A. 4516 2
sentence, in addition to the time allowance credit authorized by para-
graph (c) of this subdivision, the merit time allowance credited against
the term of the determinate sentence pursuant to this paragraph shall be
one-seventh of the term imposed by the court.
(iv) Such merit time allowance may be granted when an inmate success-
fully participates in the work and treatment program assigned pursuant
to section eight hundred five of this article and when such inmate
[obtains a] ACHIEVES ONE OF THE FOLLOWING: (1) COMPLETES HIS OR HER
general equivalency diploma, HIS OR HER EDUCATIONAL REQUIREMENTS AS
DETERMINED BY THE DEPARTMENT OR SATISFACTORILY COMPLETES COURSEWORK
SPONSORED BY AN INSTITUTION OF HIGHER LEARNING REPRESENTING A SEMESTER
OF ACADEMIC TRAINING; (2) COMPLETES an alcohol and substance abuse
treatment [certificate, a vocational trade certificate following at
least six months of vocational programming or performs] PROGRAM, OR
COMPLETES A COMPARABLE PROGRAM OF A DIFFERENT TYPE AS DETERMINED BY THE
DEPARTMENT, INCLUDING, BUT NOT LIMITED TO, ANGER MANAGEMENT, FAMILY
VIOLENCE, OR PARENTING; (3) COMPLETES A VOCATIONAL TRAINING PROGRAM OR A
COMPARABLE AND EQUIVALENT TRAINING PROGRAM AS DETERMINED BY THE DEPART-
MENT; (4) PERFORMS SATISFACTORILY FOR AT LEAST SIX MONTHS IN A SKILLED
JOB ASSIGNMENT, INCLUDING BUT NOT LIMITED TO, INMATE PROGRAM AIDE (IPA),
LAW LIBRARY CLERK, MEDICAL/INFIRMARY AIDE, CHILDREN'S CENTER AIDE, AND
FOOD SERVICE WORKER; OR (5) COMPLETES at least four hundred hours of
service as part of a community work crew.
Such allowance shall be withheld for any serious disciplinary infrac-
tion or upon a judicial determination that the person, while an inmate,
commenced or continued a civil action, proceeding or claim that was
found to be frivolous as defined in subdivision (c) of section eight
thousand three hundred three-a of the civil practice law and rules, or
an order of a federal court pursuant to rule 11 of the federal rules of
civil procedure imposing sanctions in an action commenced by a person,
while an inmate, against a state agency, officer or employee.
(VI) A PERSON ELIGIBLE FOR MERIT TIME ALLOWANCE UNDER THIS SUBDIVISION
OR 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 CRIMINAL MISCHIEF OFFENSE AS DEFINED BY ARTICLE ONE HUNDRED
FORTY-FIVE 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 INDETERMI-
NATE SENTENCE OR SENTENCES AND WHO CAN DEMONSTRATE TO THE COMMISSIONER
THAT: (1) THE PERSON WAS SUBJECTED TO SUBSTANTIAL PHYSICAL, SEXUAL OR
PSYCHOLOGICAL ABUSE; (2) THE ABUSE WAS 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 (3) THE ABUSE WAS A SUBSTANTIAL
FACTOR IN CAUSING THE PERSON TO COMMIT SUCH OFFENSE, MAY RECEIVE MERIT
A. 4516 3
TIME ALLOWANCE CREDIT IN THE AMOUNT OF ONE-THIRD AGAINST THE MINIMUM
PERIOD OR AGGREGATE MINIMUM PERIOD OF THE INDETERMINATE SENTENCE OR
SENTENCES IMPOSED BY THE COURT, OR A MERIT TIME ALLOWANCE CREDIT IN THE
AMOUNT OF ONE-THIRD AGAINST THE TERM OR AGGREGATE TERM OF THE DETERMI-
NATE SENTENCE OR SENTENCES IMPOSED BY THE COURT; PROVIDED THAT NO PERSON
ELIGIBLE FOR MERIT TIME ALLOWANCE UNDER THIS SUBDIVISION MAY RECEIVE A
MERIT TIME ALLOWANCE CREDIT IN EXCESS OF ONE-THIRD OF THE MINIMUM PERIOD
OR AGGREGATE MINIMUM PERIOD OF AN INDETERMINATE SENTENCE OR SENTENCES
IMPOSED BY THE COURT OR ONE-THIRD OF THE TERM OR AGGREGATE TERM OF A
DETERMINATE SENTENCE OR SENTENCES IMPOSED BY THE COURT. 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 ABUSE WAS A
SUBSTANTIAL FACTOR IN CAUSING THE PERSON TO COMMIT SUCH OFFENSE, 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 WITH-
IN 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. Subparagraphs (ii), (iii) and (iv) of paragraph (d) of subdivi-
sion 1 of section 803 of the correction law, as added by section 10-a of
chapter 738 of the laws of 2004, are 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.
(iii) [The] EXCEPT AS PROVIDED IN SUBPARAGRAPH (VI) OF THIS PARAGRAPH,
THE merit time allowance credit against the minimum period of the inde-
terminate sentence shall be one-sixth of the minimum period imposed by
the court except that such credit shall be one-third of the minimum
period imposed by the court for an A-I felony offense defined in article
two hundred twenty of the penal law. [In] EXCEPT AS PROVIDED IN SUBPARA-
GRAPH (VI) OF THIS PARAGRAPH, IN the case of such a determinate
sentence[, in addition to the time allowance credit authorized by para-
graph (c) of this subdivision,] the merit time allowance credited
A. 4516 4
against the term of the determinate sentence pursuant to this paragraph
shall be one-seventh of the term imposed by the court.
(iv) Such merit time allowance may be granted when an inmate success-
fully participates in the work and treatment program assigned pursuant
to section eight hundred five of this article and when such inmate
[obtains a] ACHIEVES ONE OF THE FOLLOWING: (1) COMPLETES HIS OR HER
general equivalency diploma, HIS OR HER EDUCATIONAL REQUIREMENTS AS
DETERMINED BY THE DEPARTMENT OR SATISFACTORILY COMPLETES COURSEWORK
SPONSORED BY AN INSTITUTION OF HIGHER LEARNING REPRESENTING A SEMESTER
OF ACADEMIC TRAINING; (2) COMPLETES an alcohol and substance abuse
treatment [certificate, a vocational trade certificate following at
least six months of vocational programming or performs] PROGRAM, OR
COMPLETES A COMPARABLE PROGRAM OF A DIFFERENT TYPE AS DETERMINED BY THE
DEPARTMENT; INCLUDING, BUT NOT LIMITED TO, ANGER MANAGEMENT, FAMILY
VIOLENCE, OR PARENTING; (3) COMPLETES A VOCATIONAL TRAINING PROGRAM OR A
COMPARABLE AND EQUIVALENT TRAINING PROGRAM AS DETERMINED BY THE DEPART-
MENT; (4) PERFORMS SATISFACTORILY FOR AT LEAST SIX MONTHS IN A SKILLED
JOB ASSIGNMENT, INCLUDING BUT NOT LIMITED TO, INMATE PROGRAM AIDE (IPA),
LAW LIBRARY CLERK, MEDICAL/INFIRMARY AIDE, CHILDREN'S CENTER AIDE, AND
FOOD SERVICE WORKER; OR (5) COMPLETES at least four hundred hours of
service as part of a community work crew.
Such allowance shall be withheld for any serious disciplinary infrac-
tion or upon a judicial determination that the person, while an inmate,
commenced or continued a civil action, proceeding or claim that was
found to be frivolous as defined in subdivision (c) of section eight
thousand three hundred three-a of the civil practice law and rules, or
an order of a federal court pursuant to rule 11 of the federal rules of
civil procedure imposing sanctions in an action commenced by a person,
while an inmate, against a state agency, officer or employee.
(VI) A PERSON ELIGIBLE FOR MERIT TIME ALLOWANCE UNDER THIS SUBDIVISION
OR 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 CRIMINAL MISCHIEF OFFENSE AS DEFINED BY ARTICLE ONE HUNDRED
FORTY-FIVE 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 INDETERMI-
NATE SENTENCE OR SENTENCES AND WHO CAN DEMONSTRATE TO THE COMMISSIONER
THAT: (1) THE PERSON WAS SUBJECTED TO SUBSTANTIAL PHYSICAL, SEXUAL OR
PSYCHOLOGICAL ABUSE; (2) THE ABUSE WAS 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 (3) THE ABUSE WAS A SUBSTANTIAL
FACTOR IN CAUSING THE PERSON TO COMMIT SUCH OFFENSE, MAY RECEIVE MERIT
TIME ALLOWANCE CREDIT IN THE AMOUNT OF ONE-THIRD AGAINST THE MINIMUM
PERIOD OR AGGREGATE MINIMUM PERIOD OF THE INDETERMINATE SENTENCE OR
A. 4516 5
SENTENCES IMPOSED BY THE COURT, OR A MERIT TIME ALLOWANCE CREDIT IN THE
AMOUNT OF ONE-THIRD AGAINST THE TERM OR AGGREGATE TERM OF THE DETERMI-
NATE SENTENCE OR SENTENCES IMPOSED BY THE COURT; PROVIDED THAT NO PERSON
ELIGIBLE FOR MERIT TIME ALLOWANCE UNDER THIS SUBDIVISION MAY RECEIVE A
MERIT TIME ALLOWANCE CREDIT IN EXCESS OF ONE-THIRD OF THE MINIMUM PERIOD
OR AGGREGATE MINIMUM PERIOD OF AN INDETERMINATE SENTENCE OR SENTENCES
IMPOSED BY THE COURT OR ONE-THIRD OF THE TERM OR AGGREGATE TERM OF A
DETERMINATE SENTENCE OR SENTENCES IMPOSED BY THE COURT. 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 ABUSE WAS A
SUBSTANTIAL FACTOR IN CAUSING THE PERSON TO COMMIT SUCH OFFENSE, 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 WITH-
IN 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 2-a of section 803 of the correction law, as added by
section 9 of chapter 738 of the laws of 2004, is amended to read as
follows:
2-a. If a person is serving more than one sentence, the authorized
merit time allowances may be granted against the period or aggregate
minimum period of the indeterminate sentence or sentences, or against
the term or aggregate term of the determinate sentence or sentences, or
where consecutive determinate and indeterminate sentences are involved,
against the aggregate minimum period as calculated pursuant to subpara-
graph (iv) of paragraph (a) of subdivision one of section 70.40 of the
penal law. Such allowances shall be calculated as follows:
(a) A person serving two or more indeterminate sentences which run
concurrently may receive a merit time allowance not to exceed one-sixth
of the minimum period of the indeterminate sentence imposed for an
offense other than an A-I felony offense defined in article two hundred
twenty of the penal law OR AN OFFENSE ELIGIBLE FOR MERIT TIME PURSUANT
TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION ONE OF THIS
SECTION, or one-third of the minimum period of the indeterminate
sentence imposed for an A-I felony offense defined in article two
hundred twenty of the penal law OR AN OFFENSE ELIGIBLE FOR MERIT TIME
PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION ONE OF
THIS SECTION, whichever allowance results in the longest unexpired time
to run.
(b) A person serving two or more indeterminate sentences which run
consecutively may receive a merit time allowance not to exceed the
amount of one-third of the minimum or aggregate minimum period of the
sentences imposed for an A-I felony offense defined in article two
A. 4516 6
hundred twenty of the penal law OR AN OFFENSE ELIGIBLE FOR MERIT TIME
PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION ONE OF
THIS SECTION, plus one-sixth of the minimum or aggregate minimum period
of the sentences imposed for an offense other than such A-I felony
offense OR SUCH OFFENSE ELIGIBLE FOR MERIT TIME PURSUANT TO SUBPARAGRAPH
(VI) OF PARAGRAPH (D) OF SUBDIVISION ONE OF THIS SECTION.
(c) A person serving two or more determinate sentences for an offense
defined in article two hundred twenty or two hundred twenty-one of the
penal law which run concurrently may receive a merit time allowance not
to exceed one-seventh of the term of the determinate sentence which has
the longest unexpired time to run.
(C-1) A PERSON SERVING TWO OR MORE DETERMINATE SENTENCES FOR AN
OFFENSE ELIGIBLE FOR MERIT TIME PURSUANT TO SUBPARAGRAPH (VI) OF PARA-
GRAPH (D) OF SUBDIVISION ONE OF THIS SECTION WHICH RUN CONCURRENTLY MAY
RECEIVE MERIT TIME ALLOWANCE NOT TO EXCEED ONE-THIRD OF THE TERM OF THE
DETERMINATE SENTENCE WHICH HAS THE LONGEST UNEXPIRED TIME TO RUN.
(d) A person serving two or more determinate sentences for an offense
defined in article two hundred twenty or two hundred twenty-one of the
penal law which run consecutively may receive a merit time allowance not
to exceed one-seventh of the aggregate term of such determinate
sentences.
(D-1) A PERSON SERVING TWO OR MORE DETERMINATE SENTENCES FOR AN
OFFENSE ELIGIBLE FOR MERIT TIME PURSUANT TO SUBPARAGRAPH (VI) OF PARA-
GRAPH (D) OF SUBDIVISION ONE OF THIS SECTION WHICH RUN CONSECUTIVELY MAY
RECEIVE MERIT TIME ALLOWANCE NOT TO EXCEED ONE-THIRD OF THE AGGREGATE
TERM OF SUCH DETERMINATE SENTENCES.
(e) A person serving one or more indeterminate sentences and one or
more determinate sentences for an offense defined in article two hundred
twenty or two hundred twenty-one of the penal law OR AN OFFENSE ELIGIBLE
FOR MERIT TIME PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDI-
VISION ONE OF THIS SECTION which run concurrently may receive a merit
time allowance not to exceed one-sixth of the minimum period of the
indeterminate sentence imposed for an offense other than an A-I felony
offense defined in article two hundred twenty of the penal law OR AN
OFFENSE ELIGIBLE FOR MERIT TIME PURSUANT TO SUBPARAGRAPH (VI) OF PARA-
GRAPH (D) OF SUBDIVISION ONE OF THIS SECTION, one-third of the minimum
period of the indeterminate sentence imposed for an A-I felony offense
defined in article two hundred twenty of the penal law OR AN OFFENSE
ELIGIBLE FOR MERIT TIME PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D)
OF SUBDIVISION ONE OF THIS SECTION, [or] one-seventh of the term of the
determinate sentence IMPOSED FOR AN OFFENSE OTHER THAN AN OFFENSE ELIGI-
BLE FOR MERIT TIME PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF
SUBDIVISION ONE OF THIS SECTION, OR ONE-THIRD OF THE TERM OF THE DETER-
MINATE SENTENCE IMPOSED FOR AN OFFENSE ELIGIBLE FOR MERIT TIME PURSUANT
TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION ONE OF THIS
SECTION, whichever allowance results in the largest unexpired time to
run.
(f) A person serving one or more indeterminate sentences and one or
more determinate sentences which run consecutively may receive a merit
time allowance not to exceed the sum of one-sixth of the minimum or
aggregate minimum period of the indeterminate sentence or sentences
imposed for an offense other than an A-I felony offense defined in arti-
cle two hundred twenty of the penal law OR AN OFFENSE ELIGIBLE FOR MERIT
TIME PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION ONE
OF THIS SECTION, one-third of the minimum or aggregate minimum period of
the indeterminate sentence or sentences imposed for an A-I felony
A. 4516 7
offense defined in article two hundred twenty of the penal law [and] OR
AN OFFENSE ELIGIBLE FOR MERIT TIME PURSUANT TO SUBPARAGRAPH (VI) OF
PARAGRAPH (D) OF SUBDIVISION ONE OF THIS SECTION, one-seventh of the
term or aggregate term of the determinate sentence or sentences IMPOSED
FOR AN OFFENSE OTHER THAN AN OFFENSE ELIGIBLE FOR MERIT TIME PURSUANT TO
SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION ONE OF THIS SECTION,
AND ONE-THIRD OF THE TERM OR AGGREGATE TERM OF THE DETERMINATE SENTENCE
OR SENTENCES IMPOSED FOR AN OFFENSE ELIGIBLE FOR MERIT TIME PURSUANT TO
SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION ONE OF THIS SECTION.
(g) The provisions of this subdivision shall apply to persons in
custody serving an indeterminate sentence on the effective date of this
subdivision as well as to persons sentenced to an indeterminate sentence
on and after the effective date of this subdivision and prior to Septem-
ber first, two thousand five and to persons sentenced to a determinate
sentence prior to September first, two thousand eleven for a felony as
defined in article two hundred twenty or two hundred twenty-one of the
penal law; PROVIDED, HOWEVER, THAT TO THE EXTENT THE PROVISIONS OF THIS
SUBDIVISION APPLY TO THE CALCULATION OF MERIT TIME ALLOWANCES PURSUANT
TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION ONE OF THIS
SECTION, SUCH PROVISIONS OF THIS SUBDIVISION SHALL APPLY TO PERSONS
SERVING AN INDETERMINATE OR DETERMINATE SENTENCE REGARDLESS OF THE DATE
SUCH PERSON WAS SENTENCED.
S 4. Subdivision 2-a of section 803 of the correction law, as added by
section 11 of chapter 738 of the laws of 2004, is amended to read as
follows:
2-a. If a person is serving more than one sentence, the authorized
merit time allowances may be granted against the period or aggregate
minimum period of the indeterminate sentence or sentences, or against
the term or aggregate term of the determinate sentence or sentences, or
where consecutive determinate and indeterminate sentences are involved,
against the aggregate minimum period as calculated pursuant to subpara-
graph (iv) of paragraph (a) of subdivision one of section 70.40 of the
penal law. Such allowances shall be calculated as follows:
(a) A person serving two or more indeterminate sentences which run
concurrently may receive a merit time allowance not to exceed one-sixth
of the minimum period of the indeterminate sentence imposed for an
offense other than an A-I felony offense defined in article two hundred
twenty of the penal law OR AN OFFENSE ELIGIBLE FOR MERIT TIME PURSUANT
TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION ONE OF THIS
SECTION, or one-third of the minimum period of the indeterminate
sentence imposed for an A-I felony offense defined in article two
hundred twenty of the penal law OR AN OFFENSE ELIGIBLE FOR MERIT TIME
PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION ONE OF
THIS SECTION, whichever allowance results in the longest unexpired time
to run.
(b) A person serving two or more indeterminate sentences which run
consecutively may receive a merit time allowance not to exceed the
amount of one-third of the minimum or aggregate minimum period of the
sentences imposed for an A-I felony offense defined in article two
hundred twenty of the penal law OR AN OFFENSE ELIGIBLE FOR MERIT TIME
PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION ONE OF
THIS SECTION, plus one-sixth of the minimum or aggregate minimum period
of the sentences imposed for an offense other than such A-I felony
offense OR SUCH OFFENSE ELIGIBLE FOR MERIT TIME PURSUANT TO SUBPARAGRAPH
(VI) OF PARAGRAPH (D) OF SUBDIVISION ONE OF THIS SECTION.
A. 4516 8
(c) A person serving two or more determinate sentences for an offense
defined in article two hundred twenty or two hundred twenty-one of the
penal law which run concurrently may receive a merit time allowance not
to exceed one-seventh of the term of the determinate sentence which has
the longest unexpired time to run.
(C-1) A PERSON SERVING TWO OR MORE DETERMINATE SENTENCES FOR AN
OFFENSE ELIGIBLE FOR MERIT TIME PURSUANT TO SUBPARAGRAPH (VI) OF PARA-
GRAPH (D) OF SUBDIVISION ONE OF THIS SECTION WHICH RUN CONCURRENTLY MAY
RECEIVE A MERIT TIME ALLOWANCE NOT TO EXCEED ONE-THIRD OF THE TERM OF
THE DETERMINATE SENTENCE WHICH HAS THE LONGEST UNEXPIRED TERM.
(d) A person serving two or more determinate sentences for an offense
defined in article two hundred twenty or two hundred twenty-one of the
penal law which run consecutively may receive a merit time allowance not
to exceed one-seventh of the aggregate term of such determinate
sentences.
(D-1) A PERSON SERVING TWO OR MORE DETERMINATE SENTENCES FOR AN
OFFENSE ELIGIBLE FOR MERIT TIME PURSUANT TO SUBPARAGRAPH (VI) OF PARA-
GRAPH (D) OF SUBDIVISION ONE OF THIS SECTION WHICH RUN CONSECUTIVELY MAY
RECEIVE A MERIT TIME ALLOWANCE NOT TO EXCEED ONE-THIRD OF THE TERM OF
SUCH DETERMINATE SENTENCES.
(e) A person serving one or more indeterminate sentences and one or
more determinate sentences for an offense defined in article two hundred
twenty or two hundred twenty-one of the penal law OR AN OFFENSE ELIGIBLE
FOR MERIT TIME PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDI-
VISION ONE OF THIS SECTION, which run concurrently may receive a merit
time allowance not to exceed one-sixth of the minimum period of the
indeterminate sentence imposed for an offense other than an A-I felony
offense defined in article two hundred twenty of the penal law OR AN
OFFENSE ELIGIBLE FOR MERIT TIME PURSUANT TO SUBPARAGRAPH (VI) OF PARA-
GRAPH (D) OF SUBDIVISION ONE OF THIS SECTION, one-third of the minimum
period of the indeterminate sentence imposed for an A-I felony offense
defined in article two hundred twenty of the penal law OR AN OFFENSE
ELIGIBLE FOR MERIT TIME PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D)
OF SUBDIVISION ONE OF THIS SECTION, [or] one-seventh of the term of the
determinate sentence IMPOSED FOR AN OFFENSE OTHER THAN AN OFFENSE ELIGI-
BLE FOR MERIT TIME PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF
SUBDIVISION ONE OF THIS SECTION, OR ONE-THIRD OF THE TERM OF THE DETER-
MINATE SENTENCE IMPOSED FOR AN OFFENSE ELIGIBLE FOR MERIT TIME PURSUANT
TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION ONE OF THIS
SECTION, whichever allowance results in the largest unexpired time to
run.
(f) A person serving one or more indeterminate sentences and one or
more determinate sentences which run consecutively may receive a merit
time allowance not to exceed the sum of one-sixth of the minimum or
aggregate minimum period of the indeterminate sentence or sentences
imposed for an offense other than an A-I felony offense defined in arti-
cle two hundred twenty of the penal law OR AN OFFENSE ELIGIBLE FOR MERIT
TIME PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION ONE
OF THIS SECTION, one-third of the minimum or aggregate minimum period of
the indeterminate sentence or sentences imposed for an A-I felony
offense defined in article two hundred twenty of the penal law [and] OR
AN OFFENSE ELIGIBLE FOR MERIT TIME PURSUANT TO SUBPARAGRAPH (VI) OF
PARAGRAPH (D) OF SUBDIVISION ONE OF THIS SECTION, one-seventh of the
term or aggregate term of the determinate sentence or sentences IMPOSED
FOR AN OFFENSE ELIGIBLE FOR MERIT TIME PURSUANT TO SUBPARAGRAPH (VI) OF
PARAGRAPH (D) OF SUBDIVISION ONE OF THIS SECTION, AND ONE-THIRD OF THE
A. 4516 9
TERM OF THE DETERMINATE SENTENCE OR SENTENCES IMPOSED FOR AN OFFENSE
ELIGIBLE FOR MERIT TIME PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D)
OF SUBDIVISION ONE OF THIS SECTION.
(g) The provisions of this subdivision shall apply to persons in
custody serving an indeterminate sentence on the effective date of this
subdivision as well as to persons sentenced to an indeterminate sentence
on and after the effective date of this subdivision and prior to Septem-
ber first, two thousand five and to persons sentenced to a determinate
sentence prior to September first, two thousand eleven for a felony as
defined in article two hundred twenty or two hundred twenty-one of the
penal law; PROVIDED, HOWEVER, THAT TO THE EXTENT THE PROVISIONS OF THIS
SUBDIVISION APPLY TO THE CALCULATIONS OF MERIT TIME ALLOWANCES PURSUANT
TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION ONE OF THIS
SECTION, SUCH PROVISIONS OF THIS SUBDIVISION SHALL APPLY TO PERSONS
SERVING AN INDETERMINATE OR DETERMINATE SENTENCE REGARDLESS OF THE DATE
SUCH PERSON WAS SENTENCED.
S 5. Subdivision 2-b of section 803 of the correction law, as added by
section 3 of part E of chapter 62 of the laws of 2003, is amended to
read as follows:
2-b. Notwithstanding the foregoing, if a person is serving more than
one indeterminate sentence, at least one of which is imposed for a class
A-I felony offense defined in article two hundred twenty of the penal
law, the authorized merit time allowance granted pursuant to paragraph
(d) of subdivision one of this section shall be calculated as follows:
(a) In the event a person is serving two or more indeterminate
sentences with different minimum periods which run concurrently, the
merit time allowance shall be based upon the sentence with the longest
unexpired minimum period. If the sentence with the longest unexpired
minimum period was imposed for a class A-I felony OR AN OFFENSE ELIGIBLE
FOR MERIT TIME PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDI-
VISION ONE OF THIS SECTION, the merit time credit shall be one-third of
such sentence's minimum period; if such sentence was imposed for an
offense other than a class A-I felony OR AN OFFENSE ELIGIBLE FOR MERIT
TIME PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION ONE
OF THIS SECTION, such merit time credit shall be one-sixth of such
sentence's minimum period. Provided, however, that where the minimum
period of any other concurrent indeterminate sentence is greater than
such reduced minimum period, the minimum period of such other concurrent
indeterminate sentence shall also be reduced but only to the extent that
the minimum period of such other concurrent sentence, as so reduced, is
equal to the reduced minimum period of such sentence with the longest
unexpired minimum period to run.
(b) A person serving two or more indeterminate sentences with the same
minimum periods which run concurrently, and no concurrent indeterminate
sentence with any greater minimum period, shall have the minimum period
of each such sentence reduced in the amount of one-third of such minimum
period if all such sentences were imposed for a class A-I felony OR AN
OFFENSE ELIGIBLE FOR MERIT TIME PURSUANT TO SUBPARAGRAPH (VI) OF PARA-
GRAPH (D) OF SUBDIVISION ONE OF THIS SECTION.
(c) A person serving two or more indeterminate sentences that run
consecutively shall have the aggregate minimum period of such sentences
reduced in the amount of one-third of such aggregate minimum period of
the sentences imposed for a class A-I felony OR AN OFFENSE ELIGIBLE FOR
MERIT TIME PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION
ONE OF THIS SECTION, plus one-sixth of such aggregate minimum period of
the sentences imposed for an offense other than a class A-I felony OR
A. 4516 10
SUCH OFFENSE ELIGIBLE FOR MERIT TIME PURSUANT TO SUBPARAGRAPH (VI) OF
PARAGRAPH (D) OF SUBDIVISION ONE OF THIS SECTION.
S 6. 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-
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 7. 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
A. 4516 11
ALLOWANCES PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION
ONE OF THIS SECTION.
S 8. 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,
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 9. 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.
A. 4516 12
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 10. 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 TWO-THIRDS OF THE DETERMINATE TERM OR AGGREGATE TERM AS
IMPOSED BY THE COURT OR AT THE EXPIRATION OF TWO-THIRDS OF THE MINIMUM
OR AGGREGATE MINIMUM PERIOD OF THE INDETERMINATE TERM IMPOSED BY THE
COURT.
S 11. 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 SUCH ABUSE WAS A SUBSTANTIAL
FACTOR IN CAUSING THE INMATE TO COMMIT THE OFFENSE, such demonstration
shall include corroborative material that may include, but is not limit-
ed to, witness statements, 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 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
A. 4516 13
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 subdivi-
sion, the commissioner is required to request and take into consider-
ation 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 REGU-
LATIONS 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 DETERMI-
NATIONS PURSUANT TO THIS SUBDIVISION. THE COMMISSIONER OR THE COMMIS-
SIONER'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 PURSU-
ANT 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 judicial function and shall not be review-
able in any court.
S 12. 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 2-a 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 subdivision 2-b of section 803
of the correction law made by section five of this act shall be subject
to the expiration and repeal of such subdivision and shall expire and be
deemed repealed therewith; and provided further that the amendments to
subdivision 3 of section 803 of the correction law made by section six
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 seven of this act
shall take effect; and provided, further, that the amendments to
sections 806 and 851 of the correction law made by sections ten and
eleven of this act shall not affect the expiration or repeal of such
sections and shall expire or be deemed repealed therewith; provided,
further, that the amendments to section 805 of the correction law made
by section eight of this act shall be subject to the expiration and
reversion of such section pursuant to chapter 261 of the laws of 1987
A. 4516 14
and chapter 3 of the laws of 1995, as amended, when upon such date the
provisions of section nine of this act shall take effect; provided,
however, that the amendment made to section 805 of the correction law by
section nine of this act shall not affect the expiration of such section
and shall expire therewith.