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
________________________________________________________________________
1377
2013-2014 Regular Sessions
IN SENATE(Prefiled)
January 9, 2013
___________
Introduced by Sens. MONTGOMERY, DILAN -- read twice and ordered printed,
and when printed to be committed to the Committee on Crime Victims,
Crime and 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,]
18 imposed for murder in the first degree as defined in section 125.27 of
19 the penal law, an offense defined in article one hundred thirty of the
20 penal law, incest, [or] an offense defined in article two hundred
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03910-01-3
S. 1377 2
1 sixty-three of the penal law, [or] an act of terrorism as defined in
2 article four hundred ninety of the penal law, aggravated harassment of
3 an employee by an inmate, or an attempt or conspiracy to commit any such
4 offense.
5 (iv) Such merit time allowance may be granted when an inmate success-
6 fully participates in the work and treatment program assigned pursuant
7 to section eight hundred five of this article and when such inmate
8 [obtains a] achieves one of the following: (1) completes his or her
9 general equivalency diploma, his or her educational requirements as
10 determined by the department or satisfactorily completes coursework
11 sponsored by an institution of higher learning representing a semester
12 of academic training; (2) completes an alcohol and substance abuse
13 treatment [certificate, a vocational trade certificate following at
14 least six months of vocational programming or performs] program, or
15 completes a comparable program of a different type as determined by the
16 department, including, but not limited to, anger management, family
17 violence, or parenting; (3) completes a vocational training program or a
18 comparable and equivalent training program as determined by the depart-
19 ment; (4) performs satisfactorily for at least six months in a skilled
20 job assignment, including but not limited to, Inmate Program Aide (IPA),
21 law library clerk, medical/infirmary aide, children's center aide, and
22 food service worker; or (5) completes at least four hundred hours of
23 service as part of a community work crew.
24 Such allowance shall be withheld for any serious disciplinary infrac-
25 tion or upon a judicial determination that the person, while an inmate,
26 commenced or continued a civil action, proceeding or claim that was
27 found to be frivolous as defined in subdivision (c) of section eight
28 thousand three hundred three-a of the civil practice law and rules, or
29 an order of a federal court pursuant to rule 11 of the federal rules of
30 civil procedure imposing sanctions in an action commenced by a person,
31 while an inmate, against a state agency, officer or employee.
32 § 2. Subparagraphs (i), (ii) and (iv) of paragraph (d) of subdivision
33 1 of section 803 of the correction law, as added by section 10-a of
34 chapter 738 of the laws of 2004, are amended to read as follows:
35 (i) Except as provided in subparagraph (ii) of this paragraph, every
36 person under the custody of the department or confined in a facility in
37 the department of mental hygiene serving an indeterminate sentence of
38 imprisonment with a minimum period of one year or more or a determinate
39 sentence of imprisonment of one year or more [imposed pursuant to
40 section 70.70 or 70.71 of the penal law,] may earn a merit time allow-
41 ance.
42 (ii) Such merit time allowance shall not be available to any person
43 serving [an indeterminate] a sentence [authorized for an A-I felony
44 offense, other than an A-I felony offense defined in article two hundred
45 twenty of the penal law, or any sentence imposed for a violent felony
46 offense as defined in section 70.02 of the penal law, manslaughter in
47 the second degree, vehicular manslaughter in the second degree, vehicu-
48 lar manslaughter in the first degree, criminally negligent homicide,]
49 imposed for murder in the first degree as defined in section 125.27 of
50 the penal law, an offense defined in article one hundred thirty of the
51 penal law, incest, [or] an offense defined in article two hundred
52 sixty-three of the penal law, [or] an act of terrorism as defined in
53 article four hundred ninety of the penal law, aggravated harassment of
54 an employee by an inmate, or an attempt or conspiracy to commit any such
55 offense.
S. 1377 3
1 (iv) Such merit time allowance may be granted when an inmate success-
2 fully participates in the work and treatment program assigned pursuant
3 to section eight hundred five of this article and when such inmate
4 [obtains a] achieves one of the following: (1) completes his or her
5 general equivalency diploma, his or her educational requirements as
6 determined by the department or satisfactorily completes coursework
7 sponsored by an institution of higher learning representing a semester
8 of academic training; (2) completes an alcohol and substance abuse
9 treatment [certificate, a vocational trade certificate following at
10 least six months of vocational programming or performs] program, or
11 completes a comparable program of a different type as determined by the
12 department, including, but not limited to, anger management, family
13 violence, or parenting; (3) completes a vocational training program or a
14 comparable and equivalent training program as determined by the depart-
15 ment; (4) performs satisfactorily for at least six months in a skilled
16 job assignment, including but not limited to, Inmate Program Aide (IPA),
17 law library clerk, medical/infirmary aide, children's center aide, and
18 food service worker; or (5) completes at least four hundred hours of
19 service as part of a community work crew.
20 Such allowance shall be withheld for any serious disciplinary infrac-
21 tion or upon a judicial determination that the person, while an inmate,
22 commenced or continued a civil action, proceeding or claim that was
23 found to be frivolous as defined in subdivision (c) of section eight
24 thousand three hundred three-a of the civil practice law and rules, or
25 an order of a federal court pursuant to rule 11 of the federal rules of
26 civil procedure imposing sanctions in an action commenced by a person,
27 while an inmate, against a state agency, officer or employee.
28 § 3. Subparagraph (v) of paragraph (d) of subdivision 1 of section 803
29 of the correction law, as added by section 7 of chapter 738 of the laws
30 of 2004, is amended to read as follows:
31 (v) The provisions of this paragraph shall apply to persons in custody
32 serving an indeterminate sentence on the effective date of this para-
33 graph as well as to persons sentenced to an indeterminate sentence on
34 and after the effective date of this paragraph and prior to September
35 first, two thousand five and to persons sentenced to a determinate
36 sentence [prior to September first, two thousand eleven] for a felony as
37 defined in article two hundred twenty or two hundred twenty-one of the
38 penal law.
39 § 4. Subparagraph (v) of paragraph (d) of subdivision 1 of section 803
40 of the correction law, as added by section 10-a of chapter 738 of the
41 laws of 2004, is amended to read as follows:
42 (v) The provisions of this paragraph shall apply to persons in custody
43 serving an indeterminate sentence on the effective date of this para-
44 graph as well as to persons sentenced to an indeterminate sentence on
45 and after the effective date of this paragraph and prior to September
46 first, two thousand five and to persons sentenced to a determinate
47 sentence [prior to September first, two thousand eleven] for a felony as
48 defined in article two hundred twenty or two hundred twenty-one of the
49 penal law.
50 § 5. Paragraph (g) of subdivision 2-a of section 803 of the correction
51 law, as added by section 9 of chapter 738 of the laws of 2004, is
52 amended to read as follows:
53 (g) The provisions of this subdivision shall apply to persons in
54 custody serving an indeterminate sentence on the effective date of this
55 subdivision as well as to persons sentenced to an indeterminate sentence
56 on and after the effective date of this subdivision and prior to Septem-
S. 1377 4
1 ber first, two thousand five and to persons sentenced to a determinate
2 sentence [prior to September first, two thousand eleven] for a felony as
3 defined in article two hundred twenty or two hundred twenty-one of the
4 penal law.
5 § 6. Paragraph (g) of subdivision 2-a of section 803 of the correction
6 law, as added by section 11 of chapter 738 of the laws of 2004, is
7 amended to read as follows:
8 (g) The provisions of this subdivision shall apply to persons in
9 custody serving an indeterminate sentence on the effective date of this
10 subdivision as well as to persons sentenced to an indeterminate sentence
11 on and after the effective date of this subdivision and prior to Septem-
12 ber first, two thousand five and to persons sentenced to a determinate
13 sentence [prior to September first, two thousand eleven] for a felony as
14 defined in article two hundred twenty or two hundred twenty-one of the
15 penal law.
16 § 7. Section 803-b of the correction law is REPEALED.
17 § 8. Subdivision (c-1) of section 41 of chapter 738 of the laws of
18 2004 amending the correction law and other laws relating to controlled
19 substances and indeterminate sentences is amended to read as follows:
20 (c-1) the provisions of sections seven, eight, nine, ten and ten-a of
21 this act, and subdivision 2-a of section 803 of the correction law, as
22 added by section eleven of this act shall apply to persons in custody
23 serving an indeterminate sentence on the effective date of such
24 provisions as well as to persons sentenced to an indeterminate sentence
25 on and after the effective date of such provisions and prior to Septem-
26 ber 1, 2005 and to persons sentenced to a determinate sentence [prior to
27 September 1, 2011] for a felony as defined in article 220 or 221 of the
28 penal law;
29 § 9. Clause (C) of subparagraph (i) of paragraph (e) of subdivision 1
30 of section 632-a of the executive law, as amended by section 24 of part
31 A-1 of chapter 56 of the laws of 2010, is amended to read as follows:
32 (C) [an offense for which a merit time allowance may not be received
33 against the sentence pursuant to paragraph (d) of subdivision one of
34 section eight hundred three of the correction law] an A-I felony
35 offense, other than an A-I felony offense defined in article two hundred
36 twenty of the penal law, manslaughter in the second degree, vehicular
37 manslaughter in the second degree, vehicular manslaughter in the first
38 degree, criminally negligent homicide, an offense defined in article one
39 hundred thirty of the penal law, incest, an offense defined in article
40 two hundred sixty-three of the penal law, aggravated harassment of an
41 employee by an inmate;
42 § 10. This act shall take effect on the ninetieth day after it shall
43 have become a law and shall apply to: (i) persons in custody serving an
44 indeterminate or determinate sentence or sentences on the effective
45 date; (ii) persons sentenced to an indeterminate or determinate sentence
46 or sentences on or after the effective date; and (iii) persons who have
47 not completed service of an indeterminate or determinate sentence or
48 sentences imposed prior to the effective date; provided, however, that
49 the amendments to section 803 of the correction law made by sections
50 one, three, and five of this act shall be subject to the expiration and
51 reversion of such section pursuant to subdivision d of section 74 of
52 chapter 3 of the laws of 1995, as amended, when upon such date the
53 provisions of sections two, four and six of this act shall take effect.
