N.Y. Correction Law § 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, 2027

* § 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.

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, 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. 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, (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 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.

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 September 1, 2027 until the expiration of §42 of ch.

60/1994, §10 of ch. 339/1972 and §3 of ch. 554/1986

* § 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.

2. "Eligible incarcerated individual" 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

incarcerated individual 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

incarcerated individual participating in a work 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, not exceeding fourteen hours in

any day, he or she 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 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