§ 70.40 Release on parole; conditional release; presumptive release.
- 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, 2017
* (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, 2017
* (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, 2017
* (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, 2017
* (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, 2017 - 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. - Delinquency. (a) When a person is alleged to have violated the
terms of presumptive release or parole 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 return of the person to
an institution under the jurisdiction of the state department of
corrections and community supervision.
(b) When a person is alleged to have violated the terms of his or her
conditional release or post-release supervision 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 return of the person
to the institution from which he or she was released or, if he or she
was released from an institution under the jurisdiction of the state
department of corrections and community supervision, to an institution
under the jurisdiction of that department. Upon such return, the person
shall resume service of his or her sentence. For a person released to
post-release supervision, the provisions of section 70.45 shall apply.
(c) Any time spent by a person in custody from the time of delinquency
to the time service of the sentence resumes shall be credited against
the term or maximum term of the interrupted sentence, provided:
(i) that such custody was due to an arrest or surrender based upon the
delinquency; or
(ii) that such custody arose from an arrest on another charge which
culminated in a dismissal or an acquittal; or
(iii) that such custody arose from an arrest on another charge which
culminated in a conviction, but in such case, if a sentence of
imprisonment was imposed, the credit allowed shall be limited to the
portion of the time spent in custody that exceeds the period, term or
maximum term of imprisonment imposed for such conviction.
