N.Y. Correct. Law § 803 : Correction — Provisions Applicable To Sentences Imposed Under The The Revised Penal Plan — [Effective September 1, 2017] Good behavior allowances against indeterminate sentences

Current through 2015 Laws of New York, Chapters 1 to 18 and 50 to 61

(a) Every person confined in an institution of the department or a facility in the department of mental hygiene serving an indeterminate sentence of imprisonment, except a person serving a sentence with a maximum term of life imprisonment, may receive time allowance against the maximum term or period of his sentence not to exceed in the aggregate one-third of the term or period 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 canceled in whole or in part for bad behavior, violation of institutional rules or failure to perform properly in the duties or program assigned.

(d)

(i) Except as provided in subparagraph (ii) of this paragraph, 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 pursuant 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 authorized 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 successfully 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 infraction 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 paragraph 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.

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. If a person is serving more than one sentence, the authorized allowances may be granted separately against the maximum term of each sentence or, where consecutive sentences are involved, against the aggregate maximum term. In no case, however, shall the total of all allowances granted to any such person under this section exceed one-third of the time he would be required to serve, computed without regard to this section.

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 subparagraph (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 indeterminate 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 aggregate 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 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-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 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 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 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.

3. The commissioner of corrections and community supervision shall promulgate rules and regulations for the granting, withholding, forfeiture, cancellation and restoration of allowances authorized by this section in accordance with the criteria herein specified. Such rules and regulations shall include provisions designating the person or committee in each correctional institution delegated to make discretionary determinations 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 supervision 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, however, subsequently receive time allowances against the remaining portion of his maximum or aggregate maximum term or period not to exceed in the aggregate one-third of such portion provided such remaining portion of his or her maximum or aggregate maximum term or period is more than one year.

6. Upon commencement of an indeterminate 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 by a person designated by the commissioner to perform such duty.

N.Y. Correct. Law § 803

Amended by New York Laws 2015, ch. 55,Sec. B-19, eff. 4/13/2015.

Amended by New York Laws 2015, ch. 55,Sec. B-15, eff. 4/13/2015.