Bill Text: NY S04780 | 2015-2016 | General Assembly | Amended
Bill Title: Relates to the proper procedure for parole violators deemed to be incapacitated.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2015-12-11 - SIGNED CHAP.545 [S04780 Detail]
Download: New_York-2015-S04780-Amended.html
S T A T E O F N E W Y O R K
________________________________________________________________________
4780--A
Cal. No. 424
2015-2016 Regular Sessions
I N S E N A T E
April 15, 2015
___________
Introduced by Sen. GALLIVAN -- read twice and ordered printed, and when
printed to be committed to the Committee on Crime Victims, Crime and
Correction -- reported favorably from said committee, ordered to first
and second report, ordered to a third reading, amended and ordered
reprinted, retaining its place in the order of third reading
AN ACT to amend the executive law and the criminal procedure law, in
relation to incapacitated parole violators
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Subparagraph (i) of paragraph (a) of subdivision 3 of
2 section 259-i of the executive law, as amended by section 38-f-l of
3 subpart A of part C of chapter 62 of the laws of 2011, is amended to
4 read as follows:
5 (i) If the parole officer having charge of a presumptively released,
6 paroled or conditionally released person or a person released to post-
7 release supervision or a person received under the uniform act for out-
8 of-state parolee supervision shall have reasonable cause to believe that
9 such person has lapsed into criminal ways or company, or has violated
10 one or more conditions of his presumptive release, parole, conditional
11 release or post-release supervision, such parole officer shall report
12 such fact to a member of the board, or to any officer of the department
13 designated by the board, and thereupon a warrant may be issued for the
14 retaking of such person and for his temporary detention in accordance
15 with the rules of the board UNLESS SUCH PERSON HAS BEEN DETERMINED TO BE
16 CURRENTLY UNFIT TO PROCEED TO TRIAL OR IS CURRENTLY SUBJECT TO A TEMPO-
17 RARY OR FINAL ORDER OF OBSERVATION PURSUANT TO ARTICLE SEVEN HUNDRED
18 THIRTY OF THE CRIMINAL PROCEDURE LAW, IN WHICH CASE NO WARRANT SHALL BE
19 ISSUED. The retaking and detention of any such person may be further
20 regulated by rules and regulations of the department not inconsistent
21 with this article. A warrant issued pursuant to this section shall
22 constitute sufficient authority to the superintendent or other person in
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10451-03-5
S. 4780--A 2
1 charge of any jail, penitentiary, lockup or detention pen to whom it is
2 delivered to hold in temporary detention the person named therein;
3 except that a warrant issued with respect to a person who has been
4 released on medical parole pursuant to section two hundred fifty-nine-r
5 of this article and whose parole is being revoked pursuant to paragraph
6 (h) of subdivision four of such section shall constitute authority for
7 the immediate placement of the parolee only into imprisonment in the
8 custody of the department to hold in temporary detention. A warrant
9 issued pursuant to this section shall also constitute sufficient author-
10 ity to the person in charge of a drug treatment campus, as defined in
11 subdivision twenty of section two of the correction law, to hold the
12 person named therein, in accordance with the procedural requirements of
13 this section, for a period of at least ninety days to complete an inten-
14 sive drug treatment program mandated by the board as an alternative to
15 presumptive release or parole or conditional release revocation, or the
16 revocation of post-release supervision, and shall also constitute suffi-
17 cient authority for return of the person named therein to local custody
18 to hold in temporary detention for further revocation proceedings in the
19 event said person does not successfully complete the intensive drug
20 treatment program. The board's rules shall provide for cancellation of
21 delinquency and restoration to supervision upon the successful
22 completion of the program.
23 S 2. Paragraph (f) of subdivision 3 of section 259-i of the executive
24 law is amended by adding a new subparagraph (xii) to read as follows:
25 (XII) IF AT ANY TIME DURING A REVOCATION PROCEEDING THE ALLEGED VIOLA-
26 TOR, HIS OR HER COUNSEL, OR AN EMPLOYEE OF THE DEPARTMENT CONTENDS, OR
27 IF IT REASONABLY APPEARS TO THE HEARING OFFICER, THAT THE ALLEGED VIOLA-
28 TOR IS AN INCAPACITATED PERSON AS THAT TERM IS DEFINED IN SUBDIVISION
29 ONE OF SECTION 730.10 OF THE CRIMINAL PROCEDURE LAW AND NO JUDICIAL
30 DETERMINATION HAS BEEN MADE THAT THE ALLEGED VIOLATOR IS AN INCAPACI-
31 TATED PERSON, THE REVOCATION PROCEEDING SHALL BE TEMPORARILY STAYED
32 UNTIL THE SUPERIOR COURT DETERMINES WHETHER OR NOT THE PERSON IS FIT TO
33 PROCEED. THE MATTER SHALL BE PROMPTLY REFERRED TO THE SUPERIOR COURT FOR
34 DETERMINATION OF THE ALLEGED VIOLATOR'S FITNESS TO PROCEED IN A MANNER
35 CONSISTENT WITH THE PROVISIONS OF ARTICLE SEVEN HUNDRED THIRTY OF THE
36 CRIMINAL PROCEDURE LAW, PROVIDED HOWEVER THAT THE SUPERIOR COURT SHALL
37 IMMEDIATELY APPOINT COUNSEL FOR ANY UNREPRESENTED ALLEGED VIOLATOR
38 ELIGIBLE FOR APPOINTED COUNSEL UNDER SUBPARAGRAPH (V) OF PARAGRAPH (F)
39 OF SUBDIVISION THREE OF SECTION TWO HUNDRED FIFTY-NINE-I OF THIS CHAP-
40 TER. THE COURT SHALL DECIDE WHETHER OR NOT THE ALLEGED VIOLATOR IS INCA-
41 PACITATED WITHIN THIRTY DAYS OF THE REFERRAL FROM THE HEARING OFFICER.
42 IF THE COURT DETERMINES THAT THE ALLEGED VIOLATOR IS NOT AN INCAPACI-
43 TATED PERSON, THE COURT SHALL ORDER THAT THE MATTER BE RETURNED TO THE
44 BOARD OF PAROLE FOR CONTINUATION AND DISPOSITION OF THE REVOCATION
45 PROCEEDING. IF THE COURT DETERMINES THAT THE ALLEGED VIOLATOR IS AN
46 INCAPACITATED PERSON AND IF NO FELONY CHARGES ARE PENDING AGAINST THE
47 ALLEGED VIOLATOR, THE COURT SHALL ISSUE A FINAL ORDER OF OBSERVATION
48 COMMITTING SUCH PERSON TO THE CUSTODY OF THE COMMISSIONER OF MENTAL
49 HEALTH OR THE COMMISSIONER OF DEVELOPMENTAL DISABILITIES FOR CARE AND
50 TREATMENT IN AN APPROPRIATE INSTITUTION IN A MANNER CONSISTENT WITH
51 SUBDIVISION ONE OF SECTION 730.40 OF THE CRIMINAL PROCEDURE LAW. IF A
52 FINAL ORDER OF OBSERVATION HAS BEEN ISSUED PURSUANT TO THIS SECTION, THE
53 HEARING OFFICER SHALL DISMISS THE VIOLATION CHARGES AND SUCH DISMISSAL
54 SHALL ACT AS A BAR TO ANY FURTHER PROCEEDING UNDER THIS SECTION AGAINST
55 THE ALLEGED VIOLATOR FOR SUCH VIOLATIONS. IF FELONY CRIMINAL CHARGES ARE
56 PENDING AT ANY TIME AGAINST AN ALLEGED VIOLATOR WHO HAS BEEN REFERRED TO
S. 4780--A 3
1 SUPERIOR COURT FOR A FITNESS EVALUATION BUT BEFORE A DETERMINATION OF
2 FITNESS HAS BEEN MADE PURSUANT TO THIS SECTION, THE COURT SHALL DECIDE
3 WHETHER OR NOT THE ALLEGED VIOLATOR IS INCAPACITATED PURSUANT TO ARTICLE
4 SEVEN HUNDRED THIRTY OF THE CRIMINAL PROCEDURE LAW AND THE REVOCATION
5 PROCEEDING SHALL BE HELD IN ABEYANCE UNTIL SUCH DECISION HAS BEEN
6 REACHED. THE HEARING OFFICER SHALL ADOPT THE CAPACITY FINDING OF THE
7 COURT AND EITHER TERMINATE THE REVOCATION PROCESS IF AN ORDER OF OBSER-
8 VATION HAS BEEN MADE BY THE COURT OR PROCEED WITH THE REVOCATION HEARING
9 IF THE ALLEGED VIOLATOR HAS BEEN FOUND NOT TO BE AN INCAPACITATED
10 PERSON.
11 S 3. Subdivision 2 of section 730.10 of the criminal procedure law, as
12 amended by chapter 566 of the laws of 1994, is amended to read as
13 follows:
14 2. "Order of examination" means an order issued to an appropriate
15 director by a criminal court wherein a criminal action is pending
16 against a defendant[,] or BY A COURT EVALUATING THE CAPACITY OF AN
17 ALLEGED VIOLATOR IN A PAROLE REVOCATION PROCEEDING PURSUANT TO SUBPARA-
18 GRAPH (XII) OF PARAGRAPH (F) OF SUBDIVISION THREE OF SECTION TWO HUNDRED
19 FIFTY-NINE-I OF THE EXECUTIVE LAW, OR by a family court pursuant to
20 section 322.1 of the family court act wherein a juvenile delinquency
21 proceeding is pending against a juvenile, directing that such person be
22 examined for the purpose of determining if he is an incapacitated
23 person.
24 S 4. Subparagraph (v) of paragraph (f) of subdivision 3 of section
25 259-i of the executive law, as amended by section 11 of part E of chap-
26 ter 62 of the laws of 2003, is amended to read as follows:
27 (v) The alleged violator shall be permitted representation by counsel
28 at the revocation hearing. In any case, INCLUDING WHEN A SUPERIOR COURT
29 IS CALLED UPON TO EVALUATE THE CAPACITY OF AN ALLEGED VIOLATOR IN A
30 PAROLE REVOCATION PROCEEDING, where such person is financially unable to
31 retain counsel, the criminal court of the city of New York, the county
32 court or district court in the county where the violation is alleged to
33 have occurred or where the hearing is held, shall assign counsel in
34 accordance with the county or city plan for representation placed in
35 operation pursuant to article eighteen-B of the county law. He OR SHE
36 shall have the right to confront and cross-examine adverse witnesses,
37 unless there is good cause for their non-attendance as determined by the
38 presiding officer; present witnesses and documentary evidence in defense
39 of the charges; and present witnesses and documentary evidence relevant
40 to the question whether reincarceration of the alleged violator is
41 appropriate.
42 S 5. This act shall take effect on the one hundred eightieth day after
43 it shall have become a law.
