The New York State Senate

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    774
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              January 6, 2023
                                ___________
 
 Introduced  by  Sens. COONEY, BRISPORT, BROUK, CLEARE, COMRIE, GIANARIS,
   HOYLMAN, JACKSON, MAY, MYRIE, PARKER, RAMOS, RIVERA, SALAZAR, SEPULVE-
   DA -- read twice and ordered printed, and when printed to be committed
   to the Committee on Crime Victims, Crime and Correction
 
 AN ACT to amend the correction law and the penal law, in relation to the
   early release of incarcerated individuals
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  This  act  shall be known and may be cited as the "earned
 time act".
   § 2. The correction law is amended by adding a new section 802 to read
 as follows:
   § 802. DATA COLLECTION. THE DEPARTMENT SHALL REPORT  ANNUALLY  TO  THE
 GOVERNOR AND THE LEGISLATURE WITH RESPECT TO EACH INSTANCE IN WHICH TIME
 ALLOWANCE  CREDIT  HAS BEEN WITHHELD, FORFEITED OR CANCELLED. THE REPORT
 SHALL PROVIDE THE FOLLOWING INFORMATION: THE NAME, DEPARTMENT  IDENTIFI-
 CATION  NUMBER  AND  RACE  OF  EACH INCARCERATED INDIVIDUAL WHO HAS BEEN
 DENIED CREDIT AND THE AMOUNT OF CREDIT INVOLVED, THE REASON  OR  REASONS
 FOR  THE  DENIAL,  INCLUDING, WHERE APPLICABLE, A DESCRIPTION OF THE BAD
 BEHAVIOR OR INSTITUTIONAL RULE VIOLATION OR  VIOLATIONS  (INCLUDING  THE
 CORRESPONDING  NUMERICAL CODE IN THE DEPARTMENT'S INMATE RULE HANDBOOK),
 AND, WHERE APPLICABLE, A DESCRIPTION OF THE ASSIGNED DUTY  AND/OR  IDEN-
 TIFICATION  OF  ASSIGNED  TREATMENT  PROGRAM  IN  WHICH THE INCARCERATED
 PERSON WAS DETERMINED TO HAVE FAILED TO  PERFORM  PROPERLY.  THE  REPORT
 SHALL  ADDITIONALLY  SPECIFY THE DEPARTMENT FACILITY IN WHICH THE RECOM-
 MENDATION TO WITHHOLD, FORFEIT OR CANCEL GOOD  TIME  WAS  MADE  AND  THE
 NAMES  OF  THE  DEPARTMENT  PERSONNEL  ON SUCH FACILITY'S TIME ALLOWANCE
 COMMITTEE WHO MADE SUCH RECOMMENDATION.
   § 3. Section 803 of the correction law, as amended by chapter 3 of the
 laws of 1995, paragraphs (a), (b), and (c) of subdivision 1 and subdivi-
 sions 3, 4, and 5 as amended by section 37 of subpart B  of  part  C  of
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02637-01-3

 S. 774                              2
 
 chapter  62  of  the  laws  of  2011, paragraph (d) of subdivision 1 and
 subdivision 2-a as added by chapter 738 of the laws  of  2004,  subpara-
 graph  (ii)  of paragraph (d) of subdivision 1 as amended by chapter 322
 of the laws of 2021, subparagraph (iv) of paragraph (d) of subdivision 1
 as  separately  amended  by  chapters  242  and 322 of the laws of 2021,
 subdivision 2-b as added by section 3 of part E of  chapter  62  of  the
 laws of 2003, is amended to read as follows:
   §  803. Good behavior allowances against indeterminate and determinate
 sentences. 1. (a) Every person confined in an institution of the depart-
 ment or a facility in the department of mental hygiene serving an  inde-
 terminate or determinate sentence of imprisonment, except a person serv-
 ing  a  sentence  with  a maximum term of life imprisonment, [may] SHALL
 receive A time allowance against the term or maximum  term  of  [his  or
 her] THEIR sentence imposed by the court. Such allowances [may be grant-
 ed  for  good  behavior  and efficient and willing performance of duties
 assigned or progress and achievement in an assigned  treatment  program,
 and  may  be withheld, forfeited or canceled in whole or in part for bad
 behavior, violation of institutional rules or failure to perform proper-
 ly in the duties  or  program  assigned]  SHALL  BE  CREDITED  TOWARD  A
 PERSON'S  SENTENCE  ON  AN ANNUAL PRO RATA BASIS, AND ANY CREDIT AWARDED
 OVER THE COURSE OF THE CALENDAR YEAR SHALL VEST ON THE FINAL DAY OF  THE
 CALENDAR   YEAR.  ONCE  VESTED,  SUCH  CREDIT  SHALL  NOT  BE  WITHHELD,
 FORFEITED, OR CANCELED.
   (A-1)   TIME ALLOWANCES THAT HAVE  NOT  YET  BEEN  CREDITED  TOWARD  A
 PERSON'S  SENTENCE MAY BE WITHHELD, FORFEITED OR CANCELED IN WHOLE OR IN
 PART FOR VIOLATION OF INSTITUTIONAL RULES, AS DEMONSTRATED AT A  HEARING
 BY  A PREPONDERANCE OF THE EVIDENCE.  SUCH RESTRICTIONS SHALL BE LIMITED
 TO THE PRO RATA SHARE OF  CREDIT  WITHIN  THE  CALENDAR  YEAR  THAT  THE
 OFFENSE  IS COMMITTED.  IF SUCH TIME ALLOWANCE IS WITHHELD, FORFEITED OR
 CANCELED IN WHOLE OR IN PART, FURTHER  ALLOWANCES,  NOT  TO  EXCEED  THE
 ALLOWANCES  SET FORTH IN PARAGRAPHS (B) AND (C) OF THIS SUBDIVISION, MAY
 BE REINSTATED FOR GOOD BEHAVIOR AND EFFICIENT AND WILLING PERFORMANCE OF
 DUTIES ASSIGNED OR PROGRESS AND ACHIEVEMENT  IN  AN  ASSIGNED  TREATMENT
 PROGRAM.   FOLLOWING ANY FINAL DETERMINATION WITHHOLDING, FORFEITING, OR
 CANCELING A TIME ALLOWANCE, THE INCARCERATED PERSON SHALL HAVE THE RIGHT
 TO TAKE AN ADMINISTRATIVE APPEAL TO THE CENTRAL OFFICE OF THE DEPARTMENT
 AND SHALL BE ADVISED OF THE RIGHT TO SEEK LEGAL ASSISTANCE IN THE TAKING
 OF SUCH APPEAL.  THE DEPARTMENT SHALL ADOPT  REGULATIONS  IN  ACCORDANCE
 WITH THIS PROVISION.
   (b)  A  person serving an indeterminate sentence of imprisonment [may]
 SHALL receive A time allowance against the maximum term of [his or  her]
 THEIR sentence [not to exceed one-third] of ONE-HALF OF the maximum term
 imposed by the court.
   (c)  A  person  serving  a  determinate sentence of imprisonment [may]
 SHALL receive A time allowance against the term of [his  or  her]  THEIR
 sentence  [not to exceed one-seventh] of ONE-HALF OF the term imposed by
 the court.
   (d) (i) [Except as provided in subparagraph (ii)  of  this  paragraph,
 every] EVERY person under the custody of the department or confined in a
 facility  in  the  department of mental hygiene serving an indeterminate
 sentence of imprisonment with a minimum period of one year or more or  a
 determinate sentence of imprisonment of one year or more [imposed pursu-
 ant  to  section 70.70 or 70.71 of the penal law,] may earn a merit time
 allowance.
   (ii) [Such merit time allowance shall not be available to  any  person
 serving  an indeterminate sentence authorized for an A-I felony offense,
 S. 774                              3

 other than an A-I felony offense defined in article two  hundred  twenty
 of  the  penal law, or any sentence imposed for a violent felony offense
 as defined in section 70.02 of the penal law, manslaughter in the second
 degree,   vehicular   manslaughter   in  the  second  degree,  vehicular
 manslaughter in the first  degree,  criminally  negligent  homicide,  an
 offense  defined in article one hundred thirty of the penal law, incest,
 or an offense defined in article two hundred sixty-three  of  the  penal
 law, or aggravated harassment of an employee by an incarcerated individ-
 ual.
   (iii)]  The  merit time allowance credit against the minimum period of
 the indeterminate sentence shall be [one-sixth] ONE-HALF of the  minimum
 period  imposed by the court [except that such credit shall be one-third
 of the minimum period imposed by the court for  an  A-I  felony  offense
 defined  in article two hundred twenty of the penal law]. In the case of
 such a determinate sentence, in addition to the  time  allowance  credit
 authorized  by  paragraph (c) of this subdivision, the merit time allow-
 ance credited against the term of the determinate sentence  pursuant  to
 this paragraph shall be [one-seventh] ONE-QUARTER of the term imposed by
 the court.
   [(iv)]  (III) Such merit time allowance [may] SHALL be granted when an
 incarcerated individual successfully participates in the work and treat-
 ment program assigned pursuant to section eight  hundred  five  of  this
 article [and], INCLUDING BUT NOT LIMITED TO when such incarcerated indi-
 vidual  obtains  a general equivalency diploma, an alcohol and substance
 abuse treatment certificate, a vocational trade  certificate  [following
 at  least six months of vocational programming], at least eighteen cred-
 its in a program registered by the state  education  department  from  a
 degree-granting  higher  education institution or performs at least four
 hundred hours of service as part of a community work crew,  OR  SUCCESS-
 FULLY  COMPLETES  ONE OR MORE "SIGNIFICANT PROGRAMMATIC ACCOMPLISHMENTS"
 AS DEFINED IN PARAGRAPH (C) OF SUBDIVISION ONE OF SECTION EIGHT  HUNDRED
 THREE-B  OF  THIS  ARTICLE.  THE  COMMISSIONER  MAY DESIGNATE ADDITIONAL
 PROGRAMS AND ACHIEVEMENTS FOR WHICH MERIT TIME SHALL  BE  GRANTED.  ONCE
 GRANTED, SUCH ALLOWANCES SHALL NOT BE WITHHELD, FORFEITED, OR CANCELLED.
 WHERE  THE  INSTITUTION IN WHICH THE INCARCERATED INDIVIDUAL IS CONFINED
 DOES NOT PROVIDE OPPORTUNITIES FOR EVERY INCARCERATED INDIVIDUAL TO EARN
 MERIT TIME ALLOWANCES, SUCH MERIT TIME ALLOWANCE SHALL BE  AUTOMATICALLY
 CREDITED  AGAINST  THE  INCARCERATED  INDIVIDUAL'S SENTENCE ACCORDING TO
 SUBPARAGRAPH (II) OF THIS PARAGRAPH.
   [Such allowance shall be withheld for any serious disciplinary infrac-
 tion or upon a judicial determination that the person, while  an  incar-
 cerated individual, commenced or continued a civil action, proceeding or
 claim  that  was  found to be frivolous as defined in subdivision (c) of
 section eight thousand three hundred three-a of the civil  practice  law
 and  rules,  or  an  order of a federal court pursuant to rule 11 of the
 federal rules  of  civil  procedure  imposing  sanctions  in  an  action
 commenced by a person, while an incarcerated individual, against a state
 agency, officer or employee.
   (v)]  (IV)  The provisions of this paragraph shall apply to persons in
 custody serving [an] A DETERMINATE  OR  indeterminate  sentence  on  the
 effective date of this paragraph as well as to persons sentenced to [an]
 A  DETERMINATE OR indeterminate sentence on and after the effective date
 of this paragraph [and prior to September first, two thousand  five  and
 to persons sentenced to a determinate sentence prior to September first,
 two thousand eleven for a felony as defined in article two hundred twen-
 ty  or two hundred twenty-one of the penal law]. THE TIME ALLOWANCES SET
 S. 774                              4
 
 FORTH IN THIS PARAGRAPH SHALL APPLY RETROACTIVELY AND SHALL BE  CREDITED
 TOWARD  EVERY  INCARCERATED  INDIVIDUAL'S SENTENCE WITHIN NINETY DAYS OF
 THE CHAPTER OF THE LAWS OF TWO THOUSAND TWENTY-THREE THAT  AMENDED  THIS
 PARAGRAPH.
   2.  If  a  person  is  serving  more than one sentence, the authorized
 allowances may be granted separately against the term or maximum term of
 each sentence or, where consecutive sentences are involved, against  the
 aggregate maximum term. Such allowances shall be calculated as follows:
   (a)  A  person  serving  two or more indeterminate sentences which run
 concurrently [may] SHALL receive A time allowance [not  to  exceed  one-
 third]  of  ONE-HALF OF the indeterminate sentence which has the longest
 unexpired time to run.
   (b) A person serving two or more  indeterminate  sentences  which  run
 consecutively  [may]  SHALL receive A time allowance [not to exceed one-
 third] of ONE-HALF OF the aggregate maximum term.
   (c) A person serving two  or  more  determinate  sentences  which  run
 concurrently  [may]  SHALL  receive A time allowance [not to exceed one-
 seventh] of ONE-HALF OF the determinate sentence which has  the  longest
 unexpired time to run.
   (d)  A  person  serving  two  or  more determinate sentences which run
 consecutively [may] SHALL receive A time allowance [not to  exceed  one-
 seventh] of ONE-HALF OF the aggregate maximum term.
   (e)  A  person  serving  one or more indeterminate sentence and one or
 more determinate sentence which run concurrently [may] SHALL  receive  A
 time  allowance  [not to exceed one-third] of ONE-HALF OF the indetermi-
 nate sentence which has the longest unexpired term to run  or  [one-sev-
 enth]  ONE-HALF  of the determinate sentence which has the longest unex-
 pired time to run, whichever allowance is greater.
   (f) A person serving one or more indeterminate  sentence  and  one  or
 more  determinate sentence which run consecutively [may] SHALL receive A
 time allowance [not to exceed] OF the sum of [one-third] ONE-HALF of the
 maximum or aggregate maximum of the indeterminate sentence or  sentences
 and  [one-seventh]  ONE-HALF  of  the  term  or aggregate maximum of the
 determinate sentence or sentences.
   2-a. If a person is serving more than  one  sentence,  the  authorized
 merit  time  allowances  may  be granted against the period or aggregate
 minimum period of the indeterminate sentence or  sentences,  or  against
 the  term or aggregate term of the determinate sentence or sentences, or
 where consecutive determinate and indeterminate sentences are  involved,
 against  the aggregate minimum period as calculated pursuant to subpara-
 graph (iv) of paragraph (a) of subdivision one of section 70.40  of  the
 penal law. Such allowances shall be calculated as follows:
   (a)  A  person  serving  two or more indeterminate sentences which run
 concurrently may receive a merit time  allowance  not  to  exceed  [one-
 sixth]  ONE-HALF  of  the  minimum  period of the indeterminate sentence
 imposed [for an offense other than an  A-I  felony  offense  defined  in
 article two hundred twenty of the penal law, or one-third of the minimum
 period  of  the indeterminate sentence imposed for an A-I felony offense
 defined in article two hundred twenty of the penal law, whichever allow-
 ance results in the longest unexpired time to run] BY THE COURT.
   (b) A person serving two or more  indeterminate  sentences  which  run
 consecutively  may  receive  a  merit  time  allowance not to exceed the
 amount of [one-third] ONE-HALF of the minimum or aggregate minimum peri-
 od of the sentences imposed [for an A-I felony offense defined in  arti-
 cle  two  hundred twenty of the penal law, plus one-sixth of the minimum
 S. 774                              5

 or aggregate minimum period of the  sentences  imposed  for  an  offense
 other than such A-I felony offense] BY THE COURT.
   (c) A person serving two or more determinate sentences [for an offense
 defined  in  article two hundred twenty or two hundred twenty-one of the
 penal law] which run concurrently may receive a merit time allowance not
 to exceed [one-seventh] ONE-QUARTER  of  the  term  of  the  determinate
 sentence which has the longest unexpired time to run.
   (d) A person serving two or more determinate sentences [for an offense
 defined  in  article two hundred twenty or two hundred twenty-one of the
 penal law] which run consecutively may receive a  merit  time  allowance
 not  to  exceed  [one-seventh] ONE-QUARTER of the aggregate term of such
 determinate sentences.
   (e) A person serving one or more indeterminate sentences  and  one  or
 more  determinate  sentences  [for  an  offense  defined  in article two
 hundred twenty or two hundred twenty-one of the  penal  law]  which  run
 concurrently  may  receive  a  merit  time allowance not to exceed [one-
 sixth] ONE-HALF of the minimum  period  of  the  indeterminate  sentence
 imposed  [for  an  offense  other  than an A-I felony offense defined in
 article two hundred twenty of the penal law, one-third  of  the  minimum
 period  of  the indeterminate sentence imposed for an A-I felony offense
 defined in article two hundred twenty of the penal  law,]  or  [one-sev-
 enth]  ONE-QUARTER  of  the  term of the determinate sentence, whichever
 allowance results in the largest unexpired time to run.
   (f) A person serving one or more indeterminate sentences  and  one  or
 more  determinate  sentences which run consecutively may receive a merit
 time allowance not to exceed the sum  of  [one-sixth]  ONE-HALF  of  the
 minimum  or  aggregate  minimum  period of the indeterminate sentence or
 sentences imposed [for an offense  other  than  an  A-I  felony  offense
 defined in article two hundred twenty of the penal law, one-third of the
 minimum  or  aggregate  minimum  period of the indeterminate sentence or
 sentences imposed for an A-I  felony  offense  defined  in  article  two
 hundred  twenty  of  the penal law] and [one-seventh] ONE-QUARTER of the
 term or aggregate term of the determinate sentence or sentences.
   (g) The provisions of this  subdivision  shall  apply  to  persons  in
 custody  serving  [an]  A  DETERMINATE  OR indeterminate sentence on the
 effective date of this subdivision as well as to  persons  sentenced  to
 [an]  A DETERMINATE OR indeterminate sentence on and after the effective
 date of this subdivision [and prior to  September  first,  two  thousand
 five and to persons sentenced to a determinate sentence prior to Septem-
 ber  first,  two  thousand eleven for a felony as defined in article two
 hundred twenty or two hundred twenty-one of the penal  law].  THE  MERIT
 TIME ALLOWANCES SET FORTH IN THIS SUBDIVISION SHALL APPLY RETROACTIVELY,
 AND  SHALL  BE  CREDITED TOWARD EVERY INCARCERATED INDIVIDUAL'S SENTENCE
 WITHIN NINETY DAYS OF THE EFFECTIVE DATE OF THE CHAPTER OF THE  LAWS  OF
 TWO THOUSAND TWENTY-THREE THAT AMENDED THIS SUBDIVISION.
   [2-b.  Notwithstanding the foregoing, if a person is serving more than
 one indeterminate sentence, at least one of which is imposed for a class
 A-I felony offense defined in article two hundred twenty  of  the  penal
 law,  the  authorized merit time allowance granted pursuant to paragraph
 (d) of subdivision one of this section shall be calculated as follows:
   (a) In the event  a  person  is  serving  two  or  more  indeterminate
 sentences  with  different  minimum  periods which run concurrently, the
 merit time allowance shall be based upon the sentence with  the  longest
 unexpired  minimum  period.  If  the sentence with the longest unexpired
 minimum period was imposed for a class A-I felony, the merit time credit
 shall be one-third of such sentence's minimum period; if  such  sentence
 S. 774                              6

 was  imposed  for  an  offense other than a class A-I felony, such merit
 time credit shall  be  one-sixth  of  such  sentence's  minimum  period.
 Provided, however, that where the minimum period of any other concurrent
 indeterminate  sentence is greater than such reduced minimum period, the
 minimum period of such other  concurrent  indeterminate  sentence  shall
 also  be  reduced but only to the extent that the minimum period of such
 other concurrent sentence, as so reduced, is equal to the reduced  mini-
 mum period of such sentence with the longest unexpired minimum period to
 run.
   (b) A person serving two or more indeterminate sentences with the same
 minimum  periods which run concurrently, and no concurrent indeterminate
 sentence with any greater minimum period, shall have the minimum  period
 of each such sentence reduced in the amount of one-third of such minimum
 period if all such sentences were imposed for a class A-I felony.
   (c)  A  person  serving  two  or more indeterminate sentences that run
 consecutively shall have the aggregate minimum period of such  sentences
 reduced  in  the amount of one-third of such aggregate minimum period of
 the sentences imposed for a class A-I felony,  plus  one-sixth  of  such
 aggregate  minimum  period of the sentences imposed for an offense other
 than a class A-I felony.]
   3. The commissioner of corrections  and  community  supervision  shall
 promulgate  rules  and  regulations for the FAIR AND EQUITABLE granting,
 withholding, forfeiture,  cancellation  and  restoration  of  allowances
 authorized by this section in accordance with the criteria herein speci-
 fied. Such rules and regulations shall SPECIFY PROCEDURES TO ENSURE THAT
 SIMILARLY  SITUATED  INCARCERATED  PERSONS  ARE  TREATED  SIMILARLY WITH
 RESPECT TO THE GRANTING,  WITHHOLDING,  FORFEITURE  OR  CANCELLATION  OF
 ALLOWANCES,  AND  include provisions designating the person or committee
 in each correctional institution delegated to make discretionary  deter-
 minations  with  respect  to the allowances, the books and records to be
 kept, and a procedure for review of the institutional determinations  by
 the commissioner.
   4. [No person shall have the right to demand or require the allowances
 authorized  by  this  section.  The  decision  of  the  commissioner  of
 corrections and community supervision as to the  granting,  withholding,
 forfeiture,  cancellation  or  restoration  of  such allowances shall be
 final and shall not be reviewable if made in accordance with law.
   5.] Time allowances granted prior to any release to  community  super-
 vision  shall  be  forfeited  and  shall not be restored if the released
 person is returned to an institution under the jurisdiction of the state
 department of corrections and community  supervision  for  violation  of
 community supervision or by reason of a conviction for a crime committed
 while  on community supervision. A person who is so returned may, howev-
 er, subsequently receive time allowances against the  remaining  portion
 of  [his  or  her]  THEIR  term,  maximum term or aggregate maximum term
 pursuant to this section [and provided such remaining portion of his  or
 her  term,  maximum  term,  or  aggregate  maximum term is more than one
 year].
   [6.] 5.  Upon  commencement  of  an  indeterminate  or  a  determinate
 sentence the provisions of this section shall be furnished to the person
 serving the sentence and the meaning of same shall be fully explained to
 [him]  THEM  by  a person designated by the commissioner to perform such
 duty.
   § 4. Section 804 of the correction law, as added by chapter 680 of the
 laws of 1967, subdivisions 1 and 2 as amended by chapter 145 of the laws
 S. 774                              7
 
 of 1976, and subdivision 6 as amended by section 39 of subpart B of part
 C of chapter 62 of the laws of 2011, is amended to read as follows:
   §  804.  Good behavior allowances against definite sentences. 1. Every
 person confined in an institution serving a definite sentence of  impri-
 sonment   [may]  SHALL  receive  A  time  [allowances  as  discretionary
 reductions of the term of his sentence not to exceed  in  the  aggregate
 one-third]  ALLOWANCE OF ONE-HALF of the term imposed by the court. Such
 allowances [may be granted for good behavior and efficient  and  willing
 performance  of  duties  assigned  or  progress  and  achievement  in an
 assigned treatment program, and may be withheld, forfeited or  cancelled
 in  whole  or in part for bad behavior, violation of institutional rules
 or failure to perform properly in the duties or program assigned]  SHALL
 BE  CREDITED TOWARD A PERSON'S SENTENCE ON AN ANNUAL PRO RATA BASIS, AND
 ANY CREDIT AWARDED OVER THE COURSE OF THE CALENDAR YEAR  SHALL  VEST  ON
 THE  FINAL DAY OF THE CALENDAR YEAR.  ONCE VESTED, SUCH CREDIT SHALL NOT
 BE WITHHELD, FORFEITED, OR CANCELED.
   1-A. TIME ALLOWANCES THAT HAVE NOT YET BEEN GRANTED TOWARD A  PERSON'S
 SENTENCE  MAY BE WITHHELD, FORFEITED OR CANCELED IN WHOLE OR IN PART FOR
 VIOLATION OF INSTITUTIONAL RULES, AS DEMONSTRATED  AT  A  HEARING  BY  A
 PREPONDERANCE OF THE EVIDENCE. SUCH RESTRICTIONS SHALL BE LIMITED TO THE
 PRO  RATA  SHARE  OF CREDIT WITHIN THE CALENDAR YEAR THAT THE OFFENSE IS
 COMMITTED. IF SUCH TIME ALLOWANCE IS WITHHELD, FORFEITED OR CANCELED  IN
 WHOLE OR IN PART, FURTHER ALLOWANCES, NOT TO EXCEED ONE-HALF OF THE TERM
 IMPOSED  BY THE COURT, MAY BE REINSTATED FOR GOOD BEHAVIOR AND EFFICIENT
 AND WILLING PERFORMANCE OF DUTIES ASSIGNED OR PROGRESS  AND  ACHIEVEMENT
 IN  AN  ASSIGNED  TREATMENT  PROGRAM.  FOLLOWING ANY FINAL DETERMINATION
 WITHHOLDING, FORFEITING, OR CANCELING A TIME ALLOWANCE, THE INCARCERATED
 PERSON SHALL HAVE THE RIGHT TO TAKE  AN  ADMINISTRATIVE  APPEAL  TO  THE
 SHERIFF  AND  SHALL  BE ADVISED OF THE RIGHT TO SEEK LEGAL ASSISTANCE IN
 THE TAKING OF SUCH  APPEAL.  THE  SHERIFF  SHALL  ADOPT  REGULATIONS  IN
 ACCORDANCE WITH THIS PROVISION.
   2.  If  a  person  is  serving  more than one sentence, the authorized
 allowances may be granted separately against the term of  each  sentence
 or,  where  consecutive  sentences  are  involved, against the aggregate
 term. Allowances based upon sentences of less  than  one  month  may  be
 granted,  and  in  such  case the maximum allowance shall be one day for
 every [three] TWO days of the sentence. In no case, however,  shall  the
 total  of  all  allowances granted to any such person exceed [one-third]
 ONE-HALF of the time [he] THEY would  be  required  to  serve,  computed
 without regard to this section.
   3. [No person shall have the right to demand or require the allowances
 authorized by this section. The decision of the sheriff, superintendent,
 warden  or  other  person  in  charge  of the institution, or where such
 institution is under the jurisdiction of a county or city department the
 decision of the head of such department, as to the  granting,  withhold-
 ing, forfeiture, cancellation or restoration of such allowances shall be
 final and shall not be reviewable if made in accordance with law.
   4.]  A  person who has earned a reduction of sentence pursuant to this
 section and who has been conditionally released under subdivision two of
 section 70.40 of the penal law  shall  not  forfeit  such  reduction  by
 reason  of  conduct  causing  [his]  THEIR  return  to  the institution.
 Provided, nevertheless, that such reduction may be forfeited  by  reason
 of subsequent conduct while serving the remainder of [his] THEIR term.
   [5.]  4.  The  state  commission of correction shall promulgate record
 keeping rules and regulations for the FAIR AND EQUITABLE granting, with-
 holding, forfeiture, cancellation and restoration of allowances  author-
 S. 774                              8
 
 ized  by  this section.  SUCH RULES AND REGULATIONS SHALL SPECIFY PROCE-
 DURES TO ENSURE THAT SIMILARLY SITUATED INCARCERATED PERSONS ARE TREATED
 SIMILARLY WITH RESPECT  TO  THE  GRANTING,  WITHHOLDING,  FORFEITURE  OR
 CANCELLATION OF ALLOWANCES.
   [6.]  5.  Notwithstanding anything to the contrary in this section, in
 any case where a person is serving a definite sentence in an institution
 under the jurisdiction of the state department of corrections and commu-
 nity supervision, [subdivisions] SUBDIVISION three [and four] of section
 eight hundred three of this [chapter] ARTICLE shall apply.
   [7.] 6. Upon commencement of any definite sentence the  provisions  of
 this  section  shall be furnished to the person serving the sentence and
 the meaning of same shall be fully explained to [him] THEM by an officer
 designated in the regulation to perform such duty.
   § 5. Section 804-a of the correction law, as added by chapter  220  of
 the laws of 1987, is amended to read as follows:
   §  804-a.  Good  behavior allowances for certain civil commitments. 1.
 Every person confined in an institution serving a civil commitment for a
 fixed period of time, whose release is  not  conditional  upon  any  act
 within [his] THEIR power to perform, [may] SHALL receive time allowances
 as discretionary reductions of the term of [his] THEIR commitment not to
 exceed,  in  the  aggregate, [one-third] ONE-HALF of the term imposed by
 the court.  Such allowances [may be granted for good behavior and  effi-
 cient  and  willing  performance  of  duties  assigned  or  progress and
 achievement in an assigned  treatment  program,  and  may  be  withheld,
 forfeited  or  cancelled in whole or in part for bad behavior, violation
 of institutional rules or failure to perform properly in the  duties  or
 program  assigned]  SHALL  BE  CREDITED TOWARD A PERSON'S SENTENCE ON AN
 ANNUAL PRO RATA BASIS, AND ANY CREDIT AWARDED OVER  THE  COURSE  OF  THE
 CALENDAR  YEAR  SHALL  VEST ON THE FINAL DAY OF THE CALENDAR YEAR.  ONCE
 VESTED, SUCH CREDIT SHALL NOT BE WITHHELD, FORFEITED, OR CANCELED.
   1-A. TIME ALLOWANCES THAT HAVE NOT YET BEEN GRANTED TOWARD A  PERSON'S
 SENTENCE  MAY BE WITHHELD, FORFEITED OR CANCELED IN WHOLE OR IN PART FOR
 VIOLATION OF INSTITUTIONAL RULES, AS DEMONSTRATED  AT  A  HEARING  BY  A
 PREPONDERANCE OF THE EVIDENCE. SUCH RESTRICTIONS SHALL BE LIMITED TO THE
 PRO  RATA  SHARE  OF CREDIT WITHIN THE CALENDAR YEAR THAT THE OFFENSE IS
 COMMITTED. IF SUCH TIME ALLOWANCE IS WITHHELD, FORFEITED OR CANCELED  IN
 WHOLE OR IN PART, FURTHER ALLOWANCES, NOT TO EXCEED ONE-HALF OF THE TERM
 IMPOSED  BY THE COURT, MAY BE REINSTATED FOR GOOD BEHAVIOR AND EFFICIENT
 AND WILLING PERFORMANCE OF DUTIES ASSIGNED OR PROGRESS  AND  ACHIEVEMENT
 IN  AN  ASSIGNED  TREATMENT  PROGRAM.  FOLLOWING ANY FINAL DETERMINATION
 WITHHOLDING, FORFEITING, OR CANCELING A TIME ALLOWANCE, THE INCARCERATED
 PERSON SHALL HAVE THE RIGHT TO TAKE  AN  ADMINISTRATIVE  APPEAL  TO  THE
 CENTRAL  OFFICE  OF  THE DEPARTMENT AND SHALL BE ADVISED OF THE RIGHT TO
 SEEK LEGAL ASSISTANCE IN THE TAKING OF SUCH APPEAL. THE DEPARTMENT SHALL
 ADOPT REGULATIONS IN ACCORDANCE WITH THIS PROVISION.
   2. Allowances based upon commitments of less than  one  month  may  be
 granted,  and  in  such case the maximum allowances shall be one day for
 every [three] TWO days of the commitment. In no case, however, shall the
 total of all allowances granted to any such  person  exceed  [one-third]
 ONE-HALF  of  the  time  [he]  THEY would be required to serve, computed
 without regard to this section.
   3. [No person shall have the right to demand or require the allowances
 authorized by this section. The decision of the sheriff, superintendent,
 warden or other person in charge  of  the  institution,  or  where  such
 institution is under the jurisdiction of a county or city department the
 decision  of  the head of such department, as to the granting, withhold-
 S. 774                              9

 ing, forfeiture, cancellation, or restoration of such  allowances  shall
 be final and shall not be reviewable if made in accordance with law.
   4.] The state commission of correction shall promulgate record keeping
 rules and regulations for the granting, withholding, forfeiture, cancel-
 lation and restoration of allowances authorized by this section.
   [5.]  4.  Upon  commencement  of  any civil commitment as described in
 subdivision one of this section, the provisions of this section shall be
 furnished to the person serving the commitment and the meaning  of  same
 shall  be  fully explained to [him] THEM by an officer designated in the
 regulation to perform such duty.
   § 6. Section 865 of the correction law, as added by chapter 261 of the
 laws of 1987, subdivisions 1 and 2 as amended by chapter 322 of the laws
 of 2021, is amended to read as follows:
   § 865. Definitions. As used in  this  article,  [the  following  terms
 mean:
   1.  "Eligible  incarcerated individual" means a person sentenced to an
 indeterminate term of imprisonment who will become eligible for  release
 on  parole  within  three  years  or  sentenced to a determinate term of
 imprisonment who will become eligible  for  conditional  release  within
 three  years,  who  has  not reached the age of fifty years, who has not
 previously been convicted of a violent  felony  as  defined  in  article
 seventy  of  the  penal law, or a felony in any other jurisdiction which
 includes all of the essential elements of any such violent felony,  upon
 which  an  indeterminate or determinate term of imprisonment was imposed
 and who was between the ages of sixteen and fifty years at the  time  of
 commission  of  the  crime  upon  which  his or her present sentence was
 based. Notwithstanding the foregoing, no person who is convicted of  any
 of  the following crimes shall be deemed eligible to participate in this
 program: (a) a violent felony offense as defined in article  seventy  of
 the  penal  law;  provided,  however,  that a person who is convicted of
 burglary in the second degree as defined in subdivision two  of  section
 140.25  of  the penal law, or robbery in the second degree as defined in
 subdivision one of section 160.10 of the penal law, or an attempt there-
 of, is eligible to participate, (b) an A-I felony offense, (c) any homi-
 cide offense as defined in article one hundred twenty-five of the  penal
 law, (d) any felony sex offense as defined in article one hundred thirty
 of  the penal law and (e) any escape or absconding offense as defined in
 article two hundred five of the penal law.
   2. "Shock] "SHOCK incarceration program" means a program  pursuant  to
 which  eligible  incarcerated individuals are selected to participate in
 the program and serve a period of six months in  a  shock  incarceration
 facility,  which  shall  provide  rigorous  physical activity, intensive
 regimentation and discipline and rehabilitation therapy and programming.
 Such incarcerated individuals may be selected either: (i) at a reception
 center; or (ii) at a general confinement facility  [when  the  otherwise
 eligible  incarcerated  individual  then becomes eligible for release on
 parole within three years in the case of an indeterminate term of impri-
 sonment, or then becomes eligible for conditional release  within  three
 years in the case of a determinate term of imprisonment].
   §  7.  Section 867 of the correction law, as amended by chapter 322 of
 the laws of 2021, is amended to read as follows:
   § 867. Procedure for selection of participants in shock  incarceration
 program.  1.  An [eligible] incarcerated individual may make an applica-
 tion to the shock incarceration screening committee  for  permission  to
 participate in the shock incarceration program.
 S. 774                             10
 
   2.  If  the shock incarceration screening committee determines that an
 incarcerated  individual's  participation  in  the  shock  incarceration
 program  is  consistent with the safety of the community, the welfare of
 the applicant and the rules  and  regulations  of  the  department,  the
 committee  shall  forward the application to the commissioner or [his] A
 designee for approval or disapproval.
   2-a. Subdivisions one and two of this section shall apply to  a  judi-
 cially sentenced shock incarceration incarcerated individual only to the
 extent  that the screening committee may determine whether the incarcer-
 ated individual has a medical  or  mental  health  condition  that  will
 render  the  incarcerated individual unable to successfully complete the
 shock incarceration program, and the facility in which the  incarcerated
 individual  will  participate in such program.  Notwithstanding subdivi-
 sion five of this section, an incarcerated individual sentenced to shock
 incarceration shall promptly commence participation in the program [when
 such incarcerated individual  is  an  eligible  incarcerated  individual
 pursuant  to subdivision one of section eight hundred sixty-five of this
 article].
   3. Applicants cannot participate in the  shock  incarceration  program
 unless  they  agree  to be bound by all the terms and conditions thereof
 and indicate such agreement by signing the  memorandum  of  the  program
 immediately below a statement reading as follows:
   "I accept the foregoing program and agree to be bound by the terms and
 conditions thereof. I understand that my participation in the program is
 a  privilege  that  may be revoked at any time at the sole discretion of
 the commissioner. I understand that I  must  successfully  complete  the
 entire  program  to  obtain a certificate of earned eligibility upon the
 completion of said program, and in the event that I do not  successfully
 complete  said  program,  for  any  reason,  I  will be transferred to a
 nonshock incarceration correctional facility to continue service  of  my
 sentence."
   4.  An  incarcerated individual who has successfully completed a shock
 incarceration program shall be eligible to receive such a certificate of
 earned eligibility pursuant to section eight hundred five of this  chap-
 ter.  Notwithstanding  any other provision of law, an incarcerated indi-
 vidual sentenced to a  determinate  sentence  of  imprisonment  who  has
 successfully  completed  a shock incarceration program shall be eligible
 to receive such a certificate of earned eligibility and shall  be  imme-
 diately eligible to be conditionally released.
   5.  Participation in the shock incarceration program shall be a privi-
 lege. Nothing contained in this article may be construed to confer  upon
 any  incarcerated  individual  the  right  to participate or continue to
 participate therein.
   § 8. Clause (B) of subparagraph (ii) of paragraph (e) of subdivision 1
 of section 70.30 of the penal law, as amended by chapter 3 of  the  laws
 of 1995, is amended to read as follows:
   (B)  if  the  aggregate  maximum  term  of the determinate sentence or
 sentences is less than twenty years, the defendant shall be deemed to be
 serving an indeterminate sentence the maximum term  of  which  shall  be
 deemed to be twenty years. In such instances, the minimum sentence shall
 be  deemed  to  be  ten  years or [six-sevenths] ONE-HALF of the term or
 aggregate maximum term of the determinate sentence or sentences,  which-
 ever is greater.
   §  9. Clause (B) of subparagraph (iii) of paragraph (e) of subdivision
 1 of section 70.30 of the penal law, as amended by chapter 3 of the laws
 of 1995, is amended to read as follows:
 S. 774                             11
 
   (B) if the aggregate maximum  term  of  the  determinate  sentence  or
 sentences is less than thirty years, the defendant shall be deemed to be
 serving  an  indeterminate  sentence  the maximum term of which shall be
 deemed to be thirty years. In such instances, the minimum sentence shall
 be  deemed to be fifteen years or [six-sevenths] ONE-HALF of the term or
 aggregate maximum term of the determinate sentence or sentences,  which-
 ever is greater.
   § 10. Clause (B) of subparagraph (v) of paragraph (e) of subdivision 1
 of  section  70.30 of the penal law, as amended by chapter 3 of the laws
 of 1995, is amended to read as follows:
   (B) if the aggregate maximum  term  of  the  determinate  sentence  or
 sentences  is less than forty years, the defendant shall be deemed to be
 serving an indeterminate sentence the maximum term  of  which  shall  be
 deemed  to be forty years. In such instances, the minimum sentence shall
 be deemed to be twenty years or [six-sevenths] ONE-HALF of the  term  or
 aggregate  maximum term of the determinate sentence or sentences, which-
 ever is greater.
   § 11. Clause (B) of subparagraph (vii) of paragraph (e) of subdivision
 1 of section 70.30 of the penal law, as amended by chapter 3 of the laws
 of 1995, is amended to read as follows:
   (B) if the aggregate maximum  term  of  the  determinate  sentence  or
 sentences  is less than fifty years, the defendant shall be deemed to be
 serving an indeterminate sentence the maximum term  of  which  shall  be
 deemed  to be fifty years. In such instances, the minimum sentence shall
 be deemed to be twenty-five years or [six-sevenths] ONE-HALF of the term
 or aggregate maximum term of  the  determinate  sentence  or  sentences,
 whichever is greater.
   §  12.  Paragraph  (b)  of subdivision 4 of section 70.30 of the penal
 law, as amended by chapter 3 of the laws of 1995, is amended to read  as
 follows:
   (b)  In the case of a person serving a definite sentence, the total of
 such allowances shall not exceed [one-third]  ONE-HALF  of  [his]  THEIR
 term  or  aggregate term and the allowances shall be applied as a credit
 against such term.
   § 13. Subparagraphs (iii) and (iv) of paragraph (a) of  subdivision  1
 of  section  70.40  of  the  penal  law,  as amended by section 127-c of
 subpart B of part C of chapter 62 of the laws of 2011,  are  amended  to
 read as follows:
   (iii)  A  person  who  is  serving  one or more than one indeterminate
 sentence of imprisonment and one or more than one  determinate  sentence
 of imprisonment, which run concurrently may be paroled at any time after
 the  expiration  of the minimum period of imprisonment of the indetermi-
 nate sentence or sentences, or upon  the  expiration  of  [six-sevenths]
 ONE-HALF  of  the  term  of  imprisonment of the determinate sentence or
 sentences, whichever is later.
   (iv) A person who is  serving  one  or  more  than  one  indeterminate
 sentence  of  imprisonment and one or more than one determinate sentence
 of imprisonment which run consecutively may be paroled at any time after
 the expiration of the sum of the minimum or aggregate minimum period  of
 the  indeterminate  sentence or sentences and [six-sevenths] ONE-HALF of
 the term or aggregate term of imprisonment of the  determinate  sentence
 or sentences.
   §  14.  Paragraph  (b)  of subdivision 1 of section 70.40 of the penal
 law, as amended by section 127-d-1 of subpart B of part C of chapter  62
 of the laws of 2011, is amended to read as follows:
 S. 774                             12
 
   (b)  A  person  who  is  serving one or more than one indeterminate or
 determinate sentence of imprisonment shall, if [he or she  so  requests]
 THEY  REQUEST,  be  conditionally released from the institution in which
 [he or she is] THEY ARE confined  when  the  total  good  behavior  time
 allowed  to  [him  or  her]  THEM,  pursuant  to  the  provisions of the
 correction law, is equal to the unserved portion of [his or  her]  THEIR
 term,  maximum  term  or aggregate maximum term; provided, however, that
 (i) in no event  shall  a  person  serving  one  or  more  indeterminate
 sentence  of imprisonment and one or more determinate sentence of impri-
 sonment which run concurrently be conditionally released  until  serving
 at least [six-sevenths] ONE-HALF of the determinate term of imprisonment
 which has the longest unexpired time to run and (ii) in no event shall a
 person  be conditionally released prior to the date on which such person
 is first eligible for discretionary parole release.  The  conditions  of
 release,  including  those  governing post-release supervision, shall be
 such as may be imposed by the state board of parole in  accordance  with
 the provisions of the executive law.
   Every  person  so released shall be under the supervision of the state
 department of corrections and community supervision for a  period  equal
 to  the  unserved  portion  of the term, maximum term, aggregate maximum
 term, or period of post-release supervision.
   § 15. This act shall take effect immediately; provided, however,  that
 the  amendments  to  section  803  of the correction law made by section
 three of this act shall not affect the expiration of  such  section  and
 shall  be  deemed to expire therewith; provided, further that the amend-
 ments to subdivision 2-b of section 803 of the correction  law  made  by
 section  three  of this act shall not affect the repeal of such subdivi-
 sion and shall be deemed repealed therewith; provided further,  however,
 that  the amendments to paragraph (e) of subdivision 1 and paragraph (b)
 of subdivision four of section 70.30 of the penal law made  by  sections
 eight,  nine,  ten,  eleven, and twelve of this act shall not affect the
 expiration of such paragraphs and shall be deemed to  expire  therewith;
 and provided further, however, that the amendments to paragraphs (a) and
 (b)  of subdivision 1 of section 70.40 of the penal law made by sections
 thirteen and fourteen of this act shall not  affect  the  expiration  of
 such paragraphs and shall be deemed to expire therewith.