NY State Assembly Bill 2009-A40005

Assembly Bill A40005

Signed By Governor

2009-2010 Legislative Session

Relates to eligibility of certain felony offenders for parole and medical parole

download bill text pdf

Archive: Last Bill Status Via S66005 - Signed by Governor

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Nov 16, 2009	signed chap.495
Nov 10, 2009	delivered to governor returned to senate passed assembly message of necessity - 3 day message ruling of chair on point of order ordered to third reading rules cal.680 substituted for a40005
Nov 10, 2009	substituted by s66005 rules report cal.680 reported reported referred to rules referred to codes

Votes

- Nov 10, 2009 - Floor Vote
  S66005
  
  61
  
  Aye
  
  0
  
  Nay
  
  0
  
  Absent
  
  1
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Nov 10, 2009
      
      aye (61)
      
      Adams
      
      Addabbo Jr.
      
      Alesi
      
      Aubertine
      
      Bonacic
      
      Breslin
      
      DeFrancisco
      
      Diaz
      
      Dilan
      
      Duane
      
      Espada
      
      Farley
      
      Flanagan
      
      Foley
      
      Fuschillo
      
      Golden
      
      Griffo
      
      Hannon
      
      Hassell-Thompson
      
      Huntley
      
      Johnson
      
      Klein
      
      Krueger
      
      Kruger
      
      LaValle
      
      Lanza
      
      Larkin
      
      Leibell
      
      Libous
      
      Little
      
      Marcellino
      
      Maziarz
      
      McDonald
      
      Monserrate
      
      Montgomery
      
      Morahan
      
      Nozzolio
      
      Onorato
      
      Oppenheimer
      
      Padavan
      
      Parker
      
      Perkins
      
      Ranzenhofer
      
      Robach
      
      Saland
      
      Sampson
      
      Savino
      
      Schneiderman
      
      Serrano
      
      Seward
      
      Skelos
      
      Smith
      
      Squadron
      
      Stachowski
      
      Stavisky
      
      Stewart-Cousins
      
      Thompson
      
      Valesky
      
      Volker
      
      Winner
      
      Young
      
      excused (1)
      
      Johnson
  Nov 10, 2009 - Rules Committee Vote
  S66005
  
  23
  
  Aye
  
  0
  
  Nay
  
  0
  
  Aye with Reservations
  
  0
  
  Absent
  
  1
  
  Excused
  
  0
  
  Abstained
  - - Rules Committee Vote: Nov 10, 2009
      
      aye (23)
      
      Dilan
      
      Duane
      
      Espada
      
      Farley
      
      Hannon
      
      Hassell-Thompson
      
      Klein
      
      Krueger
      
      LaValle
      
      Larkin
      
      Monserrate
      
      Montgomery
      
      Padavan
      
      Parker
      
      Saland
      
      Serrano
      
      Seward
      
      Skelos
      
      Smith
      
      Stachowski
      
      Stewart-Cousins
      
      Valesky
      
      Volker
      
      excused (1)
      
      Johnson

co-Sponsors

View additional co-sponsors

2009-A40005 (ACTIVE) - Details

See Senate Version of this Bill:: S66005
Law Section:: Penal Law
Laws Affected:: Amd §70.25, Pen L; amd §§259-r & 259-s, Exec L

2009-A40005 (ACTIVE) - Summary

Relates to eligibility of certain felony offenders for parole and medical parole; requires consecutive sentences for certain A-1 felony offenders and child sexual assault crimes.

2009-A40005 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:A40005

TITLE OF BILL:

An act to amend the penal law and the executive law, in relation to
consecutive sentences for certain felony offenders and their
eligibility for parole and medical parole

PURPOSE:

This bill mandates that a state sentence of imprisonment imposed on a
person convicted of an A-1 felony shall run consecutively to a
previously imposed, undischarged state sentence of imprisonment,
thereby preventing such person from receiving credit for time served
on the previously imposed sentence. The bill also applies this rule to
second child sexual assault felony offenders. In addition, the bill
provides that an inmate who becomes eligible for medical parole upon
serving one-half of his or her sentence shall not receive credit on
that sentence for time previously served on a prior sentence.

SUMMARY OF PROVISIONS:

Sections 1 and 2 of the bill amend Penal Law (PL) § 70.25(2-a) to
provide that a sentence imposed for a class A-1 felony pursuant to PL
§ 70.00 or a sentence imposed for second child sexual assault felony
offense under PL § 70.07, shall be imposed to run consecutively to any

undischarged term of state imprisonment imposed prior to the
commission of those offenses.

Sections 3 through 5 of the bill amend Executive Law (EL) §259-r(1)
(a) and EL §259s(1)(a) to ensure that solely for the purpose of
determining medical parole eligibility under those sections, time
served on a previously imposed, undischarged sentence shall not be
credited to the present sentence.

Section 6 of the bill provides for an immediate effective date,
provided that the amendments to § 70.25(2-a) made in sections 1 and 2
of the bill shall apply to offenses committed on or after the
effective date of the bill.

EXISTING LAW:

Penal Law §70.25(2-a) currently provides that when a person is subject
to a previously imposed, undischarged indeterminate or determinate
term of imprisonment, and is being sentenced to an additional
indeterminate or determinate term as a repeat offender, the additional
sentence must be imposed to run consecutively to the prior sentence.
This section applies to almost all repeat felony offenders:  second or
persistent felony offenders; second or persistent violent felony
offenders; predicate felony sex offenders; and second felony drug
offenders. By mandating consecutive sentencing, this section ensures
that when a new sentence is imposed for a listed offense, the new
sentence is not credited with any time served on the previously
imposed, undischarged sentence pursuant to PL §70.30(1)(a).


EL § 259-r(1)(a) and §259-s(1)(a) authorize medical parole for inmates
who have been certified to be suffering from a terminal condition or a
significant and permanent non-terminal illness that creates a
reasonable probability that they do not present a danger.  to society.
Inmates serving sentences for Murder 2nd, Manslaughter 1st, any sex
offense defined in PL Article 130 or an attempt to commit any of these
crimes are eligible to be considered for medical parole only upon
serving one-half of the imposed sentence. (Inmates serving sentences
for Murder 1st are never eligible for medical parole.)

STATEMENT IN SUPPORT:

Due to an apparent drafting oversight, the most serious crimes of all
are not covered by PL §70.25(2-a), and may therefore receive credit on
their sentences that is denied to other repeat offenders. A person
convicted of a non-drug A-1 felony (e.g., Murder 2nd, Arson 1st,
Kidnapping 1st and Conspiracy 1st) cannot be sentenced as a second or
persistent offender. Second child sexual assault felony offenders also
fall outside the ambit of PL §70.25(2-a). Instead, both classes of
offenders fall within the scope of PL §70.25(1), which provides that
the second sentence may be imposed to run either concurrently or
consecutively to the undischarged sentence, and is deemed to run
concurrently if the court fails to specify. If the new sentence is
imposed or deemed to run concurrently with the prior sentence, the new
sentence is credited with time served on the previously imposed,
undischarged sentence, and the length of the new sentence, if
determinate, or its minimum period, if indeterminate, is reduced by
that length of time pursuant to PL §70.30(1)(a). A person who receives
PL §70.30(1)(a) credit becomes eligible for parole earlier than
someone who does not receive credit for the previously served time.

This has important consequences when determining a person's
eligibility for medical parole after having been sentenced for certain
crimes. In such cases, a person serving indeterminate sentences or a
combination of indeterminate and determinate sentences may be eligible
for medical parole upon serving one-half of the minimum period; a
person serving determinate sentences may become eligible upon serving
one-half of the sentence. However, if such person's sentence is
reduced under to PL §70.30(1)(a), he or she becomes eligible for
medical parole sooner - a windfall that is denied to virtually every
other felony offender by PL §70.25(2-a).

The windfall effect is especially clear when the first sentence is a
long one. For example, if an inmate is paroled after serving 10 years
on a prior sentence, and commits a murder while on parole leading to a
new 20-year to life sentence, he or she will receive 10 years of
credit toward the minimum period of the new murder sentence if the
court imposes the sentence concurrently or is silent. Instead of
becoming eligible for medical parole after serving 10 years, one-half
the minimum sentence, he or she will actually become eligible for
medical parole immediately.

The bill prevents A-1 felony offenders and second child sexual assault
felony offenders from receiving this unintended benefit by adding them
to the list of offenders covered by PL §70.25(2-a). It is unfair to
allow the possibility of concurrent sentencing for A-1 felony
offenders when virtually every other felony offender who is subject to


predicate sentencing must receive a consecutive sentence. This bill
ensures that if an A-1 felony offender commits such offense after the
imposition of a prior sentence of state imprisonment, the new sentence
will be imposed to run consecutively to the prior sentence and will
not be reduced by the time previously served. Finally, the bill
ensures that, regardless of how a sentence is imposed, inmates who are
required to serve one-half of their determinate sentence or one-half
of the minimum period of their indeterminate sentence in order to
become eligible for medical parole do in fact serve one-half of the
imposed sentence before they can be considered for such release.

BUDGET IMPLICATIONS:

There is no appreciable impact on the operations and budgets of State
and local enforcement agencies as a result of this bill.

LEGISLATIVE HISTORY:

None.

EFFECTIVE DATE:

This bill would take effect immediately, provided that the amendments
to § 70.25(2-a) made in sections 1 and 2 of the bill apply to offenses
committed on or after the effective date of the bill.

2009-A40005 (ACTIVE) - Bill Text download pdf

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

    S. 5                                                        A. 5

                     Twentieth Extraordinary Session

                      S E N A T E - A S S E M B L Y

                            November 10, 2009
                               ___________

IN SENATE -- Introduced by Sens. VALESKY, SCHNEIDERMAN -- (at request of
  the  Governor)  -- read twice and ordered printed, and when printed to
  be committed to the Committee on Rules

IN ASSEMBLY -- Introduced by COMMITTEE ON RULES -- (at request of M.  of
  A. Magnarelli, Lentol, Russell, DelMonte, Stirpe, Ramos, Alessi, Hyer-
  Spencer,  Titone,  Gordon,  Skartados,  Reilly)  -- (at request of the
  Governor) -- read once and referred to the Committee on Codes

AN ACT to amend the penal law and the  executive  law,  in  relation  to
  consecutive sentences for certain felony offenders and their eligibil-
  ity for parole and medical parole

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

  Section 1. Subdivision 2-a of section  70.25  of  the  penal  law,  as
amended  by  section  40 of chapter 7 of the laws of 2007, is amended to
read as follows:
  2-a. When an indeterminate or determinate sentence of imprisonment  is
imposed  pursuant to section 70.04, 70.06, 70.07, 70.08, 70.10, subdivi-
sion three or four of  section  70.70,  subdivision  three  or  four  of
section  70.71  or subdivision five of section 70.80 of this article, OR
IS IMPOSED FOR A CLASS A-I FELONY PURSUANT  TO  SECTION  70.00  OF  THIS
ARTICLE,  and such person is subject to an undischarged indeterminate or
determinate sentence of imprisonment imposed prior to the date on  which
the present crime was committed, the court must impose a sentence to run
consecutively with respect to such undischarged sentence.
  S  2. Subdivision 2-a of section 70.25 of the penal law, as amended by
section 41 of chapter 7 of the laws of  2007,  is  amended  to  read  as
follows:
  2-a.  When an indeterminate or determinate sentence of imprisonment is
imposed pursuant to section 70.04, 70.06, 70.07, 70.08, 70.10,  subdivi-
sion  three  or  four  of  section  70.70,  subdivision three or four of

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD12147-04-9

S. 5                                2                               A. 5

section 70.71 or subdivision five of section 70.80 of this  article,  OR
IS  IMPOSED  FOR  A  CLASS  A-I FELONY PURSUANT TO SECTION 70.00 OF THIS
ARTICLE, and such person is subject  to  an  undischarged  indeterminate
sentence  of imprisonment imposed prior to the date on which the present
crime was committed, the court must impose a  sentence  to  run  consec-
utively with respect to such undischarged sentence.
  S  3. Paragraph (a) of subdivision 1 of section 259-r of the executive
law, as amended by section 1 of part J of chapter  56  of  the  laws  of
2009, is amended to read as follows:
  (a)  The  board  shall have the power to release on medical parole any
inmate serving an indeterminate or determinate sentence of  imprisonment
who,  pursuant to subdivision two of this section, has been certified to
be suffering from a terminal condition, disease or syndrome and to be so
debilitated or incapacitated as to create a reasonable probability  that
he  or  she  is  physically  or  cognitively incapable of presenting any
danger to society, provided, however, that no inmate serving a  sentence
imposed  upon  a conviction for murder in the first degree or an attempt
or conspiracy to commit murder in the first degree shall be eligible for
such release, and provided further that no  inmate  serving  a  sentence
imposed  upon  a  conviction  for any of the following offenses shall be
eligible for such  release  unless  in  the  case  of  an  indeterminate
sentence he or she has served at least one-half of the minimum period of
the  sentence  and  in  the case of a determinate sentence he or she has
served at least one-half of THE TERM OF his or her DETERMINATE sentence:
murder in the second degree,  manslaughter  in  the  first  degree,  any
offense  defined  in  article  one hundred thirty of the penal law or an
attempt to commit any of these  offenses.  SOLELY  FOR  THE  PURPOSE  OF
DETERMINING  MEDICAL  PAROLE  ELIGIBILITY PURSUANT TO THIS SECTION, SUCH
ONE-HALF OF  THE  MINIMUM  PERIOD  OF  THE  INDETERMINATE  SENTENCE  AND
ONE-HALF  OF  THE TERM OF THE DETERMINATE SENTENCE SHALL NOT BE CREDITED
WITH ANY TIME SERVED UNDER THE JURISDICTION OF THE STATE  DEPARTMENT  OF
CORRECTIONAL  SERVICES PRIOR TO THE COMMENCEMENT OF SUCH SENTENCE PURSU-
ANT TO THE OPENING PARAGRAPH OF SUBDIVISION ONE OF SECTION 70.30 OF  THE
PENAL LAW OR SUBDIVISION TWO-A OF SECTION 70.30 OF THE PENAL LAW, EXCEPT
TO  THE  EXTENT  AUTHORIZED BY SUBDIVISION THREE OF SECTION 70.30 OF THE
PENAL LAW.
  S 4. Paragraph (a) of subdivision 1 of section 259-r of the  executive
law,  as  amended  by  section  2 of part J of chapter 56 of the laws of
2009, is amended to read as follows:
  (a) The board shall have the power to release on  medical  parole  any
inmate  serving an indeterminate or determinate sentence of imprisonment
who, pursuant to subdivision two of this section, has been certified  to
be suffering from a terminal condition, disease or syndrome and to be so
debilitated  or incapacitated as to create a reasonable probability that
he or she is physically  or  cognitively  incapable  of  presenting  any
danger  to society, provided, however, that no inmate serving a sentence
imposed upon a conviction for murder in the first degree or  an  attempt
or conspiracy to commit murder in the first degree shall be eligible for
such  release,  and  provided  further that no inmate serving a sentence
imposed upon a conviction for any of the  following  offenses  shall  be
eligible  for  such  release  unless  in  the  case  of an indeterminate
sentence he or she has served at least one-half of the minimum period of
the sentence and in the case of a determinate sentence  he  or  she  has
served at least one-half of THE TERM OF his or her DETERMINATE sentence:
murder  in  the  second  degree,  manslaughter  in the first degree, any
offense defined in article one hundred thirty of the  penal  law  or  an

S. 5                                3                               A. 5

attempt  to  commit  any  of  these  offenses. SOLELY FOR THE PURPOSE OF
DETERMINING MEDICAL PAROLE ELIGIBILITY PURSUANT TO  THIS  SECTION,  SUCH
ONE-HALF  OF  THE  MINIMUM  PERIOD  OF  THE  INDETERMINATE  SENTENCE AND
ONE-HALF  OF  THE TERM OF THE DETERMINATE SENTENCE SHALL NOT BE CREDITED
WITH ANY TIME SERVED UNDER THE JURISDICTION OF THE STATE  DEPARTMENT  OF
CORRECTIONAL  SERVICES PRIOR TO THE COMMENCEMENT OF SUCH SENTENCE PURSU-
ANT TO THE OPENING PARAGRAPH OF SUBDIVISION ONE OF SECTION 70.30 OF  THE
PENAL LAW OR SUBDIVISION TWO-A OF SECTION 70.30 OF THE PENAL LAW, EXCEPT
TO  THE  EXTENT  AUTHORIZED BY SUBDIVISION THREE OF SECTION 70.30 OF THE
PENAL LAW.
  S 5. Paragraph (a) of subdivision 1 of section 259-s of the  executive
law,  as added by section 6 of part J of chapter 56 of the laws of 2009,
is amended to read as follows:
  (a) The board shall have the power to release on  medical  parole  any
inmate  serving an indeterminate or determinate sentence of imprisonment
who, pursuant to subdivision two of this section, has been certified  to
be  suffering  from  a significant and permanent non-terminal condition,
disease or syndrome that has rendered the inmate so physically or cogni-
tively debilitated or incapacitated as to create a reasonable probabili-
ty that he or she does not present  any  danger  to  society,  provided,
however, that no inmate serving a sentence imposed upon a conviction for
murder  in the first degree or an attempt or conspiracy to commit murder
in the first degree shall be eligible for  such  release,  and  provided
further  that no inmate serving a sentence imposed upon a conviction for
any of the following offenses shall be eligible for such release  unless
in  the  case of an indeterminate sentence he or she has served at least
one-half of the minimum period of the sentence and  in  the  case  of  a
determinate  sentence he or she has served at least one-half of THE TERM
OF his or  her  DETERMINATE  sentence:  murder  in  the  second  degree,
manslaughter  in  the  first  degree, any offense defined in article one
hundred thirty of the penal law or an attempt to  commit  any  of  these
offenses. SOLELY FOR THE PURPOSE OF DETERMINING MEDICAL PAROLE ELIGIBIL-
ITY PURSUANT TO THIS SECTION, SUCH ONE-HALF OF THE MINIMUM PERIOD OF THE
INDETERMINATE  SENTENCE  AND  ONE-HALF  OF  THE  TERM OF THE DETERMINATE
SENTENCE SHALL NOT BE CREDITED WITH ANY TIME SERVED UNDER THE  JURISDIC-
TION  OF  THE  STATE  DEPARTMENT  OF  CORRECTIONAL SERVICES PRIOR TO THE
COMMENCEMENT OF SUCH SENTENCE  PURSUANT  TO  THE  OPENING  PARAGRAPH  OF
SUBDIVISION  ONE  OF SECTION 70.30 OF THE PENAL LAW OR SUBDIVISION TWO-A
OF SECTION 70.30 OF THE PENAL LAW, EXCEPT TO THE  EXTENT  AUTHORIZED  BY
SUBDIVISION THREE OF SECTION 70.30 OF THE PENAL LAW.
  S 6. This act shall take effect immediately; provided that:
  (a)  the  amendments  to subdivision 2-a of section 70.25 of the penal
law made by section one of this act shall apply to offenses committed on
or after the effective date of this act; and
  (b) the amendments to subdivision 2-a of section 70.25  of  the  penal
law  made  by section one of this act shall be subject to the expiration
and reversion of such subdivision 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
  (c)  the amendments to paragraph (a) of subdivision 1 of section 259-r
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.

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Assembly Bill A40005

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Sponsored By

MAGNARELLI

Archive: Last Bill Status Via S66005 - Signed by Governor

co-Sponsors

Joseph Lentol

Addie Jenne

Francine DelMonte

Albert A. Stirpe

2009-A40005 (ACTIVE) - Details

2009-A40005 (ACTIVE) - Summary

2009-A40005 (ACTIVE) - Sponsor Memo

2009-A40005 (ACTIVE) - Bill Text download pdf

Comments