Section 851 - [Effective until 9/1/2025] DefinitionsAs 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.Amended by New York Laws 2023, ch. 55,Sec. A-6, eff. 5/3/2023.Amended by New York Laws 2021, ch. 322, Secs. 228, 228-a eff. 8/2/2021.This section is set out more than once due to postponed, multiple, or conflicting amendments.