senate Bill S329

Amended

Relates to the accrual of merit time by certain inmates

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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  • 05 / Jan / 2011
    • REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION
  • 04 / Jan / 2012
    • REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION
  • 21 / Feb / 2012
    • NOTICE OF COMMITTEE CONSIDERATION - REQUESTED
  • 02 / Mar / 2012
    • AMEND AND RECOMMIT TO CRIME VICTIMS, CRIME AND CORRECTION
  • 02 / Mar / 2012
    • PRINT NUMBER 329A
  • 07 / Mar / 2012
    • DEFEATED IN CRIME VICTIMS, CRIME AND CORRECTION

Summary

Allows certain inmates to be granted a merit time allowance; allows inmates who are victims are able to prove that they were subjected to substantial physical, sexual or psychological abuse, that the abuse was inflicted by a member of their same family or household or a member of the person's immediate family, and that the abuse was a substantial factor in causing them to commit the crime to be eligible to earn merit time in the amount of one-third off either their minimum sentence (if inmate has an indeterminate sentence) or their flat sentence; allows such inmates to be eligible for presumptive release; expands the criteria that a person in custody of the department of correctional services may meet in order to earn merit time.

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Bill Details

Versions:
S329
S329A
Legislative Cycle:
2011-2012
Current Committee:
Senate Crime Victims, Crime And Correction
Law Section:
Correction Law
Laws Affected:
Amd §§803, 805, 806 & 851, Cor L
Versions Introduced in 2009-2010 Legislative Cycle:
S3438B

Sponsor Memo

BILL NUMBER:S329

TITLE OF BILL:
An act
to amend the correction law, in relation to merit time allowances

PURPOSE OF BILL:
This bill would allow domestic violence survivors incarcerated for
committing crimes as a result of the abuse they have endured, to earn
merit time and participate in temporary and early release programs.

SUMMARY OF PROVISIONS:
This bill allows inmates who can demonstrate that they are victims of
domestic violence who were subjected to substantial physical, sexual
or psychological abuse inflicted by a member of their same family or
household as that term is defined in section 530.11 of the criminal
procedure law or a member of the person's immediate family as that
term is defined in section 120.40 of the penal law, and that the
commission of the offense was a direct result of such abuse, to be
eligible to earn a merit time allowance.

The bill further allows such inmates who are serving an indeterminate
term to be eligible for presumptive release. Inmates serving a
sentence for a sex offense or an act of terrorism are not eligible
for the merit time or presumptive release provided for in the bill.

This bill also makes a conforming change to the work release statute
to allow inmates who are victims of domestic violence who commit
their crime as a result of abuse to be eligible for work release.

The bill requires the Department of Correctional Services to consult
with the Office for the Prevention of Domestic Violence in
implementing the provisions of the bill.

JUSTIFICATION:
Over the past 30 years, domestic violence has been increasingly
recognized as a serious national problem. Battering is the number one
cause of injury to women in the United States. Attacks by husbands on
wives result in more injuries requiring medical treatment than rapes,
muggings and auto accidents combined. New York has made significant
advances in curbing domestic violence. This legislation would build
on these advances by allowing inmates incarcerated for defending
themselves against their batterers or for committing crimes as a
result of the abuse they have endured to earn merit time allowances.

Established in New York in 1997, merit time allows DOCS to grant early
release to inmates who meet certain criteria. People convicted of
violent offenses - including inmates convicted of defending
themselves against their
abusers or of committing crimes because of abuse - are not currently
eligible for merit time.

The bill does not seek to diminish the seriousness of these crimes but
rather reflects a growing understanding of the prevalence of abuse
experienced by women prisoners and the unique situation of
incarcerated women who have experienced battering. A 1999 study of


female inmates at New York's Bedford Hills correctional Facility
found that more than 80% of the women inmates had a childhood history
of severe physical and/or sexual abuse and that more than 90% had
endured physical or sexual violence in their lifetimes.

Many female inmates with such histories pose virtually no threat to
public safety: many have extremely low rates of recidivism, no prior
criminal records, and, most often, no history of violence other than
the offense for which they are in prison. Not allowing inmates with
such histories to earn merit time and have the opportunity for DOCS
to grant them an earlier release also places added financial burden
on the state.

Moreover, many inmates with histories of abuse are mothers whose
children have been traumatized by the events leading up to their
mother's incarceration and by their separation from her during her
incarceration.
Reuniting a mother with her children more quickly will help diminish
the trauma of separation and the likelihood that the children
themselves will become involved in the criminal justice system as
adults.

This bill enables incarcerated survivors of abuse to benefit from
society's growing awareness of the pervasive and terrible nature of
domestic violence. It is a pragmatic and compassionate remedy that
allows incarcerated survivors the opportunity to more quickly begin
the important journey of returning to their communities and children,
rebuilding their lives and recovering from abuse.

LEGISLATIVE HISTORY:
2009-2010: A.4516-D/S.3438-B - Passed Assembly/Passed Senate Crime
Victims, Crime and Correction Committee and Codes Committee
2007-2008: A.6150-A/S.3164-A - Passed Assembly/Passed Senate Crime
Victims, Crime and Correction Committee
2005: A.8024-A/S.5124-A -
Passed Assembly Correction Committee/passed Senate Crime victims,
Crime and Correction Committee

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
Enactment of this bill will result in cost savings.

EFFECTIVE DATE:
This act shall take effect on the 180th day after it shall have become
law and shall apply to persons in custody on the effective date of
the act and to persons sentenced to an indeterminate or determinate
sentence on or after the effective date of this act, with provisions.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   329

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by Sens. MONTGOMERY, HASSELL-THOMPSON, KRUEGER, OPPENHEIMER,
  PARKER, SERRANO -- 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, in relation to merit time allowances

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subparagraph  (ii)  of  paragraph (d) of subdivision 1 of
section 803 of the correction law, as added by section 7 of chapter  738
of  the laws of 2004, is amended and a new subparagraph (vi) is added to
read as follows:
  (ii) [Such] EXCEPT AS PROVIDED IN SUBPARAGRAPH (VI) OF THIS PARAGRAPH,
SUCH merit time allowance shall not be available to any  person  serving
an  indeterminate  sentence  authorized for an A-I felony offense, other
than an A-I felony offense defined in article two hundred twenty of  the
penal  law,  or  any  sentence  imposed  for a violent felony offense as
defined in section 70.02 of the penal law, manslaughter  in  the  second
degree,   vehicular   manslaughter   in  the  second  degree,  vehicular
manslaughter in the first  degree,  criminally  negligent  homicide,  an
offense  defined in article one hundred thirty of the penal law, incest,
or an offense defined in article two hundred sixty-three  of  the  penal
law, or aggravated harassment of an employee by an inmate.
  (VI)  A  PERSON  CONVICTED OF A HOMICIDE OFFENSE AS DEFINED IN ARTICLE
ONE HUNDRED TWENTY-FIVE OF THE PENAL LAW, AN ASSAULT OFFENSE DEFINED  IN
ARTICLE  ONE  HUNDRED  TWENTY  OF  THE  PENAL  LAW, A ROBBERY OFFENSE AS
DEFINED BY ARTICLE ONE HUNDRED SIXTY OF  THE  PENAL  LAW,  A  KIDNAPPING
OFFENSE  AS DEFINED BY ARTICLE ONE HUNDRED THIRTY-FIVE OF THE PENAL LAW,
AN ARSON OFFENSE AS DEFINED BY ARTICLE ONE HUNDRED FIFTY  OF  THE  PENAL
LAW,  A  BURGLARY OFFENSE AS DEFINED BY ARTICLE ONE HUNDRED FORTY OF THE
PENAL LAW, CRIMINAL POSSESSION OF A  WEAPON  IN  THE  SECOND  DEGREE  AS
DEFINED  BY  SUBDIVISIONS  TWO  AND THREE OF SECTION 265.03 OF THE PENAL

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01519-01-1

S. 329                              2

LAW, CRIMINAL USE OF A FIREARM IN THE FIRST DEGREE AS DEFINED BY SECTION
265.09 OF THE PENAL LAW, CRIMINAL USE OF A FIREARM IN THE SECOND  DEGREE
AS  DEFINED  BY  SECTION 265.08 OF THE PENAL LAW, A CONSPIRACY TO COMMIT
SUCH  CRIMES AS DEFINED IN ARTICLE ONE HUNDRED FIVE OF THE PENAL LAW, AN
ATTEMPT TO COMMIT SUCH CRIMES AS DEFINED IN ARTICLE ONE HUNDRED  TEN  OF
THE  PENAL  LAW  AND  SERVING A DETERMINATE OR INDETERMINATE SENTENCE OR
SENTENCES AND WHO CAN DEMONSTRATE TO  THE  COMMISSIONER  THAT:  (1)  THE
PERSON IS A VICTIM OF DOMESTIC VIOLENCE WHO WAS SUBJECTED TO SUBSTANTIAL
PHYSICAL,  SEXUAL  OR  PSYCHOLOGICAL  ABUSE INFLICTED BY A MEMBER OF THE
PERSON'S SAME FAMILY OR HOUSEHOLD AS THAT TERM IS DEFINED IN SUBDIVISION
ONE OF SECTION 530.11 OF THE CRIMINAL PROCEDURE LAW OR A MEMBER  OF  THE
PERSON'S IMMEDIATE FAMILY AS THAT TERM IS DEFINED IN SUBDIVISION FOUR OF
SECTION 120.40 OF THE PENAL LAW; AND (2) SUCH OFFENSE WAS COMMITTED AS A
DIRECT  RESULT OF SUCH ABUSE, MAY RECEIVE MERIT TIME ALLOWANCE CREDIT IN
THE AMOUNT PROVIDED FOR IN SUBPARAGRAPH (III) OF THIS  PARAGRAPH.    THE
MERIT  TIME ALLOWANCE ESTABLISHED PURSUANT TO THIS SUBPARAGRAPH SHALL BE
GRANTED IN THE SAME MANNER AS REQUIRED  BY  SUBPARAGRAPH  (IV)  OF  THIS
PARAGRAPH.
  TO  APPLY  FOR  MERIT  TIME  ELIGIBILITY UNDER THIS SUBDIVISION AND TO
DEMONSTRATE SUCH PERSON'S CLAIM THAT SHE OR HE WAS SUBJECTED TO SUBSTAN-
TIAL PHYSICAL, SEXUAL OR PSYCHOLOGICAL ABUSE AND THAT SUCH  OFFENSE  WAS
COMMITTED  AS  A DIRECT RESULT OF SUCH ABUSE, SUCH PERSON MUST SUBMIT AN
APPLICATION TO THE COMMISSIONER OR COMMISSIONER'S  DESIGNEE  ALONG  WITH
CORROBORATIVE  MATERIAL  THAT SHALL INCLUDE ONE OR MORE OF THE FOLLOWING
DOCUMENTS:   WITNESS STATEMENTS, COURT  RECORDS,  PRE-SENTENCE  REPORTS,
SOCIAL  SERVICES  RECORDS,  CITY  AND  STATE  DEPARTMENT  OF CORRECTIONS
RECORDS, HOSPITAL RECORDS, LAW ENFORCEMENT  RECORDS,  DOMESTIC  INCIDENT
REPORTS,  ORDERS OF PROTECTION, A SHOWING BASED IN PART ON DOCUMENTATION
PREPARED AT OR NEAR THE TIME OF THE COMMISSION OF  THE  OFFENSE  OR  THE
PROSECUTION THEREOF TENDING TO SUPPORT THE PERSON'S CLAIM, OR WHEN THERE
IS VERIFICATION OF CONSULTATION WITH A LICENSED MEDICAL OR MENTAL HEALTH
CARE PROVIDER, EMPLOYEE OF A COURT ACTING WITHIN THE SCOPE OF HIS OR HER
EMPLOYMENT,  MEMBER  OF  THE  CLERGY,  ATTORNEY,  SOCIAL WORKER, OR RAPE
CRISIS COUNSELOR AS DEFINED IN SECTION FORTY-FIVE  HUNDRED  TEN  OF  THE
CIVIL  PRACTICE  LAW AND RULES, OR OTHER ADVOCATE ACTING ON BEHALF OF AN
AGENCY THAT ASSISTS VICTIMS  OF  DOMESTIC  VIOLENCE,  OR  OTHER  SIMILAR
DOCUMENTATION THAT CORROBORATES SUCH PERSON'S CLAIM.
  S  2.  Subparagraph  (ii) of paragraph (d) of subdivision 1 of section
803 of the correction law, as added by section 10-a of  chapter  738  of
the  laws  of  2004,  is amended and a new subparagraph (vi) is added to
read as follows:
  (ii) [Such] EXCEPT AS PROVIDED IN SUBPARAGRAPH (VI) OF THIS PARAGRAPH,
SUCH merit time allowance shall not be available to any  person  serving
an  indeterminate  sentence  authorized for an A-I felony offense, other
than an A-I felony offense defined in article two hundred twenty of  the
penal  law,  or  any  sentence  imposed  for a violent felony offense as
defined in section 70.02 of the penal law, manslaughter  in  the  second
degree,   vehicular   manslaughter   in  the  second  degree,  vehicular
manslaughter in the first  degree,  criminally  negligent  homicide,  an
offense  defined in article one hundred thirty of the penal law, incest,
or an offense defined in article two hundred sixty-three  of  the  penal
law, or aggravated harassment of an employee by an inmate.
  (VI)  A  PERSON  CONVICTED OF A HOMICIDE OFFENSE AS DEFINED IN ARTICLE
ONE HUNDRED TWENTY-FIVE OF THE PENAL LAW, AN ASSAULT OFFENSE DEFINED  IN
ARTICLE  ONE  HUNDRED  TWENTY  OF  THE  PENAL  LAW, A ROBBERY OFFENSE AS
DEFINED BY ARTICLE ONE HUNDRED SIXTY OF  THE  PENAL  LAW,  A  KIDNAPPING

S. 329                              3

OFFENSE  AS DEFINED BY ARTICLE ONE HUNDRED THIRTY-FIVE OF THE PENAL LAW,
AN ARSON OFFENSE AS DEFINED BY ARTICLE ONE HUNDRED FIFTY  OF  THE  PENAL
LAW,  A  BURGLARY OFFENSE AS DEFINED BY ARTICLE ONE HUNDRED FORTY OF THE
PENAL  LAW,  CRIMINAL  POSSESSION  OF  A  WEAPON IN THE SECOND DEGREE AS
DEFINED BY SUBDIVISIONS TWO AND THREE OF SECTION  265.03  OF  THE  PENAL
LAW, CRIMINAL USE OF A FIREARM IN THE FIRST DEGREE AS DEFINED BY SECTION
265.09  OF THE PENAL LAW, CRIMINAL USE OF A FIREARM IN THE SECOND DEGREE
AS DEFINED BY SECTION 265.08 OF THE PENAL LAW, A  CONSPIRACY  TO  COMMIT
SUCH  CRIMES AS DEFINED IN ARTICLE ONE HUNDRED FIVE OF THE PENAL LAW, AN
ATTEMPT TO COMMIT SUCH CRIMES AS DEFINED IN ARTICLE ONE HUNDRED  TEN  OF
THE  PENAL  LAW  AND  SERVING A DETERMINATE OR INDETERMINATE SENTENCE OR
SENTENCES AND WHO CAN DEMONSTRATE TO  THE  COMMISSIONER  THAT:  (1)  THE
PERSON IS A VICTIM OF DOMESTIC VIOLENCE WHO WAS SUBJECTED TO SUBSTANTIAL
PHYSICAL,  SEXUAL  OR  PSYCHOLOGICAL  ABUSE INFLICTED BY A MEMBER OF THE
PERSON'S SAME FAMILY OR HOUSEHOLD AS THAT TERM IS DEFINED IN SUBDIVISION
ONE OF SECTION 530.11 OF THE CRIMINAL PROCEDURE LAW OR A MEMBER  OF  THE
PERSON'S IMMEDIATE FAMILY AS THAT TERM IS DEFINED IN SUBDIVISION FOUR OF
SECTION 120.40 OF THE PENAL LAW; AND (2) SUCH OFFENSE WAS COMMITTED AS A
DIRECT  RESULT OF SUCH ABUSE, MAY RECEIVE MERIT TIME ALLOWANCE CREDIT IN
THE AMOUNT PROVIDED FOR IN SUBPARAGRAPH (III) OF THIS  PARAGRAPH.    THE
MERIT  TIME ALLOWANCE ESTABLISHED PURSUANT TO THIS SUBPARAGRAPH SHALL BE
GRANTED IN THE SAME MANNER AS REQUIRED  BY  SUBPARAGRAPH  (IV)  OF  THIS
PARAGRAPH.
  TO  APPLY  FOR  MERIT  TIME  ELIGIBILITY UNDER THIS SUBDIVISION AND TO
DEMONSTRATE SUCH PERSON'S CLAIM THAT SHE OR HE WAS SUBJECTED TO SUBSTAN-
TIAL PHYSICAL, SEXUAL OR PSYCHOLOGICAL ABUSE AND THAT SUCH  OFFENSE  WAS
COMMITTED  AS  A DIRECT RESULT OF SUCH ABUSE, SUCH PERSON MUST SUBMIT AN
APPLICATION TO THE COMMISSIONER OR COMMISSIONER'S  DESIGNEE  ALONG  WITH
CORROBORATIVE  MATERIAL  THAT SHALL INCLUDE ONE OR MORE OF THE FOLLOWING
DOCUMENTS:   WITNESS STATEMENTS, COURT  RECORDS,  PRE-SENTENCE  REPORTS,
SOCIAL  SERVICES  RECORDS,  CITY  AND  STATE  DEPARTMENT  OF CORRECTIONS
RECORDS, HOSPITAL RECORDS, LAW ENFORCEMENT  RECORDS,  DOMESTIC  INCIDENT
REPORTS,  ORDERS OF PROTECTION, A SHOWING BASED IN PART ON DOCUMENTATION
PREPARED AT OR NEAR THE TIME OF THE COMMISSION OF  THE  OFFENSE  OR  THE
PROSECUTION THEREOF TENDING TO SUPPORT THE PERSON'S CLAIM, OR WHEN THERE
IS VERIFICATION OF CONSULTATION WITH A LICENSED MEDICAL OR MENTAL HEALTH
CARE PROVIDER, EMPLOYEE OF A COURT ACTING WITHIN THE SCOPE OF HIS OR HER
EMPLOYMENT,  MEMBER  OF  THE  CLERGY,  ATTORNEY,  SOCIAL WORKER, OR RAPE
CRISIS COUNSELOR AS DEFINED IN SECTION FORTY-FIVE  HUNDRED  TEN  OF  THE
CIVIL  PRACTICE  LAW AND RULES, OR OTHER ADVOCATE ACTING ON BEHALF OF AN
AGENCY THAT ASSISTS VICTIMS  OF  DOMESTIC  VIOLENCE,  OR  OTHER  SIMILAR
DOCUMENTATION THAT CORROBORATES SUCH PERSON'S CLAIM.
  S 3. Subdivision 3 of section 803 of the correction law, as amended by
chapter 3 of the laws of 1995, is amended to read as follows:
  3.  The  commissioner  of correctional services shall promulgate rules
and regulations for the granting, withholding, forfeiture,  cancellation
and  restoration  of allowances authorized by this section in accordance
with the criteria herein specified. Such  rules  and  regulations  shall
include  provisions  designating the person or committee in each correc-
tional institution delegated to make discretionary  determinations  with
respect  to  the  allowances,  the  books  and records to be kept, and a
procedure for review of the institutional determinations by the  commis-
sioner.    FURTHER,  THE COMMISSIONER OR THE COMMISSIONER'S DESIGNEE MAY
CONSULT WITH THE OFFICE FOR THE PREVENTION OF DOMESTIC VIOLENCE  REGARD-
ING THE PROMULGATION OF RULES AND REGULATIONS FOR GRANTING, WITHHOLDING,
FORFEITURE, CANCELLATION AND RESTORATION OF MERIT TIME ALLOWANCES PURSU-

S. 329                              4

ANT  TO  SUBPARAGRAPH  (VI)  OF PARAGRAPH (D) OF SUBDIVISION ONE OF THIS
SECTION. TO ASSIST IN THE IMPLEMENTATION OF SUBPARAGRAPH (VI)  OF  PARA-
GRAPH  (D)  OF  SUBDIVISION  ONE  OF  THIS  SECTION,  THE OFFICE FOR THE
PREVENTION  OF  DOMESTIC  VIOLENCE  SHALL PROVIDE TRAINING TO DEPARTMENT
STAFF DELEGATED TO MAKE DETERMINATIONS REGARDING  SUCH  ALLOWANCES.  THE
COMMISSIONER  OR THE COMMISSIONER'S DESIGNEE MAY ALSO REQUEST ASSISTANCE
FROM THE OFFICE FOR THE PREVENTION OF  DOMESTIC  VIOLENCE  IN  MAKING  A
DETERMINATION  ABOUT  WHETHER  AN  INDIVIDUAL  INMATE  IS AN APPROPRIATE
CANDIDATE FOR MERIT TIME ELIGIBILITY PURSUANT TO  SUBPARAGRAPH  (VI)  OF
PARAGRAPH  (D)  OF  SUBDIVISION  ONE OF THIS SECTION, PROVIDED, HOWEVER,
THAT THE COMMISSIONER SHALL MAKE THE FINAL DETERMINATION ON  THE  GRANT-
ING, WITHHOLDING, FORFEITURE, CANCELLATION AND RESTORATION OF MERIT TIME
ALLOWANCES PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION
ONE OF THIS SECTION.
  S 4. Subdivision 3 of section 803 of the correction law, as amended by
chapter 126 of the laws of 1987, is amended to read as follows:
  3.  The  commissioner  of correctional services shall promulgate rules
and regulations for the granting, withholding, forfeiture,  cancellation
and  restoration  of allowances authorized by this section in accordance
with the criteria herein specified. Such  rules  and  regulations  shall
include  provisions  designating the person or committee in each correc-
tional institution delegated to make discretionary  determinations  with
respect  to  the  allowances,  the  books  and records to be kept, and a
procedure for review of the institutional determinations by the  commis-
sioner.    FURTHER,  THE COMMISSIONER OR THE COMMISSIONER'S DESIGNEE MAY
CONSULT WITH THE OFFICE FOR THE PREVENTION OF DOMESTIC VIOLENCE  REGARD-
ING THE PROMULGATION OF RULES AND REGULATIONS FOR GRANTING, WITHHOLDING,
FORFEITURE, CANCELLATION AND RESTORATION OF MERIT TIME ALLOWANCES PURSU-
ANT  TO  SUBPARAGRAPH  (VI)  OF PARAGRAPH (D) OF SUBDIVISION ONE OF THIS
SECTION. TO ASSIST IN THE IMPLEMENTATION OF SUBPARAGRAPH (VI)  OF  PARA-
GRAPH  (D)  OF  SUBDIVISION  ONE  OF  THIS  SECTION,  THE OFFICE FOR THE
PREVENTION OF DOMESTIC VIOLENCE SHALL  PROVIDE  TRAINING  TO  DEPARTMENT
STAFF  DELEGATED  TO  MAKE DETERMINATIONS REGARDING SUCH ALLOWANCES. THE
COMMISSIONER OR THE COMMISSIONER'S DESIGNEE MAY ALSO REQUEST  ASSISTANCE
FROM  THE  OFFICE  FOR  THE  PREVENTION OF DOMESTIC VIOLENCE IN MAKING A
DETERMINATION ABOUT WHETHER  AN  INDIVIDUAL  INMATE  IS  AN  APPROPRIATE
CANDIDATE  FOR  MERIT  TIME ELIGIBILITY PURSUANT TO SUBPARAGRAPH (VI) OF
PARAGRAPH (D) OF SUBDIVISION ONE OF  THIS  SECTION,  PROVIDED,  HOWEVER,
THAT  THE  COMMISSIONER SHALL MAKE THE FINAL DETERMINATION ON THE GRANT-
ING, WITHHOLDING, FORFEITURE, CANCELLATION AND RESTORATION OF MERIT TIME
ALLOWANCES PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION
ONE OF THIS SECTION.
  S 5. Section 805 of the correction law, as amended  by  section  4  of
part E of chapter 62 of the laws of 2003, is amended to read as follows:
  S 805. Earned eligibility program. Persons committed to the custody of
the  department under an indeterminate or determinate sentence of impri-
sonment shall be assigned a work and treatment program as soon as  prac-
ticable. No earlier than two months prior to the inmate's eligibility to
be  paroled  pursuant  to  subdivision one of section 70.40 of the penal
law, the commissioner shall review the inmate's institutional record  to
determine  whether  he OR SHE has complied with the assigned program. If
the commissioner determines that the  inmate  has  successfully  partic-
ipated  in  the  program he OR SHE may issue the inmate a certificate of
earned eligibility. Notwithstanding  any  other  provision  of  law,  an
inmate  who  is  serving a sentence with a minimum term of not more than
eight years and who has been issued a certificate of earned eligibility,

S. 329                              5

shall be granted parole release at the expiration of his OR HER  minimum
term  or  as  authorized  by  subdivision  four of section eight hundred
sixty-seven of this chapter unless the board of parole  determines  that
there  is  a reasonable probability that, if such inmate is released, he
OR SHE will not live and remain at liberty without violating the law and
that his OR HER release is not compatible with the welfare  of  society.
Any  action by the commissioner pursuant to this section shall be deemed
a judicial function and shall not be reviewable if  done  in  accordance
with law.
  NOTWITHSTANDING THE OPENING PARAGRAPH OF THIS SECTION, A PERSON WHO IS
ELIGIBLE  FOR  MERIT  TIME  UNDER  SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF
SUBDIVISION ONE OF SECTION EIGHT HUNDRED THREE OF THIS ARTICLE  WHO  HAS
BEEN  ISSUED  A  CERTIFICATE  OF  EARNED  ELIGIBILITY  AND  IS SERVING A
SENTENCE WITH A MINIMUM TERM OF MORE THAN EIGHT YEARS SHALL  BE  GRANTED
PAROLE  RELEASE  AT THE EXPIRATION OF HIS OR HER MINIMUM TERM UNLESS THE
BOARD OF PAROLE DETERMINES THAT THERE IS A REASONABLE PROBABILITY  THAT,
IF  SUCH  PERSON  IS  RELEASED,  HE  OR SHE WOULD NOT LIVE AND REMAIN AT
LIBERTY WITHOUT VIOLATING THE LAW AND THAT HIS OR  HER  RELEASE  IS  NOT
COMPATIBLE  WITH  THE WELFARE OF SOCIETY. ANY ACTION BY THE COMMISSIONER
PURSUANT TO THIS SECTION SHALL BE DEEMED A JUDICIAL FUNCTION  AND  SHALL
NOT BE REVIEWABLE IF DONE IN ACCORDANCE WITH THE LAW.
  S  6.  Section 805 of the correction law, as amended by chapter 262 of
the laws of 1987, is amended to read as follows:
  S 805. Earned eligibility program. Persons committed to the custody of
the department under an indeterminate sentence of imprisonment shall  be
assigned a work and treatment program as soon as practicable. No earlier
than two months prior to the expiration of an inmate's minimum period of
imprisonment,  the  commissioner shall review the inmate's institutional
record to determine whether he OR SHE has  complied  with  the  assigned
program.  If the commissioner determines that the inmate has successful-
ly  participated in the program he OR SHE may issue the inmate a certif-
icate of earned eligibility. Notwithstanding any other provision of law,
an inmate who is serving a sentence with a minimum term of not more than
six years and who has been issued a certificate of  earned  eligibility,
shall  be granted parole release at the expiration of his OR HER minimum
term or as authorized by  subdivision  four  of  section  eight  hundred
sixty-seven  OF  THIS CHAPTER unless the board of parole determines that
there is a reasonable probability that, if such inmate is  released,  he
OR SHE will not live and remain at liberty without violating the law and
that  his  OR HER release is not compatible with the welfare of society.
Any action by the commissioner pursuant to this section shall be  deemed
a  judicial  function  and shall not be reviewable if done in accordance
with law.
  NOTWITHSTANDING THE OPENING PARAGRAPH OF THIS SECTION, A PERSON WHO IS
ELIGIBLE FOR MERIT TIME UNDER SUBPARAGRAPH  (VI)  OF  PARAGRAPH  (D)  OF
SUBDIVISION  ONE  OF SECTION EIGHT HUNDRED THREE OF THIS ARTICLE WHO HAS
BEEN ISSUED A  CERTIFICATE  OF  EARNED  ELIGIBILITY  AND  IS  SERVING  A
SENTENCE  WITH  A  MINIMUM  TERM OF MORE THAN SIX YEARS SHALL BE GRANTED
PAROLE RELEASE AT THE EXPIRATION OF HIS OR HER MINIMUM TERM  UNLESS  THE
BOARD  OF PAROLE DETERMINES THAT THERE IS A REASONABLE PROBABILITY THAT,
IF SUCH PERSON IS RELEASED, HE OR SHE  WOULD  NOT  LIVE  AND  REMAIN  AT
LIBERTY  WITHOUT  VIOLATING  THE  LAW AND THAT HIS OR HER RELEASE IS NOT
COMPATIBLE WITH THE WELFARE OF SOCIETY. ANY ACTION BY  THE  COMMISSIONER
PURSUANT  TO  THIS SECTION SHALL BE DEEMED A JUDICIAL FUNCTION AND SHALL
NOT BE REVIEWABLE IF DONE IN ACCORDANCE WITH THE LAW.

S. 329                              6

  S 7. Section 806 of the correction law is  amended  by  adding  a  new
subdivision 8 to read as follows:
  8.  NOTWITHSTANDING  ANY  INCONSISTENT  PROVISION  OF  THIS SECTION, A
PERSON THAT IS ELIGIBLE FOR A MERIT TIME ALLOWANCE PURSUANT TO  SUBPARA-
GRAPH  (VI) OF PARAGRAPH (D) OF SUBDIVISION ONE OF SECTION EIGHT HUNDRED
THREE OF THIS ARTICLE MAY BE ENTITLED  TO  PRESUMPTIVE  RELEASE  AT  THE
EXPIRATION  OF FIVE-SIXTHS OF THE MINIMUM OR AGGREGATE MINIMUM PERIOD OF
THE INDETERMINATE TERM IMPOSED BY THE COURT.
  S 8. Subdivision 2-a of section 851 of the correction law, as added by
chapter 251 of the laws of 2002, is amended to read as follows:
  2-a. Notwithstanding subdivision two of this section, the term "eligi-
ble inmate" shall also include a person confined in an  institution  who
is  eligible  for  release  on  parole  or  who will become eligible for
release on parole or conditional release within two years, and who  [was
convicted  of a homicide offense as defined in article one hundred twen-
ty-five of the penal law or an assault offense defined  in  article  one
hundred  twenty of the penal law, and who can demonstrate to the commis-
sioner that: (a) the victim of such homicide or assault was a member  of
the  inmate's immediate family as that term is defined in section 120.40
of the penal law or had a child in  common  with  the  inmate;  (b)  the
inmate  was  subjected  to substantial physical, sexual or psychological
abuse committed by the victim of such homicide or assault; and (c)  such
abuse  was  a  substantial  factor  in causing the inmate to commit such
homicide or assault] IS ELIGIBLE FOR A MERIT TIME ALLOWANCE PURSUANT  TO
SUBPARAGRAPH  (VI)  OF PARAGRAPH (D) OF SUBDIVISION ONE OF SECTION EIGHT
HUNDRED THREE OF THIS CHAPTER.  With respect to an inmate's  claim  that
he or she was subjected to substantial physical, sexual or psychological
abuse  [committed by the victim] AND THAT THE OFFENSE WAS COMMITTED AS A
DIRECT RESULT OF SUCH ABUSE, such demonstration shall include corrobora-
tive material that may include, but is not limited  to,  witness  state-
ments,  COURT  RECORDS,  PRE-SENTENCE  REPORTS, social services records,
CITY AND STATE DEPARTMENT OF CORRECTION RECORDS, hospital  records,  law
enforcement records, DOMESTIC INCIDENT REPORTS, ORDERS OF PROTECTION and
a showing based in part on documentation prepared at or near the time of
the  commission  of  the  offense  or the prosecution thereof tending to
support the inmate's claim, OR WHEN THERE IS VERIFICATION  OF  CONSULTA-
TION WITH A LICENSED MEDICAL OR MENTAL HEALTH CARE PROVIDER, EMPLOYEE OF
A  COURT ACTING WITHIN THE SCOPE OF HIS OR HER EMPLOYMENT, MEMBER OF THE
CLERGY, ATTORNEY, SOCIAL WORKER, OR RAPE CRISIS COUNSELOR AS DEFINED  IN
PARAGRAPH  TWO  OF  SUBDIVISION (A) OF SECTION FORTY-FIVE HUNDRED TEN OF
THE CIVIL PRACTICE LAW AND RULES, OR OTHER ADVOCATE ACTING ON BEHALF  OF
AN  AGENCY THAT ASSISTS VICTIMS OF DOMESTIC VIOLENCE.  Prior to making a
determination under this subdivision, the commissioner  is  required  to
request and take into consideration the opinion of the district attorney
who  prosecuted  the  underlying  [homicide  or assault] offense and the
opinion of the sentencing court. If such opinions  are  received  within
forty-five  days  of  the request, the commissioner shall take them into
consideration.  DURING THE FORTY-FIVE DAY WAITING PERIOD, THE INMATE MAY
BE PERMITTED TO CONTINUE TO GATHER ADDITIONAL  CORROBORATIVE  MATERIALS.
If  such opinions are not so received, the commissioner may proceed with
the determination.  THE COMMISSIONER OR THE COMMISSIONER'S DESIGNEE  MAY
CONSULT  WITH  THE  OFFICE  FOR  THE  PREVENTION OF DOMESTIC VIOLENCE TO
PROMULGATE RULES AND  REGULATIONS  TO  IMPLEMENT  THIS  SUBDIVISION.  TO
ASSIST  IN  THE  IMPLEMENTATION  OF THIS SUBDIVISION, THE OFFICE FOR THE
PREVENTION OF DOMESTIC VIOLENCE SHALL  PROVIDE  TRAINING  TO  DEPARTMENT
STAFF DELEGATED TO MAKE DETERMINATIONS PURSUANT TO THIS SUBDIVISION. THE

S. 329                              7

COMMISSIONER  OR THE COMMISSIONER'S DESIGNEE MAY ALSO REQUEST ASSISTANCE
FROM THE OFFICE FOR THE PREVENTION OF  DOMESTIC  VIOLENCE  IN  MAKING  A
DETERMINATION  ABOUT  WHETHER  AN  INDIVIDUAL  INMATE  IS AN APPROPRIATE
CANDIDATE  FOR  WORK  RELEASE  PURSUANT  TO  THIS SUBDIVISION, PROVIDED,
HOWEVER, THAT THE COMMISSIONER SHALL MAKE  THE  FINAL  DETERMINATION  OF
WHETHER  TO  GRANT WORK RELEASE PURSUANT TO THIS SUBDIVISION. Any action
by the commissioner pursuant to this subdivision shall be deemed a judi-
cial function and shall not be reviewable in any court.
  S 9. The commissioner of the department of correctional services shall
present to the governor, the temporary president of the senate  and  the
speaker  of  the  assembly an annual report about the granting and with-
holding of merit time allowance pursuant to subparagraph (vi)  of  para-
graph  (d) of subdivision 1 of section 803 of the correction law and the
operation of the work release  program  as  applied  to  inmates  deemed
eligible  pursuant  to  subdivision 2-a of section 851 of the correction
law. Such report shall include, but not be limited  to,  the  number  of
inmates  who  apply for such merit time allowance, the number of inmates
approved for such merit time allowance, the number of denials of  appli-
cations for such merit time allowance, the reasons for denials of appli-
cations  for  such merit time allowance, the crime of conviction and the
sentence for each inmate granted such merit time allowance,  the  number
of inmates eligible for work release, the number of inmates granted work
release  pursuant  to  subdivision  2-a of section 851 of the correction
law, the number of denials of applications for such  work  release,  the
reasons  for denials of applications for such work release, and the role
of the office for the prevention of domestic violence in  assisting  the
department of correctional services to make determinations regarding the
granting or withholding of such merit time allowance and the eligibility
for  work  release  pursuant  to  subdivision  2-a of section 851 of the
correction law. The initial report required by  this  section  shall  be
presented  by  December  31, 2012. Thereafter, an annual report shall be
presented no later than December 31 of each year.
  S 10. This act shall take effect on  the  one  hundred  eightieth  day
after  it  shall have become a law and shall apply to persons in custody
serving an indeterminate or determinate sentence on the  effective  date
of  this  act  as  well  as  to persons sentenced to an indeterminate or
determinate sentence on  or  after  the  effective  date  of  this  act;
provided  that  the  amendments  to  paragraph  (d)  of subdivision 1 of
section 803 of the correction law made by section one of this act  shall
be  subject  to the expiration and reversion of such section pursuant to
section 74 of chapter 3 of the laws of 1995, as amended, when upon  such
date  the  provisions  of  section  two  of  this act shall take effect;
provided further that the amendments to subdivision 3 of section 803  of
the correction law made by section three of this act shall be subject to
the  expiration  and reversion of such section pursuant to section 74 of
chapter 3 of the laws of 1995, as  amended,  when  upon  such  date  the
provisions  of section four of this act shall take effect; and provided,
further, that the amendments to sections 806 and 851 of  the  correction
law  made  by  sections seven and eight of this act shall not affect the
expiration or repeal of such sections and  shall  expire  or  be  deemed
repealed  therewith;  and  provided,  further,  that  the  amendments to
section 805 of the correction law made by section five of this act shall
be subject to the expiration and reversion of such section  pursuant  to
chapter  261  of  the laws of 1987 and chapter 3 of the laws of 1995, as
amended, when upon such date the provisions of section six of  this  act
shall take effect.

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