murder in the
    23  first degree as defined in section 125.27 of the penal law, rape in  the
    24  third  degree as defined in section 130.25 of the penal law, rape in the
    25  second degree as defined in section 130.30 of the penal law, rape in the
    26  first degree as defined in section 130.35 of  the  penal  law,  criminal
    27  sexual  act  in  the  second  degree as defined in section 130.45 of the
    28  penal law, criminal sexual act in the first degree as defined in section
    29  130.50 of the penal law, persistent sexual abuse as defined  in  section
    30  130.53  of the penal law, sexual abuse in the first degree as defined in
    31  section 130.65 of the penal law, aggravated sexual abuse  in  the  third
    32  degree  as defined in section 130.66 of the penal law, aggravated sexual
    33  abuse in the second degree as defined in section  130.67  of  the  penal
    34  law,  aggravated  sexual abuse in the first degree as defined in section
    35  130.70 of the penal law, course of sexual conduct against a child in the
    36  first degree as defined in section 130.75 of the penal  law,  course  of
    37  sexual  conduct  against  a  child  in  the  second degree as defined in
    38  section 130.80 of the penal law, predatory sexual assault as defined  in
    39  section  130.95  of  the  penal  law, predatory sexual assault against a
    40  child as defined in section 130.96 of the penal law, promoting prostitu-
    41  tion in the second degree as defined in section 230.30 of the penal law,
    42  promoting prostitution in the first degree as defined in section  230.32
    43  of  the  penal law, compelling prostitution as defined in section 230.33
    44  of the penal law, sex trafficking as defined in section  230.34  of  the
    45  penal  law,  incest  in the first or second degree as defined in article
    46  two hundred fifty-five of the penal law, an offense of terrorism defined
    47  in article four hundred ninety of the penal law,  or  an  attempt  or  a
    48  conspiracy to commit any such offense. The commissioner shall promulgate
    49  regulations  giving direction to the temporary release committee at each
    50  institution in order  to  aid  such  committees  in  carrying  out  this
    51  mandate.
    52    [The  governor,  by  executive order, may exclude or limit the partic-
    53  ipation of any class of otherwise eligible incarcerated individuals from
    54  participation in a temporary release program. Nothing in this  paragraph
    55  shall  be construed to affect either the validity of any executive order
    56  previously issued  limiting  the  participation  of  otherwise  eligible
        S. 4916                             4

     1  incarcerated individuals in such program or the authority of the commis-
     2  sioner to impose appropriate regulations limiting such participation.]
     3    §  3. Subdivision 2-a of section 851 of the correction law, as amended
     4  by chapter 322 of the laws of 2021, is amended to read as follows:
     5    2-a. Notwithstanding subdivision two of this section, the term "eligi-
     6  ble incarcerated individual" shall also include a person confined in  an
     7  institution  who  is  eligible  for release on parole or who will become
     8  eligible for release on parole or conditional release within [two]  four
     9  years, and who was convicted of a homicide offense as defined in article
    10  one  hundred  twenty-five of the penal law or an assault offense defined
    11  in article one hundred twenty of the penal law, and who can  demonstrate
    12  to the commissioner that: (a) the victim of such homicide or assault was
    13  a  member of the incarcerated individual's immediate family as that term
    14  is defined in section 120.40 of the penal law or had a child  in  common
    15  with  the  incarcerated  individual; (b) the incarcerated individual was
    16  subjected to substantial physical, sexual or psychological abuse commit-
    17  ted by the victim of such homicide or assault; and (c) such abuse was  a
    18  substantial factor in causing the incarcerated individual to commit such
    19  homicide  or assault. With respect to an incarcerated individual's claim
    20  that he or she was subjected to substantial physical, sexual or  psycho-
    21  logical  abuse committed by the victim, such demonstration shall include
    22  corroborative material that may include, but is not limited to,  witness
    23  statements,  social  services records, hospital records, law enforcement
    24  records and a showing based in part on documentation prepared at or near
    25  the time of the commission of the offense  or  the  prosecution  thereof
    26  tending  to support the incarcerated individual's claim. Prior to making
    27  a determination under this subdivision, the commissioner is required  to
    28  request and take into consideration the opinion of the district attorney
    29  who  prosecuted the underlying homicide or assault offense and the opin-
    30  ion of the sentencing  court.  If  such  opinions  are  received  within
    31  forty-five  days  of  the request, the commissioner shall take them into
    32  consideration. If such opinions are not so  received,  the  commissioner
    33  may  proceed  with  the  determination.  Any  action by the commissioner
    34  pursuant to this subdivision shall be deemed  a  judicial  function  and
    35  shall not be reviewable in any court.
    36    § 4. Subdivision 2-b of section 851 of the correction law, as added by
    37  chapter 738 of the laws of 2004, is amended to read as follows:
    38    2-b. When calculating in advance the date on which a person is or will
    39  be  eligible  for release on parole or conditional release, for purposes
    40  of determining eligibility for temporary release or for placement at  an
    41  alcohol  and  substance  abuse treatment correctional annex, the commis-
    42  sioner shall consider and include credit for all potential  credits  and
    43  reductions  including  but  not  limited to merit time, additional merit
    44  time and good behavior allowances. Nothing in this subdivision shall  be
    45  interpreted  as precluding the consideration and inclusion of credit for
    46  all potential credits and reductions  including,  but  not  limited  to,
    47  merit  time,  additional  merit  time  and good behavior allowances when
    48  calculating in advance for any other purpose the date on which a  person
    49  is or will be eligible for release on parole or conditional release.
    50    §  5.  This  act shall take effect immediately, provided however, that
    51  the amendments to subdivision 2 of section 851  of  the  correction  law
    52  made  by  section one of this act shall be subject to the expiration and
    53  reversion of such subdivision and section pursuant to subdivision (c) of
    54  section 46 of chapter 60 of the laws of 1994 and section 10  of  chapter
    55  339  of the laws of 1972, as amended, when upon such date the provisions
    56  of section two of this act shall take effect; provided further, that the
        S. 4916                             5

     1  amendments to subdivision 2 of section 851 of the correction law made by
     2  section two of this act shall expire on the same date as subdivision (c)
     3  of section 46 of chapter 60 of the laws of 1994, section 10  of  chapter
     4  339  of  the  laws  of 1972, and section 5 of chapter 554 of the laws of
     5  1986, as amended, expire; provided further that the amendments to subdi-
     6  visions 2-a and 2-b of section  851  of  the  correction  law,  made  by
     7  sections  three  and four of this act shall not affect the expiration of
     8  such section and shall expire therewith.