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 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 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 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 inmate. (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 inmate successfully participates in the work and treatment program assigned pursuant to section eight hundred five of this article and when such inmate obtains a general equivalency diploma, an alcohol and substance abuse treatment certificate, a vocational trade certificate following at least six months of vocational programming 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 inmate, 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 ofcivil procedure imposing sanctions in an action commenced by a person, while an inmate, 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 oraggregate 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 shallalso 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, 2011 3. The commissioner of correctional services 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 correctional services 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 on parole or prior to any conditional release shall be forfeited and shall not be restored if the paroled or conditionally released person is returned to an institution under the jurisdiction of the state department of correctional services for violation of parole, violation of the conditions of release or by reason of a conviction for a crime committed while on parole or conditional release. A person who is so returned may, however, subsequently receive time allowances against the remaining portion of his term, maximum term or aggregate maximum term pursuant to this section and provided such remaining portion of his 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, 2011 * § 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 inmate. (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 inmate successfully participates in the work and treatment program assigned pursuant to section eight hundred five of this article and when such inmate obtains a general equivalency diploma, an alcohol and substance abuse treatment certificate, a vocational trade certificate following at least six months of vocational programming 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 inmate, 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 inmate, 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 exceedone-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 thissubdivision 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 correctional services 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 correctional services 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 on parole or prior to any conditional release shall be forfeited and shall not be restored if the paroled or conditionally released person is returned to an institution under the jurisdiction of the state department of correctional services for violation of parole, violation of the conditions of release or by reason of a conviction for a crime committed while on parole or conditional release. 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 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, 2011