STATE OF NEW YORK
________________________________________________________________________
4324
2019-2020 Regular Sessions
IN SENATE
March 7, 2019
___________
Introduced by Sen. SEPULVEDA -- 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 and the penal law, in relation to
temporary release eligibility for judicially ordered comprehensive
alcohol and substance abuse treatment
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 chapter 60 of the laws of 1994, the opening paragraph as
3 amended by chapter 320 of the laws of 2006, the closing paragraph as
4 amended by section 42 of subpart B of part C of chapter 62 of the laws
5 of 2011, is amended to read as follows:
6 2. "Eligible inmate" means: a person confined in an institution who is
7 eligible for release on parole or who will become eligible for release
8 on parole or conditional release within two years or who has completed a
9 judicially-ordered substance abuse treatment program in a state correc-
10 tional facility pursuant to subdivision six of section 60.04 of the
11 penal law. Provided, however, that a person under sentence for an
12 offense defined in paragraphs (a) and (b) of subdivision one of section
13 70.02 of the penal law, where such offense involved the use or threat-
14 ened use of a deadly weapon or dangerous instrument shall not be eligi-
15 ble to participate in a work release program until he or she is eligible
16 for release on parole or who will be eligible for release on parole or
17 conditional release within eighteen months. Provided, further, however,
18 that a person under a determinate sentence as a second felony drug
19 offender for a class B felony offense defined in article two hundred
20 twenty of the penal law, who was sentenced pursuant to section 70.70 of
21 such law, shall not be eligible to participate in a temporary release
22 program until the time served under imprisonment for his or her determi-
23 nate sentence, including any jail time credited pursuant to the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04522-01-9
S. 4324 2
1 provisions of article seventy of the penal law, shall be at least eigh-
2 teen months. In the case of a person serving an indeterminate sentence
3 of imprisonment imposed pursuant to the penal law in effect after
4 September one, nineteen hundred sixty-seven, for the purposes of this
5 article parole eligibility shall be upon the expiration of the minimum
6 period of imprisonment fixed by the court or where the court has not
7 fixed any period, after service of the minimum period fixed by the state
8 board of parole. If an inmate is denied release on parole, such inmate
9 shall not be deemed an eligible inmate until he or she is within two
10 years of his or her next scheduled appearance before the state parole
11 board. In any case where an inmate is denied release on parole while
12 participating in a temporary release program, the department shall
13 review the status of the inmate to determine if continued placement in
14 the program is appropriate. No person convicted of any escape or
15 absconding offense defined in article two hundred five of the penal law
16 shall be eligible for temporary release. Further, no person under
17 sentence for aggravated harassment of an employee by an inmate as
18 defined in section 240.32 of the penal law for, any homicide offense
19 defined in article one hundred twenty-five of the penal law, for any sex
20 offense defined in article one hundred thirty of the penal law, or for
21 an offense defined in section 255.25, 255.26 or 255.27 of the penal law
22 shall be eligible to participate in a work release program as defined in
23 subdivision three of this section. Nor shall any person under sentence
24 for any sex offense defined in article one hundred thirty of the penal
25 law be eligible to participate in a community services program as
26 defined in subdivision five of this section. Notwithstanding the forego-
27 ing, no person who is an otherwise eligible inmate who is under sentence
28 for a crime involving: (a) infliction of serious physical injury upon
29 another as defined in the penal law or (b) any other offense involving
30 the use or threatened use of a deadly weapon may participate in a tempo-
31 rary release program without the written approval of the commissioner.
32 The commissioner shall promulgate regulations giving direction to the
33 temporary release committee at each institution in order to aid such
34 committees in carrying out this mandate.
35 The governor, by executive order, may exclude or limit the partic-
36 ipation of any class of otherwise eligible inmates from participation in
37 a temporary release program. Nothing in this paragraph shall be
38 construed to affect either the validity of any executive order previous-
39 ly issued limiting the participation of otherwise eligible inmates in
40 such program or the authority of the commissioner to impose appropriate
41 regulations limiting such participation.
42 § 2. Subdivision 2 of section 851 of the correction law, as amended by
43 chapter 447 of the laws of 1991, the opening paragraph as amended by
44 chapter 252 of the laws of 2005, and the closing paragraph as amended by
45 section 43 of subpart B of part C of chapter 62 of the laws of 2011, is
46 amended to read as follows:
47 2. "Eligible inmate" means: a person confined in an institution who is
48 eligible for release on parole or who will become eligible for release
49 on parole or conditional release within two years or who has completed a
50 judicially-ordered substance abuse treatment program in a state correc-
51 tional facility pursuant to subdivision six of section 60.04 of the
52 penal law. Provided, that a person under a determinate sentence as a
53 second felony drug offender for a class B felony offense defined in
54 article two hundred twenty of the penal law, who was sentenced pursuant
55 to section 70.70 of such law, shall not be eligible to participate in a
56 temporary release program until the time served under imprisonment for
S. 4324 3
1 his or her determinate sentence, including any jail time credited pursu-
2 ant to the provisions of article seventy of the penal law, shall be at
3 least eighteen months. In the case of a person serving an indeterminate
4 sentence of imprisonment imposed pursuant to the penal law in effect
5 after September one, nineteen hundred sixty-seven, for the purposes of
6 this article parole eligibility shall be upon the expiration of the
7 minimum period of imprisonment fixed by the court or where the court has
8 not fixed any period, after service of the minimum period fixed by the
9 state board of parole. If an inmate is denied release on parole, such
10 inmate shall not be deemed an eligible inmate until he or she is within
11 two years of his or her next scheduled appearance before the state
12 parole board. In any case where an inmate is denied release on parole
13 while participating in a temporary release program, the department shall
14 review the status of the inmate to determine if continued placement in
15 the program is appropriate. No person convicted of any escape or
16 absconding offense defined in article two hundred five of the penal law
17 shall be eligible for temporary release. Nor shall any person under
18 sentence for any sex offense defined in article one hundred thirty of
19 the penal law be eligible to participate in a community services program
20 as defined in subdivision five of this section. Notwithstanding the
21 foregoing, no person who is an otherwise eligible inmate who is under
22 sentence for a crime involving: (a) infliction of serious physical inju-
23 ry upon another as defined in the penal law, (b) a sex offense involving
24 forcible compulsion, or (c) any other offense involving the use or
25 threatened use of a deadly weapon may participate in a temporary release
26 program without the written approval of the commissioner. The commis-
27 sioner shall promulgate regulations giving direction to the temporary
28 release committee at each institution in order to aid such committees in
29 carrying out this mandate.
30 The governor, by executive order, may exclude or limit the partic-
31 ipation of any class of otherwise eligible inmates from participation in
32 a temporary release program. Nothing in this paragraph shall be
33 construed to affect either the validity of any executive order previous-
34 ly issued limiting the participation of otherwise eligible inmates in
35 such program or the authority of the commissioner to impose appropriate
36 regulations limiting such participation.
37 § 3. Subdivision 2 of section 851 of the correction law, as added by
38 chapter 472 of the laws of 1969, is amended to read as follows:
39 2. "Eligible inmate" means a person confined in an institution where a
40 work release program has been established who is eligible for release on
41 parole or who will become eligible for release on parole within one year
42 or who has completed a judicially-ordered substance abuse treatment
43 program in a state correctional facility pursuant to subdivision six of
44 section 60.04 of the penal law.
45 § 4. Subdivision 6 of section 60.04 of the penal law, as amended by
46 section 120 of subpart B of part C of chapter 62 of the laws of 2011, is
47 amended to read as follows:
48 6. Substance abuse treatment. When the court imposes a sentence of
49 imprisonment which requires a commitment to the state department of
50 corrections and community supervision upon a person who stands convicted
51 of a controlled substance or marihuana offense, the court may, upon
52 motion of the defendant in its discretion, issue an order directing that
53 the department of corrections and community supervision enroll the
54 defendant in the comprehensive alcohol and substance abuse treatment
55 program in an alcohol and substance abuse correctional annex as defined
56 in subdivision eighteen of section two of the correction law, provided
S. 4324 4
1 that the defendant will satisfy the statutory eligibility criteria for
2 participation in such program. Notwithstanding the foregoing provisions
3 of this subdivision, any defendant to be enrolled in such program pursu-
4 ant to this subdivision shall be governed by the same rules and regu-
5 lations promulgated by the department of corrections and community
6 supervision, including without limitation those rules and regulations
7 establishing requirements for completion and those rules and regulations
8 governing discipline and removal from the program. Such defendant shall
9 be deemed eligible for temporary release pursuant to subdivision two of
10 section eight hundred fifty-one of the correction law upon completion of
11 such program. No such period of court ordered corrections based drug
12 abuse treatment pursuant to this subdivision shall be required to extend
13 beyond the defendant's conditional release date.
14 § 5. This act shall take effect on the sixtieth day after it shall
15 have become a law; provided however, that the amendments to subdivision
16 2 of section 851 of the correction law made by section one of this act
17 shall be subject to the expiration and reversion of such subdivision and
18 section pursuant to subdivision (c) of section 46 of chapter 60 of the
19 laws of 1994 and section 10 of chapter 339 of the laws of 1972, as
20 amended, when upon such date the provisions of section two of this act
21 shall take effect; provided further, that the amendments to subdivision
22 2 of section 851 of the correction law made by section two of this act
23 shall expire on the same date as subdivision (c) of section 46 of chap-
24 ter 60 of the laws of 1994, section 10 of chapter 339 of the laws of
25 1972, and section 5 of chapter 554 of the laws of 1986, as amended, when
26 upon such date the provisions of section three of this act shall take
27 effect.