§ 806 — Presumptive release program for nonviolent incarcerated individuals

* § 806. Presumptive release program for nonviolent incarcerated\nindividuals. 1. Notwithstanding any other provision of law to the\ncontrary and except as provided in subdivision two of this section, an\nincarcerated individual who has been awarded a certificate of earned\neligibility by the commissioner as set forth in section eight hundred\nfive of this article may be entitled to presumptive release at the\nexpiration of the minimum or aggregate minimum period of his or her\nindeterminate term of imprisonment, provided that:\n (i) the incarcerated individual has not been convicted previously of,\nnor is presently serving a sentence imposed for a class A-I felony, a\nviolent felony offense as defined in section 70.02 of the penal law,\nmanslaughter in the second degree, vehicular manslaughter in the second\ndegree, vehicular manslaughter in the first degree, criminally negligent\nhomicide, an offense defined in article one hundred thirty of the penal\nlaw, incest, or an offense defined in article two hundred sixty-three of\nthe penal law,\n (ii) the incarcerated individual has not committed any serious\ndisciplinary infraction, and\n (iii) there has been no judicial determination that the person while\nan incarcerated 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 has not been issued by a\nfederal court pursuant to rule 11 of the federal rules of civil\nprocedure imposing sanctions in an action commenced by the incarcerated\nindividual against a state agency, officer or employee.\n 2. In the case of an incarcerated individual who meets the criteria\nset forth in subdivision one of this section and who also meets the\ncriteria for merit time as provided for in paragraph (d) of subdivision\none of section eight hundred three of this article, such incarcerated\nindividual may be entitled to presumptive release, as provided in this\nsection, at the expiration of five-sixths of the minimum or aggregate\nminimum period of his or her indeterminate term of imprisonment.\n 3. Any incarcerated individual eligible for presumptive release\npursuant to this section shall be required to apply for such release\npursuant to section two hundred six of this chapter.\n 4. The commissioner shall promulgate rules and regulations for the\ngranting, withholding, cancellation and recission of presumptive release\nauthorized by this section in accordance with law.\n 5. No person shall have the right to demand or require presumptive\nrelease authorized by this section. The commissioner may revoke at any\ntime an incarcerated individual's scheduled presumptive release pursuant\nto this section for any disciplinary infraction committed by the\nincarcerated individual or for any failure to continue to participate\nsuccessfully in any assigned work and treatment program after the\ncertificate of earned eligibility has been awarded. The commissioner may\ndeny presumptive release to any incarcerated individual whenever the\ncommissioner determines that such release may not be consistent with the\nsafety of the community or the welfare of the incarcerated individual.\nAny action by the commissioner pursuant to this section shall be deemed\na judicial function and shall not be reviewable if done in accordance\nwith law.\n 6. Any eligible incarcerated individual who is not released pursuant\nto subdivision one or two of this section shall be considered for\ndiscretionary release on parole pursuant to the provisions of section\neight hundred five of this article or section two hundred fifty-nine-i\nof the executive law, whichever is applicable.\n 7. Any reference to parole and conditional release in this chapter\nshall also be deemed to include presumptive release.\n * NB Repealed September 1, 2027\n