NY Penal L § 70.40 (2021)
2021 New York Laws PEN - Penal Part 2 - Sentences Title E - Sentences Article 70 - Sentences of Imprisonment 70.40 - Release on Parole; Conditional Release; Presumptive Release.

§ 70.40 Release on parole; conditional release; presumptive release.   1. Indeterminate sentence.   * (a)  Release on parole shall be in the discretion of the state board of parole, and such person shall continue service of his or her sentence or sentences while on parole, in accordance  with  and  subject  to  the provisions of the executive law and the correction law.  (i)  A  person  who  is  serving  one  or  more than one indeterminate sentence of imprisonment may be paroled from the institution in which he or she is confined at any time after the expiration of  the  minimum  or the  aggregate  minimum  period  of  the sentence or sentences or, where applicable, the minimum or aggregate minimum period reduced by the merit time allowance granted pursuant to paragraph (d) of subdivision  one  of section eight hundred three of the correction law.  (ii) A person who is serving one or more than one determinate sentence of imprisonment shall be ineligible for discretionary release on parole.  (iii)  A  person  who  is  serving  one or more than one indeterminate sentence of imprisonment and one or more than one  determinate  sentence of imprisonment, which run concurrently may be paroled at any time after the   expiration   of   the   minimum  period  of  imprisonment  of  the indeterminate  sentence  or  sentences,  or  upon  the   expiration   of six-sevenths  of the term of imprisonment of the determinate sentence or sentences, whichever is later.  (iv) A person who is  serving  one  or  more  than  one  indeterminate sentence  of  imprisonment and one or more than one determinate sentence of imprisonment which run consecutively may be paroled at any time after the expiration of the sum of the minimum or aggregate minimum period  of the  indeterminate sentence or sentences and six-sevenths of the term or aggregate term of imprisonment of the determinate sentence or sentences.  (v) Notwithstanding any other subparagraph of this paragraph, a person may be paroled from the institution in which he or she  is  confined  at any  time on medical parole pursuant to section two hundred fifty-nine-r or section  two  hundred  fifty-nine-s  of  the  executive  law  or  for deportation  pursuant to paragraph (d) of subdivision two of section two hundred fifty-nine-i of  the  executive  law  or  after  the  successful completion   of  a  shock  incarceration  program  pursuant  to  article twenty-six-A of the correction law.   * NB Effective until September 1, 2023   * (a) (i) A person who is serving one or more than  one  indeterminate sentence of imprisonment may be paroled from the institution in which he or  she  is  confined at any time after the expiration of the minimum or the  aggregate  minimum  period  of  imprisonment  of  the  sentence  or sentences  or  after  the successful completion of a shock incarceration program, as defined in  article  twenty-six-A  of  the  correction  law, whichever is sooner. Release on parole shall be in the discretion of the state  board of parole, and such person shall continue service of his or her sentence or sentences  while  on  parole,  in  accordance  with  and subject to the provisions of the executive law and the correction law.  (ii)  A  person  who  is  serving  one  or more than one indeterminate sentence of imprisonment may be paroled from the institution in which he or she is confined at any time after the expiration of  the  minimum  or the aggregate minimum period of the sentence or sentences.   * NB Effective September 1, 2023   * (b)  A  person  who is serving one or more than one indeterminate or determinate sentence of imprisonment shall, if he or she so requests, be conditionally released from the  institution  in  which  he  or  she  is confined  when  the  total  good  behavior  time  allowed to him or her, pursuant to the provisions of  the  correction  law,  is  equal  to  the unserved  portion  of his or her term, maximum term or aggregate maximum  term; provided, however, that (i) in no event shall a person serving one or  more  indeterminate  sentence  of  imprisonment  and  one  or   more determinate   sentence   of   imprisonment  which  run  concurrently  be conditionally  released  until  serving  at  least  six-sevenths  of the determinate term of imprisonment which has the longest unexpired time to run and (ii) in no event shall a person be conditionally released  prior to  the  date  on  which such person is first eligible for discretionary parole release. The conditions of  release,  including  those  governing post-release  supervision,  shall be such as may be imposed by the state board of parole in accordance with the provisions of the executive law.   Every person so released shall be under the supervision of  the  state department  of  corrections and community supervision for a period equal to the unserved portion of the term,  maximum  term,  aggregate  maximum term, or period of post-release supervision.   * NB Effective until September 1, 2023   * (b)  A  person  who  is  serving  one or more than one indeterminate sentence  of  imprisonment  shall,  if  he  or  she  so   requests,   be conditionally  released  from  the  institution  in  which  he or she is confined when the total good  behavior  time  allowed  to  him  or  her, pursuant  to  the  provisions  of  the  correction  law, is equal to the unserved portion of his or her maximum or aggregate  maximum  term.  The conditions   of   release,   including   those   governing  post-release supervision, shall be such as may be  imposed  by  the  state  board  of parole in accordance with the provisions of the executive law.   Every  person  so  released  shall  be  under  the  supervision of the department of corrections and community supervision for a  period  equal to  the  unserved  portion  of  the  maximum, aggregate maximum term, or period of post-release supervision.   * NB Effective September 1, 2023   * (c) A person who is serving  one  or  more  than  one  indeterminate sentence  of  imprisonment  shall, if he or she so requests, be released from the  institution  in  which  he  or  she  is  confined  if  granted presumptive  release  pursuant  to  section  eight  hundred  six  of the correction law. The conditions of  release  shall  be  such  as  may  be imposed  by  the state board of parole in accordance with the provisions of the executive law. Every  person  so  released  shall  be  under  the supervision  of  the department of corrections and community supervision for a period equal to the unserved portion of  his  or  her  maximum  or aggregate maximum term unless discharged in accordance with law.   * NB Repealed September 1, 2023   2.  Definite  sentence.  A  person who is serving one or more than one definite sentence of imprisonment with  a  term  or  aggregate  term  in excess  of  ninety  days,  and  is eligible for release according to the criteria set forth in paragraphs (a), (b) and (c) of subdivision one  of section  two  hundred seventy-three of the correction law, may, if he or she so requests, be conditionally released from the institution in which he or she is confined at any time after service of sixty  days  of  that term,  exclusive  of  credits allowed under subdivisions four and six of section 70.30. In computing service of sixty days,  the  credit  allowed for  jail  time  under  subdivision  three  of  section  70.30  shall be calculated as time served. Conditional  release  from  such  institution shall  be  in the discretion of the parole board, or a local conditional release  commission  established  pursuant  to  article  twelve  of  the correction  law, provided, however that where such release is by a local conditional release commission, the person must be  serving  a  definite sentence  with  a term in excess of one hundred twenty days and may only be released after service of ninety days  of  such  term.  In  computing service  of  ninety  days,  the  credit  allowed  for  jail  time  under  subdivision three of section 70.30 of this article shall  be  calculated as  time  served.  A  conditional release granted under this subdivision shall be upon such conditions as may be imposed by the parole board,  in accordance  with  the  provisions  of  the  executive  law,  or  a local conditional release commission in accordance with the provisions of  the correction law.   Conditional  release  shall  interrupt  service  of  the  sentence  or sentences and the remaining portion of the term or aggregate term  shall be  held  in  abeyance.  Every  person  so  released  shall be under the supervision of the department of corrections and  community  supervision or  a  local  probation  department  and  in  the  custody  of the local conditional release commission in accordance with article twelve of  the correction law, for a period of one year. The local probation department shall  cause complete records to be kept of every person released to its supervision pursuant to this subdivision. The department of  corrections and community supervision may supply to a local probation department and the local conditional release commission custody information and records maintained  on  persons  under  the  supervision of such local probation department   to   aid   in   the   performance   of   its    supervision responsibilities.  Compliance  with the conditions of release during the period of supervision shall satisfy the portion of the term or aggregate term that has been held in abeyance.   * 3. Delinquency. (a) When a person is alleged to  have  violated  the terms of presumptive release or parole and the state board of parole has declared  such  person  to be delinquent, the declaration of delinquency shall interrupt the person's sentence as of the date of the  delinquency and  such  interruption shall continue until the return of the person to an institution  under  the  jurisdiction  of  the  state  department  of corrections and community supervision.  (b)  When a person is alleged to have violated the terms of his or her conditional release or post-release supervision and  has  been  declared delinquent  by  the  parole  board  or  the  local  conditional  release commission having supervision  over  such  person,  the  declaration  of delinquency  shall  interrupt  the period of supervision or post-release supervision as of  the  date  of  the  delinquency.  For  a  conditional release, such interruption shall continue until the return of the person to  the  institution  from which he or she was released or, if he or she was released from an institution under the  jurisdiction  of  the  state department  of  corrections and community supervision, to an institution under the jurisdiction of that department. Upon such return, the  person shall  resume  service  of his or her sentence. For a person released to post-release supervision, the provisions of section 70.45 shall apply.  (c) Any time spent by a person in custody from the time of delinquency to the time service of the sentence resumes shall  be  credited  against the term or maximum term of the interrupted sentence, provided:  (i) that such custody was due to an arrest or surrender based upon the delinquency; or  (ii)  that  such  custody arose from an arrest on another charge which culminated in a dismissal or an acquittal; or  (iii) that such custody arose from an arrest on another  charge  which culminated  in  a  conviction,  but  in  such  case,  if  a  sentence of imprisonment was imposed, the credit allowed shall  be  limited  to  the portion  of  the  time spent in custody that exceeds the period, term or maximum term of imprisonment imposed for such conviction.   * NB Effective until March 1, 2022   * 3. Delinquency. (a) When a person is alleged to  have  violated  the terms  of  presumptive  release  or  parole by absconding, and the state board  of  parole  has  declared  such  person  to  be  delinquent,  the  declaration  of  delinquency shall interrupt the person's sentence as of the date of the delinquency and such interruption shall  continue  until the  releasee's  appearance  in response to a notice of violation or the date of the execution of a warrant, whichever is earlier.  (b)  When a person is alleged to have violated the terms of his or her conditional release or post-release supervision by  absconding  and  has been  declared  delinquent  by the parole board or the local conditional release commission having supervision over such person, the  declaration of delinquency shall interrupt the period of supervision or post-release supervision  as  of  the  date  of  the  delinquency.  For a conditional release,  such  interruption  shall  continue   until   the   releasee's appearance  in  response  to  a  notice  of violation or the date of the execution of a warrant, whichever is earlier. For a person  released  to post-release  supervision,  the  provisions  of  section  70.45  of this article shall apply.  (c) Any time spent by a person in custody from the time  of  execution of  a  warrant pursuant to paragraph (a) of subdivision three of section two hundred fifty-nine-i of the executive law to the time service of the sentence resumes shall be credited against the term or maximum  term  of the interrupted sentence.   * NB Effective March 1, 2022   * 4.  Earned  time  credits.  (a)  Any  person  subject  to  community supervision shall be awarded earned time  credits.  The  calculation  of earned  time  credit  periods shall begin on the releasee's first day of community supervision and shall be awarded after each  completed  thirty day  period in compliance with the terms of their community supervision. Any such awarded earned time  credits  shall  be  applied  against  such person's unserved portion of the maximum term, aggregate maximum term or period  of  post-release  supervision  for any current sentence. Persons subject to a sentence with  a  maximum  term  of  life  imprisonment  or lifetime  supervision  shall  not  be  eligible  to  receive earned time credits under this section.  (b) After a  person  has  begun  a  period  of  community  supervision pursuant  to this section and section 70.45 of this article, such period of community supervision shall be  reduced  by  thirty  days  for  every thirty days that such person does not violate a condition of and remains in  compliance  with all conditions of his or her community supervision, provided, however, that the person is not subject to any sentence with a maximum term of life imprisonment or lifetime supervision. When a person is subject to  more  than  one  period  of  community  supervision,  the reduction  authorized in this subdivision shall be applied to every such period of parole or conditional release to which the person is subject.  (c) Retroactive earned time  credits  shall  be  awarded  to  eligible persons  subject  to  community supervision at the time this legislation becomes  effective,  provided,  however,  that  the  maximum   allowable retroactive  earned time credit awarded shall not exceed a period of two years.  Retroactive earned time credits shall  not  be  awarded  to  any releasee  serving  a  term  of  reincarceration  for  a sustained parole violation at the time of the effective date of the chapter of  the  laws of  two  thousand  twenty-one  that  added  this  subdivision  until the releasee is returned to community  supervision.  Persons  subject  to  a sentence   with   a  maximum  term  of  life  imprisonment  or  lifetime supervision shall not be eligible to  receive  retroactive  earned  time credits under this section.  (d)  If  a releasee's current period of community supervision has been interrupted by a period of reincarceration prior to the  effective  date of  the  chapter  of the laws of two thousand twenty-one that added this subdivision, no earned time credits shall be awarded for such period  of  reincarceration.  The department shall calculate retroactive earned time credits within one year after the bill shall have become law  and  shall prioritize  earned time credit calculations for releasees whose terms of community  supervision  are  due  to  terminate  before  June first, two thousand twenty-two.  (e) Earned time credits may be withheld or revoked for the  thirty-day period  commencing from the date of violative behavior as sustained at a final revocation hearing, or for the  period  during  which  a  releasee absconded  from supervision, as sustained at a final revocation hearing. Earned time credits may not be earned and shall be suspended: (i) during a period of reincarceration imposed for any  sustained  violation;  (ii) during  the  period  in  which  the  individual  has absconded; or (iii) pending the outcome of a preliminary or final revocation hearing. If, at the preliminary hearing, there is no finding by a preponderance  of  the evidence  of  a  violation  of  a  condition  of release in an important respect or a violation is not sustained at the final revocation hearing, then the individual shall be deemed to have been in compliance with  the terms  of  release  and  shall  be  awarded earned time credits from the period in which the accrual was suspended. If a violation is  sustained, the  calculation of an earned time credit period shall recommence on the thirty-first day after the date of the violative  behavior  or,  if  the sustained violation or conviction resulted in a term of reincarceration, on  the day the releasee is restored to community supervision, whichever is later.  (f) At least every one hundred eighty days from the first  date  of  a person's  release to community supervision, and every one hundred eighty days thereafter, the department of corrections and community supervision shall provide each person on community supervision a  report  indicating the  total  earned  time credits received, the total earned time credits received in the prior one hundred eighty days,  the  total  earned  time credits  withheld,  the  total earned time credits withheld in the prior one hundred eighty days, the total  amount  of  time  reduced  from  the person's  sentence,  and the person's earliest release date based on the amount of earned time credits received. The department shall provide the report in written or electronic form.   * NB Effective March 1, 2022