§ 803 — Good behavior allowances against indeterminate and determinate sentences

New York § 803

• Jurisdiction: New York
• Law COR: Correction
• Art. 24: Provisions Applicable to Sentences Imposed Under the the Revised Penal Plan

Text

* § 803. Good behavior allowances against indeterminate and\ndeterminate sentences. 1. (a) Every person confined in an institution of\nthe department or a facility in the department of mental hygiene serving\nan indeterminate or determinate sentence of imprisonment, except a\nperson serving a sentence with a maximum term of life imprisonment, may\nreceive time allowance against the term or maximum term of his or her\nsentence imposed by the court. Such allowances may be granted for good\nbehavior and efficient and willing performance of duties assigned or\nprogress and achievement in an assigned treatment program, and may be\nwithheld, forfeited or canceled in whole or in part for bad behavior,\nviolation of institutional rules or failure to perform properly in the\nduties or program assigned.\n (b) A person serving an indeterminate sentence of imprisonment may\nreceive time allowance against the maximum term of his or her sentence\nnot to exceed one-third of the maximum term imposed by the court.\n (c) A person serving a determinate sentence of imprisonment may\nreceive time allowance against the term of his or her sentence not to\nexceed one-seventh of the term imposed by the court.\n (d) (i) Except as provided in subparagraph (ii) of this paragraph,\nevery person under the custody of the department or confined in a\nfacility in the department of mental hygiene serving an indeterminate\nsentence of imprisonment with a minimum period of one year or more or a\ndeterminate sentence of imprisonment of one year or more imposed\npursuant to section 70.70 or 70.71 of the penal law, may earn a merit\ntime allowance.\n (ii) Such merit time allowance shall not be available to any person\nserving an indeterminate sentence authorized for an A-I felony offense,\nother than an A-I felony offense defined in article two hundred twenty\nof the penal law, or any sentence imposed for a violent felony offense\nas defined in section 70.02 of the penal law, manslaughter in the second\ndegree, vehicular manslaughter in the second degree, vehicular\nmanslaughter in the first degree, criminally negligent homicide, an\noffense defined in article one hundred thirty of the penal law, incest,\nor an offense defined in article two hundred sixty-three of the penal\nlaw, or aggravated harassment of an employee by an incarcerated\nindividual.\n (iii) The merit time allowance credit against the minimum period of\nthe indeterminate sentence shall be one-sixth of the minimum period\nimposed by the court except that such credit shall be one-third of the\nminimum period imposed by the court for an A-I felony offense defined in\narticle two hundred twenty of the penal law. In the case of such a\ndeterminate sentence, in addition to the time allowance credit\nauthorized by paragraph (c) of this subdivision, the merit time\nallowance credited against the term of the determinate sentence pursuant\nto this paragraph shall be one-seventh of the term imposed by the court.\n (iv) Such merit time allowance may be granted when an incarcerated\nindividual successfully participates in the work and treatment program\nassigned pursuant to section eight hundred five of this article and when\nsuch incarcerated individual obtains a general equivalency diploma, an\nalcohol and substance abuse treatment certificate, a vocational trade\ncertificate following at least six months of vocational programming, at\nleast eighteen credits in a program registered by the state education\ndepartment from a degree-granting higher education institution or\nperforms at least four hundred hours of service as part of a community\nwork crew. The commissioner may designate additional programs and\nachievements for which merit time may be granted.\n Such allowance shall be withheld for any serious disciplinary\ninfraction or upon a judicial determination that the person, while an\nincarcerated individual, commenced or continued a civil action,\nproceeding or claim that was found to be frivolous as defined in\nsubdivision (c) of section eight thousand three hundred three-a of the\ncivil practice law and rules, or an order of a federal court pursuant to\nrule 11 of the federal rules of civil procedure imposing sanctions in an\naction commenced by a person, while an incarcerated individual, against\na state agency, officer or employee.\n (v) The provisions of this paragraph shall apply to persons in custody\nserving an indeterminate sentence on the effective date of this\nparagraph as well as to persons sentenced to an indeterminate sentence\non and after the effective date of this paragraph and prior to September\nfirst, two thousand five and to persons sentenced to a determinate\nsentence prior to September first, two thousand eleven for a felony as\ndefined in article two hundred twenty or two hundred twenty-one of the\npenal law.\n 2. If a person is serving more than one sentence, the authorized\nallowances may be granted separately against the term or maximum term of\neach sentence or, where consecutive sentences are involved, against the\naggregate maximum term. Such allowances shall be calculated as follows:\n (a) A person serving two or more indeterminate sentences which run\nconcurrently may receive time allowance not to exceed one-third of the\nindeterminate sentence which has the longest unexpired time to run.\n (b) A person serving two or more indeterminate sentences which run\nconsecutively may receive time allowance not to exceed one-third of the\naggregate maximum term.\n (c) A person serving two or more determinate sentences which run\nconcurrently may receive time allowance not to exceed one-seventh of the\ndeterminate sentence which has the longest unexpired time to run.\n (d) A person serving two or more determinate sentences which run\nconsecutively may receive time allowance not to exceed one-seventh of\nthe aggregate maximum term.\n (e) A person serving one or more indeterminate sentence and one or\nmore determinate sentence which run concurrently may receive time\nallowance not to exceed one-third of the indeterminate sentence which\nhas the longest unexpired term to run or one-seventh of the determinate\nsentence which has the longest unexpired time to run, whichever\nallowance is greater.\n (f) A person serving one or more indeterminate sentence and one or\nmore determinate sentence which run consecutively may receive time\nallowance not to exceed the sum of one-third of the maximum or aggregate\nmaximum of the indeterminate sentence or sentences and one-seventh of\nthe term or aggregate maximum of the determinate sentence or sentences.\n 2-a. If a person is serving more than one sentence, the authorized\nmerit time allowances may be granted against the period or aggregate\nminimum period of the indeterminate sentence or sentences, or against\nthe term or aggregate term of the determinate sentence or sentences, or\nwhere consecutive determinate and indeterminate sentences are involved,\nagainst the aggregate minimum period as calculated pursuant to\nsubparagraph (iv) of paragraph (a) of subdivision one of section 70.40\nof the penal law. Such allowances shall be calculated as follows:\n (a) A person serving two or more indeterminate sentences which run\nconcurrently may receive a merit time allowance not to exceed one-sixth\nof the minimum period of the indeterminate sentence imposed for an\noffense other than an A-I felony offense defined in article two hundred\ntwenty of the penal law, or one-third of the minimum period of the\nindeterminate sentence imposed for an A-I felony offense defined in\narticle two hundred twenty of the penal law, whichever allowance results\nin the longest unexpired time to run.\n (b) A person serving two or more indeterminate sentences which run\nconsecutively may receive a merit time allowance not to exceed the\namount of one-third of the minimum or aggregate minimum period of the\nsentences imposed for an A-I felony offense defined in article two\nhundred twenty of the penal law, plus one-sixth of the minimum or\naggregate minimum period of the sentences imposed for an offense other\nthan such A-I felony offense.\n (c) A person serving two or more determinate sentences for an offense\ndefined in article two hundred twenty or two hundred twenty-one of the\npenal law which run concurrently may receive a merit time allowance not\nto exceed one-seventh of the term of the determinate sentence which has\nthe longest unexpired time to run.\n (d) A person serving two or more determinate sentences for an offense\ndefined in article two hundred twenty or two hundred twenty-one of the\npenal law which run consecutively may receive a merit time allowance not\nto exceed one-seventh of the aggregate term of such determinate\nsentences.\n (e) A person serving one or more indeterminate sentences and one or\nmore determinate sentences for an offense defined in article two hundred\ntwenty or two hundred twenty-one of the penal law which run concurrently\nmay receive a merit time allowance not to exceed one-sixth of the\nminimum period of the indeterminate sentence imposed for an offense\nother than an A-I felony offense defined in article two hundred twenty\nof the penal law, one-third of the minimum period of the indeterminate\nsentence imposed for an A-I felony offense defined in article two\nhundred twenty of the penal law, or one-seventh of the term of the\ndeterminate sentence, whichever allowance results in the largest\nunexpired time to run.\n (f) A person serving one or more indeterminate sentences and one or\nmore determinate sentences which run consecutively may receive a merit\ntime allowance not to exceed the sum of one-sixth of the minimum or\naggregate minimum period of the indeterminate sentence or sentences\nimposed for an offense other than an A-I felony offense defined in\narticle two hundred twenty of the penal law, one-third of the minimum or\naggregate minimum period of the indeterminate sentence or sentences\nimposed for an A-I felony offense defined in article two hundred twenty\nof the penal law and one-seventh of the term or aggregate term of the\ndeterminate sentence or sentences.\n (g) The provisions of this subdivision shall apply to persons in\ncustody serving an indeterminate sentence on the effective date of this\nsubdivision as well as to persons sentenced to an indeterminate sentence\non and after the effective date of this subdivision and prior to\nSeptember first, two thousand five and to persons sentenced to a\ndeterminate sentence prior to September first, two thousand eleven for a\nfelony as defined in article two hundred twenty or two hundred\ntwenty-one of the penal law.\n ** 2-b. Notwithstanding the foregoing, if a person is serving more\nthan one indeterminate sentence, at least one of which is imposed for a\nclass A-I felony offense defined in article two hundred twenty of the\npenal law, the authorized merit time allowance granted pursuant to\nparagraph (d) of subdivision one of this section shall be calculated as\nfollows:\n (a) In the event a person is serving two or more indeterminate\nsentences with different minimum periods which run concurrently, the\nmerit time allowance shall be based upon the sentence with the longest\nunexpired minimum period. If the sentence with the longest unexpired\nminimum period was imposed for a class A-I felony, the merit time credit\nshall be one-third of such sentence's minimum period; if such sentence\nwas imposed for an offense other than a class A-I felony, such merit\ntime credit shall be one-sixth of such sentence's minimum period.\nProvided, however, that where the minimum period of any other concurrent\nindeterminate sentence is greater than such reduced minimum period, the\nminimum period of such other concurrent indeterminate sentence shall\nalso be reduced but only to the extent that the minimum period of such\nother concurrent sentence, as so reduced, is equal to the reduced\nminimum period of such sentence with the longest unexpired minimum\nperiod to run.\n (b) A person serving two or more indeterminate sentences with the same\nminimum periods which run concurrently, and no concurrent indeterminate\nsentence with any greater minimum period, shall have the minimum period\nof each such sentence reduced in the amount of one-third of such minimum\nperiod if all such sentences were imposed for a class A-I felony.\n (c) A person serving two or more indeterminate sentences that run\nconsecutively shall have the aggregate minimum period of such sentences\nreduced in the amount of one-third of such aggregate minimum period of\nthe sentences imposed for a class A-I felony, plus one-sixth of such\naggregate minimum period of the sentences imposed for an offense other\nthan a class A-I felony.\n ** NB Repealed September 1, 2027\n 3. The commissioner of corrections and community supervision shall\npromulgate rules and regulations for the granting, withholding,\nforfeiture, cancellation and restoration of allowances authorized by\nthis section in accordance with the criteria herein specified. Such\nrules and regulations shall include provisions designating the person or\ncommittee in each correctional institution delegated to make\ndiscretionary determinations with respect to the allowances, the books\nand records to be kept, and a procedure for review of the institutional\ndeterminations by the commissioner.\n 4. No person shall have the right to demand or require the allowances\nauthorized by this section. The decision of the commissioner of\ncorrections and community supervision as to the granting, withholding,\nforfeiture, cancellation or restoration of such allowances shall be\nfinal and shall not be reviewable if made in accordance with law.\n 5. Time allowances granted prior to any release to community\nsupervision shall be forfeited and shall not be restored if the released\nperson is returned to an institution under the jurisdiction of the state\ndepartment of corrections and community supervision for violation of\ncommunity supervision or by reason of a conviction for a crime committed\nwhile on community supervision. A person who is so returned may,\nhowever, subsequently receive time allowances against the remaining\nportion of his or her term, maximum term or aggregate maximum term\npursuant to this section and provided such remaining portion of his or\nher term, maximum term, or aggregate maximum term is more than one year.\n 6. Upon commencement of an indeterminate or a determinate sentence the\nprovisions of this section shall be furnished to the person serving the\nsentence and the meaning of same shall be fully explained to him by a\nperson designated by the commissioner to perform such duty.\n * NB Effective until September 1, 2027\n * § 803. Good behavior allowances against indeterminate sentences. 1.\n(a) Every person confined in an institution of the department or a\nfacility in the department of mental hygiene serving an indeterminate\nsentence of imprisonment, except a person serving a sentence with a\nmaximum term of life imprisonment, may receive time allowance against\nthe maximum term or period of his sentence not to exceed in the\naggregate one-third of the term or period imposed by the court. Such\nallowances may be granted for good behavior and efficient and willing\nperformance of duties assigned or progress and achievement in an\nassigned treatment program, and may be withheld, forfeited or canceled\nin whole or in part for bad behavior, violation of institutional rules\nor failure to perform properly in the duties or program assigned.\n (d) (i) Except as provided in subparagraph (ii) of this paragraph,\nevery person under the custody of the department or confined in a\nfacility in the department of mental hygiene serving an indeterminate\nsentence of imprisonment with a minimum period of one year or more or a\ndeterminate sentence of imprisonment of one year or more imposed\npursuant to section 70.70 or 70.71 of the penal law, may earn a merit\ntime allowance.\n (ii) Such merit time allowance shall not be available to any person\nserving an indeterminate sentence authorized for an A-I felony offense,\nother than an A-I felony offense defined in article two hundred twenty\nof the penal law, or any sentence imposed for a violent felony offense\nas defined in section 70.02 of the penal law, manslaughter in the second\ndegree, vehicular manslaughter in the second degree, vehicular\nmanslaughter in the first degree, criminally negligent homicide, an\noffense defined in article one hundred thirty of the penal law, incest,\nor an offense defined in article two hundred sixty-three of the penal\nlaw, or aggravated harassment of an employee by an incarcerated\nindividual.\n (iii) The merit time allowance credit against the minimum period of\nthe indeterminate sentence shall be one-sixth of the minimum period\nimposed by the court except that such credit shall be one-third of the\nminimum period imposed by the court for an A-I felony offense defined in\narticle two hundred twenty of the penal law. In the case of such a\ndeterminate sentence, in addition to the time allowance credit\nauthorized by paragraph (c) of this subdivision, the merit time\nallowance credited against the term of the determinate sentence pursuant\nto this paragraph shall be one-seventh of the term imposed by the court.\n (iv) Such merit time allowance may be granted when an incarcerated\nindividual successfully participates in the work and treatment program\nassigned pursuant to section eight hundred five of this article and when\nsuch incarcerated individual obtains a general equivalency diploma, an\nalcohol and substance abuse treatment certificate, a vocational trade\ncertificate following at least six months of vocational programming, at\nleast eighteen credits in a program registered by the state education\ndepartment from a degree-granting higher education institution or\nperforms at least four hundred hours of service as part of a community\nwork crew.\n Such allowance shall be withheld for any serious disciplinary\ninfraction or upon a judicial determination that the person, while an\nincarcerated individual, commenced or continued a civil action,\nproceeding or claim that was found to be frivolous as defined in\nsubdivision (c) of section eight thousand three hundred three-a of the\ncivil practice law and rules, or an order of a federal court pursuant to\nrule 11 of the federal rules of civil procedure imposing sanctions in an\naction commenced by a person, while an incarcerated individual, against\na state agency, officer or employee.\n (v) The provisions of this paragraph shall apply to persons in custody\nserving an indeterminate sentence on the effective date of this\nparagraph as well as to persons sentenced to an indeterminate sentence\non and after the effective date of this paragraph and prior to September\nfirst, two thousand five and to persons sentenced to a determinate\nsentence prior to September first, two thousand eleven for a felony as\ndefined in article two hundred twenty or two hundred twenty-one of the\npenal law.\n 1-a. A person serving a determinate sentence imposed pursuant to\nsection 70.70 or 70.71 of the penal law may receive a time allowance\nagainst the term of his or her sentence not to exceed one-seventh of the\nterm imposed by the court.\n 2. If a person is serving more than one sentence, the authorized\nallowances may be granted separately against the maximum term of each\nsentence or, where consecutive sentences are involved, against the\naggregate maximum term. In no case, however, shall the total of all\nallowances granted to any such person under this section exceed\none-third of the time he would be required to serve, computed without\nregard to this section.\n 2-a. If a person is serving more than one sentence, the authorized\nmerit time allowances may be granted against the period or aggregate\nminimum period of the indeterminate sentence or sentences, or against\nthe term or aggregate term of the determinate sentence or sentences, or\nwhere consecutive determinate and indeterminate sentences are involved,\nagainst the aggregate minimum period as calculated pursuant to\nsubparagraph (iv) of paragraph (a) of subdivision one of section 70.40\nof the penal law. Such allowances shall be calculated as follows:\n (a) A person serving two or more indeterminate sentences which run\nconcurrently may receive a merit time allowance not to exceed one-sixth\nof the minimum period of the indeterminate sentence imposed for an\noffense other than an A-I felony offense defined in article two hundred\ntwenty of the penal law, or one-third of the minimum period of the\nindeterminate sentence imposed for an A-I felony offense defined in\narticle two hundred twenty of the penal law, whichever allowance results\nin the longest unexpired time to run.\n (b) A person serving two or more indeterminate sentences which run\nconsecutively may receive a merit time allowance not to exceed the\namount of one-third of the minimum or aggregate minimum period of the\nsentences imposed for an A-I felony offense defined in article two\nhundred twenty of the penal law, plus one-sixth of the minimum or\naggregate minimum period of the sentences imposed for an offense other\nthan such A-I felony offense.\n (c) A person serving two or more determinate sentences for an offense\ndefined in article two hundred twenty or two hundred twenty-one of the\npenal law which run concurrently may receive a merit time allowance not\nto exceed one-seventh of the term of the determinate sentence which has\nthe longest unexpired time to run.\n (d) A person serving two or more determinate sentences for an offense\ndefined in article two hundred twenty or two hundred twenty-one of the\npenal law which run consecutively may receive a merit time allowance not\nto exceed one-seventh of the aggregate term of such determinate\nsentences.\n (e) A person serving one or more indeterminate sentences and one or\nmore determinate sentences for an offense defined in article two hundred\ntwenty or two hundred twenty-one of the penal law which run concurrently\nmay receive a merit time allowance not to exceed one-sixth of the\nminimum period of the indeterminate sentence imposed for an offense\nother than an A-I felony offense defined in article two hundred twenty\nof the penal law, one-third of the minimum period of the indeterminate\nsentence imposed for an A-I felony offense defined in article two\nhundred twenty of the penal law, or one-seventh of the term of the\ndeterminate sentence, whichever allowance results in the largest\nunexpired time to run.\n (f) A person serving one or more indeterminate sentences and one or\nmore determinate sentences which run consecutively may receive a merit\ntime allowance not to exceed the sum of one-sixth of the minimum or\naggregate minimum period of the indeterminate sentence or sentences\nimposed for an offense other than an A-I felony offense defined in\narticle two hundred twenty of the penal law, one-third of the minimum or\naggregate minimum period of the indeterminate sentence or sentences\nimposed for an A-I felony offense defined in article two hundred twenty\nof the penal law and one-seventh of the term or aggregate term of the\ndeterminate sentence or sentences.\n (g) The provisions of this subdivision shall apply to persons in\ncustody serving an indeterminate sentence on the effective date of this\nsubdivision as well as to persons sentenced to an indeterminate sentence\non and after the effective date of this subdivision and prior to\nSeptember first, two thousand five and to persons sentenced to a\ndeterminate sentence prior to September first, two thousand eleven for a\nfelony as defined in article two hundred twenty or two hundred\ntwenty-one of the penal law.\n 3. The commissioner of corrections and community supervision shall\npromulgate rules and regulations for the granting, withholding,\nforfeiture, cancellation and restoration of allowances authorized by\nthis section in accordance with the criteria herein specified. Such\nrules and regulations shall include provisions designating the person or\ncommittee in each correctional institution delegated to make\ndiscretionary determinations with respect to the allowances, the books\nand records to be kept, and a procedure for review of the institutional\ndeterminations by the commissioner.\n 4. No person shall have the right to demand or require the allowances\nauthorized by this section. The decision of the commissioner of\ncorrections and community supervision as to the granting, withholding,\nforfeiture, cancellation or restoration of such allowances shall be\nfinal and shall not be reviewable if made in accordance with law.\n 5. Time allowances granted prior to any release to community\nsupervision shall be forfeited and shall not be restored if the released\nperson is returned to an institution under the jurisdiction of the state\ndepartment of corrections and community supervision for violation of\ncommunity supervision or by reason of a conviction for a crime committed\nwhile on community supervision. A person who is so returned may,\nhowever, subsequently receive time allowances against the remaining\nportion of his maximum or aggregate maximum term or period not to exceed\nin the aggregate one-third of such portion provided such remaining\nportion of his or her maximum or aggregate maximum term or period is\nmore than one year.\n 6. Upon commencement of an indeterminate sentence the provisions of\nthis section shall be furnished to the person serving the sentence and\nthe meaning of same shall be fully explained to him by a person\ndesignated by the commissioner to perform such duty.\n * NB Effective September 1, 2027\n