- 6/20/07 N.Y. St. Reg. COR-25-07-00005-PNEW YORK STATE REGISTERVOLUME XXIX, ISSUE 25June 20, 2007RULE MAKING ACTIVITIESDEPARTMENT OF CORRECTIONAL SERVICESPROPOSED RULE MAKINGNO HEARING(S) SCHEDULEDI.D No. COR-25-07-00005-PTemporary Release ProgramsPURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:Proposed action:Amendment of section 1900.4(c)(1)(ii) and (2)(ii) of Title 7 NYCRR.Statutory authority:Correction Law, section 851(2)Subject:Temporary release programs.Purpose:To amend Part 1900 of Title 7 NYCRR in accordance with the Governor's Executive Order 9, enacted the fifth day of March, in the year two thousand seven.Text of proposed rue:The text in section 1900.4 (c) (1) (ii), is hereby amended as follows:(ii) Except as provided by paragraph (4) of this subdivision, an inmate's current commitment must not be the result of a conviction or a youthful offender adjudication (Y.O.) for any of the following violent felony offenses if the crime involved either being armed with, the use of,[or] the threatened use of, or the possession with the intent to use unlawfully against another of, a deadly weapon or a dangerous instrument, or the crime involved the infliction of serious physical injury. The list of Offenses and Penal Law Sections in section 1900.4 (c) (2) (ii) is hereby amended by as follows:
Offense Penal Law Section Criminally negligent homicide 125.10 Aggravated criminally negligent homicide 125.11 Vehicular manslaughter 2 125.12 Vehicular manslaughter 1 125.13 Manslaughter 2 125.15 Manslaughter 1 125.20 Aggravated manslaughter in the second degree 125.21 Aggravated manslaughter in the first degree 125.22 Murder 2 125.25 Aggravated murder 125.26 Murder 1 125.27 Abortion 2 125.40 Abortion 1 125.45 Self-abortion in the second degree 125.50 Self-abortion in the first degree 125.55 Issuing abortional articles 125.60 Sexual misconduct 130.20 Rape 3 130.25 Rape 2 130.30 Rape 1 130.35 [Consensual sodomy] [130.38] [Sodomy 3] Criminal sexual act in the third degree 130.40 [Sodomy 2] Criminal sexual act in the second degree 130.45 [Sodomy 1] Criminal sexual act in the first degree 130.50 Forcible Touching 130.52 Persistent sexual abuse 130.53 Sexual abuse 3 130.55 Sexual abuse 2 130.60 Sexual abuse 1 130.65 Aggravated sexual abuse in the fourth degree 130.65-A Aggravated sexual abuse 3 130.66 Aggravated sexual abuse 2 130.67 Aggravated sexual abuse 1 130.70 Course of sexual conduct against a child 1 130.75 Course of sexual conduct against a child 2 130.80 Female genital mutilation 130.85 Facilitating a sex offense with a controlled substance 130.90 Sexually motivated felony 130.91 Predatory sexual assault 130.95 Predatory sexual assault against a child 130.96 Aggravated harassment of an employee by an inmate 240.32 Incest in the third degree 255.25 Incest in the second degree 255.26 Incest in the first degree 255.27 Use of a child in a sexual performance 263.05 Promoting an obscene sexual performance by a child 263.10 Possessing an obscene sexual performance by a child 263.11 Promoting a sexual performance by a child 263.15 Possessing a sexual performance by a child 263.16 Soliciting or providing support for an act of terrorism in the second degree 490.10 Soliciting or providing support for an act of terrorism in the first degree 490.15 Making a terroristic threat 490.20 Crime of terrorism 490.25 Hindering prosecution of terrorism in the second degree 490.30 Hindering prosecution of terrorism in the first degree 490.35 Criminal possession of a chemical weapon or biological weapon in the third degree 490.37 Criminal possession of a chemical weapon or biological weapon in the second degree 490.40 Criminal possession of a chemical weapon or biological weapon in the first degree 490.45 Criminal use of a chemical weapon or biological weapon in the third degree 490.47 Criminal use of a chemical weapon or biological weapon in the second degree 490.50 Criminal use of a chemical weapon or biological weapon in the first degree 490.55 Text of proposed rule and any required statements and analyses may be obtained from:Anthony J. Annucci, Deputy Commissioner and Counsel, Department of Correctional Services, Bldg. 2, State Campus, Albany, NY 12226-2050, (518) 485-9613, e-mail: AJAnnucci@docs.state.ny.usData, views or arguments may be submitted to:Same as above.Public comment will be received until:45 days after publication of this notice.Regulatory Impact StatementThe New York State Department of Correctional Services (DOCS) seeks to amend Parts 1900.4 (c) (1) (ii) by incorporating text and Part 1900.4 (c) (2) (ii) by adding penal law offenses to the list of crimes that render an inmate ineligible to participate in the Department's Temporary Release Program, in order to comply with the Governor's Executive Order 9, enacted the fifth day of March, two thousand and seven.Statutory AuthoritySection 851 (2)of Correction Law authorizes the Governor by executive order to exclude or limit the participation of any class or otherwise eligible inmates from participation in a temporary release program. Additionally, Correction Law 112 grants the commissioner of the Department of Correctional Services (DOCS) the superintendence, management and control of the correctional facilities in the department and the inmates confined therein.Legislative ObjectivesBy vesting the Governor and Commissioner of DOCS with the above authority, the Legislature intended the Commissioner of DOCS, acting under the Governor's direction, to promulgate rules that will provide for temporary release programs that are in the best interests and overall safety of the community, as well as the inmate participants.Needs and BenefitsTemporary release programs provide inmates with an opportunity to transition back into their home communities under supervision, and to facilitate their ability to lead law abiding lives. As such, temporary release programs should be focused most on those inmates who are most likely to live and work within the community in a law abiding manner. There are certain classes of inmates who have committed crimes of particular violence, depravity or victimization, and less likely to succeed in temporary release programs. The temporary release of such inmates would also likely cause alarm and concern in the surrounding community and diminish the general acceptance of temporary release programs. This proposed rule ensures that these classes of inmates are not transferred to any program of temporary release.Costsa. To agency, the state and local governments: no discernible cost.b. Costs to private regulated parties: none. The proposed amendments do not appear to apply to private regulated parties.c. This cost analysis is based upon the fact that this proposal merely amends the Department's temporary release program as required by Governor's Executive Order #9.Local Government MandatesThere are no new mandates imposed upon local governments by this proposal. The proposed amendments do not apply to local governments as DOCS is a state funded operation.PaperworkThere are no new reports, forms, or paperwork that would be required as a result of these amendments.DuplicationThese proposed amendments do not duplicate any existing State or Federal requirement.AlternativesNo alternatives are apparent and none have been considered. Due to the Governor's Executive Order the Commissioner of DOCS was required to amend the appropriate sections of 7 NYCRR accordingly.Federal StandardsThere are no minimum standards of the Federal government for this or a similar subject area.Compliance ScheduleThe department of Correctional Services will achieve compliance with the proposed amendments immediately.Regulatory Flexibility AnalysisA regulatory flexibility analysis is not required for this proposal since it will not impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on small businesses or local governments. This proposal merely adds to the list of penal law offenses that would render an inmate ineligible to participate in the Department's Temporary Release Program.Rural Area Flexibility AnalysisA rural area flexibility analysis is not required for this proposal since it will not impose any adverse economic impact or reporting, record keeping or other compliance requirements on rural areas. This proposal merely adds to list of penal law offenses that would render an inmate ineligible to participate in the Department's Temporary Release Program.Job Impact StatementA job impact statement is not submitted because this proposed rule will have no adverse impact on jobs or employment opportunities. This proposal merely adds to the list of penal offenses that would render an inmate ineligible to participate in the Department's Temporary Release Program.
