BILL NUMBER: S7050
SPONSOR: SALAZAR
 
TITLE OF BILL:
An act to amend the penal law, in relation to crimes committed during
periods of post-release supervision
 
PURPOSE OR GENERAL IDEA OF THE BILL:
This bill addresses and corrects a drafting oversight in the Less is
More legislation enacted in 2021, Chapter 427 of the Laws of 2021. The
correction is necessary to ensure that individuals under the supervision
of the state board of parole who are charged with and convicted of new
felonies during the supervision period receive the proper "jail-time"
credit in accordance with long-standing practice.
 
SUMMARY OF SPECIFIC PROVISIONS:
Section 1: Amends paragraph (a) of subdivision 3 of section 70.40 of the
penal law to clarify that the period of presumptive release, parole,
conditional release, or post-release supervision is deemed interrupted
for any period of time in which the person was held in pre-trial
detention on a new charge that results in a new prison sentence.
Section 2: Amends paragraph (c) of subdivision 3 of section 70.40 of the
penal law to clarify that such time in pre-trial detention is credited
to the new sentence.
Section 3: Amends paragraph (d) of subdivision 5 of section 70.45 of the
penal law is an amendment to conform this subdivision with the changes
made in sections 1 and 2 above.
Section 4: Establishes the effective date.
 
JUSTIFICATION:
There is an important drafting oversight in the Less is More legislation
enacted in 2021, which alters the longstanding practice relating to how
time spent in pretrial detention is counted when a person under parole
supervision is charged and convicted with a new offense that results in
the imposition of a new prison sentence.
Under the former version of Penal Law section 70.40 (3), whenever the
Board of Parole alleged a violation of the terms of release and declared
a person to be "delinquent, the declaration of delinquency and the
interruption . . . continue(d) until the return of the person to an
institution under the jurisdiction of the department of corrections and
community supervision."
If the person was also held in pre-trial custody on new criminal charg-
es, the time spent in pre-trial custody was not credited to the old
sentence, except under very limited circumstances (e.g., the new crimi-
nal charges resulted in dismissal or acquittal, or the new charges
resulted in a sentence that was less than the time actually spent in
pre-trial custody.) In most situations, the time a person spent in pre-
trial custody on new criminal charges was credited as "jail time" on the
new conviction and sentence. Thus, if a person was,held for one-year in
pre-trial custody on new criminal charges while a parole/PRS violation
was pending, the one-year would be credited as jail time on any new
indeterminate or determinate sentence imposed. During the one-year pre-
trial custody period, the old sentence remained "interrupted" and the
time remaining on the old sentence was later added to the new one, or
subsumed within it (e.g., time owed to PRS would be subsumed within a
new longer period of PRS).
Less is More changed the statute. Now, Penal Law section 70.40 (3)
provides that, except in one narrow circumstance, sentences are not
interrupted by a violation and declaration of delinquency. As a matter
of law, the sentences continue to run during the entire violation proc-
ess. This bill drafting oversight applies to situations where a person
is also facing new criminal charges and is held in pre-trial custody. If
Penal Law section 70.40 is applied literally, the time spent in pre-tri-
al custody on the new criminal charges may have to be applied to the old
sentence, not credited as jail time on any new felony conviction and
sentence.
If pre-trial custody time is applied to the old sentence, it would be
unavailable to be credited as jail time on the new sentence. This is an
unintended outcome that will result in people spending more time in
prison than under the former law.
For example, assume a person owes 1 year to parole supervision and is
charged with a new felony. The person spends 1 year in pre-trial custody
and is then sentenced to 2 - 4 years on the new conviction. Under the
former version of Penal Law 70.40, the old and new sentences would be
added and the aggregate sentence would become 2 -5 years. But, the
person would become eligible for parole release consideration after 12
months: the 2-year minimum would be diminished by the 12 months spent in
pre-trial custody. However, if the 12 months of pre-trial custody is now
credited against the old sentence - as seemingly required by the revised
Penal Law section 70.40 - the new sentence would be 2 - 4 years. The
person would be required to serve a full 24 months in prison before
parole release eligibility. None of the 12 months of pre-trial custody
would be available to reduce the 2-year minimum term. The same inequity
would apply to conditional release dates under the former and revised
statutes. In the first example, an aggregate sentence of 2 - 5 years,
the conditional release date would be 3 years and 4 months (2/3 of 5
years). But with 12 months jail time credit, the time to conditional
release would be reduced to 2 years and 4 months. Without the 12 months
of jail time credit, the aggregate sentence would be 2 - 4 years and the
time to conditional release would again be longer at 2 years and 8
months (2/3 of 4 years). The inequity would be even more pronounced when
time is owed to post-release supervision. Because multiple PRS terms are
not added together but are subsumed within the term that has the longest
unexpired term to run, a person who owes time to PRS and is held in
pre-trial custody on a new felony that culminates in a new PRS term
would effectively lose all credit for time spent in pre-trial custody.
The time served in pre-trial custody will be officially "credited" to
the old PRS term. But the old PRS term would otherwise have been
completely subsumed within the new PRS term. Consequently, a person who
spent a year in pre-trial custody in this situation would experience no
sentence reduction benefit whatsoever.
It was not the intention of the Less is More legislation to cause indi-
viduals to spend more time incarcerated than under the previous law.
This was an oversight in the drafting of that legislation and must be
corrected in order to comply with the original intent of the Less is
More bill and to restore the "jail-time" credit application rules to the
fair and appropriate practice that existed prior to the enactment of
Less is More.
 
PRIOR LEGISLATIVE HISTORY:
SENATE:
2023-2024 - S.6725 (Salazar) - referred to codes
ASSEMBLY:
2023-2024 - : A.7567 (Forrest)- referred to codes
 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENT:
None
 
EFFECTIVE DATE:
This bill will take effect immediately.

Statutes affected:
S7050: 70.40 penal law, 70.40(3) penal law, 70.45 penal law, 70.45(5) penal law