S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4042
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 31, 2017
                                ___________
 
 Introduced  by  M. of A. WEPRIN, O'DONNELL, AUBRY, KAVANAGH -- read once
   and referred to the Committee on Correction
 
 AN ACT to amend the correction law, in relation to expanding prison work
   release program eligibility and participation
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Subdivision  2  of  section 851 of the correction law, as
 amended by chapter 60 of the laws of  1994,  the  opening  paragraph  as
 amended  by  chapter  320  of the laws of 2006, the closing paragraph as
 amended by section 42 of subpart B of part C of chapter 62 of  the  laws
 of 2011, is amended to read as follows:
   2. "Eligible inmate" means: a person confined in an institution who is
 eligible  for  release on parole or who will become eligible for release
 on parole or conditional release within two years.  [Provided,  however,
 that  a  person  under sentence for an offense defined in paragraphs (a)
 and (b) of subdivision one of section 70.02 of the penal law, where such
 offense involved the use or threatened use of a deadly weapon or danger-
 ous instrument shall not be eligible to participate in  a  work  release
 program until he or she is eligible for release on parole or who will be
 eligible  for  release  on parole or conditional release within eighteen
 months. Provided, further, however, that a person  under  a  determinate
 sentence  as  a second felony drug offender for a class B felony offense
 defined in article  two  hundred  twenty  of  the  penal  law,  who  was
 sentenced  pursuant  to section 70.70 of such law, shall not be eligible
 to participate in a temporary release  program  until  the  time  served
 under  imprisonment  for  his or her determinate sentence, including any
 jail time credited pursuant to the provisions of article seventy of  the
 penal  law,  shall be at least eighteen months.] In the case of a person
 serving an indeterminate sentence of imprisonment  imposed  pursuant  to
 the penal law in effect after September one, nineteen hundred sixty-sev-
 en,  for  the  purposes of this article parole eligibility shall be upon
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD05031-01-7

 A. 4042                             2
 
 the expiration of the minimum period of imprisonment fixed by the  court
 or  where the court has not fixed any period, after service of the mini-
 mum period fixed by the state board of parole. If an  inmate  is  denied
 release  on  parole,  such inmate shall not be deemed an eligible inmate
 until he or she is within two years of his or her next scheduled appear-
 ance before the state parole board. In  any  case  where  an  inmate  is
 denied  release  on  parole  while  participating in a temporary release
 program, the department shall review the status of the inmate to  deter-
 mine  if  continued  placement  in the program is appropriate. No person
 convicted of any escape or absconding offense  defined  in  article  two
 hundred  five  of the penal law shall be eligible for temporary release.
 [Further, no person under  sentence  for  aggravated  harassment  of  an
 employee by an inmate as defined in section 240.32 of the penal law for,
 any  homicide  offense defined in article one hundred twenty-five of the
 penal law, for any sex offense defined in article one hundred thirty  of
 the  penal  law,  or for an offense defined in section 255.25, 255.26 or
 255.27 of the penal law shall be  eligible  to  participate  in  a  work
 release  program  as  defined  in subdivision three of this section. Nor
 shall any person under sentence for any sex offense defined  in  article
 one  hundred  thirty  of  the  penal law be eligible to participate in a
 community services program  as  defined  in  subdivision  five  of  this
 section.  [Notwithstanding  the foregoing, no person who is an otherwise
 eligible inmate who  is  under  sentence  for  a  crime  involving:  (a)
 infliction  of  serious  physical  injury upon another as defined in the
 penal law or (b) any other offense involving the use or  threatened  use
 of  a deadly weapon may participate in a temporary release program with-
 out the written approval of the commissioner.]  The  commissioner  shall
 promulgate regulations giving direction to the temporary release commit-
 tee  at each institution in order to aid such committees in carrying out
 this mandate.
   [The governor, by executive order, may exclude or  limit  the  partic-
 ipation of any class of otherwise eligible inmates from participation in
 a  temporary  release  program.  Nothing  in  this  paragraph  shall  be
 construed to affect either the validity of any executive order previous-
 ly issued limiting the participation of otherwise  eligible  inmates  in
 such  program or the authority of the commissioner to impose appropriate
 regulations limiting such participation.]
   § 2. Subdivision 2 of section 851 of the correction law, as amended by
 chapter 447 of the laws of 1991, the opening  paragraph  as  amended  by
 chapter 252 of the laws of 2005, and the closing paragraph as amended by
 section  43 of subpart B of part C of chapter 62 of the laws of 2011, is
 amended to read as follows:
   2. "Eligible inmate" means: a person confined in an institution who is
 eligible for release on parole or who will become eligible  for  release
 on  parole  or  conditional  release within two years. [Provided, that a
 person under a determinate sentence as a second felony drug offender for
 a class B felony offense defined in article two hundred  twenty  of  the
 penal  law,  who  was  sentenced  pursuant to section 70.70 of such law,
 shall not be eligible to participate  in  a  temporary  release  program
 until  the  time  served  under  imprisonment for his or her determinate
 sentence, including any jail time credited pursuant to the provisions of
 article seventy of the penal law, shall be at least eighteen months.] In
 the case of a person serving an indeterminate sentence  of  imprisonment
 imposed  pursuant  to the penal law in effect after September one, nine-
 teen hundred sixty-seven, for the purposes of this article parole eligi-
 bility shall be upon the expiration of the minimum period  of  imprison-

 A. 4042                             3
 
 ment  fixed  by  the  court or where the court has not fixed any period,
 after service of the minimum period fixed by the state board of  parole.
 [If  an  inmate  is  denied  release on parole, such inmate shall not be
 deemed  an eligible inmate until he or she is within two years of his or
 her next scheduled appearance before the state  parole  board.]  In  any
 case  where an inmate is denied release on parole while participating in
 a temporary release program, the department shall review the  status  of
 the  inmate to determine if continued placement in the program is appro-
 priate. No person convicted of any escape or absconding offense  defined
 in  article  two  hundred  five  of  the penal law shall be eligible for
 temporary release.  [Nor shall any person under  sentence  for  any  sex
 offense defined in article one hundred thirty of the penal law be eligi-
 ble  to participate in a community services program as defined in subdi-
 vision five of this section. Notwithstanding the  foregoing,  no  person
 who  is  an  otherwise eligible inmate who is under sentence for a crime
 involving: (a) infliction of serious physical  injury  upon  another  as
 defined  in  the penal law, (b) a sex offense involving forcible compul-
 sion, or (c) any other offense involving the use or threatened use of  a
 deadly weapon may participate in a temporary release program without the
 written  approval  of the commissioner.] AN INMATE SHALL NOT BE ELIGIBLE
 FOR WORK RELEASE IF HE OR SHE IS  SUBJECT  TO  A  SENTENCE  IMPOSED  FOR
 AGGRAVATED  MURDER AS DEFINED IN SECTION 125.26 OF THE PENAL LAW, MURDER
 IN THE FIRST DEGREE AS DEFINED IN SECTION 125.27 OF THE PENAL LAW,  RAPE
 IN  THE THIRD DEGREE AS DEFINED IN SECTION 130.25 OF THE PENAL LAW, RAPE
 IN THE SECOND DEGREE AS DEFINED IN SECTION 130.30 OF THE PENAL LAW, RAPE
 IN THE FIRST DEGREE AS DEFINED IN SECTION 130.35 OF THE PENAL LAW, CRIM-
 INAL SEXUAL ACT IN THE SECOND DEGREE AS DEFINED IN SECTION 130.45 OF THE
 PENAL LAW, CRIMINAL SEXUAL ACT IN THE FIRST DEGREE AS DEFINED IN SECTION
 130.50 OF THE PENAL LAW, PERSISTENT SEXUAL ABUSE AS DEFINED  IN  SECTION
 130.53  OF THE PENAL LAW, SEXUAL ABUSE IN THE FIRST DEGREE AS DEFINED IN
 SECTION 130.65 OF THE PENAL LAW, AGGRAVATED SEXUAL ABUSE  IN  THE  THIRD
 DEGREE  AS DEFINED IN SECTION 130.66 OF THE PENAL LAW, AGGRAVATED SEXUAL
 ABUSE IN THE SECOND DEGREE AS DEFINED IN SECTION  130.67  OF  THE  PENAL
 LAW,  AGGRAVATED  SEXUAL ABUSE IN THE FIRST DEGREE AS DEFINED IN SECTION
 130.70 OF THE PENAL LAW, COURSE OF SEXUAL CONDUCT AGAINST A CHILD IN THE
 FIRST DEGREE AS DEFINED IN SECTION 130.75 OF THE PENAL  LAW,  COURSE  OF
 SEXUAL  CONDUCT  AGAINST  A  CHILD  IN  THE  SECOND DEGREE AS DEFINED IN
 SECTION 130.80 OF THE PENAL LAW, PREDATORY SEXUAL ASSAULT AS DEFINED  IN
 SECTION  130.95  OF  THE  PENAL  LAW, PREDATORY SEXUAL ASSAULT AGAINST A
 CHILD AS DEFINED IN SECTION 130.96 OF THE PENAL LAW, PROMOTING PROSTITU-
 TION IN THE SECOND DEGREE AS DEFINED IN SECTION 230.30 OF THE PENAL LAW,
 PROMOTING PROSTITUTION IN THE FIRST DEGREE AS DEFINED IN SECTION  230.32
 OF  THE  PENAL LAW, COMPELLING PROSTITUTION AS DEFINED IN SECTION 230.33
 OF THE PENAL LAW, SEX TRAFFICKING AS DEFINED IN SECTION  230.34  OF  THE
 PENAL  LAW,  INCEST  IN THE FIRST OR SECOND DEGREE AS DEFINED IN ARTICLE
 TWO HUNDRED FIFTY-FIVE OF THE PENAL LAW, AN OFFENSE OF TERRORISM DEFINED
 IN ARTICLE FOUR HUNDRED NINETY OF THE PENAL LAW,  OR  AN  ATTEMPT  OR  A
 CONSPIRACY TO COMMIT ANY SUCH OFFENSE. The commissioner shall promulgate
 regulations  giving direction to the temporary release committee at each
 institution in order  to  aid  such  committees  in  carrying  out  this
 mandate.
   [The  governor,  by  executive order, may exclude or limit the partic-
 ipation of any class of otherwise eligible inmates from participation in
 a  temporary  release  program.  Nothing  in  this  paragraph  shall  be
 construed to affect either the validity of any executive order previous-
 ly  issued  limiting  the participation of otherwise eligible inmates in

 A. 4042                             4

 such program or the authority of the commissioner to impose  appropriate
 regulations limiting such participation.]
   § 3. 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] FOUR years, and
 who was convicted of a  homicide  offense  as  defined  in  article  one
 hundred  twenty-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  commissioner 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. With respect to an inmate's claim  that
 he or she was subjected to substantial physical, sexual or psychological
 abuse committed by the victim, such demonstration shall include corrobo-
 rative  material that may include, but is not limited to, witness state-
 ments,  social  services  records,  hospital  records,  law  enforcement
 records 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. 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.  If
 such opinions are not so received, the commissioner may proceed with the
 determination.  Any action by the commissioner pursuant to this subdivi-
 sion shall be deemed a judicial function and shall not be reviewable  in
 any court.
   § 4. Subdivision 2-b of section 851 of the correction law, as added by
 chapter 738 of the laws of 2004, is amended to read as follows:
   2-b. When calculating in advance the date on which a person is or will
 be  eligible  for release on parole or conditional release, for purposes
 of determining eligibility for temporary release or for placement at  an
 alcohol  and  substance  abuse treatment correctional annex, the commis-
 sioner shall consider and include credit for all potential  credits  and
 reductions  including  but  not  limited to merit time, ADDITIONAL MERIT
 TIME and good behavior allowances. Nothing in this subdivision shall  be
 interpreted  as precluding the consideration and inclusion of credit for
 all potential credits and reductions  including,  but  not  limited  to,
 merit  time,  ADDITIONAL  MERIT  TIME  and good behavior allowances when
 calculating in advance for any other purpose the date on which a  person
 is or will be eligible for release on parole or conditional release.
   §  5.  This  act shall take effect immediately, provided however, that
 the amendments to subdivision 2 of section 851  of  the  correction  law
 made  by  section one of this act shall be subject to the expiration and
 reversion of such subdivision and section pursuant to subdivision (c) of
 section 46 of chapter 60 of the laws of 1994 and section 10  of  chapter
 339  of the laws of 1972, as amended, when upon such date the provisions
 of section two of this act shall take effect; provided further, that the
 amendments to subdivision 2 of section 851 of the correction law made by

 A. 4042                             5
 
 section two of this act shall expire on the same date as subdivision (c)
 of section 46 of chapter 60 of the laws of 1994, section 10  of  chapter
 339  of  the  laws  of 1972, and section 5 of chapter 554 of the laws of
 1986, as amended, expire; provided further that the amendments to subdi-
 visions  2-a  and  2-b  of  section  851  of the correction law, made by
 sections three and four of this act shall not affect the  expiration  of
 such section and shall expire therewith.