Section 803. Good behavior allowances against indeterminate and determinate sentences

1. (a) Every person confined in an institution of  the department or a facility in the department of mental hygiene serving
  an indeterminate or  determinate  sentence  of  imprisonment,  except  a
  person  serving a sentence with a maximum term of life imprisonment, may
  receive time allowance against the term or maximum term of his  sentence
  imposed  by  the court. Such allowances may be granted for good behavior
  and efficient and willing performance of duties assigned or progress and
  achievement in an assigned  treatment  program,  and  may  be  withheld,
  forfeited or canceled in whole or in part for bad behavior, violation of
  institutional  rules  or  failure  to  perform properly in the duties or
  program assigned.
    (b) A person serving an indeterminate  sentence  of  imprisonment  may
  receive  time  allowance against the maximum term of his sentence not to
  exceed one-third of the maximum term imposed by the court.
    (c) A person  serving  a  determinate  sentence  of  imprisonment  may
  receive  time  allowance  against the term of his sentence not to exceed
  one-seventh of the term imposed by the court.
    (d) (i) Except as provided in subparagraph  (ii)  of  this  paragraph,
  every  person  under  the  custody  of  the  department or confined in a
  facility in the department of mental hygiene  serving  an  indeterminate
  sentence  of imprisonment with a minimum period of one year or more or a
  determinate sentence  of  imprisonment  of  one  year  or  more  imposed
  pursuant  to  section  70.70 or 70.71 of the penal law, may earn a merit
  time allowance.
    (ii) Such merit time allowance shall not be available  to  any  person
  serving  an indeterminate sentence authorized for an A-I felony offense,
  other than an A-I felony offense defined in article two  hundred  twenty
  of  the  penal law, or any sentence imposed for a violent felony offense
  as defined in section 70.02 of the penal law, manslaughter in the second
  degree,  vehicular  manslaughter  in  the   second   degree,   vehicular
  manslaughter  in  the  first  degree,  criminally negligent homicide, an
  offense defined in article one hundred thirty of the penal law,  incest,
  or  an  offense  defined in article two hundred sixty-three of the penal
  law, or aggravated harassment of an employee by an inmate.
    (iii) The merit time allowance credit against the  minimum  period  of
  the  indeterminate  sentence  shall  be  one-sixth of the minimum period
  imposed by the court except that such credit shall be one-third  of  the
  minimum period imposed by the court for an A-I felony offense defined in
  article  two  hundred  twenty  of  the  penal law. In the case of such a
  determinate  sentence,  in  addition  to  the  time   allowance   credit
  authorized  by  paragraph  (c)  of  this  subdivision,  the  merit  time
  allowance credited against the term of the determinate sentence pursuant
  to this paragraph shall be one-seventh of the term imposed by the court.
    (iv)  Such  merit  time  allowance  may  be  granted  when  an  inmate
  successfully  participates  in  the  work and treatment program assigned
  pursuant to section eight hundred five of this  article  and  when  such
  inmate  obtains  a general equivalency diploma, an alcohol and substance
  abuse treatment certificate, a vocational trade certificate following at
  least six months of vocational programming or  performs  at  least  four
  hundred hours of service as part of a community work crew.
    Such   allowance  shall  be  withheld  for  any  serious  disciplinary
  infraction or upon a judicial determination that the  person,  while  an
  inmate,  commenced or continued a civil action, proceeding or claim that
  was found to be frivolous as defined in subdivision (c) of section eight
  thousand three hundred three-a of the civil practice law and  rules,  or
  an  order of a federal court pursuant to rule 11 of the federal rules of

  civil procedure imposing sanctions in an action commenced by  a  person,
  while an inmate, against a state agency, officer or employee.
    (v) The provisions of this paragraph shall apply to persons in custody
  serving  an  indeterminate  sentence  on  the  effective  date  of  this
  paragraph as well as to persons sentenced to an  indeterminate  sentence
  on and after the effective date of this paragraph and prior to September
  first,  two  thousand  five  and  to  persons sentenced to a determinate
  sentence prior to September first, two thousand eleven for a  felony  as
  defined  in  article two hundred twenty or two hundred twenty-one of the
  penal law.
    2. If a person is serving  more  than  one  sentence,  the  authorized
  allowances may be granted separately against the term or maximum term of
  each  sentence or, where consecutive sentences are involved, against the
  aggregate maximum term. Such allowances shall be calculated as follows:
    (a) A person serving two or more  indeterminate  sentences  which  run
  concurrently  may  receive time allowance not to exceed one-third of the
  indeterminate sentence which has the longest unexpired time to run.
    (b) A person serving two or more  indeterminate  sentences  which  run
  consecutively  may receive time allowance not to exceed one-third of the
  aggregate maximum term.
    (c) A person serving two  or  more  determinate  sentences  which  run
  concurrently may receive time allowance not to exceed one-seventh of the
  determinate sentence which has the longest unexpired time to run.
    (d)  A  person  serving  two  or  more determinate sentences which run
  consecutively may receive time allowance not to  exceed  one-seventh  of
  the aggregate maximum term.
    (e)  A  person  serving  one or more indeterminate sentence and one or
  more determinate  sentence  which  run  concurrently  may  receive  time
  allowance  not  to  exceed one-third of the indeterminate sentence which
  has the longest unexpired term to run or one-seventh of the  determinate
  sentence  which  has  the  longest  unexpired  time  to  run,  whichever
  allowance is greater.
    (f) A person serving one or more indeterminate  sentence  and  one  or
  more  determinate  sentence  which  run  consecutively  may receive time
  allowance not to exceed the sum of one-third of the maximum or aggregate
  maximum of the indeterminate sentence or sentences  and  one-seventh  of
  the term or aggregate maximum of the determinate sentence or sentences.
    2-a.  If  a  person  is serving more than one sentence, the authorized
  merit time allowances may be granted against  the  period  or  aggregate
  minimum  period  of  the indeterminate sentence or sentences, or against
  the term or aggregate term of the determinate sentence or sentences,  or
  where  consecutive determinate and indeterminate sentences are involved,
  against  the  aggregate  minimum  period  as  calculated   pursuant   to
  subparagraph  (iv)  of paragraph (a) of subdivision one of section 70.40
  of the penal law. Such allowances shall be calculated as follows:
    (a) A person serving two or more  indeterminate  sentences  which  run
  concurrently  may receive a merit time allowance not to exceed one-sixth
  of the minimum period of  the  indeterminate  sentence  imposed  for  an
  offense  other than an A-I felony offense defined in article two hundred
  twenty of the penal law, or one-third  of  the  minimum  period  of  the
  indeterminate  sentence  imposed  for  an  A-I felony offense defined in
  article two hundred twenty of the penal law, whichever allowance results
  in the longest unexpired time to run.
    (b) A person serving two or more  indeterminate  sentences  which  run
  consecutively  may  receive  a  merit  time  allowance not to exceed the
  amount of one-third of the minimum or aggregate minimum  period  of  the
  sentences  imposed  for  an  A-I  felony  offense defined in article two
  hundred twenty of the penal  law,  plus  one-sixth  of  the  minimum  or

  aggregate  minimum  period of the sentences imposed for an offense other
  than such A-I felony offense.
    (c)  A person serving two or more determinate sentences for an offense
  defined in article two hundred twenty or two hundred twenty-one  of  the
  penal  law which run concurrently may receive a merit time allowance not
  to exceed one-seventh of the term of the determinate sentence which  has
  the longest unexpired time to run.
    (d)  A person serving two or more determinate sentences for an offense
  defined in article two hundred twenty or two hundred twenty-one  of  the
  penal law which run consecutively may receive a merit time allowance not
  to  exceed  one-seventh  of  the  aggregate  term  of  such  determinate
  sentences.
    (e) A person serving one or more indeterminate sentences  and  one  or
  more determinate sentences for an offense defined in article two hundred
  twenty or two hundred twenty-one of the penal law which run concurrently
  may  receive  a  merit  time  allowance  not  to exceed one-sixth of the
  minimum period of the indeterminate  sentence  imposed  for  an  offense
  other  than  an A-I felony offense defined in article two hundred twenty
  of the penal law, one-third of the minimum period of  the  indeterminate
  sentence  imposed  for  an  A-I  felony  offense  defined in article two
  hundred twenty of the penal law, or  one-seventh  of  the  term  of  the
  determinate   sentence,  whichever  allowance  results  in  the  largest
  unexpired time to run.
    (f) A person serving one or more indeterminate sentences  and  one  or
  more  determinate  sentences which run consecutively may receive a merit
  time allowance not to exceed the sum of  one-sixth  of  the  minimum  or
  aggregate  minimum  period  of  the  indeterminate sentence or sentences
  imposed for an offense other than  an  A-I  felony  offense  defined  in
  article two hundred twenty of the penal law, one-third of the minimum or
  aggregate  minimum  period  of  the  indeterminate sentence or sentences
  imposed for an A-I felony offense defined in article two hundred  twenty
  of  the  penal  law and one-seventh of the term or aggregate term of the
  determinate sentence or sentences.
    (g) The provisions of this  subdivision  shall  apply  to  persons  in
  custody  serving an indeterminate sentence on the effective date of this
  subdivision as well as to persons sentenced to an indeterminate sentence
  on and after the  effective  date  of  this  subdivision  and  prior  to
  September  first,  two  thousand  five  and  to  persons  sentenced to a
  determinate sentence prior to September first, two thousand eleven for a
  felony  as  defined  in  article  two  hundred  twenty  or  two  hundred
  twenty-one of the penal law.
    ** 2-b.  Notwithstanding  the  foregoing,  if a person is serving more
  than one indeterminate sentence, at least one of which is imposed for  a
  class  A-I  felony  offense defined in article two hundred twenty of the
  penal law, the authorized  merit  time  allowance  granted  pursuant  to
  paragraph  (d) of subdivision one of this section shall be calculated as
  follows:
    (a) In the event  a  person  is  serving  two  or  more  indeterminate
  sentences  with  different  minimum  periods which run concurrently, the
  merit time allowance shall be based upon the sentence with  the  longest
  unexpired  minimum  period.  If  the sentence with the longest unexpired
  minimum period was imposed for a class A-I felony, the merit time credit
  shall be one-third of such sentence's minimum period; if  such  sentence
  was  imposed  for  an  offense other than a class A-I felony, such merit
  time credit shall  be  one-sixth  of  such  sentence's  minimum  period.
  Provided, however, that where the minimum period of any other concurrent
  indeterminate  sentence is greater than such reduced minimum period, the
  minimum period of such other  concurrent  indeterminate  sentence  shall

  also  be  reduced but only to the extent that the minimum period of such
  other concurrent sentence, as  so  reduced,  is  equal  to  the  reduced
  minimum  period  of  such  sentence  with  the longest unexpired minimum
  period to run.
    (b) A person serving two or more indeterminate sentences with the same
  minimum  periods which run concurrently, and no concurrent indeterminate
  sentence with any greater minimum period, shall have the minimum  period
  of each such sentence reduced in the amount of one-third of such minimum
  period if all such sentences were imposed for a class A-I felony.
    (c)  A  person  serving  two  or more indeterminate sentences that run
  consecutively shall have the aggregate minimum period of such  sentences
  reduced  in  the amount of one-third of such aggregate minimum period of
  the sentences imposed for a class A-I felony,  plus  one-sixth  of  such
  aggregate  minimum  period of the sentences imposed for an offense other
  than a class A-I felony.
    ** NB Repealed September 1, 2011
    3. The commissioner of correctional services  shall  promulgate  rules
  and  regulations for the granting, withholding, forfeiture, cancellation
  and restoration of allowances authorized by this section  in  accordance
  with  the  criteria  herein  specified. Such rules and regulations shall
  include  provisions  designating  the  person  or  committee   in   each
  correctional  institution delegated to make discretionary determinations
  with respect to the allowances, the books and records to be kept, and  a
  procedure   for  review  of  the  institutional  determinations  by  the
  commissioner.
    4. No person shall have the right to demand or require the  allowances
  authorized  by  this  section.  The  decision  of  the  commissioner  of
  correctional services  as  to  the  granting,  withholding,  forfeiture,
  cancellation  or restoration of such allowances shall be final and shall
  not be reviewable if made in accordance with law.
    5. Time allowances granted prior to any release on parole or prior  to
  any  conditional release shall be forfeited and shall not be restored if
  the  paroled  or  conditionally  released  person  is  returned  to   an
  institution   under   the   jurisdiction  of  the  state  department  of
  correctional  services  for  violation  of  parole,  violation  of   the
  conditions of release or by reason of a conviction for a crime committed
  while on parole or conditional release. A person who is so returned may,
  however,  subsequently  receive  time  allowances  against the remaining
  portion of his term, maximum term or aggregate maximum term pursuant  to
  this  section  and  provided such remaining portion of his term, maximum
  term, or aggregate maximum term is more than one year.
    6. Upon commencement of an indeterminate or a determinate sentence the
  provisions of this section shall be furnished to the person serving  the
  sentence  and  the  meaning of same shall be fully explained to him by a
  person designated by the commissioner to perform such duty.
    * NB Effective until September 1, 2011