NY Corr L § 803 (2021)
2021 New York Laws COR - Correction Article 24 - Provisions Applicable to Sentences Imposed Under the the Revised Penal Plan 803 - Good Behavior Allowances Against Indeterminate and Determinate Sentences.

* §   803.   Good   behavior   allowances  against  indeterminate  and determinate sentences. 1. (a) Every person confined in an institution of the department or a facility in the department of mental hygiene serving an indeterminate or  determinate  sentence  of  imprisonment,  except  a person  serving a sentence with a maximum term of life imprisonment, may receive time allowance against the term or maximum term of  his  or  her sentence  imposed  by the court. Such allowances may be granted for good behavior and efficient and willing performance  of  duties  assigned  or progress  and  achievement  in an assigned treatment program, and may be withheld, forfeited or canceled in whole or in part  for  bad  behavior, violation  of  institutional rules or failure to perform properly in the duties or program assigned.  (b) A person serving an indeterminate  sentence  of  imprisonment  may receive  time  allowance against the maximum term of his or her sentence not to exceed one-third of the maximum term imposed by the court.  (c) A person  serving  a  determinate  sentence  of  imprisonment  may receive  time  allowance  against the term of his or her sentence not to exceed one-seventh of the term imposed by the court.  (d) (i) Except as provided in subparagraph  (ii)  of  this  paragraph, every  person  under  the  custody  of  the  department or confined in a facility in the department of mental hygiene  serving  an  indeterminate sentence  of imprisonment with a minimum period of one year or more or a determinate sentence  of  imprisonment  of  one  year  or  more  imposed pursuant  to  section  70.70 or 70.71 of the penal law, may earn a merit time allowance.  (ii) Such merit time allowance shall not be available  to  any  person serving  an indeterminate sentence authorized for an A-I felony offense, other than an A-I felony offense defined in article two  hundred  twenty of  the  penal law, or any sentence imposed for a violent felony offense as defined in section 70.02 of the penal law, manslaughter in the second degree,  vehicular  manslaughter  in  the   second   degree,   vehicular manslaughter  in  the  first  degree,  criminally negligent homicide, an offense defined in article one hundred thirty of the penal law,  incest, or  an  offense  defined in article two hundred sixty-three of the penal law,  or  aggravated  harassment  of  an  employee  by  an  incarcerated individual.  (iii)  The  merit  time allowance credit against the minimum period of the indeterminate sentence shall be  one-sixth  of  the  minimum  period imposed  by  the court except that such credit shall be one-third of the minimum period imposed by the court for an A-I felony offense defined in article two hundred twenty of the penal law.  In  the  case  of  such  a determinate   sentence,   in  addition  to  the  time  allowance  credit authorized  by  paragraph  (c)  of  this  subdivision,  the  merit  time allowance credited against the term of the determinate sentence pursuant to this paragraph shall be one-seventh of the term imposed by the court.  (iv)  Such  merit  time  allowance may be granted when an incarcerated individual successfully participates in the work and  treatment  program assigned pursuant to section eight hundred five of this article and when such  incarcerated  individual obtains a general equivalency diploma, an alcohol and substance abuse treatment certificate,  a  vocational  trade certificate  following at least six months of vocational programming, at least eighteen credits in a program registered by  the  state  education department  from  a  degree-granting  higher  education  institution  or performs at least four hundred hours of service as part of  a  community work crew.   Such   allowance  shall  be  withheld  for  any  serious  disciplinary infraction or upon a judicial determination that the  person,  while  an incarcerated   individual,   commenced  or  continued  a  civil  action,  proceeding or claim that  was  found  to  be  frivolous  as  defined  in subdivision  (c)  of section eight thousand three hundred three-a of the civil practice law and rules, or an order of a federal court pursuant to rule 11 of the federal rules of civil procedure imposing sanctions in an action  commenced by a person, while an incarcerated individual, against a state agency, officer or employee.  (v) The provisions of this paragraph shall apply to persons in custody serving  an  indeterminate  sentence  on  the  effective  date  of  this paragraph  as  well as to persons sentenced to an indeterminate sentence on and after the effective date of this paragraph and prior to September first, two thousand five and  to  persons  sentenced  to  a  determinate sentence  prior  to September first, two thousand eleven for a felony as defined in article two hundred twenty or two hundred twenty-one  of  the penal law.   2.  If  a  person  is  serving  more than one sentence, the authorized allowances may be granted separately against the term or maximum term of each sentence or, where consecutive sentences are involved, against  the aggregate maximum term. Such allowances shall be calculated as follows:  (a)  A  person  serving  two or more indeterminate sentences which run concurrently may receive time allowance not to exceed one-third  of  the indeterminate sentence which has the longest unexpired time to run.  (b)  A  person  serving  two or more indeterminate sentences which run consecutively may receive time allowance not to exceed one-third of  the aggregate maximum term.  (c)  A  person  serving  two  or  more determinate sentences which run concurrently may receive time allowance not to exceed one-seventh of the determinate sentence which has the longest unexpired time to run.  (d) A person serving two  or  more  determinate  sentences  which  run consecutively  may  receive  time allowance not to exceed one-seventh of the aggregate maximum term.  (e) A person serving one or more indeterminate  sentence  and  one  or more  determinate  sentence  which  run  concurrently  may  receive time allowance not to exceed one-third of the  indeterminate  sentence  which has  the longest unexpired term to run or one-seventh of the determinate sentence  which  has  the  longest  unexpired  time  to  run,  whichever allowance is greater.  (f)  A  person  serving  one or more indeterminate sentence and one or more determinate sentence  which  run  consecutively  may  receive  time allowance not to exceed the sum of one-third of the maximum or aggregate maximum  of  the  indeterminate sentence or sentences and one-seventh of the term or aggregate maximum of the determinate sentence or sentences.   2-a. If a person is serving more than  one  sentence,  the  authorized merit  time  allowances  may  be granted against the period or aggregate minimum period of the indeterminate sentence or  sentences,  or  against the  term or aggregate term of the determinate sentence or sentences, or where consecutive determinate and indeterminate sentences are  involved, against   the   aggregate  minimum  period  as  calculated  pursuant  to subparagraph (iv) of paragraph (a) of subdivision one of  section  70.40 of the penal law. Such allowances shall be calculated as follows:  (a)  A  person  serving  two or more indeterminate sentences which run concurrently may receive a merit time allowance not to exceed  one-sixth of  the  minimum  period  of  the  indeterminate sentence imposed for an offense other than an A-I felony offense defined in article two  hundred twenty  of  the  penal  law,  or  one-third of the minimum period of the indeterminate sentence imposed for an  A-I  felony  offense  defined  in article two hundred twenty of the penal law, whichever allowance results in the longest unexpired time to run.  (b)  A  person  serving  two or more indeterminate sentences which run consecutively may receive a merit  time  allowance  not  to  exceed  the amount  of  one-third  of the minimum or aggregate minimum period of the sentences imposed for an A-I  felony  offense  defined  in  article  two hundred  twenty  of  the  penal  law,  plus  one-sixth of the minimum or aggregate minimum period of the sentences imposed for an  offense  other than such A-I felony offense.  (c)  A person serving two or more determinate sentences for an offense defined in article two hundred twenty or two hundred twenty-one  of  the penal  law which run concurrently may receive a merit time allowance not to exceed one-seventh of the term of the determinate sentence which  has the longest unexpired time to run.  (d)  A person serving two or more determinate sentences for an offense defined in article two hundred twenty or two hundred twenty-one  of  the penal law which run consecutively may receive a merit time allowance not to  exceed  one-seventh  of  the  aggregate  term  of  such  determinate sentences.  (e) A person serving one or more indeterminate sentences  and  one  or more determinate sentences for an offense defined in article two hundred twenty or two hundred twenty-one of the penal law which run concurrently may  receive  a  merit  time  allowance  not  to exceed one-sixth of the minimum period of the indeterminate  sentence  imposed  for  an  offense other  than  an A-I felony offense defined in article two hundred twenty of the penal law, one-third of the minimum period of  the  indeterminate sentence  imposed  for  an  A-I  felony  offense  defined in article two hundred twenty of the penal law, or  one-seventh  of  the  term  of  the determinate   sentence,  whichever  allowance  results  in  the  largest unexpired time to run.  (f) A person serving one or more indeterminate sentences  and  one  or more  determinate  sentences which run consecutively may receive a merit time allowance not to exceed the sum of  one-sixth  of  the  minimum  or aggregate  minimum  period  of  the  indeterminate sentence or sentences imposed for an offense other than  an  A-I  felony  offense  defined  in article two hundred twenty of the penal law, one-third of the minimum or aggregate  minimum  period  of  the  indeterminate sentence or sentences imposed for an A-I felony offense defined in article two hundred  twenty of  the  penal  law and one-seventh of the term or aggregate term of the determinate sentence or sentences.  (g) The provisions of this  subdivision  shall  apply  to  persons  in custody  serving an indeterminate sentence on the effective date of this subdivision as well as to persons sentenced to an indeterminate sentence on and after the  effective  date  of  this  subdivision  and  prior  to September  first,  two  thousand  five  and  to  persons  sentenced to a determinate sentence prior to September first, two thousand eleven for a felony  as  defined  in  article  two  hundred  twenty  or  two  hundred twenty-one of the penal law.   ** 2-b.  Notwithstanding  the  foregoing,  if a person is serving more than one indeterminate sentence, at least one of which is imposed for  a class  A-I  felony  offense defined in article two hundred twenty of the penal law, the authorized  merit  time  allowance  granted  pursuant  to paragraph  (d) of subdivision one of this section shall be calculated as follows:  (a) In the event  a  person  is  serving  two  or  more  indeterminate sentences  with  different  minimum  periods which run concurrently, the merit time allowance shall be based upon the sentence with  the  longest unexpired  minimum  period.  If  the sentence with the longest unexpired minimum period was imposed for a class A-I felony, the merit time credit shall be one-third of such sentence's minimum period; if  such  sentence  was  imposed  for  an  offense other than a class A-I felony, such merit time credit shall  be  one-sixth  of  such  sentence's  minimum  period. Provided, however, that where the minimum period of any other concurrent indeterminate  sentence is greater than such reduced minimum period, the minimum period of such other  concurrent  indeterminate  sentence  shall also  be  reduced but only to the extent that the minimum period of such other concurrent sentence, as  so  reduced,  is  equal  to  the  reduced minimum  period  of  such  sentence  with  the longest unexpired minimum period to run.  (b) A person serving two or more indeterminate sentences with the same minimum periods which run concurrently, and no concurrent  indeterminate sentence  with any greater minimum period, shall have the minimum period of each such sentence reduced in the amount of one-third of such minimum period if all such sentences were imposed for a class A-I felony.  (c) A person serving two or  more  indeterminate  sentences  that  run consecutively  shall have the aggregate minimum period of such sentences reduced in the amount of one-third of such aggregate minimum  period  of the  sentences  imposed  for  a class A-I felony, plus one-sixth of such aggregate minimum period of the sentences imposed for an  offense  other than a class A-I felony.   ** NB Repealed September 1, 2023   3.  The  commissioner  of  corrections and community supervision shall promulgate  rules  and  regulations  for  the   granting,   withholding, forfeiture,  cancellation  and  restoration  of allowances authorized by this section in accordance with  the  criteria  herein  specified.  Such rules and regulations shall include provisions designating the person or committee   in   each   correctional   institution   delegated  to  make discretionary determinations with respect to the allowances,  the  books and  records to be kept, and a procedure for review of the institutional determinations by the commissioner.   4. No person shall have the right to demand or require the  allowances authorized  by  this  section.  The  decision  of  the  commissioner  of corrections and community supervision as to the  granting,  withholding, forfeiture,  cancellation  or  restoration  of  such allowances shall be final and shall not be reviewable if made in accordance with law.   5.  Time  allowances  granted  prior  to  any  release  to   community supervision shall be forfeited and shall not be restored if the released person is returned to an institution under the jurisdiction of the state department  of  corrections  and  community supervision for violation of community supervision or by reason of a conviction for a crime committed while on community  supervision.  A  person  who  is  so  returned  may, however,  subsequently  receive  time  allowances  against the remaining portion of his or her term,  maximum  term  or  aggregate  maximum  term pursuant  to  this section and provided such remaining portion of his or her term, maximum term, or aggregate maximum term is more than one year.   6. Upon commencement of an indeterminate or a determinate sentence the provisions of this section shall be furnished to the person serving  the sentence  and  the  meaning of same shall be fully explained to him by a person designated by the commissioner to perform such duty.   * NB Effective until September 1, 2023   * § 803. Good behavior allowances against indeterminate sentences.  1. (a)  Every  person  confined  in  an  institution of the department or a facility in the department of mental hygiene  serving  an  indeterminate sentence  of  imprisonment,  except  a  person serving a sentence with a maximum term of life imprisonment, may receive  time  allowance  against the  maximum  term  or  period  of  his  sentence  not  to exceed in the aggregate one-third of the term or period imposed  by  the  court.  Such allowances  may  be  granted for good behavior and efficient and willing  performance of  duties  assigned  or  progress  and  achievement  in  an assigned  treatment  program, and may be withheld, forfeited or canceled in whole or in part for bad behavior, violation of  institutional  rules or failure to perform properly in the duties or program assigned.  (d)  (i)  Except  as  provided in subparagraph (ii) of this paragraph, every person under the custody  of  the  department  or  confined  in  a facility  in  the  department of mental hygiene serving an indeterminate sentence of imprisonment with a minimum period of one year or more or  a determinate  sentence  of  imprisonment  of  one  year  or  more imposed pursuant to section 70.70 or 70.71 of the penal law, may  earn  a  merit time allowance.  (ii)  Such  merit  time allowance shall not be available to any person serving an indeterminate sentence authorized for an A-I felony  offense, other  than  an A-I felony offense defined in article two hundred twenty of the penal law, or any sentence imposed for a violent  felony  offense as defined in section 70.02 of the penal law, manslaughter in the second degree,   vehicular   manslaughter   in  the  second  degree,  vehicular manslaughter in the first  degree,  criminally  negligent  homicide,  an offense  defined in article one hundred thirty of the penal law, incest, or an offense defined in article two hundred sixty-three  of  the  penal law,  or  aggravated  harassment  of  an  employee  by  an  incarcerated individual.  (iii) The merit time allowance credit against the  minimum  period  of the  indeterminate  sentence  shall  be  one-sixth of the minimum period imposed by the court except that such credit shall be one-third  of  the minimum period imposed by the court for an A-I felony offense defined in article  two  hundred  twenty  of  the  penal law. In the case of such a determinate  sentence,  in  addition  to  the  time   allowance   credit authorized  by  paragraph  (c)  of  this  subdivision,  the  merit  time allowance credited against the term of the determinate sentence pursuant to this paragraph shall be one-seventh of the term imposed by the court.  (iv) Such merit time allowance may be  granted  when  an  incarcerated individual  successfully  participates in the work and treatment program assigned pursuant to section eight hundred five of this article and when such incarcerated individual obtains a general equivalency  diploma,  an alcohol  and  substance  abuse treatment certificate, a vocational trade certificate following at least six months of vocational programming,  at least  eighteen  credits  in a program registered by the state education department  from  a  degree-granting  higher  education  institution  or performs  at  least four hundred hours of service as part of a community work crew.   Such  allowance  shall  be  withheld  for  any  serious   disciplinary infraction  or  upon  a judicial determination that the person, while an incarcerated  individual,  commenced  or  continued  a   civil   action, proceeding  or  claim  that  was  found  to  be  frivolous as defined in subdivision (c) of section eight thousand three hundred three-a  of  the civil practice law and rules, or an order of a federal court pursuant to rule 11 of the federal rules of civil procedure imposing sanctions in an action  commenced by a person, while an incarcerated individual, against a state agency, officer or employee.  (v) The provisions of this paragraph shall apply to persons in custody serving  an  indeterminate  sentence  on  the  effective  date  of  this paragraph  as  well as to persons sentenced to an indeterminate sentence on and after the effective date of this paragraph and prior to September first, two thousand five and  to  persons  sentenced  to  a  determinate sentence  prior  to September first, two thousand eleven for a felony as defined in article two hundred twenty or two hundred twenty-one  of  the penal law.    1-a.  A  person  serving  a  determinate  sentence imposed pursuant to section 70.70 or 70.71 of the penal law may  receive  a  time  allowance against the term of his or her sentence not to exceed one-seventh of the term imposed by the court.   2.  If  a  person  is  serving  more than one sentence, the authorized allowances may be granted separately against the maximum  term  of  each sentence  or,  where  consecutive  sentences  are  involved, against the aggregate maximum term. In no case, however,  shall  the  total  of  all allowances  granted  to  any  such  person  under  this  section  exceed one-third of the time he would be required to  serve,  computed  without regard to this section.   2-a.  If  a  person  is serving more than one sentence, the authorized merit time allowances may be granted against  the  period  or  aggregate minimum  period  of  the indeterminate sentence or sentences, or against the term or aggregate term of the determinate sentence or sentences,  or where  consecutive determinate and indeterminate sentences are involved, against  the  aggregate  minimum  period  as  calculated   pursuant   to subparagraph  (iv)  of paragraph (a) of subdivision one of section 70.40 of the penal law. Such allowances shall be calculated as follows:  (a) A person serving two or more  indeterminate  sentences  which  run concurrently  may receive a merit time allowance not to exceed one-sixth of the minimum period of  the  indeterminate  sentence  imposed  for  an offense  other than an A-I felony offense defined in article two hundred twenty of the penal law, or one-third  of  the  minimum  period  of  the indeterminate  sentence  imposed  for  an  A-I felony offense defined in article two hundred twenty of the penal law, whichever allowance results in the longest unexpired time to run.  (b) A person serving two or more  indeterminate  sentences  which  run consecutively  may  receive  a  merit  time  allowance not to exceed the amount of one-third of the minimum or aggregate minimum  period  of  the sentences  imposed  for  an  A-I  felony  offense defined in article two hundred twenty of the penal  law,  plus  one-sixth  of  the  minimum  or aggregate  minimum  period of the sentences imposed for an offense other than such A-I felony offense.  (c) A person serving two or more determinate sentences for an  offense defined  in  article two hundred twenty or two hundred twenty-one of the penal law which run concurrently may receive a merit time allowance  not to  exceed one-seventh of the term of the determinate sentence which has the longest unexpired time to run.  (d) A person serving two or more determinate sentences for an  offense defined  in  article two hundred twenty or two hundred twenty-one of the penal law which run consecutively may receive a merit time allowance not to  exceed  one-seventh  of  the  aggregate  term  of  such  determinate sentences.  (e)  A  person  serving one or more indeterminate sentences and one or more determinate sentences for an offense defined in article two hundred twenty or two hundred twenty-one of the penal law which run concurrently may receive a merit time  allowance  not  to  exceed  one-sixth  of  the minimum  period  of  the  indeterminate  sentence imposed for an offense other than an A-I felony offense defined in article two  hundred  twenty of  the  penal law, one-third of the minimum period of the indeterminate sentence imposed for an  A-I  felony  offense  defined  in  article  two hundred  twenty  of  the  penal  law,  or one-seventh of the term of the determinate  sentence,  whichever  allowance  results  in  the   largest unexpired time to run.  (f)  A  person  serving one or more indeterminate sentences and one or more determinate sentences which run consecutively may receive  a  merit time  allowance  not  to  exceed  the sum of one-sixth of the minimum or  aggregate minimum period of  the  indeterminate  sentence  or  sentences imposed  for  an  offense  other  than  an A-I felony offense defined in article two hundred twenty of the penal law, one-third of the minimum or aggregate  minimum  period  of  the  indeterminate sentence or sentences imposed for an A-I felony offense defined in article two hundred  twenty of  the  penal  law and one-seventh of the term or aggregate term of the determinate sentence or sentences.  (g) The provisions of this  subdivision  shall  apply  to  persons  in custody  serving an indeterminate sentence on the effective date of this subdivision as well as to persons sentenced to an indeterminate sentence on and after the  effective  date  of  this  subdivision  and  prior  to September  first,  two  thousand  five  and  to  persons  sentenced to a determinate sentence prior to September first, two thousand eleven for a felony  as  defined  in  article  two  hundred  twenty  or  two  hundred twenty-one of the penal law.   3.  The  commissioner  of  corrections and community supervision shall promulgate  rules  and  regulations  for  the   granting,   withholding, forfeiture,  cancellation  and  restoration  of allowances authorized by this section in accordance with  the  criteria  herein  specified.  Such rules and regulations shall include provisions designating the person or committee   in   each   correctional   institution   delegated  to  make discretionary determinations with respect to the allowances,  the  books and  records to be kept, and a procedure for review of the institutional determinations by the commissioner.   4. No person shall have the right to demand or require the  allowances authorized  by  this  section.  The  decision  of  the  commissioner  of corrections and community supervision as to the  granting,  withholding, forfeiture,  cancellation  or  restoration  of  such allowances shall be final and shall not be reviewable if made in accordance with law.   5.  Time  allowances  granted  prior  to  any  release  to   community supervision shall be forfeited and shall not be restored if the released person is returned to an institution under the jurisdiction of the state department  of  corrections  and  community supervision for violation of community supervision or by reason of a conviction for a crime committed while on community  supervision.  A  person  who  is  so  returned  may, however,  subsequently  receive  time  allowances  against the remaining portion of his maximum or aggregate maximum term or period not to exceed in the aggregate one-third  of  such  portion  provided  such  remaining portion  of  his  or  her maximum or aggregate maximum term or period is more than one year.   6. Upon commencement of an indeterminate sentence  the  provisions  of this  section  shall be furnished to the person serving the sentence and the meaning of same  shall  be  fully  explained  to  him  by  a  person designated by the commissioner to perform such duty.   * NB Effective September 1, 2023