STATE OF NEW YORK
________________________________________________________________________
2920--A
Cal. No. 711
2023-2024 Regular Sessions
IN SENATE
January 25, 2023
___________
Introduced by Sen. CLEARE -- read twice and ordered printed, and when
printed to be committed to the Committee on Crime Victims, Crime and
Correction -- reported favorably from said committee, ordered to first
and second report, ordered to a third reading, amended and ordered
reprinted, retaining its place in the order of third reading
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] three
7 years. Provided, however, that a person under sentence for an offense
8 defined in paragraphs (a) and (b) of subdivision one of section 70.02 of
9 the penal law, where such offense involved the use or threatened use of
10 a 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] thirty months. Provided, further, however,
14 that a person under a determinate sentence as a second felony drug
15 offender for a class B felony offense defined in article two hundred
16 twenty of the penal law, who was sentenced pursuant to section 70.70 of
17 such law, shall not be eligible to participate in a temporary release
18 program until the time served under imprisonment for his or her determi-
19 nate sentence, including any jail time credited pursuant to the
20 provisions of article seventy of the penal law, shall be at least eigh-
21 teen months. In the case of a person serving an indeterminate sentence
22 of imprisonment imposed pursuant to the penal law in effect after
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07516-02-3
S. 2920--A 2
1 September one, nineteen hundred sixty-seven, for the purposes of this
2 article parole eligibility shall be upon the expiration of the minimum
3 period of imprisonment fixed by the court or where the court has not
4 fixed any period, after service of the minimum period fixed by the state
5 board of parole. [If an incarcerated individual is denied release on
6 parole, such incarcerated individual shall not be deemed an eligible
7 incarcerated individual until he or she is within two years of his or
8 her next scheduled appearance before the state parole board.] In any
9 case where an incarcerated individual is denied release on parole while
10 participating in a temporary release program, the department shall
11 review the status of the incarcerated individual to determine if contin-
12 ued placement in the program is appropriate. No person convicted of any
13 escape or absconding offense defined in article two hundred five of the
14 penal law shall be eligible for temporary release. Further, no person
15 under sentence for aggravated harassment of an employee by an incarcer-
16 ated individual as defined in section 240.32 of the penal law for, any
17 homicide offense defined in article one hundred twenty-five of the penal
18 law, for any sex offense defined in article one hundred thirty of the
19 penal law, for an act of terrorism as defined in article four hundred
20 ninety of the penal law, for an offense involving the sexual performance
21 of a child as defined in article two hundred sixty-three of the penal
22 law, or for an offense defined in section 255.25, 255.26 or 255.27 of
23 the penal law shall be eligible to participate in a work release program
24 as defined in subdivision three of this section. Nor shall any person
25 under sentence for any sex offense defined in article one hundred thirty
26 of the penal law be eligible to participate in a community services
27 program as defined in subdivision five of this section. [Notwithstanding
28 the foregoing, no person who is an otherwise eligible incarcerated indi-
29 vidual who is under sentence for a crime involving: (a) infliction of
30 serious physical injury upon another as defined in the penal law or (b)
31 any other offense involving the use or threatened use of a deadly weapon
32 may participate in a temporary release program without the written
33 approval of the commissioner.] The commissioner shall promulgate regu-
34 lations giving direction to the temporary release committee at each
35 institution in order to aid such committees in [carrying out this
36 mandate] determining which incarcerated individuals are eligible and
37 appropriate to participate in the temporary release programs.
38 The governor[, by executive order,] may not issue or enforce any exec-
39 utive order to exclude or limit the participation of any class of
40 [otherwise] eligible incarcerated individuals from participation in a
41 temporary release program. Nothing in this paragraph shall be construed
42 to affect [either the validity of any executive order previously issued
43 limiting the participation of otherwise eligible incarcerated individ-
44 uals in such program or] the authority of the commissioner to impose
45 appropriate regulations [limiting such participation] for determining
46 which incarcerated individuals are eligible and appropriate to partic-
47 ipate in the temporary release programs. The commissioner shall promul-
48 gate regulations giving direction to department and transitional
49 services staff with regard to developing and providing programmatic
50 support to temporary release participants with emphasis on the first
51 three months of work release.
52 § 2. Subdivision 2 of section 851 of the correction law, as amended by
53 section 228-b of chapter 322 of the laws of 2021, is amended to read as
54 follows:
55 2. "Eligible incarcerated individual" means: a person confined in an
56 institution who is eligible for release on parole or who will become
S. 2920--A 3
1 eligible for release on parole or conditional release within [two] three
2 years. Provided, that a person under a determinate sentence as a second
3 felony drug offender for a class B felony offense defined in article two
4 hundred twenty of the penal law, who was sentenced pursuant to section
5 70.70 of such law, shall not be eligible to participate in a temporary
6 release program until the time served under imprisonment for his or her
7 determinate sentence, including any jail time credited pursuant to the
8 provisions of article seventy of the penal law, shall be at least eigh-
9 teen months. In the case of a person serving an indeterminate sentence
10 of imprisonment imposed pursuant to the penal law in effect after
11 September one, nineteen hundred sixty-seven, for the purposes of this
12 article parole eligibility shall be upon the expiration of the minimum
13 period of imprisonment fixed by the court or where the court has not
14 fixed any period, after service of the minimum period fixed by the state
15 board of parole. [If an incarcerated individual is denied release on
16 parole, such incarcerated individual shall not be deemed an eligible
17 incarcerated individual until he or she is within two years of his or
18 her next scheduled appearance before the state parole board.] In any
19 case where an incarcerated individual is denied release on parole while
20 participating in a temporary release program, the department shall
21 review the status of the incarcerated individual to determine if contin-
22 ued placement in the program is appropriate. No person convicted of any
23 escape or absconding offense defined in article two hundred five of the
24 penal law shall be eligible for temporary release. Further, no person
25 under sentence for aggravated harassment of an employee by an incarcer-
26 ated individual as defined in section 240.32 of the penal law for, any
27 homicide offense defined in article one hundred twenty-five of the penal
28 law, for any sex offense defined in article one hundred thirty of the
29 penal law, for an act of terrorism as defined in article four hundred
30 ninety of the penal law, for an offense involving the sexual performance
31 of a child as defined in article two hundred sixty-three of the penal
32 law, or for an offense defined in section 255.25, 255.26 or 255.27 of
33 the penal law shall be eligible to participate in a work release program
34 as defined in subdivision three of this section. Nor shall any person
35 under sentence for any sex offense defined in article one hundred thirty
36 of the penal law be eligible to participate in a community services
37 program as defined in subdivision five of this section. [Notwithstand-
38 ing the foregoing, no person who is an otherwise eligible incarcerated
39 individual who is under sentence for a crime involving: (a) infliction
40 of serious physical injury upon another as defined in the penal law, (b)
41 a sex offense involving forcible compulsion, or (c) any other offense
42 involving the use or threatened use of a deadly weapon may participate
43 in a temporary release program without the written approval of the
44 commissioner.] The commissioner shall promulgate regulations giving
45 direction to the temporary release committee at each institution in
46 order to aid such committees in [carrying out this mandate] determining
47 which incarcerated individuals are eligible and appropriate to partic-
48 ipate in the temporary release programs.
49 The governor[, by executive order,] may not issue or enforce any exec-
50 utive order to exclude or limit the participation of any class of
51 [otherwise] eligible incarcerated individuals from participation in a
52 temporary release program. Nothing in this paragraph shall be construed
53 to affect [either the validity of any executive order previously issued
54 limiting the participation of otherwise eligible incarcerated individ-
55 uals in such program or] the authority of the commissioner to impose
56 appropriate regulations [limiting such participation] for determining
S. 2920--A 4
1 which incarcerated individuals are eligible and appropriate to partic-
2 ipate in temporary release programs. The commissioner shall promulgate
3 regulations giving direction to department and transitional services
4 staff with regard to developing and providing programmatic support to
5 temporary release participants with emphasis on the first three months
6 of work release.
7 § 3. Subdivision 2 of section 851 of the correction law, as amended by
8 section 228-d of chapter 322 of the laws of 2021, is amended to read as
9 follows:
10 2. "Eligible incarcerated individual" means a person confined in an
11 institution where a work release program has been established who is
12 eligible for release on parole or who will become eligible for release
13 on parole within [one year] three years.
14 § 4. Subdivision 2-a of section 851 of the correction law, as amended
15 by chapter 322 of the laws of 2021, is amended to read as follows:
16 2-a. Notwithstanding subdivision two of this section, the term "eligi-
17 ble incarcerated individual" shall also include a person confined in an
18 institution who is eligible for release on parole or who will become
19 eligible for release on parole or conditional release within [two] three
20 years, and who was convicted of a homicide offense as defined in article
21 one hundred twenty-five of the penal law [or an assault offense defined
22 in article one hundred twenty of the penal law], and who can demonstrate
23 to the commissioner that: (a) the victim of such homicide or assault was
24 a member of the incarcerated individual's immediate family as that term
25 is defined in section 120.40 of the penal law or had a child in common
26 with the incarcerated individual; (b) the incarcerated individual was
27 subjected to substantial physical, sexual or psychological abuse commit-
28 ted by the victim of such homicide or assault; and (c) such abuse was a
29 substantial factor in causing the incarcerated individual to commit such
30 homicide or assault. With respect to an incarcerated individual's claim
31 that he or she was subjected to substantial physical, sexual or psycho-
32 logical abuse committed by the victim, such demonstration shall include
33 corroborative material that may include, but is not limited to, witness
34 statements, social services records, hospital records, law enforcement
35 records and a showing based in part on documentation prepared at or near
36 the time of the commission of the offense or the prosecution thereof
37 tending to support the incarcerated individual's claim. Prior to making
38 a determination under this subdivision, the commissioner is required to
39 request and take into consideration the opinion of the district attorney
40 who prosecuted the underlying homicide or assault offense and the opin-
41 ion of the sentencing court. If such opinions are received within
42 forty-five days of the request, the commissioner shall take them into
43 consideration. If such opinions are not so received, the commissioner
44 may proceed with the determination. Any action by the commissioner
45 pursuant to this subdivision shall be deemed a judicial function and
46 shall not be reviewable in any court.
47 § 5. Subdivision 2-b of section 851 of the correction law, as added by
48 chapter 738 of the laws of 2004, is amended to read as follows:
49 2-b. When calculating in advance the date on which a person is or will
50 be eligible for release on parole or conditional release, for purposes
51 of determining eligibility for temporary release or for placement at an
52 alcohol and substance abuse treatment correctional annex, the commis-
53 sioner shall consider and include credit for all potential credits and
54 reductions including but not limited to merit time, additional merit
55 time and good behavior allowances. Nothing in this subdivision shall be
56 interpreted as precluding the consideration and inclusion of credit for
S. 2920--A 5
1 all potential credits and reductions including, but not limited to,
2 merit time, additional merit time and good behavior allowances when
3 calculating in advance for any other purpose the date on which a person
4 is or will be eligible for release on parole or conditional release.
5 § 6. This act shall take effect immediately; provided, however, that
6 the amendments to subdivision 2 of section 851 of the correction law
7 made by section one of this act shall be subject to the expiration and
8 reversion of such subdivision and of such section pursuant to subdivi-
9 sion (c) of section 46 of chapter 60 of the laws of 1994 and section 10
10 of chapter 339 of the laws of 1972, as amended, when upon such date the
11 provisions of section two of this act shall take effect; provided,
12 further, that the amendments to subdivision 2 of section 851 of the
13 correction law made by section two of this act shall expire on the same
14 date as subdivision (c) of section 46 of chapter 60 of the laws of 1994,
15 section 10 of chapter 339 of the laws of 1972, and section 5 of chapter
16 554 of the laws of 1986, as amended, expire, when upon such date the
17 provisions of section three of this act shall take effect; provided,
18 further, that the amendments to subdivisions 2-a and 2-b of section 851
19 of the correction law, made by sections four and five of this act shall
20 not affect the expiration of such section and shall expire therewith.
