S T A T E O F N E W Y O R K
________________________________________________________________________
9108
I N A S S E M B L Y
February 7, 2024
___________
Introduced by M. of A. WEPRIN -- read once and referred to the Committee
on Correction
AN ACT to amend the penal law and the correction law, in relation to
establishing the crime of harassment of an employee by an incarcerated
individual
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The penal law is amended by adding a new section 240.33 to
read as follows:
§ 240.33 HARASSMENT OF AN EMPLOYEE BY AN INCARCERATED INDIVIDUAL.
AN INCARCERATED INDIVIDUAL OR RESPONDENT IS GUILTY OF HARASSMENT OF AN
EMPLOYEE BY AN INCARCERATED INDIVIDUAL WHEN, WITH INTENT TO HARASS,
ANNOY, THREATEN OR ALARM A PERSON IN A FACILITY WHOM SUCH INCARCERATED
INDIVIDUAL KNOWS OR REASONABLY SHOULD KNOW TO BE AN EMPLOYEE OF SUCH
FACILITY OR THE BOARD OF PAROLE OR THE OFFICE OF MENTAL HEALTH, OR A
PROBATION DEPARTMENT, BUREAU OR UNIT OR A POLICE OFFICER, SUCH INCARCER-
ATED INDIVIDUAL, FOR THE PURPOSE OF DEGRADING OR ABUSING AN EMPLOYEE, OR
FOR THE PURPOSE OF GRATIFYING SUCH INCARCERATED INDIVIDUAL'S SEXUAL
DESIRE:
1. DISPLAYS OR TOUCHES THEIR INTIMATE PARTS WHILE IN CLEAR VIEW OF AN
EMPLOYEE; OR
2. INTENTIONALLY ENGAGES IN CONDUCT THAT SUCH INCARCERATED INDIVIDUAL
KNOWS WOULD CAUSE AN EMPLOYEE TO BE IN CLEAR VIEW OF SUCH INCARCERATED
INDIVIDUAL WHILE SUCH INCARCERATED INDIVIDUAL DISPLAYS OR TOUCHES THEIR
INTIMATE PARTS; OR
3. COMMUNICATES TO AN EMPLOYEE SUCH INCARCERATED PERSON WILL, AT SOME
TIME IN THE FUTURE, CAUSE SUCH EMPLOYEE TO COME IN CONTACT WITH SUCH
INCARCERATED PERSON'S BLOOD, URINE, SEMINAL FLUID, OR FECES.
FOR PURPOSES OF THIS SECTION, "INCARCERATED INDIVIDUAL" MEANS AN
INCARCERATED INDIVIDUAL OR DETAINEE IN A CORRECTIONAL FACILITY, LOCAL
CORRECTIONAL FACILITY OR A HOSPITAL, AS SUCH TERM IS DEFINED IN SUBDIVI-
SION TWO OF SECTION FOUR HUNDRED OF THE CORRECTION LAW. FOR PURPOSES OF
THIS SECTION, "RESPONDENT" MEANS A JUVENILE IN A SECURE FACILITY OPER-
ATED AND MAINTAINED BY THE OFFICE OF CHILDREN AND FAMILY SERVICES WHO IS
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11749-01-3
A. 9108 2
PLACED WITH OR COMMITTED TO THE OFFICE OF CHILDREN AND FAMILY SERVICES.
FOR PURPOSES OF THIS SECTION, "FACILITY" MEANS A CORRECTIONAL FACILITY
OR LOCAL CORRECTIONAL FACILITY, HOSPITAL, AS SUCH TERM IS DEFINED IN
SUBDIVISION TWO OF SECTION FOUR HUNDRED OF THE CORRECTION LAW, OR A
SECURE FACILITY OPERATED AND MAINTAINED BY THE OFFICE OF CHILDREN AND
FAMILY SERVICES.
HARASSMENT OF AN EMPLOYEE BY AN INCARCERATED INDIVIDUAL IS A CLASS B
MISDEMEANOR.
§ 2. Subdivision 2 of section 851 of the correction law, as amended by
section 228 of chapter 322 of the laws of 2021, is amended to read as
follows:
2. "Eligible incarcerated individual" 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 dangerous instrument shall not be eligible to partic-
ipate 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, 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-
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 incarcerated individual is denied release on parole, such incar-
cerated individual shall not be deemed an eligible incarcerated individ-
ual 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 incarcer-
ated individual is denied release on parole while participating in a
temporary release program, the department shall review the status of the
incarcerated individual 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 incarcerated individual as
defined in section 240.32 of the penal law for, NO PERSON UNDER SENTENCE
FOR HARASSMENT OF AN EMPLOYEE BY AN INCARCERATED INDIVIDUAL AS DEFINED
IN SECTION 240.33 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-
A. 9108 3
ing, no person who is an otherwise eligible incarcerated individual who
is under sentence for a crime involving: (a) infliction of serious phys-
ical 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 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 incarcerated individuals from
participation in a temporary release program. Nothing in this paragraph
shall be construed to affect either the validity of any executive order
previously issued limiting the participation of otherwise eligible
incarcerated individuals in such program or the authority of the commis-
sioner to impose appropriate regulations limiting such participation.
§ 3. This act shall take effect on the thirtieth day after it shall
have become a law; the amendments to subdivision 2 of section 851 of the
correction law made by section two of this act shall not affect
the expiration of such subdivision or section and shall expire and be
deemed repealed therewith.