STATE OF NEW YORK
________________________________________________________________________
5493--A
2019-2020 Regular Sessions
IN ASSEMBLY
February 12, 2019
___________
Introduced by M. of A. MOSLEY, ORTIZ, D'URSO, WEPRIN, TAYLOR, GOTTFRIED,
HYNDMAN, O'DONNELL -- read once and referred to the Committee on
Correction -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee
AN ACT to amend the executive law and the penal law, in relation to
revocation of community supervision
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. Section 259 of the executive law is amended by adding two
2 new subdivisions 5 and 6 to read as follows:
3 5. "Releasee" means an individual released from an institution under
4 the jurisdiction of the department into the community on temporary
5 release, presumptive release, parole, conditional release, post-release
6 supervision or medical parole.
7 6. "Technical violation" means any violation of a condition of commu-
8 nity supervision other than a conviction for a felony offense or that
9 has been proven to be a misdemeanor offense under section 121.11, 135.05
10 or 135.45 or article 120 or 130 of the penal law.
11 § 2. Subdivision 3 of section 70.40 of the penal law, paragraphs (a)
12 and (b) as amended by section 127-h of subpart B of part C of chapter 62
13 of the laws of 2011 and paragraph (c) as amended by chapter 478 of the
14 laws of 1973, is amended and a new subdivision 4 is added to read as
15 follows:
16 3. Delinquency. (a) When a person is alleged to have violated the
17 terms of presumptive release or parole willfully for the purpose of
18 permanently avoiding supervision by failing to notify his or her commu-
19 nity supervision officer of a change in residence, failing to make
20 office or written reports as directed, or leaving the state of New York
21 or any other state to which the releasee is released or transferred, or
22 any area defined in writing by his parole officer, without permission,
23 and the state board of parole has declared such person to be delinquent,
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06090-06-9
A. 5493--A 2
1 the declaration of delinquency shall interrupt the person's sentence as
2 of the date of the delinquency and such interruption shall continue
3 until the [return of the person to an institution under the jurisdiction
4 of the state department of corrections and community supervision]
5 execution of the warrant.
6 (b) When a person is alleged to have violated the terms of his or her
7 conditional release or post-release supervision willfully for the
8 purpose of permanently avoiding supervision by failing to notify his or
9 her community supervision officer of a change in residence, failure to
10 make office or written reports as directed, or leaving the state of New
11 York or any other state to which the releasee is released or trans-
12 ferred, or any area defined in writing by his parole officer, without
13 permission and has been declared delinquent by the parole board or the
14 local conditional release commission having supervision over such
15 person, the declaration of delinquency shall interrupt the period of
16 supervision or post-release supervision as of the date of the delinquen-
17 cy. For a conditional release, such interruption shall continue until
18 the [return of the person to the institution from which he or she was
19 released or, if he or she was released from an institution under the
20 jurisdiction of the state department of corrections and community super-
21 vision, to an institution under the jurisdiction of that department.
22 Upon such return, the person shall resume service of his or her
23 sentence] execution of the warrant. For a person released to post-re-
24 lease supervision, the provisions of section 70.45 of this article shall
25 apply.
26 (c) Any time spent by a person in custody from the time of [delinquen-
27 cy] execution of a warrant pursuant to paragraph (a) of subdivision
28 three of section two hundred fifty-nine-i of the executive law to the
29 time service of the sentence resumes shall be credited against the term
30 or maximum term of the interrupted sentence[, provided:
31 (i) that such custody was due to an arrest or surrender based upon the
32 delinquency; or
33 (ii) that such custody arose from an arrest on another charge which
34 culminated in a dismissal or an acquittal; or
35 (iii) that such custody arose from an arrest on another charge which
36 culminated in a conviction, but in such case, if a sentence of imprison-
37 ment was imposed, the credit allowed shall be limited to the portion of
38 the time spent in custody that exceeds the period, term or maximum term
39 of imprisonment imposed for such conviction].
40 4. Earned time credits. (a) After a person has begun a period of
41 community supervision pursuant to this section and section 70.45 of this
42 article, such period shall be reduced by thirty days for every thirty
43 days that such person does not violate a condition of his or her commu-
44 nity supervision, provided the person is not subject to any sentence
45 with a maximum term of life imprisonment. The calculation of earned time
46 credit periods shall begin on the releasee's first day of community
47 supervision and shall be awarded after each completed thirty day period.
48 Any such awarded earned time credits shall be applied against such
49 person's unserved portion of the maximum term, aggregate maximum term or
50 period of post-release supervision for any current sentence.
51 (b) Earned time credits may be withheld or revoked only for the thir-
52 ty-day period commencing from the date of violative behavior sustained
53 at a final revocation hearing, except that earned time credits may be
54 withheld or revoked for the entire time period during which a releasee
55 absconded from supervision, as sustained at a final revocation hearing,
56 and as defined in subparagraph (xii) of paragraph (f) of subdivision
A. 5493--A 3
1 three of section two hundred fifty-nine-i of the executive law. Earned
2 time credits may not be earned during a period of incarceration imposed
3 based on a sustained violation or new criminal conviction. After a
4 sustained violation, the calculation of an earned time credit period
5 shall recommence on the thirty-first day after the date of the violative
6 behavior or, if the sustained violation resulted in a term of incarcera-
7 tion, on the day the releasee is restored to community supervision,
8 whichever is later.
9 (c) When a person is subject to more than one period of community
10 supervision, the reduction authorized in this subdivision shall be
11 applied to every period of parole or conditional release to which the
12 person is subject.
13 (d) Earned time credits shall be awarded to any person subject to
14 community supervision at the time this legislation becomes effective
15 retroactive to the initial date such person began his or her earliest
16 current period of community supervision. If a releasee's current period
17 of community supervision has been interrupted by a period of incarcera-
18 tion prior to the effective date of the chapter of the laws of two thou-
19 sand nineteen which added this subdivision and any portion of such peri-
20 od of incarceration would have been ineligible for incarceration if such
21 chapter of the laws of two thousand nineteen which added this subdivi-
22 sion had already been in effect, the department shall award retroactive
23 earned time credits to the releasee for such ineligible portion of such
24 period of incarceration. The department shall have six months from the
25 effective date of this subdivision to calculate all retroactive earned
26 time credits; however, the department of corrections and community
27 supervision shall prioritize earned time credit calculations for releas-
28 ees whose terms of community supervision are due to terminate before the
29 conclusion of such six months. Retroactive earned time credits shall not
30 be awarded to any releasee serving a term of incarceration for a
31 sustained parole violation at the time of the effective date of the
32 chapter of the laws of two thousand nineteen which added this subdivi-
33 sion until the releasee is returned to community supervision.
34 § 3. Paragraphs (d), (e) and (f) of subdivision 5 of section 70.45 of
35 the penal law, as amended by section 127-j of subpart B of part C of
36 chapter 62 of the laws of 2011, are amended to read as follows:
37 (d) When a person is alleged to have violated a condition of post-re-
38 lease supervision willfully for the purpose of permanently avoiding
39 supervision by failing to notify community supervision officer of a
40 change in residence, failure to make office or written reports as
41 directed, or leaving the state of New York or any other state to which
42 the releasee is released or transferred, or any area defined in writing
43 by his or her parole officer, without permission and the department of
44 corrections and community supervision has declared such person to be
45 delinquent: (i) the declaration of delinquency shall interrupt the peri-
46 od of post-release supervision; (ii) such interruption shall continue
47 until the person is restored to post-release supervision; (iii) if the
48 person is restored to post-release supervision without being returned to
49 the department of corrections and community supervision, any time spent
50 in custody from the date of delinquency until restoration to post-re-
51 lease supervision shall first be credited to the maximum or aggregate
52 maximum term of the sentence or sentences of imprisonment, but only to
53 the extent authorized by subdivision three of section 70.40 of this
54 article. Any time spent in custody solely pursuant to such delinquency
55 after completion of the maximum or aggregate maximum term of the
56 sentence or sentences of imprisonment shall be credited to the period of
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1 post-release supervision, if any; and (iv) if the person is ordered
2 returned to the department of corrections and community supervision, the
3 person shall be required to serve the time assessment before being
4 re-released to post-release supervision. [In the event the balance of
5 the remaining period of post-release supervision is six months or less,
6 such time assessment may be up to six months unless a longer period is
7 authorized pursuant to subdivision one of this section. The] If the
8 person is detained pursuant to paragraph (a) of subdivision three of
9 section two hundred fifty-nine-i of the executive law pending prelimi-
10 nary or revocation hearings, the time assessment shall commence upon the
11 execution of the warrant. If a warrant was executed pursuant to para-
12 graph (a) of subdivision three of section two hundred fifty-nine-i of
13 the executive law but a trial court released the person pending prelimi-
14 nary or revocation hearings, the time assessment shall commence upon the
15 issuance of a determination after a final hearing that the person has
16 violated one or more conditions of community supervision, and shall
17 include the time period between execution of the warrant and release of
18 the person pending preliminary or revocation hearings. If a releasee is
19 detained on bail pursuant to section 530.10 of the criminal procedure
20 law, the time assessment shall include any time the releasee spent in
21 such detention. If a notice of violation was issued pursuant to subdivi-
22 sion three of section two hundred fifty-nine-i of the executive law, the
23 time assessment shall commence upon the issuance of a determination
24 after a final hearing that the person has violated one or more condi-
25 tions of supervision. While serving such assessment, the person shall
26 not receive any good behavior allowance pursuant to section eight
27 hundred three of the correction law. Any time spent in custody from the
28 date of delinquency until return to the department of corrections and
29 community supervision shall first be credited to the maximum or aggre-
30 gate maximum term of the sentence or sentences of imprisonment, but only
31 to the extent authorized by subdivision three of section 70.40 of this
32 article. The maximum or aggregate maximum term of the sentence or
33 sentences of imprisonment shall run while the person is serving such
34 time assessment in the custody of the department of corrections and
35 community supervision. Any time spent in custody solely pursuant to such
36 delinquency after completion of the maximum or aggregate maximum term of
37 the sentence or sentences of imprisonment shall be credited to the peri-
38 od of post-release supervision, if any.
39 [(e) Notwithstanding paragraph (d) of this subdivision, in the event a
40 person is sentenced to one or more additional indeterminate or determi-
41 nate term or terms of imprisonment prior to the completion of the period
42 of post-release supervision, such period of post-release supervision
43 shall be held in abeyance and the person shall be committed to the
44 custody of the department of corrections and community supervision in
45 accordance with the requirements of the prior and additional terms of
46 imprisonment.
47 (f) When a person serving a period of post-release supervision is
48 returned to the department of corrections and community supervision
49 pursuant to an additional consecutive sentence of imprisonment and with-
50 out a declaration of delinquency, such period of post-release super-
51 vision shall be held in abeyance while the person is in the custody of
52 the department of corrections and community supervision. Such period of
53 post-release supervision shall resume running upon the person's re-re-
54 lease.]
55 § 4. Subparagraph (i) of paragraph (a) of subdivision 3 of section
56 259-i of the executive law, as amended by chapter 545 of the laws of
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1 2015, is amended and five new subparagraphs (iv), (v), (vi), (vii) and
2 (viii) are added to read as follows:
3 (i) If the parole officer having charge of a presumptively released,
4 paroled or conditionally released person or a person released to post-
5 release supervision or a person received under the uniform act for out-
6 of-state parolee supervision shall have [reasonable] probable cause to
7 believe that such person has lapsed into criminal ways [or company], or
8 has violated one or more conditions of his presumptive release, parole,
9 conditional release or post-release supervision, such parole officer
10 shall report such fact to a member of the board, or to any officer of
11 the department designated by the board, and thereupon a written notice
12 of violation may be issued, or if the person would be subject to rein-
13 carceration pursuant to subparagraph (x) of paragraph (f) of this subdi-
14 vision should the violation be sustained at a final revocation hearing a
15 warrant may be issued for the retaking of such person and for his tempo-
16 rary detention in accordance with the rules of the board unless such
17 person has been determined to be currently unfit to proceed to trial or
18 is currently subject to a temporary or final order of observation pursu-
19 ant to article seven hundred thirty of the criminal procedure law, in
20 which case no notice of violation or warrant shall be issued. The retak-
21 ing and detention of any such person may be further regulated by rules
22 and regulations of the department not inconsistent with this article. A
23 warrant issued pursuant to this section shall constitute sufficient
24 authority to the superintendent or other person in charge of any jail,
25 penitentiary, lockup or detention pen to whom it is delivered to hold in
26 temporary detention the person named therein[; except that a warrant
27 issued with respect to a person who has been released on medical parole
28 pursuant to section two hundred fifty-nine-r of this article and whose
29 parole is being revoked pursuant to paragraph (h) of subdivision four of
30 such section shall constitute authority for the immediate placement of
31 the parolee only into imprisonment in the custody of the department to
32 hold in temporary detention. A warrant issued pursuant to this section
33 shall also constitute sufficient authority to the person in charge of a
34 drug treatment campus, as defined in subdivision twenty of section two
35 of the correction law, to hold the person named therein, in accordance
36 with the procedural requirements of this section, for a period of at
37 least ninety days to complete an intensive drug treatment program
38 mandated by the board as an alternative to presumptive release or parole
39 or conditional release revocation, or the revocation of post-release
40 supervision, and shall also constitute sufficient authority for return
41 of the person named therein to local custody to hold in temporary
42 detention for further revocation proceedings in the event said person
43 does not successfully complete the intensive drug treatment program. The
44 board's rules shall provide for cancellation of delinquency and restora-
45 tion to supervision upon the successful completion of the program] for
46 up to twenty-four hours pending a recognizance hearing pursuant to
47 subparagraph (iv) of this paragraph. No notice of violation or warrant
48 shall be issued due to a releasee being in the company of or fraterniz-
49 ing with any person the releasee knows has a criminal record or knows
50 has been adjudicated a youthful offender.
51 (iv) Upon execution of a warrant issued pursuant to this section, the
52 authorized officer shall take the releasee to the local trial court for
53 a recognizance hearing. Such recognizance hearing shall commence within
54 twenty-four hours of the execution of the warrant.
55 (v) At a recognizance hearing, the department shall have the burden to
56 demonstrate to the court that the executed warrant was properly issued
A. 5493--A 6
1 pursuant to this section and that the releasee is potentially subject to
2 incarceration pursuant to paragraph (f) of this subdivision.
3 (vi) At a recognizance hearing, the court shall consider all available
4 evidence of the releasee's employment, family and community ties includ-
5 ing length of residency in the community, history of reporting in a
6 timely fashion to a parole or supervisory officer, and other indicators
7 of stability. At the conclusion of the recognizance hearing, the court
8 shall release the releasee on his or her own recognizance unless the
9 court finds on the record or in writing that release on recognizance
10 will not reasonably assure the releasee's appearance at subsequent
11 preliminary or revocation hearings. In such instances, the court shall
12 release the releasee under non-monetary conditions, selecting the least
13 restrictive alternative conditions that will reasonably assure the
14 releasee's appearance at subsequent preliminary or revocation hearings.
15 The court shall explain its choice of alternative conditions on the
16 record or in writing. The releasee shall not be required to pay for any
17 part of the cost of release under non-monetary conditions. The court may
18 order that the releasee be detained pending preliminary or final revoca-
19 tion hearings only upon a finding that the releasee currently presents a
20 substantial risk of willfully failing to appear at the preliminary or
21 final revocation hearings and that no non-monetary condition or combina-
22 tion of conditions in the community will reasonably assure the
23 releasee's appearance at the preliminary or final revocation hearings.
24 (vii) The alleged violator shall have a right to representation by
25 counsel at the recognizance hearing. In any case, including when a court
26 is called upon to evaluate the capacity of an alleged violator in a
27 recognizance proceeding, where such person is financially unable to
28 retain counsel, the criminal court of the city of New York, the county
29 court or district court in the county where the violation is alleged to
30 have occurred or where the hearing is held, shall assign counsel in
31 accordance with the county or city plan for representation placed in
32 operation pursuant to article eighteen-b of the county law.
33 (viii) If a releasee is brought to or appears in a trial court due to
34 an arrest for any alleged felony or misdemeanor, and at any point the
35 department issues a warrant for the same alleged criminal conduct, then
36 the court's order pursuant to section 530.10 of the criminal procedure
37 law shall control in determining whether the releasee shall be detained
38 pending a preliminary or final revocation hearing, provided that at the
39 time of the court's order, pursuant to section 530.10 of the criminal
40 procedure law, the court was informed the releasee was subject to commu-
41 nity supervision. Provided, however, that notwithstanding section 530.10
42 of the criminal procedure law, the court may order that the releasee be
43 detained pending preliminary or final revocation hearings upon a finding
44 on the record or in writing that the releasee currently presents a
45 substantial risk of willfully failing to appear at the preliminary or
46 final revocation hearings and that no non-monetary condition or combina-
47 tion of conditions in the community supervision will reasonably assure
48 the releasee's appearance at the preliminary or final revocation hear-
49 ings. If the criminal court imposes bail pursuant to section 530.10 of
50 the criminal procedure law, and the releasee-defendant secures release
51 by paying bail or by operation of law, then the releasee shall not be
52 detained further based solely on the warrant issued by the department;
53 provided, however, if the department issues a warrant for the same
54 alleged criminal conduct after the court's order pursuant to section
55 530.10 of the criminal procedure law and the department can demonstrate
56 that at the time of such court's order the court was not informed the
A. 5493--A 7
1 releasee was subject to community supervision, then the court shall hold
2 a recognizance hearing within twenty-four hours of the execution of the
3 warrant.
4 § 5. Subparagraphs (i), (iii) and (iv) of paragraph (c) of subdivision
5 3 of section 259-i of the executive law, subparagraph (i) as amended by
6 section 11 of part E of chapter 62 of the laws of 2003, and subpara-
7 graphs (iii) and (iv) as amended by section 1 of part E of chapter 56 of
8 the laws of 2007, are amended and two new subparagraphs (ix) and (x) are
9 added to read as follows:
10 (i) [Within fifteen days after the warrant for retaking and temporary
11 detention has been executed, unless the releasee has been convicted of a
12 new crime committed while under presumptive release, parole, conditional
13 release or post-release supervision, the board of parole shall afford
14 the alleged presumptive release, parole, conditional release or post-re-
15 lease supervision violator a preliminary revocation hearing before a
16 hearing officer designated by the board of parole. Such hearing officer
17 shall not have had any prior supervisory involvement over the alleged
18 violator] (A) For any alleged technical violation for which a notice of
19 violation was issued or a person was released on recognizance pursuant
20 to subparagraph (iv) of paragraph (a) of this subdivision, the depart-
21 ment shall within ten days of the issuance of the notice of violation or
22 the order of release on recognizance afford the person a preliminary
23 revocation hearing before a hearing officer designated by the depart-
24 ment. Such hearing officer shall not have had any prior supervisory
25 involvement over the alleged violator. Such hearing shall not be held at
26 a correctional facility, detention center or local correctional facili-
27 ty.
28 (B) For any alleged technical violation for which a court issued an
29 order detaining a person pursuant to subparagraph (iv) of paragraph (a)
30 of this subdivision and the person would be subject to reincarceration
31 of up to thirty days or more pursuant to subparagraph (x) of paragraph
32 (f) of this subdivision should the violation be sustained at a final
33 revocation hearing, then within five days of the issuance of the order
34 of detention the department shall afford such person a preliminary revo-
35 cation hearing before a hearing officer designated by the department.
36 Such hearing officer shall not have had any prior supervisory involve-
37 ment over the alleged violator.
38 (C) For any alleged non-technical violation, within ten days of the
39 execution of the warrant for the violation the department shall afford
40 such person a preliminary hearing before a hearing officer designated by
41 the department. Such hearing officer shall not have had any prior super-
42 visory involvement over the alleged violator.
43 (iii) The alleged violator shall, [within three days of the execution
44 of the warrant] at the time a notice of violation is issued or at the
45 time of a recognizance hearing, be given written notice of the time,
46 place and purpose of the preliminary hearing [unless he or she is
47 detained pursuant to the provisions of subparagraph (iv) of paragraph
48 (a) of this subdivision. In those instances, the alleged violator will
49 be given written notice of the time, place and purpose of the hearing
50 within five days of the execution of the warrant], or if no preliminary
51 hearing is required pursuant to this section, of the final revocation
52 hearing. The notice shall state what conditions of [presumptive
53 release, parole, conditional release or post-release] community super-
54 vision are alleged to have been violated, and in what manner; that such
55 person shall have the right to appear and speak in his or her own
56 behalf; that he or she shall have the right to introduce letters and
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1 documents; that he or she may present witnesses who can give relevant
2 information to the hearing officer; that he or she has the right to
3 confront the witnesses against him or her; and that such person shall
4 have the right to representation by counsel at any preliminary and final
5 revocation hearings. Adverse witnesses may be compelled to attend the
6 preliminary hearing unless the prisoner has been convicted of a new
7 crime while on supervision or unless the hearing officer finds good
8 cause for their non-attendance. As far as practicable or feasible, any
9 additional documents having been collected or prepared that support the
10 charge shall be delivered to the alleged violator.
11 (iv) [The preliminary hearing shall be scheduled to take place no
12 later than fifteen days from the date of execution of the warrant.] The
13 standard of proof at the preliminary hearing shall be [probable cause] a
14 preponderance of the evidence to believe that the [presumptive releasee,
15 parolee, conditional releasee or person under post-release supervision]
16 releasee has violated one or more conditions of his or her [presumptive
17 release, parole, conditional release or post-release] community super-
18 vision in an important respect. Proof of conviction of a crime committed
19 while under supervision shall constitute [probable cause] prima facie
20 evidence of a violation of a condition of community supervision for the
21 purposes of this section.
22 (ix) If the hearing officer finds by a preponderance of the evidence
23 that such person has violated one or more conditions of community super-
24 vision in an important respect, the releasee shall, at the conclusion of
25 the preliminary hearing be given written notice of the time, place and
26 purpose of the final revocation hearing. The notice shall state what
27 conditions of community supervision are alleged to have been violated,
28 when, where and in what manner; that such person shall have the right to
29 representation by counsel at any final revocation hearing; that such
30 person shall have the right to appear and speak in his or her own
31 behalf; that he or she shall have the right to introduce letters and
32 documents; that he or she may present witnesses who can give relevant
33 information to the hearing officer; that he or she has the right to
34 confront the witnesses against him or her. As far as practicable or
35 feasible, any additional documents having been collected or prepared
36 that support the charge shall be delivered to the releasee. Adverse
37 witnesses may be compelled to attend the final revocation hearing unless
38 the prisoner has been convicted of a new crime while on supervision or
39 unless the hearing officer finds good cause for their non-attendance.
40 (x) The alleged violator shall have a right to representation by coun-
41 sel at the preliminary hearing. In any case, including when a court is
42 called upon to evaluate the capacity of an alleged violator in a prelim-
43 inary proceeding, where such person is financially unable to retain
44 counsel, the criminal court of the city of New York, the county court or
45 district court in the county where the violation is alleged to have
46 occurred or where the hearing is held, shall assign counsel in accord-
47 ance with the county or city plan for representation placed in operation
48 pursuant to article eighteen-b of the county law.
49 § 6. Paragraph (f) of subdivision 3 of section 259-i of the executive
50 law, as amended by section 11 of part E of chapter 62 of the laws of
51 2003, subparagraph (v) as amended and subparagraph (xii) as added by
52 chapter 545 of the laws of 2015 and subparagraph (x) as amended by
53 section 38-f-1 of subpart A of part C of chapter 62 of the laws of 2011,
54 is amended to read as follows:
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1 (f) (i) [Revocation hearings shall be scheduled to be held within
2 ninety days of the probable cause determination] For any releasee
3 charged with a violation:
4 (A) If a court issued an order detaining such person pursuant to
5 subparagraph (iv) of paragraph (a) of this subdivision and the person
6 would be subject to reincarceration of up to seven days pursuant to
7 subparagraph (x) of this paragraph should the violation be sustained at
8 a final revocation hearing, then within two days of the issuance of the
9 order of detention, the department shall afford such person a final
10 revocation hearing in person before a hearing officer designated by the
11 department. Such hearing officer shall not have had any prior superviso-
12 ry involvement over the alleged violator. No preliminary revocation
13 hearing shall be held in this instance.
14 (B) If a court issued an order detaining such person pursuant to
15 subparagraph (iv) of paragraph (a) of this subdivision and the person
16 would be subject to reincarceration of up to fifteen days pursuant to
17 subparagraph (x) of this paragraph should the violation be sustained at
18 a final revocation hearing, then within four days of the issuance of the
19 order of detention, the department shall afford such person a final
20 revocation hearing in person before a hearing officer designated by the
21 department. Such hearing officer shall not have had any prior superviso-
22 ry involvement over the alleged violator. No preliminary revocation
23 hearing shall be held in this instance.
24 (C) If a court issued an order detaining such person pursuant to
25 subparagraph (iv) of paragraph (a) of this subdivision and the person
26 would be subject to reincarceration of up to thirty days or more pursu-
27 ant to subparagraph (x) of this paragraph should the violation be
28 sustained at a final revocation hearing, then within ten days after the
29 issuance of the order of detention, the department shall afford such
30 person a final revocation hearing in person before a hearing officer
31 designated by the department. Such hearing officer shall not have had
32 any prior supervisory involvement over the alleged violator.
33 (D) If a notice of violation was issued or such person was released on
34 recognizance pursuant to subparagraph (iv) of paragraph (a) of this
35 subdivision the department shall within thirty days of the issuance of
36 the notice of violation or the order of release on recognizance afford
37 the person a final revocation hearing in person before a hearing officer
38 designated by the department. Such hearing officer shall not have had
39 any prior supervisory involvement over the alleged violator. Such hear-
40 ing shall not be held at a correctional facility, detention center or
41 local correctional facility. The department shall have six months from
42 the date of the effective date of the chapter of the laws of two thou-
43 sand nineteen that amended this paragraph to begin to hold such hearings
44 at allowable locations.
45 (E) If such person is accused of a non-technical violation, the
46 department shall within thirty days of the execution of the warrant
47 afford such person a final revocation hearing in person before a hearing
48 officer designated by the department. Such hearing officer shall not
49 have had any supervisory involvement over the alleged violator.
50 (F) However, if an alleged violator requests and receives any post-
51 ponement of his revocation hearing, or consents to a postponed revoca-
52 tion proceeding initiated by the board, or if an alleged violator, by
53 his actions otherwise precludes the prompt conduct of such proceedings,
54 the time limit may be extended.
A. 5493--A 10
1 (ii) The revocation hearing shall be conducted by a presiding officer
2 who may be a member or a hearing officer designated by the board in
3 accordance with rules of the board.
4 (iii) Both the alleged violator and an attorney who has filed a notice
5 of appearance on his behalf in accordance with the rules of the board of
6 parole shall be given written notice of the date, place and time of the
7 hearing [as soon as possible but at least fourteen days prior to the
8 scheduled date] pursuant to subparagraph (ix) of paragraph (c) of this
9 subdivision.
10 (iv) The alleged violator shall be given written notice of the rights
11 enumerated in subparagraph (iii) of paragraph (c) of this subdivision as
12 well as of his right to present mitigating evidence relevant to restora-
13 tion to presumptive release, parole, conditional release or post-release
14 supervision and his right to counsel.
15 (v) The alleged violator shall [be permitted] have a right to repre-
16 sentation by counsel at the revocation hearing. In any case, including
17 when a superior court is called upon to evaluate the capacity of an
18 alleged violator in a [parole] revocation proceeding, where such person
19 is financially unable to retain counsel, the criminal court of the city
20 of New York, the county court or district court in the county where the
21 violation is alleged to have occurred or where the hearing is held,
22 shall assign counsel in accordance with the county or city plan for
23 representation placed in operation pursuant to article eighteen-B of the
24 county law. He or she shall have the right to confront and cross-examine
25 adverse witnesses, unless there is good cause for their non-attendance
26 as determined by the presiding officer; present witnesses and documenta-
27 ry evidence in defense of the charges; and present witnesses and docu-
28 mentary evidence relevant to the question whether reincarceration of the
29 alleged violator is appropriate.
30 (vi) At the revocation hearing, the charges shall be read and the
31 alleged violator shall be permitted to plead not guilty, guilty, guilty
32 with explanation or to stand mute. As to each charge, evidence shall be
33 introduced through witnesses and documents, if any, in support of that
34 charge. At the conclusion of each witness's direct testimony, he shall
35 be made available for cross-examination. If the alleged violator intends
36 to present a defense to the charges or to present evidence of mitigating
37 circumstances, the alleged violator shall do so after presentation of
38 all the evidence in support of a violation of presumptive release,
39 parole, conditional release or post-release supervision.
40 (vii) All persons giving evidence at the revocation hearing shall be
41 sworn before giving any testimony as provided by law.
42 (viii) At the conclusion of the hearing the presiding officer may
43 sustain any or all of the violation charges or may dismiss any or all
44 violation charges. He may sustain a violation charge only if the charge
45 is supported by [a preponderance of the evidence adduced] clear and
46 convincing evidence. Conduct that formed the basis of an arrest shall
47 not form a basis of a sustained parole violation if a court has adjudi-
48 cated the matter with an acquittal, adjournment in contemplation of
49 dismissal, or violation.
50 (ix) If the presiding officer is not satisfied that there is [a
51 preponderance of] clear and convincing evidence in support of the
52 violation, he shall dismiss the violation, cancel the delinquency and
53 restore the person to presumptive release, parole, conditional release
54 or post-release supervision.
55 (x) If the presiding officer is satisfied that there is [a preponder-
56 ance of] clear and convincing evidence that the alleged violator
A. 5493--A 11
1 violated one or more conditions of release in an important respect, he
2 or she shall so find. For each violation found, other than absconding,
3 the presiding officer shall direct that no earned time credits shall be
4 awarded for the thirty day period commencing from the date of the
5 sustained violation. For any absconding violation found, the presiding
6 officer shall direct that no earned time credits shall be awarded for
7 the entire time period during which a releasee was found to have
8 absconded from supervision.
9 (xi) Incarceration shall not be imposed for any of the following
10 violations: (A) positive drug test for drugs or a controlled substance
11 without proper medical authorization, or possession of drug parapher-
12 nalia, unless the releasee is subject to community supervision due to a
13 conviction for driving while ability impaired at least in part by drugs
14 pursuant to section eleven hundred ninety-two of the vehicle and traffic
15 law; (B) positive alcohol test or use or possession of alcohol, unless
16 the releasee is subject to community supervision due to a conviction for
17 driving while ability impaired at least in part by alcohol or while
18 intoxicated pursuant to section eleven hundred ninety-two of the vehicle
19 and traffic law; (C) failing to notify community supervision officer of
20 a change in employment or program status; (D) failing to notify communi-
21 ty supervision officer of a change in residence, absent clear and
22 convincing evidence that the releasee acted willfully for the purpose of
23 permanently avoiding supervision; (E) violating curfew; (F) failure to
24 pay surcharges and fees, including fees imposed pursuant to section
25 60.35 of the penal law, sections eighteen hundred nine and eighteen
26 hundred nine-c of the vehicle and traffic law, or section 27.12 of the
27 parks, recreation and historic preservation law; (G) failure to make
28 office or written reports as directed, absent clear and convincing
29 evidence that the releasee acted willfully for the purpose of permanent-
30 ly avoiding supervision; (H) leaving the state of New York or any other
31 state to which the releasee is released or transferred, or any area
32 defined in writing by his parole officer, without permission, absent
33 clear and convincing evidence that the releasee acted willfully for the
34 purpose of permanently avoiding supervision; (I) failure to notify
35 community supervision officer of contact with any law enforcement agen-
36 cy, absent clear and convincing evidence that the releasee intended to
37 hide evidence of his or others' behavior that constitutes a violation of
38 the penal law; (J) failure to obey special conditions of community
39 supervision, absent clear and convincing evidence that the failure poses
40 a substantial risk to public safety and cannot be addressed safely in
41 the community including with counseling or programming; and (K) obtain-
42 ing a driver's license or driving a car with a valid driver's license,
43 unless either action is explicitly prohibited by the person's
44 conviction.
45 (xii) For each violation [so] found, the presiding officer may (A)
46 direct that the [presumptive releasee, parolee, conditional releasee or
47 person serving a period of post-release supervision] releasee be
48 restored to supervision; (B) as an alternative to reincarceration,
49 direct the [presumptive releasee, parolee, conditional releasee or
50 person serving a period of post-release supervision be placed in a
51 parole transition facility for a period not to exceed one hundred eighty
52 days and subsequent restoration to supervision] releasee receive re-en-
53 try services in the community from qualified nonprofit agencies; (C) [in
54 the case of presumptive releasees, parolees or conditional releasees,]
55 direct the violator's reincarceration [and fix a date for consideration
56 by the board for re-release on presumptive release, or parole or condi-
A. 5493--A 12
1 tional release, as the case may be; or (D) in the case of persons
2 released to a period of post-release supervision, direct the violator's
3 reincarceration up to the balance of the remaining period of post-re-
4 lease supervision, not to exceed five years; provided, however, that a
5 defendant serving a term of post-release supervision for a conviction of
6 a felony sex offense defined in section 70.80 of the penal law may be
7 subject to a further period of imprisonment up to the balance of the
8 remaining period of post-release supervision], subject to the following
9 limitations: (1) for absconding, which is defined as failing to notify
10 his or her community supervision officer of a change in residence will-
11 fully for the purpose of permanently avoiding supervision; failure to
12 make office or written reports as directed willfully for the purpose of
13 permanently avoiding supervision; and leaving the state of New York or
14 any other state to which the releasee is released or transferred, or any
15 area defined in writing by his parole officer, without permission, will-
16 fully for the purpose of permanently avoiding supervision, up to seven
17 days incarceration may be imposed for the first violation, up to fifteen
18 days incarceration may be imposed for the second violation, and up to
19 thirty days incarceration may be imposed for the third or any subsequent
20 violation; (2) for all other technical violations for which incarcera-
21 tion may be imposed no period of reincarceration may be imposed for the
22 first and second substantiated technical violations for which incarcera-
23 tion may be imposed; up to seven days reincarceration may be imposed for
24 the third substantiated technical violation for which incarceration may
25 be imposed; up to fifteen days reincarceration may be imposed for the
26 fourth substantiated technical violation for which incarceration may be
27 imposed; up to thirty days reincarceration may be imposed for the fifth
28 and subsequent substantiated technical violations for which incarcera-
29 tion may be imposed; and (3) for non-technical violations, up to ninety
30 days reincarceration may be imposed. If a warrant was executed pursuant
31 to subparagraph (iv) of paragraph (a) of this subdivision and the person
32 was detained pursuant to such subparagraph pending preliminary or revo-
33 cation hearings, any period of incarceration imposed pursuant to this
34 paragraph shall be counted from the date of the execution of the
35 warrant. If a warrant was executed pursuant to subparagraph (iv) of
36 paragraph (a) of this subdivision but a criminal court released the
37 person pending preliminary or revocation hearings, any period of incar-
38 ceration imposed pursuant to this paragraph shall be counted from the
39 date of issuance of a determination after a final hearing that the
40 person has violated one or more conditions of community supervision, and
41 the time between execution of the warrant and release of the person
42 pending preliminary or revocation hearings shall count toward the period
43 of reincarceration imposed pursuant to this paragraph. If a releasee is
44 detained on bail or committed to the custody of the sheriff pursuant to
45 section 530.10 of the criminal procedure law, any time the person spent
46 confined in jail shall count towards any period of incarceration imposed
47 pursuant to this paragraph. In all cases, the presiding officer shall
48 impose the least restrictive reasonable sanction. Any periods of rein-
49 carceration shall run concurrently if more than one violation is adjudi-
50 cated. If a period of incarceration is imposed pursuant to this para-
51 graph, the releasee shall be released from custody upon expiration of
52 the period or the end of the releasee's period of community supervision,
53 whichever shall be sooner. For the violator serving an indeterminate
54 sentence who while re-incarcerated has not been found by the department
55 to have committed a serious disciplinary infraction, such violator shall
56 be re-released on the date fixed at the revocation hearing. For the
A. 5493--A 13
1 violator serving an indeterminate sentence who has been found by the
2 department to have committed a serious disciplinary infraction while
3 re-incarcerated, the department shall refer the violator to the board
4 for consideration for re-release to community supervision. Upon such
5 referral the board may waive the personal interview between a member or
6 members of the board and the violator to determine the suitability for
7 re-release when the board directs that the violator be re-released upon
8 expiration of the time assessment. The board shall retain the authority
9 to suspend the date fixed for re-release based on the violator's commis-
10 sion of a serious disciplinary infraction and shall in such case require
11 a personal interview be conducted within a reasonable time between a
12 panel of members of the board and the violator to determine suitability
13 for re-release. If an interview is required, the board shall notify the
14 violator in advance of the date and time of such interview in accordance
15 with the rules and regulations of the board.
16 [(xi)] (xiii) If the presiding officer sustains any violations, he
17 must prepare a written statement, to be made available to the alleged
18 violator and his counsel, indicating the evidence relied upon and the
19 reasons for revoking presumptive release, parole, conditional release or
20 post-release supervision, and for the disposition made.
21 [(xii)] (xiv) If at any time during a revocation proceeding the
22 alleged violator, his or her counsel, or an employee of the department
23 contends, or if it reasonably appears to the hearing officer, that the
24 alleged violator is an incapacitated person as that term is defined in
25 subdivision one of section 730.10 of the criminal procedure law and no
26 judicial determination has been made that the alleged violator is an
27 incapacitated person, the revocation proceeding shall be temporarily
28 stayed until the superior court determines whether or not the person is
29 fit to proceed. The matter shall be promptly referred to the superior
30 court for determination of the alleged violator's fitness to proceed in
31 a manner consistent with the provisions of article seven hundred thirty
32 of the criminal procedure law, provided however that the superior court
33 shall immediately appoint counsel for any unrepresented alleged violator
34 eligible for appointed counsel under subparagraph (v) of this paragraph
35 [(f) of subdivision three of section two hundred fifty-nine-i of this
36 chapter]. The court shall decide whether or not the alleged violator is
37 incapacitated within thirty days of the referral from the hearing offi-
38 cer. If the court determines that the alleged violator is not an inca-
39 pacitated person, the court shall order that the matter be returned to
40 the board of parole for continuation and disposition of the revocation
41 proceeding. If the court determines that the alleged violator is an
42 incapacitated person and if no felony charges are pending against the
43 alleged violator, the court shall issue a final order of observation
44 committing such person to the custody of the commissioner of mental
45 health or the commissioner of developmental disabilities for care and
46 treatment in an appropriate institution in a manner consistent with
47 subdivision one of section 730.40 of the criminal procedure law. If a
48 final order of observation has been issued pursuant to this section, the
49 hearing officer shall dismiss the violation charges and such dismissal
50 shall act as a bar to any further proceeding under this section against
51 the alleged violator for such violations. If felony criminal charges are
52 pending at any time against an alleged violator who has been referred to
53 superior court for a fitness evaluation but before a determination of
54 fitness has been made pursuant to this section, the court shall decide
55 whether or not the alleged violator is incapacitated pursuant to article
56 seven hundred thirty of the criminal procedure law and the revocation
A. 5493--A 14
1 proceeding shall be held in abeyance until such decision has been
2 reached. The hearing officer shall adopt the capacity finding of the
3 court and either terminate the revocation process if an order of obser-
4 vation has been made by the court or proceed with the revocation hearing
5 if the alleged violator has been found not to be an incapacitated
6 person.
7 § 7. Section 259-i of the executive law is amended by adding a new
8 subdivision 9 to read as follows:
9 9. The board shall promulgate rules and regulations to facilitate the
10 presence of nonprofit service providers able to offer relevant communi-
11 ty-based services to releasees at all preliminary and final revocation
12 hearings for the purpose of helping people subject to community super-
13 vision successfully complete such supervision and avoid future such
14 supervision, and to help ensure presiding officers impose the least
15 restrictive reasonable sanction for any violation of community super-
16 vision.
17 § 8. This act shall take effect on the first of April next succeeding
18 the date on which it shall have become a law; provided however the
19 department of corrections and community supervision shall have six
20 months from the effective date of this act to begin holding preliminary
21 revocation hearings required by the amendments to paragraph (c) of
22 subdivision 3 of section 259-i of the executive law made by section five
23 of this act, including establishing preliminary revocation hearing
24 facilities that are not at correctional facilities for people who are
25 not detained pending their hearings. Provided further, however, that the
26 board of parole shall have two months from the effective date of this
27 act to identify each releasee incarcerated for a sustained parole
28 violation and recalculate such releasee's sentence in accordance with
29 this act. If no incarceration may be imposed pursuant to subparagraph
30 (xi) of paragraph (f) of subdivision 3 of section 259-i of the executive
31 law, as added by section six of this act, the board shall immediately
32 restore the releasee to community supervision. If the releasee may be
33 incarcerated for the sustained violation the board shall fix a new date
34 for release pursuant to subparagraph (xii) of paragraph (f) of subdivi-
35 sion 3 of section 259-i of the executive law, as amended by section six
36 of this act. If such release date has passed, the board shall immediate-
37 ly restore the releasee to community supervision. Provided further,
38 however, the department of corrections and community supervision shall
39 have six months from the effective date of this act to set up the final
40 revocation hearing courtrooms that are not at correctional facilities
41 for people who are not detained pending their hearing pursuant to the
42 amendments to paragraph (f) of subdivision 3 of section 259-i of the
43 executive law as made by section six of this act. Effective immediate-
44 ly, the addition, amendment and/or repeal of any rule or regulation
45 necessary for the implementation of this act on its effective date are
46 authorized and directed to be made and completed on or before such
47 effective date.