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

                                  3508

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 27, 2009
                               ___________

Introduced  by M. of A. CLARK -- read once and referred to the Committee
  on Correction

AN ACT to amend the correction law, the executive law and the penal law,
  in relation to merit time allowance and release for prisoners  accumu-
  lating  merit  time  allowance and to repeal certain provisions of the
  correction law relating thereto

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

  Section  1.  Legislative  intent.  It  is  the  purpose of this act to
strengthen the ability of the department  of  correctional  services  to
better  manage its inmate population through the granting or withholding
of merit time allowance credits. This new system seeks  to  prevent  the
early  conditional  release  of  ill-prepared  inmates,  while  offering
release only to those inmates who have demonstrated  a  willingness  and
ability  to work in society through completion of therapeutic and treat-
ment programs prescribed by the department of correctional services.
  S 2. Section 803 of the correction law is REPEALED and a  new  section
803 is added to read as follows:
  S  803.  MERIT  TIME  ALLOWANCE  AGAINST INDETERMINATE AND DETERMINATE
SENTENCES. 1. (A) EVERY PERSON CONFINED IN AN INSTITUTION OF THE DEPART-
MENT OR A FACILITY IN THE DEPARTMENT OF MENTAL HYGIENE SERVING AN  INDE-
TERMINATE OR DETERMINATE SENTENCE OF IMPRISONMENT, EXCEPT A PERSON SERV-
ING  A  SENTENCE  WITH  A MAXIMUM TERM OF LIFE IMPRISONMENT, MAY RECEIVE
TIME ALLOWANCES AGAINST 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 OR EDUCATION PROGRAM, AND MAY BE WITHHELD IN WHOLE OR
IN PART FOR BAD BEHAVIOR, VIOLATION OF INSTITUTIONAL RULES OR FAILURE TO
PERFORM PROPERLY IN THE DUTIES OR PROGRAM ASSIGNED.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07161-01-9

A. 3508                             2
              

  (B)  A  PERSON  SERVING  AN INDETERMINATE SENTENCE OF IMPRISONMENT MAY
RECEIVE TIME ALLOWANCE AGAINST THE MAXIMUM TERM OF HIS SENTENCE  NOT  TO
EXCEED ONE-THIRD OF THE MAXIMUM TERM IMPOSED BY THE COURT.
  (C)  A  PERSON  SERVING  A  DETERMINATE  SENTENCE  OF IMPRISONMENT MAY
RECEIVE TIME ALLOWANCE AGAINST THE TERM OF HIS SENTENCE  NOT  TO  EXCEED
ONE-SEVENTH OF THE TERM IMPOSED BY THE COURT.
  (D)  A  PERSON  SERVING  AN INDETERMINATE SENTENCE OF IMPRISONMENT MAY
RECEIVE MERIT TIME ALLOWANCES AGAINST THE MAXIMUM AND MINIMUM  TERMS  OR
PERIOD  OF  HIS OR HER SENTENCE NOT TO EXCEED IN THE AGGREGATE ONE-THIRD
OF THE TERM OR PERIOD IMPOSED BY THE COURT.
  (E) A PERSON  SERVING  A  DETERMINATE  SENTENCE  OF  IMPRISONMENT  MAY
RECEIVE  A  MERIT TIME ALLOWANCE AGAINST THE TERM OF HIS OR HER SENTENCE
NOT TO EXCEED ONE-THIRD OF THE TERM IMPOSED BY THE COURT.
  (F) (I) EXCEPT AS PROVIDED IN SUBPARAGRAPH  (II)  OF  THIS  PARAGRAPH,
EVERY PERSON UNDER THE CUSTODY OF THE DEPARTMENT OR CONFINED IN A FACIL-
ITY  IN  THE  DEPARTMENT  OF  MENTAL  HYGIENE  SERVING  AN INDETERMINATE
SENTENCE OF IMPRISONMENT WITH A MINIMUM PERIOD OF ONE YEAR OR MORE OR  A
DETERMINATE  SENTENCE OF IMPRISONMENT OF ONE YEAR OR MORE IMPOSED PURSU-
ANT TO SECTION 70.70 OR 70.71 OF THE PENAL LAW, MAY EARN  A  MERIT  TIME
ALLOWANCE.
  (II)  SUCH  MERIT  TIME ALLOWANCE SHALL NOT BE AVAILABLE TO ANY PERSON
SERVING A SENTENCE IMPOSED FOR A VIOLENT FELONY OFFENSE  AS  DEFINED  IN
SECTION 70.02 OF THE PENAL LAW.
  (III) 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  GENERAL  EQUIVALENCY DIPLOMA, AN ALCOHOL AND SUBSTANCE ABUSE
TREATMENT CERTIFICATE, A VOCATIONAL TRADE CERTIFICATE FOLLOWING AT LEAST
SIX MONTHS OF VOCATIONAL PROGRAMMING OR PERFORMS AT LEAST  FOUR  HUNDRED
HOURS OF SERVICE AS PART OF A COMMUNITY WORK CREW.  SUCH ALLOWANCE SHALL
BE WITHHELD FOR ANY SERIOUS DISCIPLINARY INFRACTION.
  2.  IF  A  PERSON  IS  SERVING  MORE THAN ONE SENTENCE, THE AUTHORIZED
ALLOWANCES MAY BE GRANTED SEPARATELY AGAINST THE  MAXIMUM,  MINIMUM  AND
DETERMINATE  TERMS  OF EACH SENTENCE OR, WHERE CONSECUTIVE SENTENCES ARE
INVOLVED, AGAINST THE AGGREGATED MAXIMUM, MINIMUM AND DETERMINATE TERMS.
IN NO CASE, HOWEVER, SHALL THE TOTAL OF ALL ALLOWANCES  GRANTED  TO  ANY
SUCH  PERSON  UNDER THIS SECTION EXCEED ONE-THIRD OF THE MAXIMUM TIME HE
OR SHE WOULD BE REQUIRED TO  SERVE,  COMPUTED  WITHOUT  REGARD  TO  THIS
SECTION. NO MERIT TIME ALLOWANCE SHALL DECREASE THE MINIMUM TERM TO LESS
THAN ONE YEAR.
  3.  THE  COMMISSIONER  SHALL  PROMULGATE RULES AND REGULATIONS FOR THE
GRANTING AND WITHHOLDING OF MERIT TIME  ALLOWANCES  AUTHORIZED  BY  THIS
SECTION IN ACCORDANCE WITH THE CRITERIA SPECIFIED IN THIS SECTION.  SUCH
RULES  AND REGULATIONS SHALL INCLUDE PROVISIONS DESIGNATING A MERIT TIME
ALLOWANCE COMMITTEE IN EACH CORRECTIONAL 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  COMMISSIONER.  SUCH  COMMITTEE SHALL REVIEW THE
RECORD OF EACH INDIVIDUAL INMATE EVERY SIX  MONTHS  BEGINNING  FROM  THE
DATE  OF  HIS  OR  HER ENTRANCE AT SUCH INSTITUTION. THE COMMITTEE SHALL
THEN DETERMINE, BASED ON THE FACTORS FOR WHICH ALLOWANCE TIME IS  GRANT-
ED,  WHETHER  OR NOT TO GRANT ALLOWANCE TIME TO THE INMATE. FOR EACH SIX
MONTH REVIEW PERIOD, AN INMATE MAY  BE  GRANTED  MERIT  TIME  WHICH  MAY
REDUCE  BY  UP  TO ONE-THIRD AN INMATE'S MINIMUM OR DETERMINATE SENTENCE
FOR THAT SIX MONTH REVIEW PERIOD. IF AN INMATE IS NOT GRANTED MERIT TIME
FOR THE SIX MONTH REVIEW PERIOD, HE OR SHE CANNOT EARN ADDITIONAL  MERIT

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TIME IN ANY SUBSEQUENT SIX MONTH REVIEW PERIOD TO MAKE UP FOR MERIT TIME
WHICH HAS NOT BEEN GRANTED. ADDITIONALLY, AN INMATE WHO HAS BEEN GRANTED
MERIT  TIME  DURING  A SIX MONTH REVIEW PERIOD SHALL NOT LOSE SUCH MERIT
TIME  DURING  A  SUBSEQUENT  SIX  MONTH  REVIEW PERIOD FOR BAD BEHAVIOR,
VIOLATION OF INSTITUTIONAL RULES OR FAILURE TO PERFORM PROPERLY  IN  THE
DUTIES OR PROGRAM ASSIGNED.
  4.  ALL MERIT TIME ALLOWANCES EARNED PURSUANT TO THIS SECTION SHALL BE
VESTED, ON A ONE DAY FOR EVERY THREE DAYS BASIS, EXCEPT AS  MODIFIED  BY
OTHER PROVISIONS OF THIS CHAPTER.
  5.  MERIT TIME ALLOWANCES GRANTED PRIOR TO ANY RELEASE ON PAROLE OR TO
POST-RELEASE SUPERVISION SHALL BE FORFEITED AND SHALL NOT BE RESTORED IF
THE FORMERLY INCARCERATED INDIVIDUAL IS RETURNED TO AN INSTITUTION UNDER
THE JURISDICTION OF THE DEPARTMENT FOR VIOLATION OF PAROLE  OR  POST-RE-
LEASE  SUPERVISION BY REASON OF A CONVICTION FOR A CRIME COMMITTED WHILE
ON PAROLE OR POST-RELEASE SUPERVISION. A PERSON WHO IS SO RETURNED  MAY,
HOWEVER,  SUBSEQUENTLY RECEIVE MERIT TIME ALLOWANCES AGAINST THE REMAIN-
ING PORTION OF HIS OR HER MAXIMUM OR AGGREGATE MAXIMUM  TERM  OR  PERIOD
NOT  TO  EXCEED IN THE AGGREGATE ONE-THIRD OF SUCH PORTION PROVIDED SUCH
REMAINING PORTION OF HIS OR HER MAXIMUM OR  AGGREGATE  MAXIMUM  TERM  OR
PERIOD IS MORE THAN ONE YEAR.
  6.  UPON  COMMENCEMENT OF AN INDETERMINATE OR DETERMINATE SENTENCE THE
PROVISIONS OF THIS SECTION SHALL BE FURNISHED TO THE PERSON SERVING  THE
SENTENCE  AND THE MEANING OF SAME SHALL BE FULLY EXPLAINED TO HIM OR HER
BY A PERSON DESIGNATED BY THE COMMISSIONER TO PERFORM SUCH DUTY.
  7. NOTWITHSTANDING ANY OTHER PROVISION OF  LAW,  WHENEVER  MERIT  TIME
ALLOWANCE IS CLAIMED AGAINST THE MINIMUM TERM OR PERIOD OF IMPRISONMENT,
IT  SHALL SERVE ONLY TO ALLOW SUCH PERSON, IN THE SOLE DISCRETION OF THE
STATE PAROLE BOARD, TO BE RELEASED ON PAROLE. WHENEVER MERIT TIME ALLOW-
ANCE IS CLAIMED AGAINST THE MAXIMUM TERM OR PERIOD OF IMPRISONMENT,  AND
THE  MAXIMUM  TERM  LESS ACCUMULATED MERIT TIME ALLOWANCE CREDITS EQUALS
THE PERSON'S TIME SERVED, SUCH PERSON SHALL BE RELEASED TO PAROLE SUPER-
VISION. WHENEVER MERIT TIME ALLOWANCE IS CLAIMED AGAINST THE TERM  OF  A
DETERMINATE  SENTENCE,  AND  THE DETERMINATE TERM LESS ACCUMULATED MERIT
TIME ALLOWANCE CREDITS EQUALS THE INDIVIDUAL'S TIME SERVED,  SUCH  INDI-
VIDUAL SHALL BE RELEASED TO POST-RELEASE SUPERVISION.
  8.  EVERY  PERSON EXCEPT THOSE EXCLUDED PURSUANT TO SUBDIVISION ONE OF
THIS SECTION WHO IS INCARCERATED ON THE EFFECTIVE  DATE OF THIS SUBDIVI-
SION SHALL BE ENTITLED TO NO MORE THAN ONE MONTH OF MERIT TIME ALLOWANCE
FOR EVERY THREE MONTHS SERVED TO BE CREDITED AGAINST THE MINIMUM,  MAXI-
MUM  AND  DETERMINATE  TERMS  OR  PERIODS OF IMPRISONMENT. THE AMOUNT OF
CREDITS ACTUALLY AWARDED SHALL BE DETERMINED BY THE MERIT TIME ALLOWANCE
COMMITTEE AND APPLIED RETROACTIVELY STARTING FROM THE FIRST DAY  OF  THE
CURRENT INCARCERATION. EVERY PERSON WHO IS INCARCERATED ON THE EFFECTIVE
DATE  OF THIS SUBDIVISION, AND WHO HAS ALREADY SERVED HIS OR HER MINIMUM
TERM, SHALL BE EVALUATED RETROACTIVELY FOR  EARNED  ELIGIBILITY  CERTIF-
ICATION.  IN THAT CASE AN IMMEDIATE PAROLE BOARD HEARING SHALL GIVE FULL
CONSIDERATION TO THE MERIT TIME ACCUMULATED.
  S 3. Paragraph (a) of subdivision 2 of section 259-i of the  executive
law, as separately amended by section 11 of part E and section 9 of part
F of chapter 62 of the laws of 2003, is amended to read as follows:
  (a)  (i) Except as provided in subparagraph (ii) of this paragraph, at
least one month prior to the date on which  an  inmate  may  be  paroled
pursuant  to  subdivision one of section 70.40 of the penal law LESS ANY
ACCUMULATED MERIT TIME ALLOWANCE CREDITS, a member or members as  deter-
mined  by  the rules of the board shall personally interview such inmate
and determine whether he OR SHE should be paroled in accordance with the

A. 3508                             4

guidelines adopted pursuant to subdivision four of section  two  hundred
fifty-nine-c of this article. If parole is not granted upon such review,
the inmate shall be informed in writing within two weeks of such appear-
ance  of the factors and reasons for such denial of parole. Such reasons
shall be given in detail and not in conclusory terms.  The  board  shall
specify  a date not more than twenty-four months from such determination
for reconsideration, and the procedures to be followed upon  reconsider-
ation  shall  be the same. If the inmate is released, he OR SHE shall be
given a copy of the conditions of parole  OR  POST-RELEASE  SUPERVISION.
Such  conditions shall where appropriate, include a requirement that the
[parolee] FORMERLY INCARCERATED INDIVIDUAL comply with  any  restitution
order,  mandatory surcharge, sex offender registration fee and DNA data-
bank fee previously imposed by a court of  competent  jurisdiction  that
applies  to  [the  parolee] SUCH INDIVIDUAL.  The board of parole OR THE
POST-RELEASE SUPERVISOR  shall  indicate  which  restitution  collection
agency  established  under  subdivision  eight  of section 420.10 of the
criminal procedure law, shall be responsible for collection of  restitu-
tion,  mandatory surcharge, sex offender registration fees and DNA data-
bank fees as provided for in section 60.35 of the penal law and  section
eighteen hundred nine of the vehicle and traffic law.
  (ii)  Any  inmate who is scheduled for presumptive release pursuant to
section eight hundred six of the correction law shall not appear  before
the  parole  board  as  provided  in  subparagraph (i) of this paragraph
unless  such  inmate's  scheduled  presumptive  release  is   forfeited,
canceled,  or  rescinded  subsequently  as provided in such law. In such
event, the inmate shall appear  before  the  parole  board  for  release
consideration  as provided in subparagraph (i) of this paragraph as soon
thereafter as is practicable.
  S 4. Paragraph (a) of subdivision 2 of section 259-i of the  executive
law,  as  amended by chapter 396 of the laws of 1987, is amended to read
as follows:
  (a) At least one month prior to the expiration of the  minimum  period
or periods of imprisonment fixed by the court or board, LESS ANY ACCUMU-
LATED MERIT TIME ALLOWANCE CREDITS, a member or members as determined by
the  rules  of the board shall personally interview an inmate serving an
indeterminate sentence and determine whether he OR SHE should be paroled
at the expiration of the minimum period or periods  in  accordance  with
the  guidelines  adopted  pursuant  to  subdivision  four of section two
hundred fifty-nine-c OF THIS ARTICLE.   If parole is  not  granted  upon
such review, the inmate shall be informed in writing within two weeks of
such  appearance  of  the factors and reasons for such denial of parole.
Such reasons shall be given in detail and not in conclusory  terms.  The
board  shall  specify  a date not more than twenty-four months from such
determination for reconsideration, and the  procedures  to  be  followed
upon reconsideration shall be the same. If the inmate is released, he OR
SHE  shall  be  given a copy of the conditions of parole OR POST-RELEASE
SUPERVISION.    Such  conditions  shall  where  appropriate,  include  a
requirement  that  the [parolee] FORMALLY INCARCERATED INDIVIDUAL comply
with any restitution order and mandatory surcharge previously imposed by
a court of competent jurisdiction that applies  to  [the  parolee]  SUCH
INDIVIDUAL.   The board of parole OR POST-RELEASE SUPERVISOR shall indi-
cate which restitution collection agency established  under  subdivision
eight  of section 420.10 of the criminal procedure law, shall be respon-
sible for collection of restitution and mandatory surcharge as  provided
for  in section 60.35 of the penal law and section eighteen hundred nine
of the vehicle and traffic law.

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  S 5. Paragraph (c) of subdivision 2 of section 259-i of the  executive
law,  as  separately amended by chapters 40 and 126 of the laws of 1999,
is amended to read as follows:
  (c)  [(A)]  (I)  Discretionary  release on parole shall not be granted
merely as a reward for good conduct or efficient performance  of  duties
while confined but after considering if there is a reasonable probabili-
ty  that,  if such inmate is released, he OR SHE will live and remain at
liberty without violating the law, and that [his] SUCH  release  is  not
incompatible  with  the welfare of society and will not so deprecate the
seriousness of his OR HER crime as to  undermine  respect  for  law.  In
making  the  parole release decision, the guidelines adopted pursuant to
subdivision four of section two hundred  fifty-nine-c  of  this  article
shall  require  that  the following be considered: (i) the institutional
record including program goals and  accomplishments,  academic  achieve-
ments,  vocational  education, training or work assignments, therapy and
interpersonal relationships with staff and inmates AND  THE  RECOMMENDA-
TIONS  OF  THE  APPROPRIATE  MERIT  TIME ALLOWANCE COMMITTEE ESTABLISHED
UNDER SUBDIVISION THREE OF SECTION EIGHT HUNDRED THREE OF THE CORRECTION
LAW; (ii) performance, if any, as a participant in a  temporary  release
program;  (iii) release plans including community resources, employment,
education and training and support services  available  to  the  inmate;
(iv)  any deportation order issued by the federal government against the
inmate while in the custody of the department of  correctional  services
and any recommendation regarding deportation made by the commissioner of
the  department of correctional services pursuant to section one hundred
forty-seven of the correction law; and (v) any  statement  made  to  the
board  by  the  crime  victim  or the victim's representative, where the
crime victim is deceased or is mentally or physically incapacitated. The
board shall provide toll free telephone access for crime victims. In the
case of an oral statement made in accordance  with  subdivision  one  of
section  440.50  of  the criminal procedure law, the parole board member
shall present a written report of the statement to the parole  board.  A
crime  victim's  representative  shall  mean  the crime victim's closest
surviving relative, the committee or guardian of  such  person,  or  the
legal representative of any such person. Such statement submitted by the
victim  or  victim's  representative  may include information concerning
threatening or intimidating conduct  toward  the  victim,  the  victim's
representative, or the victim's family, made by the person sentenced and
occurring  after  the sentencing. Such information may include, but need
not be limited to, the threatening or intimidating conduct of any  other
person who or which is directed by the person sentenced. Notwithstanding
the  provisions  of  this section, in making the parole release decision
for persons whose minimum period of imprisonment was not fixed  pursuant
to the provisions of subdivision one of this section, in addition to the
factors  listed  in  this paragraph the board shall consider the factors
listed in paragraph (a) of subdivision one of this section.
  [(B)] (II) Where a crime victim or victim's representative as  defined
in  subparagraph [(A)] (I) of this paragraph, or other person submits to
the parole board a  written  statement  concerning  the  release  of  an
inmate,  the  parole board shall keep that individual's name and address
confidential.
  S 6. Subparagraphs (ii), (iii) and (iv) of paragraph (a)  of  subdivi-
sion 1 of section 70.40 of the penal law, as amended by chapter 3 of the
laws of 1995, are amended to read as follows:

A. 3508                             6

  (ii) A person who is serving one or more than one determinate sentence
of  imprisonment  IN ACCORDANCE WITH SECTION 70.02 OF THIS ARTICLE shall
be ineligible for discretionary release on parole.
  (iii)  A  person  who  is  serving  one or more than one indeterminate
sentence of imprisonment and one or more than one  determinate  sentence
of  imprisonment which run concurrently may be paroled at any time after
the expiration of the minimum period of imprisonment of  the  indetermi-
nate  sentence  or  sentences,  or upon the expiration of [six-sevenths]
TWO-THIRDS of the term of imprisonment of the  determinate  sentence  or
sentences, whichever is later.
  (iv)  A  person  who  is  serving  one  or more than one indeterminate
sentence of imprisonment and one or more than one  determinate  sentence
of imprisonment which run consecutively may be paroled at any time after
the  expiration of the sum of the minimum or aggregate minimum period of
the indeterminate sentence or sentences and [six-sevenths] TWO-THIRDS of
the term or aggregate term of imprisonment of the  determinate  sentence
or sentences.
  S 7. Paragraph (b) of subdivision 1 of section 70.40 of the penal law,
as  amended  by  chapter  1  of  the laws of 1998, 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 so requests, be condi-
tionally  released from the institution in which he is confined when the
total good behavior time allowed to him, pursuant to the  provisions  of
the  correction law, is equal to the unserved portion of his term, maxi-
mum 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] TWO-THIRDS 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. The  conditions  of  release,
including those governing post-release 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
board  of parole for a period equal to the unserved portion of the term,
maximum term, aggregate maximum term, or period of  post-release  super-
vision.
  S  8.  This  act shall take effect on the ninetieth day after it shall
have become a law, provided that;
  1. the amendments to paragraph (a) of subdivision 2 of  section  259-i
of  the executive law made by section three of this act shall be subject
to the expiration and reversion of such paragraph pursuant  to  subdivi-
sion  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; and
  2.  the  amendments  to  paragraphs  (a)  and  (b) of subdivision 1 of
section 70.40 of the penal law made by sections six and  seven  of  this
act  shall  not  affect  the  expiration of such paragraphs and shall be
deemed to expire therewith.