N.Y. Penal Law § 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, 2027

* (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, 2027

* (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, 2027

* (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, 2027

* (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, 2027

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.