Section 851. Definitions

As used in this article the following terms have
  the following meanings:
    1.  "Institution"  means any institution under the jurisdiction of the
  state department of correctional services or an  institution  designated
  by the commissioner pursuant to section seventy-two-a of this chapter.
    2. "Eligible inmate" means: a person confined in an institution who is
  eligible  for  release on parole or who will become eligible for release
  on parole or conditional release within two  years.  Provided,  however,
  that  a  person  under sentence for an offense defined in paragraphs (a)
  and (b) of subdivision one of section 70.02 of the penal law, where such
  offense involved the use  or  threatened  use  of  a  deadly  weapon  or
  dangerous  instrument  shall  not  be  eligible to participate in a work
  release program until he or she is eligible for release on parole or who
  will be eligible for release on parole  or  conditional  release  within
  eighteen  months.  Provided,  further,  however,  that  a person under a
  determinate sentence as a second felony drug  offender  for  a  class  B
  felony  offense  defined in article two hundred twenty of the penal law,
  who was sentenced pursuant to section 70.70 of such law,  shall  not  be
  eligible  to  participate  in a temporary release program until the time
  served under imprisonment for his or her determinate sentence, including
  any jail time credited pursuant to the provisions of article seventy  of
  the  penal  law,  shall  be  at  least eighteen months. In the case of a
  person  serving  an  indeterminate  sentence  of  imprisonment   imposed
  pursuant  to  the  penal  law  in  effect  after September one, nineteen
  hundred sixty-seven, for the purposes of this article parole eligibility
  shall be upon the expiration of the minimum period of imprisonment fixed
  by the court or where the court has not fixed any period, after  service
  of  the  minimum period fixed by the state board of parole. If an inmate
  is denied release on parole, such inmate shall not be deemed an eligible
  inmate until he or she is within two years of his or her next  scheduled
  appearance before the state parole board. In any case where an inmate is
  denied  release  on  parole  while  participating in a temporary release
  program, the department  shall  review  the  status  of  the  inmate  to
  determine  if  continued  placement  in  the  program is appropriate. No
  person convicted of any escape or absconding offense defined in  article
  two  hundred  five  of  the  penal  law  shall be eligible for temporary
  release. Further, no person under sentence for aggravated harassment  of
  an  employee  by an inmate as defined in section 240.32 of the penal law
  for, any homicide offense defined in article one hundred twenty-five  of
  the penal law, for any sex offense defined in article one hundred thirty
  of the penal law, or for an offense defined in section 255.25, 255.26 or
  255.27  of  the  penal  law  shall  be eligible to participate in a work
  release program as defined in subdivision three  of  this  section.  Nor
  shall  any  person under sentence for any sex offense defined in article
  one hundred thirty of the penal law be  eligible  to  participate  in  a
  community  services  program  as  defined  in  subdivision  five of this
  section. Notwithstanding the foregoing, no person who  is  an  otherwise
  eligible  inmate  who  is  under  sentence  for  a  crime involving: (a)
  infliction of serious physical injury upon another  as  defined  in  the
  penal  law  or (b) any other offense involving the use or threatened use
  of a deadly weapon  may  participate  in  a  temporary  release  program
  without the written approval of the commissioner. The commissioner shall
  promulgate   regulations  giving  direction  to  the  temporary  release
  committee at each  institution  in  order  to  aid  such  committees  in
  carrying out this mandate.
    The   governor,   by   executive  order,  may  exclude  or  limit  the
  participation  of  any  class  of  otherwise   eligible   inmates   from
  participation  in a temporary release program. Nothing in this paragraph

  shall be construed to affect either the validity of any executive  order
  previously  issued  limiting  the  participation  of  otherwise eligible
  inmates in such program or the authority  of  the  commissioner  of  the
  department  of  correctional  services to impose appropriate regulations
  limiting such participation.
    2-a.  Notwithstanding  subdivision  two  of  this  section,  the  term
  "eligible inmate" shall also include a person confined in an institution
  who  is  eligible  for release on parole or who will become eligible for
  release on parole or conditional release within two years, and  who  was
  convicted  of  a  homicide  offense  as  defined  in article one hundred
  twenty-five of the penal law or an assault offense  defined  in  article
  one  hundred  twenty  of  the  penal law, and who can demonstrate to the
  commissioner that: (a) the victim of such  homicide  or  assault  was  a
  member  of  the  inmate's  immediate  family  as that term is defined in
  section 120.40 of the penal law or  had  a  child  in  common  with  the
  inmate;  (b) the inmate was subjected to substantial physical, sexual or
  psychological abuse committed by the victim of such homicide or assault;
  and (c) such abuse was a substantial factor in  causing  the  inmate  to
  commit  such homicide or assault. With respect to an inmate's claim that
  he or she was subjected to substantial physical, sexual or psychological
  abuse  committed  by  the  victim,  such  demonstration  shall   include
  corroborative  material that may include, but is not limited to, witness
  statements, social services records, hospital records,  law  enforcement
  records and a showing based in part on documentation prepared at or near
  the  time  of  the  commission of the offense or the prosecution thereof
  tending to support the inmate's claim. Prior to making  a  determination
  under this subdivision, the commissioner is required to request and take
  into  consideration  the opinion of the district attorney who prosecuted
  the underlying homicide or  assault  offense  and  the  opinion  of  the
  sentencing  court.  If such opinions are received within forty-five days
  of the request, the commissioner shall take them into consideration.  If
  such opinions are not so received, the commissioner may proceed with the
  determination.   Any   action  by  the  commissioner  pursuant  to  this
  subdivision shall be  deemed  a  judicial  function  and  shall  not  be
  reviewable in any court.
    2-b. When calculating in advance the date on which a person is or will
  be  eligible  for release on parole or conditional release, for purposes
  of determining eligibility for temporary release or for placement at  an
  alcohol   and   substance   abuse   treatment  correctional  annex,  the
  commissioner shall consider and include credit for all potential credits
  and reductions including but not limited to merit time and good behavior
  allowances.  Nothing  in  this  subdivision  shall  be  interpreted   as
  precluding  the  consideration and inclusion of credit for all potential
  credits and reductions including, but not limited  to,  merit  time  and
  good  behavior  allowances  when  calculating  in  advance for any other
  purpose the date on which a person is or will be eligible for release on
  parole or conditional release.
    3. "Work release program" means a program under which eligible inmates
  may be granted the privilege of leaving the premises of  an  institution
  for  a period not exceeding fourteen hours in any day for the purpose of
  on-the-job training or employment, or for any matter  necessary  to  the
  furtherance  of  any  such  purposes. No person shall be released into a
  work  release  program  unless  prior  to  release  such  person  has  a
  reasonable  assurance  of a job training program or employment. If after
  release, such person ceases to be employed or ceases to  participate  in
  the training program, the inmate's privilege to participate in such work
  release  program may be revoked in accordance with rules and regulations
  promulgated by the commissioner.

    4. "Furlough program" means a program under which eligible inmates may
  be granted the privilege of leaving the premises of an institution for a
  period not exceeding seven days for the purpose of  seeking  employment,
  maintaining  family  ties, solving family problems, seeking post-release
  housing,  attending  a  short-term  educational  or  vocational training
  course, or for any matter necessary  to  the  furtherance  of  any  such
  purposes.
    5.  "Community  services program" means a program under which eligible
  inmates may be granted the privilege  of  leaving  the  premises  of  an
  institution for a period not exceeding fourteen hours in any day for the
  purpose  of  participation  in  religious  services,  volunteer work, or
  athletic events, or for any matter necessary to the furtherance  of  any
  such purposes.
    6. "Leave of absence" means a privilege granted to an inmate, who need
  not be an "eligible inmate," to leave the premises of an institution for
  the period of time necessary:
    (a)  to  visit  his or her spouse, child, brother, sister, grandchild,
  parent, grandparent or ancestral aunt or uncle during his  or  her  last
  illness if death appears to be imminent;
    (b) to attend the funeral of such individual;
    (c)  to  undergo surgery or to receive medical or dental treatment not
  available in the correctional  institution  only  if  deemed  absolutely
  necessary  to the health and well-being of the inmate and whose approval
  is granted by the commissioner or his designated representative.
    7. "Educational leave" means a privilege granted to an eligible inmate
  to leave the premises of an  institution  for  a  period  not  exceeding
  fourteen  hours  in  any  day for the purpose of education or vocational
  training, or for any matter necessary to the  furtherance  of  any  such
  purposes.
    8.  "Industrial  training  leave"  means  a  privilege  granted  to an
  eligible inmate to leave the premises of an institution for a period not
  exceeding fourteen hours in any day for the purpose of participating  in
  an  industrial  training  program,  or  for  any matter necessary to the
  furtherance of any such purpose.
    9. "Temporary release program"  means  a  "work  release  program,"  a
  "furlough  program,"  a  "community  services  program,"  an "industrial
  training leave," an "educational leave," or a "leave of absence."
    10. "Extended bounds of confinement" means the area in which an inmate
  participating in a temporary release program may travel, the  routes  he
  or she is permitted to use, the places he or she is authorized to visit,
  and  the hours, days, or specially defined period during which he or she
  is permitted to be absent from the premises of the institution.
    11. "Temporary release committee" means the body of persons, which may
  include  members  of  the  public,  appointed  pursuant  to  regulations
  promulgated  by  the  commissioner  to  serve  at  the  pleasure  of the
  commissioner for the purpose  of  formulating,  modifying  and  revoking
  temporary release programs at an institution.
    12.  "Superintendent" means the person in charge of an institution, by
  whatever title he or she may be known.
    * NB Effective until September 1, 2011