senate Bill S3871

Authorizes the state board of parole to require a violent felony offender to serve his or her maximum term, if release would pose an imminent threat to society

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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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actions

  • 26 / Feb / 2013
    • REFERRED TO CODES
  • 20 / May / 2013
    • 1ST REPORT CAL.636
  • 21 / May / 2013
    • 2ND REPORT CAL.
  • 22 / May / 2013
    • ADVANCED TO THIRD READING
  • 23 / May / 2013
    • PASSED SENATE
  • 23 / May / 2013
    • DELIVERED TO ASSEMBLY
  • 23 / May / 2013
    • REFERRED TO CORRECTION
  • 08 / Jan / 2014
    • DIED IN ASSEMBLY
  • 08 / Jan / 2014
    • RETURNED TO SENATE
  • 08 / Jan / 2014
    • REFERRED TO CODES
  • 29 / Apr / 2014
    • 1ST REPORT CAL.470
  • 30 / Apr / 2014
    • 2ND REPORT CAL.
  • 05 / May / 2014
    • ADVANCED TO THIRD READING
  • 07 / May / 2014
    • PASSED SENATE
  • 07 / May / 2014
    • DELIVERED TO ASSEMBLY
  • 07 / May / 2014
    • REFERRED TO CORRECTION

Summary

Authorizes the state board of parole to require a violent felony offender to serve his or her maximum term, if, by clear and convincing evidence, release would pose an imminent threat to society; authorizes the withholding of good behavior allowances of violent felony offenders by the state board of parole upon such a finding.

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Bill Details

See Assembly Version of this Bill:
A2618
Versions:
S3871
Legislative Cycle:
2013-2014
Current Committee:
Law Section:
Penal Law
Laws Affected:
Amd §70.40, Pen L; amd §803, Cor L
Versions Introduced in 2011-2012 Legislative Cycle:
S6020A, A8915A

Sponsor Memo

BILL NUMBER:S3871

TITLE OF BILL: An act to amend the penal law, in relation to denial
of parole to certain inmates who have been convicted of a violent
felony offense when the state board of parole finds, by convincing
evidence, that the release of such inmate would pose an imminent
threat to society; and to amend the correction law, in relation to
making the earning of good behavior allowances for violent felony
offenders contingent upon their not being an imminent threat to
society upon release

PURPOSE: To authorize the State Board of Parole to require a violent
felony offender to serve his or her maximum term, if release would
pose an imminent threat to society.

SUMMARY OF PROVISIONS:

Section One: Paragraph (b) of subdivision 1 of section 70.40 of the
penal law, as amended by section 127-d-1 of subpart B of part C of
chapter 62 of the laws of 2011, is amended to add (iii) which provides
the State Board of Parole the ability to deny the conditional early
release of a prisoner in the event that a finding is made that the
release of such prisoner would pose an imminent threat to society.

Section Two: Paragraph (b) of subdivision 1 of section 70.40 of the
penal law, as amended by section 127-e of subpart B of part C of
chapter 62 of the laws of 2011, is amended to provide the State Board
of Parole the ability to deny the conditional early release of a
prisoner in the event that a finding is made that the release of such
prisoner would pose an imminent threat to society.

Section Three: Paragraph (a) of subdivision 1 of section 803 of the
correction law, as amended by section 37 of subpart B of part C of
chapter 62 of the laws of 2011, is amended to provide that any time
allowance earned in prison by a violent felony offender shall be
withheld by the State Board of Parole upon a finding that such person
would pose an imminent threat to society if released from
incarceration.

Section Four: Paragraph (a) of subdivision 1 of section 803 as the
correction law, as amended by chapter 126 of the laws of 1987 and as
designated by chapter 738 of the laws of 2004, is amended to provide
that any time allowance earned in prison by a violent felony offender
shall be withheld by the State Board of Parole upon a finding that
such person would pose an imminent threat to society if released from
incarceration.

Section Five: Sets forth the effective date.

EXISTING LAW: Under existing law, conditional release is a statutory
type of release that the Board of Parole does not have discretion to
grant or deny. Under indeterminate sentencing guidelines, when there
is a minimum and maximum sentence imposed, the inmate must serve 2/3
of their maximum sentence with no loss of good time. Under determinate
sentencing guidelines, where there is a flat length of time, the


inmate must serve 6/7 of their sentence, and have no loss of good
time.

JUSTIFICATION: The recent sexual assault and murder of a woman in
Utica, NY by a career rapist named Robert Blainey who had been
released early from prison due to merit time earned for good behavior
has tragically highlighted the need to change the policy of
conditional releases of violent felony offenders. In this egregious
case, Blainey is actually quoted in transcripts to the parole board
stating "Society is safer with me in prison. I can sit here and tell
you people I'm not going to do it, I'm not going to do it, but it's
not going to make a bit of difference." He concluded: "In your opinion
and your eyes I am a lowlife rapist, which is true, and I'm not going
anywhere." Well, Blainey did go somewhere and that is right back out
into society to sexually assault another woman who this time he
killed.

Under current state law, Blainey was only required to serve two-thirds
of his 1989 sentence of 12 1/2 to 25 years with the merit time he had
accumulated for good behavior while incarcerated. The State Parole
Board had no choice in the matter whether they believed he was still a
danger to society or not. As long as Blainey signed the document
agreeing to his conditional release terms he was free to go.

This legislation will help protect innocent citizens like the motel
owner Blainey targeted after hiding in an empty room until he attacked
her on the night of November 2nd, only 5 weeks after he had stopped
following the reporting requirements of his conditional release as
police were searching for his whereabouts.

LEGISLATIVE HISTORY: 2012 S. 6020a Passed Senate/A/ 8915a Correction
Committee.

FISCAL IMPLICATIONS: To be determined.

EFFECTIVE DATE: This act shall take effect immediately with certain
provisions.

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

                                  3871

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            February 26, 2013
                               ___________

Introduced  by Sens. GRIFFO, DeFRANCISCO, LARKIN, SAVINO, SEWARD -- read
  twice and ordered printed, and when printed to  be  committed  to  the
  Committee on Codes

AN  ACT  to  amend  the  penal  law,  in relation to denial of parole to
  certain inmates who have been convicted of a  violent  felony  offense
  when the state board of parole finds, by convincing evidence, that the
  release  of  such inmate would pose an imminent threat to society; and
  to amend the correction law, in relation to making the earning of good
  behavior allowances for violent felony offenders contingent upon their
  not being an imminent threat to society upon release

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

  Section  1.  Paragraph  (b)  of  subdivision 1 of section 70.40 of the
penal law, as amended by section 127-d-1 of subpart B of part C of chap-
ter 62 of the laws of 2011, is amended to read as follows:
  (b) A person who is serving one or  more  than  one  indeterminate  or
determinate sentence of imprisonment shall, if he or she so requests, be
conditionally  released  from  the  institution  in  which  he or she is
confined when the total good behavior time allowed to him or her, pursu-
ant to the provisions of the correction law, is equal  to  the  unserved
portion  of  his  or  her  term, maximum term or aggregate maximum term;
provided, however, that (i) in no event shall a person  serving  one  or
more  indeterminate sentence of imprisonment and one or more determinate
sentence  of  imprisonment  which  run  concurrently  be   conditionally
released  until serving at least six-sevenths of the determinate term of
imprisonment which has the longest unexpired time to run; and (ii) in no
event shall a person be conditionally released  prior  to  the  date  on
which  such  person  is first eligible for discretionary parole release;
AND (III) IN THE EVENT THAT THE STATE BOARD OF PAROLE FINDS, IN  WRITING
AND BY CLEAR AND CONVINCING EVIDENCE, THAT THE RELEASE OF A PERSON SERV-
ING  ANY SENTENCE OF IMPRISONMENT FOR THE CONVICTION OF A VIOLENT FELONY

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06502-01-3

S. 3871                             2

OFFENSE, AS DEFINED IN SUBDIVISION ONE OF SECTION 70.02 OF THIS ARTICLE,
WOULD POSE AN IMMINENT THREAT TO  SOCIETY,  SUCH  PERSON  SHALL  NOT  BE
CONDITIONALLY RELEASED OR PAROLED AND SHALL REMAIN IMPRISONED FOR HIS OR
HER  TERM,  MAXIMUM  TERM  OR AGGREGATE MAXIMUM TERM, WHICHEVER SHALL BE
GREATEST.  The conditions of release, including those governing post-re-
lease supervision, shall be such as may be imposed by the state board of
parole in accordance with the provisions of the executive law.
  Every person so released shall be under the supervision of  the  state
department  of  corrections and community supervision for a period equal
to the unserved portion of the term,  maximum  term,  aggregate  maximum
term, or period of post-release supervision.
  S 2. Paragraph (b) of subdivision 1 of section 70.40 of the penal law,
as  amended by section 127-e of subpart B of part C of chapter 62 of the
laws of 2011, is amended to read as follows:
  (b) A person who  is  serving  one  or  more  than  one  indeterminate
sentence  of  imprisonment  shall,  if  he or she so requests, be condi-
tionally released from the institution in which he or  she  is  confined
when the total good behavior time allowed to him or her, pursuant to the
provisions  of  the  correction law, is equal to the unserved portion of
his or her maximum or aggregate maximum term; PROVIDED, HOWEVER, THAT IN
THE EVENT THAT THE STATE BOARD OF PAROLE FINDS, IN WRITING AND BY  CLEAR
AND  CONVINCING  EVIDENCE,  THAT  THE  RELEASE  OF  A PERSON SERVING ANY
SENTENCE OF IMPRISONMENT FOR THE CONVICTION OF A VIOLENT FELONY OFFENSE,
AS DEFINED IN SUBDIVISION ONE OF SECTION 70.02 OF  THIS  ARTICLE,  WOULD
POSE  AN  IMMINENT  THREAT  TO  SOCIETY, SUCH PERSON SHALL NOT BE CONDI-
TIONALLY RELEASED OR PAROLED AND SHALL REMAIN IMPRISONED FOR HIS OR  HER
MAXIMUM  TERM OR AGGREGATE MAXIMUM TERM, WHICHEVER SHALL BE GREATER. The
conditions of release, including  those  governing  post-release  super-
vision,  shall be such as may be imposed by the state board of parole in
accordance with the provisions of the executive law.
  Every person so released shall be under the supervision of the depart-
ment of corrections and community supervision for a period equal to  the
unserved  portion  of  the maximum, aggregate maximum term, or period of
post-release supervision.
  S 3. Paragraph (a) of subdivision 1 of section 803 of  the  correction
law,  as  amended  by section 37 of subpart B of part C of chapter 62 of
the laws of 2011, is amended to read as follows:
  (a) Every person confined in an institution of  the  department  or  a
facility in the department of mental hygiene serving an indeterminate or
determinate sentence of imprisonment, except a person serving a sentence
with  a  maximum  term  of life imprisonment, may receive time allowance
against the term or maximum term of his or her sentence imposed  by  the
court.  Such  allowances  may be granted for good behavior and efficient
and willing performance of duties assigned or progress  and  achievement
in  an  assigned  treatment  program,  and may be withheld, forfeited or
canceled in whole or in part for bad  behavior,  violation  of  institu-
tional  rules  or  failure  to perform properly in the duties or program
assigned.  PROVIDED, HOWEVER, THAT ANY TIME ALLOWANCE EARNED PURSUANT TO
THIS SECTION BY A PERSON SERVING A SENTENCE FOR CONVICTION OF A  VIOLENT
FELONY  OFFENSE DEFINED IN SUBDIVISION ONE OF SECTION 70.02 OF THE PENAL
LAW SHALL BE WITHHELD BY THE STATE BOARD OF PAROLE UPON  A  FINDING,  IN
WRITING  AND  BY  CLEAR  AND CONVINCING EVIDENCE, THAT SUCH PERSON WOULD
POSE AN IMMINENT THREAT TO SOCIETY IF RELEASED FROM INCARCERATION.
  S 4.  Paragraph (a) of subdivision 1 of section 803 of the  correction
law,  as amended by chapter 126 of the laws of 1987 and as designated by
chapter 738 of the laws of 2004, is amended to read as follows:

S. 3871                             3

  (a) Every person confined in an institution of  the  department  or  a
facility  in  the  department of mental hygiene serving an indeterminate
sentence of imprisonment, except a person  serving  a  sentence  with  a
maximum  term  of  life imprisonment, may receive time allowance against
the  maximum  term or period of his sentence not to exceed in the aggre-
gate one-third of the term or period imposed by the court.  Such  allow-
ances  may  be  granted  for  good  behavior  and  efficient and willing
performance of  duties  assigned  or  progress  and  achievement  in  an
assigned  treatment  program, and may be withheld, forfeited or canceled
in whole or in part for bad behavior, violation of  institutional  rules
or  failure  to  perform  properly  in  the  duties or program assigned.
PROVIDED, HOWEVER, THAT ANY  TIME  ALLOWANCE  EARNED  PURSUANT  TO  THIS
SECTION BY A PERSON SERVING A SENTENCE FOR CONVICTION OF A VIOLENT FELO-
NY  OFFENSE DEFINED IN SUBDIVISION ONE OF SECTION 70.02 OF THE PENAL LAW
SHALL BE WITHHELD BY THE STATE BOARD OF PAROLE UPON A FINDING, IN  WRIT-
ING AND BY CLEAR AND CONVINCING EVIDENCE, THAT SUCH PERSON WOULD POSE AN
IMMINENT THREAT TO SOCIETY IF RELEASED FROM INCARCERATION.
  S  5. This act shall take effect immediately; provided that the amend-
ments to paragraph (b) of subdivision 1 of section 70.40  of  the  penal
law  made  by section one of this act shall be subject to the expiration
and reversion of such paragraph pursuant to subdivision d of 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;  and  provided,
further  that  the amendments to 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 subdivision d of 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.

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