Bill Text: NY A10545 | 2019-2020 | General Assembly | Introduced

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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 1-0)

Status: (Introduced - Dead) 2020-05-28 - referred to correction [A10545 Detail]

Download: New_York-2019-A10545-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          10545

                   IN ASSEMBLY

                                      May 28, 2020
                                       ___________

        Introduced  by  COMMITTEE ON RULES -- (at request of M. of A. Mosley) --
          read once and referred to the Committee on Correction

        AN ACT to amend the executive law, in relation to revocation of communi-
          ty 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 five
     2  new subdivisions 5, 6, 7, 8 and 9 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 in an important respect  other  than  conduct  that  if
     9  proved would be a felony offense, or a misdemeanor offense under article
    10  one  hundred  twenty,  one  hundred  twenty-one, one hundred thirty, one
    11  hundred thirty-five, two hundred sixty-five or four hundred  eighty-five
    12  of the penal law.
    13    7. "Absconding" means intentionally avoiding supervision by failing to
    14  maintain contact or communication with the releasee's assigned community
    15  supervision  officer  or  area  bureau  office  and to notify his or her
    16  assigned community supervision officer or area bureau office of a change
    17  in residence, and reasonable efforts by the  assigned  community  super-
    18  vision officer to re-engage the releasee have been unsuccessful.
    19    8.  "Tier  1  violation" means any technical violation not included in
    20  the definition of a Tier 2 violation.
    21    9. "Tier 2 violation" means any of the following technical violations:
    22  violating curfew; failure to pay surcharges  and  fees,  including  fees
    23  imposed  pursuant  to  section 60.35 of the penal law, sections eighteen
    24  hundred nine and eighteen hundred nine-c of the vehicle and traffic law,
    25  or section 27.12 of the parks, recreation and historic preservation law;
    26  obtaining a driver's license or driving a  car  with  a  valid  driver's
    27  license,  provided  however  it  shall not be a tier 2 violation if such
    28  action  is  explicitly  prohibited  as  a  condition  of  such  person's

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD16506-01-0
        A. 10545                            2

     1  sentence;  positive  test  for or use or possession of alcohol, drugs, a
     2  controlled substance  without  proper  medical  authorization,  or  drug
     3  paraphernalia,  provided  however  it shall not be a tier 2 violation if
     4  the  releasee  is  subject  to community supervision due to a conviction
     5  related to alcohol or drugs pursuant to section eleven  hundred  ninety-
     6  two of the vehicle and traffic law; failing to notify a community super-
     7  vision  officer  of a change in employment or program status; failing to
     8  notify a  community  supervision  officer  of  a  change  in  residence,
     9  provided  however it shall not be a tier 2 violation if the releasee was
    10  absconding; failure to make  office  or  written  reports  as  directed,
    11  provided  however it shall not be a tier 2 violation if the releasee was
    12  absconding; leaving the state of New York or any other  state  to  which
    13  the  releasee  is released or transferred or any area defined in writing
    14  by his parole officer, without permission, provided however it shall not
    15  be a tier 2 violation if the releasee was absconding; failure to  notify
    16  community  supervision officer of contact with any law enforcement agen-
    17  cy, provided however it shall not be a tier 2 violation if the  releasee
    18  intended  to hide evidence of his or others' behavior that constitutes a
    19  violation of the penal law; and failure to obey any other special condi-
    20  tion of community supervision, provided however it shall not be a tier 2
    21  violation if the failure cannot be addressed in the community with coun-
    22  seling, treatment, or programming  and  all  reasonable  community-based
    23  means to address the failure have been exhausted.
    24    §  2.  Any  releasee who is detained on the effective date of this act
    25  pursuant to a warrant issued for an alleged technical violation shall be
    26  restored to community supervision. For any such releasee  who  has  been
    27  detained  for  fewer  than thirty days, the board may issue and promptly
    28  serve a written notice of violation on such releasee  according  to  the
    29  terms of subparagraph (iii) of paragraph (c) of subdivision 3 of section
    30  259-i of the executive law.
    31    § 3. Any releasee who has been incarcerated for thirty days or more on
    32  the  effective  date  of  this  act  for  a  sustained  technical parole
    33  violation shall be immediately restored to  community  supervision.  All
    34  other  releasees  incarcerated  on  the effective date of this act for a
    35  sustained technical parole violation shall be  restored  to  supervision
    36  after  serving  thirty  days,  or  released at the end of the releasee's
    37  period of community supervision, whichever shall be sooner.
    38    § 4. Any releasee detained on the effective date of this act  pursuant
    39  to a warrant issued for an alleged non-technical violation shall receive
    40  a  recognizance  hearing  pursuant  to paragraph (a) of subdivision 3 of
    41  section 259-i of the executive law within 72 hours of the effective date
    42  of this act.
    43    § 5. Subparagraph (i) of paragraph (a) of  subdivision  3  of  section
    44  259-i  of  the  executive  law, as amended by chapter 545 of the laws of
    45  2015, is amended and five new subparagraphs (iv), (v), (vi),  (vii)  and
    46  (viii) are added to read as follows:
    47    (i)  If  the parole officer having charge of a presumptively released,
    48  paroled or conditionally released person or a person released  to  post-
    49  release  supervision or a person received under the uniform act for out-
    50  of-state parolee supervision shall have reasonable cause to believe that
    51  such person has [lapsed into criminal ways or company, or  has  violated
    52  one  or  more conditions of his presumptive release, parole, conditional
    53  release or post-release supervision] committed  a  technical  violation,
    54  such  parole officer shall report such fact to a member of the board, or
    55  to any officer of the department designated by the board, and  thereupon
    56  a  written  notice  of violation may be issued according to the terms of
        A. 10545                            3

     1  subparagraph (iii) of paragraph (c) of this subdivision,  and  shall  be
     2  promptly  served  upon such person. If the releasee has failed to appear
     3  as directed in response to a notice  of  violation  and  has  failed  to
     4  appear  voluntarily  within  forty-eight  hours  after such time and the
     5  person would be subject to incarceration pursuant to subparagraph  (xii)
     6  of  paragraph  (f) of this subdivision should the violation be sustained
     7  at a final revocation hearing, a warrant may be issued for the  retaking
     8  of  such  person  and for his temporary detention in accordance with the
     9  rules of the board. If the person has failed to appear  as  directed  in
    10  response  to  a notice of violation and has failed to appear voluntarily
    11  within forty-eight hours after such time and the  person  would  not  be
    12  subject to incarceration pursuant to subparagraph (xii) of paragraph (f)
    13  of this subdivision should the violation be sustained at a final revoca-
    14  tion  hearing,  no warrant shall issue and the violation shall be deemed
    15  sustained. Notice of that decision shall be  promptly  served  upon  the
    16  releasee. In such case, within one month of the date the notice of deci-
    17  sion  was served upon the releasee, the releasee may move to vacate such
    18  a sustained violation if the  releasee  can  show  that  the  notice  of
    19  violation was not properly served or the failure to appear was otherwise
    20  excusable.  If  the  parole  officer  having  charge  of a presumptively
    21  released, paroled or conditionally released person or a person  released
    22  to  post-release  supervision or a person received under the uniform act
    23  for out of state parolee supervision  shall  have  reasonable  cause  to
    24  believe  that  such person has committed a non-technical violation, such
    25  parole officer shall report such fact to a member of the  board,  or  to
    26  any  officer  of the department designated by the board, and thereupon a
    27  notice of violation may be issued or a warrant may  be  issued  for  the
    28  retaking  of  such  person and for his temporary detention in accordance
    29  with the rules of the board [unless such person].  However, if a releas-
    30  ee has been determined to be currently unfit to proceed to trial  or  is
    31  currently  subject to a temporary or final order of observation pursuant
    32  to article seven hundred thirty of the criminal procedure law, [in which
    33  case] no notice of violation or warrant shall be issued. The issuance of
    34  a notice of violation, service of a notice of violation,  service  of  a
    35  notice  of decision, and the retaking and detention of any [such] person
    36  for whom a warrant has been issued pursuant to this subparagraph may  be
    37  further  regulated by rules and regulations of the department not incon-
    38  sistent with this article. A warrant issued  pursuant  to  this  section
    39  shall  constitute  sufficient  authority  to the superintendent or other
    40  person in charge of any jail, penitentiary, lockup or detention  pen  to
    41  whom  it  is  delivered  to hold in temporary detention the person named
    42  therein[; except that a warrant issued with respect to a person who  has
    43  been  released  on medical parole pursuant to section two hundred fifty-
    44  nine-r of this article and whose parole is  being  revoked  pursuant  to
    45  paragraph  (h)  of  subdivision  four  of  such section shall constitute
    46  authority for the immediate placement of the parolee only into imprison-
    47  ment in the custody of the department to hold in temporary detention.  A
    48  warrant issued pursuant to this section shall also constitute sufficient
    49  authority to the person in charge of a drug treatment campus, as defined
    50  in  subdivision twenty of section two of the correction law, to hold the
    51  person named therein, in accordance with the procedural requirements  of
    52  this section, for a period of at least ninety days to complete an inten-
    53  sive  drug  treatment program mandated by the board as an alternative to
    54  presumptive release or parole or conditional release revocation, or  the
    55  revocation of post-release supervision, and shall also constitute suffi-
    56  cient  authority for return of the person named therein to local custody
        A. 10545                            4

     1  to hold in temporary detention for further revocation proceedings in the
     2  event said person does not  successfully  complete  the  intensive  drug
     3  treatment  program.  The board's rules shall provide for cancellation of
     4  delinquency   and   restoration   to  supervision  upon  the  successful
     5  completion of the program] for up to twenty-four hours pending a  recog-
     6  nizance  hearing  pursuant  to  subparagraph (iv) of this paragraph.  It
     7  shall no longer be a condition of parole nor may a notice  of  violation
     8  or  a  warrant  be  issued  due to a releasee being in the company of or
     9  fraternizing with any person the releasee knows has a criminal record or
    10  knows has been adjudicated a youthful offender.
    11    (iv) Upon execution of a warrant issued pursuant to this section,  the
    12  authorized  officer shall take the releasee to a local court with crimi-
    13  nal jurisdiction for a recognizance hearing. Such  recognizance  hearing
    14  shall commence within twenty-four hours of the execution of the warrant.
    15    (v) At a recognizance hearing, the department shall have the burden to
    16  demonstrate  to  the court that the executed warrant was properly issued
    17  and served pursuant to this section.
    18    (vi) At a recognizance hearing, the court shall consider all available
    19  evidence of the releasee's employment, family and community ties includ-
    20  ing length of residency in the community,  history  of  reporting  in  a
    21  timely  fashion  to a parole or supervisory officer, other indicators of
    22  stability and the reasons for the releasee's failure to  appear  at  the
    23  prior preliminary or revocation hearing. At the conclusion of the recog-
    24  nizance hearing, the court may order that the releasee be detained pend-
    25  ing  preliminary  or  final revocation hearings only upon a finding that
    26  the releasee currently presents a substantial risk of willfully  failing
    27  to  appear  at  the preliminary or final revocation hearings and that no
    28  non-monetary condition or combination of  conditions  in  the  community
    29  will  reasonably  assure the releasee's appearance at the preliminary or
    30  final revocation  hearings.  Otherwise,  the  court  shall  release  the
    31  releasee  on  the  least  restrictive  non-monetary conditions that will
    32  reasonably assure the releasee's appearance at subsequent preliminary or
    33  revocation hearings, with a presumption of release on recognizance.  The
    34  court shall explain its decision on the record or in  writing.  If  non-
    35  monetary  conditions  of  release are imposed, the releasee shall not be
    36  required to pay for any part of the cost of such conditions.
    37    (vii) The alleged violator shall have a  right  to  representation  by
    38  counsel at the recognizance hearing. In any case, including when a court
    39  is  called  upon  to  evaluate  the capacity of an alleged violator in a
    40  recognizance proceeding, where such  person  is  financially  unable  to
    41  retain  counsel,  the criminal court of the city of New York, the county
    42  court or district court in the county where the violation is alleged  to
    43  have  occurred  or  where  the  hearing is held, shall assign counsel in
    44  accordance with the county or city plan  for  representation  placed  in
    45  operation pursuant to article eighteen-B of the county law.
    46    (viii)  Such  recognizance  hearing  may be held at the same time as a
    47  proceeding pursuant to article  five  hundred  thirty  of  the  criminal
    48  procedure  law  based  on the same alleged conduct. If at the proceeding
    49  pursuant to article five hundred thirty of the  criminal  procedure  law
    50  the  court  imposes  bail  or commits the releasee to the custody of the
    51  sheriff pursuant to article five hundred thirty of the  criminal  proce-
    52  dure law and the releasee secures release by paying bail or by operation
    53  of  law, then the releasee shall not be detained further based solely on
    54  the warrant issued by the department. If the department issues a warrant
    55  for a non-technical violation for  alleged  criminal  conduct  that  has
    56  already  been  the  subject  of a court's order pursuant to article five
        A. 10545                            5

     1  hundred thirty of the criminal procedure law,  then  within  twenty-four
     2  hours  of  execution  of  the  warrant  the releasee shall be provided a
     3  recognizance hearing pursuant to this subparagraph.
     4    § 6. 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]  (A)  For  any  alleged  non-technical violation, within
    11  fifteen days after the warrant for retaking and temporary detention  has
    12  been  executed,  unless  the  releasee has been convicted of a new crime
    13  committed while under presumptive release, parole,  conditional  release
    14  or  post-release  supervision,  the  board  of  parole  shall afford the
    15  alleged presumptive release, parole, conditional release or post-release
    16  supervision violator a preliminary revocation hearing before  a  hearing
    17  officer  designated  by  the board of parole. Such hearing officer shall
    18  not have had any prior supervisory involvement over the  alleged  viola-
    19  tor.
    20    (B)  For  any  alleged  technical  violation  for  which  a  notice of
    21  violation was issued or a person was released pursuant  to  subparagraph
    22  (vi)  of  paragraph (a) of this subdivision, the department shall within
    23  ten days of the issuance of the notice of  violation  or  the  order  of
    24  release,  whichever is later, afford the person a preliminary revocation
    25  hearing before a hearing officer  designated  by  the  department.  Such
    26  hearing  officer  shall  not  have had any prior supervisory involvement
    27  over the alleged violator. Such hearing shall not be held at  a  correc-
    28  tional facility, detention center or local correctional facility.
    29    (C)  For  any  alleged technical violation for which a court issued an
    30  order detaining a person pursuant to subparagraph (vi) of paragraph  (a)
    31  of  this  subdivision and the person would be subject to reincarceration
    32  of up to thirty days pursuant to subparagraph (x) of  paragraph  (f)  of
    33  this subdivision should the violation be sustained at a final revocation
    34  hearing, then within five days of the issuance of the order of detention
    35  the department shall afford such person a preliminary revocation hearing
    36  before  a  hearing  officer  designated  by the department. Such hearing
    37  officer shall not have had any prior supervisory  involvement  over  the
    38  alleged  violator.  Such  hearing  shall  not  be held at a correctional
    39  facility, detention center or a local correctional facility.
    40    (iii) The alleged violator shall, [within three days of the  execution
    41  of  the  warrant]  at the time a notice of violation is issued or at the
    42  time of a recognizance hearing, be given written  notice  of  the  time,
    43  place  and  purpose  of  the  preliminary  hearing  [unless he or she is
    44  detained pursuant to the provisions of subparagraph  (iv)  of  paragraph
    45  (a)  of  this subdivision. In those instances, the alleged violator will
    46  be given written notice of the time, place and purpose  of  the  hearing
    47  within  five days of the execution of the warrant], or if no preliminary
    48  hearing is required pursuant to this section, of  the  final  revocation
    49  hearing.    The  notice  shall  state  what  conditions  of [presumptive
    50  release, parole, conditional release or post-release]  community  super-
    51  vision  are  alleged  to  have  been  violated, when, where, and in what
    52  manner; that such person shall have the right to appear and speak in his
    53  or her own behalf; that he or she shall  have  the  right  to  introduce
    54  letters and documents; that he or she may present witnesses who can give
    55  relevant  information  to  the  hearing  officer; that he or she has the
    56  right to confront the witnesses against him or  her;  that  such  person
        A. 10545                            6

     1  shall have the right to representation by counsel at any preliminary and
     2  final revocation hearings; and the name and contact details for institu-
     3  tional  defenders  or  assigned  private counsel, as applicable. Adverse
     4  witnesses  may be compelled to attend the preliminary hearing unless the
     5  prisoner has been convicted of a  new  crime  while  on  supervision  or
     6  unless the hearing officer finds good cause for their non-attendance. As
     7  far  as  practicable  or  feasible, any additional documents having been
     8  collected or prepared that [support] are relevant to the charge shall be
     9  delivered to the alleged violator.
    10    (iv) [The preliminary hearing shall be  scheduled  to  take  place  no
    11  later  than fifteen days from the date of execution of the warrant.] The
    12  standard of proof at the preliminary hearing shall be probable cause  to
    13  believe that the [presumptive releasee, parolee, conditional releasee or
    14  person under post-release supervision] releasee has violated one or more
    15  conditions  of  his  or  her  [presumptive  release, parole, conditional
    16  release or post-release] community supervision in an important  respect.
    17  Proof  of  conviction of a crime committed while under supervision shall
    18  constitute probable cause for the purposes of this section.
    19    (ix) If the hearing officer finds probable cause that such person  has
    20  violated one or more conditions of community supervision in an important
    21  respect,  the releasee shall, at the conclusion of the preliminary hear-
    22  ing be given written notice of the time, place and purpose of the  final
    23  revocation  hearing. The notice shall state what conditions of community
    24  supervision are alleged to have been violated, when, where and  in  what
    25  manner; that such person shall have the right to representation by coun-
    26  sel  at  any  final  revocation hearing; that such person shall have the
    27  right to appear and speak in his or her own behalf; that he or she shall
    28  have the right to introduce letters and documents; that he  or  she  may
    29  present witnesses who can give relevant information to the hearing offi-
    30  cer;  that he or she has the right to confront the witnesses against him
    31  or her; and the name and contact details for institutional defenders  or
    32  assigned private counsel, as applicable. Any additional documents having
    33  been  collected  or  prepared  that  are relevant to the charge shall be
    34  delivered to the releasee. Adverse witnesses may be compelled to  attend
    35  the final revocation hearing unless the prisoner has been convicted of a
    36  new  crime while on supervision or unless the hearing officer finds good
    37  cause for their non-attendance.
    38    (x) The alleged violator shall have a right to representation by coun-
    39  sel at the preliminary hearing. In any case, including when a  court  is
    40  called upon to evaluate the capacity of an alleged violator in a prelim-
    41  inary  proceeding,  where  such  person  is financially unable to retain
    42  counsel, the criminal court of the city of New York, the county court or
    43  district court in the county where the  violation  is  alleged  to  have
    44  occurred  or  where the hearing is held, shall assign counsel in accord-
    45  ance with the county or city plan for representation placed in operation
    46  pursuant to article eighteen-B of the county law.
    47    § 7. Paragraph (f) of subdivision 3 of section 259-i of the  executive
    48  law,  as  amended  by  section 11 of part E of chapter 62 of the laws of
    49  2003, subparagraph (v) as amended and subparagraph  (xii)  as  added  by
    50  chapter  545  of  the  laws  of  2015 and subparagraph (x) as amended by
    51  section 38-f-1 of subpart A of part C of chapter 62 of the laws of 2011,
    52  is amended to read as follows:
    53    (f) (i) [Revocation] For any alleged non-technical violations, revoca-
    54  tion hearings shall be scheduled to be held within [ninety] thirty  days
    55  of   the   probable  cause  determination.  For  any  alleged  technical
    56  violations:
        A. 10545                            7

     1    (A) If the releasee is detained pursuant to subparagraph (vi) of para-
     2  graph (a) of this subdivision and the person would be subject  to  rein-
     3  carceration  of  up to seven days pursuant to subparagraph (xii) of this
     4  paragraph should the violation be sustained at a final revocation  hear-
     5  ing, then within two days of the issuance of the order of detention, the
     6  department shall afford such person a final revocation hearing in person
     7  before  a  hearing  officer  designated  by the department. Such hearing
     8  officer shall not have had any prior supervisory  involvement  over  the
     9  alleged  violator.  No  preliminary  revocation hearing shall be held in
    10  this instance.
    11    (B) If the releasee is detained pursuant to subparagraph (vi) of para-
    12  graph (a) of this subdivision and the person would be subject  to  rein-
    13  carceration of up to fifteen days pursuant to subparagraph (xii) of this
    14  paragraph  should the violation be sustained at a final revocation hear-
    15  ing, then within four days of the issuance of the  order  of  detention,
    16  the  department  shall  afford such person a final revocation hearing in
    17  person before a hearing officer designated by the department. Such hear-
    18  ing officer shall not have had any prior  supervisory  involvement  over
    19  the alleged violator. No preliminary revocation hearing shall be held in
    20  this instance.
    21    (C) If the releasee is detained pursuant to subparagraph (vi) of para-
    22  graph  (a)  of this subdivision and the person would be subject to rein-
    23  carceration of up to thirty days pursuant to subparagraph  (x)  of  this
    24  paragraph  should the violation be sustained at a final revocation hear-
    25  ing, then within ten days after the issuance of the order of  detention,
    26  the  department  shall  afford such person a final revocation hearing in
    27  person before a hearing officer designated  by  the  department.    Such
    28  hearing  officer  shall  not  have had any prior supervisory involvement
    29  over the alleged violator.
    30    (D) If a notice of violation was issued or the releasee  was  released
    31  pursuant  to  subparagraph (vi) of paragraph (a) of this subdivision the
    32  department shall within thirty days of the issuance  of  the  notice  of
    33  violation  or  the order of release afford the person a final revocation
    34  hearing in person before a hearing officer designated by the department.
    35  Such hearing officer shall not have had any prior  supervisory  involve-
    36  ment  over  the  alleged  violator.  Such hearing shall not be held at a
    37  correctional facility, detention center or local correctional facility.
    38    (E) However, if an alleged violator requests and  receives  any  post-
    39  ponement  of  his revocation hearing, or consents to a postponed revoca-
    40  tion proceeding initiated by the board, or if an  alleged  violator,  by
    41  his  actions otherwise precludes the prompt conduct of such proceedings,
    42  the time limit may be extended.
    43    (ii) The revocation hearing shall be conducted by a presiding  officer
    44  who  may  be  a  member  or a hearing officer designated by the board in
    45  accordance with rules of the board.
    46    (iii) Both the alleged violator and an attorney who has filed a notice
    47  of appearance on his behalf in accordance with the rules of the board of
    48  parole shall be given written notice of the date, place and time of  the
    49  hearing  [as  soon  as  possible but at least fourteen days prior to the
    50  scheduled date] pursuant to subparagraph (ix) of paragraph (c)  of  this
    51  subdivision.
    52    (iv)  The alleged violator shall be given written notice of the rights
    53  enumerated in subparagraph (iii) of paragraph (c) of this subdivision as
    54  well as of his right to present mitigating evidence relevant to restora-
    55  tion to presumptive release, parole, conditional release or post-release
    56  supervision and his right to counsel.
        A. 10545                            8

     1    (v) The alleged violator shall be permitted representation by  counsel
     2  at  the revocation hearing. In any case, including when a superior court
     3  is called upon to evaluate the capacity of  an  alleged  violator  in  a
     4  parole revocation proceeding, where such person is financially unable to
     5  retain  counsel,  the criminal court of the city of New York, the county
     6  court or district court in the county where the violation is alleged  to
     7  have  occurred  or  where  the  hearing is held, shall assign counsel in
     8  accordance with the county or city plan  for  representation  placed  in
     9  operation  pursuant  to  article eighteen-B of the county law. He or she
    10  shall have the right to confront and  cross-examine  adverse  witnesses,
    11  unless there is good cause for their non-attendance as determined by the
    12  presiding officer; present witnesses and documentary evidence in defense
    13  of  the charges; and present witnesses and documentary evidence relevant
    14  to the question whether  reincarceration  of  the  alleged  violator  is
    15  appropriate.
    16    (vi)  At  the  revocation  hearing,  the charges shall be read and the
    17  alleged violator shall be permitted to plead not guilty, guilty,  guilty
    18  with  explanation or to stand mute. As to each charge, evidence shall be
    19  introduced through witnesses and documents, if any, in support  of  that
    20  charge.  At  the conclusion of each witness's direct testimony, he shall
    21  be made available for cross-examination. If the alleged violator intends
    22  to present a defense to the charges or to present evidence of mitigating
    23  circumstances, the alleged violator shall do so  after  presentation  of
    24  all  the  evidence  in  support  of  a violation of presumptive release,
    25  parole, conditional release or post-release supervision.
    26    (vii) All persons giving evidence at the revocation hearing  shall  be
    27  sworn before giving any testimony as provided by law.
    28    (viii)  At  the  conclusion  of  the hearing the presiding officer may
    29  sustain any or all of the violation charges or may dismiss  any  or  all
    30  violation  charges. He may sustain a violation charge only if the charge
    31  is supported by a preponderance of the evidence adduced.
    32    (ix) If the presiding officer is not satisfied that there is a prepon-
    33  derance of evidence in support of the violation, he  shall  dismiss  the
    34  violation,  cancel the delinquency and restore the person to presumptive
    35  release, parole, conditional release or post-release supervision.
    36    (x) If the presiding officer is satisfied that there is  a  preponder-
    37  ance  of  evidence that the alleged violator violated one or more condi-
    38  tions of release in an important respect,  he  or  she  shall  so  find.
    39  Incarceration  shall  not  be imposed for any tier 2 violation. For each
    40  tier 1 violation so found, the presiding officer may (A) direct that the
    41  [presumptive releasee, parolee, conditional releasee or person serving a
    42  period of post-release supervision] releasee be restored to supervision;
    43  (B) as  an  alternative  to  reincarceration,  direct  the  [presumptive
    44  releasee,  parolee,  conditional  releasee or person serving a period of
    45  post-release supervision be placed in a parole transition facility for a
    46  period not to exceed one hundred eighty days and subsequent  restoration
    47  to supervision] releasee receive re-entry services in the community from
    48  qualified nonprofit agencies; or (C) [in the case of presumptive releas-
    49  ees, parolees or conditional releasees,] subject to subparagraph (xi) of
    50  this paragraph direct the violator's reincarceration [and fix a date for
    51  consideration  by  the  board  for re-release on presumptive release, or
    52  parole or conditional release, as the case may be; or (D) in the case of
    53  persons released to a period of  post-release  supervision,  direct  the
    54  violator's  reincarceration up to the balance of the remaining period of
    55  post-release supervision, not to exceed five years;  provided,  however,
    56  that  a  defendant  serving  a  term  of  post-release supervision for a
        A. 10545                            9

     1  conviction of a felony sex offense defined in section 70.80 of the penal
     2  law may be subject to a further period of imprisonment up to the balance
     3  of the remaining period of post-release  supervision],  subject  to  the
     4  following limitations: (1) for absconding, up to seven days reincarcera-
     5  tion may be imposed for the first violation, up to fifteen days reincar-
     6  ceration  may be imposed for the second violation, and up to thirty days
     7  reincarceration  may  be  imposed  for  the  third  or  any   subsequent
     8  violation; and (2) for all other tier 1 violations no period of reincar-
     9  ceration may be imposed for the first and second substantiated technical
    10  violations  for  which  incarceration  may  be imposed; up to seven days
    11  reincarceration may be imposed for  the  third  substantiated  technical
    12  violation  for  which  incarceration  may be imposed; up to fifteen days
    13  reincarceration may be imposed for the  fourth  substantiated  technical
    14  violation  for  which  incarceration  may  be imposed; up to thirty days
    15  reincarceration may be imposed for the fifth and  subsequent  substanti-
    16  ated  technical  violations for which incarceration may be imposed. If a
    17  warrant was executed pursuant to subparagraph (vi) of paragraph  (a)  of
    18  this  subdivision  and the person was detained pursuant to such subpara-
    19  graph pending preliminary or revocation hearings, any period of reincar-
    20  ceration imposed pursuant to this paragraph shall be  counted  from  the
    21  date of the execution of the warrant. If a warrant was executed pursuant
    22  to  subparagraph  (vi)  of paragraph (a) of this subdivision but a court
    23  released the person pending  preliminary  or  revocation  hearings,  any
    24  period  of  reincarceration  imposed pursuant to this paragraph shall be
    25  counted from the date of issuance of a determination after a final hear-
    26  ing that the person has violated one or  more  conditions  of  community
    27  supervision,  and  the time between execution of the warrant and release
    28  of the person pending preliminary or  revocation  hearings  shall  count
    29  toward the period of reincarceration imposed pursuant to this paragraph.
    30  If  a  releasee  is  committed to the custody of the sheriff pursuant to
    31  article five hundred thirty of the criminal procedure  law  for  conduct
    32  that  is the subject of a notice of violation, any time the person spent
    33  confined in jail shall  count  towards  any  period  of  reincarceration
    34  imposed  pursuant to this paragraph. In all cases, the presiding officer
    35  shall impose the least restrictive reasonable sanction. Any  periods  of
    36  reincarceration  shall  run  concurrently  if more than one violation is
    37  adjudicated. If a period of reincarceration is imposed pursuant to  this
    38  paragraph,  the  releasee shall be released from custody upon expiration
    39  of the period or the end of the releasee's period  of  community  super-
    40  vision,  whichever  shall be sooner.  [For the violator serving an inde-
    41  terminate sentence who while re-incarcerated has not been found  by  the
    42  department  to  have  committed  a serious disciplinary infraction, such
    43  violator shall be re-released on the date fixed at the revocation  hear-
    44  ing.  For  the  violator  serving an indeterminate sentence who has been
    45  found by the department to have committed a serious disciplinary infrac-
    46  tion while re-incarcerated, the department shall refer the  violator  to
    47  the  board  for  consideration  for re-release to community supervision.
    48  Upon such referral the board may waive the personal interview between  a
    49  member  or  members of the board and the violator to determine the suit-
    50  ability for re-release when the  board  directs  that  the  violator  be
    51  re-released  upon  expiration  of  the  time assessment. The board shall
    52  retain the authority to suspend the date fixed for re-release  based  on
    53  the violator's commission of a serious disciplinary infraction and shall
    54  in  such case require a personal interview be conducted within a reason-
    55  able time between a panel of members of the board and  the  violator  to
    56  determine  suitability  for re-release. If an interview is required, the
        A. 10545                           10

     1  board shall notify the violator in advance of the date and time of  such
     2  interview in accordance with the rules and regulations of the board.]
     3    (xi) If the presiding officer sustains any violations, he must prepare
     4  a  written  statement,  to be made available to the alleged violator and
     5  his counsel, indicating the evidence relied upon  and  the  reasons  for
     6  revoking  presumptive  release,  parole, conditional release or post-re-
     7  lease supervision, and for the disposition made.
     8    (xii) If at any time during a revocation proceeding the alleged viola-
     9  tor, his or her counsel, or an employee of the department  contends,  or
    10  if it reasonably appears to the hearing officer, that the alleged viola-
    11  tor  is  an  incapacitated person as that term is defined in subdivision
    12  one of section 730.10 of the criminal  procedure  law  and  no  judicial
    13  determination  has  been  made that the alleged violator is an incapaci-
    14  tated person, the revocation  proceeding  shall  be  temporarily  stayed
    15  until  the superior court determines whether or not the person is fit to
    16  proceed. The matter shall be promptly referred to the superior court for
    17  determination of the alleged violator's fitness to proceed in  a  manner
    18  consistent  with  the  provisions of article seven hundred thirty of the
    19  criminal procedure law, provided however that the superior  court  shall
    20  immediately  appoint  counsel  for  any  unrepresented  alleged violator
    21  eligible for appointed counsel under subparagraph (v) of this  paragraph
    22  [(f)  of  subdivision  three of section two hundred fifty-nine-i of this
    23  chapter]. The court shall decide whether or not the alleged violator  is
    24  incapacitated  within thirty days of the referral from the hearing offi-
    25  cer. If the court determines that the alleged violator is not  an  inca-
    26  pacitated  person,  the court shall order that the matter be returned to
    27  the board of parole for continuation and disposition of  the  revocation
    28  proceeding.  If  the  court  determines  that the alleged violator is an
    29  incapacitated person and if no felony charges are  pending  against  the
    30  alleged  violator,  the  court  shall issue a final order of observation
    31  committing such person to the custody  of  the  commissioner  of  mental
    32  health  or  the  commissioner of developmental disabilities for care and
    33  treatment in an appropriate institution  in  a  manner  consistent  with
    34  subdivision  one  of  section 730.40 of the criminal procedure law. If a
    35  final order of observation has been issued pursuant to this section, the
    36  hearing officer shall dismiss the violation charges and  such  dismissal
    37  shall  act as a bar to any further proceeding under this section against
    38  the alleged violator for such violations. If felony criminal charges are
    39  pending at any time against an alleged violator who has been referred to
    40  superior court for a fitness evaluation but before  a  determination  of
    41  fitness  has  been made pursuant to this section, the court shall decide
    42  whether or not the alleged violator is incapacitated pursuant to article
    43  seven hundred thirty of the criminal procedure law  and  the  revocation
    44  proceeding  shall  be  held  in  abeyance  until  such decision has been
    45  reached. The hearing officer shall adopt the  capacity  finding  of  the
    46  court  and either terminate the revocation process if an order of obser-
    47  vation has been made by the court or proceed with the revocation hearing
    48  if the alleged violator has  been  found  not  to  be  an  incapacitated
    49  person.
    50    § 8. This act shall take effect immediately.