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
________________________________________________________________________
7873--A
IN SENATE
January 18, 2022
___________
Introduced by Sens. COONEY, HOYLMAN, SALAZAR -- read twice and ordered
printed, and when printed to be committed to the Committee on Crime
Victims, Crime and Correction -- recommitted to the Committee on Crime
Victims, Crime and Correction in accordance with Senate Rule 6, sec. 8
-- 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. This act shall be known and may be cited as the "earned
2 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-
15 tification of assigned treatment program in which the incarcerated
16 person was determined to have failed to perform properly. The report
17 shall additionally specify the department facility in which the recom-
18 mendation to withhold, forfeit or cancel good time was made and the
19 names of the department personnel on such facility's time allowance
20 committee who made such recommendation.
21 § 3. Section 803 of the correction law, as amended by chapter 3 of the
22 laws of 1995, paragraphs (a), (b), and (c) of subdivision 1 and subdivi-
23 sions 3, 4, and 5 as amended by section 37 of subpart B of part C of
24 chapter 62 of the laws of 2011, paragraph (d) of subdivision 1 and
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13507-04-2
S. 7873--A 2
1 subdivision 2-a as added by chapter 738 of the laws of 2004, subpara-
2 graph (ii) of paragraph (d) of subdivision 1 as amended by chapter 322
3 of the laws of 2021, subparagraph (iv) of paragraph (d) of subdivision 1
4 as separately amended by chapters 242 and 322 of the laws of 2021,
5 subdivision 2-b as added by section 3 of part E of chapter 62 of the
6 laws of 2003, is amended to read as follows:
7 § 803. Good behavior allowances against indeterminate and determinate
8 sentences. 1. (a) Every person confined in an institution of the depart-
9 ment or a facility in the department of mental hygiene serving an inde-
10 terminate or determinate sentence of imprisonment, except a person serv-
11 ing a sentence with a maximum term of life imprisonment, [may] shall
12 receive a time allowance against the term or maximum term of [his or
13 her] their sentence imposed by the court. Such allowances [may be grant-
14 ed for good behavior and efficient and willing performance of duties
15 assigned or progress and achievement in an assigned treatment program,
16 and may be withheld, forfeited or canceled in whole or in part for bad
17 behavior, violation of institutional rules or failure to perform proper-
18 ly in the duties or program assigned] shall be credited toward a
19 person's sentence on an annual pro rata basis, and any credit awarded
20 over the course of the calendar year shall vest on the final day of the
21 calendar year. Once vested, such credit shall not be withheld,
22 forfeited, or canceled.
23 (a-1) Time allowances that have not yet been credited toward a
24 person's sentence may be withheld, forfeited or canceled in whole or in
25 part for violation of institutional rules, as demonstrated at a hearing
26 by a preponderance of the evidence. Such restrictions shall be limited
27 to the pro rata share of credit within the calendar year that the
28 offense is committed. If such time allowance is withheld, forfeited or
29 canceled in whole or in part, further allowances, not to exceed the
30 allowances set forth in paragraphs (b) and (c) of this subdivision, may
31 be reinstated for good behavior and efficient and willing performance of
32 duties assigned or progress and achievement in an assigned treatment
33 program. Following any final determination withholding, forfeiting, or
34 canceling a time allowance, the incarcerated person shall have the right
35 to take an administrative appeal to the central office of the department
36 and shall be advised of the right to seek legal assistance in the taking
37 of such appeal. The department shall adopt regulations in accordance
38 with this provision.
39 (b) A person serving an indeterminate sentence of imprisonment [may]
40 shall receive a time allowance against the maximum term of [his or her]
41 their sentence [not to exceed one-third] of one-half of the maximum term
42 imposed by the court.
43 (c) A person serving a determinate sentence of imprisonment [may]
44 shall receive a time allowance against the term of [his or her] their
45 sentence [not to exceed one-seventh] of one-half of the term imposed by
46 the court.
47 (d) (i) [Except as provided in subparagraph (ii) of this paragraph,
48 every] Every person under the custody of the department or confined in a
49 facility in the department of mental hygiene serving an indeterminate
50 sentence of imprisonment with a minimum period of one year or more or a
51 determinate sentence of imprisonment of one year or more [imposed pursu-
52 ant to section 70.70 or 70.71 of the penal law,] may earn a merit time
53 allowance.
54 (ii) [Such merit time allowance shall not be available to any person
55 serving an indeterminate sentence authorized for an A-I felony offense,
56 other than an A-I felony offense defined in article two hundred twenty
S. 7873--A 3
1 of the penal law, or any sentence imposed for a violent felony offense
2 as defined in section 70.02 of the penal law, manslaughter in the second
3 degree, vehicular manslaughter in the second degree, vehicular
4 manslaughter in the first degree, criminally negligent homicide, an
5 offense defined in article one hundred thirty of the penal law, incest,
6 or an offense defined in article two hundred sixty-three of the penal
7 law, or aggravated harassment of an employee by an incarcerated individ-
8 ual.
9 (iii)] The merit time allowance credit against the minimum period of
10 the indeterminate sentence shall be [one-sixth] one-half of the minimum
11 period imposed by the court [except that such credit shall be one-third
12 of the minimum period imposed by the court for an A-I felony offense
13 defined in article two hundred twenty of the penal law]. In the case of
14 such a determinate sentence, in addition to the time allowance credit
15 authorized by paragraph (c) of this subdivision, the merit time allow-
16 ance credited against the term of the determinate sentence pursuant to
17 this paragraph shall be [one-seventh] one-quarter of the term imposed by
18 the court.
19 [(iv)] (iii) Such merit time allowance [may] shall be granted when an
20 incarcerated individual successfully participates in the work and treat-
21 ment program assigned pursuant to section eight hundred five of this
22 article [and], including but not limited to when such incarcerated indi-
23 vidual obtains a general equivalency diploma, an alcohol and substance
24 abuse treatment certificate, a vocational trade certificate [following
25 at least six months of vocational programming], at least eighteen cred-
26 its in a program registered by the state education department from a
27 degree-granting higher education institution or performs at least four
28 hundred hours of service as part of a community work crew, or success-
29 fully completes one or more "significant programmatic accomplishments"
30 as defined in paragraph (c) of subdivision one of section eight hundred
31 three-b of this article. The commissioner may designate additional
32 programs and achievements for which merit time shall be granted. Once
33 granted, such allowances shall not be withheld, forfeited, or cancelled.
34 Where the institution in which the incarcerated individual is confined
35 does not provide opportunities for every incarcerated individual to earn
36 merit time allowances, such merit time allowance shall be automatically
37 credited against the incarcerated individual's sentence according to
38 subparagraph (ii) of this paragraph.
39 [Such allowance shall be withheld for any serious disciplinary infrac-
40 tion or upon a judicial determination that the person, while an incar-
41 cerated individual, commenced or continued a civil action, proceeding or
42 claim that was found to be frivolous as defined in subdivision (c) of
43 section eight thousand three hundred three-a of the civil practice law
44 and rules, or an order of a federal court pursuant to rule 11 of the
45 federal rules of civil procedure imposing sanctions in an action
46 commenced by a person, while an incarcerated individual, against a state
47 agency, officer or employee.
48 (v)] (iv) The provisions of this paragraph shall apply to persons in
49 custody serving [an] a determinate or indeterminate sentence on the
50 effective date of this paragraph as well as to persons sentenced to [an]
51 a determinate or indeterminate sentence on and after the effective date
52 of this paragraph [and prior to September first, two thousand five and
53 to persons sentenced to a determinate sentence prior to September first,
54 two thousand eleven for a felony as defined in article two hundred twen-
55 ty or two hundred twenty-one of the penal law]. The time allowances set
56 forth in this paragraph shall apply retroactively and shall be credited
S. 7873--A 4
1 toward every incarcerated individual's sentence within ninety days of
2 the chapter of the laws of two thousand twenty-two that amended this
3 paragraph.
4 2. If a person is serving more than one sentence, the authorized
5 allowances may be granted separately against the term or maximum term of
6 each sentence or, where consecutive sentences are involved, against the
7 aggregate maximum term. Such allowances shall be calculated as follows:
8 (a) A person serving two or more indeterminate sentences which run
9 concurrently [may] shall receive a time allowance [not to exceed one-
10 third] of one-half of the indeterminate sentence which has the longest
11 unexpired time to run.
12 (b) A person serving two or more indeterminate sentences which run
13 consecutively [may] shall receive a time allowance [not to exceed one-
14 third] of one-half of the aggregate maximum term.
15 (c) A person serving two or more determinate sentences which run
16 concurrently [may] shall receive a time allowance [not to exceed one-
17 seventh] of one-half of the determinate sentence which has the longest
18 unexpired time to run.
19 (d) A person serving two or more determinate sentences which run
20 consecutively [may] shall receive a time allowance [not to exceed one-
21 seventh] of one-half of the aggregate maximum term.
22 (e) A person serving one or more indeterminate sentence and one or
23 more determinate sentence which run concurrently [may] shall receive a
24 time allowance [not to exceed one-third] of one-half of the indetermi-
25 nate sentence which has the longest unexpired term to run or [one-sev-
26 enth] one-half of the determinate sentence which has the longest unex-
27 pired time to run, whichever allowance is greater.
28 (f) A person serving one or more indeterminate sentence and one or
29 more determinate sentence which run consecutively [may] shall receive a
30 time allowance [not to exceed] of the sum of [one-third] one-half of the
31 maximum or aggregate maximum of the indeterminate sentence or sentences
32 and [one-seventh] one-half of the term or aggregate maximum of the
33 determinate sentence or sentences.
34 2-a. If a person is serving more than one sentence, the authorized
35 merit time allowances may be granted against the period or aggregate
36 minimum period of the indeterminate sentence or sentences, or against
37 the term or aggregate term of the determinate sentence or sentences, or
38 where consecutive determinate and indeterminate sentences are involved,
39 against the aggregate minimum period as calculated pursuant to subpara-
40 graph (iv) of paragraph (a) of subdivision one of section 70.40 of the
41 penal law. Such allowances shall be calculated as follows:
42 (a) A person serving two or more indeterminate sentences which run
43 concurrently may receive a merit time allowance not to exceed [one-
44 sixth] one-half of the minimum period of the indeterminate sentence
45 imposed [for an offense other than an A-I felony offense defined in
46 article two hundred twenty of the penal law, or one-third of the minimum
47 period of the indeterminate sentence imposed for an A-I felony offense
48 defined in article two hundred twenty of the penal law, whichever allow-
49 ance results in the longest unexpired time to run] by the court.
50 (b) A person serving two or more indeterminate sentences which run
51 consecutively may receive a merit time allowance not to exceed the
52 amount of [one-third] one-half of the minimum or aggregate minimum peri-
53 od of the sentences imposed [for an A-I felony offense defined in arti-
54 cle two hundred twenty of the penal law, plus one-sixth of the minimum
55 or aggregate minimum period of the sentences imposed for an offense
56 other than such A-I felony offense] by the court.
S. 7873--A 5
1 (c) A person serving two or more determinate sentences [for an offense
2 defined in article two hundred twenty or two hundred twenty-one of the
3 penal law] which run concurrently may receive a merit time allowance not
4 to exceed [one-seventh] one-quarter of the term of the determinate
5 sentence which has the longest unexpired time to run.
6 (d) A person serving two or more determinate sentences [for an offense
7 defined in article two hundred twenty or two hundred twenty-one of the
8 penal law] which run consecutively may receive a merit time allowance
9 not to exceed [one-seventh] one-quarter of the aggregate term of such
10 determinate sentences.
11 (e) A person serving one or more indeterminate sentences and one or
12 more determinate sentences [for an offense defined in article two
13 hundred twenty or two hundred twenty-one of the penal law] which run
14 concurrently may receive a merit time allowance not to exceed [one-
15 sixth] one-half of the minimum period of the indeterminate sentence
16 imposed [for an offense other than an A-I felony offense defined in
17 article two hundred twenty of the penal law, one-third of the minimum
18 period of the indeterminate sentence imposed for an A-I felony offense
19 defined in article two hundred twenty of the penal law,] or [one-sev-
20 enth] one-quarter of the term of the determinate sentence, whichever
21 allowance results in the largest unexpired time to run.
22 (f) A person serving one or more indeterminate sentences and one or
23 more determinate sentences which run consecutively may receive a merit
24 time allowance not to exceed the sum of [one-sixth] one-half of the
25 minimum or aggregate minimum period of the indeterminate sentence or
26 sentences imposed [for an offense other than an A-I felony offense
27 defined in article two hundred twenty of the penal law, one-third of the
28 minimum or aggregate minimum period of the indeterminate sentence or
29 sentences imposed for an A-I felony offense defined in article two
30 hundred twenty of the penal law] and [one-seventh] one-quarter of the
31 term or aggregate term of the determinate sentence or sentences.
32 (g) The provisions of this subdivision shall apply to persons in
33 custody serving [an] a determinate or indeterminate sentence on the
34 effective date of this subdivision as well as to persons sentenced to
35 [an] a determinate or indeterminate sentence on and after the effective
36 date of this subdivision [and prior to September first, two thousand
37 five and to persons sentenced to a determinate sentence prior to Septem-
38 ber first, two thousand eleven for a felony as defined in article two
39 hundred twenty or two hundred twenty-one of the penal law]. The merit
40 time allowances set forth in this subdivision shall apply retroactively,
41 and shall be credited toward every incarcerated individual's sentence
42 within ninety days of the effective date of the chapter of the laws of
43 two thousand twenty-two that amended this subdivision.
44 [2-b. Notwithstanding the foregoing, if a person is serving more than
45 one indeterminate sentence, at least one of which is imposed for a class
46 A-I felony offense defined in article two hundred twenty of the penal
47 law, the authorized merit time allowance granted pursuant to paragraph
48 (d) of subdivision one of this section shall be calculated as follows:
49 (a) In the event a person is serving two or more indeterminate
50 sentences with different minimum periods which run concurrently, the
51 merit time allowance shall be based upon the sentence with the longest
52 unexpired minimum period. If the sentence with the longest unexpired
53 minimum period was imposed for a class A-I felony, the merit time credit
54 shall be one-third of such sentence's minimum period; if such sentence
55 was imposed for an offense other than a class A-I felony, such merit
56 time credit shall be one-sixth of such sentence's minimum period.
S. 7873--A 6
1 Provided, however, that where the minimum period of any other concurrent
2 indeterminate sentence is greater than such reduced minimum period, the
3 minimum period of such other concurrent indeterminate sentence shall
4 also be reduced but only to the extent that the minimum period of such
5 other concurrent sentence, as so reduced, is equal to the reduced mini-
6 mum period of such sentence with the longest unexpired minimum period to
7 run.
8 (b) A person serving two or more indeterminate sentences with the same
9 minimum periods which run concurrently, and no concurrent indeterminate
10 sentence with any greater minimum period, shall have the minimum period
11 of each such sentence reduced in the amount of one-third of such minimum
12 period if all such sentences were imposed for a class A-I felony.
13 (c) A person serving two or more indeterminate sentences that run
14 consecutively shall have the aggregate minimum period of such sentences
15 reduced in the amount of one-third of such aggregate minimum period of
16 the sentences imposed for a class A-I felony, plus one-sixth of such
17 aggregate minimum period of the sentences imposed for an offense other
18 than a class A-I felony.]
19 3. The commissioner of corrections and community supervision shall
20 promulgate rules and regulations for the fair and equitable granting,
21 withholding, forfeiture, cancellation and restoration of allowances
22 authorized by this section in accordance with the criteria herein speci-
23 fied. Such rules and regulations shall specify procedures to ensure that
24 similarly situated incarcerated persons are treated similarly with
25 respect to the granting, withholding, forfeiture or cancellation of
26 allowances, and include provisions designating the person or committee
27 in each correctional institution delegated to make discretionary deter-
28 minations with respect to the allowances, the books and records to be
29 kept, and a procedure for review of the institutional determinations by
30 the commissioner.
31 4. [No person shall have the right to demand or require the allowances
32 authorized by this section. The decision of the commissioner of
33 corrections and community supervision as to the granting, withholding,
34 forfeiture, cancellation or restoration of such allowances shall be
35 final and shall not be reviewable if made in accordance with law.
36 5.] Time allowances granted prior to any release to community super-
37 vision shall be forfeited and shall not be restored if the released
38 person is returned to an institution under the jurisdiction of the state
39 department of corrections and community supervision for violation of
40 community supervision or by reason of a conviction for a crime committed
41 while on community supervision. A person who is so returned may, howev-
42 er, subsequently receive time allowances against the remaining portion
43 of [his or her] their term, maximum term or aggregate maximum term
44 pursuant to this section [and provided such remaining portion of his or
45 her term, maximum term, or aggregate maximum term is more than one
46 year].
47 [6.] 5. Upon commencement of an indeterminate or a determinate
48 sentence the provisions of this section shall be furnished to the person
49 serving the sentence and the meaning of same shall be fully explained to
50 [him] them by a person designated by the commissioner to perform such
51 duty.
52 § 4. Section 804 of the correction law, as added by chapter 680 of the
53 laws of 1967, subdivisions 1 and 2 as amended by chapter 145 of the laws
54 of 1976, and subdivision 6 as amended by section 39 of subpart B of part
55 C of chapter 62 of the laws of 2011, is amended to read as follows:
S. 7873--A 7
1 § 804. Good behavior allowances against definite sentences. 1. Every
2 person confined in an institution serving a definite sentence of impri-
3 sonment [may] shall receive a time [allowances as discretionary
4 reductions of the term of his sentence not to exceed in the aggregate
5 one-third] allowance of one-half of the term imposed by the court. Such
6 allowances [may be granted for good behavior and efficient and willing
7 performance of duties assigned or progress and achievement in an
8 assigned treatment program, and may be withheld, forfeited or cancelled
9 in whole or in part for bad behavior, violation of institutional rules
10 or failure to perform properly in the duties or program assigned] shall
11 be credited toward a person's sentence on an annual pro rata basis, and
12 any credit awarded over the course of the calendar year shall vest on
13 the final day of the calendar year. Once vested, such credit shall not
14 be withheld, forfeited, or canceled.
15 1-a. Time allowances that have not yet been granted toward a person's
16 sentence may be withheld, forfeited or canceled in whole or in part for
17 violation of institutional rules, as demonstrated at a hearing by a
18 preponderance of the evidence. Such restrictions shall be limited to the
19 pro rata share of credit within the calendar year that the offense is
20 committed. If such time allowance is withheld, forfeited or canceled in
21 whole or in part, further allowances, not to exceed one-half of the term
22 imposed by the court, may be reinstated for good behavior and efficient
23 and willing performance of duties assigned or progress and achievement
24 in an assigned treatment program. Following any final determination
25 withholding, forfeiting, or canceling a time allowance, the incarcerated
26 person shall have the right to take an administrative appeal to the
27 sheriff and shall be advised of the right to seek legal assistance in
28 the taking of such appeal. The sheriff shall adopt regulations in
29 accordance with this provision.
30 2. If a person is serving more than one sentence, the authorized
31 allowances may be granted separately against the term of each sentence
32 or, where consecutive sentences are involved, against the aggregate
33 term. Allowances based upon sentences of less than one month may be
34 granted, and in such case the maximum allowance shall be one day for
35 every [three] two days of the sentence. In no case, however, shall the
36 total of all allowances granted to any such person exceed [one-third]
37 one-half of the time [he] they would be required to serve, computed
38 without regard to this section.
39 3. [No person shall have the right to demand or require the allowances
40 authorized by this section. The decision of the sheriff, superintendent,
41 warden or other person in charge of the institution, or where such
42 institution is under the jurisdiction of a county or city department the
43 decision of the head of such department, as to the granting, withhold-
44 ing, forfeiture, cancellation or restoration of such allowances shall be
45 final and shall not be reviewable if made in accordance with law.
46 4.] A person who has earned a reduction of sentence pursuant to this
47 section and who has been conditionally released under subdivision two of
48 section 70.40 of the penal law shall not forfeit such reduction by
49 reason of conduct causing [his] their return to the institution.
50 Provided, nevertheless, that such reduction may be forfeited by reason
51 of subsequent conduct while serving the remainder of [his] their term.
52 [5.] 4. The state commission of correction shall promulgate record
53 keeping rules and regulations for the fair and equitable granting, with-
54 holding, forfeiture, cancellation and restoration of allowances author-
55 ized by this section. Such rules and regulations shall specify proce-
56 dures to ensure that similarly situated incarcerated persons are treated
S. 7873--A 8
1 similarly with respect to the granting, withholding, forfeiture or
2 cancellation of allowances.
3 [6.] 5. Notwithstanding anything to the contrary in this section, in
4 any case where a person is serving a definite sentence in an institution
5 under the jurisdiction of the state department of corrections and commu-
6 nity supervision, [subdivisions] subdivision three [and four] of section
7 eight hundred three of this [chapter] article shall apply.
8 [7.] 6. Upon commencement of any definite sentence the provisions of
9 this section shall be furnished to the person serving the sentence and
10 the meaning of same shall be fully explained to [him] them by an officer
11 designated in the regulation to perform such duty.
12 § 5. Section 804-a of the correction law, as added by chapter 220 of
13 the laws of 1987, is amended to read as follows:
14 § 804-a. Good behavior allowances for certain civil commitments. 1.
15 Every person confined in an institution serving a civil commitment for a
16 fixed period of time, whose release is not conditional upon any act
17 within [his] their power to perform, [may] shall receive time allowances
18 as discretionary reductions of the term of [his] their commitment not to
19 exceed, in the aggregate, [one-third] one-half of the term imposed by
20 the court. Such allowances [may be granted for good behavior and effi-
21 cient and willing performance of duties assigned or progress and
22 achievement in an assigned treatment program, and may be withheld,
23 forfeited or cancelled in whole or in part for bad behavior, violation
24 of institutional rules or failure to perform properly in the duties or
25 program assigned] shall be credited toward a person's sentence on an
26 annual pro rata basis, and any credit awarded over the course of the
27 calendar year shall vest on the final day of the calendar year. Once
28 vested, such credit shall not be withheld, forfeited, or canceled.
29 1-a. Time allowances that have not yet been granted toward a person's
30 sentence may be withheld, forfeited or canceled in whole or in part for
31 violation of institutional rules, as demonstrated at a hearing by a
32 preponderance of the evidence. Such restrictions shall be limited to the
33 pro rata share of credit within the calendar year that the offense is
34 committed. If such time allowance is withheld, forfeited or canceled in
35 whole or in part, further allowances, not to exceed one-half of the term
36 imposed by the court, may be reinstated for good behavior and efficient
37 and willing performance of duties assigned or progress and achievement
38 in an assigned treatment program. Following any final determination
39 withholding, forfeiting, or canceling a time allowance, the incarcerated
40 person shall have the right to take an administrative appeal to the
41 central office of the department and shall be advised of the right to
42 seek legal assistance in the taking of such appeal. The department shall
43 adopt regulations in accordance with this provision.
44 2. Allowances based upon commitments of less than one month may be
45 granted, and in such case the maximum allowances shall be one day for
46 every [three] two days of the commitment. 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
56 be final and shall not be reviewable if made in accordance with law.
S. 7873--A 9
1 4.] The state commission of correction shall promulgate record keeping
2 rules and regulations for the granting, withholding, forfeiture, cancel-
3 lation and restoration of allowances authorized by this section.
4 [5.] 4. Upon commencement of any civil commitment as described in
5 subdivision one of this section, the provisions of this section shall be
6 furnished to the person serving the commitment and the meaning of same
7 shall be fully explained to [him] them by an officer designated in the
8 regulation to perform such duty.
9 § 6. Section 865 of the correction law, as added by chapter 261 of the
10 laws of 1987, subdivisions 1 and 2 as amended by chapter 322 of the laws
11 of 2021, is amended to read as follows:
12 § 865. Definitions. As used in this article, [the following terms
13 mean:
14 1. "Eligible incarcerated individual" means a person sentenced to an
15 indeterminate term of imprisonment who will become eligible for release
16 on parole within three years or sentenced to a determinate term of
17 imprisonment who will become eligible for conditional release within
18 three years, who has not reached the age of fifty years, who has not
19 previously been convicted of a violent felony as defined in article
20 seventy of the penal law, or a felony in any other jurisdiction which
21 includes all of the essential elements of any such violent felony, upon
22 which an indeterminate or determinate term of imprisonment was imposed
23 and who was between the ages of sixteen and fifty years at the time of
24 commission of the crime upon which his or her present sentence was
25 based. Notwithstanding the foregoing, no person who is convicted of any
26 of the following crimes shall be deemed eligible to participate in this
27 program: (a) a violent felony offense as defined in article seventy of
28 the penal law; provided, however, that a person who is convicted of
29 burglary in the second degree as defined in subdivision two of section
30 140.25 of the penal law, or robbery in the second degree as defined in
31 subdivision one of section 160.10 of the penal law, or an attempt there-
32 of, is eligible to participate, (b) an A-I felony offense, (c) any homi-
33 cide offense as defined in article one hundred twenty-five of the penal
34 law, (d) any felony sex offense as defined in article one hundred thirty
35 of the penal law and (e) any escape or absconding offense as defined in
36 article two hundred five of the penal law.
37 2. "Shock] "shock incarceration program" means a program pursuant to
38 which eligible incarcerated individuals are selected to participate in
39 the program and serve a period of six months in a shock incarceration
40 facility, which shall provide rigorous physical activity, intensive
41 regimentation and discipline and rehabilitation therapy and programming.
42 Such incarcerated individuals may be selected either: (i) at a reception
43 center; or (ii) at a general confinement facility [when the otherwise
44 eligible incarcerated individual then becomes eligible for release on
45 parole within three years in the case of an indeterminate term of impri-
46 sonment, or then becomes eligible for conditional release within three
47 years in the case of a determinate term of imprisonment].
48 § 7. Section 867 of the correction law, as amended by chapter 322 of
49 the laws of 2021, is amended to read as follows:
50 § 867. Procedure for selection of participants in shock incarceration
51 program. 1. An [eligible] incarcerated individual may make an applica-
52 tion to the shock incarceration screening committee for permission to
53 participate in the shock incarceration program.
54 2. If the shock incarceration screening committee determines that an
55 incarcerated individual's participation in the shock incarceration
56 program is consistent with the safety of the community, the welfare of
S. 7873--A 10
1 the applicant and the rules and regulations of the department, the
2 committee shall forward the application to the commissioner or [his] a
3 designee for approval or disapproval.
4 2-a. Subdivisions one and two of this section shall apply to a judi-
5 cially sentenced shock incarceration incarcerated individual only to the
6 extent that the screening committee may determine whether the incarcer-
7 ated individual has a medical or mental health condition that will
8 render the incarcerated individual unable to successfully complete the
9 shock incarceration program, and the facility in which the incarcerated
10 individual will participate in such program. Notwithstanding subdivi-
11 sion five of this section, an incarcerated individual sentenced to shock
12 incarceration shall promptly commence participation in the program [when
13 such incarcerated individual is an eligible incarcerated individual
14 pursuant to subdivision one of section eight hundred sixty-five of this
15 article].
16 3. Applicants cannot participate in the shock incarceration program
17 unless they agree to be bound by all the terms and conditions thereof
18 and indicate such agreement by signing the memorandum of the program
19 immediately below a statement reading as follows:
20 "I accept the foregoing program and agree to be bound by the terms and
21 conditions thereof. I understand that my participation in the program is
22 a privilege that may be revoked at any time at the sole discretion of
23 the commissioner. I understand that I must successfully complete the
24 entire program to obtain a certificate of earned eligibility upon the
25 completion of said program, and in the event that I do not successfully
26 complete said program, for any reason, I will be transferred to a
27 nonshock incarceration correctional facility to continue service of my
28 sentence."
29 4. An incarcerated individual who has successfully completed a shock
30 incarceration program shall be eligible to receive such a certificate of
31 earned eligibility pursuant to section eight hundred five of this chap-
32 ter. Notwithstanding any other provision of law, an incarcerated indi-
33 vidual sentenced to a determinate sentence of imprisonment who has
34 successfully completed a shock incarceration program shall be eligible
35 to receive such a certificate of earned eligibility and shall be imme-
36 diately eligible to be conditionally released.
37 5. Participation in the shock incarceration program shall be a privi-
38 lege. Nothing contained in this article may be construed to confer upon
39 any incarcerated individual the right to participate or continue to
40 participate therein.
41 § 8. Clause (B) of subparagraph (ii) of paragraph (e) of subdivision 1
42 of section 70.30 of the penal law, as amended by chapter 3 of the laws
43 of 1995, is amended to read as follows:
44 (B) if the aggregate maximum term of the determinate sentence or
45 sentences is less than twenty years, the defendant shall be deemed to be
46 serving an indeterminate sentence the maximum term of which shall be
47 deemed to be twenty years. In such instances, the minimum sentence shall
48 be deemed to be ten years or [six-sevenths] one-half of the term or
49 aggregate maximum term of the determinate sentence or sentences, which-
50 ever is greater.
51 § 9. Clause (B) of subparagraph (iii) of paragraph (e) of subdivision
52 1 of section 70.30 of the penal law, as amended by chapter 3 of the laws
53 of 1995, is amended to read as follows:
54 (B) if the aggregate maximum term of the determinate sentence or
55 sentences is less than thirty years, the defendant shall be deemed to be
56 serving an indeterminate sentence the maximum term of which shall be
S. 7873--A 11
1 deemed to be thirty years. In such instances, the minimum sentence shall
2 be deemed to be fifteen years or [six-sevenths] one-half of the term or
3 aggregate maximum term of the determinate sentence or sentences, which-
4 ever is greater.
5 § 10. Clause (B) of subparagraph (v) of paragraph (e) of subdivision 1
6 of section 70.30 of the penal law, as amended by chapter 3 of the laws
7 of 1995, is amended to read as follows:
8 (B) if the aggregate maximum term of the determinate sentence or
9 sentences is less than forty years, the defendant shall be deemed to be
10 serving an indeterminate sentence the maximum term of which shall be
11 deemed to be forty years. In such instances, the minimum sentence shall
12 be deemed to be twenty years or [six-sevenths] one-half of the term or
13 aggregate maximum term of the determinate sentence or sentences, which-
14 ever is greater.
15 § 11. Clause (B) of subparagraph (vii) of paragraph (e) of subdivision
16 1 of section 70.30 of the penal law, as amended by chapter 3 of the laws
17 of 1995, is amended to read as follows:
18 (B) if the aggregate maximum term of the determinate sentence or
19 sentences is less than fifty years, the defendant shall be deemed to be
20 serving an indeterminate sentence the maximum term of which shall be
21 deemed to be fifty years. In such instances, the minimum sentence shall
22 be deemed to be twenty-five years or [six-sevenths] one-half of the term
23 or aggregate maximum term of the determinate sentence or sentences,
24 whichever is greater.
25 § 12. Paragraph (b) of subdivision 4 of section 70.30 of the penal
26 law, as amended by chapter 3 of the laws of 1995, is amended to read as
27 follows:
28 (b) In the case of a person serving a definite sentence, the total of
29 such allowances shall not exceed [one-third] one-half of [his] their
30 term or aggregate term and the allowances shall be applied as a credit
31 against such term.
32 § 13. Subparagraphs (iii) and (iv) of paragraph (a) of subdivision 1
33 of section 70.40 of the penal law, as amended by section 127-c of
34 subpart B of part C of chapter 62 of the laws of 2011, are amended to
35 read as follows:
36 (iii) A person who is serving one or more than one indeterminate
37 sentence of imprisonment and one or more than one determinate sentence
38 of imprisonment, which run concurrently may be paroled at any time after
39 the expiration of the minimum period of imprisonment of the indetermi-
40 nate sentence or sentences, or upon the expiration of [six-sevenths]
41 one-half of the term of imprisonment of the determinate sentence or
42 sentences, whichever is later.
43 (iv) A person who is serving one or more than one indeterminate
44 sentence of imprisonment and one or more than one determinate sentence
45 of imprisonment which run consecutively may be paroled at any time after
46 the expiration of the sum of the minimum or aggregate minimum period of
47 the indeterminate sentence or sentences and [six-sevenths] one-half of
48 the term or aggregate term of imprisonment of the determinate sentence
49 or sentences.
50 § 14. Paragraph (b) of subdivision 1 of section 70.40 of the penal
51 law, as amended by section 127-d-1 of subpart B of part C of chapter 62
52 of the laws of 2011, is amended to read as follows:
53 (b) A person who is serving one or more than one indeterminate or
54 determinate sentence of imprisonment shall, if [he or she so requests]
55 they request, be conditionally released from the institution in which
56 [he or she is] they are confined when the total good behavior time
S. 7873--A 12
1 allowed to [him or her] them, pursuant to the provisions of the
2 correction law, is equal to the unserved portion of [his or her] their
3 term, maximum term or aggregate maximum term; provided, however, that
4 (i) in no event shall a person serving one or more indeterminate
5 sentence of imprisonment and one or more determinate sentence of impri-
6 sonment which run concurrently be conditionally released until serving
7 at least [six-sevenths] one-half of the determinate term of imprisonment
8 which has the longest unexpired time to run and (ii) in no event shall a
9 person be conditionally released prior to the date on which such person
10 is first eligible for discretionary parole release. The conditions of
11 release, including those governing post-release supervision, shall be
12 such as may be imposed by the state board of parole in accordance with
13 the provisions of the executive law.
14 Every person so released shall be under the supervision of the state
15 department of corrections and community supervision for a period equal
16 to the unserved portion of the term, maximum term, aggregate maximum
17 term, or period of post-release supervision.
18 § 15. This act shall take effect immediately; provided, however, that
19 the amendments to section 803 of the correction law made by section
20 three of this act shall not affect the expiration of such section and
21 shall be deemed to expire therewith; provided, further that the amend-
22 ments to subdivision 2-b of section 803 of the correction law made by
23 section three of this act shall not affect the repeal of such subdivi-
24 sion and shall be deemed repealed therewith; provided further, however,
25 that the amendments to paragraph (e) of subdivision 1 and paragraph (b)
26 of subdivision four of section 70.30 of the penal law made by sections
27 eight, nine, ten, eleven, and twelve of this act shall not affect the
28 expiration of such paragraphs and shall be deemed to expire therewith;
29 and provided further, however, that the amendments to paragraphs (a) and
30 (b) of subdivision 1 of section 70.40 of the penal law made by sections
31 thirteen and fourteen of this act shall not affect the expiration of
32 such paragraphs and shall be deemed to expire therewith.
