S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4423
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 14, 2023
                                ___________
 
 Introduced  by  M.  of  A.  O'DONNELL  --  read once and referred to the
   Committee on Correction
 
 AN ACT to amend the executive law, in relation to the use  of  risk  and
   needs principles in parole decisions
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. Subdivision 4 of section 259-c of  the  executive  law,  as
 amended  by  chapter  322  of  the  laws  of 2021, is amended to read as
 follows:
   4. establish written procedures for its use in making parole decisions
 as required by law. Such written procedures shall incorporate  risk  and
 needs  principles  to  measure  the  rehabilitation of persons appearing
 before the board,  the  likelihood  of  success  of  such  persons  upon
 release,  and  [assist]  SHALL  BE USED BY members of the state board of
 parole in determining which incarcerated individuals may be released  to
 parole  supervision.  SUCH PRINCIPLES SHALL PROVIDE THE BASIS UPON WHICH
 THE BOARD SHALL DETERMINE IF THERE IS A REASONABLE PROBABILITY THAT,  IF
 SUCH INCARCERATED INDIVIDUAL IS RELEASED, HE OR SHE WILL LIVE AND REMAIN
 AT  LIBERTY WITHOUT VIOLATING THE LAW. PROCEDURES WHICH INCORPORATE RISK
 AND NEEDS PRINCIPLES SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO, A  RISK
 AND  NEEDS ASSESSMENT PREPARED PURSUANT TO SECTION ONE HUNDRED TWELVE OF
 THE CORRECTION LAW OR OTHER VALIDATED RISK AND NEEDS ASSESSMENT  INSTRU-
 MENT  ADOPTED  BY  THE BOARD TO DETERMINE WHETHER OR NOT AN INCARCERATED
 INDIVIDUAL IS LIKELY TO RE-OFFEND UPON RELEASE FROM INCARCERATION.  SUCH
 RISK AND NEEDS ASSESSMENT SHALL COMPRISE  PRESUMPTIVE  EVIDENCE  OF  THE
 INCARCERATED INDIVIDUAL'S RISK OF RE-OFFENSE. SHOULD THE BOARD CHOOSE TO
 OVERRIDE  SUCH  RISK  AND NEEDS ASSESSMENT IN DECIDING WHETHER OR NOT AN
 INCARCERATED INDIVIDUAL WILL LIVE AND REMAIN AT LIBERTY WITHOUT  VIOLAT-
 ING  THE  LAW,  ITS DECISION MUST PROVIDE A DETAILED, INDIVIDUALIZED AND
 NONCONCLUSORY STATEMENT AS TO ITS REASONS FOR DEPARTING  FROM  THE  RISK
 AND NEEDS ASSESSMENT FINDINGS WHICH SHALL BE SUBJECT TO JUDICIAL REVIEW.
 SUCH OVERRIDE DECISION SHALL NOT BE BASED SOLELY ON INFORMATION RELATING
 TO  THE  INSTANT  OFFENSE  AND/OR  THE  PRE-SENTENCING  REPORT  FOR SUCH
 OFFENSE. PURSUANT TO SUBDIVISION ELEVEN OF THIS SECTION, THE BOARD SHALL
 
              

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD04129-01-3
 A. 4423                             2

 AMEND THE RULES AND REGULATIONS FOR THE CONDUCT OF ITS WORK  TO  REFLECT
 THE PROCEDURES ESTABLISHED BY THIS SUBDIVISION;
   §  2. Section 259-e of the executive law, as amended by chapter 322 of
 the laws of 2021, is amended to read as follows:
   § 259-e.  Institutional  parole  services.  1.  The  department  shall
 provide institutional parole services. Such services shall include prep-
 aration  of  RISK AND NEEDS ASSESSMENTS, reports and other data required
 by the state board of parole in  the  exercise  of  its  functions  with
 respect  to  release on presumptive release, parole, conditional release
 or post-release supervision of incarcerated  individuals.  Additionally,
 the  department  shall  determine  which incarcerated individuals are in
 need of a deaf language interpreter or an English language  interpreter,
 and  shall  inform  the board of such need within a reasonable period of
 time prior to an incarcerated individual's scheduled  appearance  before
 the  board.    Employees  of  the department who collect data, interview
 incarcerated individuals and prepare reports  for  the  state  board  of
 parole  in  institutions  under the jurisdiction of the department shall
 work under the direct supervision of  the  deputy  commissioner  of  the
 department  in charge of program services. Data and reports submitted to
 the board shall address the statutory factors to be  considered  by  the
 board  pursuant to the relevant provisions of section two hundred fifty-
 nine-i of this article.
   2. TWO MONTHS PRIOR TO A  PAROLE  BOARD  APPEARANCE,  AN  INCARCERATED
 INDIVIDUAL  SHALL  BE  PERMITTED  TO  REVIEW  HIS  OR HER RISK AND NEEDS
 ASSESSMENT, REPORTS AND ANY OTHER NON-CONFIDENTIAL DOCUMENTS TO BE GIVEN
 TO THE BOARD WITH THE DEPARTMENT EMPLOYEE CHARGED  WITH  PREPARING  SUCH
 ASSESSMENT,  REPORTS AND DOCUMENTS, AND MAY ASK FOR ANY SUCH ASSESSMENT,
 REPORT OR DOCUMENT PREPARED BY THE DEPARTMENT  TO  BE  CORRECTED  IF  IT
 CONTAINS  FACTUAL  MISTAKES  OR OTHER ERRORS. THE DEPARTMENT SHALL IMME-
 DIATELY REVIEW THE INCARCERATED INDIVIDUAL'S RECORDS  AND  ANY  EVIDENCE
 OFFERED  IN  SUPPORT  OF  THE  INCARCERATED INDIVIDUAL'S CONTENTION THAT
 THERE IS A FACTUAL MISTAKE OR OTHER ERROR IN HIS OR HER RECORDS.    UPON
 CONFIRMATION  THAT  SUCH  MISTAKE OR ERROR HAS BEEN MADE, THE DEPARTMENT
 SHALL IMMEDIATELY CORRECT SUCH MISTAKE OR ERROR PRIOR TO SUBMITTING SUCH
 ASSESSMENT, RECORD OR DOCUMENT TO THE BOARD. IF THE  DEPARTMENT  DECIDES
 NOT  TO CORRECT AN ALLEGED MISTAKE OR ERROR, THE INCARCERATED INDIVIDUAL
 SHALL BE NOTIFIED OF HIS OR HER  RIGHT  TO  SUBMIT  EVIDENCE  ABOUT  ANY
 UNCORRECTED MISTAKE OR UNCORRECTED ERROR TO THE BOARD AND MAY APPEAL THE
 DECISION WITHIN FIFTEEN DAYS OF THE DEPARTMENT'S DECISION NOT TO CORRECT
 THE  MISTAKE  OR  ERROR.  THE  COMMISSIONER SHALL DECIDE ANY SUCH APPEAL
 WITHIN THIRTY DAYS OF RECEIPT OF THE APPEAL, BUT NO LATER THAN TWO WEEKS
 BEFORE AN INCARCERATED  INDIVIDUAL'S  SCHEDULED  APPEARANCE  BEFORE  THE
 PAROLE BOARD.
   3.  IF  A  SUBSTANTIAL  MISTAKE  OR ERROR EXISTS IN THE RISK AND NEEDS
 ASSESSMENT OR IN OTHER REPORTS OR DOCUMENTS PROVIDED TO  THE  BOARD  FOR
 USE AT A PAROLE INTERVIEW AND THE INCARCERATED INDIVIDUAL IS SUBSEQUENT-
 LY  DENIED  PAROLE, THE INCARCERATED INDIVIDUAL SHALL BE GIVEN A DE NOVO
 PAROLE INTERVIEW WITHIN TWO MONTHS OF THE DISCOVERY OF SUCH  MISTAKE  OR
 ERROR.  A SUBSTANTIAL MISTAKE OR ERROR FOR THE PURPOSES OF THIS SUBDIVI-
 SION IS ANY MISTAKE OR ERROR THAT WORSENS THE INCARCERATED  INDIVIDUAL'S
 OVERALL SCORE ON HIS OR HER RISK AND NEEDS ASSESSMENT.
   §  3.  Subparagraph  (A)  of paragraph (c) of subdivision 2 of section
 259-i of the executive law, as amended by chapter 322  of  the  laws  of
 2021, is amended to read as follows:
   (A)  Discretionary  release on parole shall not be granted merely as a
 reward for  good  conduct  or  efficient  performance  of  duties  while
 A. 4423                             3
 
 confined  but  after  considering  if  there is a reasonable probability
 that, if such incarcerated individual is released, he or she  will  live
 and  remain  at  liberty  without violating the law, and that his or her
 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, RULES
 AND REGULATIONS INCORPORATING RISK AND NEEDS PRINCIPLES adopted pursuant
 to subdivision four of section two hundred fifty-nine-c of this  article
 shall require that the following be considered IF NOT ALREADY TAKEN INTO
 ACCOUNT  BY  THE RISK AND NEEDS ASSESSMENT: (i) the institutional record
 including program  goals  and  accomplishments,  academic  achievements,
 vocational  education,  training or work assignments, therapy and inter-
 actions with staff and incarcerated individuals;  (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 incarcerated individual; (iv) any
 deportation order issued by the federal government against the incarcer-
 ated individual while in the custody of the department and any recommen-
 dation regarding deportation made by the commissioner of the  department
 pursuant  to  section one hundred forty-seven of the correction law; (v)
 any current or prior 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 incapacitated; (vi) the length of the determinate
 sentence to which the incarcerated individual 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 incarcerated individual, the pre-sentence
 probation report as well as consideration of any mitigating  and  aggra-
 vating  factors,  and  activities following arrest prior to confinement;
 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 telephone
 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.  Any  statement by a victim or the victim's represen-
 tative made to the board shall be maintained by the  department  in  the
 file provided to the board when interviewing the incarcerated individual
 in consideration of release. A victim or victim's representative who has
 submitted a written request to the department for the transcript of such
 interview shall be provided such transcript as soon as it becomes avail-
 able.
   § 4. This act shall take effect immediately.