Senate Bill S8183A

2015-2016 Legislative Session

Eliminates eligibility for medical parole based cognitive inability to present a danger or debilitating illness; repealer

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Archive: Last Bill Status - In Senate Committee Rules Committee

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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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Sep 14, 2016	print number 8183a
Sep 14, 2016	amend and recommit to rules
Aug 29, 2016	referred to rules

Bill Amendments

Original

A (Active)

2015-S8183 - Details

Current Committee:: Senate Rules
Law Section:: Executive Law
Laws Affected:: Amd §§259-c & 259-r, rpld §259-s, Exec L; amd §70.40, Pen L

2015-S8183 - Summary

Eliminates eligibility for medical parole based cognitive inability to present a danger to society or debilitating illness; eliminates requirement for medical parole, that a terminally ill inmate shall have served at least one-half of his or her sentence; requires an inmate to apply for such parole; directs the department of corrections and community supervision to establish standards for medical discharge plans.

2015-S8183 - Sponsor Memo

                                 BILL NUMBER:  S8183

 TITLE OF BILL :  An act to amend the executive law and the penal law,
in relation to the eligibility criteria for release on medical parole;
and to repeal section 259-s of the executive law relating to release
on medical parole for inmates suffering significant debilitating
illnesses

 PURPOSE :

To limit the eligibility for medical parole to inmates who are
determined to be suffering from a terminal condition, disease or
syndrome by barring inmates convicted of serious homicide or sex
offenses and to repeal Executive Law 259-s which currently authorizes
release on medical parole for inmates who are suffering from
significant and permanent non-terminal illnesses.

 SUMMARY :

The bill amends Executive Law section 259-r by providing that inmates
serving a sentence upon conviction for murder in the first degree,
murder in the second degree, manslaughter in the first degree or a sex
offense defined in article 130 of the Penal Law are not eligible for
release on medical parole, and makes conforming amendments to the
remainder of section 259-r.

The bill also repeals Executive Law section 259-s which provided for
release on medical parole of inmates who are not suffering from a
terminal illness or condition.

 JUSTIFICATION :

In 1992, during the height of the AIDS crisis, Executive Law section
259-r was added to authorize medical parole for terminally ill inmates
who were not convicted of the most serious homicide offenses.
Subsequent amendments to section 259-r expanded the pool of inmates
eligible for medical parole.

In 2009, section 259-s was added to the Executive Law to provide that
inmates suffering from non-terminal illnesses were also eligible for
medical parole.

This bill limits the eligibility of terminally ill inmates by
excluding inmates convicted of the most serious homicide offenses and
sex offenses and also provides that inmates who are suffering from
non-terminal illnesses are not eligible for medical parole.

When an inmate applies for medical parole, the victim, or the victim's
family, are notified of the application and may object to the granting
of medical parole, However, some inmates repeatedly request release on
medical parole, and each request results in the victim, or the
victim's family having to relive the crime and the affect that crime
has had on the life, or death, of the victim. This causes a continual
reminder and re-opens the emotional wound suffered each and every time
an application is made.

 LEGISLATIVE HISTORY :

New Bill

 FISCAL IMPLICATIONS :

None to the State.

 EFFECTIVE DATE :
Immediately.

2015-S8183 - Bill Text download pdf

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

                                  8183

                            I N  S E N A T E

                             August 29, 2016
                               ___________

Introduced  by  Sen.  DeFRANCISCO -- read twice and ordered printed, and
  when printed to be committed to the Committee on Rules

AN ACT to amend the executive law and the penal law, in relation to  the
  eligibility  criteria  for  release  on  medical parole; and to repeal
  section 259-s of the executive law  relating  to  release  on  medical
  parole for inmates suffering significant debilitating illnesses

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

  Section 1. Subdivision 1 of section 259-c of  the  executive  law,  as
amended by section 38-b of subpart A of part C of chapter 62 of the laws
of 2011, is amended to read as follows:
  1.  have  the  power  and duty of determining which inmates serving an
indeterminate or determinate sentence of imprisonment may be released on
parole,  or  on  medical  parole  pursuant  to   section   two   hundred
fifty-nine-r  [or section two hundred fifty-nine-s] of this article, and
when and under what conditions;
  S 2. The section heading and paragraph (a) of subdivision 1 of section
259-r of the executive law, as amended by section 38-l of subpart  A  of
part  C  of  chapter  62  of  the  laws  of 2011, are amended to read as
follows:
  Release on medical parole [for terminally ill inmates].
  (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

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

                                                           LBD16004-01-6

S. 8183                             2

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 FIRST DEGREE, 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 eligi-
bility 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 department 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  3. Paragraph (a) of subdivision 1 of section 259-r of the executive
law, as amended by section 38-l-1 of subpart A of part C of  chapter  62
of the laws of 2011, 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  imprison-
ment  who,  pursuant to subdivision two of this section, has been certi-
fied to be suffering from a terminal condition, disease or syndrome  and
to  be  so debilitated or incapacitated as to create a reasonable proba-
bility 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  deter-
minate  sentence]:    MURDER  IN  THE FIRST DEGREE, 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  eligi-
bility  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 department 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 (b) of subdivision 1 of section 259-r of the  executive
law,  as amended by section 38-l of subpart A of part C of chapter 62 of
the laws of 2011, is amended to read as follows:
  (b) Such release shall be  granted  only  after  the  board  considers
whether,  in light of the inmate's medical condition, there is a reason-
able probability that the inmate, if released, will live and  remain  at
liberty  without  violating the law, and that such release is not incom-
patible with the welfare of society and will not so deprecate the  seri-
ousness  of  the crime as to undermine respect for the law, and shall be
subject to the limits and conditions specified in  subdivision  four  of
this section. [Except as set forth in paragraph (a) of this subdivision,

S. 8183                             3

such]  SUCH  release  may  be  granted at any time during the term of an
inmate's sentence, notwithstanding any other provision of law.
  S  5.  Subdivisions  2 and 4 of section 259-r of the executive law, as
amended by section 38-l of subpart A of part C of chapter 62 of the laws
of 2011, are amended to read as follows:
  2. (a) The commissioner, on the commissioner's own  initiative  or  at
the request of an inmate, [or an inmate's spouse, relative or attorney,]
may,  in  the exercise of the commissioner's discretion, direct [that an
investigation be undertaken to determine whether] a  diagnosis  [should]
be  made of an inmate who appears to be suffering from a terminal condi-
tion, disease or syndrome. Any such medical diagnosis shall be made by a
physician licensed to  practice  medicine  in  this  state  pursuant  to
section sixty-five hundred twenty-four of the education law. Such physi-
cian  shall  either  be employed by the department, shall render profes-
sional services at the request of the department, or shall  be  employed
by a hospital or medical facility used by the department for the medical
treatment of inmates. The diagnosis shall be reported to the commission-
er  and  shall  include but shall not be limited to a description of the
terminal condition, disease or syndrome suffered by the inmate, a  prog-
nosis  concerning  the  likelihood that the inmate will not recover from
such terminal condition, disease  or  syndrome,  a  description  of  the
inmate's  physical  [or  cognitive]  incapacity  which  shall  include a
prediction respecting the likely  duration  of  the  incapacity,  and  a
statement  by  the  physician of whether the inmate is so debilitated or
incapacitated as to be severely restricted in  his  or  her  ability  to
self-ambulate  [or  to  perform  significant  normal activities of daily
living. This report also shall include a recommendation of the type  and
level  of  services  and  treatment  the inmate would require if granted
medical parole and a recommendation for the types of settings  in  which
the  services  and  treatment  should  be given] AND CARE FOR HIMSELF OR
HERSELF.
  (b) The commissioner, or the commissioner's designee, shall review the
diagnosis and may certify that the inmate is suffering from such  termi-
nal condition, disease or syndrome and that the inmate is so debilitated
or incapacitated as to create a reasonable probability that he or she is
physically [or cognitively] incapable of presenting any danger to socie-
ty. If the commissioner does not so certify then the inmate shall not be
referred  to  the board for consideration for release on medical parole.
If the commissioner does so certify, then the commissioner shall[, with-
in seven working days of receipt of such diagnosis,] refer the inmate to
the board for consideration for release on medical parole.  However,  no
such  referral of an inmate to the board shall be made unless the inmate
has been examined by a physician and  diagnosed  as  having  a  terminal
condition,  disease  or  syndrome as previously described herein at some
time subsequent to such inmate's admission to a facility operated by the
department [of correctional services].
  (c) When the commissioner refers an inmate to the board,  the  commis-
sioner  shall  provide an appropriate medical discharge plan established
by the department. [The department is authorized to  request  assistance
from  the  department  of health and from the county in which the inmate
resided and committed his or her crime, which shall  provide  assistance
with  respect to the development and implementation of a discharge plan,
including potential placements of a releasee.  The  department  and  the
department  of  health  shall  jointly develop standards for the medical
discharge plan that are appropriately adapted to  the  criminal  justice
setting,  based on standards established by the department of health for

S. 8183                             4

hospital medical discharge planning.] The board may REJECT ALL  OR  PART
OF  THE DISCHARGE PLAN SUBMITTED BY THE DEPARTMENT, AND MAY postpone its
decision pending  [completion  of  an  adequate]  SUBMISSION  OF  A  NEW
discharge plan, or may deny release based on inadequacy of the discharge
plan.   THE DEPARTMENT SHALL DEVELOP STANDARDS FOR THE MEDICAL DISCHARGE
PLAN THAT ARE APPROPRIATELY ADOPTED TO  THE  CRIMINAL  JUSTICE  SETTING,
BASED  ON STANDARDS ESTABLISHED BY THE DEPARTMENT OF HEALTH FOR HOSPITAL
MEDICAL DISCHARGE PLANNING.
  4. (a) Medical parole granted pursuant to this section shall be for  a
period of six months.
  (b)  The  board  shall  require  as  a condition of release on medical
parole that the releasee agree to remain under the care of  a  physician
while  on medical parole and in a hospital established pursuant to arti-
cle twenty-eight of the public health law, a hospice established  pursu-
ant  to  article  forty  of the public health law or any other placement
that can provide appropriate medical care as specified  in  the  medical
discharge  plan required by subdivision two of this section. The medical
discharge plan shall state that the availability of  the  placement  has
been  confirmed,  and  by  whom. [Notwithstanding any other provision of
law, when an inmate who qualifies for  release  under  this  section  is
cognitively incapable of signing the requisite documentation to effectu-
ate  the  medical  discharge plan and, after a diligent search no person
has been identified who could otherwise be  appointed  as  the  inmate's
guardian  by  a  court  of  competent jurisdiction, then, solely for the
purpose of implementing the medical discharge plan, the facility  health
services  director  at the facility where the inmate is currently incar-
cerated shall be lawfully empowered to act as the inmate's guardian  for
the purpose of effectuating the medical discharge.]
  (c) [Where appropriate, the] THE board shall require as a condition of
release  that  medical  parolees be supervised on intensive caseloads at
reduced  supervision  ratios  SIMILAR  TO  THE  CASELOADS  FOR  PAROLEES
RELEASED  PURSUANT  TO  THE  SHOCK  INCARCERATION PROGRAM ESTABLISHED BY
ARTICLE TWENTY-SIX-A OF THE CORRECTION LAW.
  (d) The board shall require as  a  condition  of  release  on  medical
parole  that  the  releasee  undergo periodic medical examinations and a
medical examination at least one month prior to the  expiration  of  the
period  of  medical  parole  and,  for the purposes of making a decision
pursuant to paragraph (e) of this subdivision, that the releasee provide
the board with a report, prepared by  the  treating  physician,  of  the
results of such examination. Such report shall specifically state wheth-
er  or  not  the  parolee continues to suffer from a terminal condition,
disease, or syndrome, and to be so debilitated or incapacitated as to be
severely restricted in his  or  her  ability  to  self-ambulate  [or  to
perform  significant  normal activities of daily living] AND TO CARE FOR
HIMSELF OR HERSELF.
  (e) Prior to the expiration of the period of medical parole the  board
shall review the medical examination report required by paragraph (d) of
this  subdivision  and  may  again grant medical parole pursuant to this
section; provided, however, that the  provisions  of  paragraph  (c)  of
subdivision one and subdivision two of this section shall not apply.
  (f) If the updated medical report presented to the board states that a
parolee released pursuant to this section is no longer so debilitated or
incapacitated  as  to  create a reasonable probability that he or she is
physically [or cognitively] incapable of presenting any danger to socie-
ty or if the releasee fails to submit the updated  medical  report  then
the  board  may not make a new grant of medical parole pursuant to para-

S. 8183                             5

graph (e) of this subdivision. Where the board has not  granted  medical
parole  pursuant  to such paragraph (e) the board shall promptly conduct
through one of its members, or cause to be conducted by a hearing  offi-
cer designated by the board, a hearing to determine whether the releasee
is  suffering  from  a terminal condition, disease or syndrome and is 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 and does not present a danger to society. If the board
makes such a determination then it may  make  a  new  grant  of  medical
parole  pursuant to the standards of paragraph (b) of subdivision one of
this section. At the hearing, the  releasee  shall  have  the  right  to
representation  by  counsel,  including  the  right,  if the releasee is
financially unable to retain counsel,  to  have  the  appropriate  court
assign  counsel in accordance with the county or city plan for represen-
tation placed in operation pursuant to article eighteen-B of the  county
law.
  (g)  The  hearing  and  determination provided for by paragraph (f) of
this subdivision shall be concluded within the [six] FOUR  month  period
of  medical  parole.  If  the  board does not renew the grant of medical
parole, it shall order that the releasee be returned immediately to  the
custody of the department.
  (h)  In  addition to the procedures set forth in paragraph (f) of this
subdivision, medical parole may be revoked at any time upon any  of  the
grounds  specified  in paragraph (a) of subdivision three of section two
hundred fifty-nine-i of this article, and in accordance with the  proce-
dures specified in subdivision three of section two hundred fifty-nine-i
of this article.
  (i)  A  releasee who is on medical parole and who becomes eligible for
parole pursuant to the provisions of  subdivision  two  of  section  two
hundred  fifty-nine-i  of  this  article  shall  be  eligible for parole
consideration pursuant to such subdivision.
  S 6. Section 259-s of the executive law is REPEALED.
  S 7. Subparagraph (v) of paragraph (a) of  subdivision  1  of  section
70.40 of the penal law, as amended by section 127-c of subpart B of part
C of chapter 62 of the laws of 2011, is amended to read as follows:
  (v) Notwithstanding any other subparagraph of this paragraph, a person
may  be  paroled  from the institution in which he or she is confined at
any time on medical parole pursuant to section two hundred  fifty-nine-r
[or section two hundred fifty-nine-s] of the executive law or for depor-
tation  pursuant  to  paragraph  (d)  of  subdivision two of section two
hundred fifty-nine-i of  the  executive  law  or  after  the  successful
completion  of a shock incarceration program pursuant to article twenty-
six-A of the correction law.
  S 8. This act shall take effect immediately; provided that:
  (a) the amendments to subdivision 1 of section 259-c of the  executive
law, made by section one of this act, shall not affect the expiration of
such subdivision and shall expire therewith;
  (b)  the amendments to paragraph (a) of subdivision 1 of section 259-r
of the executive law, made by section two 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 three of this act shall take
effect; and
  (c) the amendments to paragraph (a) of subdivision 1 of section  70.40
of  the  penal  law, made by section seven of this act, shall not affect
the expiration of such paragraph and shall expire therewith.

2015-S8183A (ACTIVE) - Details

Current Committee:: Senate Rules
Law Section:: Executive Law
Laws Affected:: Amd §§259-c & 259-r, rpld §259-s, Exec L; amd §70.40, Pen L

2015-S8183A (ACTIVE) - Summary

2015-S8183A (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S8183A

 TITLE OF BILL :

An act to amend the executive law and the penal law, in relation to
the eligibility criteria for release on medical parole; and to repeal
section 259-s of the executive law relating to release on medical
parole for inmates suffering significant debilitating illnesses

 PURPOSE :

To limit the eligibility for medical parole to inmates who are
determined to be suffering from a terminal condition, disease or
syndrome by barring inmates convicted of serious homicide or sex
offenses and to repeal Executive Law 259-s which currently authorizes
release on medical parole for inmates who are suffering from
significant and permanent non-terminal illnesses.

 SUMMARY OF PROVISIONS :

The bill amends Executive Law section 259-r by providing that inmates
serving a sentence upon conviction for murder in the first degree,
murder in the second degree, manslaughter in the first degree,
aggravated vehicular homicide, aggravated manslaughter in the first
degree, aggravated murder or a sex offense defined in article 130 of
the Penal Law are not eligible for release on medical parole, and

makes conforming amendments to the remainder of section 259-r.

The bill also repeals Executive Law section 259-s which provided for
release on medical parole of inmates who are not suffering from a
terminal illness or condition.

 JUSTIFICATION :

In 1992, during the height of the AIDS crisis, Executive Law section
259-r was added to authorize medical parole for terminally ill inmates
who were not convicted of the most serious homicide offenses.
Subsequent amendments to section 259-r expanded the pool of inmates
eligible for medical parole.

In 2009, section 259-s was added to the Executive Law to provide that
inmates suffering from non-terminal illnesses were also eligible for
medical parole.

This bill limits the eligibility of terminally ill inmates by
excluding inmates convicted of the most serious homicide offenses and
sex offenses and also provides that inmates who are suffering from
non-terminal illnesses are not eligible for medical parole.

When an inmate applies for medical parole, the victim, or the victim's
family, are notified of the application and may object to the granting
of medical parole, However, some inmates who do not have a terminal
illness repeatedly request release on medical parole, and each request
results in the victim, or the victim's family having to relive the
crime and the affect that crime has had on the life, or death, of the
victim. This causes a continual reminder and re-opens the emotional
wound suffered each and every time an application is made.

Inmates who have a medical condition which is not terminal which can
be adequately treated in a correctional facility should not be allowed
to use that condition to seek an early release from prison.  This is
even more important for an inmate who had that condition when he or
she was sentenced after being found guilty of committing the crime.
The sentencing court may have taken the medical condition into
consideration and imposed a reduced sentence, or determined that the
defendant should not have a reduced sentence due to the nature and
seriousness of the crime. In either case, an inmate with a medical
condition that is not terminal should not be permitted to use that
condition to obtain early release from prison.

 LEGISLATIVE HISTORY :

New Bill

 FISCAL IMPLICATIONS :

None to the State.

 EFFECTIVE DATE :
Immediately

2015-S8183A (ACTIVE) - Bill Text download pdf

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

                                 8183--A

                            I N  S E N A T E

                             August 29, 2016
                               ___________

Introduced  by  Sen.  DeFRANCISCO -- read twice and ordered printed, and
  when printed to be committed to the Committee on  Rules  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN  ACT to amend the executive law and the penal law, in relation to the
  eligibility criteria for release on  medical  parole;  and  to  repeal
  section  259-s  of  the  executive  law relating to release on medical
  parole for inmates suffering significant debilitating illnesses

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

  Section  1.  Subdivision  1  of section 259-c of the executive law, as
amended by section 38-b of subpart A of part C of chapter 62 of the laws
of 2011, is amended to read as follows:
  1. have the power and duty of determining  which  inmates  serving  an
indeterminate or determinate sentence of imprisonment may be released on
parole,   or   on   medical  parole  pursuant  to  section  two  hundred
fifty-nine-r [or section two hundred fifty-nine-s] of this article,  and
when and under what conditions;
  S 2. The section heading and paragraph (a) of subdivision 1 of section
259-r  of  the executive law, as amended by section 38-l of subpart A of
part C of chapter 62 of the  laws  of  2011,  are  amended  to  read  as
follows:
  Release on medical parole [for terminally ill inmates].
  (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 WHICH  COULD
LEAD  TO  A REASONABLE CONCLUSION THAT DEATH IS, OR MAY BE, IMMINENT and
to be so debilitated or incapacitated as to create a  reasonable  proba-
bility  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

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

                                                           LBD16004-02-6

S. 8183--A                          2

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 deter-
minate sentence]:   MURDER IN THE FIRST DEGREE,  murder  in  the  second
degree, manslaughter in the first degree, AGGRAVATED VEHICULAR HOMICIDE,
AGGRAVATED  MANSLAUGHTER  IN  THE  FIRST  DEGREE, AGGRAVATED MURDER, 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 department 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  3. Paragraph (a) of subdivision 1 of section 259-r of the executive
law, as amended by section 38-l-1 of subpart A of part C of  chapter  62
of the laws of 2011, 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  imprison-
ment  who,  pursuant to subdivision two of this section, has been certi-
fied to be suffering from a terminal condition, disease or syndrome  and
to  be  so debilitated or incapacitated as to create a reasonable proba-
bility 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  deter-
minate  sentence]:    MURDER  IN  THE FIRST DEGREE, murder in the second
degree, manslaughter in the first degree, AGGRAVATED VEHICULAR HOMICIDE,
AGGRAVATED MANSLAUGHTER IN THE  FIRST  DEGREE,  AGGRAVATED  MURDER,  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 department  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 4. Paragraph (b) of subdivision 1 of section 259-r of the  executive
law,  as amended by section 38-l of subpart A of part C of chapter 62 of
the laws of 2011, is amended to read as follows:
  (b) Such release shall be  granted  only  after  the  board  considers
whether,  in light of the inmate's medical condition, there is a reason-
able probability that the inmate, if released, will live and  remain  at
liberty  without  violating the law, and that such release is not incom-

S. 8183--A                          3

patible with the welfare of society and will not so deprecate the  seri-
ousness  of  the crime as to undermine respect for the law, and shall be
subject to the limits and conditions specified in  subdivision  four  of
this section. [Except as set forth in paragraph (a) of this subdivision,
such]  SUCH  release  may  be  granted at any time during the term of an
inmate's sentence, notwithstanding any other provision of law.
  S 5. Subdivisions 2 and 4 of section 259-r of the  executive  law,  as
amended by section 38-l of subpart A of part C of chapter 62 of the laws
of 2011, are amended to read as follows:
  2.  (a)  The  commissioner, on the commissioner's own initiative or at
the request of an inmate, [or an inmate's spouse, relative or attorney,]
may, in the exercise of the commissioner's discretion, direct  [that  an
investigation  be  undertaken to determine whether] a diagnosis [should]
be made of an inmate who appears to be suffering from a terminal  condi-
tion, disease or syndrome. Any such medical diagnosis shall be made by a
physician  licensed  to  practice  medicine  in  this  state pursuant to
section sixty-five hundred twenty-four of the education law. Such physi-
cian shall either be employed by the department,  shall  render  profes-
sional  services  at the request of the department, or shall be employed
by a hospital or medical facility used by the department for the medical
treatment of inmates. The diagnosis shall be reported to the commission-
er and shall include but shall not be limited to a  description  of  the
terminal  condition, disease or syndrome suffered by the inmate, a prog-
nosis concerning the likelihood that the inmate will  not  recover  from
such  terminal  condition,  disease  or  syndrome,  a description of the
inmate's physical  [or  cognitive]  incapacity  which  shall  include  a
prediction  respecting  the  likely  duration  of  the incapacity, and a
statement by the physician of whether the inmate is  so  debilitated  or
incapacitated  as  to  be  severely  restricted in his or her ability to
self-ambulate [or to perform  significant  normal  activities  of  daily
living.  This report also shall include a recommendation of the type and
level of services and treatment the  inmate  would  require  if  granted
medical  parole  and a recommendation for the types of settings in which
the services and treatment should be given]  AND  CARE  FOR  HIMSELF  OR
HERSELF.
  (b) The commissioner, or the commissioner's designee, shall review the
diagnosis  and may certify that the inmate is suffering from such termi-
nal condition, disease or syndrome and that the inmate is so debilitated
or incapacitated as to create a reasonable probability that he or she is
physically [or cognitively] incapable of presenting any danger to socie-
ty. If the commissioner does not so certify then the inmate shall not be
referred to the board for consideration for release on  medical  parole.
If the commissioner does so certify, then the commissioner shall[, with-
in seven working days of receipt of such diagnosis,] refer the inmate to
the  board  for consideration for release on medical parole. However, no
such referral of an inmate to the board shall be made unless the  inmate
has  been  examined  by  a  physician and diagnosed as having a terminal
condition, disease or syndrome as previously described  herein  at  some
time subsequent to such inmate's admission to a facility operated by the
department [of correctional services].
  (c)  When  the commissioner refers an inmate to the board, the commis-
sioner shall provide an appropriate medical discharge plan FOR TERMINAL-
LY ILL PATIENTS  established  by  the  department.  [The  department  is
authorized  to request assistance from the department of health and from
the county in which the inmate resided and committed his or  her  crime,
which  shall  provide  assistance  with  respect  to the development and

S. 8183--A                          4

implementation of a discharge plan, including potential placements of  a
releasee.  The  department  and  the  department of health shall jointly
develop standards for the medical discharge plan that are  appropriately
adapted  to the criminal justice setting, based on standards established
by the department of health for hospital  medical  discharge  planning.]
The  board  may  REJECT ALL OR PART OF THE DISCHARGE PLAN FOR TERMINALLY
ILL PATIENTS SUBMITTED BY THE DEPARTMENT, AND MAY postpone its  decision
pending  [completion of an adequate] SUBMISSION OF A NEW discharge plan,
or may deny release based on inadequacy of  the  discharge  plan.    THE
DEPARTMENT  SHALL  DEVELOP STANDARDS FOR THE MEDICAL DISCHARGE PLAN THAT
ARE APPROPRIATELY ADOPTED TO THE  CRIMINAL  JUSTICE  SETTING,  BASED  ON
STANDARDS  ESTABLISHED  BY THE DEPARTMENT OF HEALTH FOR HOSPITAL MEDICAL
DISCHARGE PLANNING FOR TERMINALLY ILL PATIENTS.
  4. (a) Medical parole granted pursuant to this section shall be for  a
period of six months.
  (b)  The  board  shall  require  as  a condition of release on medical
parole that the releasee agree to remain under the care of  a  physician
while  on medical parole and in a hospital established pursuant to arti-
cle twenty-eight of the public health law, a hospice established  pursu-
ant  to  article  forty  of the public health law or any other placement
that can provide appropriate medical care as specified  in  the  medical
discharge  plan required by subdivision two of this section. The medical
discharge plan shall state that the availability of  the  placement  has
been  confirmed,  and  by  whom. [Notwithstanding any other provision of
law, when an inmate who qualifies for  release  under  this  section  is
cognitively incapable of signing the requisite documentation to effectu-
ate  the  medical  discharge plan and, after a diligent search no person
has been identified who could otherwise be  appointed  as  the  inmate's
guardian  by  a  court  of  competent jurisdiction, then, solely for the
purpose of implementing the medical discharge plan, the facility  health
services  director  at the facility where the inmate is currently incar-
cerated shall be lawfully empowered to act as the inmate's guardian  for
the purpose of effectuating the medical discharge.]
  (c) [Where appropriate, the] THE board shall require as a condition of
release  that  medical  parolees be supervised on intensive caseloads at
reduced  supervision  ratios  SIMILAR  TO  THE  CASELOADS  FOR  PAROLEES
RELEASED  PURSUANT  TO  THE  SHOCK  INCARCERATION PROGRAM ESTABLISHED BY
ARTICLE TWENTY-SIX-A OF THE CORRECTION LAW.
  (d) The board shall require as  a  condition  of  release  on  medical
parole  that  the  releasee  undergo periodic medical examinations and a
medical examination at least one month prior to the  expiration  of  the
period  of  medical  parole  and,  for the purposes of making a decision
pursuant to paragraph (e) of this subdivision, that the releasee provide
the board with a report, prepared by  the  treating  physician,  of  the
results of such examination. Such report shall specifically state wheth-
er  or  not  the  parolee continues to suffer from a terminal condition,
disease, or syndrome, and to be so debilitated or incapacitated as to be
severely restricted in his  or  her  ability  to  self-ambulate  [or  to
perform  significant  normal activities of daily living] AND TO CARE FOR
HIMSELF OR HERSELF.
  (e) Prior to the expiration of the period of medical parole the  board
shall review the medical examination report required by paragraph (d) of
this  subdivision  and  may  again grant medical parole pursuant to this
section; provided, however, that the  provisions  of  paragraph  (c)  of
subdivision one and subdivision two of this section shall not apply.

S. 8183--A                          5

  (f) If the updated medical report presented to the board states that a
parolee released pursuant to this section is no longer so debilitated or
incapacitated  as  to  create a reasonable probability that he or she is
physically [or cognitively] incapable of presenting any danger to socie-
ty  or  if  the releasee fails to submit the updated medical report then
the board may not make a new grant of medical parole pursuant  to  para-
graph  (e)  of this subdivision. Where the board has not granted medical
parole pursuant to such paragraph (e) the board shall  promptly  conduct
through  one of its members, or cause to be conducted by a hearing offi-
cer designated by the board, a hearing to determine whether the releasee
is suffering from a terminal condition, disease or syndrome  and  is  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 and does not present a danger to society. If the board
makes  such  a  determination  then  it  may make a new grant of medical
parole pursuant to the standards of paragraph (b) of subdivision one  of
this  section.  At  the  hearing,  the  releasee shall have the right to
representation by counsel, including  the  right,  if  the  releasee  is
financially  unable  to  retain  counsel,  to have the appropriate court
assign counsel in accordance with the county or city plan for  represen-
tation  placed in operation pursuant to article eighteen-B of the county
law.
  (g) The hearing and determination provided for  by  paragraph  (f)  of
this  subdivision  shall be concluded within the [six] FOUR month period
of medical parole. If the board does not  renew  the  grant  of  medical
parole,  it shall order that the releasee be returned immediately to the
custody of the department.
  (h) In addition to the procedures set forth in paragraph (f)  of  this
subdivision,  medical  parole may be revoked at any time upon any of the
grounds specified in paragraph (a) of subdivision three of  section  two
hundred  fifty-nine-i of this article, and in accordance with the proce-
dures specified in subdivision three of section two hundred fifty-nine-i
of this article.
  (i) A releasee who is on medical parole and who becomes  eligible  for
parole  pursuant  to  the  provisions  of subdivision two of section two
hundred fifty-nine-i of  this  article  shall  be  eligible  for  parole
consideration pursuant to such subdivision.
  S 6. Section 259-s of the executive law is REPEALED.
  S  7.  Subparagraph  (v)  of paragraph (a) of subdivision 1 of section
70.40 of the penal law, as amended by section 127-c of subpart B of part
C of chapter 62 of the laws of 2011, is amended to read as follows:
  (v) Notwithstanding any other subparagraph of this paragraph, a person
may be paroled from the institution in which he or she  is  confined  at
any  time on medical parole pursuant to section two hundred fifty-nine-r
[or section two hundred fifty-nine-s] of the executive law or for depor-
tation pursuant to paragraph (d)  of  subdivision  two  of  section  two
hundred  fifty-nine-i  of  the  executive  law  or  after the successful
completion of a shock incarceration program pursuant to article  twenty-
six-A of the correction law.
  S 8. This act shall take effect immediately; provided that:
  (a)  the amendments to subdivision 1 of section 259-c of the executive
law, made by section one of this act, shall not affect the expiration of
such subdivision and shall expire therewith;
  (b) the amendments to paragraph (a) of subdivision 1 of section  259-r
of  the executive law, made by section two of this act, shall be subject
to the expiration and reversion of such paragraph pursuant  to  subdivi-

S. 8183--A                          6

sion  d of section 74 of chapter 3 of the laws of 1995, as amended, when
upon such date the provisions of section three of this  act  shall  take
effect; and
  (c)  the amendments to paragraph (a) of subdivision 1 of section 70.40
of the penal law, made by section seven of this act,  shall  not  affect
the expiration of such paragraph and shall expire therewith.

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Senate Bill S8183A

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Sponsored By

John A. DeFrancisco

Archive: Last Bill Status - In Senate Committee Rules Committee

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