Section 806. Presumptive release program for nonviolent inmates

1.
  Notwithstanding any other provision of law to the contrary and except as
  provided in subdivision two of this section,  an  inmate  who  has  been
  awarded  a  certificate of earned eligibility by the commissioner as set
  forth in section eight hundred five of this article may be  entitled  to
  presumptive  release  at  the  expiration  of  the  minimum or aggregate
  minimum period  of  his  or  her  indeterminate  term  of  imprisonment,
  provided that:
    (i)  the inmate has not been convicted previously of, nor is presently
  serving a sentence imposed for a class  A-I  felony,  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,
    (ii) the inmate has not committed any serious disciplinary infraction,
  and
    (iii)  there  has been no 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 has not been issued by a federal court pursuant to
  rule 11 of the federal rules of civil procedure imposing sanctions in an
  action commenced by the  inmate  against  a  state  agency,  officer  or
  employee.
    2.  In  the  case  of  an  inmate  who meets the criteria set forth in
  subdivision one of this section and who  also  meets  the  criteria  for
  merit  time  as  provided  for  in  paragraph  (d) of subdivision one of
  section eight hundred three of this article, such inmate may be entitled
  to presumptive release, as provided in this section, at  the  expiration
  of  five-sixths of the minimum or aggregate minimum period of his or her
  indeterminate term of imprisonment.
    3. Any inmate  eligible  for  presumptive  release  pursuant  to  this
  section  shall be required to apply for such release pursuant to section
  two hundred fifty-nine-g of the executive law.  Upon  release  from  the
  department  of  correctional services, such person shall be in the legal
  custody of the division of  parole  as  provided  in  subdivisions  two,
  three,  four, five, six and seven of section two hundred fifty-nine-i of
  the executive law.
    4. The commissioner shall promulgate rules  and  regulations  for  the
  granting, withholding, cancellation and recission of presumptive release
  authorized by this section in accordance with law.
    5.  No  person  shall  have the right to demand or require presumptive
  release authorized by this section. The commissioner may revoke  at  any
  time  an inmate's scheduled presumptive release pursuant to this section
  for any disciplinary infraction committed  by  the  inmate  or  for  any
  failure to continue to participate successfully in any assigned work and
  treatment  program  after the certificate of earned eligibility has been
  awarded. The commissioner may deny presumptive  release  to  any  inmate
  whenever  the  commissioner  determines  that  such  release  may not be
  consistent with the safety of  the  community  or  the  welfare  of  the
  inmate. Any action by the commissioner pursuant to this section shall be
  deemed  a  judicial  function  and  shall  not  be reviewable if done in
  accordance with law.
    6. Any eligible inmate who is not released pursuant to subdivision one
  or two of this section shall be considered for discretionary release  on
  parole  pursuant to the provisions of section eight hundred five of this

  article or section  two  hundred  fifty-nine-i  of  the  executive  law,
  whichever is applicable.
    7.  Any  reference  to  parole and conditional release in this chapter
  shall also be deemed to include presumptive release.
    * NB Repealed September 1, 2011