S T A T E O F N E W Y O R K
________________________________________________________________________
3672
2009-2010 Regular Sessions
I N A S S E M B L Y
January 28, 2009
___________
Introduced by M. of A. KOON -- Multi-Sponsored by -- M. of A. ALFANO,
BARRA -- read once and referred to the Committee on Correction
AN ACT to amend the correction law and the penal law, in relation to
barring sex offenders from community service and temporary release
programs
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The opening paragraph of subdivision 2 of section 851 of
the correction law, as amended by chapter 320 of the laws of 2006, is
amended to read as follows:
"Eligible inmate" means: 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. Provided, however,
that a person under sentence for an offense defined in paragraphs (a)
and (b) of subdivision one of section 70.02 of the penal law, where such
offense involved the use or threatened use of a deadly weapon or danger-
ous instrument shall not be eligible to participate in a work release
program until he or she is eligible for release on parole or who will be
eligible for release on parole or conditional release within eighteen
months. Provided, further, however, that a person under a determinate
sentence as a second felony drug offender for a class B felony offense
defined in article two hundred twenty of the penal law, who was
sentenced pursuant to section 70.70 of such law, shall not be eligible
to participate in a temporary release program until the time served
under imprisonment for his or her determinate sentence, including any
jail time credited pursuant to the provisions of article seventy of the
penal law, shall be at least eighteen months. In the case of a person
serving an indeterminate sentence of imprisonment imposed pursuant to
the penal law in effect after September one, nineteen hundred sixty-sev-
en, for the purposes of this article parole eligibility shall be upon
the expiration of the minimum period of imprisonment fixed by the court
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02285-01-9
A. 3672 2
or where the court has not fixed any period, after service of the mini-
mum period fixed by the state board of parole. If an inmate is denied
release on parole, such inmate shall not be deemed an eligible inmate
until he or she is within two years of his or her next scheduled appear-
ance before the state parole board. In any case where an inmate is
denied release on parole while participating in a temporary release
program, the department shall review the status of the inmate to deter-
mine if continued placement in the program is appropriate. No person
convicted of any escape or absconding offense defined in article two
hundred five of the penal law shall be eligible for temporary release.
Further, no person under sentence for aggravated harassment of an
employee by an inmate as defined in section 240.32 of the penal law for,
any homicide offense defined in article one hundred twenty-five of the
penal law, for any sex offense defined in article one hundred thirty of
the penal law, or for an offense defined in section 255.25, 255.26 or
255.27 of the penal law shall be eligible to participate in a work
release program as defined in subdivision three of this section. Nor
shall any person under sentence for any sex offense defined in article
one hundred thirty of the penal law OR SEXUAL PERFORMANCE BY A CHILD
OFFENSES DEFINED IN ARTICLE TWO HUNDRED SIXTY-THREE OF THE PENAL LAW be
eligible to participate in a community services program as defined in
subdivision five of this section. Notwithstanding the foregoing, no
person who is an otherwise eligible inmate who is under sentence for a
crime involving: (a) infliction of serious physical injury upon another
as defined in the penal law or (b) any other offense involving the use
or threatened use of a deadly weapon may participate in a temporary
release program without the written approval of the commissioner. The
commissioner shall promulgate regulations giving direction to the tempo-
rary release committee at each institution in order to aid such commit-
tees in carrying out this mandate.
S 2. The opening paragraph of subdivision 2 of section 851 of the
correction law, as amended by chapter 252 of the laws of 2005, is
amended to read as follows:
"Eligible inmate" means: 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. Provided, that a
person under a determinate sentence as a second felony drug offender for
a class B felony offense defined in article two hundred twenty of the
penal law, who was sentenced pursuant to section 70.70 of such law,
shall not be eligible to participate in a temporary release program
until the time served under imprisonment for his or her determinate
sentence, including any jail time credited pursuant to the provisions of
article seventy of the penal law, shall be at least eighteen months. In
the case of a person serving an indeterminate sentence of imprisonment
imposed pursuant to the penal law in effect after September one, nine-
teen hundred sixty-seven, for the purposes of this article parole eligi-
bility shall be upon the expiration of the minimum period of imprison-
ment fixed by the court or where the court has not fixed any period,
after service of the minimum period fixed by the state board of parole.
If an inmate is denied release on parole, such inmate shall not be
deemed an eligible inmate until he or she is within two years of his or
her next scheduled appearance before the state parole board. In any case
where an inmate is denied release on parole while participating in a
temporary release program, the department shall review the status of the
inmate to determine if continued placement in the program is appropri-
ate. No person convicted of any escape or absconding offense defined in
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article two hundred five of the penal law shall be eligible for tempo-
rary release. Nor shall any person under sentence for any sex offense
defined in article one hundred thirty of the penal law OR SEXUAL
PERFORMANCE BY A CHILD OFFENSE DEFINED IN ARTICLE TWO HUNDRED
SIXTY-THREE OF THE PENAL LAW be eligible to participate in a community
services program as defined in subdivision five of this section.
Notwithstanding the foregoing, no person who is an otherwise eligible
inmate who is under sentence for a crime involving: (a) infliction of
serious physical injury upon another as defined in the penal law, (b) a
sex offense involving forcible compulsion, or (c) any other offense
involving the use or threatened use of a deadly weapon may participate
in a temporary release program without the written approval of the
commissioner. The commissioner shall promulgate regulations giving
direction to the temporary release committee at each institution in
order to aid such committees in carrying out this mandate.
S 3. Paragraph (h) of subdivision 2 of section 65.10 of the penal law,
as amended by chapter 508 of the laws of 2001, is amended to read as
follows:
(h) Perform services for a public or not-for-profit corporation, asso-
ciation, institution or agency, including but not limited to services
for the division of substance abuse services, services in an appropriate
community program for removal of graffiti from public or private proper-
ty, including any property damaged in the underlying offense, or
services for the maintenance and repair of real or personal property
maintained as a cemetery plot, grave, burial place or other place of
interment of human remains. Provided however, that the performance of
any such services shall not result in the displacement of employed work-
ers or in the impairment of existing contracts for services, nor shall
the performance of any such services be required or permitted in any
establishment involved in any labor strike or lockout. The court may
establish provisions for the early termination of a sentence of
probation or conditional discharge pursuant to the provisions of subdi-
vision three of section 410.90 of the criminal procedure law after such
services have been completed. Such sentence may only be imposed upon
conviction of a misdemeanor, violation, or class D or class E felony, or
a youthful offender finding replacing any such conviction, where the
defendant has consented to the amount and conditions of such service.
NOTWITHSTANDING ANY OTHER PROVISION OF LAW, SUCH SENTENCE MAY NOT BE
IMPOSED UPON ANY PERSON CONVICTED OF ANY SEX OFFENSE DEFINED IN ARTICLE
ONE HUNDRED THIRTY OF THIS CHAPTER, ANY SEXUAL PERFORMANCE BY A CHILD
OFFENSE DEFINED IN ARTICLE TWO HUNDRED SIXTY-THREE OF THIS CHAPTER OR AN
OFFENSE DEFINED IN SECTION 255.25 OF THIS CHAPTER;
S 4. Section 870 of the correction law, as amended by chapter 71 of
the laws of 1976, is amended to read as follows:
S 870. Establishment of program. The sheriff, upon approval of the
legislative body of the county, may establish a work release program
pursuant to which prisoners, sentenced to and confined in any county
jail under his jurisdiction, may be granted the privilege of leaving
confinement for the purpose of working at gainful employment, partic-
ipating in a privately or publicly sponsored program of vocational
training, with or without compensation, or attending an educational
institution. The work release program may also include the release from
confinement during necessary and reasonable hours for the purpose of
caring for the prisoner's family. NOTWITHSTANDING ANY OTHER PROVISION
OF LAW, NO PERSON WHO HAS BEEN CONVICTED OF ANY SEX OFFENSE DEFINED IN
ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW, ANY SEXUAL PERFORMANCE BY A
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CHILD OFFENSE DEFINED IN ARTICLE TWO HUNDRED SIXTY-THREE OF THE PENAL
LAW OR AN OFFENSE DEFINED IN SECTION 255.25 OF THE PENAL LAW SHALL BE
ELIGIBLE TO PARTICIPATE IN A WORK RELEASE PROGRAM AS DEFINED IN THIS
SECTION.
S 5. This act shall take effect immediately, provided, however, that
the amendments to the opening paragraph of subdivision 2 of section 851
of the correction law made by section one of this act shall be subject
to the expiration and reversion of such paragraph pursuant to section 46
of chapter 60 of the laws of 1994, as amended when upon such date, the
provisions of section two of this act shall take effect.