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.
STATE OF NEW YORK
________________________________________________________________________
1128--A
2023-2024 Regular Sessions
IN ASSEMBLY
January 13, 2023
___________
Introduced by M. of A. KELLES, WEPRIN, REYES, JACKSON, EPSTEIN, BURDICK,
MEEKS, CRUZ, MAMDANI, AUBRY, SIMON, GLICK, ANDERSON, DAVILA, CARROLL,
WALKER, BURGOS, GONZALEZ-ROJAS, L. ROSENTHAL, GALLAGHER, MITAYNES,
GIBBS, LUCAS, HEVESI, COOK, DARLING, SEPTIMO, JEAN-PIERRE, FORREST,
CLARK, TAYLOR, TAPIA, ARDILA, BORES, SHRESTHA, DICKENS, KIM, SIMONE,
ALVAREZ, ZINERMAN, RAGA, CUNNINGHAM, SHIMSKY, CHANDLER-WATERMAN, PRET-
LOW, LUNSFORD, LEVENBERG, DE LOS SANTOS, RIVERA, SOLAGES,
BICHOTTE HERMELYN, ZACCARO, HUNTER, SEAWRIGHT, LEE, STIRPE, BRONSON,
FAHY, DAIS, STECK, BURKE, O'DONNELL, GUNTHER -- read once and referred
to the Committee on Correction -- recommitted to the Committee on
Correction in accordance with Assembly Rule 3, sec. 2 -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
AN ACT to amend the correction law and the penal law, in relation to the
early release of incarcerated individuals
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "earned time act".
3 § 2. The correction law is amended by adding a new section 802 to read
4 as follows:
5 § 802. Data collection. The department shall report annually to the
6 governor and the legislature with respect to each instance in which time
7 allowance credit has been withheld, forfeited or cancelled. The report
8 shall provide the following information: the name, department identifi-
9 cation number and race of each incarcerated individual who has been
10 denied credit and the amount of credit involved, the reason or reasons
11 for the denial, including, where applicable, a description of the bad
12 behavior or institutional rule violation or violations, including the
13 corresponding numerical code in the department's inmate rule handbook,
14 and, where applicable, a description of the assigned duty and/or iden-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02637-03-4
A. 1128--A 2
1 tification of assigned treatment program in which the incarcerated
2 person was determined to have failed to perform properly. The report
3 shall additionally specify the department facility in which the recom-
4 mendation to withhold, forfeit or cancel good time was made and the
5 names of the department personnel on such facility's time allowance
6 committee who made such recommendation.
7 § 3. Section 803 of the correction law, as amended by chapter 3 of the
8 laws of 1995, paragraphs (a), (b), and (c) of subdivision 1 and subdivi-
9 sions 3, 4, and 5 as amended by section 37 of subpart B of part C of
10 chapter 62 of the laws of 2011, paragraph (d) of subdivision 1 and
11 subdivision 2-a as added by chapter 738 of the laws of 2004, subpara-
12 graph (ii) of paragraph (d) of subdivision 1 as amended by chapter 322
13 of the laws of 2021, subparagraph (iv) of paragraph (d) of subdivision 1
14 as separately amended by chapters 242 and 322 of the laws of 2021 and
15 subdivision 2-b as added by section 3 of part E of chapter 62 of the
16 laws of 2003, is amended to read as follows:
17 § 803. Good behavior allowances against indeterminate and determinate
18 sentences. 1. (a) Every person confined in an institution of the depart-
19 ment or a facility in the department of mental hygiene serving an inde-
20 terminate or determinate sentence of imprisonment, except a person serv-
21 ing a sentence with a maximum term of life imprisonment, [may] shall
22 receive a time allowance against the term or maximum term of [his or
23 her] their sentence imposed by the court. Such allowances [may be grant-
24 ed for good behavior and efficient and willing performance of duties
25 assigned or progress and achievement in an assigned treatment program,
26 and may be withheld, forfeited or canceled in whole or in part for bad
27 behavior, violation of institutional rules or failure to perform proper-
28 ly in the duties or program assigned] shall be credited toward a
29 person's sentence on an annual pro rata basis, and any credit awarded
30 over the course of the calendar year shall vest on the final day of the
31 calendar year. Once vested, such credit shall not be withheld,
32 forfeited, or canceled.
33 (a-1) Time allowances that have not yet been credited toward a
34 person's sentence may be withheld, forfeited or canceled in whole or in
35 part for violation of institutional rules, as demonstrated at a hearing
36 by a preponderance of the evidence. Such restrictions shall be limited
37 to the pro rata share of credit within the calendar year that the
38 offense is committed. If such time allowance is withheld, forfeited or
39 canceled in whole or in part, further allowances, not to exceed the
40 allowances set forth in paragraphs (b) and (c) of this subdivision, may
41 be reinstated for good behavior and efficient and willing performance of
42 duties assigned or progress and achievement in an assigned treatment
43 program. Following any final determination withholding, forfeiting, or
44 canceling a time allowance, the incarcerated person shall have the right
45 to take an administrative appeal to the central office of the department
46 and shall be advised of the right to seek legal assistance in the taking
47 of such appeal. The department shall adopt regulations in accordance
48 with this provision.
49 (b) A person serving an indeterminate sentence of imprisonment [may]
50 shall receive a time allowance against the maximum term of [his or her]
51 their sentence [not to exceed one-third] of one-half of the maximum term
52 imposed by the court.
53 (c) A person serving a determinate sentence of imprisonment [may]
54 shall receive a time allowance against the term of [his or her] their
55 sentence [not to exceed one-seventh] of one-half of the term imposed by
56 the court.
A. 1128--A 3
1 (d) (i) [Except as provided in subparagraph (ii) of this paragraph,
2 every] Every person under the custody of the department or confined in a
3 facility in the department of mental hygiene serving an indeterminate
4 sentence of imprisonment with a minimum period of one year or more or a
5 determinate sentence of imprisonment of one year or more [imposed pursu-
6 ant to section 70.70 or 70.71 of the penal law,] may earn a merit time
7 allowance.
8 (ii) [Such merit time allowance shall not be available to any person
9 serving an indeterminate sentence authorized for an A-I felony offense,
10 other than an A-I felony offense defined in article two hundred twenty
11 of the penal law, or any sentence imposed for a violent felony offense
12 as defined in section 70.02 of the penal law, manslaughter in the second
13 degree, vehicular manslaughter in the second degree, vehicular
14 manslaughter in the first degree, criminally negligent homicide, an
15 offense defined in article one hundred thirty of the penal law, incest,
16 or an offense defined in article two hundred sixty-three of the penal
17 law, or aggravated harassment of an employee by an incarcerated individ-
18 ual.
19 (iii)] The merit time allowance credit against the minimum period of
20 the indeterminate sentence shall be [one-sixth] one-half of the minimum
21 period imposed by the court [except that such credit shall be one-third
22 of the minimum period imposed by the court for an A-I felony offense
23 defined in article two hundred twenty of the penal law]. In the case of
24 such a determinate sentence, in addition to the time allowance credit
25 authorized by paragraph (c) of this subdivision, the merit time allow-
26 ance credited against the term of the determinate sentence pursuant to
27 this paragraph shall be [one-seventh] one-quarter of the term imposed by
28 the court.
29 [(iv)] (iii) Such merit time allowance [may] shall be granted when an
30 incarcerated individual successfully participates in the work and treat-
31 ment program assigned pursuant to section eight hundred five of this
32 article [and], including but not limited to when such incarcerated indi-
33 vidual obtains a general equivalency diploma, an alcohol and substance
34 abuse treatment certificate, a vocational trade certificate [following
35 at least six months of vocational programming], at least eighteen cred-
36 its in a program registered by the state education department from a
37 degree-granting higher education institution or performs at least four
38 hundred hours of service as part of a community work crew, or success-
39 fully completes one or more "significant programmatic accomplishments"
40 as defined in paragraph (c) of subdivision one of section eight hundred
41 three-b of this article. The commissioner may designate additional
42 programs and achievements for which merit time shall be granted. Once
43 granted, such allowances shall not be withheld, forfeited, or cancelled.
44 Where the institution in which the incarcerated individual is confined
45 does not provide opportunities for every incarcerated individual to earn
46 merit time allowances, such merit time allowance shall be automatically
47 credited against the incarcerated individual's sentence according to
48 subparagraph (ii) of this paragraph.
49 [Such allowance shall be withheld for any serious disciplinary infrac-
50 tion or upon a judicial determination that the person, while an incar-
51 cerated individual, commenced or continued a civil action, proceeding or
52 claim that was found to be frivolous as defined in subdivision (c) of
53 section eight thousand three hundred three-a of the civil practice law
54 and rules, or an order of a federal court pursuant to rule 11 of the
55 federal rules of civil procedure imposing sanctions in an action
A. 1128--A 4
1 commenced by a person, while an incarcerated individual, against a state
2 agency, officer or employee.
3 (v)] (iv) The provisions of this paragraph shall apply to persons in
4 custody serving [an] a determinate or indeterminate sentence on the
5 effective date of this paragraph as well as to persons sentenced to [an]
6 a determinate or indeterminate sentence on and after the effective date
7 of this paragraph [and prior to September first, two thousand five and
8 to persons sentenced to a determinate sentence prior to September first,
9 two thousand eleven for a felony as defined in article two hundred twen-
10 ty or two hundred twenty-one of the penal law]. The time allowances set
11 forth in this paragraph shall apply retroactively and shall be credited
12 toward every incarcerated individual's sentence within ninety days of
13 the chapter of the laws of two thousand twenty-four that amended this
14 paragraph.
15 2. If a person is serving more than one sentence, the authorized
16 allowances may be granted separately against the term or maximum term of
17 each sentence or, where consecutive sentences are involved, against the
18 aggregate maximum term. Such allowances shall be calculated as follows:
19 (a) A person serving two or more indeterminate sentences which run
20 concurrently [may] shall receive a time allowance [not to exceed one-
21 third] of one-half of the indeterminate sentence which has the longest
22 unexpired time to run.
23 (b) A person serving two or more indeterminate sentences which run
24 consecutively [may] shall receive a time allowance [not to exceed one-
25 third] of one-half of the aggregate maximum term.
26 (c) A person serving two or more determinate sentences which run
27 concurrently [may] shall receive a time allowance [not to exceed one-
28 seventh] of one-half of the determinate sentence which has the longest
29 unexpired time to run.
30 (d) A person serving two or more determinate sentences which run
31 consecutively [may] shall receive a time allowance [not to exceed one-
32 seventh] of one-half of the aggregate maximum term.
33 (e) A person serving one or more indeterminate sentence and one or
34 more determinate sentence which run concurrently [may] shall receive a
35 time allowance [not to exceed one-third] of one-half of the indetermi-
36 nate sentence which has the longest unexpired term to run or [one-sev-
37 enth] one-half of the determinate sentence which has the longest unex-
38 pired time to run, whichever allowance is greater.
39 (f) A person serving one or more indeterminate sentence and one or
40 more determinate sentence which run consecutively [may] shall receive a
41 time allowance [not to exceed] of the sum of [one-third] one-half of the
42 maximum or aggregate maximum of the indeterminate sentence or sentences
43 and [one-seventh] one-half of the term or aggregate maximum of the
44 determinate sentence or sentences.
45 2-a. If a person is serving more than one sentence, the authorized
46 merit time allowances may be granted against the period or aggregate
47 minimum period of the indeterminate sentence or sentences, or against
48 the term or aggregate term of the determinate sentence or sentences, or
49 where consecutive determinate and indeterminate sentences are involved,
50 against the aggregate minimum period as calculated pursuant to subpara-
51 graph (iv) of paragraph (a) of subdivision one of section 70.40 of the
52 penal law. Such allowances shall be calculated as follows:
53 (a) A person serving two or more indeterminate sentences which run
54 concurrently may receive a merit time allowance not to exceed [one-
55 sixth] one-half of the minimum period of the indeterminate sentence
56 imposed [for an offense other than an A-I felony offense defined in
A. 1128--A 5
1 article two hundred twenty of the penal law, or one-third of the minimum
2 period of the indeterminate sentence imposed for an A-I felony offense
3 defined in article two hundred twenty of the penal law, whichever allow-
4 ance results in the longest unexpired time to run] by the court.
5 (b) A person serving two or more indeterminate sentences which run
6 consecutively may receive a merit time allowance not to exceed the
7 amount of [one-third] one-half of the minimum or aggregate minimum peri-
8 od of the sentences imposed [for an A-I felony offense defined in arti-
9 cle two hundred twenty of the penal law, plus one-sixth of the minimum
10 or aggregate minimum period of the sentences imposed for an offense
11 other than such A-I felony offense] by the court.
12 (c) A person serving two or more determinate sentences [for an offense
13 defined in article two hundred twenty or two hundred twenty-one of the
14 penal law] which run concurrently may receive a merit time allowance not
15 to exceed [one-seventh] one-quarter of the term of the determinate
16 sentence which has the longest unexpired time to run.
17 (d) A person serving two or more determinate sentences [for an offense
18 defined in article two hundred twenty or two hundred twenty-one of the
19 penal law] which run consecutively may receive a merit time allowance
20 not to exceed [one-seventh] one-quarter of the aggregate term of such
21 determinate sentences.
22 (e) A person serving one or more indeterminate sentences and one or
23 more determinate sentences [for an offense defined in article two
24 hundred twenty or two hundred twenty-one of the penal law] which run
25 concurrently may receive a merit time allowance not to exceed [one-
26 sixth] one-half of the minimum period of the indeterminate sentence
27 imposed [for an offense other than an A-I felony offense defined in
28 article two hundred twenty of the penal law, one-third of the minimum
29 period of the indeterminate sentence imposed for an A-I felony offense
30 defined in article two hundred twenty of the penal law,] or [one-sev-
31 enth] one-quarter of the term of the determinate sentence, whichever
32 allowance results in the largest unexpired time to run.
33 (f) A person serving one or more indeterminate sentences and one or
34 more determinate sentences which run consecutively may receive a merit
35 time allowance not to exceed the sum of [one-sixth] one-half of the
36 minimum or aggregate minimum period of the indeterminate sentence or
37 sentences imposed [for an offense other than an A-I felony offense
38 defined in article two hundred twenty of the penal law, one-third of the
39 minimum or aggregate minimum period of the indeterminate sentence or
40 sentences imposed for an A-I felony offense defined in article two
41 hundred twenty of the penal law] and [one-seventh] one-quarter of the
42 term or aggregate term of the determinate sentence or sentences.
43 (g) The provisions of this subdivision shall apply to persons in
44 custody serving [an] a determinate or indeterminate sentence on the
45 effective date of this subdivision as well as to persons sentenced to
46 [an] a determinate or indeterminate sentence on and after the effective
47 date of this subdivision [and prior to September first, two thousand
48 five and to persons sentenced to a determinate sentence prior to Septem-
49 ber first, two thousand eleven for a felony as defined in article two
50 hundred twenty or two hundred twenty-one of the penal law]. The merit
51 time allowances set forth in this subdivision shall apply retroactively,
52 and shall be credited toward every incarcerated individual's sentence
53 within ninety days of the effective date of the chapter of the laws of
54 two thousand twenty-four that amended this subdivision.
55 [2-b. Notwithstanding the foregoing, if a person is serving more than
56 one indeterminate sentence, at least one of which is imposed for a class
A. 1128--A 6
1 A-I felony offense defined in article two hundred twenty of the penal
2 law, the authorized merit time allowance granted pursuant to paragraph
3 (d) of subdivision one of this section shall be calculated as follows:
4 (a) In the event a person is serving two or more indeterminate
5 sentences with different minimum periods which run concurrently, the
6 merit time allowance shall be based upon the sentence with the longest
7 unexpired minimum period. If the sentence with the longest unexpired
8 minimum period was imposed for a class A-I felony, the merit time credit
9 shall be one-third of such sentence's minimum period; if such sentence
10 was imposed for an offense other than a class A-I felony, such merit
11 time credit shall be one-sixth of such sentence's minimum period.
12 Provided, however, that where the minimum period of any other concurrent
13 indeterminate sentence is greater than such reduced minimum period, the
14 minimum period of such other concurrent indeterminate sentence shall
15 also be reduced but only to the extent that the minimum period of such
16 other concurrent sentence, as so reduced, is equal to the reduced mini-
17 mum period of such sentence with the longest unexpired minimum period to
18 run.
19 (b) A person serving two or more indeterminate sentences with the same
20 minimum periods which run concurrently, and no concurrent indeterminate
21 sentence with any greater minimum period, shall have the minimum period
22 of each such sentence reduced in the amount of one-third of such minimum
23 period if all such sentences were imposed for a class A-I felony.
24 (c) A person serving two or more indeterminate sentences that run
25 consecutively shall have the aggregate minimum period of such sentences
26 reduced in the amount of one-third of such aggregate minimum period of
27 the sentences imposed for a class A-I felony, plus one-sixth of such
28 aggregate minimum period of the sentences imposed for an offense other
29 than a class A-I felony.]
30 3. The commissioner of corrections and community supervision shall
31 promulgate rules and regulations for the fair and equitable granting,
32 withholding, forfeiture, cancellation and restoration of allowances
33 authorized by this section in accordance with the criteria herein speci-
34 fied. Such rules and regulations shall specify procedures to ensure that
35 similarly situated incarcerated persons are treated similarly with
36 respect to the granting, withholding, forfeiture or cancellation of
37 allowances, and include provisions designating the person or committee
38 in each correctional institution delegated to make discretionary deter-
39 minations with respect to the allowances, the books and records to be
40 kept, and a procedure for review of the institutional determinations by
41 the commissioner.
42 4. [No person shall have the right to demand or require the allowances
43 authorized by this section. The decision of the commissioner of
44 corrections and community supervision as to the granting, withholding,
45 forfeiture, cancellation or restoration of such allowances shall be
46 final and shall not be reviewable if made in accordance with law.
47 5.] Time allowances granted prior to any release to community super-
48 vision shall be forfeited and shall not be restored if the released
49 person is returned to an institution under the jurisdiction of the state
50 department of corrections and community supervision for violation of
51 community supervision or by reason of a conviction for a crime committed
52 while on community supervision. A person who is so returned may, howev-
53 er, subsequently receive time allowances against the remaining portion
54 of [his or her] their term, maximum term or aggregate maximum term
55 pursuant to this section [and provided such remaining portion of his or
A. 1128--A 7
1 her term, maximum term, or aggregate maximum term is more than one
2 year].
3 [6.] 5. Upon commencement of an indeterminate or a determinate
4 sentence the provisions of this section shall be furnished to the person
5 serving the sentence and the meaning of same shall be fully explained to
6 [him] them by a person designated by the commissioner to perform such
7 duty.
8 § 4. Section 804 of the correction law, as added by chapter 680 of the
9 laws of 1967, subdivisions 1 and 2 as amended by chapter 145 of the laws
10 of 1976, and subdivision 6 as amended by section 39 of subpart B of part
11 C of chapter 62 of the laws of 2011, is amended to read as follows:
12 § 804. Good behavior allowances against definite sentences. 1. Every
13 person confined in an institution serving a definite sentence of impri-
14 sonment [may] shall receive a time [allowances as discretionary
15 reductions of the term of his sentence not to exceed in the aggregate
16 one-third] allowance of one-half of the term imposed by the court. Such
17 allowances [may be granted for good behavior and efficient and willing
18 performance of duties assigned or progress and achievement in an
19 assigned treatment program, and may be withheld, forfeited or cancelled
20 in whole or in part for bad behavior, violation of institutional rules
21 or failure to perform properly in the duties or program assigned] shall
22 be credited toward a person's sentence on an annual pro rata basis, and
23 any credit awarded over the course of the calendar year shall vest on
24 the final day of the calendar year. Once vested, such credit shall not
25 be withheld, forfeited, or canceled.
26 1-a. Time allowances that have not yet been granted toward a person's
27 sentence may be withheld, forfeited or canceled in whole or in part for
28 violation of institutional rules, as demonstrated at a hearing by a
29 preponderance of the evidence. Such restrictions shall be limited to the
30 pro rata share of credit within the calendar year that the offense is
31 committed. If such time allowance is withheld, forfeited or canceled in
32 whole or in part, further allowances, not to exceed one-half of the term
33 imposed by the court, may be reinstated for good behavior and efficient
34 and willing performance of duties assigned or progress and achievement
35 in an assigned treatment program. Following any final determination
36 withholding, forfeiting, or canceling a time allowance, the incarcerated
37 person shall have the right to take an administrative appeal to the
38 sheriff and shall be advised of the right to seek legal assistance in
39 the taking of such appeal. The sheriff shall adopt regulations in
40 accordance with this provision.
41 2. If a person is serving more than one sentence, the authorized
42 allowances may be granted separately against the term of each sentence
43 or, where consecutive sentences are involved, against the aggregate
44 term. Allowances based upon sentences of less than one month may be
45 granted, and in such case the maximum allowance shall be one day for
46 every [three] two days of the sentence. In no case, however, shall the
47 total of all allowances granted to any such person exceed [one-third]
48 one-half of the time [he] they would be required to serve, computed
49 without regard to this section.
50 3. [No person shall have the right to demand or require the allowances
51 authorized by this section. The decision of the sheriff, superintendent,
52 warden or other person in charge of the institution, or where such
53 institution is under the jurisdiction of a county or city department the
54 decision of the head of such department, as to the granting, withhold-
55 ing, forfeiture, cancellation or restoration of such allowances shall be
56 final and shall not be reviewable if made in accordance with law.
A. 1128--A 8
1 4.] A person who has earned a reduction of sentence pursuant to this
2 section and who has been conditionally released under subdivision two of
3 section 70.40 of the penal law shall not forfeit such reduction by
4 reason of conduct causing [his] their return to the institution.
5 Provided, nevertheless, that such reduction may be forfeited by reason
6 of subsequent conduct while serving the remainder of [his] their term.
7 [5.] 4. The state commission of correction shall promulgate record
8 keeping rules and regulations for the fair and equitable granting, with-
9 holding, forfeiture, cancellation and restoration of allowances author-
10 ized by this section. Such rules and regulations shall specify proce-
11 dures to ensure that similarly situated incarcerated persons are treated
12 similarly with respect to the granting, withholding, forfeiture or
13 cancellation of allowances.
14 [6.] 5. Notwithstanding anything to the contrary in this section, in
15 any case where a person is serving a definite sentence in an institution
16 under the jurisdiction of the state department of corrections and commu-
17 nity supervision, [subdivisions] subdivision three [and four] of section
18 eight hundred three of this [chapter] article shall apply.
19 [7.] 6. Upon commencement of any definite sentence the provisions of
20 this section shall be furnished to the person serving the sentence and
21 the meaning of same shall be fully explained to [him] them by an officer
22 designated in the regulation to perform such duty.
23 § 5. Section 804-a of the correction law, as added by chapter 220 of
24 the laws of 1987, is amended to read as follows:
25 § 804-a. Good behavior allowances for certain civil commitments. 1.
26 Every person confined in an institution serving a civil commitment for a
27 fixed period of time, whose release is not conditional upon any act
28 within [his] their power to perform, [may] shall receive time allowances
29 as discretionary reductions of the term of [his] their commitment not to
30 exceed, in the aggregate, [one-third] one-half of the term imposed by
31 the court. Such allowances [may be granted for good behavior and effi-
32 cient and willing performance of duties assigned or progress and
33 achievement in an assigned treatment program, and may be withheld,
34 forfeited or cancelled in whole or in part for bad behavior, violation
35 of institutional rules or failure to perform properly in the duties or
36 program assigned] shall be credited toward a person's sentence on an
37 annual pro rata basis, and any credit awarded over the course of the
38 calendar year shall vest on the final day of the calendar year. Once
39 vested, such credit shall not be withheld, forfeited, or canceled.
40 1-a. Time allowances that have not yet been granted toward a person's
41 sentence may be withheld, forfeited or canceled in whole or in part for
42 violation of institutional rules, as demonstrated at a hearing by a
43 preponderance of the evidence. Such restrictions shall be limited to the
44 pro rata share of credit within the calendar year that the offense is
45 committed. If such time allowance is withheld, forfeited or canceled in
46 whole or in part, further allowances, not to exceed one-half of the term
47 imposed by the court, may be reinstated for good behavior and efficient
48 and willing performance of duties assigned or progress and achievement
49 in an assigned treatment program. Following any final determination
50 withholding, forfeiting, or canceling a time allowance, the incarcerated
51 person shall have the right to take an administrative appeal to the
52 central office of the department and shall be advised of the right to
53 seek legal assistance in the taking of such appeal. The department shall
54 adopt regulations in accordance with this provision.
55 2. Allowances based upon commitments of less than one month may be
56 granted, and in such case the maximum allowances shall be one day for
A. 1128--A 9
1 every [three] two days of the commitment. In no case, however, shall the
2 total of all allowances granted to any such person exceed [one-third]
3 one-half of the time [he] they would be required to serve, computed
4 without regard to this section.
5 3. [No person shall have the right to demand or require the allowances
6 authorized by this section. The decision of the sheriff, superintendent,
7 warden or other person in charge of the institution, or where such
8 institution is under the jurisdiction of a county or city department the
9 decision of the head of such department, as to the granting, withhold-
10 ing, forfeiture, cancellation, or restoration of such allowances shall
11 be final and shall not be reviewable if made in accordance with law.
12 4.] The state commission of correction shall promulgate record keeping
13 rules and regulations for the granting, withholding, forfeiture, cancel-
14 lation and restoration of allowances authorized by this section.
15 [5.] 4. Upon commencement of any civil commitment as described in
16 subdivision one of this section, the provisions of this section shall be
17 furnished to the person serving the commitment and the meaning of same
18 shall be fully explained to [him] them by an officer designated in the
19 regulation to perform such duty.
20 § 6. Section 865 of the correction law, as added by chapter 261 of the
21 laws of 1987, subdivisions 1 and 2 as amended by chapter 322 of the laws
22 of 2021, is amended to read as follows:
23 § 865. Definitions. As used in this article, [the following terms
24 mean:
25 1. "Eligible incarcerated individual" means a person sentenced to an
26 indeterminate term of imprisonment who will become eligible for release
27 on parole within three years or sentenced to a determinate term of
28 imprisonment who will become eligible for conditional release within
29 three years, who has not reached the age of fifty years, who has not
30 previously been convicted of a violent felony as defined in article
31 seventy of the penal law, or a felony in any other jurisdiction which
32 includes all of the essential elements of any such violent felony, upon
33 which an indeterminate or determinate term of imprisonment was imposed
34 and who was between the ages of sixteen and fifty years at the time of
35 commission of the crime upon which his or her present sentence was
36 based. Notwithstanding the foregoing, no person who is convicted of any
37 of the following crimes shall be deemed eligible to participate in this
38 program: (a) a violent felony offense as defined in article seventy of
39 the penal law; provided, however, that a person who is convicted of
40 burglary in the second degree as defined in subdivision two of section
41 140.25 of the penal law, or robbery in the second degree as defined in
42 subdivision one of section 160.10 of the penal law, or an attempt there-
43 of, is eligible to participate, (b) an A-I felony offense, (c) any homi-
44 cide offense as defined in article one hundred twenty-five of the penal
45 law, (d) any felony sex offense as defined in article one hundred thirty
46 of the penal law and (e) any escape or absconding offense as defined in
47 article two hundred five of the penal law.
48 2. "Shock] "shock incarceration program" means a program pursuant to
49 which eligible incarcerated individuals are selected to participate in
50 the program and serve a period of six months in a shock incarceration
51 facility, which shall provide rigorous physical activity, intensive
52 regimentation and discipline and rehabilitation therapy and programming.
53 Such incarcerated individuals may be selected either: (i) at a reception
54 center; or (ii) at a general confinement facility [when the otherwise
55 eligible incarcerated individual then becomes eligible for release on
56 parole within three years in the case of an indeterminate term of impri-
A. 1128--A 10
1 sonment, or then becomes eligible for conditional release within three
2 years in the case of a determinate term of imprisonment].
3 § 7. Section 867 of the correction law, as amended by chapter 322 of
4 the laws of 2021, is amended to read as follows:
5 § 867. Procedure for selection of participants in shock incarceration
6 program. 1. An [eligible] incarcerated individual may make an applica-
7 tion to the shock incarceration screening committee for permission to
8 participate in the shock incarceration program.
9 2. If the shock incarceration screening committee determines that an
10 incarcerated individual's participation in the shock incarceration
11 program is consistent with the safety of the community, the welfare of
12 the applicant and the rules and regulations of the department, the
13 committee shall forward the application to the commissioner or [his] a
14 designee for approval or disapproval.
15 2-a. Subdivisions one and two of this section shall apply to a judi-
16 cially sentenced shock incarceration incarcerated individual only to the
17 extent that the screening committee may determine whether the incarcer-
18 ated individual has a medical or mental health condition that will
19 render the incarcerated individual unable to successfully complete the
20 shock incarceration program, and the facility in which the incarcerated
21 individual will participate in such program. Notwithstanding subdivi-
22 sion five of this section, an incarcerated individual sentenced to shock
23 incarceration shall promptly commence participation in the program [when
24 such incarcerated individual is an eligible incarcerated individual
25 pursuant to subdivision one of section eight hundred sixty-five of this
26 article].
27 3. Applicants cannot participate in the shock incarceration program
28 unless they agree to be bound by all the terms and conditions thereof
29 and indicate such agreement by signing the memorandum of the program
30 immediately below a statement reading as follows:
31 "I accept the foregoing program and agree to be bound by the terms and
32 conditions thereof. I understand that my participation in the program is
33 a privilege that may be revoked at any time at the sole discretion of
34 the commissioner. I understand that I must successfully complete the
35 entire program to obtain a certificate of earned eligibility upon the
36 completion of said program, and in the event that I do not successfully
37 complete said program, for any reason, I will be transferred to a
38 nonshock incarceration correctional facility to continue service of my
39 sentence."
40 4. An incarcerated individual who has successfully completed a shock
41 incarceration program shall be eligible to receive such a certificate of
42 earned eligibility pursuant to section eight hundred five of this chap-
43 ter. Notwithstanding any other provision of law, an incarcerated indi-
44 vidual sentenced to a determinate sentence of imprisonment who has
45 successfully completed a shock incarceration program shall be eligible
46 to receive such a certificate of earned eligibility and shall be imme-
47 diately eligible to be conditionally released.
48 5. Participation in the shock incarceration program shall be a privi-
49 lege. Nothing contained in this article may be construed to confer upon
50 any incarcerated individual the right to participate or continue to
51 participate therein.
52 § 8. Clause (B) of subparagraph (ii) of paragraph (e) of subdivision 1
53 of section 70.30 of the penal law, as amended by chapter 3 of the laws
54 of 1995, is amended to read as follows:
55 (B) if the aggregate maximum term of the determinate sentence or
56 sentences is less than twenty years, the defendant shall be deemed to be
A. 1128--A 11
1 serving an indeterminate sentence the maximum term of which shall be
2 deemed to be twenty years. In such instances, the minimum sentence shall
3 be deemed to be ten years or [six-sevenths] one-half of the term or
4 aggregate maximum term of the determinate sentence or sentences, which-
5 ever is greater.
6 § 9. Clause (B) of subparagraph (iii) of paragraph (e) of subdivision
7 1 of section 70.30 of the penal law, as amended by chapter 3 of the laws
8 of 1995, is amended to read as follows:
9 (B) if the aggregate maximum term of the determinate sentence or
10 sentences is less than thirty years, the defendant shall be deemed to be
11 serving an indeterminate sentence the maximum term of which shall be
12 deemed to be thirty years. In such instances, the minimum sentence shall
13 be deemed to be fifteen years or [six-sevenths] one-half of the term or
14 aggregate maximum term of the determinate sentence or sentences, which-
15 ever is greater.
16 § 10. Clause (B) of subparagraph (v) of paragraph (e) of subdivision 1
17 of section 70.30 of the penal law, as amended by chapter 3 of the laws
18 of 1995, is amended to read as follows:
19 (B) if the aggregate maximum term of the determinate sentence or
20 sentences is less than forty years, the defendant shall be deemed to be
21 serving an indeterminate sentence the maximum term of which shall be
22 deemed to be forty years. In such instances, the minimum sentence shall
23 be deemed to be twenty years or [six-sevenths] one-half of the term or
24 aggregate maximum term of the determinate sentence or sentences, which-
25 ever is greater.
26 § 11. Clause (B) of subparagraph (vii) of paragraph (e) of subdivision
27 1 of section 70.30 of the penal law, as amended by chapter 3 of the laws
28 of 1995, is amended to read as follows:
29 (B) if the aggregate maximum term of the determinate sentence or
30 sentences is less than fifty years, the defendant shall be deemed to be
31 serving an indeterminate sentence the maximum term of which shall be
32 deemed to be fifty years. In such instances, the minimum sentence shall
33 be deemed to be twenty-five years or [six-sevenths] one-half of the term
34 or aggregate maximum term of the determinate sentence or sentences,
35 whichever is greater.
36 § 12. Paragraph (b) of subdivision 4 of section 70.30 of the penal
37 law, as amended by chapter 3 of the laws of 1995, is amended to read as
38 follows:
39 (b) In the case of a person serving a definite sentence, the total of
40 such allowances shall not exceed [one-third] one-half of [his] their
41 term or aggregate term and the allowances shall be applied as a credit
42 against such term.
43 § 13. Subparagraphs (iii) and (iv) of paragraph (a) of subdivision 1
44 of section 70.40 of the penal law, as amended by section 127-c of
45 subpart B of part C of chapter 62 of the laws of 2011, are amended to
46 read as follows:
47 (iii) A person who is serving one or more than one indeterminate
48 sentence of imprisonment and one or more than one determinate sentence
49 of imprisonment, which run concurrently may be paroled at any time after
50 the expiration of the minimum period of imprisonment of the indetermi-
51 nate sentence or sentences, or upon the expiration of [six-sevenths]
52 one-half of the term of imprisonment of the determinate sentence or
53 sentences, whichever is later.
54 (iv) A person who is serving one or more than one indeterminate
55 sentence of imprisonment and one or more than one determinate sentence
56 of imprisonment which run consecutively may be paroled at any time after
A. 1128--A 12
1 the expiration of the sum of the minimum or aggregate minimum period of
2 the indeterminate sentence or sentences and [six-sevenths] one-half of
3 the term or aggregate term of imprisonment of the determinate sentence
4 or sentences.
5 § 14. Paragraph (b) of subdivision 1 of section 70.40 of the penal
6 law, as amended by section 127-d-1 of subpart B of part C of chapter 62
7 of the laws of 2011, is amended to read as follows:
8 (b) A person who is serving one or more than one indeterminate or
9 determinate sentence of imprisonment shall, if [he or she so requests]
10 they request, be conditionally released from the institution in which
11 [he or she is] they are confined when the total good behavior time
12 allowed to [him or her] them, pursuant to the provisions of the
13 correction law, is equal to the unserved portion of [his or her] their
14 term, maximum term or aggregate maximum term; provided, however, that
15 (i) in no event shall a person serving one or more indeterminate
16 sentence of imprisonment and one or more determinate sentence of impri-
17 sonment which run concurrently be conditionally released until serving
18 at least [six-sevenths] one-half of the determinate term of imprisonment
19 which has the longest unexpired time to run and (ii) in no event shall a
20 person be conditionally released prior to the date on which such person
21 is first eligible for discretionary parole release. The conditions of
22 release, including those governing post-release supervision, shall be
23 such as may be imposed by the state board of parole in accordance with
24 the provisions of the executive law.
25 Every person so released shall be under the supervision of the state
26 department of corrections and community supervision for a period equal
27 to the unserved portion of the term, maximum term, aggregate maximum
28 term, or period of post-release supervision.
29 § 15. This act shall take effect immediately; provided, however, that
30 the amendments to section 803 of the correction law made by section
31 three of this act shall not affect the expiration of such section and
32 shall be deemed to expire therewith; provided, further that the amend-
33 ments to subdivision 2-b of section 803 of the correction law made by
34 section three of this act shall not affect the repeal of such subdivi-
35 sion and shall be deemed repealed therewith; provided further, however,
36 that the amendments to paragraph (e) of subdivision 1 of section 70.30
37 of the penal law made by sections eight, nine, ten and eleven of this
38 act shall not affect the expiration of such paragraph and shall be
39 deemed to expire therewith; provided further, however, that the amend-
40 ments to paragraph (b) of subdivision 4 of section 70.30 of the penal
41 law made by section twelve of this act shall not affect the expiration
42 of such subdivision and shall expire therewith; and provided further,
43 however, that the amendments to paragraphs (a) and (b) of subdivision 1
44 of section 70.40 of the penal law made by sections thirteen and fourteen
45 of this act shall not affect the expiration of such paragraphs and shall
46 be deemed to expire therewith.
