Bill Text: NY A05493 | 2019-2020 | General Assembly | Amended


Bill Title: Modifies the standard of evidence and certain other procedures when determining whether to revoke the community supervision of a person.

Spectrum: Partisan Bill (Democrat 19-0)

Status: (Introduced) 2019-04-30 - print number 5493a [A05493 Detail]

Download: New_York-2019-A05493-Amended.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                         5493--A
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    February 12, 2019
                                       ___________
        Introduced by M. of A. MOSLEY, ORTIZ, D'URSO, WEPRIN, TAYLOR, GOTTFRIED,
          HYNDMAN,  O'DONNELL  --  read  once  and  referred to the Committee on
          Correction -- committee discharged, bill amended, ordered reprinted as
          amended and recommitted to said committee
        AN ACT to amend the executive law and the  penal  law,  in  relation  to
          revocation of community supervision
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Section 259 of the executive law is amended by  adding  two
     2  new subdivisions 5 and 6 to read as follows:
     3    5.  "Releasee"  means an individual released from an institution under
     4  the jurisdiction of the  department  into  the  community  on  temporary
     5  release,  presumptive release, parole, conditional release, post-release
     6  supervision or medical parole.
     7    6. "Technical violation" means any violation of a condition of  commu-
     8  nity  supervision  other  than a conviction for a felony offense or that
     9  has been proven to be a misdemeanor offense under section 121.11, 135.05
    10  or 135.45 or article 120 or 130 of the penal law.
    11    § 2. Subdivision 3 of section 70.40 of the penal law,  paragraphs  (a)
    12  and (b) as amended by section 127-h of subpart B of part C of chapter 62
    13  of  the  laws of 2011 and paragraph (c) as amended by chapter 478 of the
    14  laws of 1973, is amended and a new subdivision 4 is  added  to  read  as
    15  follows:
    16    3.  Delinquency.  (a)  When  a  person is alleged to have violated the
    17  terms of presumptive release or parole  willfully  for  the  purpose  of
    18  permanently  avoiding supervision by failing to notify his or her commu-
    19  nity supervision officer of a  change  in  residence,  failing  to  make
    20  office  or written reports as directed, or leaving the state of New York
    21  or any other state to which the releasee is released or transferred,  or
    22  any  area  defined in writing by his parole officer, without permission,
    23  and the state board of parole has declared such person to be delinquent,
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06090-06-9

        A. 5493--A                          2
     1  the declaration of delinquency shall interrupt the person's sentence  as
     2  of  the  date  of  the  delinquency and such interruption shall continue
     3  until the [return of the person to an institution under the jurisdiction
     4  of  the  state  department  of  corrections  and  community supervision]
     5  execution of the warrant.
     6    (b) When a person is alleged to have violated the terms of his or  her
     7  conditional  release  or  post-release  supervision  willfully  for  the
     8  purpose of permanently avoiding supervision by failing to notify his  or
     9  her  community  supervision officer of a change in residence, failure to
    10  make office or written reports as directed, or leaving the state of  New
    11  York  or  any  other  state  to which the releasee is released or trans-
    12  ferred, or any area defined in writing by his  parole  officer,  without
    13  permission  and  has been declared delinquent by the parole board or the
    14  local  conditional  release  commission  having  supervision  over  such
    15  person,  the  declaration  of  delinquency shall interrupt the period of
    16  supervision or post-release supervision as of the date of the delinquen-
    17  cy. For a conditional release, such interruption  shall  continue  until
    18  the  [return  of  the person to the institution from which he or she was
    19  released or, if he or she was released from  an  institution  under  the
    20  jurisdiction of the state department of corrections and community super-
    21  vision,  to  an  institution  under the jurisdiction of that department.
    22  Upon such return,  the  person  shall  resume  service  of  his  or  her
    23  sentence]  execution  of the warrant.  For a person released to post-re-
    24  lease supervision, the provisions of section 70.45 of this article shall
    25  apply.
    26    (c) Any time spent by a person in custody from the time of [delinquen-
    27  cy] execution of a warrant pursuant  to  paragraph  (a)  of  subdivision
    28  three  of  section  two hundred fifty-nine-i of the executive law to the
    29  time service of the sentence resumes shall be credited against the  term
    30  or maximum term of the interrupted sentence[, provided:
    31    (i) that such custody was due to an arrest or surrender based upon the
    32  delinquency; or
    33    (ii)  that  such  custody arose from an arrest on another charge which
    34  culminated in a dismissal or an acquittal; or
    35    (iii) that such custody arose from an arrest on another  charge  which
    36  culminated in a conviction, but in such case, if a sentence of imprison-
    37  ment  was imposed, the credit allowed shall be limited to the portion of
    38  the time spent in custody that exceeds the period, term or maximum  term
    39  of imprisonment imposed for such conviction].
    40    4.  Earned  time  credits.  (a)  After  a person has begun a period of
    41  community supervision pursuant to this section and section 70.45 of this
    42  article, such period shall be reduced by thirty days  for  every  thirty
    43  days  that such person does not violate a condition of his or her commu-
    44  nity supervision, provided the person is not  subject  to  any  sentence
    45  with a maximum term of life imprisonment. The calculation of earned time
    46  credit  periods  shall  begin  on  the releasee's first day of community
    47  supervision and shall be awarded after each completed thirty day period.
    48  Any such awarded earned time  credits  shall  be  applied  against  such
    49  person's unserved portion of the maximum term, aggregate maximum term or
    50  period of post-release supervision for any current sentence.
    51    (b)  Earned time credits may be withheld or revoked only for the thir-
    52  ty-day period commencing from the date of violative  behavior  sustained
    53  at  a  final  revocation hearing, except that earned time credits may be
    54  withheld or revoked for the entire time period during which  a  releasee
    55  absconded  from supervision, as sustained at a final revocation hearing,
    56  and as defined in subparagraph (xii) of  paragraph  (f)  of  subdivision

        A. 5493--A                          3
     1  three  of section two hundred fifty-nine-i of the executive law.  Earned
     2  time credits may not be earned during a period of incarceration  imposed
     3  based  on  a  sustained  violation  or  new criminal conviction. After a
     4  sustained  violation,  the  calculation  of an earned time credit period
     5  shall recommence on the thirty-first day after the date of the violative
     6  behavior or, if the sustained violation resulted in a term of incarcera-
     7  tion, on the day the releasee  is  restored  to  community  supervision,
     8  whichever is later.
     9    (c)  When  a  person  is  subject to more than one period of community
    10  supervision, the reduction  authorized  in  this  subdivision  shall  be
    11  applied  to  every  period of parole or conditional release to which the
    12  person is subject.
    13    (d) Earned time credits shall be awarded  to  any  person  subject  to
    14  community  supervision  at  the  time this legislation becomes effective
    15  retroactive to the initial date such person began his  or  her  earliest
    16  current period of community supervision.  If a releasee's current period
    17  of  community supervision has been interrupted by a period of incarcera-
    18  tion prior to the effective date of the chapter of the laws of two thou-
    19  sand nineteen which added this subdivision and any portion of such peri-
    20  od of incarceration would have been ineligible for incarceration if such
    21  chapter of the laws of two thousand nineteen which added  this  subdivi-
    22  sion  had already been in effect, the department shall award retroactive
    23  earned time credits to the releasee for such ineligible portion of  such
    24  period  of  incarceration. The department shall have six months from the
    25  effective date of this subdivision to calculate all  retroactive  earned
    26  time  credits;  however,  the  department  of  corrections and community
    27  supervision shall prioritize earned time credit calculations for releas-
    28  ees whose terms of community supervision are due to terminate before the
    29  conclusion of such six months. Retroactive earned time credits shall not
    30  be awarded to any  releasee  serving  a  term  of  incarceration  for  a
    31  sustained  parole  violation  at  the  time of the effective date of the
    32  chapter of the laws of two thousand nineteen which added  this  subdivi-
    33  sion until the releasee is returned to community supervision.
    34    §  3. Paragraphs (d), (e) and (f) of subdivision 5 of section 70.45 of
    35  the penal law, as amended by section 127-j of subpart B  of  part  C  of
    36  chapter 62 of the laws of 2011, are amended to read as follows:
    37    (d)  When a person is alleged to have violated a condition of post-re-
    38  lease supervision willfully for  the  purpose  of  permanently  avoiding
    39  supervision  by  failing  to  notify  community supervision officer of a
    40  change in residence, failure  to  make  office  or  written  reports  as
    41  directed,  or  leaving the state of New York or any other state to which
    42  the releasee is released or transferred, or any area defined in  writing
    43  by  his  or her parole officer, without permission and the department of
    44  corrections and community supervision has declared  such  person  to  be
    45  delinquent: (i) the declaration of delinquency shall interrupt the peri-
    46  od  of  post-release  supervision; (ii) such interruption shall continue
    47  until the person is restored to post-release supervision; (iii)  if  the
    48  person is restored to post-release supervision without being returned to
    49  the  department of corrections and community supervision, any time spent
    50  in custody from the date of delinquency until  restoration  to  post-re-
    51  lease  supervision  shall  first be credited to the maximum or aggregate
    52  maximum term of the sentence or sentences of imprisonment, but  only  to
    53  the  extent  authorized  by  subdivision  three of section 70.40 of this
    54  article. Any time spent in custody solely pursuant to  such  delinquency
    55  after  completion  of  the  maximum  or  aggregate  maximum  term of the
    56  sentence or sentences of imprisonment shall be credited to the period of

        A. 5493--A                          4
     1  post-release supervision, if any; and (iv)  if  the  person  is  ordered
     2  returned to the department of corrections and community supervision, the
     3  person  shall  be  required  to  serve  the time assessment before being
     4  re-released  to  post-release  supervision. [In the event the balance of
     5  the remaining period of post-release supervision is six months or  less,
     6  such  time  assessment may be up to six months unless a longer period is
     7  authorized pursuant to subdivision one of  this  section.  The]  If  the
     8  person  is  detained  pursuant  to paragraph (a) of subdivision three of
     9  section two hundred fifty-nine-i of the executive law  pending  prelimi-
    10  nary or revocation hearings, the time assessment shall commence upon the
    11  execution  of  the  warrant. If a warrant was executed pursuant to para-
    12  graph (a) of subdivision three of section two  hundred  fifty-nine-i  of
    13  the executive law but a trial court released the person pending prelimi-
    14  nary or revocation hearings, the time assessment shall commence upon the
    15  issuance  of  a  determination after a final hearing that the person has
    16  violated one or more conditions  of  community  supervision,  and  shall
    17  include  the time period between execution of the warrant and release of
    18  the person pending preliminary or revocation hearings. If a releasee  is
    19  detained  on  bail  pursuant to section 530.10 of the criminal procedure
    20  law, the time assessment shall include any time the  releasee  spent  in
    21  such detention. If a notice of violation was issued pursuant to subdivi-
    22  sion three of section two hundred fifty-nine-i of the executive law, the
    23  time  assessment  shall  commence  upon  the issuance of a determination
    24  after a final hearing that the person has violated one  or  more  condi-
    25  tions  of  supervision.  While serving such assessment, the person shall
    26  not receive any  good  behavior  allowance  pursuant  to  section  eight
    27  hundred three of the correction law.  Any time spent in custody from the
    28  date  of  delinquency  until return to the department of corrections and
    29  community supervision shall first be credited to the maximum  or  aggre-
    30  gate maximum term of the sentence or sentences of imprisonment, but only
    31  to  the  extent authorized by subdivision three of section 70.40 of this
    32  article. The maximum or  aggregate  maximum  term  of  the  sentence  or
    33  sentences  of  imprisonment  shall  run while the person is serving such
    34  time assessment in the custody of  the  department  of  corrections  and
    35  community supervision. Any time spent in custody solely pursuant to such
    36  delinquency after completion of the maximum or aggregate maximum term of
    37  the sentence or sentences of imprisonment shall be credited to the peri-
    38  od of post-release supervision, if any.
    39    [(e) Notwithstanding paragraph (d) of this subdivision, in the event a
    40  person  is sentenced to one or more additional indeterminate or determi-
    41  nate term or terms of imprisonment prior to the completion of the period
    42  of post-release supervision, such  period  of  post-release  supervision
    43  shall  be  held  in  abeyance  and  the person shall be committed to the
    44  custody of the department of corrections and  community  supervision  in
    45  accordance  with  the  requirements of the prior and additional terms of
    46  imprisonment.
    47    (f) When a person serving a  period  of  post-release  supervision  is
    48  returned  to  the  department  of  corrections and community supervision
    49  pursuant to an additional consecutive sentence of imprisonment and with-
    50  out a declaration of delinquency, such  period  of  post-release  super-
    51  vision  shall  be held in abeyance while the person is in the custody of
    52  the department of corrections and community supervision. Such period  of
    53  post-release  supervision  shall resume running upon the person's re-re-
    54  lease.]
    55    § 4. Subparagraph (i) of paragraph (a) of  subdivision  3  of  section
    56  259-i  of  the  executive  law, as amended by chapter 545 of the laws of

        A. 5493--A                          5
     1  2015, is amended and five new subparagraphs (iv), (v), (vi),  (vii)  and
     2  (viii) are added to read as follows:
     3    (i)  If  the parole officer having charge of a presumptively released,
     4  paroled or conditionally released person or a person released  to  post-
     5  release  supervision or a person received under the uniform act for out-
     6  of-state parolee supervision shall have [reasonable] probable  cause  to
     7  believe  that such person has lapsed into criminal ways [or company], or
     8  has violated one or more conditions of his presumptive release,  parole,
     9  conditional  release  or  post-release  supervision, such parole officer
    10  shall report such fact to a member of the board, or to  any  officer  of
    11  the  department  designated by the board, and thereupon a written notice
    12  of violation may be issued, or if the person would be subject  to  rein-
    13  carceration pursuant to subparagraph (x) of paragraph (f) of this subdi-
    14  vision should the violation be sustained at a final revocation hearing a
    15  warrant may be issued for the retaking of such person and for his tempo-
    16  rary  detention  in  accordance  with the rules of the board unless such
    17  person has been determined to be currently unfit to proceed to trial  or
    18  is currently subject to a temporary or final order of observation pursu-
    19  ant  to  article  seven hundred thirty of the criminal procedure law, in
    20  which case no notice of violation or warrant shall be issued. The retak-
    21  ing and detention of any such person may be further regulated  by  rules
    22  and  regulations of the department not inconsistent with this article. A
    23  warrant issued pursuant to  this  section  shall  constitute  sufficient
    24  authority  to  the superintendent or other person in charge of any jail,
    25  penitentiary, lockup or detention pen to whom it is delivered to hold in
    26  temporary detention the person named therein[;  except  that  a  warrant
    27  issued  with respect to a person who has been released on medical parole
    28  pursuant to section two hundred fifty-nine-r of this article  and  whose
    29  parole is being revoked pursuant to paragraph (h) of subdivision four of
    30  such  section  shall constitute authority for the immediate placement of
    31  the parolee only into imprisonment in the custody of the  department  to
    32  hold  in  temporary detention. A warrant issued pursuant to this section
    33  shall also constitute sufficient authority to the person in charge of  a
    34  drug  treatment  campus, as defined in subdivision twenty of section two
    35  of the correction law, to hold the person named therein,  in  accordance
    36  with  the  procedural  requirements  of this section, for a period of at
    37  least ninety days  to  complete  an  intensive  drug  treatment  program
    38  mandated by the board as an alternative to presumptive release or parole
    39  or  conditional  release  revocation,  or the revocation of post-release
    40  supervision, and shall also constitute sufficient authority  for  return
    41  of  the  person  named  therein  to  local  custody to hold in temporary
    42  detention for further revocation proceedings in the  event  said  person
    43  does not successfully complete the intensive drug treatment program. The
    44  board's rules shall provide for cancellation of delinquency and restora-
    45  tion  to  supervision upon the successful completion of the program] for
    46  up to twenty-four hours  pending  a  recognizance  hearing  pursuant  to
    47  subparagraph  (iv) of this paragraph.  No notice of violation or warrant
    48  shall be issued due to a releasee being in the company of or  fraterniz-
    49  ing  with  any  person the releasee knows has a criminal record or knows
    50  has been adjudicated a youthful offender.
    51    (iv) Upon execution of a warrant issued pursuant to this section,  the
    52  authorized  officer shall take the releasee to the local trial court for
    53  a recognizance hearing. Such recognizance hearing shall commence  within
    54  twenty-four hours of the execution of the warrant.
    55    (v) At a recognizance hearing, the department shall have the burden to
    56  demonstrate  to  the court that the executed warrant was properly issued

        A. 5493--A                          6
     1  pursuant to this section and that the releasee is potentially subject to
     2  incarceration pursuant to paragraph (f) of this subdivision.
     3    (vi) At a recognizance hearing, the court shall consider all available
     4  evidence of the releasee's employment, family and community ties includ-
     5  ing  length  of  residency  in  the community, history of reporting in a
     6  timely fashion to a parole or supervisory officer, and other  indicators
     7  of  stability.  At the conclusion of the recognizance hearing, the court
     8  shall release the releasee on his or her  own  recognizance  unless  the
     9  court  finds  on  the  record or in writing that release on recognizance
    10  will not reasonably  assure  the  releasee's  appearance  at  subsequent
    11  preliminary  or  revocation hearings. In such instances, the court shall
    12  release the releasee under non-monetary conditions, selecting the  least
    13  restrictive  alternative  conditions  that  will  reasonably  assure the
    14  releasee's appearance at subsequent preliminary or revocation  hearings.
    15  The  court  shall  explain  its  choice of alternative conditions on the
    16  record or in writing. The releasee shall not be required to pay for  any
    17  part of the cost of release under non-monetary conditions. The court may
    18  order that the releasee be detained pending preliminary or final revoca-
    19  tion hearings only upon a finding that the releasee currently presents a
    20  substantial  risk  of  willfully failing to appear at the preliminary or
    21  final revocation hearings and that no non-monetary condition or combina-
    22  tion  of  conditions  in  the  community  will  reasonably  assure   the
    23  releasee's appearance at the preliminary or final revocation hearings.
    24    (vii)  The  alleged  violator  shall have a right to representation by
    25  counsel at the recognizance hearing. In any case, including when a court
    26  is called upon to evaluate the capacity of  an  alleged  violator  in  a
    27  recognizance  proceeding,  where  such  person  is financially unable to
    28  retain counsel, the criminal court of the city of New York,  the  county
    29  court  or district court in the county where the violation is alleged to
    30  have occurred or where the hearing is  held,  shall  assign  counsel  in
    31  accordance  with  the  county  or city plan for representation placed in
    32  operation pursuant to article eighteen-b of the county law.
    33    (viii) If a releasee is brought to or appears in a trial court due  to
    34  an  arrest  for  any alleged felony or misdemeanor, and at any point the
    35  department issues a warrant for the same alleged criminal conduct,  then
    36  the  court's  order pursuant to section 530.10 of the criminal procedure
    37  law shall control in determining whether the releasee shall be  detained
    38  pending  a preliminary or final revocation hearing, provided that at the
    39  time of the court's order, pursuant to section 530.10  of  the  criminal
    40  procedure law, the court was informed the releasee was subject to commu-
    41  nity supervision. Provided, however, that notwithstanding section 530.10
    42  of  the criminal procedure law, the court may order that the releasee be
    43  detained pending preliminary or final revocation hearings upon a finding
    44  on the record or in writing  that  the  releasee  currently  presents  a
    45  substantial  risk  of  willfully failing to appear at the preliminary or
    46  final revocation hearings and that no non-monetary condition or combina-
    47  tion of conditions in the community supervision will  reasonably  assure
    48  the  releasee's  appearance at the preliminary or final revocation hear-
    49  ings. If the criminal court imposes bail pursuant to section  530.10  of
    50  the  criminal  procedure law, and the releasee-defendant secures release
    51  by paying bail or by operation of law, then the releasee  shall  not  be
    52  detained  further  based solely on the warrant issued by the department;
    53  provided, however, if the department  issues  a  warrant  for  the  same
    54  alleged  criminal  conduct  after  the court's order pursuant to section
    55  530.10 of the criminal procedure law and the department can  demonstrate
    56  that  at  the  time of such court's order the court was not informed the

        A. 5493--A                          7
     1  releasee was subject to community supervision, then the court shall hold
     2  a recognizance hearing within twenty-four hours of the execution of  the
     3  warrant.
     4    § 5. Subparagraphs (i), (iii) and (iv) of paragraph (c) of subdivision
     5  3  of section 259-i of the executive law, subparagraph (i) as amended by
     6  section 11 of part E of chapter 62 of the laws  of  2003,  and  subpara-
     7  graphs (iii) and (iv) as amended by section 1 of part E of chapter 56 of
     8  the laws of 2007, are amended and two new subparagraphs (ix) and (x) are
     9  added to read as follows:
    10    (i)  [Within fifteen days after the warrant for retaking and temporary
    11  detention has been executed, unless the releasee has been convicted of a
    12  new crime committed while under presumptive release, parole, conditional
    13  release or post-release supervision, the board of  parole  shall  afford
    14  the alleged presumptive release, parole, conditional release or post-re-
    15  lease  supervision  violator  a  preliminary revocation hearing before a
    16  hearing officer designated by the board of parole. Such hearing  officer
    17  shall  not  have  had any prior supervisory involvement over the alleged
    18  violator] (A) For any alleged technical violation for which a notice  of
    19  violation  was  issued or a person was released on recognizance pursuant
    20  to subparagraph (iv) of paragraph (a) of this subdivision,  the  depart-
    21  ment shall within ten days of the issuance of the notice of violation or
    22  the  order  of  release  on recognizance afford the person a preliminary
    23  revocation hearing before a hearing officer designated  by  the  depart-
    24  ment.  Such  hearing  officer  shall  not have had any prior supervisory
    25  involvement over the alleged violator. Such hearing shall not be held at
    26  a correctional facility, detention center or local correctional  facili-
    27  ty.
    28    (B)  For  any  alleged technical violation for which a court issued an
    29  order detaining a person pursuant to subparagraph (iv) of paragraph  (a)
    30  of  this  subdivision and the person would be subject to reincarceration
    31  of up to thirty days or more pursuant to subparagraph (x)  of  paragraph
    32  (f)  of  this  subdivision  should the violation be sustained at a final
    33  revocation hearing, then within five days of the issuance of  the  order
    34  of detention the department shall afford such person a preliminary revo-
    35  cation  hearing  before  a hearing officer designated by the department.
    36  Such hearing officer shall not have had any prior  supervisory  involve-
    37  ment over the alleged violator.
    38    (C)  For  any  alleged non-technical violation, within ten days of the
    39  execution of the warrant for the violation the department  shall  afford
    40  such person a preliminary hearing before a hearing officer designated by
    41  the department. Such hearing officer shall not have had any prior super-
    42  visory involvement over the alleged violator.
    43    (iii)  The alleged violator shall, [within three days of the execution
    44  of the warrant] at the time a notice of violation is issued  or  at  the
    45  time  of  a  recognizance  hearing, be given written notice of the time,
    46  place and purpose of the  preliminary  hearing  [unless  he  or  she  is
    47  detained  pursuant  to  the provisions of subparagraph (iv) of paragraph
    48  (a) of this subdivision. In those instances, the alleged  violator  will
    49  be  given  written  notice of the time, place and purpose of the hearing
    50  within five days of the execution of the warrant], or if no  preliminary
    51  hearing  is  required  pursuant to this section, of the final revocation
    52  hearing.   The  notice  shall  state  what  conditions  of  [presumptive
    53  release,  parole,  conditional release or post-release] community super-
    54  vision are alleged to have been violated, and in what manner; that  such
    55  person  shall  have  the  right  to  appear  and speak in his or her own
    56  behalf; that he or she shall have the right  to  introduce  letters  and

        A. 5493--A                          8
     1  documents;  that  he  or she may present witnesses who can give relevant
     2  information to the hearing officer; that he or  she  has  the  right  to
     3  confront  the  witnesses  against him or her; and that such person shall
     4  have the right to representation by counsel at any preliminary and final
     5  revocation  hearings.   Adverse witnesses may be compelled to attend the
     6  preliminary hearing unless the prisoner has  been  convicted  of  a  new
     7  crime  while  on  supervision  or  unless the hearing officer finds good
     8  cause for their non-attendance. As far as practicable or  feasible,  any
     9  additional  documents having been collected or prepared that support the
    10  charge shall be delivered to the alleged violator.
    11    (iv) [The preliminary hearing shall be  scheduled  to  take  place  no
    12  later  than fifteen days from the date of execution of the warrant.] The
    13  standard of proof at the preliminary hearing shall be [probable cause] a
    14  preponderance of the evidence to believe that the [presumptive releasee,
    15  parolee, conditional releasee or person under post-release  supervision]
    16  releasee  has violated one or more conditions of his or her [presumptive
    17  release, parole, conditional release or post-release]  community  super-
    18  vision in an important respect. Proof of conviction of a crime committed
    19  while  under  supervision  shall constitute [probable cause] prima facie
    20  evidence of a violation of a condition of community supervision for  the
    21  purposes of this section.
    22    (ix)  If  the hearing officer finds by a preponderance of the evidence
    23  that such person has violated one or more conditions of community super-
    24  vision in an important respect, the releasee shall, at the conclusion of
    25  the preliminary hearing be given written notice of the time,  place  and
    26  purpose  of  the  final  revocation hearing. The notice shall state what
    27  conditions of community supervision are alleged to have  been  violated,
    28  when, where and in what manner; that such person shall have the right to
    29  representation  by  counsel  at  any final revocation hearing; that such
    30  person shall have the right to appear  and  speak  in  his  or  her  own
    31  behalf;  that  he  or  she shall have the right to introduce letters and
    32  documents; that he or she may present witnesses who  can  give  relevant
    33  information  to  the  hearing  officer;  that he or she has the right to
    34  confront the witnesses against him or her.  As  far  as  practicable  or
    35  feasible,  any  additional  documents  having been collected or prepared
    36  that support the charge shall be  delivered  to  the  releasee.  Adverse
    37  witnesses may be compelled to attend the final revocation hearing unless
    38  the  prisoner  has been convicted of a new crime while on supervision or
    39  unless the hearing officer finds good cause for their non-attendance.
    40    (x) The alleged violator shall have a right to representation by coun-
    41  sel at the preliminary hearing. In any case, including when a  court  is
    42  called upon to evaluate the capacity of an alleged violator in a prelim-
    43  inary  proceeding,  where  such  person  is financially unable to retain
    44  counsel, the criminal court of the city of New York, the county court or
    45  district court in the county where the  violation  is  alleged  to  have
    46  occurred  or  where the hearing is held, shall assign counsel in accord-
    47  ance with the county or city plan for representation placed in operation
    48  pursuant to article eighteen-b of the county law.
    49    § 6. Paragraph (f) of subdivision 3 of section 259-i of the  executive
    50  law,  as  amended  by  section 11 of part E of chapter 62 of the laws of
    51  2003, subparagraph (v) as amended and subparagraph  (xii)  as  added  by
    52  chapter  545  of  the  laws  of  2015 and subparagraph (x) as amended by
    53  section 38-f-1 of subpart A of part C of chapter 62 of the laws of 2011,
    54  is amended to read as follows:

        A. 5493--A                          9
     1    (f) (i) [Revocation hearings shall be  scheduled  to  be  held  within
     2  ninety  days  of  the  probable  cause  determination]  For any releasee
     3  charged with a violation:
     4    (A)  If  a  court  issued  an  order detaining such person pursuant to
     5  subparagraph (iv) of paragraph (a) of this subdivision  and  the  person
     6  would  be  subject  to  reincarceration  of up to seven days pursuant to
     7  subparagraph (x) of this paragraph should the violation be sustained  at
     8  a  final revocation hearing, then within two days of the issuance of the
     9  order of detention, the department shall  afford  such  person  a  final
    10  revocation  hearing in person before a hearing officer designated by the
    11  department. Such hearing officer shall not have had any prior superviso-
    12  ry involvement over the  alleged  violator.  No  preliminary  revocation
    13  hearing shall be held in this instance.
    14    (B)  If  a  court  issued  an  order detaining such person pursuant to
    15  subparagraph (iv) of paragraph (a) of this subdivision  and  the  person
    16  would  be  subject  to reincarceration of up to fifteen days pursuant to
    17  subparagraph (x) of this paragraph should the violation be sustained  at
    18  a final revocation hearing, then within four days of the issuance of the
    19  order  of  detention,  the  department  shall afford such person a final
    20  revocation hearing in person before a hearing officer designated by  the
    21  department. Such hearing officer shall not have had any prior superviso-
    22  ry  involvement  over  the  alleged  violator. No preliminary revocation
    23  hearing shall be held in this instance.
    24    (C) If a court issued an  order  detaining  such  person  pursuant  to
    25  subparagraph  (iv)  of  paragraph (a) of this subdivision and the person
    26  would be subject to reincarceration of up to thirty days or more  pursu-
    27  ant  to  subparagraph  (x)  of  this  paragraph  should the violation be
    28  sustained at a final revocation hearing, then within ten days after  the
    29  issuance  of  the  order  of detention, the department shall afford such
    30  person a final revocation hearing in person  before  a  hearing  officer
    31  designated  by  the  department. Such hearing officer shall not have had
    32  any prior supervisory involvement over the alleged violator.
    33    (D) If a notice of violation was issued or such person was released on
    34  recognizance pursuant to subparagraph (iv)  of  paragraph  (a)  of  this
    35  subdivision  the  department shall within thirty days of the issuance of
    36  the notice of violation or the order of release on  recognizance  afford
    37  the person a final revocation hearing in person before a hearing officer
    38  designated  by  the  department. Such hearing officer shall not have had
    39  any prior supervisory involvement over the alleged violator.  Such hear-
    40  ing shall not be held at a correctional facility,  detention  center  or
    41  local  correctional  facility. The department shall have six months from
    42  the date of the effective date of the chapter of the laws of  two  thou-
    43  sand nineteen that amended this paragraph to begin to hold such hearings
    44  at allowable locations.
    45    (E)  If  such  person  is  accused  of  a non-technical violation, the
    46  department shall within thirty days of  the  execution  of  the  warrant
    47  afford such person a final revocation hearing in person before a hearing
    48  officer  designated  by  the  department. Such hearing officer shall not
    49  have had any supervisory involvement over the alleged violator.
    50    (F) However, if an alleged violator requests and  receives  any  post-
    51  ponement  of  his revocation hearing, or consents to a postponed revoca-
    52  tion proceeding initiated by the board, or if an  alleged  violator,  by
    53  his  actions otherwise precludes the prompt conduct of such proceedings,
    54  the time limit may be extended.

        A. 5493--A                         10
     1    (ii) The revocation hearing shall be conducted by a presiding  officer
     2  who  may  be  a  member  or a hearing officer designated by the board in
     3  accordance with rules of the board.
     4    (iii) Both the alleged violator and an attorney who has filed a notice
     5  of appearance on his behalf in accordance with the rules of the board of
     6  parole  shall be given written notice of the date, place and time of the
     7  hearing [as soon as possible but at least fourteen  days  prior  to  the
     8  scheduled  date]  pursuant to subparagraph (ix) of paragraph (c) of this
     9  subdivision.
    10    (iv) The alleged violator shall be given written notice of the  rights
    11  enumerated in subparagraph (iii) of paragraph (c) of this subdivision as
    12  well as of his right to present mitigating evidence relevant to restora-
    13  tion to presumptive release, parole, conditional release or post-release
    14  supervision and his right to counsel.
    15    (v)  The  alleged violator shall [be permitted] have a right to repre-
    16  sentation by counsel at the revocation hearing. In any  case,  including
    17  when  a  superior  court  is  called upon to evaluate the capacity of an
    18  alleged violator in a [parole] revocation proceeding, where such  person
    19  is  financially unable to retain counsel, the criminal court of the city
    20  of New York, the county court or district court in the county where  the
    21  violation  is  alleged  to  have  occurred or where the hearing is held,
    22  shall assign counsel in accordance with the  county  or  city  plan  for
    23  representation placed in operation pursuant to article eighteen-B of the
    24  county law. He or she shall have the right to confront and cross-examine
    25  adverse  witnesses,  unless there is good cause for their non-attendance
    26  as determined by the presiding officer; present witnesses and documenta-
    27  ry evidence in defense of the charges; and present witnesses  and  docu-
    28  mentary evidence relevant to the question whether reincarceration of the
    29  alleged violator is appropriate.
    30    (vi)  At  the  revocation  hearing,  the charges shall be read and the
    31  alleged violator shall be permitted to plead not guilty, guilty,  guilty
    32  with  explanation or to stand mute. As to each charge, evidence shall be
    33  introduced through witnesses and documents, if any, in support  of  that
    34  charge.  At  the conclusion of each witness's direct testimony, he shall
    35  be made available for cross-examination. If the alleged violator intends
    36  to present a defense to the charges or to present evidence of mitigating
    37  circumstances, the alleged violator shall do so  after  presentation  of
    38  all  the  evidence  in  support  of  a violation of presumptive release,
    39  parole, conditional release or post-release supervision.
    40    (vii) All persons giving evidence at the revocation hearing  shall  be
    41  sworn before giving any testimony as provided by law.
    42    (viii)  At  the  conclusion  of  the hearing the presiding officer may
    43  sustain any or all of the violation charges or may dismiss  any  or  all
    44  violation  charges. He may sustain a violation charge only if the charge
    45  is supported by [a preponderance of  the  evidence  adduced]  clear  and
    46  convincing  evidence.  Conduct  that formed the basis of an arrest shall
    47  not form a basis of a sustained parole violation if a court has  adjudi-
    48  cated  the  matter  with  an  acquittal, adjournment in contemplation of
    49  dismissal, or violation.
    50    (ix) If the presiding officer  is  not  satisfied  that  there  is  [a
    51  preponderance  of]  clear  and  convincing  evidence  in  support of the
    52  violation, he shall dismiss the violation, cancel  the  delinquency  and
    53  restore  the  person to presumptive release, parole, conditional release
    54  or post-release supervision.
    55    (x) If the presiding officer is satisfied that there is [a  preponder-
    56  ance  of]  clear  and  convincing  evidence  that  the  alleged violator

        A. 5493--A                         11
     1  violated one or more conditions of release in an important  respect,  he
     2  or  she shall so find.  For each violation found, other than absconding,
     3  the presiding officer shall direct that no earned time credits shall  be
     4  awarded  for  the  thirty  day  period  commencing  from the date of the
     5  sustained violation. For any absconding violation found,  the  presiding
     6  officer  shall  direct  that no earned time credits shall be awarded for
     7  the entire time period  during  which  a  releasee  was  found  to  have
     8  absconded from supervision.
     9    (xi)  Incarceration  shall  not  be  imposed  for any of the following
    10  violations: (A) positive drug test for drugs or a  controlled  substance
    11  without  proper  medical  authorization, or possession of drug parapher-
    12  nalia, unless the releasee is subject to community supervision due to  a
    13  conviction  for driving while ability impaired at least in part by drugs
    14  pursuant to section eleven hundred ninety-two of the vehicle and traffic
    15  law; (B) positive alcohol test or use or possession of  alcohol,  unless
    16  the releasee is subject to community supervision due to a conviction for
    17  driving  while  ability  impaired  at  least in part by alcohol or while
    18  intoxicated pursuant to section eleven hundred ninety-two of the vehicle
    19  and traffic law; (C) failing to notify community supervision officer  of
    20  a change in employment or program status; (D) failing to notify communi-
    21  ty  supervision  officer  of  a  change  in  residence, absent clear and
    22  convincing evidence that the releasee acted willfully for the purpose of
    23  permanently avoiding supervision; (E) violating curfew; (F)  failure  to
    24  pay  surcharges  and  fees,  including  fees imposed pursuant to section
    25  60.35 of the penal law, sections  eighteen  hundred  nine  and  eighteen
    26  hundred  nine-c  of the vehicle and traffic law, or section 27.12 of the
    27  parks, recreation and historic preservation law;  (G)  failure  to  make
    28  office  or  written  reports  as  directed,  absent clear and convincing
    29  evidence that the releasee acted willfully for the purpose of permanent-
    30  ly avoiding supervision; (H) leaving the state of New York or any  other
    31  state  to  which  the  releasee  is released or transferred, or any area
    32  defined in writing by his parole  officer,  without  permission,  absent
    33  clear  and convincing evidence that the releasee acted willfully for the
    34  purpose of permanently  avoiding  supervision;  (I)  failure  to  notify
    35  community  supervision officer of contact with any law enforcement agen-
    36  cy, absent clear and convincing evidence that the releasee  intended  to
    37  hide evidence of his or others' behavior that constitutes a violation of
    38  the  penal  law;  (J)  failure  to  obey special conditions of community
    39  supervision, absent clear and convincing evidence that the failure poses
    40  a substantial risk to public safety and cannot be  addressed  safely  in
    41  the  community including with counseling or programming; and (K) obtain-
    42  ing a driver's license or driving a car with a valid  driver's  license,
    43  unless   either   action   is  explicitly  prohibited  by  the  person's
    44  conviction.
    45    (xii) For each violation [so] found, the  presiding  officer  may  (A)
    46  direct  that the [presumptive releasee, parolee, conditional releasee or
    47  person  serving  a  period  of  post-release  supervision]  releasee  be
    48  restored  to  supervision;  (B)  as  an  alternative to reincarceration,
    49  direct the  [presumptive  releasee,  parolee,  conditional  releasee  or
    50  person  serving  a  period  of  post-release  supervision be placed in a
    51  parole transition facility for a period not to exceed one hundred eighty
    52  days and subsequent restoration to supervision] releasee receive  re-en-
    53  try services in the community from qualified nonprofit agencies; (C) [in
    54  the  case  of presumptive releasees, parolees or conditional releasees,]
    55  direct the violator's reincarceration [and fix a date for  consideration
    56  by  the board for re-release on presumptive release, or parole or condi-

        A. 5493--A                         12

     1  tional release, as the case may be;  or  (D)  in  the  case  of  persons
     2  released  to a period of post-release supervision, direct the violator's
     3  reincarceration up to the balance of the remaining  period  of  post-re-
     4  lease  supervision,  not to exceed five years; provided, however, that a
     5  defendant serving a term of post-release supervision for a conviction of
     6  a felony sex offense defined in section 70.80 of the penal  law  may  be
     7  subject  to  a  further  period of imprisonment up to the balance of the
     8  remaining period of post-release supervision], subject to the  following
     9  limitations:  (1)  for absconding, which is defined as failing to notify
    10  his or her community supervision officer of a change in residence  will-
    11  fully  for  the  purpose of permanently avoiding supervision; failure to
    12  make office or written reports as directed willfully for the purpose  of
    13  permanently  avoiding  supervision; and leaving the state of New York or
    14  any other state to which the releasee is released or transferred, or any
    15  area defined in writing by his parole officer, without permission, will-
    16  fully for the purpose of permanently avoiding supervision, up  to  seven
    17  days incarceration may be imposed for the first violation, up to fifteen
    18  days  incarceration  may  be imposed for the second violation, and up to
    19  thirty days incarceration may be imposed for the third or any subsequent
    20  violation; (2) for all other technical violations for  which  incarcera-
    21  tion  may be imposed no period of reincarceration may be imposed for the
    22  first and second substantiated technical violations for which incarcera-
    23  tion may be imposed; up to seven days reincarceration may be imposed for
    24  the third substantiated technical violation for which incarceration  may
    25  be  imposed;  up  to fifteen days reincarceration may be imposed for the
    26  fourth substantiated technical violation for which incarceration may  be
    27  imposed;  up to thirty days reincarceration may be imposed for the fifth
    28  and subsequent substantiated technical violations for  which  incarcera-
    29  tion  may be imposed; and (3) for non-technical violations, up to ninety
    30  days reincarceration may be imposed. If a warrant was executed  pursuant
    31  to subparagraph (iv) of paragraph (a) of this subdivision and the person
    32  was  detained pursuant to such subparagraph pending preliminary or revo-
    33  cation hearings, any period of incarceration imposed  pursuant  to  this
    34  paragraph  shall  be  counted  from  the  date  of  the execution of the
    35  warrant. If a warrant was executed  pursuant  to  subparagraph  (iv)  of
    36  paragraph  (a)  of  this  subdivision  but a criminal court released the
    37  person pending preliminary or revocation hearings, any period of  incar-
    38  ceration  imposed  pursuant  to this paragraph shall be counted from the
    39  date of issuance of a determination  after  a  final  hearing  that  the
    40  person has violated one or more conditions of community supervision, and
    41  the  time  between  execution  of  the warrant and release of the person
    42  pending preliminary or revocation hearings shall count toward the period
    43  of reincarceration imposed pursuant to this paragraph. If a releasee  is
    44  detained  on bail or committed to the custody of the sheriff pursuant to
    45  section 530.10 of the criminal procedure law, any time the person  spent
    46  confined in jail shall count towards any period of incarceration imposed
    47  pursuant  to  this  paragraph. In all cases, the presiding officer shall
    48  impose the least restrictive reasonable sanction. Any periods  of  rein-
    49  carceration shall run concurrently if more than one violation is adjudi-
    50  cated.  If  a  period of incarceration is imposed pursuant to this para-
    51  graph, the releasee shall be released from custody  upon  expiration  of
    52  the period or the end of the releasee's period of community supervision,
    53  whichever  shall  be sooner.   For the violator serving an indeterminate
    54  sentence who while re-incarcerated has not been found by the  department
    55  to have committed a serious disciplinary infraction, such violator shall
    56  be  re-released  on  the  date  fixed at the revocation hearing. For the

        A. 5493--A                         13
     1  violator serving an indeterminate sentence who has  been  found  by  the
     2  department  to  have  committed  a serious disciplinary infraction while
     3  re-incarcerated, the department shall refer the violator  to  the  board
     4  for  consideration  for  re-release  to community supervision. Upon such
     5  referral the board may waive the personal interview between a member  or
     6  members  of  the board and the violator to determine the suitability for
     7  re-release when the board directs that the violator be re-released  upon
     8  expiration  of the time assessment. The board shall retain the authority
     9  to suspend the date fixed for re-release based on the violator's commis-
    10  sion of a serious disciplinary infraction and shall in such case require
    11  a personal interview be conducted within a  reasonable  time  between  a
    12  panel  of members of the board and the violator to determine suitability
    13  for re-release. If an interview is required, the board shall notify  the
    14  violator in advance of the date and time of such interview in accordance
    15  with the rules and regulations of the board.
    16    [(xi)]  (xiii)  If  the  presiding officer sustains any violations, he
    17  must prepare a written statement, to be made available  to  the  alleged
    18  violator  and  his  counsel, indicating the evidence relied upon and the
    19  reasons for revoking presumptive release, parole, conditional release or
    20  post-release supervision, and for the disposition made.
    21    [(xii)] (xiv) If at  any  time  during  a  revocation  proceeding  the
    22  alleged  violator,  his or her counsel, or an employee of the department
    23  contends, or if it reasonably appears to the hearing officer,  that  the
    24  alleged  violator  is an incapacitated person as that term is defined in
    25  subdivision one of section 730.10 of the criminal procedure law  and  no
    26  judicial  determination  has  been  made that the alleged violator is an
    27  incapacitated person, the revocation  proceeding  shall  be  temporarily
    28  stayed  until the superior court determines whether or not the person is
    29  fit to proceed. The matter shall be promptly referred  to  the  superior
    30  court  for determination of the alleged violator's fitness to proceed in
    31  a manner consistent with the provisions of article seven hundred  thirty
    32  of  the criminal procedure law, provided however that the superior court
    33  shall immediately appoint counsel for any unrepresented alleged violator
    34  eligible for appointed counsel under subparagraph (v) of this  paragraph
    35  [(f)  of  subdivision  three of section two hundred fifty-nine-i of this
    36  chapter]. The court shall decide whether or not the alleged violator  is
    37  incapacitated  within thirty days of the referral from the hearing offi-
    38  cer. If the court determines that the alleged violator is not  an  inca-
    39  pacitated  person,  the court shall order that the matter be returned to
    40  the board of parole for continuation and disposition of  the  revocation
    41  proceeding.  If  the  court  determines  that the alleged violator is an
    42  incapacitated person and if no felony charges are  pending  against  the
    43  alleged  violator,  the  court  shall issue a final order of observation
    44  committing such person to the custody  of  the  commissioner  of  mental
    45  health  or  the  commissioner of developmental disabilities for care and
    46  treatment in an appropriate institution  in  a  manner  consistent  with
    47  subdivision  one  of  section 730.40 of the criminal procedure law. If a
    48  final order of observation has been issued pursuant to this section, the
    49  hearing officer shall dismiss the violation charges and  such  dismissal
    50  shall  act as a bar to any further proceeding under this section against
    51  the alleged violator for such violations. If felony criminal charges are
    52  pending at any time against an alleged violator who has been referred to
    53  superior court for a fitness evaluation but before  a  determination  of
    54  fitness  has  been made pursuant to this section, the court shall decide
    55  whether or not the alleged violator is incapacitated pursuant to article
    56  seven hundred thirty of the criminal procedure law  and  the  revocation

        A. 5493--A                         14
     1  proceeding  shall  be  held  in  abeyance  until  such decision has been
     2  reached. The hearing officer shall adopt the  capacity  finding  of  the
     3  court  and either terminate the revocation process if an order of obser-
     4  vation has been made by the court or proceed with the revocation hearing
     5  if  the  alleged  violator  has  been  found  not to be an incapacitated
     6  person.
     7    § 7. Section 259-i of the executive law is amended  by  adding  a  new
     8  subdivision 9 to read as follows:
     9    9.  The board shall promulgate rules and regulations to facilitate the
    10  presence of nonprofit service providers able to offer relevant  communi-
    11  ty-based  services  to releasees at all preliminary and final revocation
    12  hearings for the purpose of helping people subject to  community  super-
    13  vision  successfully  complete  such  supervision  and avoid future such
    14  supervision, and to help ensure  presiding  officers  impose  the  least
    15  restrictive  reasonable  sanction  for any violation of community super-
    16  vision.
    17    § 8. This act shall take effect on the first of April next  succeeding
    18  the  date  on  which  it  shall  have become a law; provided however the
    19  department of corrections  and  community  supervision  shall  have  six
    20  months  from the effective date of this act to begin holding preliminary
    21  revocation hearings required by  the  amendments  to  paragraph  (c)  of
    22  subdivision 3 of section 259-i of the executive law made by section five
    23  of  this  act,  including  establishing  preliminary  revocation hearing
    24  facilities that are not at correctional facilities for  people  who  are
    25  not detained pending their hearings. Provided further, however, that the
    26  board  of  parole  shall have two months from the effective date of this
    27  act to identify  each  releasee  incarcerated  for  a  sustained  parole
    28  violation  and  recalculate  such releasee's sentence in accordance with
    29  this act. If no incarceration may be imposed  pursuant  to  subparagraph
    30  (xi) of paragraph (f) of subdivision 3 of section 259-i of the executive
    31  law,  as  added  by section six of this act, the board shall immediately
    32  restore the releasee to community supervision. If the  releasee  may  be
    33  incarcerated  for the sustained violation the board shall fix a new date
    34  for release pursuant to subparagraph (xii) of paragraph (f) of  subdivi-
    35  sion  3 of section 259-i of the executive law, as amended by section six
    36  of this act. If such release date has passed, the board shall immediate-
    37  ly restore the releasee to community  supervision.    Provided  further,
    38  however,  the  department of corrections and community supervision shall
    39  have six months from the effective date of this act to set up the  final
    40  revocation  hearing  courtrooms  that are not at correctional facilities
    41  for people who are not detained pending their hearing  pursuant  to  the
    42  amendments  to  paragraph  (f)  of subdivision 3 of section 259-i of the
    43  executive law as made by section six of this act.  Effective  immediate-
    44  ly,  the  addition,  amendment  and/or  repeal of any rule or regulation
    45  necessary for the implementation of this act on its effective  date  are
    46  authorized  and  directed  to  be  made  and completed on or before such
    47  effective date.
feedback