NY State Senate Bill 2023-S6725

Current Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2024	referred to codes
May 05, 2023	referred to codes

2023-S6725 (ACTIVE) - Details

See Assembly Version of this Bill:: A7567
Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Amd §§70.40 & 70.45, Pen L

2023-S6725 (ACTIVE) - Summary

Provides that a person who commits a crime during a period of post-release supervision and when such charge culminates in a new sentence, the period of post-release supervision shall be deemed interrupted for any period in which such person was held in pre-trial detention.

2023-S6725 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S6725

SPONSOR: SALAZAR
 
TITLE OF BILL:

An act to amend the penal law, in relation to crimes committed during
periods of post-release supervision

 
PURPOSE OR GENERAL IDEA OF THE BILL:

This bill addresses and corrects a drafting oversight in the Less is
More legislation enacted in 2021, Chapter 427 of the Laws of 2021.  The
correction is necessary to ensure that individuals under the supervision
of the state board of parole who are charged and convicted of new felo-
nies during the supervision period receive the proper "jail-time" credit
in accordance with long-standing practice.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1: Amends paragraph (a) of subdivision 3 of section 70.40 of the
penal law to clarify that the period of presumptive release, parole,
conditional release, or post-release supervision is deemed interrupted

for any period of time in which the person was held in pre-trial
detention on a new charge that results in a new prison sentence.

Section 2: Amends paragraph ( c) of subdivision 3 of section 70.40 of
the penal law to clarify that such time in pre-trial detention is cred-
ited to the new sentence.

Section 3: Amends paragraph (d) of subdivision 5 of section 70.45 of the
penal law is an amendment to conform this subdivision with the changes
made in sections 1 and 2 above.

Section 4: Establishes the effective date.

 
JUSTIFICATION:

There is an important drafting oversight in the Less is More legislation
enacted in 2021, which alters the longstanding practice relating to how
time spent in pretrial detention is counted when a person under parole
supervision is charged and convicted with a new offense that results in
the imposition of a new prison sentence.

Under the former version of Penal Law section 70.40 (3), whenever the
Board of Parole alleged a violation of the terms of release and declared
a person to be "delinquent, the declaration of delinquency . .
.interrupt(ed) the person's sentence as of the date of delinquency and
the interruption . . . continue(d) until the return of the person to an
institution under the jurisdiction of the department of corrections and
community supervision."

If the person was also held in pre-trial custody on new criminal charg-
es, the time spent in pre-trial custody was not credited to the old
sentence, except under very limited circumstances (e.g., the new crimi-
nal charges resulted in dismissal or acquittal, or the new charges
resulted in a sentence that was less than the time actually spent in
pre-trial custody.)


In most situations, the time a person spent in pre-trial custody on new
criminal charges was credited as "jail time" on the new conviction and
sentence. Thus, if a person was held for one-year in pre-trial custody
on new criminal charges while a parole/PRS violation was pending, the
one-year would be credited as jail time on any new indeterminate or
determinate sentence imposed. During the one-year pre-trial custody
period, the old sentence remained "interrupted" and the time remaining
on the old sentence was later added to the new one, or subsumed within
it (e.g., time owed to PRS would be subsumed within a new longer period
of PRS).

Less is More changed the statute. Now, Penal Law section 70.40 (3)
provides that, except in one narrow circumstance, sentences are not
interrupted by a violation and declaration of delinquency. As a matter
of law, the sentences continue to run during the entire violation proc-
ess.

This bill drafting oversight applies to situations where a person is
also facing new criminal charges and is held in pre-trial custody. If
Penal Law section 70.40 is applied literally, the time spent in pre-tri-
al custody on the new criminal charges may have to be applied to the old
sentence, not credited as jail time on any new felony conviction and
sentence. If pre-trial custody time is applied to the old sentence, it
would be unavailable to be credited as jail time on the new sentence.

This is an unintended outcome that will result in persons spending more
time in prison than under the former law.

For example, assume a person owes 1 year to parole supervision and is
charged with a new felony. The person spends 1 year in pre-trial custody
and is then sentenced to 2 - 4 years on the new conviction.  Under the
former version of Penal Law 70.40, the old and new sentences would be
added and the aggregate sentence would become 2 - 5 years. But, the
person would become eligible for parole release consideration after 12
months: the 2-year minimum would be diminished by the 12 months spent in
pre-trial custody. However, if the 12 months of pre-trial custody is now
credited against the old sentence - as seemingly required by the revised
Penal Law section 70.40 - the new sentence would be 2 - 4 years. The
person would be required to serve a full 24 months in prison before
parole release eligibility.  None of the 12 months of pretrial custody
would be available to reduce the 2-year minimum term.

The same inequity would apply to conditional release dates under the
former and revised statutes. In the first example, an aggregate sentence
of 2 - 5 years, the conditional release date would be 3 years and 4
months (2/3 of 5 years). But with 12 months jail time credit, the time
to conditional release would be reduced to 2 years and 4 months. Without
the 12 months of jail time credit, the aggregate sentence would be 2 - 4
years and the time to conditional release would again be longer at 2
years and 8 months (2/3 of 4 years).

The inequity would be even more pronounced when time is owed to post-re-
lease supervision. Because multiple PRS terms are not added together but
are subsumed within the term that has the longest unexpired term to run,
a person who owes time to PRS and is held in pre-trial custody on a new
felony that culminates in a new PRS term would effectively lose all
credit for time spent in pre-trial custody. The time served in pre-trial
custody will be officially "credited" to the old PRS term. But the old
PRS term would otherwise have been completely subsumed within the new
PRS term. Consequently, a person who spent a year in pre-trial custody
in this situation would experience no sentence reduction benefit whatso-
ever.

It was not the intention of the Less is More legislation to cause indi-
viduals to spend more time incarcerated than under the previous law.
This was an oversight in the drafting of that legislation and must be
corrected in order to comply with the original intent of the Less is
More bill and to restore the "jail-time" credit application rules to the
fair and appropriate practice that existed prior to the enactment of
Less is More.

 
PRIOR LEGISLATIVE HISTORY:

New bill.

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENT:

None

 
EFFECTIVE DATE:
This bill will take effect immediately.

2023-S6725 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6725
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                                May 5, 2023
                                ___________
 
 Introduced  by  Sen. SALAZAR -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the penal law, in relation to  crimes  committed  during
   periods of post-release supervision
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1.  Paragraph (a) of subdivision 3 of  section  70.40  of  the
 penal  law, as amended by chapter 427 of the laws of 2021, is amended to
 read as follows:
   (a) When a person is alleged to have violated the terms of presumptive
 release [or], parole,  OR  CONDITIONAL  RELEASE  FROM  AN  INDETERMINATE
 SENTENCE  by absconding, and the state board of parole has declared such
 person to be delinquent, the declaration of delinquency shall  interrupt
 the  person's sentence as of the date of the delinquency and such inter-
 ruption shall continue until the  [releasee's]  PERSON'S  appearance  in
 response  to  a  notice  of  violation or the date of the execution of a
 warrant, whichever is earlier; PROVIDED HOWEVER THAT WHEN A  PERSON  WHO
 HAS BEEN PRESUMPTIVELY RELEASED, PAROLED, CONDITIONALLY RELEASED FROM AN
 INDETERMINATE  SENTENCE  OR  IS  SERVING A PERIOD OF POST-RELEASE SUPER-
 VISION IS CHARGED WITH A CRIME COMMITTED WHILE  UNDER  SUPERVISION,  AND
 THE  CHARGE  OR  CHARGES CULMINATE IN A NEW DETERMINATE OR INDETERMINATE
 SENTENCE, THE BOARD'S RULES SHALL PROVIDE FOR A  DECLARATION  OF  DELIN-
 QUENCY  PURSUANT  TO  SUBPARAGRAPH (III) OF PARAGRAPH (D) OF SUBDIVISION
 THREE OF SECTION TWO HUNDRED FIFTY-NINE-I OF THE EXECUTIVE LAW  AND  THE
 PERIOD  OF  PRESUMPTIVE RELEASE, PAROLE, CONDITIONAL RELEASE OR POST-RE-
 LEASE SUPERVISION SHALL BE DEEMED INTERRUPTED FOR ANY PERIOD OF TIME  IN
 WHICH THE PERSON WAS HELD IN PRE-TRIAL DETENTION ON THE CHARGE OR CHARG-
 ES THAT CULMINATED IN SUCH INDETERMINATE OR DETERMINATE SENTENCE.
   § 2. Paragraph (c) of subdivision 3 of section 70.40 of the penal law,
 as  amended  by  chapter  427 of the laws of 2021, is amended to read as
 follows:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11058-01-3

 S. 6725                             2
 
   (c) Any time spent by a person in custody from the time  of  execution
 of  a  warrant pursuant to paragraph (a) of subdivision three of section
 two hundred fifty-nine-i of the executive law to the time service of the
 sentence resumes shall be credited against the term or maximum  term  of
 the  interrupted  sentence;  PROVIDED  HOWEVER THAT WHEN A PERSON WHO IS
 SUBJECT TO AN UNDISCHARGED TERM OF IMPRISONMENT OR  POST-RELEASE  SUPER-
 VISION  FOLLOWING  PAROLE  RELEASE,  PRESUMPTIVE  RELEASE OR CONDITIONAL
 RELEASE FROM AN INDETERMINATE SENTENCE, OR CONDITIONAL RELEASE OR  MAXI-
 MUM  EXPIRATION  OF  A  DETERMINATE  SENTENCE,  AND IS HELD IN PRE-TRIAL
 CUSTODY IN A LOCAL CORRECTIONAL FACILITY ON A NEW CHARGE OR CHARGES THAT
 CULMINATE IN A NEW INDETERMINATE OR DETERMINATE SENTENCE, THE TIME SPENT
 IN PRE-TRIAL CUSTODY ON SUCH CHARGE OR CHARGES, FROM  THE  DATE  CUSTODY
 COMMENCED  TO THE DATE OF COMMENCEMENT OF THE SUBSEQUENTLY IMPOSED INDE-
 TERMINATE OR DETERMINATE SENTENCE, SHALL BE CREDITED TO THE NEW SENTENCE
 AS JAIL TIME PURSUANT TO SUBDIVISION THREE  OF  SECTION  70.30  OF  THIS
 ARTICLE,  EXCEPT  FOR  ANY TIME THAT HAS BEEN CREDITED TO THE PREVIOUSLY
 IMPOSED SENTENCE AS A TIME ASSESSMENT BY  THE  BOARD  OF  PAROLE  FOR  A
 VIOLATION  OF  PRESUMPTIVE RELEASE, PAROLE, CONDITIONAL RELEASE OR POST-
 RELEASE SUPERVISION BETWEEN THE DATE OF THE ARREST ON THE NEW FELONY AND
 THE DATE OF SENTENCING FOR SUCH FELONY.
   § 3. Paragraph (d) of subdivision 5 of section 70.45 of the penal law,
 as amended by chapter 427 of the laws of 2021, is  amended  to  read  as
 follows:
   (d)  When a person is alleged to have violated a condition of post-re-
 lease supervision by absconding, OR BY COMMITTING A NEW CRIME DURING THE
 PERIOD OF POST-RELEASE SUPERVISION THAT CULMINATES IN A  NEW  INDETERMI-
 NATE  OR  DETERMINATE  SENTENCE,  and  the department of corrections and
 community supervision has declared such person to be delinquent: (i) the
 declaration of delinquency shall interrupt the  period  of  post-release
 supervision;  (ii)  such interruption shall continue until the person is
 restored to post-release supervision; (iii) if the person is restored to
 post-release supervision without being returned  to  the  department  of
 corrections  and  community  supervision, any time spent in custody from
 the date of delinquency until restoration  to  post-release  supervision
 shall  first be credited to the maximum or aggregate maximum term of the
 sentence or sentences of imprisonment, but only to the extent authorized
 by subdivision three of section 70.40 of this article.   Any time  spent
 in  custody  solely pursuant to such delinquency after completion of the
 maximum or aggregate maximum term of the sentence or sentences of impri-
 sonment shall be credited to the period of post-release supervision,  if
 any;  and  (iv)  if  the person is ordered returned to the department of
 corrections and community supervision, the person shall be  required  to
 serve  the  time  assessment  before  being  re-released to post-release
 supervision. If the person is detained  pursuant  to  paragraph  (a)  of
 subdivision  three  of section two hundred fifty-nine-i of the executive
 law pending a preliminary or final revocation hearing, the time  assess-
 ment imposed following such hearing shall commence upon the execution of
 the  warrant.  If  a  warrant  was executed pursuant to paragraph (a) of
 subdivision three of section two hundred fifty-nine-i of  the  executive
 law but a court released the person pending a preliminary or final revo-
 cation  hearing, the time assessment shall commence upon the issuance of
 a determination after a final hearing that the person has  violated  one
 or more conditions of community supervision in an important respect, and
 shall  include  the  time  period  between  execution of the warrant and
 release of the person pending a preliminary or final revocation hearing.
 If a [releasee] PERSON is committed to the custody of the sheriff pursu-
 S. 6725                             3
 
 ant to article five hundred thirty of the criminal  procedure  law,  the
 time  assessment,  if  any, shall include any time the [releasee] PERSON
 spent in such custody. If a notice of violation was issued  pursuant  to
 subdivision  three  of section two hundred fifty-nine-i of the executive
 law, the time assessment shall commence upon the issuance of a  determi-
 nation  after  a  final hearing that the person has violated one or more
 conditions of supervision. While serving  such  assessment,  the  person
 shall  not receive any good behavior allowance pursuant to section eight
 hundred three of the correction law.  Any time spent in custody from the
 date of delinquency until return to the department  of  corrections  and
 community  supervision  shall first be credited to the maximum or aggre-
 gate maximum term of the sentence or sentences of imprisonment, but only
 to the extent authorized by subdivision three of section 70.40  of  this
 article.  The  maximum  or  aggregate  maximum  term  of the sentence or
 sentences of imprisonment shall run while the  person  is  serving  such
 time  assessment  in  the  custody  of the department of corrections and
 community supervision. Any time spent in custody solely pursuant to such
 delinquency after completion of the maximum or aggregate maximum term of
 the sentence or sentences of imprisonment shall be credited to the peri-
 od of post-release supervision, if any.
   § 4. This act  shall  take  effect  immediately  and  shall  apply  to
 sentences imposed before, on and after such date.

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Senate Bill S6725

Sponsored By

Current Bill Status - In Senate Committee Codes Committee

2023-S6725 (ACTIVE) - Details

2023-S6725 (ACTIVE) - Summary

2023-S6725 (ACTIVE) - Sponsor Memo

2023-S6725 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S6725

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Sponsored By

Julia Salazar

Current Bill Status - In Senate Committee Codes Committee

2023-S6725 (ACTIVE) - Details

2023-S6725 (ACTIVE) - Summary

2023-S6725 (ACTIVE) - Sponsor Memo

2023-S6725 (ACTIVE) - Bill Text download pdf

Comments