S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   10818
 
                           I N  A S S E M B L Y
 
                               July 15, 2020
                                ___________
 
 Introduced  by  COMMITTEE  ON  RULES -- (at request of M. of A. Cruz) --
   read once and referred to the Committee on Correction
 
 AN ACT to amend the correction law, in relation to failure to complete a
   program for time allowances due to circumstances  beyond  an  individ-
   ual's control
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1.   Paragraph (a) of subdivision 1  of  section  803  of  the
 correction law, as amended by section 37 of subpart B of part C of chap-
 ter 62 of the laws of 2011, is amended to read as follows:
   (a)  Every  person  confined  in an institution of the department or a
 facility in the department of mental hygiene serving an indeterminate or
 determinate sentence of imprisonment, except a person serving a sentence
 with a maximum term of life imprisonment,  may  receive  time  allowance
 against  the  term or maximum term of 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 program, and  may  be  withheld,  forfeited  or
 canceled  in  whole  or  in part for bad behavior, violation of institu-
 tional rules or failure to perform properly in  the  duties  or  program
 assigned.  SUCH  ALLOWANCES  SHALL  NOT BE WITHHELD IF A PERSON FAILS TO
 COMPLETE  A  PROGRAM  BECAUSE  OF  CIRCUMSTANCES  BEYOND  SUCH  PERSON'S
 CONTROL.
   §  2.  Paragraph (a) of subdivision 1 of section 803 of the correction
 law, as amended by chapter 126 of the laws of 1987 and as designated  by
 chapter 738 of the laws of 2004, is amended to read as follows:
   (a)  Every  person  confined  in an institution of the department or a
 facility in the department of mental hygiene  serving  an  indeterminate
 sentence  of  imprisonment,  except  a  person serving a sentence with a
 maximum term of life imprisonment, may receive  time  allowance  against
 the  maximum  term or period of his OR HER sentence not to exceed in the
 aggregate one-third of the term or period 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD16582-01-0

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 assigned  treatment  program, and may be withheld, forfeited or canceled
 in whole or in part for bad behavior, violation of  institutional  rules
 or  failure  to perform properly in the duties or program assigned. SUCH
 ALLOWANCES SHALL NOT BE WITHHELD IF A PERSON FAILS TO COMPLETE A PROGRAM
 BECAUSE OF CIRCUMSTANCES BEYOND SUCH PERSON'S CONTROL.
   §  3.  Subparagraph  (iv) 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 to read as follows:
   (iv)  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  infrac-
 tion  or upon a judicial determination that the person, while an inmate,
 commenced or continued a civil action,  proceeding  or  claim  that  was
 found  to  be  frivolous  as defined in subdivision (c) of section eight
 thousand three hundred three-a of the civil practice law and  rules,  or
 an  order of a federal court pursuant to rule 11 of the federal rules of
 civil procedure imposing sanctions in an action commenced by  a  person,
 while  an  inmate,  against  a  state  agency, officer or employee. SUCH
 ALLOWANCE SHALL NOT BE WITHHELD IF A PERSON FAILS TO COMPLETE A  PROGRAM
 BECAUSE OF CIRCUMSTANCES BEYOND HIS OR HER CONTROL.
   §  4.  Subparagraph  (iv) 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 to read as follows:
   (iv)  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  infrac-
 tion  or upon a judicial determination that the person, while an inmate,
 commenced or continued a civil action,  proceeding  or  claim  that  was
 found  to  be  frivolous  as defined in subdivision (c) of section eight
 thousand three hundred three-a of the civil practice law and  rules,  or
 an  order of a federal court pursuant to rule 11 of the federal rules of
 civil procedure imposing sanctions in an action commenced by  a  person,
 while  an  inmate,  against  a  state  agency, officer or employee. SUCH
 ALLOWANCE SHALL NOT BE WITHHELD IF A PERSON FAILS TO COMPLETE A  PROGRAM
 BECAUSE OF CIRCUMSTANCES BEYOND SUCH PERSON'S CONTROL.
   § 5. Subdivision 1 of section 804 of the correction law, as amended by
 chapter 145 of the laws of 1976, is amended to read as follows:
   1. Every person confined in an institution serving a definite sentence
 of  imprisonment may receive time allowances as discretionary reductions
 of the term of his OR HER sentence not to exceed in the  aggregate  one-
 third  of  the term 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 program,
 and may be withheld, forfeited or cancelled in whole or in part for  bad
 behavior, violation of institutional rules or failure to perform proper-
 ly in the duties or program assigned. SUCH ALLOWANCES SHALL NOT BE WITH-

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 HELD,  FORFEITED OR CANCELLED IN WHOLE OR IN PART FOR A PERSON'S FAILURE
 TO COMPLETE AN ASSIGNED PROGRAM DUE TO CIRCUMSTANCES BEYOND HIS  OR  HER
 CONTROL.
   §  6.    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:
   § 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
 determine whether he OR SHE has  complied  with  the  assigned  program.
 CREDIT FOR SUCH ASSIGNED PROGRAM SHALL NOT BE WITHHELD IF A PERSON FAILS
 TO  COMPLETE  A  PROGRAM  BECAUSE  OF CIRCUMSTANCES BEYOND SUCH PERSON'S
 CONTROL. If the commissioner determines that the inmate has successfully
 participated 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.
   §  7.  Section 805 of the correction law, as amended by chapter 262 of
 the laws of 1987, is amended to read as follows:
   § 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.  CREDIT  FOR  SUCH  ASSIGNED PROGRAM SHALL NOT BE WITHHELD IF A
 PERSON FAILS TO COMPLETE A PROGRAM BECAUSE OF CIRCUMSTANCES BEYOND  SUCH
 PERSON'S  CONTROL.  If  the  commissioner determines that the inmate has
 successfully participated 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 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  deter-
 mines  that  there  is  a reasonable probability that, if such inmate is
 released, he OR SHE will not live and remain at liberty without  violat-
 ing  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.
   § 8. Subdivision 5 of section 806 of the correction law, as  added  by
 section  5  of  part  E of chapter 62 of the laws of 2003, is amended to
 read as follows:

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   5. No person shall have the right to  demand  or  require  presumptive
 release  authorized  by this section. The commissioner may revoke at any
 time an inmate's scheduled presumptive release pursuant to this  section
 for any disciplinary infraction committed by the inmate or for any fail-
 ure  to  continue  to  participate successfully in any assigned work and
 treatment program after the certificate of earned eligibility  has  been
 awarded,  EXCEPT  THAT ANY SUCH FAILURE TO CONTINUE TO PARTICIPATE IN AN
 ASSIGNED WORK OR TREATMENT PROGRAM SHALL NOT BE GROUNDS  FOR  REVOCATION
 OF  PRESUMPTIVE  RELEASE  IF SUCH FAILURE IS DUE TO CIRCUMSTANCES BEYOND
 THE INCARCERATED PERSON'S CONTROL.  The commissioner may  deny  presump-
 tive  release  to  any  inmate whenever the commissioner determines that
 such release may not be consistent with the safety of the  community  or
 the  welfare  of  the inmate. 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.
   §  9. This act shall take effect immediately; provided that the amend-
 ments to paragraph (a) and subparagraph (iv) of paragraph (d) of  subdi-
 vision  1  of section 803 of the correction law made by sections one and
 three of this act shall be subject to the expiration  and  reversion  of
 such  subdivision  pursuant  subdivision d of section 74 of chapter 3 of
 the laws of 1995, as amended, when upon  such  date  the  provisions  of
 sections  two and four of this act shall take effect; provided, further,
 that the amendments to section 805 of the correction law made by section
 six of this act shall be subject to the expiration and reversion of such
 section pursuant to subdivision d of section 74 of chapter 3 of the laws
 of 1995, as amended, when upon such date the provisions of section seven
 of this act shall take effect; and provided, further,  that  the  amend-
 ments  to  subdivision  5  of  section 806 of the correction law made by
 section eight of this act shall not affect the repeal  of  such  section
 and shall be deemed repealed therewith.