Issues In NY Criminal Law--Vol. 7, #4

Issue: Methods of Release from State Prison

There are four main ways for an inmate to be released from state incarceration:

parole board release: a panel of the NYS Parole Board may grant a discretionary release after a portion of the sentence has been served. Eligibility for parole occurs when an inmate has served the statutory minimum period of imprisonment (MPI), as set by statute. Prior to reaching the MPI, an inmate may be eligible for release:

◊ successfully completing a shock incarceration program and obtaining “certificate of earned eligibility,” which gives rise to a rebuttable presumption of release within the discretion of the Parole Board. Corr Law §§ 805, 806; see 7 NYCRR Part 2100.

◊ earning merit time. Corr L § 803(1)(d).

◊ conditional, or early conditional release for deportation only, after a final order of deportation. Exec L § 259-i(2)(d)(i), (ii).

◊ terminal illness. Exec L § 259-r; DOCS Directive 4304.

presumptive release, after serving 5/6 of the MPI if no serious disciplinary infraction or frivolous lawsuit and the inmate meets the criteria for merit time. Corr L § 806, 7 NYCRR Part 2200; DOCS Directive 4791 (available on DOCS website, www.docs.state.ny.us).
conditional release, where the inmate has been denied parole board release but the inmate’s good time equals the unserved portion of the maximum term. The Board of Parole does not have authority to grant or deny conditional release, which is statutory in nature. Penal Law § 70.40.
maximum expiration date. An inmate who is not granted parole and loses all good time; an inmate is returned to prison for violating the release conditions with less than one year remaining and the Parole Board decides to hold until the maximum expiration date; or the inmate refuses conditional release.

Gary Muldoon is a member of the Assigned Counsel panel in Monroe County author of Handling a Criminal Case in New York (West Group 2006). Call 1-800-328-4880 or contact the West Group website at www.west.thomson.com. Cost of the soft cover edition is $241.00.

Criminal Law Slanguage of New York, Third Edition, by G. Edward Murray and Gary Muldoon, is published by LexisNexis Publications. Price: $19.00. Contact www.lexis.com.

Gary Muldoon
144 Exchange Boulevard
Rochester, NY 14614
(585) 262-5130