Relates to eligibility of certain felony offenders for parole and medical parole

Sections 3 through 5 of the bill amend Executive Law (EL) §259-r(1) (a) and EL §259s(1)(a) to ensure that solely for the purpose of determining medical parole eligibility under those sections, time served on a previously imposed, undischarged sentence shall not be credited to the present sentence.

Section 6 of the bill provides for an immediate effective date, provided that the amendments to § 70.25(2-a) made in sections 1 and 2 of the bill shall apply to offenses committed on or after the effective date of the bill.

Existing law

Penal Law §70.25(2-a) currently provides that when a person is subject to a previously imposed, undischarged indeterminate or determinate term of imprisonment, and is being sentenced to an additional indeterminate or determinate term as a repeat offender, the additional sentence must be imposed to run consecutively to the prior sentence. This section applies to almost all repeat felony offenders: second or persistent felony offenders; second or persistent violent felony offenders; predicate felony sex offenders; and second felony drug offenders. By mandating consecutive sentencing, this section ensures that when a new sentence is imposed for a listed offense, the new sentence is not credited with any time served on the previously imposed, undischarged sentence pursuant to PL §70.30(1)(a).

EL § 259-r(1)(a) and §259-s(1)(a) authorize medical parole for inmates who have been certified to be suffering from a terminal condition or a significant and permanent non-terminal illness that creates a reasonable probability that they do not present a danger to society. Inmates serving sentences for Murder 2nd, Manslaughter 1st, any sex offense defined in PL Article 130 or an attempt to commit any of these crimes are eligible to be considered for medical parole only upon serving one-half of the imposed sentence. (Inmates serving sentences for Murder 1st are never eligible for medical parole.)

Statement in support

Due to an apparent drafting oversight, the most serious crimes of all are not covered by PL §70.25(2-a), and may therefore receive credit on their sentences that is denied to other repeat offenders. A person convicted of a non-drug A-1 felony (e.g., Murder 2nd, Arson 1st, Kidnapping 1st and Conspiracy 1st) cannot be sentenced as a second or persistent offender. Second child sexual assault felony offenders also fall outside the ambit of PL §70.25(2-a). Instead, both classes of offenders fall within the scope of PL §70.25(1), which provides that the second sentence may be imposed to run either concurrently or consecutively to the undischarged sentence, and is deemed to run concurrently if the court fails to specify. If the new sentence is imposed or deemed to run concurrently with the prior sentence, the new sentence is credited with time served on the previously imposed, undischarged sentence, and the length of the new sentence, if determinate, or its minimum period, if indeterminate, is reduced by that length of time pursuant to PL §70.30(1)(a). A person who receives PL §70.30(1)(a) credit becomes eligible for parole earlier than someone who does not receive credit for the previously served time.

This has important consequences when determining a person's eligibility for medical parole after having been sentenced for certain crimes. In such cases, a person serving indeterminate sentences or a combination of indeterminate and determinate sentences may be eligible for medical parole upon serving one-half of the minimum period; a person serving determinate sentences may become eligible upon serving one-half of the sentence. However, if such person's sentence is reduced under PL §70.30(1)(a), he or she becomes eligible for medical parole sooner - a windfall that is denied to virtually every other felony offender by PL §70.25(2-a).

The windfall effect is especially clear when the first sentence is a long one. For example, if an inmate is paroled after serving 10 years on a prior sentence, and commits a murder while on parole leading to a new 20-year to life sentence, he or she will receive 10 years of credit toward the minimum period of the new murder sentence if the court imposes the sentence concurrently or is silent. Instead of becoming eligible for medical parole after serving 10 years, one-half the minimum sentence, he or she will actually become eligible for medical parole immediately.

The bill prevents A-1 felony offenders and second child sexual assault felony offenders from receiving this unintended benefit by adding them to the list of offenders covered by PL §70.25(2-a). It is unfair to allow the possibility of concurrent sentencing for A-1 felony offenders when virtually every other felony offender who is subject to predicate sentencing must receive a consecutive sentence. This bill ensures that if an A-1 felony offender commits such offense after the imposition of a prior sentence of state imprisonment, the new sentence will be imposed to run consecutively to the prior sentence and will not be reduced by the time previously served. Finally, the bill ensures that, regardless of how a sentence is imposed, inmates who are required to serve one-half of their determinate sentence or one-half of the minimum period of their indeterminate sentence in order to become eligible for medical parole do in fact serve one-half of the imposed sentence before they can be considered for such release.

Budget implications

There is no appreciable impact on the operations and budgets of State and local enforcement agencies as a result of this bill.

Legislative history

None. EFFECTIVE DATE : This bill would take effect immediately, provided that the amendments to § 70.25(2-a) made in sections 1 and 2 of the bill apply to offenses committed on or after the effective date of the bill.