Amd §803, rpld §803-b, Cor L; amd §41, Chap 738 of 2004; amd §632-a, Exec L
Relates to controlled substances and indeterminate sentences; relates to the expansion of merit time; repeals provisions relating to the allowance of limited credit time for incarcerated individuals.
STATE OF NEW YORK
________________________________________________________________________
1392
2023-2024 Regular Sessions
IN ASSEMBLY
January 17, 2023
___________
Introduced by M. of A. AUBRY, BURGOS, CARROLL, WALKER, WEPRIN -- read
once and referred to the Committee on Correction
AN ACT to amend the correction law, chapter 738 of the laws of 2004
amending the correction law and other laws relating to controlled
substances and indeterminate sentences, and the executive law, in
relation to expanding eligibility in the merit time allowance program
for all inmates except those serving a sentence of life imprisonment
without parole, murder in the first degree, incest, an act of terror-
ism, aggravated harassment of an employee by an inmate, or an attempt
or conspiracy to commit any such offense, to earn merit time allow-
ance; and to repeal section 803-b of the correction law relating to
limited credit time allowances
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subparagraphs (i), (ii) and (iv) of paragraph (d) of subdi-
2 vision 1 of section 803 of the correction law, subparagraph (i) as added
3 by section 7 of chapter 738 of the laws of 2004, subparagraphs (ii) and
4 (iv) as amended by section 224 of chapter 322 of the laws of 2021 and
5 subparagraph (iv) as separately amended by section 1 of chapter 242 of
6 the laws of 2021, are amended to read as follows:
7 (i) Except as provided in subparagraph (ii) of this paragraph, every
8 person under the custody of the department or confined in a facility in
9 the department of mental hygiene serving an indeterminate sentence of
10 imprisonment with a minimum period of one year or more or a determinate
11 sentence of imprisonment of one year or more [imposed pursuant to
12 section 70.70 or 70.71 of the penal law,] may earn a merit time allow-
13 ance.
14 (ii) Such merit time allowance shall not be available to any person
15 serving [an indeterminate] a sentence [authorized for an A-I felony
16 offense, other than an A-I felony offense defined in article two hundred
17 twenty of the penal law, or any sentence imposed for a violent felony
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03844-01-3
A. 1392 2
1 offense as defined in section 70.02 of the penal law, manslaughter in
2 the second degree, vehicular manslaughter in the second degree, vehicu-
3 lar manslaughter in the first degree, criminally negligent homicide]
4 imposed for murder in the first degree as defined in section 125.27 of
5 the penal law, an offense defined in article one hundred thirty of the
6 penal law, incest, [or] an offense defined in article two hundred
7 sixty-three of the penal law, [or] an act of terrorism as defined in
8 article four hundred ninety of the penal law, aggravated harassment of
9 an employee by an incarcerated individual, or an attempt or conspiracy
10 to commit any such offense.
11 (iv) Such merit time allowance may be granted when an incarcerated
12 individual successfully participates in the work and treatment program
13 assigned pursuant to section eight hundred five of this article and when
14 such incarcerated individual [obtains a] achieves one of the following:
15 (1) completes his or her general equivalency diploma, his or her educa-
16 tional requirements as determined by the department or satisfactorily
17 completes coursework sponsored by an institution of higher learning
18 representing a semester of academic training; (2) completes an alcohol
19 and substance abuse treatment [certificate, a vocational trade certif-
20 icate following at least six months of vocational programming,] program,
21 or completes a comparable program of a different type as determined by
22 the department, including, but not limited to, anger management, family
23 violence, or parenting; (3) completes a vocational training program or a
24 comparable and equivalent training program as determined by the depart-
25 ment; (4) performs satisfactorily for at least six months in a skilled
26 job assignment, including but not limited to, Incarcerated Individual
27 Program Aide (IIPA), law library clerk, medical/infirmary aide, chil-
28 dren's center aide, and food service worker; (5) completes at least
29 eighteen credits in a program registered by the state education depart-
30 ment from a degree-granting higher education institution; or (6)
31 performs at least four hundred hours of service as part of a community
32 work crew.
33 Such allowance shall be withheld for any serious disciplinary infrac-
34 tion or upon a judicial determination that the person, while an incar-
35 cerated individual, commenced or continued a civil action, proceeding or
36 claim that was found to be frivolous as defined in subdivision (c) of
37 section eight thousand three hundred three-a of the civil practice law
38 and rules, or an order of a federal court pursuant to rule 11 of the
39 federal rules of civil procedure imposing sanctions in an action
40 commenced by a person, while an incarcerated individual, against a state
41 agency, officer or employee.
42 § 2. Subparagraphs (i), (ii) and (iv) of paragraph (d) of subdivision
43 1 of section 803 of the correction law, subparagraph (i) as added by
44 section 10-a of chapter 738 of the laws of 2004, subparagraphs (ii) and
45 (iv) as amended by section 224-a of chapter 322 of the laws of 2021 and
46 subparagraph (iv) as separately amended by section 2 of chapter 242 of
47 the laws of 2021, are amended to read as follows:
48 (i) Except as provided in subparagraph (ii) of this paragraph, every
49 person under the custody of the department or confined in a facility in
50 the department of mental hygiene serving an indeterminate sentence of
51 imprisonment with a minimum period of one year or more or a determinate
52 sentence of imprisonment of one year or more [imposed pursuant to
53 section 70.70 or 70.71 of the penal law,] may earn a merit time allow-
54 ance.
55 (ii) Such merit time allowance shall not be available to any person
56 serving [an indeterminate] a sentence [authorized for an A-I felony
A. 1392 3
1 offense, other than an A-I felony offense defined in article two hundred
2 twenty of the penal law, or any sentence imposed for a violent felony
3 offense as defined in section 70.02 of the penal law, manslaughter in
4 the second degree, vehicular manslaughter in the second degree, vehicu-
5 lar manslaughter in the first degree, criminally negligent homicide]
6 imposed for murder in the first degree as defined in section 125.27 of
7 the penal law, an offense defined in article one hundred thirty of the
8 penal law, incest, [or] an offense defined in article two hundred
9 sixty-three of the penal law, [or] an act of terrorism as defined in
10 article four hundred ninety of the penal law, aggravated harassment of
11 an employee by an incarcerated individual, or an attempt or conspiracy
12 to commit any such offense.
13 (iv) Such merit time allowance may be granted when an incarcerated
14 individual successfully participates in the work and treatment program
15 assigned pursuant to section eight hundred five of this article and when
16 such incarcerated individual [obtains a] achieves one of the following:
17 (1) completes his or her general equivalency diploma, his or her educa-
18 tional requirements as determined by the department or satisfactorily
19 completes coursework sponsored by an institution of higher learning
20 representing a semester of academic training; (2) completes an alcohol
21 and substance abuse treatment [certificate, a vocational trade certif-
22 icate following at least six months of vocational programming,] program,
23 or completes a comparable program of a different type as determined by
24 the department, including, but not limited to, anger management, family
25 violence, or parenting; (3) completes a vocational training program or a
26 comparable and equivalent training program as determined by the depart-
27 ment; (4) performs satisfactorily for at least six months in a skilled
28 job assignment, including but not limited to, Incarcerated Individual
29 Program Aide (IIPA), law library clerk, medical/infirmary aide, chil-
30 dren's center aide, and food service worker; (5) completes at least
31 eighteen credits in a program registered by the state education depart-
32 ment from a degree-granting higher education institution; or (6)
33 performs at least four hundred hours of service as part of a community
34 work crew.
35 Such allowance shall be withheld for any serious disciplinary infrac-
36 tion or upon a judicial determination that the person, while an incar-
37 cerated individual, commenced or continued a civil action, proceeding or
38 claim that was found to be frivolous as defined in subdivision (c) of
39 section eight thousand three hundred three-a of the civil practice law
40 and rules, or an order of a federal court pursuant to rule 11 of the
41 federal rules of civil procedure imposing sanctions in an action
42 commenced by a person, while an incarcerated individual, against a state
43 agency, officer or employee.
44 § 3. Subparagraph (v) of paragraph (d) of subdivision 1 of section 803
45 of the correction law, as added by section 7 of chapter 738 of the laws
46 of 2004, is amended to read as follows:
47 (v) The provisions of this paragraph shall apply to persons in custody
48 serving an indeterminate sentence on the effective date of this para-
49 graph as well as to persons sentenced to an indeterminate sentence on
50 and after the effective date of this paragraph and prior to September
51 first, two thousand five and to persons sentenced to a determinate
52 sentence [prior to September first, two thousand eleven] for a felony as
53 defined in article two hundred twenty or two hundred twenty-one of the
54 penal law.
A. 1392 4
1 § 4. Subparagraph (v) of paragraph (d) of subdivision 1 of section 803
2 of the correction law, as added by section 10-a of chapter 738 of the
3 laws of 2004, is amended to read as follows:
4 (v) The provisions of this paragraph shall apply to persons in custody
5 serving an indeterminate sentence on the effective date of this para-
6 graph as well as to persons sentenced to an indeterminate sentence on
7 and after the effective date of this paragraph and prior to September
8 first, two thousand five and to persons sentenced to a determinate
9 sentence [prior to September first, two thousand eleven] for a felony as
10 defined in article two hundred twenty or two hundred twenty-one of the
11 penal law.
12 § 5. Paragraph (g) of subdivision 2-a of section 803 of the correction
13 law, as added by section 9 of chapter 738 of the laws of 2004, is
14 amended to read as follows:
15 (g) The provisions of this subdivision shall apply to persons in
16 custody serving an indeterminate sentence on the effective date of this
17 subdivision as well as to persons sentenced to an indeterminate sentence
18 on and after the effective date of this subdivision and prior to Septem-
19 ber first, two thousand five and to persons sentenced to a determinate
20 sentence [prior to September first, two thousand eleven] for a felony as
21 defined in article two hundred twenty or two hundred twenty-one of the
22 penal law.
23 § 6. Paragraph (g) of subdivision 2-a of section 803 of the correction
24 law, as added by section 11 of chapter 738 of the laws of 2004, is
25 amended to read as follows:
26 (g) The provisions of this subdivision shall apply to persons in
27 custody serving an indeterminate sentence on the effective date of this
28 subdivision as well as to persons sentenced to an indeterminate sentence
29 on and after the effective date of this subdivision and prior to Septem-
30 ber first, two thousand five and to persons sentenced to a determinate
31 sentence [prior to September first, two thousand eleven] for a felony as
32 defined in article two hundred twenty or two hundred twenty-one of the
33 penal law.
34 § 7. Section 803-b of the correction law is REPEALED.
35 § 8. Subdivision (c-1) of section 41 of chapter 738 of the laws of
36 2004 amending the correction law and other laws relating to controlled
37 substances and indeterminate sentences, is amended to read as follows:
38 (c-1) the provisions of sections seven, eight, nine, ten and ten-a of
39 this act, and subdivision 2-a of section 803 of the correction law, as
40 added by section eleven of this act shall apply to persons in custody
41 serving an indeterminate sentence on the effective date of such
42 provisions as well as to persons sentenced to an indeterminate sentence
43 on and after the effective date of such provisions and prior to Septem-
44 ber 1, 2005 and to persons sentenced to a determinate sentence [prior to
45 September 1, 2011] for a felony as defined in article 220 or 221 of the
46 penal law;
47 § 9. Clause (C) of subparagraph (i) of paragraph (e) of subdivision 1
48 of section 632-a of the executive law, as amended by section 24 of part
49 A-1 of chapter 56 of the laws of 2010, is amended to read as follows:
50 (C) [an offense for which a merit time allowance may not be received
51 against the sentence pursuant to paragraph (d) of subdivision one of
52 section eight hundred three of the correction law] an A-I felony
53 offense, other than an A-I felony offense defined in article two hundred
54 twenty of the penal law, manslaughter in the second degree, vehicular
55 manslaughter in the second degree, vehicular manslaughter in the first
56 degree, criminally negligent homicide, an offense defined in article one
A. 1392 5
1 hundred thirty of the penal law, incest, an offense defined in article
2 two hundred sixty-three of the penal law, aggravated harassment of an
3 employee by an inmate;
4 § 10. This act shall take effect on the ninetieth day after it shall
5 have become a law and shall apply to: (i) persons in custody serving an
6 indeterminate or determinate sentence or sentences on the effective
7 date; (ii) persons sentenced to an indeterminate or determinate sentence
8 or sentences on or after the effective date; and (iii) persons who have
9 not completed service of an indeterminate or determinate sentence or
10 sentences imposed prior to the effective date; provided, however, that
11 the amendments to section 803 of the correction law made by sections
12 one, three, and five of this act shall be subject to the expiration and
13 reversion of such section pursuant to subdivision d of section 74 of
14 chapter 3 of the laws of 1995, as amended, when upon such date the
15 provisions of sections two, four and six of this act shall take effect.
