§ 851 — Definitions

New York § 851

• Jurisdiction: New York
• Law COR: Correction
• Art. 26: Temporary Release Programs For State Correctional Institutions

Text

* § 851. Definitions. As used in this article the following terms have\nthe following meanings:\n 1. "Institution" means any institution under the jurisdiction of the\nstate department of corrections and community supervision or an\ninstitution designated by the commissioner pursuant to section\nseventy-two-a of this chapter.\n 2. "Eligible incarcerated individual" means: a person confined in an\ninstitution who is eligible for release on parole or who will become\neligible for release on parole or conditional release within two years.\nProvided, however, that a person under sentence for an offense defined\nin paragraphs (a) and (b) of subdivision one of section 70.02 of the\npenal law, where such offense involved the use or threatened use of a\ndeadly weapon or dangerous instrument shall not be eligible to\nparticipate in a work release program until he or she is eligible for\nrelease on parole or who will be eligible for release on parole or\nconditional release within eighteen months. Provided, further, however,\nthat a person under a determinate sentence as a second felony drug\noffender for a class B felony offense defined in article two hundred\ntwenty of the penal law, who was sentenced pursuant to section 70.70 of\nsuch law, shall not be eligible to participate in a temporary release\nprogram until the time served under imprisonment for his or her\ndeterminate sentence, including any jail time credited pursuant to the\nprovisions of article seventy of the penal law, shall be at least\neighteen months. In the case of a person serving an indeterminate\nsentence of imprisonment imposed pursuant to the penal law in effect\nafter September one, nineteen hundred sixty-seven, for the purposes of\nthis article parole eligibility shall be upon the expiration of the\nminimum period of imprisonment fixed by the court or where the court has\nnot fixed any period, after service of the minimum period fixed by the\nstate board of parole. If an incarcerated individual is denied release\non parole, such incarcerated individual shall not be deemed an eligible\nincarcerated individual until he or she is within two years of his or\nher next scheduled appearance before the state parole board. In any case\nwhere an incarcerated individual is denied release on parole while\nparticipating in a temporary release program, the department shall\nreview the status of the incarcerated individual to determine if\ncontinued placement in the program is appropriate. No person convicted\nof any escape or absconding offense defined in article two hundred five\nof the penal law shall be eligible for temporary release. Further, no\nperson under sentence for aggravated harassment of an employee by an\nincarcerated individual as defined in section 240.32 of the penal law\nfor, any homicide offense defined in article one hundred twenty-five of\nthe penal law, for any sex offense defined in article one hundred thirty\nof the penal law, or for an offense defined in section 255.25, 255.26 or\n255.27 of the penal law shall be eligible to participate in a work\nrelease program as defined in subdivision three of this section. Nor\nshall any person under sentence for any sex offense defined in article\none hundred thirty of the penal law be eligible to participate in a\ncommunity services program as defined in subdivision five of this\nsection. Notwithstanding the foregoing, no person who is an otherwise\neligible incarcerated individual who is under sentence for a crime\ninvolving: (a) infliction of serious physical injury upon another as\ndefined in the penal law or (b) any other offense involving the use or\nthreatened use of a deadly weapon may participate in a temporary release\nprogram without the written approval of the commissioner. The\ncommissioner shall promulgate regulations giving direction to the\ntemporary release committee at each institution in order to aid such\ncommittees in carrying out this mandate.\n The governor, by executive order, may exclude or limit the\nparticipation of any class of otherwise eligible incarcerated\nindividuals from participation in a temporary release program. Nothing\nin this paragraph shall be construed to affect either the validity of\nany executive order previously issued limiting the participation of\notherwise eligible incarcerated individuals in such program or the\nauthority of the commissioner to impose appropriate regulations limiting\nsuch participation.\n 2-a. Notwithstanding subdivision two of this section, the term\n"eligible incarcerated individual" shall also include a person confined\nin an institution who is eligible for release on parole or who will\nbecome eligible for release on parole or conditional release within two\nyears, and who was convicted of a homicide offense as defined in article\none hundred twenty-five of the penal law or an assault offense defined\nin article one hundred twenty of the penal law, and who can demonstrate\nto the commissioner that: (a) the victim of such homicide or assault was\na member of the incarcerated individual's immediate family as that term\nis defined in section 120.40 of the penal law or had a child in common\nwith the incarcerated individual; (b) the incarcerated individual was\nsubjected to substantial physical, sexual or psychological abuse\ncommitted by the victim of such homicide or assault; and (c) such abuse\nwas a substantial factor in causing the incarcerated individual to\ncommit such homicide or assault. With respect to an incarcerated\nindividual's claim that he or she was subjected to substantial physical,\nsexual or psychological abuse committed by the victim, such\ndemonstration shall include corroborative material that may include, but\nis not limited to, witness statements, social services records, hospital\nrecords, law enforcement records and a showing based in part on\ndocumentation prepared at or near the time of the commission of the\noffense or the prosecution thereof tending to support the incarcerated\nindividual's claim. Prior to making a determination under this\nsubdivision, the commissioner is required to request and take into\nconsideration the opinion of the district attorney who prosecuted the\nunderlying homicide or assault offense and the opinion of the sentencing\ncourt. If such opinions are received within forty-five days of the\nrequest, the commissioner shall take them into consideration. If such\nopinions are not so received, the commissioner may proceed with the\ndetermination. Any action by the commissioner pursuant to this\nsubdivision shall be deemed a judicial function and shall not be\nreviewable in any court.\n 2-b. When calculating in advance the date on which a person is or will\nbe eligible for release on parole or conditional release, for purposes\nof determining eligibility for temporary release or for placement at an\nalcohol and substance abuse treatment correctional annex, the\ncommissioner shall consider and include credit for all potential credits\nand reductions including but not limited to merit time and good behavior\nallowances. Nothing in this subdivision shall be interpreted as\nprecluding the consideration and inclusion of credit for all potential\ncredits and reductions including, but not limited to, merit time and\ngood behavior allowances when calculating in advance for any other\npurpose the date on which a person is or will be eligible for release on\nparole or conditional release.\n 3. "Work release program" means a program under which eligible\nincarcerated individuals may be granted the privilege of leaving the\npremises of an institution for a period not exceeding fourteen hours in\nany day for the purpose of on-the-job training or employment, or for any\nmatter necessary to the furtherance of any such purposes. No person\nshall be released into a work release program unless prior to release\nsuch person has a reasonable assurance of a job training program or\nemployment. If after release, such person ceases to be employed or\nceases to participate in the training program, the incarcerated\nindividual's privilege to participate in such work release program may\nbe revoked in accordance with rules and regulations promulgated by the\ncommissioner.\n 4. "Furlough program" means a program under which eligible\nincarcerated individuals may be granted the privilege of leaving the\npremises of an institution for a period not exceeding seven days for the\npurpose of seeking employment, maintaining family ties, solving family\nproblems, seeking post-release housing, attending a short-term\neducational or vocational training course, or for any matter necessary\nto the furtherance of any such purposes.\n 5. "Community services program" means a program under which eligible\nincarcerated individuals may be granted the privilege of leaving the\npremises of an institution for a period not exceeding fourteen hours in\nany day for the purpose of participation in religious services,\nvolunteer work, or athletic events, or for any matter necessary to the\nfurtherance of any such purposes.\n 6. "Leave of absence" means a privilege granted to an incarcerated\nindividual, who need not be an "eligible incarcerated individual," to\nleave the premises of an institution for the period of time necessary:\n (a) to visit his or her spouse, child, brother, sister, grandchild,\nparent, grandparent or ancestral aunt or uncle during his or her last\nillness if death appears to be imminent;\n (b) to attend the funeral of such individual;\n (c) to undergo surgery or to receive medical or dental treatment not\navailable in the correctional institution only if deemed absolutely\nnecessary to the health and well-being of the incarcerated individual\nand whose approval is granted by the commissioner or his or her\ndesignated representative.\n 7. "Educational leave" means a privilege granted to an eligible\nincarcerated individual to leave the premises of an institution for a\nperiod not exceeding fourteen hours in any day for the purpose of\neducation or vocational training, or for any matter necessary to the\nfurtherance of any such purposes.\n 8. "Industrial training leave" means a privilege granted to an\neligible incarcerated individual to leave the premises of an institution\nfor a period not exceeding fourteen hours in any day for the purpose of\nparticipating in an industrial training program, or for any matter\nnecessary to the furtherance of any such purpose.\n 9. "Temporary release program" means a "work release program," a\n"furlough program," a "community services program," an "industrial\ntraining leave," an "educational leave," or a "leave of absence."\n 10. "Extended bounds of confinement" means the area in which an\nincarcerated individual participating in a temporary release program may\ntravel, the routes he or she is permitted to use, the places he or she\nis authorized to visit, and the hours, days, or specially defined period\nduring which he or she is permitted to be absent from the premises of\nthe institution.\n 11. "Temporary release committee" means the body of persons, which may\ninclude members of the public, appointed pursuant to regulations\npromulgated by the commissioner to serve at the pleasure of the\ncommissioner for the purpose of formulating, modifying and revoking\ntemporary release programs at an institution.\n 12. "Superintendent" means the person in charge of an institution, by\nwhatever title he or she may be known.\n * NB Effective until September 1, 2027\n * § 851. Definitions. As used in this article the following terms have\nthe following meanings:\n 1. "Institution" means any institution under the jurisdiction of the\nstate department of corrections and community supervision.\n 2. "Eligible incarcerated individual" means: a person confined in an\ninstitution who is eligible for release on parole or who will become\neligible for release on parole or conditional release within two years.\nProvided, that a person under a determinate sentence as a second felony\ndrug offender for a class B felony offense defined in article two\nhundred twenty of the penal law, who was sentenced pursuant to section\n70.70 of such law, shall not be eligible to participate in a temporary\nrelease program until the time served under imprisonment for his or her\ndeterminate sentence, including any jail time credited pursuant to the\nprovisions of article seventy of the penal law, shall be at least\neighteen months. In the case of a person serving an indeterminate\nsentence of imprisonment imposed pursuant to the penal law in effect\nafter September one, nineteen hundred sixty-seven, for the purposes of\nthis article parole eligibility shall be upon the expiration of the\nminimum period of imprisonment fixed by the court or where the court has\nnot fixed any period, after service of the minimum period fixed by the\nstate board of parole. If an incarcerated individual is denied release\non parole, such incarcerated individual shall not be deemed an eligible\nincarcerated individual until he or she is within two years of his or\nher next scheduled appearance before the state parole board. In any case\nwhere an incarcerated individual is denied release on parole while\nparticipating in a temporary release program, the department shall\nreview the status of the incarcerated individual to determine if\ncontinued placement in the program is appropriate. No person convicted\nof any escape or absconding offense defined in article two hundred five\nof the penal law shall be eligible for temporary release. Nor shall any\nperson under sentence for any sex offense defined in article one hundred\nthirty of the penal law be eligible to participate in a community\nservices program as defined in subdivision five of this section.\nNotwithstanding the foregoing, no person who is an otherwise eligible\nincarcerated individual who is under sentence for a crime involving: (a)\ninfliction of serious physical injury upon another as defined in the\npenal law, (b) a sex offense involving forcible compulsion, or (c) any\nother offense involving the use or threatened use of a deadly weapon may\nparticipate in a temporary release program without the written approval\nof the commissioner. The commissioner shall promulgate regulations\ngiving direction to the temporary release committee at each institution\nin order to aid such committees in carrying out this mandate.\n The governor, by executive order, may exclude or limit the\nparticipation of any class of otherwise eligible incarcerated\nindividuals from participation in a temporary release program. Nothing\nin this paragraph shall be construed to affect either the validity of\nany executive order previously issued limiting the participation of\notherwise eligible incarcerated individuals in such program or the\nauthority of the commissioner to impose appropriate regulations limiting\nsuch participation.\n 3. "Work release program" means a program under which eligible\nincarcerated individuals may be granted the privilege of leaving the\npremises of an institution for a period not exceeding fourteen hours in\nany day for the purpose of on-the-job training or employment, or for any\nmatter necessary to the furtherance of any such purposes. No person\nshall be released into a work release program unless prior to release\nsuch person has a reasonable assurance of a job training program or\nemployment. If after release, such person ceases to be employed or\nceases to participate in the training program, the incarcerated\nindividual's privilege to participate in such work release program may\nbe revoked in accordance with rules and regulations promulgated by the\ncommissioner.\n 4. "Furlough program" means a program under which eligible\nincarcerated individuals may be granted the privilege of leaving the\npremises of an institution for a period not exceeding seven days for the\npurpose of seeking employment, maintaining family ties, solving family\nproblems, seeking post-release housing, attending a short-term\neducational or vocational training course, or for any matter necessary\nto the furtherance of any such purposes.\n 5. "Community services program" means a program under which eligible\nincarcerated individuals may be granted the privilege of leaving the\npremises of an institution for a period not exceeding fourteen hours in\nany day for the purpose of participation in religious services,\nvolunteer work, or athletic events, or for any matter necessary to the\nfurtherance of any such purposes.\n 6. "Leave of absence" means a privilege granted to an incarcerated\nindividual, who need not be an "eligible incarcerated individual," to\nleave the premises of an institution for the period of time necessary:\n (a) to visit his or her spouse, child, brother, sister, grandchild,\nparent, grandparent or ancestral aunt or uncle during his or her last\nillness if death appears to be imminent;\n (b) to attend the funeral of such individual;\n (c) to undergo surgery or to receive medical or dental treatment not\navailable in the correctional institution only if deemed absolutely\nnecessary to the health and well-being of the incarcerated individual\nand whose approval is granted by the commissioner or his or her\ndesignated representative.\n 7. "Educational leave" means a privilege granted to an eligible\nincarcerated individual to leave the premises of an institution for a\nperiod not exceeding fourteen hours in any day for the purpose of\neducation or vocational training, or for any matter necessary to the\nfurtherance of any such purposes.\n 8. "Industrial training leave" means a privilege granted to an\neligible incarcerated individual to leave the premises of an institution\nfor a period not exceeding fourteen hours in any day for the purpose of\nparticipating in an industrial training program, or for any matter\nnecessary to the furtherance of any such purpose.\n 9. "Temporary release program" means a "work release program," a\n"furlough program," a "community services program," an "industrial\ntraining leave," an "educational leave," or a "leave of absence."\n 10. "Extended bounds of confinement" means the area in which an\nincarcerated individual participating in a temporary release program may\ntravel, the routes he or she is permitted to use, the places he or she\nis authorized to visit, and the hours, days, or specially defined period\nduring which he or she is permitted to be absent from the premises of\nthe institution.\n 11. "Temporary release committee" means the body of persons, which may\ninclude members of the public, appointed pursuant to regulations\npromulgated by the commissioner to serve at the pleasure of the\ncommissioner for the purpose of formulating, modifying and revoking\ntemporary release programs at an institution.\n 12. "Superintendent" means the person in charge of an institution, by\nwhatever title he or she may be known.\n * NB Effective September 1, 2027 until the expiration of §42 of ch.\n60/1994, §10 of ch. 339/1972 and §3 of ch. 554/1986\n * § 851. Definitions. As used in this article the following terms have\nthe following meanings:\n 1. "Institution" means any institution under the jurisdiction of the\nstate department of corrections and community supervision.\n 2. "Eligible incarcerated individual" means a person confined in an\ninstitution where a work release program has been established who is\neligible for release on parole or who will become eligible for release\non parole within one year.\n 3. "Work release program" means a program under which eligible\nincarcerated individual may be granted the privilege of leaving the\npremises of an institution for the purpose of education, on-the-job\ntraining or employment.\n 4. "Extended bounds of confinement" means the area in which an\nincarcerated individual participating in a work release program may\ntravel, the routes he or she is permitted to use, the places he or she\nis authorized to visit, and the hours, not exceeding fourteen hours in\nany day, he or she is permitted to be absent from the premises of the\ninstitution.\n 5. "Work release committee" means the body of persons, which may\ninclude members of the public, appointed pursuant to regulations\npromulgated by the commissioner for the purpose of formulating,\nmodifying and revoking work release programs at an institution.\n 6. "Warden" means the person in charge of an institution, by whatever\ntitle he may be known.\n * NB Effective only upon the expiration of §42 of ch. 60/1994, §10 of\nch. 339/1972 and §3 of ch. 554/1986\n