2023 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, 2025
* (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, 2025
* (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, 2025
* (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, 2025
* (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, 2025
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 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.
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.