(ii) Under the Drug Law Reform enacted on April 7, 2009, inmates serving determinant sentences as 2nd felony drug inmates wherein one of the present convictions is a Class B felony drug offense must have a total amount in custody, including any jail time, of at least 18 months to be eligible to participate in temporary release.

(iii) 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 (YO) for any of the following violent felony offenses where the crime involved either being armed with, the use of, the threatened use of, or the possession with the intent to use unlawfully against another, a deadly weapon or a dangerous instrument, or the crime involved the infliction of serious physical injury. The offender rehabilitation coordinator must submit a violent felony offense (VFO) review to central office temporary release programs for inmates where current instant offenses are of the following or YO for any of the following violent felony offenses.

(iv) An inmate who can provide the temporary release committee chairperson with a court-generated document or document generated by the Office of the District Attorney which establishes that his/her current commitment is for a subdivision of one of the above listed crimes which did not involve: being armed with, the use of or threatened use of, or the possession with the intent to use unlawfully against another of, a deadly weapon or a dangerous instrument or the infliction of a serious physical injury as defined in the Penal Law, shall be otherwise eligible for temporary release.

(ii) Except as provided by paragraph (4) of this subdivision, if an inmate's current commitment is the result of a conviction or YO for any of the following offenses, he/she is ineligible for the program:

(iii) An inmate is ineligible for participation in any program of temporary release when the current crime of commitment is included in the following or the current crime of commitment is an attempt or a conspiracy to commit the crime of:

(i) the victim of such homicide or assault was a member of the inmate's immediate family, i.e., the spouse, former spouse, parent, child, sibling, or any other person who regularly resides or who has resided in the household of the inmate, or had a child in common with the inmate; and

(ii) the inmate was subjected to substantial physical, sexual, or psychological abuse by the victim of such homicide or assault; and

(iii) such abuse was a substantial factor in causing the inmate to commit the homicide or assault.

(i) was eligible to participate in the shock incarceration program and chose not to participate in that program; or

(ii) entered the shock incarceration program but failed to successfully complete the program for any reason other than an intervening circumstance beyond the control of the inmate.

(i) The offender rehabilitation coordinator shall ensure that the inmate has none of the following warrants/detainers which would bar the inmate from participation in a temporary release program:

(ii) The offender rehabilitation coordinator shall make sure that the inmate has none of the following commitments which would bar him/her from participation in temporary release:

(iii) All outstanding charges must be resolved, regardless if there are active warrants or not and regardless of the time frame. The following procedure will be operative:

(ii) Inmates not under sentence for offenses as described in Correction Law, section 851.2(a), (b) and (c), may apply for and be permitted to participate in temporary release programs upon reception provided that a parole eligibility date is known, and that they are in all other ways eligible and qualified pursuant to the Correction Law and the rules and regulations of the temporary release program.

(iii) Return parole violators (RPV) must serve at least six months state time after their most recent return before they can apply for temporary release.

(iv) Interruptions in the serving of a sentence due to the inmate being out to court will not be counted toward the six-month custody requirement.

(i) Prior incarceration(s) following adjudication, if within the last 10 years prior to his/her current incarceration the inmate has not been in jail or prison as a result of a conviction, he/she scores +1 point. If the only incarceration in the last 10 years resulted from a misdemeanor or YO adjudication, he/she scores 0 points. If he/she was incarcerated within the last 10 years for a felony adjudication, he/she scores −1 point. Sentences to time served are counted as incarceration after adjudication. (The 10-year period is counted back from the date of the current incarceration, excluding any period of incarceration in that time, in effect, extending the 10-year period by an equal amount of time.)

(ii) Prior or subsequent felony convictions.

(iii) Prior or subsequent misdemeanor convictions.

(iv) Outstanding warrants at time of or subsequent date of commitment. (+2 points if none, 0 points if 1 or more.) If an inmate had any outstanding criminal warrants at the time of his/her incarceration or had any lodged after he/she was incarcerated, he/she gets no points. He/she gets 2 points if he/she had no outstanding criminal warrants. Alimony, child support or paternity warrants and warrants which the inmate can show were cleared solely for lack of evidence or solely due to mistaken identity shall not be counted. Those New York State parole violators returned to custody are scored as having no New York State parole warrants pending.

(v) Previous arrest and conviction or revocation while on parole or probation in last 10 years (or subsequent to commitment date of current incarceration) if resulting from abscondance, rearrest or technical violation (+2 points if none, 0 points if one or more). (The 10-year period is counted back from the date of the current incarceration, excluding any period of incarceration in that time, in effect, extending the 10-year period by an equal amount of time.) If within the last 10 years, the inmate never had parole or probation revoked because of arrest, absconding or technical violation, he/she get 2 points. Otherwise, he/she gets no points. It is presumed in the absence of a formal revocation proceeding that parole or probation has been revoked following rearrest and conviction, or absconding.

(vi) Nature of prior, current and subsequent convictions of crimes against the person within the last 10 years or subsequent to date of commitment of current incarceration (−6 points as noted below; −4 points as noted below; −2 points as noted below; 0 points if crime is not listed below or is an attempt of a crime not listed below. The 10-year period is counted back from the date of current incarceration, excluding any period of incarceration in that time, in effect, extending the 10-year period by an equal amount of time.

(ii) Program participation II (maximum 1 point). An inmate may earn this point by accumulating eight months of participation in a program or work assignment for the period of 25-36 months prior to application. An inmate can earn 1 point by getting eight months credit for participation in programs or work assignment in the period 25-36 months prior to his/her application. He/she cannot earn this point unless he/she has been incarcerated for more than 24 months.

(iii) Discipline I (maximum 4 points) (+1 point if 0 disciplinary proceeding decisions in the last three months imposing a loss of any privileges for 14 days or more, or any term of special housing or keeplock; +1 point if one or fewer disciplinary proceeding decisions imposing such penalties in the last six months; +1 point if two or fewer disciplinary proceeding decisions imposing such penalties in the last nine months; +1 point if three or fewer disciplinary proceeding decisions imposing such penalties in the last 12 months. Good time lost will be equated to keeplock for point-scoring purpose). In this subparagraph an inmate can earn up to 4 points. He/she can earn a point for having a good disciplinary record over the last three months, another point for having a good record over the last six months, another point for having a good record over the last 9 months, and a fourth point for having a good record over the last year. Therefore, it is possible to score 0, 1, 2, 3, or 4 points on this item. An inmate gets 1 point for having no counted disciplinary proceedings in the last three months, another point for having one or fewer counted proceedings over the last six months, another point for having two or fewer counted proceedings over the last nine months, and another point for having three or fewer counted proceedings over the last 12 months. Only disciplinary proceedings resulting in penalties of room/dorm restrictions, keeplock or special housing, or 14 days or more loss of privileges are counted for the purposes of this item.

(iv) Discipline II (maximum 1 point). (+1 point if three or fewer disciplinary proceedings decisions imposing any term of special housing or decisions imposing any term of special housing or keeplock, or a loss of any privilege for 14 days or more in the period 12-24 months prior to application, provided that the inmate has been incarcerated at least 24 consecutive months in a New York State Department of Corrections and Community Supervision facility at the time of application; 0 points if four or more). An inmate can earn 1 point on this item if he/she has been incarcerated for at least 24 months and if during the period 12-24 months prior to application he/she had three or fewer disciplinary proceedings resulting in any penalty of special housing or keeplock, room/dorm restrictions or in a loss of privileges for 14 days or more.

(v) Temporary release record.

(i) After each individual has been scored, the number of points is totaled. A standard adjustment, +26 points, is added to that total to assure the final score is not negative.

(ii) There are five scoring ranges: low-denied, low-open date (O.D.), low probation eligible, nonstatutory high, and refer to temporary release committee. Low-denied scores cannot be accepted into temporary release programs. Other scores will be referred to the temporary release committee for recommendation.

(i) review all available inmate records to determine if official documentation exists to verify that the inmate was subjected to substantial physical, sexual, or psychological abuse, committed by the victim, and that such abuse was a substantial factor in causing the inmate to commit the crime. This documentation may include, but is not limited to, witness statements, social service records, hospital records, and 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; and

(ii) send letters to the prosecuting district attorney and the sentencing court requesting opinions on the inmate's claim of eligibility for temporary release pursuant to subdivision (c) of this section and advising that responses will be taken into consideration if received within 45 days.

(i) he/she has been given an O.D. (community preparation open date) status by the parole board and central office approval has been obtained;

(ii) he/she is a graduate of the shock incarceration program;

(iii) he/she is a graduate of the CASAT annex program;

(iv) he/she is a first felony offender who legally would have been eligible to receive a sentence of probation instead of the sentence of imprisonment that was actually imposed: probation eligible.

(i) any prior or instant arson-related convictions;

(ii) prior or instant sex-related felonies;

(iii) any convictions for conspiracy, criminal facilitation or criminal solicitation, involving cases which would normally be considered "statutory" in nature;

(iv) cases with three or more felony convictions, including any YO adjudications or felony offenses;

(v) prior parole violations and/or prior temporary release program violations or removals;

(vi) a mental health history includes one or more of the following factors:

(vii) any kidnapping convictions; and

(viii) if the victim(s) or bystander(s) as a result of the instant offense (I.O.) incurred physical injury and the I.O. is not already statutory review.