STATE OF NEW YORK
________________________________________________________________________
4688
2023-2024 Regular Sessions
IN SENATE
February 13, 2023
___________
Introduced by Sens. PARKER, BAILEY, BRESLIN, COMRIE, HOYLMAN-SIGAL,
KENNEDY, KRUEGER, RIVERA, SANDERS, 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 executive law, in relation to modifying the proce-
dure for interviews of parole applicants and to the disclosure of
parole applicant records
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph (a) of subdivision 2 of section 259-i of the
2 executive law, as amended by chapter 322 of the laws of 2021, subpara-
3 graph (i) as amended by section 14 of chapter 486 of the laws of 2022,
4 is amended to read as follows:
5 (a) (i) Except as provided in subparagraph (ii) of this paragraph, at
6 least [one month] three months prior to the date on which an [incarcer-
7 ated individual] a parole applicant may be paroled pursuant to subdivi-
8 sion one of section 70.40 of the penal law, a member or members as
9 determined by the rules of the board shall personally interview such
10 [incarcerated individual] parole applicant and determine whether he or
11 she should be paroled in accordance with the [guidelines] procedures
12 adopted pursuant to subdivision four of section two hundred fifty-nine-c
13 of this article. The interview shall take place with all parties pres-
14 ent in the same room. The interview shall be recorded audio-visually and
15 this recording shall be made available to the board and the parole
16 applicant or the parole applicant's representative only. At least one
17 month prior to the parole hearing parole applicants shall be provided
18 the opportunity to review all documents contained in their parole file
19 or that otherwise will be made available for the board's discretionary
20 release consideration. No documents shall be considered confidential
21 except as provided in subparagraph (i) of paragraph (c) of this subdivi-
22 sion. Records concerning or relating to the mental health examination
23 or treatment of the parole applicant shall be disclosed unless, in
24 accordance with the standards and procedures set forth in section 33.16
25 of the mental hygiene law, it is determined by a mental health practi-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01600-01-3
S. 4688 2
1 tioner that such disclosure can reasonably be expected to cause substan-
2 tial and identifiable harm to the parole applicant or others and that
3 this harm would outweigh the parole applicant's right of access to the
4 record. At least thirty days before the parole hearing, if requested by
5 the victim, as the term victim is defined in subdivision two of section
6 380.50 of the criminal procedure law, the following information shall be
7 provided to the victim, or the victim's representative: incarcerated
8 individual status reports; incarcerated individual's psychiatric evalu-
9 ation, if there is one available and only upon consent of the parole
10 applicant; and a copy of the parole applicant's "parole release plan" in
11 the event that the applicant submits one. If parole is not granted upon
12 such review, the [incarcerated individual] board will be required to
13 state in detail and not in conclusory terms the factors and reasons for
14 the denial and the specific requirements for actions to be taken,
15 programs or accomplishments to be completed, or changes in performance
16 or conduct to be made, or corrective action or actions to be taken, in
17 order to qualify for parole release. The board shall specify a date not
18 more than twenty-four months from such determination for reconsider-
19 ation. The parole applicant shall be informed in writing within two
20 weeks of such appearance of the factors and reasons for such denial of
21 parole[. Such reasons shall be given in detail and not in conclusory
22 terms. The board shall specify a date not more than twenty-four months
23 from such determination for reconsideration, and the procedures to be
24 followed upon reconsideration shall be the same] and the specific
25 requirements and shall be provided with a copy of the scored risk and
26 needs assessment instrument considered by the board. Within ninety days
27 of the hearing decision, the department shall provide to the parole
28 applicant access to the program or programs, activities and/or facili-
29 ties needed in order to provide the opportunity to fulfill the require-
30 ments set forth by the board. The parole applicant shall be scheduled
31 for a reappearance before the board upon completion of the specific
32 requirements as previously set forth by the board if such completion
33 occurs sooner than the date specified by the board. If the requirements
34 previously set forth by the board have been successfully completed and
35 the parole applicant's institutional record has been satisfactory during
36 the time between the previous and current parole hearing, release shall
37 be granted. If the [incarcerated individual] parole applicant is
38 released, he or she shall be given a copy of the conditions of parole.
39 Such conditions shall where appropriate, include a requirement that the
40 parolee comply with any restitution order, mandatory surcharge, sex
41 offender registration fee and DNA databank fee previously imposed by a
42 court of competent jurisdiction that applies to the parolee. The condi-
43 tions shall indicate which restitution collection agency established
44 under subdivision eight of section 420.10 of the criminal procedure law,
45 shall be responsible for collection of restitution, mandatory surcharge,
46 sex offender registration fees and DNA databank fees as provided for in
47 section 60.35 of the penal law and section eighteen hundred nine of the
48 vehicle and traffic law. If the incarcerated individual is released, he
49 or she shall also be notified in writing that his or her voting rights
50 will be restored upon release.
51 (ii) Any [incarcerated individual] parole applicant who is scheduled
52 for presumptive release pursuant to section eight hundred six of the
53 correction law shall not appear before the board as provided in subpara-
54 graph (i) of this paragraph unless such [incarcerated individual's]
55 parole applicant's scheduled presumptive release is forfeited, canceled,
56 or rescinded subsequently as provided in such law. In such event, the
S. 4688 3
1 [incarcerated individual] parole applicant shall appear before the board
2 for release consideration as provided in subparagraph (i) of this para-
3 graph as soon thereafter as is practicable.
4 § 2. Paragraph (a) of subdivision 2 of section 259-i of the executive
5 law, as amended by section 15 of chapter 486 of the laws of 2022, is
6 amended to read as follows:
7 (a) At least [one month] three months prior to the expiration of the
8 minimum period or periods of imprisonment fixed by the court or board, a
9 member or members as determined by the rules of the board shall
10 personally interview [an incarcerated individual] a parole applicant
11 serving an indeterminate sentence and determine whether he or she should
12 be paroled at the expiration of the minimum period or periods in accord-
13 ance with the procedures adopted pursuant to subdivision four of section
14 two hundred fifty-nine-c of this article. The interview shall take
15 place with all parties present in the same room. The interview shall be
16 recorded audio-visually and this recording shall be made available to
17 the board and the parole applicant or the parole applicant's represen-
18 tative only. At least one month prior to the parole hearing parole
19 applicants shall be provided the opportunity to review all documents
20 contained in their parole file or that otherwise will be made available
21 for the board's discretionary release consideration. No documents shall
22 be considered confidential except as provided in subparagraph (i) of
23 paragraph (c) of this subdivision. Records concerning or relating to the
24 mental health examination or treatment of the parole applicant shall be
25 disclosed unless, in accordance with the standards and procedures set
26 forth in section 33.16 of the mental hygiene law, it is determined by a
27 mental health practitioner that such disclosure can reasonably be
28 expected to cause substantial and identifiable harm to the parole appli-
29 cant or others and that this harm would outweigh the parole applicant's
30 right of access to the record. At least thirty days before the parole
31 hearing, if requested by the victim, as the term victim is defined in
32 subdivision two of section 380.50 of the criminal procedure law, the
33 following information shall be provided to the victim, or the victim's
34 representative: incarcerated individual status reports; incarcerated
35 individual's psychiatric evaluation, if there is one available and only
36 upon consent of the parole applicant; and a copy of the parole appli-
37 cant's "parole release plan" in the event that the applicant submits
38 one. If parole is not granted upon such review, the [incarcerated indi-
39 vidual] board will be required to state in detail and not in conclusory
40 terms the factors and reasons for the denial and the specific require-
41 ments for actions to be taken, programs or accomplishments to be
42 completed, or changes in performance or conduct to be made, or correc-
43 tive action or actions to be taken, in order to qualify for parole
44 release. The board shall specify a date not more than twenty-four months
45 from such determination for reconsideration. The parole applicant shall
46 be informed in writing within two weeks of such appearance of the
47 factors and reasons for such denial of parole[. Such reasons shall be
48 given in detail and not in conclusory terms. The board shall specify a
49 date not more than twenty-four months from such determination for recon-
50 sideration, and the procedures to be followed upon reconsideration shall
51 be the same] and the specific requirements and shall be provided with a
52 copy of the scored risk and needs assessment instrument considered by
53 the board. Within ninety days of the hearing decision, the department
54 shall provide to the parole applicant access to the program or programs,
55 activities and/or facilities needed in order to provide the opportunity
56 to fulfill the requirements set forth by the board. The parole applicant
S. 4688 4
1 shall be scheduled for a reappearance before the board upon completion
2 of the specific requirements as previously set forth by the board if
3 such completion occurs sooner than the date specified by the board. If
4 the requirements previously set forth by the board have been successful-
5 ly completed and the parole applicant's institutional record has been
6 satisfactory during the time between the previous and current parole
7 hearing, release shall be granted. If the [incarcerated individual]
8 parole applicant is released, he or she shall be given a copy of the
9 conditions of parole. Such conditions shall where appropriate, include a
10 requirement that the parolee comply with any restitution order and
11 mandatory surcharge previously imposed by a court of competent jurisdic-
12 tion that applies to the parolee. The conditions shall indicate which
13 restitution collection agency established under subdivision eight of
14 section 420.10 of the criminal procedure law, shall be responsible for
15 collection of restitution and mandatory surcharge as provided for in
16 section 60.35 of the penal law and section eighteen hundred nine of the
17 vehicle and traffic law. If the incarcerated individual is released, he
18 or she shall also be notified in writing that his or her voting rights
19 will be restored upon release.
20 § 3. Paragraph (c) of subdivision 2 of section 259-i of the executive
21 law, as amended by chapter 322 of the laws of 2021, is amended to read
22 as follows:
23 (c) [(A)] (i) Discretionary release on parole shall [not] be granted
24 [merely as a reward] for good conduct [or] and efficient performance of
25 duties while confined [but after considering if there is a reasonable
26 probability], and for preparedness for reentry and reintegration into
27 society thereby providing a reasonable basis to conclude that, if such
28 incarcerated individual is released, he or she will live and remain at
29 liberty without violating the law, and therefore that his or her release
30 is not incompatible with the welfare of society [and will not so depre-
31 cate the seriousness of his or her crime as to undermine respect for
32 law]. In making the parole release decision, the procedures adopted
33 pursuant to subdivision four of section two hundred fifty-nine-c of this
34 article shall require that the [following be considered] decision be
35 based upon the following considerations: [(i) the institutional record
36 including program goals and accomplishments, academic achievements,
37 vocational education, training or work assignments, therapy and inter-
38 actions with staff and incarcerated individuals] (A) preparedness for
39 reentry and reintegration as evidenced by the applicant's institutional
40 record pertaining to program goals and accomplishments as stated in the
41 facility performance reports, academic achievements, vocational educa-
42 tion, training or work assignments, therapy and interactions with staff
43 and other sentenced persons, and other indications of pro-social activ-
44 ity, change and transformation; [(ii)] (B) performance, if any, as a
45 participant in a temporary release program; [(iii)] (C) release plans
46 including community resources, employment, education and training and
47 support services available to the [incarcerated individual] parole
48 applicant; [(iv)] (D) any deportation order issued by the federal
49 government against the [incarcerated individual] parole applicant while
50 in the custody of the department and any recommendation regarding depor-
51 tation made by the commissioner of the department pursuant to section
52 one hundred forty-seven of the correction law; [(v)] (E) any current or
53 prior statement, whether supportive or critical, made to the board by
54 the crime victim or the victim's representative, where the crime victim
55 is deceased or is mentally or physically incapacitated, to assist the
56 board in determining whether at this time there is reasonable cause to
S. 4688 5
1 believe that the release of the parole applicant would create a present
2 danger to the victim or the victim's representative, or the extent of
3 the parole applicant's preparedness for reentry and reintegration as set
4 forth in clause (A) of this subparagraph; [(vi)] (F) the length of the
5 determinate sentence to which the incarcerated individual would be
6 subject had he or she received a sentence pursuant to section 70.70 or
7 section 70.71 of the penal law for a felony defined in article two
8 hundred twenty or article two hundred twenty-one of the penal law;
9 [(vii) the seriousness of the offense with due consideration to the type
10 of sentence, length of sentence and recommendations of the sentencing
11 court, the district attorney, the attorney for the incarcerated individ-
12 ual, the pre-sentence probation report as well as consideration of any
13 mitigating and aggravating factors, and activities following arrest
14 prior to confinement; and (viii) prior criminal record, including the
15 nature and pattern of offenses, adjustment to any previous probation or
16 parole supervision and institutional confinement] (G) participation and
17 performance, if any, in a reconciliation/restorative justice-type
18 conference with the victim or victim's representatives; (H) the progress
19 made towards the completion of the specific requirements previously set
20 forth by the board for the parole applicant, in the case of a reappear-
21 ance; and (I) the progress made towards achieving the programming and
22 treatment needs developed in the transitional accountability plan. The
23 board shall provide toll free telephone access for crime victims. In the
24 case of an oral statement made in accordance with subdivision one of
25 section 440.50 of the criminal procedure law, the parole board member
26 shall present a written report of the statement to the parole board. A
27 crime victim's representative shall mean [the crime victim's closest
28 surviving relative] a member of the family or domestic partner of such
29 crime victim, the committee or guardian of such person, or the legal
30 representative of any such person. Such statement submitted by the
31 victim or victim's representative may include information concerning
32 threatening or intimidating conduct toward the victim, the victim's
33 representative, or the victim's family, made by the person sentenced and
34 occurring after the sentencing. Such information may include, but need
35 not be limited to, the threatening or intimidating conduct of any other
36 person who or which is directed by the person sentenced. Any statement
37 by a victim or the victim's representative made to the board shall be
38 maintained by the department in the file provided to the board when
39 interviewing the incarcerated individual in consideration of release. A
40 victim or victim's representative who has submitted a written request to
41 the department for the transcript of such interview shall be provided
42 such transcript as soon as it becomes available.
43 [(B)] (ii) Where a crime victim or victim's representative as defined
44 in subparagraph [(A)] (i) of this paragraph, or other person submits to
45 the parole board a written statement concerning the release of [an
46 incarcerated individual] a parole applicant, the parole board shall keep
47 that individual's name and address confidential. With regard to any
48 statement from a judge or district attorney, the address, if residen-
49 tial, shall be kept confidential by the board.
50 § 4. This act shall take effect on the one hundred eightieth day after
51 it shall have become a law; provided that the amendments to paragraph
52 (a) of subdivision 2 of section 259-i of the executive law made by
53 section one of this act shall be subject to the expiration and reversion
54 of such paragraph as provided by section 74 of chapter 3 of the laws of
55 1995, as amended, when upon such date the provisions of section two of
56 this act shall take effect.
