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 correctional services or an  institution  designated  by the commissioner pursuant to section seventy-two-a of this chapter.    2. "Eligible inmate" 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 inmate  is denied release on parole, such inmate shall not be deemed an eligible  inmate 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 inmate is  denied  release  on  parole  while  participating in a temporary release  program, the department  shall  review  the  status  of  the  inmate  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 inmate 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  inmate  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   inmates   from  participation  in a temporary release program. Nothing in this paragraphshall be construed to affect either the validity of any executive  order  previously  issued  limiting  the  participation  of  otherwise eligible  inmates in such program or the authority  of  the  commissioner  of  the  department  of  correctional  services to impose appropriate regulations  limiting such participation.    2-a.  Notwithstanding  subdivision  two  of  this  section,  the  term  "eligible inmate" 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  inmate's  immediate  family  as that term is defined in  section 120.40 of the penal law or  had  a  child  in  common  with  the  inmate;  (b) the inmate 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  inmate  to  commit  such homicide or assault. With respect to an inmate'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 inmate'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 inmates  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 inmate'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 inmates 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  inmates 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 inmate, who need  not be an "eligible inmate," 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 inmate and whose approval  is granted by the commissioner or his designated representative.    7. "Educational leave" means a privilege granted to an eligible inmate  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 inmate 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 inmate  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, 2011    * § 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 correctional services.    2. "Eligible inmate" 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,  that  a  person under a determinate sentence as a second felony drug offender fora  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 inmate is denied release on parole, such inmate shall not  be deemed an eligible inmate 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 inmate is denied release on parole while participating  in  a  temporary  release program, the department shall review the status of  the inmate 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. 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 inmate who is under sentence for a  crime involving: (a) infliction of serious physical injury upon  another  as  defined  in  the  penal  law,  (b)  a sex offense involving forcible  compulsion, or (c) 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   inmates   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  inmates in such program or the authority  of  the  commissioner  of  the  department  of  correctional  services to impose appropriate regulations  limiting such participation.    2-a.  Notwithstanding  subdivision  two  of  this  section,  the  term  "eligible inmate" 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  inmate's  immediate  family  as that term is defined in  section 120.40 of the penal law or  had  a  child  in  common  with  the  inmate;  (b) the inmate 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  inmate  to  commit  such homicide or assault. With respect to an inmate'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, witnessstatements, 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 inmate'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 inmates  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 inmate'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 inmates 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  inmates 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 inmate, who need  not be an "eligible inmate," 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  absolutelynecessary  to the health and well-being of the inmate and whose approval  is granted by the commissioner or his designated representative.    7. "Educational leave" means a privilege granted to an eligible inmate  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 inmate 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 inmate  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 September 1, 2011    * § 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 correction.    2. "Eligible inmate" means a person confined in an institution where a  work release program has been established who is eligible for release on  parole or who will become eligible for  release  on  parole  within  one  year.    3. "Work release program" means a program under which eligible inmates  may  be  granted the privilege of leaving the premises of an institution  for the purpose of education, on-the-job training or employment.    4. "Extended bounds of confinement" means the area in which an  inmate  participating  in  a  work  release program may travel, the routes he is  permitted to use, the places he is authorized to visit, and  the  hours,  not  exceeding  fourteen  hours in any day, he is permitted to be absent  from the premises of the institution.    5. "Work release committee" means  the  body  of  persons,  which  may  include  members  of  the  public,  appointed  pursuant  to  regulations  promulgated by  the  commissioner  of  correction  for  the  purpose  of  formulating,   modifying  and  revoking  work  release  programs  at  an  institution.    6. "Warden" means the person in charge of an institution, by  whatever  title he may be known.    * NB  Effective only upon the expiration of §42 of ch. 60/1994, §10 of  ch. 339/1972 and §3 of ch. 554/1986