Bill S4342-2013

Makes certain offenders convicted of certain homicide, hate, terrorism and major drug trafficking crimes ineligible for merit, presumptive release and limited credit time

Makes certain offenders convicted of certain homicide, hate, terrorism and major drug trafficking crimes ineligible for merit, presumptive release and limited credit time.

Details

Actions

  • Jan 8, 2014: REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION
  • Jan 8, 2014: returned to senate
  • Jan 8, 2014: died in assembly
  • Apr 24, 2013: referred to correction
  • Apr 23, 2013: DELIVERED TO ASSEMBLY
  • Apr 23, 2013: PASSED SENATE
  • Apr 22, 2013: ORDERED TO THIRD READING CAL.392
  • Apr 22, 2013: REPORTED AND COMMITTED TO RULES
  • Mar 21, 2013: REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION

Votes

VOTE: COMMITTEE VOTE: - Rules - Apr 22, 2013
Ayes (20): Skelos, Libous, Bonacic, Carlucci, Farley, Flanagan, Fuschillo, Larkin, LaValle, Marcellino, Maziarz, Nozzolio, Seward, Valesky, Stewart-Cousins, Breslin, Dilan, Parker, Perkins, Espaillat
Ayes W/R (2): Krueger, Gianaris
Nays (2): Hassell-Thompson, Montgomery
Excused (1): Hannon

Memo

BILL NUMBER:S4342

TITLE OF BILL: An act to amend the correction law, in relation to making ineligible for merit, presumptive release, and limited credit time, offenders convicted of certain homicide, hate, terrorism and major drug trafficking crimes

Purpose of Bill: This bill would amend the Correction Law to provide uniformity and consistency in the listing of offenses that would make an inmate ineligible for merit time, presumptive release and limited credit time allowance programs.

Summary of Provisions:

Section one of the bill would amend Correction Law § 803(1)(d) to add as excludable crimes for the merit time program all homicides, hate crimes, terrorism and operating as a major trafficker, and also would make technical corrections to the existing statutory references to the crimes of incest and aggravated harassment of an employee by an inmate.

Section two of the bill would amend Correction Law § 803-b(1)(a) to add as excludable crimes for the limited credit time program operating as a major trafficker, aggravated harassment of an employee by and inmate, all incest offenses, hate crimes and terrorism.

Section three of the bill would amend Correction Law § 806(1)(i) to expand the list of excludable crimes for the presumptive release program to include all homicide offenses and to add aggravated harassment of an employee by an inmate, hate crimes and terrorism, and would also make a technical correction to the existing reference to incest.

Section four of the bill provides the effective date.

Existing Law: The merit time program allows inmates, who meet the criteria, to reduce their minimum period by one-sixth in the case of an indeterminate sentence, and to reduce the term by one-seventh in the case of a determinate sentence. An inmate is ineligible for this program if he or she is serving an indeterminate sentence for a non-drug class A-I felony, or any sentence for a violent felony, certain homicide offenses, incest, a crime involving the use of a child in a sexual performance or aggravated harassment of an employee by an inmate.

The Limited Credit Time Allowance (LCTA) program allows eligible inmates to receive a six-month sentence reduction. In general, this applies to the class of inmates who are not eligible for merit time, except that, an individual under sentence for first-degree murder, a sex offense or an attempt or conspiracy to commit such an offense is ineligible for the LCTA.

The presumptive release program for non-violent inmates allows qualified inmates serving indeterminate sentences to be released without an appearance before the Board of Parole. An inmate is not eligible if he or she is presently convicted of, or has previously been convicted of, a class A-I felony, a violent felony, certain

delineated homicide offenses, a sex offense, incest or a crime involving the sexual performance of a child.

Prior Legislative History: This is a new bill.

Statement in Support: The amendments proposed in the bill are intended to provide uniformity and consistency in the listing of eligible offenses for these three programs that inure to the benefit of eligible inmates, either by shortening an inmate's period of incarceration or increasing the likelihood of his or her release.

For the merit time program, the law currently lists certain homicide offenses, such as vehicular manslaughter and criminally negligent homicide, as offenses for which an inmate is not eligible for the program. However, when a new offense is added to the Penal Law, it is necessary to amend Correction Law § 803(1)(d) to add that new offense to the list of ineligible offenses, something that is not always done, even when the new crime, such as aggravated vehicular homicide, is of greater severity than crimes on the ineligibility list. To maintain consistency in the law, it is preferable instead to generically refer to all homicide offenses in Article 125 of the Penal law as crimes of exclusion for the merit time program.

This approach was followed in Chapter 56 of the Laws of 2009, when the list of offenses making an inmate ineligible for the Shock Incarceration Program was amended to include all homicide offenses defined in Article 125. This same approach should be followed in defining eligibility for the merit time program.

Similarly, at various times the law has been amended to list specific crimes, such as incest, the use of a child in a sexual performance and aggravated harassment of an employee by an inmate, as ineligible crimes, in addition to the broad categories of all class A-I non-drug felonies and all violent crimes. Consistent with this approach, an individual convicted of a hate crime, terrorism or operating as a major trafficker should likewise be ineligible for merit time.

This same approach should be taken with respect to the limited credit time allowance program established in Correction Law § 803-b. A person who is serving a sentence for a hate crime, terrorism or operating as a major trafficker should likewise be ineligible for the limited credit time allowance, In addition, because incest is now defined in three different degrees, a technical amendment to include all three offenses in the list of eligible offenses is appropriate.

Similar changes should be made to the eligibility criteria for participation in the presumptive release for non-violent inmates program set forth in Correction Law § 806. The only difference is that because inmates convicted of any class A-I felony offense are already ineligible for this program, there is no need to separately identify operating as a major trafficker as a crime of exclusion.

Budget Implications: None.

Effective Date: This bill would take effect 30 days after it becomes a law.


Text

STATE OF NEW YORK ________________________________________________________________________ 4342 2013-2014 Regular Sessions IN SENATE March 21, 2013 ___________
Introduced by Sen. GALLIVAN -- (at request of the Department of Corrections and Community Supervision) -- 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, in relation to making ineligible for merit, presumptive release, and limited credit time, offenders convicted of certain homicide, hate, terrorism and major drug traf- ficking crimes THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subparagraph (ii) of paragraph (d) of subdivision 1 of section 803 to the correction law, as added by chapter 738 of the laws of 2004, is amended to read as follows: (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 TWENTY-FIVE OF THE PENAL LAW, an offense defined in article one hundred thirty of the penal law, AN incest OFFENSE DEFINED IN ARTICLE TWO HUNDRED FIFTY-FIVE OF THE PENAL LAW, [or] an offense defined in article two hundred sixty-three of the penal law, AN OFFENSE DEFINED IN ARTICLE FOUR HUNDRED EIGHTY-FIVE OF THE PENAL LAW, AN OFFENSE DEFINED IN ARTICLE FOUR HUNDRED NINETY OF THE PENAL LAW, or aggravated harassment of an employee by an inmate AS DEFINED IN SECTION 240.32 OF THE PENAL LAW. NOTWITHSTANDING THE FOREGO- ING, SUCH MERIT TIME ALLOWANCE SHALL NOT BE AVAILABLE TO ANY PERSON SERVING A SENTENCE IMPOSED FOR OPERATING AS A MAJOR TRAFFICKER AS DEFINED IN SECTION 220.77 OF THE PENAL LAW.
S 2. Paragraph (a) of subdivision 1 of section 803-b of the correction law, as added by section 4 of part L of chapter 56 of the laws of 2009, is amended to read as follows: (a) "eligible offender" means a person under the custody of the department or confined in a facility in the department of mental hygiene, other than a person who is subject to a sentence imposed for murder in the first degree as defined in section 125.27 of the penal law, OPERATING AS A MAJOR TRAFFICKER AS DEFINED IN SECTION 220.77 OF THE PENAL LAW, AGGRAVATED HARASSMENT OF AN EMPLOYEE BY AN INMATE AS DEFINED IN SECTION 240.32 OF THE PENAL LAW, an offense defined in article one hundred thirty of [such] THE PENAL law, AN INCEST OFFENSE DEFINED IN ARTICLE TWO HUNDRED FIFTY-FIVE OF THE PENAL LAW, AN OFFENSE DEFINED IN ARTICLE FOUR HUNDRED EIGHTY-FIVE OF THE PENAL LAW, AN OFFENSE DEFINED IN ARTICLE FOUR HUNDRED NINETY OF THE PENAL LAW, or an attempt or a conspiracy to commit any such offense, who is otherwise subject to: (i) an indeterminate sentence imposed for [any] A class A-I felony offense other than criminal possession of a controlled substance in the first degree as defined in section 220.21 of the penal law or criminal sale of a controlled substance in the first degree as defined in section 220.43 of such law or an attempt or a conspiracy to commit such controlled substance offense; or (ii) an indeterminate or determinate sentence imposed for an offense listed in subdivision one of section 70.02 of the penal law; or (iii) an indeterminate or determinate sentence imposed for an offense defined in article one hundred twenty-five of the penal law. S 3. Paragraph (i) of subdivision 1 of section 806 of the correction law, as added by section 5 of part E of chapter 62 of the laws of 2003, is amended to read as follows: (i) the inmate has not been convicted previously of, nor is presently serving a sentence imposed for a class A-I felony, 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, vehicu- lar manslaughter in the first degree, criminally negligent homicide,] AN OFFENSE DEFINED IN ARTICLE ONE HUNDRED TWENTY-FIVE OF THE PENAL LAW, an offense defined in article one hundred thirty of the penal law, AGGRA- VATED HARASSMENT OF AN EMPLOYEE BY AN INMATE AS DEFINED IN SECTION 240.32 OF THE PENAL LAW, AN incest OFFENSE DEFINED IN ARTICLE TWO HUNDRED FIFTY-FIVE OF THE PENAL LAW, [or] an offense defined in article two hundred sixty-three of the penal law, AN OFFENSE DEFINED IN ARTICLE FOUR-HUNDRED EIGHTY-FIVE OF THE PENAL LAW, OR AN OFFENSE DEFINED IN ARTICLE FOUR HUNDRED NINETY OF THE PENAL LAW, S 4. This act shall take effect on the thirtieth day after it shall have become a law; provided, however, that the amendments to subpara- graph (ii) of paragraph (d) of subdivision 1 of section 803 of the correction law made by section one of this act shall not affect the expiration of such section and shall be deemed to expire therewith; and provided, further, that the amendments to paragraph (i) of subdivision 1 of section 806 of the correction law made by section three of this act shall not affect the repeal of such section and shall be deemed repealed therewith.

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