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

                                  2997

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 22, 2013
                               ___________

Introduced  by  M.  of A. CLARK, GIBSON -- 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  corrections  and  community
supervision  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 willing-
ness and ability to work in society through  completion  of  therapeutic
and  treatment  programs prescribed by the department of corrections and
community supervision.
  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 Section 803 of the correction law is REPEALED and a  new  section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.
                                                           LBD06304-01-3

              

A. 2997                             2

  (B)  A  PERSON  SERVING  AN INDETERMINATE SENTENCE OF IMPRISONMENT MAY
RECEIVE TIME ALLOWANCE AGAINST THE MAXIMUM TERM OF HIS OR  HER  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 OR HER  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  amended by section 38-f-1 of subpart A of part C of chapter 62
of the laws of 2011, 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. 2997                             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 conditions 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 restitution, mandatory surcharge, sex offender  regis-
tration  fees  and DNA databank fees as provided for in section 60.35 of
the penal law and section eighteen hundred nine of the vehicle and traf-
fic 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 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  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 section 38-f-2 of subpart A of part C of  chapter  62
of the laws of 2011, 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 procedures 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 determi-
nation  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 SUPER-
VISION.  Such  conditions shall where appropriate, include a requirement
that the [parolee] FORMERLY  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 conditions shall indicate which restitution collection agency estab-
lished under subdivision eight of section 420.10 of the criminal  proce-
dure  law, shall be responsible for collection of restitution and manda-
tory 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
and subparagraph (A) as amended by section 38-f-1 of subpart A of part C
of chapter 62 of the laws of 2011, 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 procedures 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
interactions with staff and  inmates  AND  THE  RECOMMENDATIONS  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 and any recommendation regarding
deportation made by the  commissioner  of  the  department  pursuant  to
section one hundred forty-seven of the correction law; (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 incapac-
itated; (vi) the length of the determinate sentence to which the  inmate
would  be  subject had he or she received a sentence pursuant to section
70.70 or section 70.71 of the penal law for a felony defined in  article
two  hundred  twenty or article two hundred twenty-one of the penal law;
(vii) the seriousness of the offense with due consideration to the  type
of  sentence,  length  of sentence and recommendations of the sentencing
court, the district attorney, the attorney for the inmate, the  pre-sen-
tence  probation  report  as well as consideration of any mitigating and
aggravating factors, and activities following arrest prior  to  confine-
ment; and (viii) prior criminal record, including the nature and pattern
of  offenses, adjustment to any previous probation or parole supervision
and institutional confinement. The board shall provide toll  free  tele-
phone access for crime victims. In the case of an oral statement made in
accordance with subdivision one of section 440.50 of the criminal proce-
dure  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.
  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 section 127-c of

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subpart B of part C of chapter 62 of the laws of 2011,  are  amended  to
read as follows:
  (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  section 127-d-1 of subpart B of part C of chapter 62 of
the laws of 2011, 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 or she so requests, be
conditionally  released  from  the  institution  in  which  he or she is
confined when the total good behavior time allowed to him or her, pursu-
ant to the provisions of the correction law, is equal  to  the  unserved
portion  of  his  or  her  term, maximum 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 deter-
minate 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-re-
lease 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
department of corrections and community supervision for a  period  equal
to  the  unserved  portion  of the term, maximum term, aggregate maximum
term, or period of post-release supervision.
  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.