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This entry was published on 2021-09-24
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SECTION 70.40
Release on parole; conditional release; presumptive release
Penal (PEN) CHAPTER 40, PART 2, TITLE E, ARTICLE 70
§ 70.40 Release on parole; conditional release; presumptive release.

1. Indeterminate sentence.

* (a) Release on parole shall be in the discretion of the state board
of parole, and such person shall continue service of his or her sentence
or sentences while on parole, in accordance with and subject to the
provisions of the executive law and the correction law.

(i) A person who is serving one or more than one indeterminate
sentence of imprisonment may be paroled from the institution in which he
or she is confined at any time after the expiration of the minimum or
the aggregate minimum period of the sentence or sentences or, where
applicable, the minimum or aggregate minimum period reduced by the merit
time allowance granted pursuant to paragraph (d) of subdivision one of
section eight hundred three of the correction law.

(ii) A person who is serving one or more than one determinate sentence
of imprisonment shall be ineligible for discretionary release on parole.

(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
indeterminate sentence or sentences, or upon the expiration of
six-sevenths 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 of the term or
aggregate term of imprisonment of the determinate sentence or sentences.

(v) Notwithstanding any other subparagraph of this paragraph, a person
may be paroled from the institution in which he or she is confined at
any time on medical parole pursuant to section two hundred fifty-nine-r
or section two hundred fifty-nine-s of the executive law or for
deportation pursuant to paragraph (d) of subdivision two of section two
hundred fifty-nine-i of the executive law or after the successful
completion of a shock incarceration program pursuant to article
twenty-six-A of the correction law.

* NB Effective until September 1, 2023

* (a) (i) A person who is serving one or more than one indeterminate
sentence of imprisonment may be paroled from the institution in which he
or she is confined at any time after the expiration of the minimum or
the aggregate minimum period of imprisonment of the sentence or
sentences or after the successful completion of a shock incarceration
program, as defined in article twenty-six-A of the correction law,
whichever is sooner. Release on parole shall be in the discretion of the
state board of parole, and such person shall continue service of his or
her sentence or sentences while on parole, in accordance with and
subject to the provisions of the executive law and the correction law.

(ii) A person who is serving one or more than one indeterminate
sentence of imprisonment may be paroled from the institution in which he
or she is confined at any time after the expiration of the minimum or
the aggregate minimum period of the sentence or sentences.

* NB Effective September 1, 2023

* (b) A person who is serving one or more than one indeterminate or
determinate sentence of imprisonment shall, if he or she so requests, be
conditionally released from the institution in which he or she is
confined when the total good behavior time allowed to him or her,
pursuant to the provisions of the correction law, is equal to the
unserved portion of his or her 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 imprisonment which run concurrently be
conditionally released until serving at least six-sevenths 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.

* NB Effective until September 1, 2023

* (b) A person who is serving one or more than one indeterminate
sentence of imprisonment shall, if he or she so requests, be
conditionally released from the institution in which he or she is
confined when the total good behavior time allowed to him or her,
pursuant to the provisions of the correction law, is equal to the
unserved portion of his or her maximum or aggregate maximum term. 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
department of corrections and community supervision for a period equal
to the unserved portion of the maximum, aggregate maximum term, or
period of post-release supervision.

* NB Effective September 1, 2023

* (c) A person who is serving one or more than one indeterminate
sentence of imprisonment shall, if he or she so requests, be released
from the institution in which he or she is confined if granted
presumptive release pursuant to section eight hundred six of the
correction law. The conditions of release 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 department of corrections and community supervision
for a period equal to the unserved portion of his or her maximum or
aggregate maximum term unless discharged in accordance with law.

* NB Repealed September 1, 2023

2. Definite sentence. A person who is serving one or more than one
definite sentence of imprisonment with a term or aggregate term in
excess of ninety days, and is eligible for release according to the
criteria set forth in paragraphs (a), (b) and (c) of subdivision one of
section two hundred seventy-three of the correction law, may, if he or
she so requests, be conditionally released from the institution in which
he or she is confined at any time after service of sixty days of that
term, exclusive of credits allowed under subdivisions four and six of
section 70.30. In computing service of sixty days, the credit allowed
for jail time under subdivision three of section 70.30 shall be
calculated as time served. Conditional release from such institution
shall be in the discretion of the parole board, or a local conditional
release commission established pursuant to article twelve of the
correction law, provided, however that where such release is by a local
conditional release commission, the person must be serving a definite
sentence with a term in excess of one hundred twenty days and may only
be released after service of ninety days of such term. In computing
service of ninety days, the credit allowed for jail time under
subdivision three of section 70.30 of this article shall be calculated
as time served. A conditional release granted under this subdivision
shall be upon such conditions as may be imposed by the parole board, in
accordance with the provisions of the executive law, or a local
conditional release commission in accordance with the provisions of the
correction law.

Conditional release shall interrupt service of the sentence or
sentences and the remaining portion of the term or aggregate term shall
be held in abeyance. Every person so released shall be under the
supervision of the department of corrections and community supervision
or a local probation department and in the custody of the local
conditional release commission in accordance with article twelve of the
correction law, for a period of one year. The local probation department
shall cause complete records to be kept of every person released to its
supervision pursuant to this subdivision. The department of corrections
and community supervision may supply to a local probation department and
the local conditional release commission custody information and records
maintained on persons under the supervision of such local probation
department to aid in the performance of its supervision
responsibilities. Compliance with the conditions of release during the
period of supervision shall satisfy the portion of the term or aggregate
term that has been held in abeyance.

* 3. Delinquency. (a) When a person is alleged to have violated the
terms of presumptive release or parole 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 interruption shall continue until the return of the person to
an institution under the jurisdiction of the state department of
corrections and community supervision.

(b) When a person is alleged to have violated the terms of his or her
conditional release or post-release supervision and has been declared
delinquent by the parole board or the local conditional release
commission having supervision over such person, the declaration of
delinquency shall interrupt the period of supervision or post-release
supervision as of the date of the delinquency. For a conditional
release, such interruption shall continue until the return of the person
to the institution from which he or she was released or, if he or she
was released from an institution under the jurisdiction of the state
department of corrections and community supervision, to an institution
under the jurisdiction of that department. Upon such return, the person
shall resume service of his or her sentence. For a person released to
post-release supervision, the provisions of section 70.45 shall apply.

(c) Any time spent by a person in custody from the time of delinquency
to the time service of the sentence resumes shall be credited against
the term or maximum term of the interrupted sentence, provided:

(i) that such custody was due to an arrest or surrender based upon the
delinquency; or

(ii) that such custody arose from an arrest on another charge which
culminated in a dismissal or an acquittal; or

(iii) that such custody arose from an arrest on another charge which
culminated in a conviction, but in such case, if a sentence of
imprisonment was imposed, the credit allowed shall be limited to the
portion of the time spent in custody that exceeds the period, term or
maximum term of imprisonment imposed for such conviction.

* NB Effective until March 1, 2022

* 3. Delinquency. (a) When a person is alleged to have violated the
terms of presumptive release or parole 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 interruption shall continue until
the releasee's appearance in response to a notice of violation or the
date of the execution of a warrant, whichever is earlier.

(b) When a person is alleged to have violated the terms of his or her
conditional release or post-release supervision by absconding and has
been declared delinquent by the parole board or the local conditional
release commission having supervision over such person, the declaration
of delinquency shall interrupt the period of supervision or post-release
supervision as of the date of the delinquency. For a conditional
release, such interruption shall continue until the releasee's
appearance in response to a notice of violation or the date of the
execution of a warrant, whichever is earlier. For a person released to
post-release supervision, the provisions of section 70.45 of this
article shall apply.

(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.

* NB Effective March 1, 2022

* 4. Earned time credits. (a) Any person subject to community
supervision shall be awarded earned time credits. The calculation of
earned time credit periods shall begin on the releasee's first day of
community supervision and shall be awarded after each completed thirty
day period in compliance with the terms of their community supervision.
Any such awarded earned time credits shall be applied against such
person's unserved portion of the maximum term, aggregate maximum term or
period of post-release supervision for any current sentence. Persons
subject to a sentence with a maximum term of life imprisonment or
lifetime supervision shall not be eligible to receive earned time
credits under this section.

(b) After a person has begun a period of community supervision
pursuant to this section and section 70.45 of this article, such period
of community supervision shall be reduced by thirty days for every
thirty days that such person does not violate a condition of and remains
in compliance with all conditions of his or her community supervision,
provided, however, that the person is not subject to any sentence with a
maximum term of life imprisonment or lifetime supervision. When a person
is subject to more than one period of community supervision, the
reduction authorized in this subdivision shall be applied to every such
period of parole or conditional release to which the person is subject.

(c) Retroactive earned time credits shall be awarded to eligible
persons subject to community supervision at the time this legislation
becomes effective, provided, however, that the maximum allowable
retroactive earned time credit awarded shall not exceed a period of two
years. Retroactive earned time credits shall not be awarded to any
releasee serving a term of reincarceration for a sustained parole
violation at the time of the effective date of the chapter of the laws
of two thousand twenty-one that added this subdivision until the
releasee is returned to community supervision. Persons subject to a
sentence with a maximum term of life imprisonment or lifetime
supervision shall not be eligible to receive retroactive earned time
credits under this section.

(d) If a releasee's current period of community supervision has been
interrupted by a period of reincarceration prior to the effective date
of the chapter of the laws of two thousand twenty-one that added this
subdivision, no earned time credits shall be awarded for such period of
reincarceration. The department shall calculate retroactive earned time
credits within one year after the bill shall have become law and shall
prioritize earned time credit calculations for releasees whose terms of
community supervision are due to terminate before June first, two
thousand twenty-two.

(e) Earned time credits may be withheld or revoked for the thirty-day
period commencing from the date of violative behavior as sustained at a
final revocation hearing, or for the period during which a releasee
absconded from supervision, as sustained at a final revocation hearing.
Earned time credits may not be earned and shall be suspended: (i) during
a period of reincarceration imposed for any sustained violation; (ii)
during the period in which the individual has absconded; or (iii)
pending the outcome of a preliminary or final revocation hearing. If, at
the preliminary hearing, there is no finding by a preponderance of the
evidence of a violation of a condition of release in an important
respect or a violation is not sustained at the final revocation hearing,
then the individual shall be deemed to have been in compliance with the
terms of release and shall be awarded earned time credits from the
period in which the accrual was suspended. If a violation is sustained,
the calculation of an earned time credit period shall recommence on the
thirty-first day after the date of the violative behavior or, if the
sustained violation or conviction resulted in a term of reincarceration,
on the day the releasee is restored to community supervision, whichever
is later.

(f) At least every one hundred eighty days from the first date of a
person's release to community supervision, and every one hundred eighty
days thereafter, the department of corrections and community supervision
shall provide each person on community supervision a report indicating
the total earned time credits received, the total earned time credits
received in the prior one hundred eighty days, the total earned time
credits withheld, the total earned time credits withheld in the prior
one hundred eighty days, the total amount of time reduced from the
person's sentence, and the person's earliest release date based on the
amount of earned time credits received. The department shall provide the
report in written or electronic form.

* NB Effective March 1, 2022