(i) the inmate has not been convicted previously of, nor is presently serving a sentence imposed for a class A-I felony, a violent felony offense as defined in section 70.02 of the penal law, manslaughter in the second degree, vehicular manslaughter in the second degree, vehicular manslaughter in the first degree, criminally negligent homicide, an offense defined in article one hundred thirty of the penal law, incest, or an offense defined in article two hundred sixty-three of the penal law,

(ii) the inmate has not committed any serious disciplinary infraction, and

(iii) there has been no judicial determination that the person while an inmate commenced or continued a civil action, proceeding or claim that was found to be frivolous as defined in subdivision (c) of section eight thousand three hundred three-a of the civil practice law and rules, or an order has not been issued by a federal court pursuant to rule 11 of the federal rules of civil procedure imposing sanctions in an action commenced by the inmate against a state agency, officer or employee. 2. In the case of an inmate who meets the criteria set forth in subdivision one of this section and who also meets the criteria for merit time as provided for in paragraph (d) of subdivision one of section eight hundred three of this article, such inmate may be entitled to presumptive release, as provided in this section, at the expiration of five-sixths of the minimum or aggregate minimum period of his or her indeterminate term of imprisonment. 3. Any inmate eligible for presumptive release pursuant to this section shall be required to apply for such release pursuant to section two hundred six of this chapter. 4. The commissioner shall promulgate rules and regulations for the granting, withholding, cancellation and recission of presumptive release authorized by this section in accordance with law. 5. No person shall have the right to demand or require presumptive release authorized by this section. The commissioner may revoke at any time an inmate's scheduled presumptive release pursuant to this section for any disciplinary infraction committed by the inmate or for any failure to continue to participate successfully in any assigned work and treatment program after the certificate of earned eligibility has been awarded. The commissioner may deny presumptive release to any inmate whenever the commissioner determines that such release may not be consistent with the safety of the community or the welfare of the inmate. Any action by the commissioner pursuant to this section shall be deemed a judicial function and shall not be reviewable if done in accordance with law. 6. Any eligible inmate who is not released pursuant to subdivision one or two of this section shall be considered for discretionary release on parole pursuant to the provisions of section eight hundred five of this article or section two hundred fifty-nine-i of the executive law, whichever is applicable. 7. Any reference to parole and conditional release in this chapter shall also be deemed to include presumptive release. * NB Repealed September 1, 2020