S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1527
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 15, 2019
                                ___________
 
 Introduced  by  M.  of  A.  RICHARDSON  -- read once and referred to the
   Committee on Correction
 
 AN ACT to amend the correction law and the penal  law,  in  relation  to
   temporary  release  eligibility  for  judicially ordered comprehensive
   alcohol and substance abuse treatment

   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 OR WHO HAS COMPLETED A
 JUDICIALLY-ORDERED SUBSTANCE ABUSE TREATMENT PROGRAM IN A STATE  CORREC-
 TIONAL  FACILITY  PURSUANT  TO  SUBDIVISION  SIX OF SECTION 60.04 OF THE
 PENAL LAW. 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  threat-
 ened  use of a deadly weapon or dangerous instrument shall not be eligi-
 ble 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 determi-
 nate  sentence,  including  any  jail  time  credited  pursuant  to  the
 provisions  of article seventy of the penal law, shall be at least eigh-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD04522-01-9

 A. 1527                             2
 
 teen 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-seven, for the  purposes  of  this
 article  parole  eligibility shall be upon 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 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  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 forego-
 ing, 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 tempo-
 rary  release  program without the written approval of the commissioner.
 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
 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 OR WHO HAS COMPLETED A
 JUDICIALLY-ORDERED  SUBSTANCE ABUSE TREATMENT PROGRAM IN A STATE CORREC-
 TIONAL FACILITY PURSUANT TO SUBDIVISION SIX  OF  SECTION  60.04  OF  THE
 PENAL  LAW.    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 pursu-

 A. 1527                             3
 
 ant 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-seven, for the purposes of
 this article parole eligibility shall be  upon  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 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  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. 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 inju-
 ry upon another as defined in the penal law, (b) a sex offense involving
 forcible  compulsion,  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.  The  commis-
 sioner  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
 such  program or the authority of the commissioner to impose appropriate
 regulations limiting such participation.
   § 3. Subdivision 2 of section 851 of the correction law, as  added  by
 chapter 472 of the laws of 1969, is amended to read as follows:
   2. "Eligible inmate" means a person confined in an institution where a
 work release program has been established who is eligible for release on
 parole or who will become eligible for release on parole within one year
 OR  WHO  HAS  COMPLETED  A  JUDICIALLY-ORDERED SUBSTANCE ABUSE TREATMENT
 PROGRAM IN A STATE CORRECTIONAL FACILITY PURSUANT TO SUBDIVISION SIX  OF
 SECTION 60.04 OF THE PENAL LAW.
   §  4.  Subdivision  6 of section 60.04 of the penal law, as amended by
 section 120 of subpart B of part C of chapter 62 of the laws of 2011, is
 amended to read as follows:
   6. Substance abuse treatment. When the court  imposes  a  sentence  of
 imprisonment  which  requires  a  commitment  to the state department of
 corrections and community supervision upon a person who stands convicted
 of a controlled substance or marihuana  offense,  the  court  may,  upon
 motion of the defendant in its discretion, issue an order directing that
 the  department  of  corrections  and  community  supervision enroll the
 defendant in the comprehensive alcohol  and  substance  abuse  treatment
 program  in an alcohol and substance abuse correctional annex as defined
 in subdivision eighteen of section two of the correction  law,  provided
 that  the  defendant will satisfy the statutory eligibility criteria for

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 participation in such program. Notwithstanding the foregoing  provisions
 of this subdivision, any defendant to be enrolled in such program pursu-
 ant  to  this  subdivision shall be governed by the same rules and regu-
 lations  promulgated  by  the  department  of  corrections and community
 supervision, including without limitation those  rules  and  regulations
 establishing requirements for completion and those rules and regulations
 governing  discipline and removal from the program. SUCH DEFENDANT SHALL
 BE DEEMED ELIGIBLE FOR TEMPORARY RELEASE PURSUANT TO SUBDIVISION TWO  OF
 SECTION EIGHT HUNDRED FIFTY-ONE OF THE CORRECTION LAW UPON COMPLETION OF
 SUCH  PROGRAM.  No  such  period of court ordered corrections based drug
 abuse treatment pursuant to this subdivision shall be required to extend
 beyond the defendant's conditional release date.
   § 5. This act shall take effect on the sixtieth  day  after  it  shall
 have  become a law; 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 section two of this act
 shall expire on the same date as subdivision (c) of section 46 of  chap-
 ter  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, when
 upon such date the provisions of section three of this  act  shall  take
 effect.