Select Page

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, 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
  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 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.

Criminal Laws NY