Amd S803, rpld S803-b, Cor L; amd S41, Chap 738 of 2004; amd S632-a, Exec L
Relates to controlled substances and indeterminate sentences; relates to the expansion of merit time and repeals provisions relating to the allowance of limited credit time for inmates.
STATE OF NEW YORK
________________________________________________________________________
S. 338 A. 154
2011-2012 Regular Sessions
SENATE - ASSEMBLY(Prefiled)
January 5, 2011
___________
IN SENATE -- Introduced by Sen. MONTGOMERY -- read twice and ordered
printed, and when printed to be committed to the Committee on Crime
Victims, Crime and Correction
IN ASSEMBLY -- Introduced by M. of A. AUBRY -- 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, the executive law, in relation
to merit time, 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, as added by section 7 of
3 chapter 738 of the laws of 2004, are amended to read as follows:
4 (i) Except as provided in subparagraph (ii) of this paragraph, every
5 person under the custody of the department or confined in a facility in
6 the department of mental hygiene serving an indeterminate sentence of
7 imprisonment with a minimum period of one year or more or a determinate
8 sentence of imprisonment of one year or more [imposed pursuant to
9 section 70.70 or 70.71 of the penal law,] may earn a merit time allow-
10 ance.
11 (ii) Such merit time allowance shall not be available to any person
12 serving [an indeterminate] a sentence [authorized for an A-I felony
13 offense, other than an A-I felony offense defined in article two hundred
14 twenty of the penal law, or any sentence imposed for a violent felony
15 offense as defined in section 70.02 of the penal law, manslaughter in
16 the second degree, vehicular manslaughter in the second degree, vehicu-
17 lar manslaughter in the first degree, criminally negligent homicide,]
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01343-01-1
S. 338 2 A. 154
1 imposed for murder in the first degree as defined in section 125.27 of
2 the penal law, an offense defined in article one hundred thirty of the
3 penal law, incest, [or] an offense defined in article two hundred
4 sixty-three of the penal law, [or] an act of terrorism as defined in
5 article four hundred ninety of the penal law, aggravated harassment of
6 an employee by an inmate, or an attempt or conspiracy to commit any such
7 offense.
8 (iv) Such merit time allowance may be granted when an inmate success-
9 fully participates in the work and treatment program assigned pursuant
10 to section eight hundred five of this article and when such inmate
11 [obtains a] achieves one of the following: (1) completes his or her
12 general equivalency diploma, his or her educational requirements as
13 determined by the department or satisfactorily completes coursework
14 sponsored by an institution of higher learning representing a semester
15 of academic training; (2) completes an alcohol and substance abuse
16 treatment [certificate, a vocational trade certificate following at
17 least six months of vocational programming or performs] program, or
18 completes a comparable program of a different type as determined by the
19 department, including, but not limited to, anger management, family
20 violence, or parenting; (3) completes a vocational training program or a
21 comparable and equivalent training program as determined by the depart-
22 ment; (4) performs satisfactorily for at least six months in a skilled
23 job assignment, including but not limited to, Inmate Program Aide (IPA),
24 law library clerk, medical/infirmary aide, children's center aide, and
25 food service worker; or (5) completes at least four hundred hours of
26 service as part of a community work crew.
27 Such allowance shall be withheld for any serious disciplinary infrac-
28 tion or upon a judicial determination that the person, while an inmate,
29 commenced or continued a civil action, proceeding or claim that was
30 found to be frivolous as defined in subdivision (c) of section eight
31 thousand three hundred three-a of the civil practice law and rules, or
32 an order of a federal court pursuant to rule 11 of the federal rules of
33 civil procedure imposing sanctions in an action commenced by a person,
34 while an inmate, against a state agency, officer or employee.
35 § 2. Subparagraphs (i), (ii) and (iv) of paragraph (d) of subdivision
36 1 of section 803 of the correction law, as added by section 10-a of
37 chapter 738 of the laws of 2004, are amended to read as follows:
38 (i) Except as provided in subparagraph (ii) of this paragraph, every
39 person under the custody of the department or confined in a facility in
40 the department of mental hygiene serving an indeterminate sentence of
41 imprisonment with a minimum period of one year or more or a determinate
42 sentence of imprisonment of one year or more [imposed pursuant to
43 section 70.70 or 70.71 of the penal law,] may earn a merit time allow-
44 ance.
45 (ii) Such merit time allowance shall not be available to any person
46 serving [an indeterminate] a sentence [authorized for an A-I felony
47 offense, other than an A-I felony offense defined in article two hundred
48 twenty of the penal law, or any sentence imposed for a violent felony
49 offense as defined in section 70.02 of the penal law, manslaughter in
50 the second degree, vehicular manslaughter in the second degree, vehicu-
51 lar manslaughter in the first degree, criminally negligent homicide,]
52 imposed for murder in the first degree as defined in section 125.27 of
53 the penal law, an offense defined in article one hundred thirty of the
54 penal law, incest, [or] an offense defined in article two hundred
55 sixty-three of the penal law, [or] an act of terrorism as defined in
56 article four hundred ninety of the penal law, aggravated harassment of
S. 338 3 A. 154
1 an employee by an inmate, or an attempt or conspiracy to commit any such
2 offense.
3 (iv) Such merit time allowance may be granted when an inmate success-
4 fully participates in the work and treatment program assigned pursuant
5 to section eight hundred five of this article and when such inmate
6 [obtains a] achieves one of the following: (1) completes his or her
7 general equivalency diploma, his or her educational requirements as
8 determined by the department or satisfactorily completes coursework
9 sponsored by an institution of higher learning representing a semester
10 of academic training; (2) completes an alcohol and substance abuse
11 treatment [certificate, a vocational trade certificate following at
12 least six months of vocational programming or performs] program, or
13 completes a comparable program of a different type as determined by the
14 department, including, but not limited to, anger management, family
15 violence, or parenting; (3) completes a vocational training program or a
16 comparable and equivalent training program as determined by the depart-
17 ment; (4) performs satisfactorily for at least six months in a skilled
18 job assignment, including but not limited to, Inmate Program Aide (IPA),
19 law library clerk, medical/infirmary aide, children's center aide, and
20 food service worker; or (5) completes at least four hundred hours of
21 service as part of a community work crew.
22 Such allowance shall be withheld for any serious disciplinary infrac-
23 tion or upon a judicial determination that the person, while an inmate,
24 commenced or continued a civil action, proceeding or claim that was
25 found to be frivolous as defined in subdivision (c) of section eight
26 thousand three hundred three-a of the civil practice law and rules, or
27 an order of a federal court pursuant to rule 11 of the federal rules of
28 civil procedure imposing sanctions in an action commenced by a person,
29 while an inmate, against a state agency, officer or employee.
30 § 3. Subparagraph (v) of paragraph (d) of subdivision 1 of section 803
31 of the correction law, as added by section 7 of chapter 738 of the laws
32 of 2004, is amended to read as follows:
33 (v) The provisions of this paragraph shall apply to persons in custody
34 serving an indeterminate sentence on the effective date of this para-
35 graph as well as to persons sentenced to an indeterminate sentence on
36 and after the effective date of this paragraph and prior to September
37 first, two thousand five and to persons sentenced to a determinate
38 sentence [prior to September first, two thousand eleven] for a felony as
39 defined in article two hundred twenty or two hundred twenty-one of the
40 penal law.
41 § 4. Subparagraph (v) of paragraph (d) of subdivision 1 of section 803
42 of the correction law, as added by section 10-a of chapter 738 of the
43 laws of 2004, is amended to read as follows:
44 (v) The provisions of this paragraph shall apply to persons in custody
45 serving an indeterminate sentence on the effective date of this para-
46 graph as well as to persons sentenced to an indeterminate sentence on
47 and after the effective date of this paragraph and prior to September
48 first, two thousand five and to persons sentenced to a determinate
49 sentence [prior to September first, two thousand eleven] for a felony as
50 defined in article two hundred twenty or two hundred twenty-one of the
51 penal law.
52 § 5. Paragraph (g) of subdivision 2-a of section 803 of the correction
53 law, as added by section 9 of chapter 738 of the laws of 2004, is
54 amended to read as follows:
55 (g) The provisions of this subdivision shall apply to persons in
56 custody serving an indeterminate sentence on the effective date of this
S. 338 4 A. 154
1 subdivision as well as to persons sentenced to an indeterminate sentence
2 on and after the effective date of this subdivision and prior to Septem-
3 ber first, two thousand five and to persons sentenced to a determinate
4 sentence [prior to September first, two thousand eleven] for a felony as
5 defined in article two hundred twenty or two hundred twenty-one of the
6 penal law.
7 § 6. Paragraph (g) of subdivision 2-a of section 803 of the correction
8 law, as added by section 11 of chapter 738 of the laws of 2004, is
9 amended to read as follows:
10 (g) The provisions of this subdivision shall apply to persons in
11 custody serving an indeterminate sentence on the effective date of this
12 subdivision as well as to persons sentenced to an indeterminate sentence
13 on and after the effective date of this subdivision and prior to Septem-
14 ber first, two thousand five and to persons sentenced to a determinate
15 sentence [prior to September first, two thousand eleven] for a felony as
16 defined in article two hundred twenty or two hundred twenty-one of the
17 penal law.
18 § 7. Section 803-b of the correction law is REPEALED.
19 § 8. Subdivision (c-1) of section 41 of chapter 738 of the laws of
20 2004 amending the correction law and other laws relating to controlled
21 substances and indeterminate sentences is amended to read as follows:
22 (c-1) the provisions of sections seven, eight, nine, ten and ten-a of
23 this act, and subdivision 2-a of section 803 of the correction law, as
24 added by section eleven of this act shall apply to persons in custody
25 serving an indeterminate sentence on the effective date of such
26 provisions as well as to persons sentenced to an indeterminate sentence
27 on and after the effective date of such provisions and prior to Septem-
28 ber 1, 2005 and to persons sentenced to a determinate sentence [prior to
29 September 1, 2011] for a felony as defined in article 220 or 221 of the
30 penal law;
31 § 9. Clause (C) of subparagraph (i) of paragraph (e) of subdivision 1
32 of section 632-a of the executive law, as amended by section 24 of part
33 A-1 of chapter 56 of the laws of 2010, is amended to read as follows:
34 (C) [an offense for which a merit time allowance may not be received
35 against the sentence pursuant to paragraph (d) of subdivision one of
36 section eight hundred three of the correction law] an A-I felony
37 offense, other than an A-I felony offense defined in article two hundred
38 twenty of the penal law, manslaughter in the second degree, vehicular
39 manslaughter in the second degree, vehicular manslaughter in the first
40 degree, criminally negligent homicide, an offense defined in article one
41 hundred thirty of the penal law, incest, an offense defined in article
42 two hundred sixty-three of the penal law, aggravated harassment of an
43 employee by an inmate;
44 § 10. This act shall take effect on the ninetieth day after it shall
45 have become a law and shall apply to: (i) persons in custody serving an
46 indeterminate or determinate sentence or sentences on the effective
47 date; (ii) persons sentenced to an indeterminate or determinate sentence
48 or sentences on or after the effective date; and (iii) persons who have
49 not completed service of an indeterminate or determinate sentence or
50 sentences imposed prior to the effective date; provided, however, that
51 the amendments to section 803 of the correction law made by sections
52 one, three, and five of this act shall be subject to the expiration and
53 reversion of such section pursuant to subdivision d of section 74 of
54 chapter 3 of the laws of 1995, as amended, when upon such date the
55 provisions of sections two, four and six of this act shall take effect.
