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

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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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 29-0)

Status: (Introduced - Dead) 2020-04-22 - print number 5493b [A05493 Detail]

Download: New_York-2019-A05493-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________
                                          5493
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    February 12, 2019
                                       ___________
        Introduced by M. of A. MOSLEY -- read once and referred to the Committee
          on Correction
        AN  ACT  to  amend  the  executive law and the penal law, in relation to
          revocation of presumptive release,  parole,  conditional  release  and
          post-release 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  an  allegation of a criminal act that is
     9  subsequently proven to be a conviction for a felony offense or that  has
    10  been  proven  to be a misdemeanor offense under section 135.05 or 135.45
    11  or article 120 or 130 of the penal law.
    12    § 2. Subdivision 3 of section 70.40 of the penal law,  paragraphs  (a)
    13  and (b) as amended by section 127-h of subpart B of part C of chapter 62
    14  of  the  laws of 2011 and paragraph (c) as amended by chapter 478 of the
    15  laws of 1973, is amended and a new subdivision 4 is  added  to  read  as
    16  follows:
    17    3.  Delinquency.  (a)  When  a  person is alleged to have violated the
    18  terms of presumptive release or parole  willfully  for  the  purpose  of
    19  permanently  avoiding supervision by failing to notify his or her commu-
    20  nity supervision officer of a  change  in  residence,  failing  to  make
    21  office  or written reports as directed, or leaving the state of New York
    22  or any other state to which the releasee is released or transferred,  or
    23  any  area  defined in writing by his parole officer, without permission,
    24  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.
                                                                   LBD06090-04-9
        A. 5493                             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. Any such awarded earned time
    46  credits shall be applied against such person's unserved portion  of  the
    47  maximum  term,  aggregate  maximum term or period of post-release super-
    48  vision for any current sentence.
    49    (b) Earned time credits may be withheld or revoked only for the  thir-
    50  ty-day  period  commencing from the date of violative behavior sustained
    51  at a final revocation hearing, except that earned time  credits  may  be
    52  withheld  or  revoked for the entire time period during which a releasee
    53  absconded from supervision, as sustained at a final revocation  hearing,
    54  and  as  defined  in  subparagraph (xii) of paragraph (f) of subdivision
    55  three of section two hundred fifty-nine-i of the executive law.   Earned
    56  time  credits may not be earned during a period of incarceration imposed
        A. 5493                             3
     1  based on a sustained violation. A new thirty-day period  shall  commence
     2  on  the  day  the  period  of  incarceration  ends or an order is issued
     3  restoring a person to supervision, whichever is earlier.
     4    (c)  When  a  person  is  subject to more than one period of community
     5  supervision, the reduction  authorized  in  this  subdivision  shall  be
     6  applied  to  every  period of parole or conditional release to which the
     7  person is subject.
     8    (d) Earned time credits shall be awarded  to  all  people  subject  to
     9  community  supervision  at  the  time this legislation becomes effective
    10  retroactive to the initial date the person began  his  or  her  earliest
    11  current  period of community supervision.  The department shall have six
    12  months from the effective date of this subdivision to calculate all such
    13  retroactive earned time credits; however, the department of  corrections
    14  and  community  supervision  shall  prioritize earned time credit calcu-
    15  lations for releasees whose terms of community supervision  are  due  to
    16  terminate before the conclusion of such six months.
    17    §  3. Paragraphs (d), (e) and (f) of subdivision 5 of section 70.45 of
    18  the penal law, as amended by section 127-j of subpart B  of  part  C  of
    19  chapter 62 of the laws of 2011, are amended to read as follows:
    20    (d)  When a person is alleged to have violated a condition of post-re-
    21  lease supervision willfully for  the  purpose  of  permanently  avoiding
    22  supervision  by  failing  to  notify  community supervision officer of a
    23  change in residence, failure  to  make  office  or  written  reports  as
    24  directed,  or  leaving the state of New York or any other state to which
    25  the releasee is released or transferred, or any area defined in  writing
    26  by  his  or her parole officer, without permission and the department of
    27  corrections and community supervision has declared  such  person  to  be
    28  delinquent: (i) the declaration of delinquency shall interrupt the peri-
    29  od  of  post-release  supervision; (ii) such interruption shall continue
    30  until the person is restored to post-release supervision; (iii)  if  the
    31  person is restored to post-release supervision without being returned to
    32  the  department of corrections and community supervision, any time spent
    33  in custody from the date of delinquency until  restoration  to  post-re-
    34  lease  supervision  shall  first be credited to the maximum or aggregate
    35  maximum term of the sentence or sentences of imprisonment, but  only  to
    36  the  extent  authorized  by  subdivision  three of section 70.40 of this
    37  article. Any time spent in custody solely pursuant to  such  delinquency
    38  after  completion  of  the  maximum  or  aggregate  maximum  term of the
    39  sentence or sentences of imprisonment shall be credited to the period of
    40  post-release supervision, if any; and (iv)  if  the  person  is  ordered
    41  returned to the department of corrections and community supervision, the
    42  person  shall  be  required  to  serve  the time assessment before being
    43  re-released to post-release supervision. [In the event  the  balance  of
    44  the  remaining period of post-release supervision is six months or less,
    45  such time assessment may be up to six months unless a longer  period  is
    46  authorized  pursuant  to  subdivision  one  of this section. The] If the
    47  person is detained pursuant to paragraph (a)  of  subdivision  three  of
    48  section  two  hundred fifty-nine-i of the executive law pending prelimi-
    49  nary or revocation hearings, the time assessment shall commence upon the
    50  execution of the warrant. If a warrant was executed  pursuant  to  para-
    51  graph  (a)  of  subdivision three of section two hundred fifty-nine-i of
    52  the executive law but a  criminal  court  released  the  person  pending
    53  preliminary  or  revocation hearings, the time assessment shall commence
    54  upon the issuance of a determination after  a  final  hearing  that  the
    55  person has violated one or more conditions of community supervision, and
    56  shall  include  the  time  period  between  execution of the warrant and
        A. 5493                             4
     1  release of the person pending preliminary or revocation hearings.  If  a
     2  releasee  is detained on bail pursuant to section 530.10 of the criminal
     3  procedure law, the time assessment shall include any time  the  releasee
     4  spent in such detention. If a notice of violation was issued pursuant to
     5  subdivision  three  of section two hundred fifty-nine-i of the executive
     6  law, the time assessment shall commence upon the issuance of a  determi-
     7  nation  after  a  final hearing that the person has violated one or more
     8  conditions of supervision. While serving  such  assessment,  the  person
     9  shall  not receive any good behavior allowance pursuant to section eight
    10  hundred three of the correction law.  Any time spent in custody from the
    11  date of delinquency until return to the department  of  corrections  and
    12  community  supervision  shall first be credited to the maximum or aggre-
    13  gate maximum term of the sentence or sentences of imprisonment, but only
    14  to the extent authorized by subdivision three of section 70.40  of  this
    15  article.  The  maximum  or  aggregate  maximum  term  of the sentence or
    16  sentences of imprisonment shall run while the  person  is  serving  such
    17  time  assessment  in  the  custody  of the department of corrections and
    18  community supervision. Any time spent in custody solely pursuant to such
    19  delinquency after completion of the maximum or aggregate maximum term of
    20  the sentence or sentences of imprisonment shall be credited to the peri-
    21  od of post-release supervision, if any.
    22    [(e) Notwithstanding paragraph (d) of this subdivision, in the event a
    23  person is sentenced to one or more additional indeterminate or  determi-
    24  nate term or terms of imprisonment prior to the completion of the period
    25  of  post-release  supervision,  such  period of post-release supervision
    26  shall be held in abeyance and the  person  shall  be  committed  to  the
    27  custody  of  the  department of corrections and community supervision in
    28  accordance with the requirements of the prior and  additional  terms  of
    29  imprisonment.
    30    (f)  When  a  person  serving  a period of post-release supervision is
    31  returned to the department  of  corrections  and  community  supervision
    32  pursuant to an additional consecutive sentence of imprisonment and with-
    33  out  a  declaration  of  delinquency, such period of post-release super-
    34  vision shall be held in abeyance while the person is in the  custody  of
    35  the  department of corrections and community supervision. Such period of
    36  post-release supervision shall resume running upon the  person's  re-re-
    37  lease.]
    38    §  4.  Subparagraph  (i)  of paragraph (a) of subdivision 3 of section
    39  259-i of the executive law, as amended by chapter 545  of  the  laws  of
    40  2015,  is  amended and five new subparagraphs (iv), (v), (vi), (vii) and
    41  (viii) are added to read as follows:
    42    (i) If the parole officer having charge of a  presumptively  released,
    43  paroled  or  conditionally released person or a person released to post-
    44  release supervision or a person received under the uniform act for  out-
    45  of-state  parolee  supervision shall have [reasonable] probable cause to
    46  believe that such person has lapsed into criminal ways [or company],  or
    47  has  violated one or more conditions of his presumptive release, parole,
    48  conditional release or post-release  supervision,  such  parole  officer
    49  shall  report  such  fact to a member of the board, or to any officer of
    50  the department designated by the board, and thereupon a  written  notice
    51  of  violation  may be issued, or if the person would be subject to rein-
    52  carceration pursuant to subparagraph (x) of paragraph (f) of this subdi-
    53  vision should the violation be sustained at a final revocation hearing a
    54  warrant may be issued for the retaking of such person and for his tempo-
    55  rary detention in accordance with the rules of  the  board  unless  such
    56  person  has been determined to be currently unfit to proceed to trial or
        A. 5493                             5
     1  is currently subject to a temporary or final order of observation pursu-
     2  ant to article seven hundred thirty of the criminal  procedure  law,  in
     3  which case no notice of violation or warrant shall be issued. The retak-
     4  ing  and  detention of any such person may be further regulated by rules
     5  and regulations of the department not inconsistent with this article.  A
     6  warrant  issued  pursuant  to  this  section shall constitute sufficient
     7  authority to the superintendent or other person in charge of  any  jail,
     8  penitentiary, lockup or detention pen to whom it is delivered to hold in
     9  temporary  detention  the  person  named therein[; except that a warrant
    10  issued with respect to a person who has been released on medical  parole
    11  pursuant  to  section two hundred fifty-nine-r of this article and whose
    12  parole is being revoked pursuant to paragraph (h) of subdivision four of
    13  such section shall constitute authority for the immediate  placement  of
    14  the  parolee  only into imprisonment in the custody of the department to
    15  hold in temporary detention. A warrant issued pursuant to  this  section
    16  shall  also constitute sufficient authority to the person in charge of a
    17  drug treatment campus, as defined in subdivision twenty of  section  two
    18  of  the  correction law, to hold the person named therein, in accordance
    19  with the procedural requirements of this section, for  a  period  of  at
    20  least  ninety  days  to  complete  an  intensive  drug treatment program
    21  mandated by the board as an alternative to presumptive release or parole
    22  or conditional release revocation, or  the  revocation  of  post-release
    23  supervision,  and  shall also constitute sufficient authority for return
    24  of the person named therein  to  local  custody  to  hold  in  temporary
    25  detention  for  further  revocation proceedings in the event said person
    26  does not successfully complete the intensive drug treatment program. The
    27  board's rules shall provide for cancellation of delinquency and restora-
    28  tion to supervision upon the successful completion of the  program]  for
    29  up  to  twenty-four  hours  pending  a  recognizance hearing pursuant to
    30  subparagraph (iv) of this paragraph.
    31    (iv) Upon execution of a warrant issued pursuant to this section,  the
    32  authorized  officer  shall take the releasee to the local criminal court
    33  for a recognizance hearing. Such  recognizance  hearing  shall  commence
    34  within twenty-four hours of the execution of the warrant.
    35    (v) At a recognizance hearing, the department shall have the burden to
    36  demonstrate  to  the court that the executed warrant was properly issued
    37  pursuant to this section, including that  there  is  probable  cause  to
    38  believe  that the releasee has lapsed into criminal ways or has violated
    39  one or more conditions of his presumptive release,  parole,  conditional
    40  release  or  post-release  supervision in an important respect, and that
    41  the releasee is potentially subject to incarceration pursuant to subpar-
    42  agraph (x) of paragraph (f) of this subdivision.
    43    (vi) At a recognized hearing, the court shall consider  all  available
    44  evidence of the releasee's employment, family and community ties includ-
    45  ing  length  of  residency  in  the community, history of reporting in a
    46  timely fashion to a parole or supervisory officer, and other  indicators
    47  of  stability.  At the conclusion of the recognizance hearing, the court
    48  shall release the releasee on his or her  own  recognizance  unless  the
    49  court  finds on the record that release on recognizance will not reason-
    50  ably assure the releasee's appearance at subsequent preliminary or revo-
    51  cation hearings. In such instances, the court may order that the releas-
    52  ee abide by the least  restrictive  non-monetary  condition  or  set  of
    53  conditions   in   the  community  necessary  to  reasonably  ensure  the
    54  releasee's appearance at subsequent preliminary or revocation  hearings.
    55  The  releasee  shall  not be required to pay for any part of the cost of
    56  release under non-monetary conditions. The  court  may  order  that  the
        A. 5493                             6
     1  releasee  be  detained  pending  preliminary or revocation hearings only
     2  upon a finding that the releasee currently presents a  substantial  risk
     3  of willfully failing to appear at the preliminary or revocation hearings
     4  and  that  no non-monetary condition or combination of conditions in the
     5  community will  reasonably  assure  the  releasee's  appearance  at  the
     6  preliminary or revocation hearings.
     7    (vii)  The alleged violator shall be permitted representation by coun-
     8  sel at the recognizance hearing. In any case, including when a court  is
     9  called  upon to evaluate the capacity of an alleged violator in a parole
    10  recognizance proceeding, where such  person  is  financially  unable  to
    11  retain  counsel,  the criminal court of the city of New York, the county
    12  court or district court in the county where the violation is alleged  to
    13  have  occurred  or  where  the  hearing is held, shall assign counsel in
    14  accordance with the county or city plan  for  representation  placed  in
    15  operation pursuant to article eighteen-b of the county law.
    16    (viii)  If  a releasee is brought to a criminal court due to an arrest
    17  for any felony or misdemeanor charge  and  a  parole  warrant  has  been
    18  issued,  then  the  criminal court's order pursuant to section 510.30 of
    19  the criminal procedure law shall  control  in  determining  whether  the
    20  releasee  shall be detained pending a preliminary or revocation hearing.
    21  If the criminal court imposes bail pursuant to  section  530.10  of  the
    22  criminal  procedure  law,  and the releasee-defendant secures release by
    23  paying bail or by operation of law,  then  the  releasee  shall  not  be
    24  detained further based solely on the parole warrant.
    25    § 5. Subparagraphs (i), (iii) and (iv) of paragraph (c) of subdivision
    26  3  of section 259-i of the executive law, subparagraph (i) as amended by
    27  section 11 of part E of chapter 62 of the laws  of  2003,  and  subpara-
    28  graphs (iii) and (iv) as amended by section 1 of part E of chapter 56 of
    29  the laws of 2007, are amended and two new subparagraphs (ix) and (x) are
    30  added to read as follows:
    31    (i)  [Within fifteen days after the warrant for retaking and temporary
    32  detention has been executed, unless the releasee has been convicted of a
    33  new crime committed while under presumptive release, parole, conditional
    34  release or post-release supervision, the board of  parole  shall  afford
    35  the alleged presumptive release, parole, conditional release or post-re-
    36  lease  supervision  violator  a  preliminary revocation hearing before a
    37  hearing officer designated by the board of parole. Such hearing  officer
    38  shall  not  have  had any prior supervisory involvement over the alleged
    39  violator] (A) For any  alleged  technical  violation,  if  a  notice  of
    40  violation  was  issued or a person was released on recognizance pursuant
    41  to subparagraph (iv) of paragraph (a) of this subdivision,  the  depart-
    42  ment shall within ten days of the issuance of the notice of violation or
    43  the  order  of  release  on recognizance afford the person a preliminary
    44  revocation hearing before a hearing officer designated  by  the  depart-
    45  ment.  Such  hearing  officer  shall  not have had any prior supervisory
    46  involvement over the alleged violator. Such hearing shall not be held at
    47  a correctional facility, detention center or local correctional  facili-
    48  ty.
    49    (B)  For  any  alleged technical violation, if a court issued an order
    50  detaining a person pursuant to subparagraph (iv)  of  paragraph  (a)  of
    51  this  subdivision  and the person would be subject to reincarceration of
    52  up to thirty days or more pursuant to subparagraph (x) of paragraph  (f)
    53  of this subdivision should the violation be sustained at a final revoca-
    54  tion  hearing,  then  within  five  days of the issuance of the order of
    55  detention the department shall afford such person a preliminary  revoca-
    56  tion hearing before a hearing officer designated by the department. Such
        A. 5493                             7
     1  hearing  officer  shall  not  have had any prior supervisory involvement
     2  over the alleged violator.
     3    (iii)  The alleged violator shall, [within three days of the execution
     4  of the warrant] at the time a notice of violation is issued  or  at  the
     5  time  of  a  recognizance  hearing, be given written notice of the time,
     6  place and purpose of the  preliminary  hearing  [unless  he  or  she  is
     7  detained  pursuant  to  the provisions of subparagraph (iv) of paragraph
     8  (a) of this subdivision. In those instances, the alleged  violator  will
     9  be  given  written  notice of the time, place and purpose of the hearing
    10  within five days of the execution of the warrant], or if no  preliminary
    11  hearing  is  required  pursuant to this section, of the final revocation
    12  hearing.  The notice shall state what conditions of presumptive release,
    13  parole, conditional release or post-release supervision are  alleged  to
    14  have  been violated, and in what manner; that such person shall have the
    15  right to appear and speak in his or her own behalf; that he or she shall
    16  have the right to introduce letters and documents; that he  or  she  may
    17  present witnesses who can give relevant information to the hearing offi-
    18  cer;  that he or she has the right to confront the witnesses against him
    19  or her; and that such person shall have the right to  representation  by
    20  counsel  at  any  preliminary  and  final revocation hearings.   Adverse
    21  witnesses may be compelled to attend the preliminary hearing unless  the
    22  prisoner  has  been  convicted  of  a  new crime while on supervision or
    23  unless the hearing officer finds good cause for their non-attendance. As
    24  far as practicable or feasible, any  additional  documents  having  been
    25  collected  or prepared that support the charge shall be delivered to the
    26  alleged violator.
    27    (iv) [The preliminary hearing shall be  scheduled  to  take  place  no
    28  later  than fifteen days from the date of execution of the warrant.] The
    29  standard of proof at the preliminary hearing shall be probable cause  to
    30  believe  that the presumptive releasee, parolee, conditional releasee or
    31  person under post-release supervision has violated one  or  more  condi-
    32  tions  of his or her presumptive release, parole, conditional release or
    33  post-release supervision in an important respect. Proof of conviction of
    34  a crime committed while  under  supervision  shall  constitute  probable
    35  cause for the purposes of this section.
    36    (ix)  If the hearing officer finds probable cause to believe that such
    37  person has violated one or more conditions of release  in  an  important
    38  respect,  the releasee shall, at the conclusion of the preliminary hear-
    39  ing be given written notice of the time, place and purpose of the  final
    40  revocation  hearing. The notice shall state what conditions of community
    41  supervision are alleged to have been violated, when, where and  in  what
    42  manner; that such person shall have the right to representation by coun-
    43  sel  at  any  final  revocation hearing; that such person shall have the
    44  right to appear and speak in his or her own behalf; that he or she shall
    45  have the right to introduce letters and documents; that he  or  she  may
    46  present witnesses who can give relevant information to the hearing offi-
    47  cer;  that he or she has the right to confront the witnesses against him
    48  or her. As far as practicable  or  feasible,  any  additional  documents
    49  having  been  collected  or  prepared  that  support the charge shall be
    50  delivered to the releasee. Adverse witnesses may be compelled to  attend
    51  the final revocation hearing unless the prisoner has been convicted of a
    52  new  crime while on supervision or unless the hearing officer finds good
    53  cause for their non-attendance.
    54    (x) The alleged violator shall be permitted representation by  counsel
    55  at  the  preliminary  hearing.  In  any  case, including when a court is
    56  called upon to evaluate the capacity of an alleged violator in a  parole
        A. 5493                             8
     1  preliminary  proceeding,  where  such  person  is  financially unable to
     2  retain counsel, the criminal court of the city of New York,  the  county
     3  court  or district court in the county where the violation is alleged to
     4  have  occurred  or  where  the  hearing is held, shall assign counsel in
     5  accordance with the county or city plan  for  representation  placed  in
     6  operation pursuant to article eighteen-b of the county law.
     7    §  6. Paragraph (f) of subdivision 3 of section 259-i of the executive
     8  law, as amended by section 11 of part E of chapter 62  of  the  laws  of
     9  2003,  subparagraph  (v)  as  amended and subparagraph (xii) as added by
    10  chapter 545 of the laws of 2015  and  subparagraph  (x)  as  amended  by
    11  section 38-f-1 of subpart A of part C of chapter 62 of the laws of 2011,
    12  is amended to read as follows:
    13    (f)  (i)  [Revocation  hearings  shall  be scheduled to be held within
    14  ninety days of  the  probable  cause  determination]  For  any  releasee
    15  charged with a violation:
    16    (A)  If  a  court  issued  an  order detaining such person pursuant to
    17  subparagraph (iv) of paragraph (a) of this subdivision  and  the  person
    18  would  be  subject  to  reincarceration  of up to seven days pursuant to
    19  subparagraph (x) of this paragraph should the violation be sustained  at
    20  a  final revocation hearing, then within two days of the issuance of the
    21  order of detention, the department shall  afford  such  person  a  final
    22  revocation  hearing  before  a hearing officer designated by the depart-
    23  ment. Such hearing officer shall not  have  had  any  prior  supervisory
    24  involvement over the alleged violator. No preliminary revocation hearing
    25  shall be held in this instance.
    26    (B)  If  a  court  issued  an  order detaining such person pursuant to
    27  subparagraph (iv) of paragraph (a) of this subdivision  and  the  person
    28  would  be  subject  to reincarceration of up to fifteen days pursuant to
    29  subparagraph (x) of this paragraph should the violation be sustained  at
    30  a final revocation hearing, then within four days of the issuance of the
    31  order  of  detention,  the  department  shall afford such person a final
    32  revocation hearing before a hearing officer designated  by  the  depart-
    33  ment.  Such  hearing  officer  shall  not have had any prior supervisory
    34  involvement over the alleged violator. No preliminary revocation hearing
    35  shall be held in this instance.
    36    (C) If a court issued an  order  detaining  such  person  pursuant  to
    37  subparagraph  (iv)  of  paragraph (a) of this subdivision and the person
    38  would be subject to reincarceration of up to thirty days or more  pursu-
    39  ant  to  subparagraph  (x)  of  this  paragraph  should the violation be
    40  sustained at a final revocation hearing, then within ten days after  the
    41  issuance  of  the  order  of detention, the department shall afford such
    42  person a final revocation hearing before a hearing officer designated by
    43  the department. Such hearing officer shall not have had any prior super-
    44  visory involvement over the alleged violator.
    45    (D) If a notice of violation was issued or such person was released on
    46  recognizance pursuant to subparagraph (iv)  of  paragraph  (a)  of  this
    47  subdivision,  or the person is accused of a non-technical violation, the
    48  department shall within thirty days of the issuance  of  the  notice  of
    49  violation  or  the  order of release on recognizance afford the person a
    50  final revocation hearing before a  hearing  officer  designated  by  the
    51  department. Such hearing officer shall not have had any prior superviso-
    52  ry  involvement  over  the alleged violator.   Such hearing shall not be
    53  held at a correctional facility, detention center or local  correctional
    54  facility.  Localities  shall have six months from the date of the effec-
    55  tive date of the chapter of the  laws  of  two  thousand  nineteen  that
        A. 5493                             9
     1  amended  this  paragraph  to  begin  hold  such  hearings  at  allowable
     2  locations.
     3    (E)  However,  if  an alleged violator requests and receives any post-
     4  ponement of his revocation hearing, or consents to a  postponed  revoca-
     5  tion  proceeding  initiated  by the board, or if an alleged violator, by
     6  his actions otherwise precludes the prompt conduct of such  proceedings,
     7  the time limit may be extended.
     8    (ii)  The revocation hearing shall be conducted by a presiding officer
     9  who may be a member or a hearing officer  designated  by  the  board  in
    10  accordance with rules of the board.
    11    (iii) Both the alleged violator and an attorney who has filed a notice
    12  of appearance on his behalf in accordance with the rules of the board of
    13  parole  shall be given written notice of the date, place and time of the
    14  hearing [as soon as possible but at least fourteen  days  prior  to  the
    15  scheduled  date]  pursuant to subparagraph (ix) of paragraph (c) of this
    16  subdivision.
    17    (iv) The alleged violator shall be given written notice of the  rights
    18  enumerated in subparagraph (iii) of paragraph (c) of this subdivision as
    19  well as of his right to present mitigating evidence relevant to restora-
    20  tion to presumptive release, parole, conditional release or post-release
    21  supervision and his right to counsel.
    22    (v)  The alleged violator shall be permitted representation by counsel
    23  at the revocation hearing. In any case, including when a superior  court
    24  is  called  upon  to  evaluate  the capacity of an alleged violator in a
    25  parole revocation proceeding, where such person is financially unable to
    26  retain counsel, the criminal court of the city of New York,  the  county
    27  court  or district court in the county where the violation is alleged to
    28  have occurred or where the hearing is  held,  shall  assign  counsel  in
    29  accordance  with  the  county  or city plan for representation placed in
    30  operation pursuant to article eighteen-B of the county law.  He  or  she
    31  shall  have  the  right to confront and cross-examine adverse witnesses,
    32  unless there is good cause for their non-attendance as determined by the
    33  presiding officer; present witnesses and documentary evidence in defense
    34  of the charges; and present witnesses and documentary evidence  relevant
    35  to  the  question  whether  reincarceration  of  the alleged violator is
    36  appropriate.
    37    (vi) At the revocation hearing, the charges  shall  be  read  and  the
    38  alleged  violator shall be permitted to plead not guilty, guilty, guilty
    39  with explanation or to stand mute. As to each charge, evidence shall  be
    40  introduced  through  witnesses and documents, if any, in support of that
    41  charge. At the conclusion of each witness's direct testimony,  he  shall
    42  be made available for cross-examination. If the alleged violator intends
    43  to present a defense to the charges or to present evidence of mitigating
    44  circumstances,  the  alleged  violator shall do so after presentation of
    45  all the evidence in support  of  a  violation  of  presumptive  release,
    46  parole, conditional release or post-release supervision.
    47    (vii)  All  persons giving evidence at the revocation hearing shall be
    48  sworn before giving any testimony as provided by law.
    49    (viii) At the conclusion of the  hearing  the  presiding  officer  may
    50  sustain  any  or  all of the violation charges or may dismiss any or all
    51  violation charges. He may sustain a violation charge only if the  charge
    52  is  supported  by  [a  preponderance  of the evidence adduced] clear and
    53  convincing evidence. Conduct that formed the basis of  a  criminal  case
    54  shall  not  form a basis of a sustained parole violation if the criminal
    55  court has adjudicated the  matter  with  an  acquittal,  adjournment  in
    56  contemplation of dismissal, or violation.
        A. 5493                            10
     1    (ix)  If  the  presiding  officer  is  not  satisfied that there is [a
     2  preponderance of] clear  and  convincing  evidence  in  support  of  the
     3  violation,  he  shall  dismiss the violation, cancel the delinquency and
     4  restore the person to presumptive release, parole,  conditional  release
     5  or post-release supervision.
     6    (x)  If the presiding officer is satisfied that there is [a preponder-
     7  ance of]  clear  and  convincing  evidence  that  the  alleged  violator
     8  violated  one  or more conditions of release in an important respect, he
     9  or she shall so find.  For each violation found, the  presiding  officer
    10  shall direct that no earned time credits shall be awarded for the thirty
    11  day period commencing from the date of the sustained violation.
    12    (xi)  Incarceration  shall  not  be  imposed  for any of the following
    13  violations: (A) positive drug test for drugs or a  controlled  substance
    14  without  proper  medical  authorization, or possession of drug parapher-
    15  nalia, unless the releasee is subject to community supervision due to  a
    16  conviction  for driving while ability impaired at least in part by drugs
    17  pursuant to section eleven hundred ninety-two of the vehicle and traffic
    18  law; (B) positive alcohol test or use or possession of  alcohol,  unless
    19  the releasee is subject to community supervision due to a conviction for
    20  driving  while  ability  impaired  at  least in part by alcohol or while
    21  intoxicated pursuant to section eleven hundred ninety-two of the vehicle
    22  and traffic law; (C) failing to notify community supervision officer  of
    23  a change in employment or program status; (D) failing to notify communi-
    24  ty  supervision  officer  of  a  change  in  residence, absent clear and
    25  convincing evidence that the releasee acted willfully for the purpose of
    26  permanently avoiding supervision; (E) violating curfew; (F)  failure  to
    27  pay  surcharges  and  fees,  including  fees imposed pursuant to section
    28  60.35 of the penal law, sections  eighteen  hundred  nine  and  eighteen
    29  hundred  nine-c  of the vehicle and traffic law, or section 27.12 of the
    30  parks, recreation and historic preservation law; (G) being in the compa-
    31  ny of or fraternizing with any person with a criminal record or who  has
    32  been  adjudicated  a youthful offender, juvenile delinquent, juvenile or
    33  adolescent offender; (H) failure to make office or  written  reports  as
    34  directed,  absent  clear and convincing evidence that the releasee acted
    35  willfully for the purpose of permanently avoiding supervision; (I) leav-
    36  ing the state of New York or any other state to which  the  releasee  is
    37  released  or  transferred,  or any area defined in writing by his parole
    38  officer, without permission, absent clear and convincing  evidence  that
    39  the  releasee  acted  willfully  for the purpose of permanently avoiding
    40  supervision; (J) failure to  notify  community  supervision  officer  of
    41  contact  with  any  law  enforcement agency, absent clear and convincing
    42  evidence that the releasee intended to hide evidence of his  or  others'
    43  behavior  that  constitutes a violation of the penal law; (K) failure to
    44  obey special conditions  of  community  supervision,  absent  clear  and
    45  convincing  evidence that the failure poses a substantial risk to public
    46  safety and cannot be addressed safely in the  community  including  with
    47  counseling or programming; and (L) obtaining a driver's license or driv-
    48  ing a car with a valid driver's license, unless either action is explic-
    49  itly prohibited by the person's conviction.
    50    (xii)  For  each  violation  [so] found, the presiding officer may (A)
    51  direct that the presumptive releasee, parolee, conditional  releasee  or
    52  person  serving  a  period  of  post-release  supervision be restored to
    53  supervision; (B)  as  an  alternative  to  reincarceration,  direct  the
    54  presumptive  releasee, parolee, conditional releasee or person serving a
    55  period of post-release supervision [be placed  in  a  parole  transition
    56  facility  for  a period not to exceed one hundred eighty days and subse-
        A. 5493                            11

     1  quent restoration to  supervision]  receive  re-entry  services  in  the
     2  community from qualified nonprofit agencies; (C) in the case of presump-
     3  tive releasees, parolees or conditional releasees, direct the violator's
     4  reincarceration  [and  fix  a  date  for  consideration by the board for
     5  re-release on presumptive release, or parole or conditional release,  as
     6  the  case  may be; or (D) in the case of persons released to a period of
     7  post-release supervision, direct the violator's  reincarceration  up  to
     8  the  balance of the remaining period of post-release supervision, not to
     9  exceed five years; provided, however, that a defendant serving a term of
    10  post-release supervision for  a  conviction  of  a  felony  sex  offense
    11  defined  in  section  70.80 of the penal law may be subject to a further
    12  period of imprisonment up to the balance  of  the  remaining  period  of
    13  post-release supervision], subject to the following limitations: (1) for
    14  absconding,  which  is defined as failing to notify his or her community
    15  supervision officer of a change in residence after a  finding  of  clear
    16  and  convincing  evidence  that  the  releasee  acted  willfully for the
    17  purpose of permanently avoiding supervision; failure to make  office  or
    18  written  reports  as  directed  after  a finding of clear and convincing
    19  evidence that the releasee acted willfully for the purpose of permanent-
    20  ly avoiding supervision; and leaving the state of New York or any  other
    21  state  to  which  the  releasee  is released or transferred, or any area
    22  defined in writing by his parole officer, without  permission,  after  a
    23  finding  of  clear and convincing evidence that the releasee acted will-
    24  fully for the purpose of permanently avoiding supervision, up  to  seven
    25  days incarceration may be imposed for the first violation, up to fifteen
    26  days  incarceration  may  be imposed for the second violation, and up to
    27  thirty days incarceration may be imposed for the third or any subsequent
    28  violation; (2) for all other technical violations no period of  reincar-
    29  ceration may be imposed for the first and second substantiated technical
    30  violations;  up  to  seven  days  reincarceration may be imposed for the
    31  third substantiated technical violation; up to fifteen days reincarcera-
    32  tion may be imposed for the fourth substantiated technical violation; up
    33  to thirty days reincarceration may be imposed for the fifth  and  subse-
    34  quent  substantiated  technical  violations;  and  (3) for non-technical
    35  violations, up to ninety days  reincarceration  may  be  imposed.  If  a
    36  warrant  was  executed pursuant to subparagraph (iv) of paragraph (a) of
    37  this subdivision and the person was detained pursuant to  such  subpara-
    38  graph  pending  preliminary or revocation hearings, any period of incar-
    39  ceration imposed pursuant to this paragraph shall be  counted  from  the
    40  date of the execution of the warrant. If a warrant was executed pursuant
    41  to subparagraph (iv) of paragraph (a) of this subdivision but a criminal
    42  court  released  the  person pending preliminary or revocation hearings,
    43  any period of incarceration imposed pursuant to this paragraph shall  be
    44  counted from the date of issuance of a determination after a final hear-
    45  ing  that  the  person  has violated one or more conditions of community
    46  supervision, and the time between execution of the warrant  and  release
    47  of  the  person  pending  preliminary or revocation hearings shall count
    48  toward the period of reincarceration imposed pursuant to this paragraph.
    49  If a releasee is detained on bail pursuant  to  section  530.10  of  the
    50  criminal  procedure  law, any time the person spent in detention on bail
    51  shall count towards any period of incarceration imposed pursuant to this
    52  paragraph. In all cases, the presiding officer shall  impose  the  least
    53  restrictive  reasonable  sanction.  Any periods of reincarceration shall
    54  run concurrently if more than one violation is adjudicated at a time. If
    55  a period of incarceration is imposed pursuant  to  this  paragraph,  the
    56  releasee shall be released from custody upon expiration of the period or
        A. 5493                            12
     1  the  end  of  the  releasee's period of community supervision, whichever
     2  shall be sooner.  For the violator serving an indeterminate sentence who
     3  while re-incarcerated has not been  found  by  the  department  to  have
     4  committed  a  serious  disciplinary  infraction,  such violator shall be
     5  re-released on the date fixed at the revocation hearing. For the  viola-
     6  tor  serving an indeterminate sentence who has been found by the depart-
     7  ment to have committed a serious disciplinary infraction while re-incar-
     8  cerated, the department shall  refer  the  violator  to  the  board  for
     9  consideration  for re-release to community supervision. Upon such refer-
    10  ral the board may waive the  personal  interview  between  a  member  or
    11  members  of  the board and the violator to determine the suitability for
    12  re-release when the board directs that the violator be re-released  upon
    13  expiration  of the time assessment. The board shall retain the authority
    14  to suspend the date fixed for re-release based on the violator's commis-
    15  sion of a serious disciplinary infraction and shall in such case require
    16  a personal interview be conducted within a  reasonable  time  between  a
    17  panel  of members of the board and the violator to determine suitability
    18  for re-release. If an interview is required, the board shall notify  the
    19  violator in advance of the date and time of such interview in accordance
    20  with the rules and regulations of the board.
    21    [(xi)]  (xiii)  If  the  presiding officer sustains any violations, he
    22  must prepare a written statement, to be made available  to  the  alleged
    23  violator  and  his  counsel, indicating the evidence relied upon and the
    24  reasons for revoking presumptive release, parole, conditional release or
    25  post-release supervision, and for the disposition made.
    26    [(xii)] (xiv) If at  any  time  during  a  revocation  proceeding  the
    27  alleged  violator,  his or her counsel, or an employee of the department
    28  contends, or if it reasonably appears to the hearing officer,  that  the
    29  alleged  violator  is an incapacitated person as that term is defined in
    30  subdivision one of section 730.10 of the criminal procedure law  and  no
    31  judicial  determination  has  been  made that the alleged violator is an
    32  incapacitated person, the revocation  proceeding  shall  be  temporarily
    33  stayed  until the superior court determines whether or not the person is
    34  fit to proceed. The matter shall be promptly referred  to  the  superior
    35  court  for determination of the alleged violator's fitness to proceed in
    36  a manner consistent with the provisions of article seven hundred  thirty
    37  of  the criminal procedure law, provided however that the superior court
    38  shall immediately appoint counsel for any unrepresented alleged violator
    39  eligible for appointed counsel under subparagraph (v) of this  paragraph
    40  [(f)  of  subdivision  three of section two hundred fifty-nine-i of this
    41  chapter]. The court shall decide whether or not the alleged violator  is
    42  incapacitated  within thirty days of the referral from the hearing offi-
    43  cer. If the court determines that the alleged violator is not  an  inca-
    44  pacitated  person,  the court shall order that the matter be returned to
    45  the board of parole for continuation and disposition of  the  revocation
    46  proceeding.  If  the  court  determines  that the alleged violator is an
    47  incapacitated person and if no felony charges are  pending  against  the
    48  alleged  violator,  the  court  shall issue a final order of observation
    49  committing such person to the custody  of  the  commissioner  of  mental
    50  health  or  the  commissioner of developmental disabilities for care and
    51  treatment in an appropriate institution  in  a  manner  consistent  with
    52  subdivision  one  of  section 730.40 of the criminal procedure law. If a
    53  final order of observation has been issued pursuant to this section, the
    54  hearing officer shall dismiss the violation charges and  such  dismissal
    55  shall  act as a bar to any further proceeding under this section against
    56  the alleged violator for such violations. If felony criminal charges are
        A. 5493                            13
     1  pending at any time against an alleged violator who has been referred to
     2  superior court for a fitness evaluation but before  a  determination  of
     3  fitness  has  been made pursuant to this section, the court shall decide
     4  whether or not the alleged violator is incapacitated pursuant to article
     5  seven  hundred  thirty  of the criminal procedure law and the revocation
     6  proceeding shall be held  in  abeyance  until  such  decision  has  been
     7  reached.  The  hearing  officer  shall adopt the capacity finding of the
     8  court and either terminate the revocation process if an order of  obser-
     9  vation has been made by the court or proceed with the revocation hearing
    10  if  the  alleged  violator  has  been  found  not to be an incapacitated
    11  person.
    12    § 7. Section 259-i of the executive law is amended  by  adding  a  new
    13  subdivision 9 to read as follows:
    14    9.  The board shall promulgate rules and regulations to facilitate the
    15  presence of nonprofit service providers able to offer relevant  communi-
    16  ty-based  services  to releasees at all preliminary and final revocation
    17  hearings for the purpose of helping people subject to  community  super-
    18  vision  successfully  complete  such  supervision  and avoid future such
    19  supervision, and to help ensure  presiding  officers  impose  the  least
    20  restrictive  reasonable  sanction  for any violation of community super-
    21  vision.
    22    § 8. This act shall take effect on the ninetieth day  after  it  shall
    23  have  become  a  law; provided however the department of corrections and
    24  community supervision shall have six months from the effective  date  of
    25  this  act  to  begin holding preliminary revocation hearings required by
    26  the amendments to paragraph (c) of subdivision 3 of section 259-i of the
    27  executive law made by section five of this act. Provided further, howev-
    28  er, that the board of parole shall have two months  from  the  effective
    29  date  of this act to identify each releasee incarcerated for a sustained
    30  parole violation and determine whether incarceration may be imposed  for
    31  the  sustained  parole  violation pursuant to subparagraph (xi) of para-
    32  graph (f) of subdivision 3 of section 259-i of  the  executive  law,  as
    33  added  by  section  six  of this act. If no incarceration may be imposed
    34  pursuant to such subparagraph, the board shall immediately  restore  the
    35  releasee  to  community supervision. If the releasee may be incarcerated
    36  for the sustained violation the board shall fix a new date  for  release
    37  pursuant  to  subparagraph  (xii)  of  paragraph (f) of subdivision 3 of
    38  section 259-i of the executive law, as amended by section  six  of  this
    39  act.  If  such  release  date  has  passed,  the board shall immediately
    40  restore the releasee to community supervision.  Provided further, howev-
    41  er, the department of corrections and community supervision  shall  have
    42  six months from the effective date of this act to set up the final revo-
    43  cation  hearing  courtrooms  that are not at correctional facilities for
    44  people who are not detained pending their hearing pursuant to the amend-
    45  ments to paragraph (f) of subdivision 3 of section 259-p of  the  execu-
    46  tive law as made by section six of this act.  Effective immediately, the
    47  addition,  amendment  and/or  repeal of any rule or regulation necessary
    48  for the implementation of this act on its effective date are  authorized
    49  and directed to be made and completed on or before such effective date.