Bill Text: NY A05493 | 2019-2020 | General Assembly | Amended
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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-Amended.html
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-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. LBD06090-06-9A. 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 jurisdiction4of 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 was19released or, if he or she was released from an institution under the20jurisdiction of the state department of corrections and community super-21vision, to an institution under the jurisdiction of that department.22Upon such return, the person shall resume service of his or her23sentence] 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-27cy] 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 the32delinquency; or33(ii) that such custody arose from an arrest on another charge which34culminated in a dismissal or an acquittal; or35(iii) that such custody arose from an arrest on another charge which36culminated in a conviction, but in such case, if a sentence of imprison-37ment was imposed, the credit allowed shall be limited to the portion of38the time spent in custody that exceeds the period, term or maximum term39of 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 subdivisionA. 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 ofA. 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 of5the remaining period of post-release supervision is six months or less,6such time assessment may be up to six months unless a longer period is7authorized 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 a40person is sentenced to one or more additional indeterminate or determi-41nate term or terms of imprisonment prior to the completion of the period42of post-release supervision, such period of post-release supervision43shall be held in abeyance and the person shall be committed to the44custody of the department of corrections and community supervision in45accordance with the requirements of the prior and additional terms of46imprisonment.47(f) When a person serving a period of post-release supervision is48returned to the department of corrections and community supervision49pursuant to an additional consecutive sentence of imprisonment and with-50out a declaration of delinquency, such period of post-release super-51vision shall be held in abeyance while the person is in the custody of52the department of corrections and community supervision. Such period of53post-release supervision shall resume running upon the person's re-re-54lease.] 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 ofA. 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 warrant27issued with respect to a person who has been released on medical parole28pursuant to section two hundred fifty-nine-r of this article and whose29parole is being revoked pursuant to paragraph (h) of subdivision four of30such section shall constitute authority for the immediate placement of31the parolee only into imprisonment in the custody of the department to32hold in temporary detention. A warrant issued pursuant to this section33shall also constitute sufficient authority to the person in charge of a34drug treatment campus, as defined in subdivision twenty of section two35of the correction law, to hold the person named therein, in accordance36with the procedural requirements of this section, for a period of at37least ninety days to complete an intensive drug treatment program38mandated by the board as an alternative to presumptive release or parole39or conditional release revocation, or the revocation of post-release40supervision, and shall also constitute sufficient authority for return41of the person named therein to local custody to hold in temporary42detention for further revocation proceedings in the event said person43does not successfully complete the intensive drug treatment program. The44board's rules shall provide for cancellation of delinquency and restora-45tion 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 issuedA. 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 theA. 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 temporary11detention has been executed, unless the releasee has been convicted of a12new crime committed while under presumptive release, parole, conditional13release or post-release supervision, the board of parole shall afford14the alleged presumptive release, parole, conditional release or post-re-15lease supervision violator a preliminary revocation hearing before a16hearing officer designated by the board of parole. Such hearing officer17shall not have had any prior supervisory involvement over the alleged18violator] (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 execution44of 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 is47detained pursuant to the provisions of subparagraph (iv) of paragraph48(a) of this subdivision. In those instances, the alleged violator will49be given written notice of the time, place and purpose of the hearing50within 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 [presumptive53release, 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 andA. 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 no12later 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,15parolee, conditional releasee or person under post-release supervision] 16 releasee has violated one or more conditions of his or her [presumptive17release, 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 within2ninety 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 the8scheduled 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 [a51preponderance 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-56ance of] clear and convincing evidence that the alleged violatorA. 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 or47person 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 or50person serving a period of post-release supervision be placed in a51parole transition facility for a period not to exceed one hundred eighty52days and subsequent restoration to supervision] releasee receive re-en- 53 try services in the community from qualified nonprofit agencies; (C) [in54the case of presumptive releasees, parolees or conditional releasees,] 55 direct the violator's reincarceration [and fix a date for consideration56by the board for re-release on presumptive release, or parole or condi-A. 5493--A 12 1tional release, as the case may be; or (D) in the case of persons2released to a period of post-release supervision, direct the violator's3reincarceration up to the balance of the remaining period of post-re-4lease supervision, not to exceed five years; provided, however, that a5defendant serving a term of post-release supervision for a conviction of6a felony sex offense defined in section 70.80 of the penal law may be7subject to a further period of imprisonment up to the balance of the8remaining 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 theA. 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 this36chapter]. 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 revocationA. 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.