Assembly Bill A869

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    869
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 11, 2023
                                ___________
 
 Introduced  by M. of A. AUBRY -- read once and referred to the Committee
   on Correction
 
 AN ACT to amend the executive law, in relation to modifying  the  proce-
   dure  for  interviews  of  parole  applicants and to the disclosure of
   parole applicant records
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Paragraph  (a)  of  subdivision 2 of section 259-i of the
 executive law, as amended by chapter 322 of the laws of  2021,  subpara-
 graph  (i)  as amended by section 14 of chapter 486 of the laws of 2022,
 is amended to read as follows:
   (a) (i) Except as provided in subparagraph (ii) of this paragraph,  at
 least  [one month] THREE MONTHS prior to the date on which an [incarcer-
 ated individual] A PAROLE APPLICANT may be paroled pursuant to  subdivi-
 sion  one  of  section  70.40  of  the penal law, a member or members as
 determined by the rules of the board  shall  personally  interview  such
 [incarcerated  individual]  PAROLE APPLICANT and determine whether he or
 she should be paroled in accordance  with  the  [guidelines]  PROCEDURES
 adopted pursuant to subdivision four of section two hundred fifty-nine-c
 of  this article.  THE INTERVIEW SHALL TAKE PLACE WITH ALL PARTIES PRES-
 ENT IN THE SAME ROOM. THE INTERVIEW SHALL BE RECORDED AUDIO-VISUALLY AND
 THIS RECORDING SHALL BE MADE AVAILABLE  TO  THE  BOARD  AND  THE  PAROLE
 APPLICANT  OR  THE  PAROLE APPLICANT'S REPRESENTATIVE ONLY. AT LEAST ONE
 MONTH PRIOR TO THE PAROLE HEARING PAROLE APPLICANTS  SHALL  BE  PROVIDED
 THE  OPPORTUNITY  TO REVIEW ALL DOCUMENTS CONTAINED IN THEIR PAROLE FILE
 OR THAT OTHERWISE WILL BE MADE AVAILABLE FOR THE  BOARD'S  DISCRETIONARY
 RELEASE  CONSIDERATION.  NO  DOCUMENTS  SHALL BE CONSIDERED CONFIDENTIAL
 EXCEPT AS PROVIDED IN SUBPARAGRAPH (I) OF PARAGRAPH (C) OF THIS SUBDIVI-
 SION.  RECORDS CONCERNING OR RELATING TO THE MENTAL  HEALTH  EXAMINATION
 OR  TREATMENT  OF  THE  PAROLE  APPLICANT  SHALL BE DISCLOSED UNLESS, IN
 ACCORDANCE WITH THE STANDARDS AND PROCEDURES SET FORTH IN SECTION  33.16
 OF  THE  MENTAL HYGIENE LAW, IT IS DETERMINED BY A MENTAL HEALTH PRACTI-
 TIONER THAT SUCH DISCLOSURE CAN REASONABLY BE EXPECTED TO CAUSE SUBSTAN-
 TIAL AND IDENTIFIABLE HARM TO THE PAROLE APPLICANT OR  OTHERS  AND  THAT
 
              

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01600-01-3
 A. 869                              2
 
 THIS  HARM  WOULD OUTWEIGH THE PAROLE APPLICANT'S RIGHT OF ACCESS TO THE
 RECORD. AT LEAST THIRTY DAYS BEFORE THE PAROLE HEARING, IF REQUESTED  BY
 THE  VICTIM, AS THE TERM VICTIM IS DEFINED IN SUBDIVISION TWO OF SECTION
 380.50 OF THE CRIMINAL PROCEDURE LAW, THE FOLLOWING INFORMATION SHALL BE
 PROVIDED  TO  THE  VICTIM, OR THE VICTIM'S REPRESENTATIVE:  INCARCERATED
 INDIVIDUAL STATUS REPORTS; INCARCERATED INDIVIDUAL'S PSYCHIATRIC  EVALU-
 ATION,  IF  THERE  IS  ONE AVAILABLE AND ONLY UPON CONSENT OF THE PAROLE
 APPLICANT; AND A COPY OF THE PAROLE APPLICANT'S "PAROLE RELEASE PLAN" IN
 THE EVENT THAT THE APPLICANT SUBMITS ONE. If parole is not granted  upon
 such  review,  the  [incarcerated  individual] BOARD WILL BE REQUIRED TO
 STATE IN DETAIL AND NOT IN CONCLUSORY TERMS THE FACTORS AND REASONS  FOR
 THE  DENIAL  AND  THE  SPECIFIC  REQUIREMENTS  FOR  ACTIONS TO BE TAKEN,
 PROGRAMS OR ACCOMPLISHMENTS TO BE COMPLETED, OR CHANGES  IN  PERFORMANCE
 OR  CONDUCT  TO BE MADE, OR CORRECTIVE ACTION OR ACTIONS TO BE TAKEN, IN
 ORDER TO QUALIFY FOR PAROLE RELEASE. THE BOARD SHALL SPECIFY A DATE  NOT
 MORE  THAN  TWENTY-FOUR  MONTHS  FROM SUCH DETERMINATION FOR RECONSIDER-
 ATION. THE PAROLE APPLICANT shall be  informed  in  writing  within  two
 weeks  of  such appearance of the factors and reasons for such denial of
 parole[. Such reasons shall be given in detail  and  not  in  conclusory
 terms.  The  board shall specify a date not more than twenty-four months
 from such determination for reconsideration, and the  procedures  to  be
 followed  upon  reconsideration  shall  be  the  same]  AND THE SPECIFIC
 REQUIREMENTS AND SHALL BE PROVIDED WITH A COPY OF THE  SCORED  RISK  AND
 NEEDS  ASSESSMENT INSTRUMENT CONSIDERED BY THE BOARD. WITHIN NINETY DAYS
 OF THE HEARING DECISION, THE DEPARTMENT  SHALL  PROVIDE  TO  THE  PAROLE
 APPLICANT  ACCESS  TO THE PROGRAM OR PROGRAMS, ACTIVITIES AND/OR FACILI-
 TIES NEEDED IN ORDER TO PROVIDE THE OPPORTUNITY TO FULFILL THE  REQUIRE-
 MENTS  SET  FORTH  BY THE BOARD. THE PAROLE APPLICANT SHALL BE SCHEDULED
 FOR A REAPPEARANCE BEFORE THE BOARD  UPON  COMPLETION  OF  THE  SPECIFIC
 REQUIREMENTS  AS  PREVIOUSLY  SET  FORTH BY THE BOARD IF SUCH COMPLETION
 OCCURS SOONER THAN THE DATE SPECIFIED BY THE BOARD. IF THE  REQUIREMENTS
 PREVIOUSLY  SET  FORTH BY THE BOARD HAVE BEEN SUCCESSFULLY COMPLETED AND
 THE PAROLE APPLICANT'S INSTITUTIONAL RECORD HAS BEEN SATISFACTORY DURING
 THE TIME BETWEEN THE PREVIOUS AND CURRENT PAROLE HEARING, RELEASE  SHALL
 BE  GRANTED.    If  the  [incarcerated  individual]  PAROLE APPLICANT is
 released, he or she shall be given a copy of the conditions  of  parole.
 Such  conditions shall where appropriate, include a requirement that the
 parolee comply with any  restitution  order,  mandatory  surcharge,  sex
 offender  registration  fee and DNA databank fee previously imposed by a
 court of competent jurisdiction that applies to the parolee. The  condi-
 tions  shall  indicate  which  restitution collection agency established
 under subdivision eight of section 420.10 of the criminal procedure law,
 shall be responsible for collection of restitution, mandatory surcharge,
 sex offender registration fees and DNA databank fees as provided for  in
 section  60.35 of the penal law and section eighteen hundred nine of the
 vehicle and traffic law. If the incarcerated individual is released,  he
 or  she  shall also be notified in writing that his or her voting rights
 will be restored upon release.
   (ii) Any [incarcerated individual] PAROLE APPLICANT who  is  scheduled
 for  presumptive  release  pursuant  to section eight hundred six of the
 correction law shall not appear before the board as provided in subpara-
 graph (i) of this  paragraph  unless  such  [incarcerated  individual's]
 PAROLE APPLICANT'S scheduled presumptive release is forfeited, canceled,
 or  rescinded  subsequently as provided in such law.  In such event, the
 [incarcerated individual] PAROLE APPLICANT shall appear before the board
 A. 869                              3
 
 for release consideration as provided in subparagraph (i) of this  para-
 graph as soon thereafter as is practicable.
   §  2. Paragraph (a) of subdivision 2 of section 259-i of the executive
 law, as amended by section 15 of chapter 486 of the  laws  of  2022,  is
 amended to read as follows:
   (a)  At  least [one month] THREE MONTHS prior to the expiration of the
 minimum period or periods of imprisonment fixed by the court or board, a
 member or members  as  determined  by  the  rules  of  the  board  shall
 personally  interview  [an  incarcerated  individual] A PAROLE APPLICANT
 serving an indeterminate sentence and determine whether he or she should
 be paroled at the expiration of the minimum period or periods in accord-
 ance with the procedures adopted pursuant to subdivision four of section
 two hundred fifty-nine-c of this article.    THE  INTERVIEW  SHALL  TAKE
 PLACE  WITH ALL PARTIES PRESENT IN THE SAME ROOM. THE INTERVIEW SHALL BE
 RECORDED AUDIO-VISUALLY AND THIS RECORDING SHALL BE  MADE  AVAILABLE  TO
 THE  BOARD  AND THE PAROLE APPLICANT OR THE PAROLE APPLICANT'S REPRESEN-
 TATIVE ONLY. AT LEAST ONE MONTH  PRIOR  TO  THE  PAROLE  HEARING  PAROLE
 APPLICANTS  SHALL  BE  PROVIDED  THE OPPORTUNITY TO REVIEW ALL DOCUMENTS
 CONTAINED IN THEIR PAROLE FILE OR THAT OTHERWISE WILL BE MADE  AVAILABLE
 FOR  THE BOARD'S DISCRETIONARY RELEASE CONSIDERATION. NO DOCUMENTS SHALL
 BE CONSIDERED CONFIDENTIAL EXCEPT AS PROVIDED  IN  SUBPARAGRAPH  (I)  OF
 PARAGRAPH (C) OF THIS SUBDIVISION. RECORDS CONCERNING OR RELATING TO THE
 MENTAL  HEALTH EXAMINATION OR TREATMENT OF THE PAROLE APPLICANT SHALL BE
 DISCLOSED UNLESS, IN ACCORDANCE WITH THE STANDARDS  AND  PROCEDURES  SET
 FORTH  IN SECTION 33.16 OF THE MENTAL HYGIENE LAW, IT IS DETERMINED BY A
 MENTAL HEALTH  PRACTITIONER  THAT  SUCH  DISCLOSURE  CAN  REASONABLY  BE
 EXPECTED TO CAUSE SUBSTANTIAL AND IDENTIFIABLE HARM TO THE PAROLE APPLI-
 CANT  OR OTHERS AND THAT THIS HARM WOULD OUTWEIGH THE PAROLE APPLICANT'S
 RIGHT OF ACCESS TO THE RECORD. AT LEAST THIRTY DAYS  BEFORE  THE  PAROLE
 HEARING,  IF  REQUESTED  BY THE VICTIM, AS THE TERM VICTIM IS DEFINED IN
 SUBDIVISION TWO OF SECTION 380.50 OF THE  CRIMINAL  PROCEDURE  LAW,  THE
 FOLLOWING  INFORMATION  SHALL BE PROVIDED TO THE VICTIM, OR THE VICTIM'S
 REPRESENTATIVE: INCARCERATED  INDIVIDUAL  STATUS  REPORTS;  INCARCERATED
 INDIVIDUAL'S  PSYCHIATRIC EVALUATION, IF THERE IS ONE AVAILABLE AND ONLY
 UPON CONSENT OF THE PAROLE APPLICANT; AND A COPY OF  THE  PAROLE  APPLI-
 CANT'S  "PAROLE  RELEASE  PLAN"  IN THE EVENT THAT THE APPLICANT SUBMITS
 ONE. If parole is not granted upon such review, the [incarcerated  indi-
 vidual]  BOARD WILL BE REQUIRED TO STATE IN DETAIL AND NOT IN CONCLUSORY
 TERMS THE FACTORS AND REASONS FOR THE DENIAL AND THE  SPECIFIC  REQUIRE-
 MENTS  FOR  ACTIONS  TO  BE  TAKEN,  PROGRAMS  OR  ACCOMPLISHMENTS TO BE
 COMPLETED, OR CHANGES IN PERFORMANCE OR CONDUCT TO BE MADE,  OR  CORREC-
 TIVE  ACTION  OR  ACTIONS  TO  BE  TAKEN, IN ORDER TO QUALIFY FOR PAROLE
 RELEASE. THE BOARD SHALL SPECIFY A DATE NOT MORE THAN TWENTY-FOUR MONTHS
 FROM SUCH DETERMINATION FOR RECONSIDERATION. THE PAROLE APPLICANT  shall
 be  informed  in  writing  within  two  weeks  of such appearance of the
 factors and reasons for such denial of parole[. Such  reasons  shall  be
 given  in  detail and not in conclusory terms. The board shall specify a
 date not more than twenty-four months from such determination for recon-
 sideration, and the procedures to be followed upon reconsideration shall
 be the same] AND THE SPECIFIC REQUIREMENTS AND SHALL BE PROVIDED WITH  A
 COPY  OF  THE  SCORED RISK AND NEEDS ASSESSMENT INSTRUMENT CONSIDERED BY
 THE BOARD. WITHIN NINETY DAYS OF THE HEARING  DECISION,  THE  DEPARTMENT
 SHALL PROVIDE TO THE PAROLE APPLICANT ACCESS TO THE PROGRAM OR PROGRAMS,
 ACTIVITIES  AND/OR FACILITIES NEEDED IN ORDER TO PROVIDE THE OPPORTUNITY
 TO FULFILL THE REQUIREMENTS SET FORTH BY THE BOARD. THE PAROLE APPLICANT
 SHALL BE SCHEDULED FOR A REAPPEARANCE BEFORE THE BOARD  UPON  COMPLETION
 A. 869                              4

 OF  THE  SPECIFIC  REQUIREMENTS  AS PREVIOUSLY SET FORTH BY THE BOARD IF
 SUCH COMPLETION OCCURS SOONER THAN THE DATE SPECIFIED BY THE  BOARD.  IF
 THE REQUIREMENTS PREVIOUSLY SET FORTH BY THE BOARD HAVE BEEN SUCCESSFUL-
 LY  COMPLETED  AND  THE PAROLE APPLICANT'S INSTITUTIONAL RECORD HAS BEEN
 SATISFACTORY DURING THE TIME BETWEEN THE  PREVIOUS  AND  CURRENT  PAROLE
 HEARING,  RELEASE  SHALL  BE GRANTED.   If the [incarcerated individual]
 PAROLE APPLICANT is released, he or she shall be given  a  copy  of  the
 conditions of parole. Such conditions shall where appropriate, include a
 requirement  that  the  parolee  comply  with  any restitution order and
 mandatory surcharge previously imposed by a court of competent jurisdic-
 tion that applies to the parolee. The conditions  shall  indicate  which
 restitution  collection  agency  established  under subdivision eight of
 section 420.10 of the criminal procedure law, shall be  responsible  for
 collection  of  restitution  and  mandatory surcharge as provided for in
 section 60.35 of the penal law and section eighteen hundred nine of  the
 vehicle  and traffic law. If the incarcerated individual is released, he
 or she shall also be notified in writing that his or her  voting  rights
 will be restored upon release.
   §  3. 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:
   (c)  [(A)]  (I) Discretionary release on parole shall [not] be granted
 [merely as a reward] for good conduct [or] AND efficient performance  of
 duties  while  confined  [but after considering if there is a reasonable
 probability], AND FOR PREPAREDNESS FOR REENTRY  AND  REINTEGRATION  INTO
 SOCIETY  THEREBY  PROVIDING A REASONABLE BASIS TO CONCLUDE that, if such
 incarcerated individual is released, he or she will live and  remain  at
 liberty without violating the law, and THEREFORE that his or her release
 is  not incompatible with the welfare of society [and will not so depre-
 cate the seriousness of his or her crime as  to  undermine  respect  for
 law].  In  making  the  parole  release decision, the procedures adopted
 pursuant to subdivision four of section two hundred fifty-nine-c of this
 article shall require that the [following  be  considered]  DECISION  BE
 BASED  UPON THE FOLLOWING CONSIDERATIONS:  [(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]  (A)  PREPAREDNESS  FOR
 REENTRY  AND REINTEGRATION AS EVIDENCED BY THE APPLICANT'S INSTITUTIONAL
 RECORD PERTAINING TO PROGRAM GOALS AND ACCOMPLISHMENTS AS STATED IN  THE
 FACILITY  PERFORMANCE  REPORTS, ACADEMIC ACHIEVEMENTS, VOCATIONAL EDUCA-
 TION, TRAINING OR WORK ASSIGNMENTS, THERAPY AND INTERACTIONS WITH  STAFF
 AND  OTHER SENTENCED PERSONS, AND OTHER INDICATIONS OF PRO-SOCIAL ACTIV-
 ITY, CHANGE AND TRANSFORMATION; [(ii)] (B) performance,  if  any,  as  a
 participant  in  a  temporary release program; [(iii)] (C) release plans
 including community resources, employment, education  and  training  and
 support  services  available  to  the  [incarcerated  individual] PAROLE
 APPLICANT; [(iv)] (D)  any  deportation  order  issued  by  the  federal
 government  against the [incarcerated individual] PAROLE APPLICANT while
 in the custody of the department and any recommendation regarding depor-
 tation made by the commissioner of the department  pursuant  to  section
 one  hundred forty-seven of the correction law; [(v)] (E) any current or
 prior statement, WHETHER SUPPORTIVE OR CRITICAL, 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,  TO  ASSIST  THE
 BOARD  IN  DETERMINING WHETHER AT THIS TIME THERE IS REASONABLE CAUSE TO
 BELIEVE THAT THE RELEASE OF THE PAROLE APPLICANT WOULD CREATE A  PRESENT
 A. 869                              5
 
 DANGER  TO  THE  VICTIM OR THE VICTIM'S REPRESENTATIVE, OR THE EXTENT OF
 THE PAROLE APPLICANT'S PREPAREDNESS FOR REENTRY AND REINTEGRATION AS SET
 FORTH IN CLAUSE (A) OF THIS SUBPARAGRAPH; [(vi)] (F) 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 individ-
 ual, the pre-sentence probation report as well as consideration  of  any
 mitigating  and  aggravating  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] (G) PARTICIPATION  AND
 PERFORMANCE,   IF  ANY,  IN  A  RECONCILIATION/RESTORATIVE  JUSTICE-TYPE
 CONFERENCE WITH THE VICTIM OR VICTIM'S REPRESENTATIVES; (H) THE PROGRESS
 MADE TOWARDS THE COMPLETION OF THE SPECIFIC REQUIREMENTS PREVIOUSLY  SET
 FORTH  BY THE BOARD FOR THE PAROLE APPLICANT, IN THE CASE OF A REAPPEAR-
 ANCE; AND (I) THE PROGRESS MADE TOWARDS ACHIEVING  THE  PROGRAMMING  AND
 TREATMENT  NEEDS DEVELOPED IN THE TRANSITIONAL ACCOUNTABILITY PLAN.  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 procedure 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] A MEMBER OF THE FAMILY OR DOMESTIC PARTNER  OF  SUCH
 CRIME  VICTIM,  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 representative 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 available.
   [(B)] (II) Where a crime victim or victim's representative as  defined
 in  subparagraph [(A)] (I) of this paragraph, or other person submits to
 the parole board a written  statement  concerning  the  release  of  [an
 incarcerated individual] A PAROLE APPLICANT, the parole board shall keep
 that  individual's  name  and address confidential.   WITH REGARD TO ANY
 STATEMENT FROM A JUDGE OR DISTRICT ATTORNEY, THE  ADDRESS,  IF  RESIDEN-
 TIAL, SHALL BE KEPT CONFIDENTIAL BY THE BOARD.
   § 4. This act shall take effect on the one hundred eightieth day after
 it  shall  have  become a law; provided that the amendments to paragraph
 (a) of subdivision 2 of section 259-i  of  the  executive  law  made  by
 section one of this act shall be subject to the expiration and reversion
 of  such paragraph as provided by section 74 of chapter 3 of the laws of
 1995, as amended, when upon such date the provisions of section  two  of
 this act shall take effect.