LAWS OF NEW YORK, 2004
Rockefeller Drug Law Reform
EXPLANATION--Matter in italics is new; matter in brackets [ ] is old law to be omitted.
CHAPTER 738
AN ACT to amend the correction law, the criminal procedure law, the
penal law and the executive law, in relation to controlled substances
and indeterminate sentences; and repealing certain
provisions of the
correction law, the criminal procedure law and the penal law relating
to controlled substances and indeterminate sentences
Became a law December 14, 2004, with the approval of the Governor.
Passed on message of necessity pursuant to Article III, section 14 of
the Constitution by a majority vote, three-fifths being present.
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
Section 1. Subdivision 18 of section 2 of the correction law, as
amended by chapter 60 of the laws of 1994, is amended to read as
follows:
18. "Alcohol and substance abuse treatment correctional annex." A
medium security correctional facility consisting of one or more residen-
tial dormitories which provide intensive alcohol and substance abuse
treatment services to inmateswho: (i) are otherwise eligible for tempo-
rary release, or (ii) stand convicted of a felony defined in article two
hundred twenty or two hundred twenty-one of the penal law, and are with-
in six months of being an eligible inmate as that term is defined in
subdivision two of section eight hundred fifty-one of this chapter
including such inmates who are participating in such program pursuant to
subdivision six of section 60.04 of the penal law. Notwithstanding the
foregoing provisions of this subdivision, any inmate to be enrolled in
this program pursuant to subdivision six of section 60.04 of the penal
law shall be governed by the same rules and regulations promulgated by
the department, including without limitation those rules and regulations
establishing requirements for completion and those rules and regulations
governing discipline and removal from the program. No such period of
court ordered corrections based drug abuse treatment pursuant to this
subdivision shall be required to extend beyond the defendant's condi-
tional release date. Such treatment services may be provided by one or
more outside service providers pursuant to contractual agreements with
both the department and the division of parole, provided, however, that
any such provider shall be required to continue to provide, either
directly or through formal or informal agreement with other providers,
alcohol and substance abuse treatment services to inmates who have
successfully participated in such provider's incarcerative treatment
services and who have been paroled or conditionally released under the
supervision of the division of parole and who are, as a condition of
their parole or conditional release, required to participate in alcohol
or substance abuse treatment. Such incarcerative services shall be
provided in the facility in accordance with minimum standards promulgat-
ed by the department after consultation with the office of alcoholism
and substance abuse services. Such services to parolees shall be
provided in accordance with standards promulgated by the division of
parole after consultation with the office of alcoholism and substance
abuse services. Notwithstanding any other provision of law, any person
who has successfully completed no less than six months of intensive
alcohol and substance abuse treatment services in one of the depart-
ment's eight designated alcohol and substance abuse treatment correc-
tional annexes having a combined total capacity of two thousand five
hundred fifty beds may be transferred to a program operated by or at a
residential treatment facility, provided 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 be transferred to a program operated at a residential treat-
ment facility 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 eigh-
teen months. The commissioner shall report annually to the temporary
president of the senate and the speaker of the assembly commencing Janu-
ary [1, 1992]first, nineteen hundred ninety-two as to the efficacy of
such programs including but not limited to a comparative analysis of
state-operated and private sector provision of treatment services and
recidivism.Such report shall also include the number of inmates
received by the department during the reporting period who are subject
to a sentence which includes enrollment in substance abuse treatment in
accordance with subdivision six of section 60.04 of the penal law, the
number of such inmates who are not placed in such treatment program and
the reasons for such occurrences.
§ 2. Subdivision 18 of section 2 of the correction law, as added by
chapter 338 of the laws of 1989, is amended to read as follows:
18. "Alcohol and substance abuse treatment correctional annex." A
medium security correctional facility consisting of one or more [resi-
dentials]residential dormitories which provide intensive alcohol and
substance abuse treatment services to inmateswho: (i) are otherwise
eligible for temporary release, or (ii) stand convicted of a felony
defined in article two hundred twenty or two hundred twenty-one of the
penal law, and are within six months of being an eligible inmate as that
term is defined in subdivision two of section eight hundred fifty-one of
this chapter including such inmates who are participating in such
program pursuant to subdivision six of section 60.04 of the penal law.
Notwithstanding the foregoing provisions of this subdivision, any inmate
to be enrolled in this program pursuant to subdivision six of section
60.04 of the penal law shall be governed by the same rules and regu-
lations promulgated by the department, including without limitation
those rules and regulations establishing requirements for completion and
those rules and regulations governing discipline and removal from the
program. No such period of court ordered corrections based drug abuse
treatment pursuant to this subdivision shall be required to extend
beyond the defendant's conditional release date. Such treatment
services may be provided by one or more outside service providers pursu-
ant to contractual agreements with both the department and the division
of parole, provided, however, that any such provider shall be required
to continue to provide, either directly or through formal or informal
agreement with other providers, alcohol and substance abuse treatment
services to inmates who have successfully participated in such provid-
er's incarcerative treatment services and who have been paroled or
conditionally released under the supervision of the division of parole
and who are, as a condition of their parole or conditional release,
required to participate in alcohol or substance abuse treatment. Such
incarcerative services shall be provided in the facility in accordance
with minimum standards promulgated by the department after consultation
with the [division] office of alcoholism and [alcohol abuse and the
division of] substance abuse services. Such services to parolees shall
be provided in accordance with standards promulgated by the division of
parole after consultation with the [division]office of alcoholism and
[alcohol abuse and the division of] substance abuse services. The
commissioner shall report annually to the majority leader of the senate
and the speaker of the assembly commencing January [1, 1992]first,
nineteen hundred ninety-two as to the efficacy of such programs includ-
ing but not limited to a comparative analysis of state-operated and
private sector provision of treatment services and recidivism. Such
report shall also include the number of inmates received by the depart-
ment during the reporting period who are subject to a sentence which
includes enrollment in substance abuse treatment in accordance with
subdivision six of section 60.04 of the penal law, the number of such
inmates who are not placed in such treatment program and the reasons for
such occurrences.
§ 3. Section 851 of the correction law is amended by adding a new
subdivision 2-b to read as follows:
2-b. When calculating in advance the date on which a person is or
will be eligible for release on parole or conditional release, for
purposes of determining eligibility for temporary release or for place-
ment at an alcohol and substance abuse treatment correctional annex, the
commissioner shall consider and include credit for all potential credits
and reductions including but not limited to merit time and good behavior
allowances. Nothing in this subdivision shall be interpreted as
precluding the consideration and inclusion of credit for all potential
credits and reductions including, but not limited to, merit time and
good behavior allowances when calculating in advance for any other
purpose the date on which a person is or will be eligible for release on
parole or conditional release.
§ 4. Subdivision 5 of section 439-c of the correction law, as added by
chapter 477 of the laws of 1967, is amended to read as follows:
5. In the event that a person transferred pursuant to this section is
under an indeterminateor determinate sentence of imprisonment, the
provisions of subdivisions three, four and five of section four hundred
thirty-nine-aof this article shall apply to such transfer in lieu of
the provisions of subdivisions three and four of this section.
§ 5. Subdivision (a) of section 601 of the correction law, as amended
by chapter 227 of the laws of 1981, is amended to read as follows:
(a) Whenever an inmate shall be delivered to the superintendent of a
state correctional facility pursuant to an indeterminateor determinate
sentence, the officer so delivering such inmate shall deliver to such
superintendent, a certified copy of the sentence received by such offi-
cer from the clerk of the court by which such inmate shall have been
sentenced, a copy of the report of the probation officer's investigation
and report or a detailed statement covering the facts relative to the
crime and previous history certified by the district attorney, a copy of
the inmate's fingerprint records, a detailed summary of available
medical records, psychiatric records and reports relating to assaults,
or other violent acts, attempts at suicide or escape by the inmate while
in the custody of the local correctional facility; any such medical or
psychiatric records in the possession of a health care provider other
than the local correctional facility shall be summarized in detail and
forwarded by such health care provider to the medical director of the
appropriate state correctional facility upon request; the superintendent
shall present to such officer a certificate of the delivery of such
inmate, and the fees of such officer for transporting such inmate shall
be paid from the treasury upon the audit and warrant of the comptroller.
Whenever an inmate of the state is delivered to a local facility, the
superintendent shall forward summaries of such records to the local
facility with the inmate.
§ 6. Subdivision (b) of section 601 of the correction law, as added by
chapter 39 of the laws of 1977, is amended to read as follows:
(b) Whenever an inmate is sentenced by a court of this state to an
indeterminate or determinate sentence, but the inmate is immediately
returned to a correctional facility under the jurisdiction of the United
States or of a sister state, the clerk of the court shall immediately
send to the commissioner of the department a certified copy of the
sentence, a copy of the probation report and a copy of the fingerprint
records of the inmate.
§ 7. Paragraph (d) of subdivision 1 of section 803 of the correction
law is REPEALED and a new paragraph (d) is added to read as follows:
(d) (i) Except as provided in subparagraph (ii) of this paragraph,
every person under the custody of the department or confined in a facil-
ity 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,
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 inmate.
(iii) The merit time allowance credit against the minimum period of
the indeterminate sentence shall be one-sixth 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 author-
ized by paragraph (c) of this subdivision, the merit time allowance
credited against the term of the determinate sentence pursuant to this
paragraph shall be one-seventh of the term imposed by the court.
(iv) Such merit time allowance may be granted when an inmate success-
fully participates in the work and treatment program assigned pursuant
to section eight hundred five of this article and when such inmate
obtains a general equivalency diploma, an alcohol and substance abuse
treatment certificate, a vocational trade certificate following at least
six months of vocational programming or performs at least four hundred
hours of service as part of a community work crew.
Such allowance shall be withheld for any serious disciplinary infrac-
tion or upon a judicial determination that the person, while an inmate,
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 inmate, against a state agency, officer or employee.
(v) The provisions of this paragraph shall apply to persons in custody
serving an indeterminate sentence on the effective date of this para-
graph as well as to persons sentenced to an 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 twenty or two hundred twenty-one of the
penal law.
§ 8. Subdivision 1 of section 803 of the correction law is amended by
adding a new paragraph (d) to read as follows:
(d) (i) Except as provided in subparagraph (ii) of this paragraph,
every person under the custody of the department or confined in a facil-
ity 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,
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 inmate.
(iii) The merit time allowance credit against the minimum period of
the indeterminate sentence shall be one-sixth 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 author-
ized by paragraph (c) of this subdivision, the merit time allowance
credited against the term of the determinate sentence pursuant to this
paragraph shall be one-seventh of the term imposed by the court.
(iv) Such allowance may be granted when an inmate successfully partic-
ipates in the work and treatment program assigned pursuant to section
eight hundred five of this article and when such inmate obtains a gener-
al equivalency diploma, an alcohol and substance abuse treatment certif-
icate, a vocational trade certificate following at least six months of
vocational programming or performs at least four hundred hours of
service as part of a community work crew.
Such allowance shall be withheld for any serious disciplinary infrac-
tion or upon a judicial determination that the person, while an inmate,
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 inmate, against a state agency, officer or employee.
(v) The provisions of this paragraph shall apply to persons in custody
serving an indeterminate sentence on the effective date of this para-
graph as well as to persons sentenced to an 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 twenty or two hundred twenty-one of the
penal law.
§ 9. Subdivision 2-a of section 803 of the correction law is REPEALED
and a new subdivision 2-a is added to read as follows:
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
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 inde-
terminate sentence imposed for an A-I felony offense defined in article
two hundred twenty of the penal law, whichever allowance results in the
longest unexpired time to run.
(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 of the minimum or aggregate minimum period of the
sentences imposed for an A-I felony offense defined in article two
hundred twenty of the penal law, plus one-sixth of the minimum or aggre-
gate minimum period of the sentences imposed for an offense other than
such A-I felony offense.
(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 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 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 of the mini-
mum 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-seventh 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 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 arti-
cle 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 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 indeterminate sentence on the effective date of this
subdivision as well as to persons sentenced to an indeterminate sentence
on and after the effective date of this subdivision and prior to Septem-
ber 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 twenty or two hundred twenty-one of the
penal law.
§ 10. Section 803 of the correction law is amended by adding a new
subdivision 2-a to read as follows:
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
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 inde-
terminate sentence imposed for an A-I felony offense defined in article
two hundred twenty of the penal law, which has the longest unexpired
time to run.
(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 of the minimum or aggregate minimum period of the
sentences imposed for an A-I felony offense defined in article two
hundred twenty of the penal law, plus one-sixth of the minimum or aggre-
gate minimum period of the sentences imposed for an offense other than
such A-I felony offense.
(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 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 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 of the mini-
mum period of the indeterminate sentence imposed for an offense other
CHAP. 738 8
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-seventh of the term of the determinate
sentence, whichever allowance is greatest.
(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 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 arti-
cle 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 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 indeterminate sentence on the effective date of this
subdivision as well as to persons sentenced to an indeterminate sentence
on and after the effective date of this subdivision and prior to Septem-
ber 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 twenty or two hundred twenty-one of the
penal law.
§ 10-a. The opening paragraph of subdivision 1 of section 803 of the
correction law is designated paragraph (a) and a new paragraph (d) is
added to read as follows:
(d) (i) Except as provided in subparagraph (ii) of this paragraph,
every person under the custody of the department or confined in a facil-
ity 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,
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 inmate.
(iii) The merit time allowance credit against the minimum period of
the indeterminate sentence shall be one-sixth 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 author-
ized by paragraph (c) of this subdivision, the merit time allowance
credited against the term of the determinate sentence pursuant to this
paragraph shall be one-seventh of the term imposed by the court.
(iv) Such merit time allowance may be granted when an inmate success-
fully participates in the work and treatment program assigned pursuant
to section eight hundred five of this article and when such inmate
obtains a general equivalency diploma, an alcohol and substance abuse
treatment certificate, a vocational trade certificate following at least
six months of vocational programming or performs at least four hundred
hours of service as part of a community work crew.
Such allowance shall be withheld for any serious disciplinary infrac-
tion or upon a judicial determination that the person, while an inmate,
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 inmate, against a state agency, officer or employee.
(v) The provisions of this paragraph shall apply to persons in custody
serving an indeterminate sentence on the effective date of this para-
graph as well as to persons sentenced to an 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 twenty or two hundred twenty-one of the
penal law.
§ 11. Section 803 of the correction law is amended by adding two new
subdivisions 1-a and 2-a to read as follows:
1-a. A person serving a determinate sentence imposed pursuant to
section 70.70 or 70.71 of the penal law may receive a time allowance
against the term of his or her sentence not to exceed one-seventh of the
term imposed by the court.
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
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 inde-
terminate sentence imposed for an A-I felony offense defined in article
two hundred twenty of the penal law, whichever allowance results in the
longest unexpired time to run.
(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 of the minimum or aggregate minimum period of the
sentences imposed for an A-I felony offense defined in article two
hundred twenty of the penal law, plus one-sixth of the minimum or aggre-
gate minimum period of the sentences imposed for an offense other than
such A-I felony offense.
(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 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 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 of the mini-
mum 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-seventh 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 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 arti-
cle 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 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 indeterminate sentence on the effective date of this
subdivision as well as to persons sentenced to an indeterminate sentence
on and after the effective date of this subdivision and prior to Septem-
ber 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 twenty or two hundred twenty-one of the
penal law.
§ 11-a. The correction law is amended by adding a new section 803-a to
read as follows:
§ 803-a. Certain calculations. Notwithstanding the provisions of any
other law, no merit time allowance accrued, earned or credited to any
person, pursuant to any existing or former section eight hundred three
of this article, while in the custody of the commissioner, shall be
withdrawn, cancelled, forfeited or otherwise lost by virtue of the
sunset or expiration of any provision of law.
§ 12. The opening paragraph of subdivision 2 of section 851 of the
correction law, as amended by chapter 92 of the laws of 1996, is amended
to read as follows:
"Eligible inmate" 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 danger-
ous instrument shall not be eligible to participate 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, nineteen hundred sixty-sev-
en, for the purposes of this article parole eligibility shall be upon
the expiration of the minimum period of imprisonment fixed by the court
or where the court has not fixed any period, after service of the mini-
mum period fixed by the state board of parole. If an inmate is denied
release on parole, such inmate shall not be deemed an eligible inmate
until heor she is within two years of his or her next scheduled appear-
ance before the state parole board. In any case where an inmate is
denied release on parole while participating in a temporary release
program, the department shall review the status of the inmate to deter-
mine 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 inmate as defined in section 240.32 of the penal law, any
homicide offense defined in article one hundred twenty-five of the penal
law or of any sex offense defined in article one hundred thirty of the
penal law or of section 255.25 of the penal law shall be eligible to
participate in a work release program as defined in subdivision three of
this section. Notwithstanding the foregoing, no person who is an other-
wise eligible inmate who is under sentence for a crime involving: (a)
infliction of serious physical 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 with-
out the written approval of the commissioner. The commissioner shall
promulgate regulations giving direction to the temporary release commit-
tee at each institution in order to aid such committees in carrying out
this mandate.
§ 13. The opening paragraph of subdivision 2 of section 851 of the
correction law, as amended by chapter 447 of the laws of 1991, is
amended to read as follows:
"Eligible inmate" 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, 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 inmate is denied release on parole, such inmate shall not be
deemed an eligible inmate until heor she is within two years of his or
her next scheduled appearance before the state parole board. In any case
where an inmate is denied release on parole while participating in a
temporary release program, the department shall review the status of the