S T A T E O F N E W Y O R K
________________________________________________________________________
329--A
2011-2012 Regular Sessions
I N S E N A T E
(PREFILED)
January 5, 2011
___________
Introduced by Sens. MONTGOMERY, HASSELL-THOMPSON, KRUEGER, OPPENHEIMER,
PARKER, SERRANO -- read twice and ordered printed, and when printed to
be committed to the Committee on Crime Victims, Crime and Correction
-- recommitted to the Committee on Crime Victims, Crime and Correction
in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT to amend the correction law, in relation to merit time allowances
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subparagraph (ii) of paragraph (d) of subdivision 1 of
section 803 of the correction law, as added by section 7 of chapter 738
of the laws of 2004, is 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.
(VI) 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,
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01519-03-2
S. 329--A 2
AN ARSON OFFENSE AS DEFINED BY ARTICLE ONE HUNDRED FIFTY 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 INDETERMINATE SENTENCE OR
SENTENCES AND WHO CAN DEMONSTRATE TO THE COMMISSIONER THAT: (1) THE
PERSON IS A VICTIM OF DOMESTIC VIOLENCE WHO WAS SUBJECTED TO SUBSTANTIAL
PHYSICAL, SEXUAL OR PSYCHOLOGICAL ABUSE 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 (2) SUCH OFFENSE WAS COMMITTED AS A
DIRECT RESULT OF SUCH ABUSE, MAY RECEIVE MERIT TIME ALLOWANCE CREDIT IN
THE AMOUNT PROVIDED FOR IN SUBPARAGRAPH (III) OF THIS PARAGRAPH. 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 OFFENSE WAS
COMMITTED AS A DIRECT RESULT OF SUCH ABUSE, 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 WITHIN 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. Subparagraph (ii) of paragraph (d) of subdivision 1 of section
803 of the correction law, as added by section 10-a of chapter 738 of
the laws of 2004, is 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.
S. 329--A 3
(VI) 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 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 INDETERMINATE SENTENCE OR
SENTENCES AND WHO CAN DEMONSTRATE TO THE COMMISSIONER THAT: (1) THE
PERSON IS A VICTIM OF DOMESTIC VIOLENCE WHO WAS SUBJECTED TO SUBSTANTIAL
PHYSICAL, SEXUAL OR PSYCHOLOGICAL ABUSE 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 (2) SUCH OFFENSE WAS COMMITTED AS A
DIRECT RESULT OF SUCH ABUSE, MAY RECEIVE MERIT TIME ALLOWANCE CREDIT IN
THE AMOUNT PROVIDED FOR IN SUBPARAGRAPH (III) OF THIS PARAGRAPH. 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 OFFENSE WAS
COMMITTED AS A DIRECT RESULT OF SUCH ABUSE, 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 WITHIN 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 3 of section 803 of the correction law, as amended by
section 37 of subpart B of part C of chapter 62 of the laws of 2011, is
amended to read as follows:
3. The commissioner of corrections and community supervision shall
promulgate rules and regulations for the granting, withholding, forfei-
ture, 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 correctional institution delegated to make discretionary deter-
minations with respect to the allowances, the books and records to be
S. 329--A 4
kept, and a procedure for review of the institutional determinations by
the commissioner. FURTHER, THE COMMISSIONER OR THE COMMISSIONER'S
DESIGNEE MAY CONSULT WITH THE OFFICE FOR THE PREVENTION OF DOMESTIC
VIOLENCE REGARDING THE PROMULGATION OF RULES AND REGULATIONS FOR GRANT-
ING, WITHHOLDING, FORFEITURE, CANCELLATION AND RESTORATION OF MERIT TIME
ALLOWANCES PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION
ONE OF THIS SECTION. TO ASSIST IN THE IMPLEMENTATION OF SUBPARAGRAPH
(VI) OF PARAGRAPH (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 4. Subdivision 3 of section 803 of the correction law, as amended by
section 38 of subpart B of part C of chapter 62 of the laws of 2011, is
amended to read as follows:
3. The commissioner of corrections and community supervision shall
promulgate rules and regulations for the granting, withholding, forfei-
ture, 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 correctional institution delegated to make discretionary deter-
minations with respect to the allowances, the books and records to be
kept, and a procedure for review of the institutional determinations by
the commissioner. FURTHER, THE COMMISSIONER OR THE COMMISSIONER'S
DESIGNEE MAY CONSULT WITH THE OFFICE FOR THE PREVENTION OF DOMESTIC
VIOLENCE REGARDING THE PROMULGATION OF RULES AND REGULATIONS FOR GRANT-
ING, WITHHOLDING, FORFEITURE, CANCELLATION AND RESTORATION OF MERIT TIME
ALLOWANCES PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (D) OF SUBDIVISION
ONE OF THIS SECTION. TO ASSIST IN THE IMPLEMENTATION OF SUBPARAGRAPH
(VI) OF PARAGRAPH (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 5. 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
S. 329--A 5
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 6. 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.
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,
S. 329--A 6
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 7. 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 FIVE-SIXTHS OF THE MINIMUM OR AGGREGATE MINIMUM PERIOD OF
THE INDETERMINATE TERM IMPOSED BY THE COURT.
S 8. 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 THE OFFENSE WAS COMMITTED AS A
DIRECT RESULT OF SUCH ABUSE, such demonstration shall include corrobora-
tive material that may include, but is not limited to, witness state-
ments, 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 CONSULTA-
TION 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 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 subdivision, the commissioner is required to
request and take into consideration 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
S. 329--A 7
CONSULT WITH THE OFFICE FOR THE PREVENTION OF DOMESTIC VIOLENCE TO
PROMULGATE RULES AND REGULATIONS 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 DETERMINATIONS PURSUANT TO THIS SUBDIVISION. 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 WORK RELEASE PURSUANT 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 judi-
cial function and shall not be reviewable in any court.
S 9. The commissioner of the department of corrections and community
supervision shall present to the governor, the temporary president of
the senate and the speaker of the assembly an annual report about the
granting and withholding of merit time allowance pursuant to subpara-
graph (vi) of paragraph (d) of subdivision 1 of section 803 of the
correction law and the operation of the work release program as applied
to inmates deemed eligible pursuant to subdivision 2-a of section 851 of
the correction law. Such report shall include, but not be limited to,
the number of inmates who apply for such merit time allowance, the
number of inmates approved for such merit time allowance, the number of
denials of applications for such merit time allowance, the reasons for
denials of applications for such merit time allowance, the crime of
conviction and the sentence for each inmate granted such merit time
allowance, the number of inmates eligible for work release, the number
of inmates granted work release pursuant to subdivision 2-a of section
851 of the correction law, the number of denials of applications for
such work release, the reasons for denials of applications for such work
release, and the role of the office for the prevention of domestic
violence in assisting the department of correctional services to make
determinations regarding the granting or withholding of such merit time
allowance and the eligibility for work release pursuant to subdivision
2-a of section 851 of the correction law. The initial report required by
this section shall be presented by December 31, 2013. Thereafter, an
annual report shall be presented no later than December 31 of each year.
S 10. 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 3 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 sections 806 and 851 of the correction
law made by sections seven and eight of this act shall not affect the
expiration or repeal of such sections and shall expire or be deemed
repealed therewith; and provided, further, that the amendments to
S. 329--A 8
section 805 of the correction law made by section five of this act shall
be subject to the expiration and reversion of such section pursuant to
chapter 261 of the laws of 1987 and chapter 3 of the laws of 1995, as
amended, when upon such date the provisions of section six of this act
shall take effect.