(a) An inmate must satisfy all criteria set forth in subdivisions (b) through (g) of this section to be eligible for presumptive release.

1. (1) an A-I felony;
2. (2) a violent felony offense;
3. (3) manslaughter in the second degree;
4. (4) vehicular manslaughter in the first or second degree;
5. (5) criminally negligent homicide;
6. (6) incest;
7. (7) an offense defined in article 130 of the Penal Law (sex offense);
8. (8) an offense defined in article 263 of the Penal Law (use of a child in a sex performance);
9. (9) a hate crime as defined in article 485 of the Penal Law;
10. (10) an act of terrorism as defined in article 490 of the Penal Law; or
11. (11) aggravated harassment of an employee by an inmate; or

12. (12) any out-of-state conviction which has all of the essential elements of any of the offenses listed in paragraphs (1) through (10) of this subdivision.

    (c) Disciplinary record criteria.

    An inmate must not commit any serious disciplinary infraction. A serious disciplinary infraction shall be identified as behavior which results in criminal or disciplinary sanctions as follows:

13. (1) any conviction for a State or Federal crime that was committed after the inmate was committed to the Department of Correctional Services;

14. (2) a finding made under Part 253, except as noted, or 254 of this Title of violation of any of the following rules as described in section 270.2 of this Title:

    1. (i) 1.00 — Penal Law offenses;
    2. (ii) 100.10 — assault on inmate;
    3. (iii) 100.11 — assault on staff;
    4. (iv) 100.12 — assault on other;
    5. (v) 101.10 — sex offense;
    6. (vi) 101.20 — lewd exposure;
    7. (vii) 104.10 — rioting;
    8. (viii) 105.12 — unauthorized organization;
    9. (ix) 108.10 — escape;
    10. (x) 108.15 — abscondance;
    11. (xi) 113.10 — weapon;
    12. (xii) 113.13 — alcohol;
    13. (xiii) 113.24 — drug use;
    14. (xiv) 113.25 — drug possession;
    15. (xv) 117.10 — explosives;
    16. (xvi) 118.10 — arson;
    17. (xvii) 118.22 — unhygienic act (under Part 254 of this Title only); or
    18. (xviii) 180.14 — urinalysis violation;
15. (3) receipt of disciplinary sanctions under Part 253 or 254 of this Title which total 60 or more days of SHU and/or keeplock; or

16. (4) receipt of any recommended loss of good time as a disciplinary sanction under Part 254 of this Title.

    (d) Frivolous lawsuit.

    An inmate must not have filed an action, proceeding or claim against a State agency, officer or employee that was found to be frivolous pursuant to section 8303 of the Civil Practice Law and Rules, or rule 11 of the Federal Rules of Civil Procedure.

    (e) Alien status.

    A foreign-born inmate who is subject to deportation or exclusion and potentially eligible for a conditional parole pursuant to section 259-i(2)(d) of the executive law, is not eligible for presumptive release consideration.

    (f) Program criteria.

17. (1) An inmate must successfully participate in the assigned program(s) and/or work assignment(s) and be awarded a certificate of earned eligibility pursuant to Part 2100 of this Title.

18. (2) An inmate shall not be eligible for presumptive release if the inmate:

    1. (i) 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; or

    2. (ii) was a participant in the temporary release program but was removed for any reason other than an intervening circumstance beyond the control of the inmate.

       (g) Outstanding warrants, detainers, commitments and open charges.

19. (1) An inmate is not eligible for presumptive release if the inmate's file reveals any of the following:

    1. (i) an out-of-state or Federal felony warrant;
    2. (ii) a felony arrest warrant for a crime which is not barred by the statute of limitations as provided by Criminal Procedure Law section 30.10;
    3. (iii) a violation of probation warrant where the sentence of probation was imposed for a felony;
    4. (iv) a concurrent and/or consecutive commitment to a local New York State jurisdiction for a definite sentence that will have to be served in local custody;
    5. (v) a concurrent and/or consecutive out-of-state or Federal commitment; or
    6. (vi) an open felony charge in New York State.
20. (2) If there is a warrant or an indication of a warrant as described in subparagraph (1)(i), (ii) or (iii) of this subdivision, the correction counselor must initiate correspondence to the warrant issuing authority or agency to determine the status of the warrant and whether any charge is still outstanding. If no response is received to official departmental communication within 30 days of the request, it will be construed that the warrant in question is no longer active and is not a bar to the inmate's presumptive release.
21. (3) If there is an indication of an open felony charge in New York State which is not barred by the statute of limitations as provided by Criminal Procedure Law, section 30.10, the correction counselor must initiate correspondence to the charging authority to determine the status of the charge. If no response is received to official departmental communication within 30 days of the request, it will be construed that the charge in question is no longer active and is not a bar to the inmate's presumptive release.

(b) Crime, sentence, commitment and prior history criteria.

An inmate cannot presently be serving a sentence for, nor previously have been convicted of, any of the following crimes, or an attempt or conspiracy to commit any of the following crimes: