NY Corr L § 851 (2021)
2021 New York Laws COR - Correction Article 26 - Temporary Release Programs for State Correctional Institutions 851 - Definitions.

* § 851. Definitions. As used in this article the following terms have the following meanings:   1.  "Institution"  means any institution under the jurisdiction of the state  department  of  corrections  and  community  supervision  or   an institution   designated   by   the  commissioner  pursuant  to  section seventy-two-a of this chapter.   2. "Eligible incarcerated individual" means: a person confined  in  an institution  who  is  eligible  for release on parole or who will become eligible for release on parole or conditional release within two  years. Provided,  however,  that a person under sentence for an offense defined in paragraphs (a) and (b) of subdivision one of  section  70.02  of  the penal  law,  where  such offense involved the use or threatened use of a deadly  weapon  or  dangerous  instrument  shall  not  be  eligible   to participate  in  a  work release program until he or she is eligible for release on parole or who will be  eligible  for  release  on  parole  or conditional  release within eighteen months. Provided, further, however, that a person under a determinate  sentence  as  a  second  felony  drug offender  for  a  class  B felony offense defined in article two hundred twenty of the penal law, who was sentenced pursuant to section 70.70  of such  law,  shall  not be eligible to participate in a temporary release program until  the  time  served  under  imprisonment  for  his  or  her determinate  sentence,  including any jail time credited pursuant to the provisions of article seventy of  the  penal  law,  shall  be  at  least eighteen  months.  In  the  case  of  a  person serving an indeterminate sentence of imprisonment imposed pursuant to the  penal  law  in  effect after  September  one, nineteen hundred sixty-seven, for the purposes of this article parole eligibility shall be  upon  the  expiration  of  the minimum period of imprisonment fixed by the court or where the court has not  fixed  any period, after service of the minimum period fixed by the state board of parole. If an incarcerated individual is  denied  release on  parole, such incarcerated individual shall not be deemed an eligible incarcerated individual until he or she is within two years  of  his  or her next scheduled appearance before the state parole board. In any case where  an  incarcerated  individual  is  denied  release on parole while participating in a  temporary  release  program,  the  department  shall review  the  status  of  the  incarcerated  individual  to  determine if continued placement in the program is appropriate. No  person  convicted of  any escape or absconding offense defined in article two hundred five of the penal law shall be eligible for temporary  release.  Further,  no person  under  sentence  for  aggravated harassment of an employee by an incarcerated individual as defined in section 240.32 of  the  penal  law for,  any homicide offense defined in article one hundred twenty-five of the penal law, for any sex offense defined in article one hundred thirty of the penal law, or for an offense defined in section 255.25, 255.26 or 255.27 of the penal law shall be  eligible  to  participate  in  a  work release  program  as  defined  in subdivision three of this section. Nor shall any person under sentence for any sex offense defined  in  article one  hundred  thirty  of  the  penal law be eligible to participate in a community services program  as  defined  in  subdivision  five  of  this section.  Notwithstanding  the  foregoing, no person who is an otherwise eligible incarcerated individual who  is  under  sentence  for  a  crime involving:  (a)  infliction  of  serious physical injury upon another as defined in the penal law or (b) any other offense involving the  use  or threatened use of a deadly weapon may participate in a temporary release program   without   the   written  approval  of  the  commissioner.  The commissioner  shall  promulgate  regulations  giving  direction  to  the temporary  release  committee  at  each institution in order to aid such committees in carrying out this mandate.    The  governor,  by  executive  order,  may  exclude   or   limit   the participation   of   any   class   of  otherwise  eligible  incarcerated individuals from participation in a temporary release  program.  Nothing in  this  paragraph  shall be construed to affect either the validity of any  executive  order  previously  issued  limiting the participation of otherwise eligible incarcerated  individuals  in  such  program  or  the authority of the commissioner to impose appropriate regulations limiting such participation.   2-a.  Notwithstanding  subdivision  two  of  this  section,  the  term "eligible incarcerated individual" shall also include a person  confined in  an  institution  who  is  eligible for release on parole or who will become eligible for release on parole or conditional release within  two years, and who was convicted of a homicide offense as defined in article one  hundred  twenty-five of the penal law or an assault offense defined in article one hundred twenty of the penal law, and who can  demonstrate to the commissioner that: (a) the victim of such homicide or assault was a  member of the incarcerated individual's immediate family as that term is defined in section 120.40 of the penal law or had a child  in  common with  the  incarcerated  individual; (b) the incarcerated individual was subjected  to  substantial  physical,  sexual  or  psychological   abuse committed  by the victim of such homicide or assault; and (c) such abuse was a substantial factor  in  causing  the  incarcerated  individual  to commit  such  homicide  or  assault.  With  respect  to  an incarcerated individual's claim that he or she was subjected to substantial physical, sexual  or  psychological  abuse   committed   by   the   victim,   such demonstration shall include corroborative material that may include, but is not limited to, witness statements, social services records, hospital records,  law  enforcement  records  and  a  showing  based  in  part on documentation prepared at or near the time  of  the  commission  of  the offense  or  the prosecution thereof tending to support the incarcerated individual's  claim.  Prior  to  making  a  determination   under   this subdivision,  the  commissioner  is  required  to  request and take into consideration the opinion of the district attorney  who  prosecuted  the underlying homicide or assault offense and the opinion of the sentencing court.  If  such  opinions  are  received  within forty-five days of the request, the commissioner shall take them into  consideration.  If  such opinions  are  not  so  received,  the commissioner may proceed with the determination.  Any  action  by  the  commissioner  pursuant   to   this subdivision  shall  be  deemed  a  judicial  function  and  shall not be reviewable in any court.   2-b. When calculating in advance the date on which a person is or will be eligible for release on parole or conditional release,  for  purposes of  determining eligibility for temporary release or for placement at an alcohol  and  substance  abuse   treatment   correctional   annex,   the commissioner shall consider and include credit for all potential credits and reductions including but not limited to merit time and good behavior allowances.   Nothing  in  this  subdivision  shall  be  interpreted  as precluding the consideration and inclusion of credit for  all  potential credits  and  reductions  including,  but not limited to, merit time and good behavior allowances when  calculating  in  advance  for  any  other purpose the date on which a person is or will be eligible for release on parole or conditional release.   3.  "Work  release  program"  means  a  program  under  which eligible incarcerated individuals may be granted the  privilege  of  leaving  the premises  of an institution for a period not exceeding fourteen hours in any day for the purpose of on-the-job training or employment, or for any matter necessary to the furtherance of  any  such  purposes.  No  person shall  be  released  into a work release program unless prior to release  such person has a reasonable assurance of  a  job  training  program  or employment.  If  after  release,  such  person  ceases to be employed or ceases  to  participate  in  the  training  program,  the   incarcerated individual's  privilege  to participate in such work release program may be revoked in accordance with rules and regulations promulgated  by  the commissioner.   4.   "Furlough   program"   means   a  program  under  which  eligible incarcerated individuals may be granted the  privilege  of  leaving  the premises of an institution for a period not exceeding seven days for the purpose  of  seeking employment, maintaining family ties, solving family problems,  seeking  post-release   housing,   attending   a   short-term educational  or  vocational training course, or for any matter necessary to the furtherance of any such purposes.   5. "Community services program" means a program under  which  eligible incarcerated  individuals  may  be  granted the privilege of leaving the premises of an institution for a period not exceeding fourteen hours  in any  day  for  the  purpose  of  participation  in  religious  services, volunteer work, or athletic events, or for any matter necessary  to  the furtherance of any such purposes.   6.  "Leave  of  absence"  means a privilege granted to an incarcerated individual, who need not be an "eligible  incarcerated  individual,"  to leave the premises of an institution for the period of time necessary:  (a)  to  visit  his or her spouse, child, brother, sister, grandchild, parent, grandparent or ancestral aunt or uncle during his  or  her  last illness if death appears to be imminent;  (b) to attend the funeral of such individual;  (c)  to  undergo surgery or to receive medical or dental treatment not available in the correctional  institution  only  if  deemed  absolutely necessary  to  the  health and well-being of the incarcerated individual and whose approval  is  granted  by  the  commissioner  or  his  or  her designated representative.   7.  "Educational  leave"  means  a  privilege  granted  to an eligible incarcerated individual to leave the premises of an  institution  for  a period  not  exceeding  fourteen  hours  in  any  day for the purpose of education or vocational training, or for any  matter  necessary  to  the furtherance of any such purposes.   8.  "Industrial  training  leave"  means  a  privilege  granted  to an eligible incarcerated individual to leave the premises of an institution for a period not exceeding fourteen hours in any day for the purpose  of participating  in  an  industrial  training  program,  or for any matter necessary to the furtherance of any such purpose.   9. "Temporary release program"  means  a  "work  release  program,"  a "furlough  program,"  a  "community  services  program,"  an "industrial training leave," an "educational leave," or a "leave of absence."   10. "Extended bounds of  confinement"  means  the  area  in  which  an incarcerated individual participating in a temporary release program may travel,  the  routes he or she is permitted to use, the places he or she is authorized to visit, and the hours, days, or specially defined period during which he or she is permitted to be absent from  the  premises  of the institution.   11. "Temporary release committee" means the body of persons, which may include  members  of  the  public,  appointed  pursuant  to  regulations promulgated by  the  commissioner  to  serve  at  the  pleasure  of  the commissioner  for  the  purpose  of  formulating, modifying and revoking temporary release programs at an institution.   12. "Superintendent" means the person in charge of an institution,  by whatever title he or she may be known.   * NB Effective until September 1, 2023