N.Y. PEN Law § 70.40 — New York Code / Act PEN / Part 2 / Title E / Article 70 / Section 70.40
Release on parole; conditional release; presumptive release
Status: in_force

§ 70.40 Release on parole; conditional release; presumptive release.\n  1. Indeterminate sentence.\n  * (a) Release on parole shall be in the discretion of the state board\nof parole, and such person shall continue service of his or her sentence\nor sentences while on parole, in accordance with and subject to the\nprovisions of the executive law and the correction law.\n  (i) A person who is serving one or more than one indeterminate\nsentence of imprisonment may be paroled from the institution in which he\nor she is confined at any time after the expiration of the minimum or\nthe aggregate minimum period of the sentence or sentences or, where\napplicable, the minimum or aggregate minimum period reduced by the merit\ntime allowance granted pursuant to paragraph (d) of subdivision one of\nsection eight hundred three of the correction law.\n  (ii) A person who is serving one or more than one determinate sentence\nof imprisonment shall be ineligible for discretionary release on parole.\n  (iii) A person who is serving one or more than one indeterminate\nsentence of imprisonment and one or more than one determinate sentence\nof imprisonment, which run concurrently may be paroled at any time after\nthe expiration of the minimum period of imprisonment of the\nindeterminate sentence or sentences, or upon the expiration of\nsix-sevenths of the term of imprisonment of the determinate sentence or\nsentences, whichever is later.\n  (iv) A person who is serving one or more than one indeterminate\nsentence of imprisonment and one or more than one determinate sentence\nof imprisonment which run consecutively may be paroled at any time after\nthe expiration of the sum of the minimum or aggregate minimum period of\nthe indeterminate sentence or sentences and six-sevenths of the term or\naggregate term of imprisonment of the determinate sentence or sentences.\n  (v) Notwithstanding any other subparagraph of this paragraph, a person\nmay be paroled from the institution in which he or she is confined at\nany time on medical parole pursuant to section two hundred fifty-nine-r\nor section two hundred fifty-nine-s of the executive law or for\ndeportation pursuant to paragraph (d) of subdivision two of section two\nhundred fifty-nine-i of the executive law or after the successful\ncompletion of a shock incarceration program pursuant to article\ntwenty-six-A of the correction law.\n  * NB Effective until September 1, 2027\n  * (a) (i) A person who is serving one or more than one indeterminate\nsentence of imprisonment may be paroled from the institution in which he\nor she is confined at any time after the expiration of the minimum or\nthe aggregate minimum period of imprisonment of the sentence or\nsentences or after the successful completion of a shock incarceration\nprogram, as defined in article twenty-six-A of the correction law,\nwhichever is sooner. Release on parole shall be in the discretion of the\nstate board of parole, and such person shall continue service of his or\nher sentence or sentences while on parole, in accordance with and\nsubject to the provisions of the executive law and the correction law.\n  (ii) A person who is serving one or more than one indeterminate\nsentence of imprisonment may be paroled from the institution in which he\nor she is confined at any time after the expiration of the minimum or\nthe aggregate minimum period of the sentence or sentences.\n  * NB Effective September 1, 2027\n  * (b) A person who is serving one or more than one indeterminate or\ndeterminate sentence of imprisonment shall, if he or she so requests, be\nconditionally released from the institution in which he or she is\nconfined when the total good behavior time allowed to him or her,\npursuant to the provisions of the correction law, is equal to the\nunserved portion of his or her term, maximum term or aggregate maximum\nterm; provided, however, that (i) in no event shall a person serving one\nor more indeterminate sentence of imprisonment and one or more\ndeterminate sentence of imprisonment which run concurrently be\nconditionally released until serving at least six-sevenths of the\ndeterminate term of imprisonment which has the longest unexpired time to\nrun and (ii) in no event shall a person be conditionally released prior\nto the date on which such person is first eligible for discretionary\nparole release. The conditions of release, including those governing\npost-release supervision, shall be such as may be imposed by the state\nboard of parole in accordance with the provisions of the executive law.\n  Every person so released shall be under the supervision of the state\ndepartment of corrections and community supervision for a period equal\nto the unserved portion of the term, maximum term, aggregate maximum\nterm, or period of post-release supervision.\n  * NB Effective until September 1, 2027\n  * (b) A person who is serving one or more than one indeterminate\nsentence of imprisonment shall, if he or she so requests, be\nconditionally released from the institution in which he or she is\nconfined when the total good behavior time allowed to him or her,\npursuant to the provisions of the correction law, is equal to the\nunserved portion of his or her maximum or aggregate maximum term. The\nconditions of release, including those governing post-release\nsupervision, shall be such as may be imposed by the state board of\nparole in accordance with the provisions of the executive law.\n  Every person so released shall be under the supervision of the\ndepartment of corrections and community supervision for a period equal\nto the unserved portion of the maximum, aggregate maximum term, or\nperiod of post-release supervision.\n  * NB Effective September 1, 2027\n  * (c) A person who is serving one or more than one indeterminate\nsentence of imprisonment shall, if he or she so requests, be released\nfrom the institution in which he or she is confined if granted\npresumptive release pursuant to section eight hundred six of the\ncorrection law. The conditions of release shall be such as may be\nimposed by the state board of parole in accordance with the provisions\nof the executive law. Every person so released shall be under the\nsupervision of the department of corrections and community supervision\nfor a period equal to the unserved portion of his or her maximum or\naggregate maximum term unless discharged in accordance with law.\n  * NB Repealed September 1, 2027\n  2. Definite sentence. A person who is serving one or more than one\ndefinite sentence of imprisonment with a term or aggregate term in\nexcess of ninety days, and is eligible for release according to the\ncriteria set forth in paragraphs (a), (b) and (c) of subdivision one of\nsection two hundred seventy-three of the correction law, may, if he or\nshe so requests, be conditionally released from the institution in which\nhe or she is confined at any time after service of sixty days of that\nterm, exclusive of credits allowed under subdivisions four and six of\nsection 70.30. In computing service of sixty days, the credit allowed\nfor jail time under subdivision three of section 70.30 shall be\ncalculated as time served. Conditional release from such institution\nshall be in the discretion of the parole board, or a local conditional\nrelease commission established pursuant to article twelve of the\ncorrection law, provided, however that where such release is by a local\nconditional release commission, the person must be serving a definite\nsentence with a term in excess of one hundred twenty days and may only\nbe released after service of ninety days of such term. In computing\nservice of ninety days, the credit allowed for jail time under\nsubdivision three of section 70.30 of this article shall be calculated\nas time served. A conditional release granted under this subdivision\nshall be upon such conditions as may be imposed by the parole board, in\naccordance with the provisions of the executive law, or a local\nconditional release commission in accordance with the provisions of the\ncorrection law.\n  Conditional release shall interrupt service of the sentence or\nsentences and the remaining portion of the term or aggregate term shall\nbe held in abeyance. Every person so released shall be under the\nsupervision of the department of corrections and community supervision\nor a local probation department and in the custody of the local\nconditional release commission in accordance with article twelve of the\ncorrection law, for a period of one year. The local probation department\nshall cause complete records to be kept of every person released to its\nsupervision pursuant to this subdivision. The department of corrections\nand community supervision may supply to a local probation department and\nthe local conditional release commission custody information and records\nmaintained on persons under the supervision of such local probation\ndepartment to aid in the performance of its supervision\nresponsibilities. Compliance with the conditions of release during the\nperiod of supervision shall satisfy the portion of the term or aggregate\nterm that has been held in abeyance.\n  3. Delinquency. (a) When a person is alleged to have violated the\nterms of presumptive release or parole by absconding, and the state\nboard of parole has declared such person to be delinquent, the\ndeclaration of delinquency shall interrupt the person's sentence as of\nthe date of the delinquency and such interruption shall continue until\nthe releasee's appearance in response to a notice of violation or the\ndate of the execution of a warrant, whichever is earlier.\n  (b) When a person is alleged to have violated the terms of his or her\nconditional release or post-release supervision by absconding and has\nbeen declared delinquent by the parole board or the local conditional\nrelease commission having supervision over such person, the declaration\nof delinquency shall interrupt the period of supervision or post-release\nsupervision as of the date of the delinquency. For a conditional\nrelease, such interruption shall continue until the releasee's\nappearance in response to a notice of violation or the date of the\nexecution of a warrant, whichever is earlier. For a person released to\npost-release supervision, the provisions of section 70.45 of this\narticle shall apply.\n  (c) Any time spent by a person in custody from the time of execution\nof a warrant pursuant to paragraph (a) of subdivision three of section\ntwo hundred fifty-nine-i of the executive law to the time service of the\nsentence resumes shall be credited against the term or maximum term of\nthe interrupted sentence.\n  4. Earned time credits. (a) Any person subject to community\nsupervision shall be awarded earned time credits. The calculation of\nearned time credit periods shall begin on the releasee's first day of\ncommunity supervision and shall be awarded after each completed thirty\nday period in compliance with the terms of their community supervision.\nAny such awarded earned time credits shall be applied against such\nperson's unserved portion of the maximum term, aggregate maximum term or\nperiod of post-release supervision for any current sentence. Persons\nsubject to a sentence with a maximum term of life imprisonment or\nlifetime supervision shall not be eligible to receive earned time\ncredits under this section.\n  (b) After a person has begun a period of community supervision\npursuant to this section and section 70.45 of this article, such period\nof community supervision shall be reduced by thirty days for every\nthirty days that such person does not violate a condition of and remains\nin compliance with all conditions of his or her community supervision,\nprovided, however, that the person is not subject to any sentence with a\nmaximum term of life imprisonment or lifetime supervision. When a person\nis subject to more than one period of community supervision, the\nreduction authorized in this subdivision shall be applied to every such\nperiod of parole or conditional release to which the person is subject.\n  (c) Retroactive earned time credits shall be awarded to eligible\npersons subject to community supervision at the time this legislation\nbecomes effective, provided, however, that the maximum allowable\nretroactive earned time credit awarded shall not exceed a period of two\nyears.  Retroactive earned time credits shall not be awarded to any\nreleasee serving a term of reincarceration for a sustained parole\nviolation at the time of the effective date of the chapter of the laws\nof two thousand twenty-one that added this subdivision until the\nreleasee is returned to community supervision. Persons subject to a\nsentence with a maximum term of life imprisonment or lifetime\nsupervision shall not be eligible to receive retroactive earned time\ncredits under this section.\n  (d) If a releasee's current period of community supervision has been\ninterrupted by a period of reincarceration prior to the effective date\nof the chapter of the laws of two thousand twenty-one that added this\nsubdivision, no earned time credits shall be awarded for such period of\nreincarceration. The department shall calculate retroactive earned time\ncredits within one year after the bill shall have become law and shall\nprioritize earned time credit calculations for releasees whose terms of\ncommunity supervision are due to terminate before June first, two\nthousand twenty-two.\n  (e) Earned time credits may be withheld or revoked for the thirty-day\nperiod commencing from the date of violative behavior as sustained at a\nfinal revocation hearing, or for the period during which a releasee\nabsconded from supervision, as sustained at a final revocation hearing.\nEarned time credits may not be earned and shall be suspended: (i) during\na period of reincarceration imposed for any sustained violation; (ii)\nduring the period in which the individual has absconded; or (iii)\npending the outcome of a preliminary or final revocation hearing. If, at\nthe preliminary hearing, there is no finding by a preponderance of the\nevidence of a violation of a condition of release in an important\nrespect or a violation is not sustained at the final revocation hearing,\nthen the individual shall be deemed to have been in compliance with the\nterms of release and shall be awarded earned time credits from the\nperiod in which the accrual was suspended. If a violation is sustained,\nthe calculation of an earned time credit period shall recommence on the\nthirty-first day after the date of the violative behavior or, if the\nsustained violation or conviction resulted in a term of reincarceration,\non the day the releasee is restored to community supervision, whichever\nis later.\n  (f) At least every one hundred eighty days from the first date of a\nperson's release to community supervision, and every one hundred eighty\ndays thereafter, the department of corrections and community supervision\nshall provide each person on community supervision a report indicating\nthe total earned time credits received, the total earned time credits\nreceived in the prior one hundred eighty days, the total earned time\ncredits withheld, the total earned time credits withheld in the prior\none hundred eighty days, the total amount of time reduced from the\nperson's sentence, and the person's earliest release date based on the\namount of earned time credits received. The department shall provide the\nreport in written or electronic form.\n