Bill Text: NY S06263 | 2023-2024 | General Assembly | Introduced

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Bill Title: Provides for the return of persons to custody for violations of conditions of presumptive release, parole, conditional release or post-release supervision.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced) 2024-01-03 - REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION [S06263 Detail]

Download: New_York-2023-S06263-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          6263

                               2023-2024 Regular Sessions

                    IN SENATE

                                     April 10, 2023
                                       ___________

        Introduced  by  Sen.  WEIK  --  read twice and ordered printed, and when
          printed to be committed to the Committee on Crime Victims,  Crime  and
          Correction

        AN  ACT  to  amend  the  executive law and the penal law, in relation to
          providing for the return of  persons  to  custody  for  violations  of
          conditions  of  presumptive  release,  parole,  conditional release or
          post-release supervision; and to repeal  certain  provisions  of  such
          laws relating thereto

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Subdivisions 5, 6, 7, and 8 of section 259 of the executive
     2  law are REPEALED.
     3    § 2. Subdivision 4 of section 70.40 of the penal law is REPEALED.
     4    § 3. Subdivision 3 of section 70.40 of the penal law,  as  amended  by
     5  chapter 427 of the laws of 2021, is amended to read as follows:
     6    3.  Delinquency.  (a)  When  a  person is alleged to have violated the
     7  terms of presumptive release or parole [by absconding,]  and  the  state
     8  board  of parole has declared such person to be delinquent, the declara-
     9  tion of delinquency shall interrupt the person's sentence as of the date
    10  of the delinquency  and  such  interruption  shall  continue  until  the
    11  [releasee's  appearance in response to a notice of violation or the date
    12  of the execution of a warrant,  whichever  is  earlier]  return  of  the
    13  person  to an institution under the jurisdiction of the state department
    14  of corrections and community supervision.
    15    (b) When a person is alleged to have violated the terms of his or  her
    16  conditional  release or post-release supervision [by absconding] and has
    17  been declared delinquent by the parole board or  the  local  conditional
    18  release  commission having supervision over such person, the declaration
    19  of delinquency shall interrupt the period of supervision or post-release
    20  supervision as of  the  date  of  the  delinquency.  For  a  conditional
    21  release,  such interruption shall continue until the [releasee's appear-

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD10728-01-3
        S. 6263                             2

     1  ance in response to a notice of violation or the date of  the  execution
     2  of a warrant, whichever is earlier] return of the person to the institu-
     3  tion  from  which  he  or she was released or, if he or she was released
     4  from  an  institution  under the jurisdiction of the state department of
     5  corrections and community  supervision,  to  an  institution  under  the
     6  jurisdiction  of  the  department.  Upon  such  return, the person shall
     7  resume service of his or her sentence.  For a person released  to  post-
     8  release  supervision,  the  provisions  of section 70.45 of this article
     9  shall apply.
    10    (c) Any time spent by a person in custody from the time of  [execution
    11  of  a  warrant pursuant to paragraph (a) of subdivision three of section
    12  two hundred fifty-nine-i of the executive law] delinquency to  the  time
    13  service  of  the  sentence resumes shall be credited against the term or
    14  maximum term of the interrupted sentence, provided:
    15    (i) that such custody was due to an arrest or surrender based upon the
    16  delinquency; or
    17    (ii) that such custody arose from an arrest on  another  charge  which
    18  culminated in a dismissal or an acquittal; or
    19    (iii)  that  such custody arose from an arrest on another charge which
    20  culminated in a conviction, but in such case, if a sentence of imprison-
    21  ment was imposed, the credit allowed shall be limited to the portion  of
    22  the  time spent in custody that exceeds the period, term or maximum term
    23  of imprisonment imposed for such conviction.
    24    § 4. Paragraph (d) of subdivision 5 of section 70.45 of the penal law,
    25  as amended by chapter 427 of the laws of 2021, is  amended  to  read  as
    26  follows:
    27    (d)  When a person is alleged to have violated a condition of post-re-
    28  lease supervision [by absconding] and the department of corrections  and
    29  community supervision has declared such person to be delinquent: (i) the
    30  declaration  of  delinquency  shall interrupt the period of post-release
    31  supervision; (ii) such interruption shall continue until the  person  is
    32  restored to post-release supervision; (iii) if the person is restored to
    33  post-release  supervision  without  being  returned to the department of
    34  corrections and community supervision, any time spent  in  custody  from
    35  the  date  of  delinquency until restoration to post-release supervision
    36  shall first be credited to the maximum or aggregate maximum term of  the
    37  sentence or sentences of imprisonment, but only to the extent authorized
    38  by  subdivision  three of section 70.40 of this article.  Any time spent
    39  in custody solely pursuant to such delinquency after completion  of  the
    40  maximum or aggregate maximum term of the sentence or sentences of impri-
    41  sonment  shall be credited to the period of post-release supervision, if
    42  any; and (iv) if the person is ordered returned  to  the  department  of
    43  corrections  and  community supervision, the person shall be required to
    44  serve the time  assessment  before  being  re-released  to  post-release
    45  supervision.  [If  the  person  is detained pursuant to paragraph (a) of
    46  subdivision three of section two hundred fifty-nine-i of  the  executive
    47  law  pending a preliminary or final revocation hearing, the time assess-
    48  ment imposed following such hearing shall commence upon the execution of
    49  the warrant. If a warrant was executed  pursuant  to  paragraph  (a)  of
    50  subdivision  three  of section two hundred fifty-nine-i of the executive
    51  law but a court released the person pending a preliminary or final revo-
    52  cation hearing, the time assessment shall commence upon the issuance  of
    53  a  determination  after a final hearing that the person has violated one
    54  or more conditions of community supervision in an important respect, and
    55  shall include the time period  between  execution  of  the  warrant  and
    56  release of the person pending a preliminary or final revocation hearing.
        S. 6263                             3

     1  If  a  releasee  is  committed to the custody of the sheriff pursuant to
     2  article five hundred thirty of the  criminal  procedure  law,  the  time
     3  assessment,  if  any,  shall include any time the releasee spent in such
     4  custody.  If  a  notice  of violation was issued pursuant to subdivision
     5  three of section two hundred fifty-nine-i of the executive law, the]  In
     6  the  event  the  balance  of the remaining period of post-release super-
     7  vision is six months or less, such time assessment  may  be  up  to  six
     8  months  unless a longer period is authorized pursuant to subdivision one
     9  of this section. The time assessment shall commence upon the issuance of
    10  a determination after a final hearing that the person has  violated  one
    11  or  more  conditions  of supervision. While serving such assessment, the
    12  person shall not receive any good behavior allowance pursuant to section
    13  eight hundred three of the correction law.   Any time spent  in  custody
    14  from  the  date  of  delinquency  until  return  to  the  department  of
    15  corrections and community supervision shall first  be  credited  to  the
    16  maximum or aggregate maximum term of the sentence or sentences of impri-
    17  sonment,  but  only  to  the  extent  authorized by subdivision three of
    18  section 70.40 of this article. The maximum or aggregate maximum term  of
    19  the  sentence or sentences of imprisonment shall run while the person is
    20  serving such time  assessment  in  the  custody  of  the  department  of
    21  corrections  and community supervision. Any time spent in custody solely
    22  pursuant to such delinquency after completion of the maximum  or  aggre-
    23  gate  maximum term of the sentence or sentences of imprisonment shall be
    24  credited to the period of post-release supervision, if any.
    25    § 5. Subparagraphs (iv), (v), (vi), (vii) and (viii) of paragraph  (a)
    26  of subdivision 3 of section 259-i of the executive law are REPEALED.
    27    §  6.    Subparagraph (i) of paragraph (a) of subdivision 3 of section
    28  259-i of the executive law, as amended by chapter 427  of  the  laws  of
    29  2021, is amended to read as follows:
    30    (i)  If  the parole officer having charge of a presumptively released,
    31  paroled or conditionally released person or a person released  to  post-
    32  release  supervision or a person received under the uniform act for out-
    33  of-state parolee supervision shall have [probable] reasonable  cause  to
    34  believe  that  such  person has [committed a technical violation] lapsed
    35  into criminal ways or company, or has violated one or more conditions of
    36  his or her presumptive release, parole, conditional release or  post-re-
    37  lease  supervision,  such  parole  officer  shall  report such fact to a
    38  member of the board, or to any officer of the department  designated  by
    39  the  board,  and  thereupon [a written notice of violation may be issued
    40  according to the terms of subparagraph (iii) of paragraph  (c)  of  this
    41  subdivision,  and  shall  be  promptly  served  upon such person. If the
    42  releasee has failed to appear as directed in response  to  a  notice  of
    43  violation  and has failed to appear voluntarily within forty-eight hours
    44  after such time and the person would be subject to incarceration  pursu-
    45  ant  to  subparagraph  (xii) of paragraph (f) of this subdivision should
    46  the violation be sustained at a final revocation hearing, a warrant  may
    47  be  issued  for  the  retaking  of  such  person  and  for his temporary
    48  detention pending a recognizance hearing in accordance with the rules of
    49  the board. If the person has intentionally failed to appear as  directed
    50  in  response  to  a  notice of violation and has intentionally failed to
    51  appear voluntarily within forty-eight hours  after  such  time  and  the
    52  person  would  not be subject to incarceration pursuant to paragraph (f)
    53  of this subdivision should the violation be sustained at a final revoca-
    54  tion hearing, no warrant shall issue and the violation shall  be  deemed
    55  sustained.  Notice  of  that  decision shall be promptly served upon the
    56  releasee. In such case, within one month of the date the notice of deci-
        S. 6263                             4

     1  sion was served upon the releasee, the releasee may move to vacate  such
     2  a sustained violation if the releasee can show by a preponderance of the
     3  evidence  that  the  notice  of violation was not properly served or the
     4  failure  to appear was otherwise excusable. If the parole officer having
     5  charge of a person under community supervision shall have probable cause
     6  to believe that such person has  committed  a  non-technical  violation,
     7  such  parole officer shall report such fact to a member of the board, or
     8  to any officer of the department designated by the board, and  thereupon
     9  a  notice of violation may be issued or] a warrant may be issued for the
    10  retaking of such person and  for  his  or  her  temporary  detention  in
    11  accordance  with the rules of the board[. However, if a releasee] unless
    12  such person has been determined to be  currently  unfit  to  proceed  to
    13  trial  or is currently subject to a temporary or final order of observa-
    14  tion pursuant to article seven hundred thirty of the criminal  procedure
    15  law,  in which case no [notice of violation or] warrant shall be issued.
    16  The [issuance  of  a  notice  of  violation,  service  of  a  notice  of
    17  violation,  service  of  a  notice  of  decision,  and the] retaking and
    18  detention of any such person [for whom a warrant has been issued  pursu-
    19  ant  to  this  subparagraph] may be further regulated by rules and regu-
    20  lations of the department not inconsistent with this article. A  warrant
    21  issued pursuant to this section shall constitute sufficient authority to
    22  the  superintendent or other person in charge of any jail, penitentiary,
    23  lockup or detention pen to whom it is delivered  to  hold  in  temporary
    24  detention  the  person  named  therein  [pending  a recognizance hearing
    25  pursuant to subparagraph (iv) of this  paragraph.  It  shall  not  be  a
    26  condition of parole nor may a notice of violation or a warrant be issued
    27  due  to  a  releasee  being  in  the company of or fraternizing with any
    28  person the releasee knows has a criminal record or knows has been  adju-
    29  dicated  a  youthful offender or due to conduct related to cannabis that
    30  is lawful pursuant to the laws of  New  York];  except  that  a  warrant
    31  issued  with respect to a person who has been released on medical parole
    32  pursuant to section two hundred fifty-nine-r of this article  and  whose
    33  parole is being revoked pursuant to paragraph (h) of subdivision four of
    34  such  section  shall constitute authority for the immediate placement of
    35  the parolee only into imprisonment in the custody of the  department  to
    36  hold  in  temporary detention. A warrant issued pursuant to this section
    37  shall also constitute sufficient authority to the person in charge of  a
    38  drug  treatment  campus, as defined in subdivision twenty of section two
    39  of the correction law, to hold the person named therein,  in  accordance
    40  with  the  procedural  requirements  of this section, for a period of at
    41  least ninety days  to  complete  an  intensive  drug  treatment  program
    42  mandated by the board as an alternative to presumptive release or parole
    43  or  conditional  release  revocation,  or the revocation of post-release
    44  supervision, and shall also constitute sufficient authority  for  return
    45  of  the  person  named  therein  to  local  custody to hold in temporary
    46  detention for further revocation proceedings in the  event  said  person
    47  does not successfully complete the intensive drug treatment program. The
    48  board's rules shall provide for cancellation of delinquency and restora-
    49  tion to supervision upon the successful completion of the program.
    50    §  7.  Subparagraphs (ix) and (x) of paragraph (c) of subdivision 3 of
    51  section 259-i of the executive law are REPEALED.
    52    § 8. Subparagraphs (i), (ii), (iii), and  (iv)  of  paragraph  (c)  of
    53  subdivision 3 of section 259-i of the executive law, as amended by chap-
    54  ter 427 of the laws of 2021, are amended to read as follows:
    55    (i)  [(A)  For  any  alleged technical violation for which a notice of
    56  violation was issued or a person was released on  recognizance  pursuant
        S. 6263                             5

     1  to  subparagraph  (iv) of paragraph (a) of this subdivision, the depart-
     2  ment shall within ten days of the issuance of the notice of violation or
     3  the order of release on recognizance afford  the  person  a  preliminary
     4  revocation  hearing  before  a hearing officer designated by the depart-
     5  ment. Such hearing officer shall not  have  had  any  prior  supervisory
     6  involvement over the alleged violator. Such hearing shall not be held at
     7  a  correctional facility, detention center or local correctional facili-
     8  ty. The hearing shall be scheduled and held in a courthouse, in  cooper-
     9  ation  with the chief administrator of the courts and the chief adminis-
    10  trator's designees, provided, however, that if such a courthouse is  not
    11  reasonably  available  for  such hearing, the department may designate a
    12  suitable office or other similar facility that  is  not  a  correctional
    13  facility, detention center or local correctional facility for such hear-
    14  ing.
    15    (B)  For  any  alleged  violation  for  which  a court issued an order
    16  detaining a person, within five days of the issuance of  such  order  to
    17  detain or execution of a warrant for the violation, the department shall
    18  afford such person a preliminary hearing before a hearing officer desig-
    19  nated  by  the  department.  Such hearing officer shall not have had any
    20  prior supervisory involvement over the alleged violator. For any alleged
    21  violation for which a person was released on  recognizance,  within  ten
    22  days  of  the  issuance  of  the  order  of release on recognizance, the
    23  department shall afford such person a  preliminary  revocation  hearing]
    24  Within  fifteen  days  after  the  warrant  for  retaking  and temporary
    25  detention has been executed, unless the releasee has been convicted of a
    26  new crime committed while under presumptive release, parole, conditional
    27  release or post-release supervision, the board of  parole  shall  afford
    28  the alleged presumptive release, parole, conditional release or post-re-
    29  lease  supervision  violator  a  preliminary revocation hearing before a
    30  hearing officer designated by the board of parole. Such hearing  officer
    31  shall  not  have  had any prior supervisory involvement over the alleged
    32  violator.
    33    (ii) The preliminary presumptive release, parole, conditional  release
    34  or  post-release  supervision revocation hearing shall be [scheduled and
    35  held in a courthouse, in cooperation with the chief administrator of the
    36  courts and the chief administrator's designees, provided, however,  that
    37  if  such  a courthouse is not reasonably available for such hearing, the
    38  department may designate a suitable office  or  other  similar  facility
    39  that  is  not a correctional facility, detention center or local correc-
    40  tional facility for such hearing] conducted at  an  appropriate  correc-
    41  tional  facility,  or  such  other place reasonably close to the area in
    42  which the alleged violation occurred as the board may designate.
    43    (iii) The alleged violator shall, [at the time a notice  of  violation
    44  is issued or at the time of a recognizance hearing] within three days of
    45  the execution of the warrant, be given written notice of the time, place
    46  and  purpose of the [preliminary] hearing[, or if no preliminary hearing
    47  is required pursuant to this section, of the final  revocation  hearing]
    48  unless he or she is detained pursuant to the provisions of paragraph (a)
    49  of  this  subdivision.  In those instances, the alleged violator will be
    50  given written notice of the time, place and purpose of the hearing with-
    51  in five days of the execution of the warrant.  The  notice  shall  state
    52  what  conditions of [community] presumptive release, parole, conditional
    53  release or post-release supervision are alleged to have  been  violated,
    54  and  in what manner; that such person shall have the right to appear and
    55  speak in his or her own behalf; that he or she shall have the  right  to
    56  introduce  letters  and  documents; that he or she may present witnesses
        S. 6263                             6

     1  who can give relevant information to the hearing officer[;  that  he  or
     2  she  has  the  right  to confront the witnesses against him or her; that
     3  such person shall have the right to representation  by  counsel  at  any
     4  preliminary  and  final  revocation  hearings;  and the name and contact
     5  details for institutional defenders  or  assigned  private  counsel,  as
     6  applicable].  Adverse  witnesses may be compelled to attend the prelimi-
     7  nary hearing unless the prisoner has been convicted of a new crime while
     8  on supervision or unless the hearing officer finds good cause for  their
     9  non-attendance.  As far as practicable or feasible, any additional docu-
    10  ments having been collected or prepared that [are relevant  to]  support
    11  the charge shall be delivered to the alleged violator.
    12    (iv) The preliminary hearing shall be scheduled to take place no later
    13  than  fifteen days from the date of execution of the warrant. The stand-
    14  ard of proof at the preliminary hearing shall be [a preponderance of the
    15  evidence] probable cause to  believe  that  the  [releasee]  presumptive
    16  releasee,  parolee,  conditional  releasee  or person under post-release
    17  supervision has violated one or more conditions of his or her  [communi-
    18  ty]  presumptive  release,  parole,  conditional release or post-release
    19  supervision in an important respect. Proof  of  conviction  of  a  crime
    20  committed while under supervision shall constitute [prima facie evidence
    21  of  a  violation of a condition of community supervision] probable cause
    22  for the purposes of this [subparagraph] section.
    23    § 9. Paragraph (f) of subdivision 3 of section 259-i of the  executive
    24  law,  as  amended by chapter 427 of the laws of 2021, is amended to read
    25  as follows:
    26    (f) (i) [For any releasee charged with a violation  at  a  preliminary
    27  hearing:
    28    (A) If a court issued an order detaining a person after a finding by a
    29  preponderance  of  the  evidence  that such person committed a violation
    30  then within thirty days  of  the  finding  by  a  preponderance  of  the
    31  evidence  determination at the preliminary hearing, the department shall
    32  afford such person a final revocation hearing in person before a hearing
    33  officer designated by the department. Such  hearing  officer  shall  not
    34  have had any prior supervisory involvement over the alleged violator.
    35    (B)  (1)  If  a  notice  of  violation  was  issued or such person was
    36  released on recognizance the department shall within forty-five days  of
    37  the  issuance  of  the  notice  of  violation or the order of release on
    38  recognizance afford the person a final revocation hearing before a hear-
    39  ing officer designated by the department. Such hearing officer shall not
    40  have had any prior supervisory involvement over the alleged violator.
    41    (2) The final revocation hearing shall not be held at  a  correctional
    42  facility,  detention center or local correctional facility. Such hearing
    43  shall be scheduled and held in a courthouse,  in  cooperation  with  the
    44  chief  administrator  of the courts and the chief administrator's desig-
    45  nees, provided, however, that if such a  courthouse  is  not  reasonably
    46  available  for  such  hearing,  the  department may designate a suitable
    47  office or other similar facility that is not  a  correctional  facility,
    48  detention center or local correctional facility for such hearing.
    49    (3)  The  department shall have six months from the date of the effec-
    50  tive date of the chapter of the laws of  two  thousand  twenty-one  that
    51  amended  this  paragraph  to  begin  to  hold such hearings at allowable
    52  locations.
    53    (C)] Revocation hearings shall be scheduled to be held  within  ninety
    54  days  of the probable cause determination. However, if an alleged viola-
    55  tor requests and receives any postponement  of  his  or  her  revocation
    56  hearing,  or  consents to a postponed revocation proceeding initiated by
        S. 6263                             7

     1  the board, or if an alleged violator, by his or  her  actions  otherwise
     2  precludes  the prompt conduct of such proceedings, the time limit may be
     3  extended.
     4    (ii)  The revocation hearing shall be conducted by a presiding officer
     5  who may be a member or a hearing officer  designated  by  the  board  in
     6  accordance with rules of the board.
     7    (iii) Both the alleged violator and an attorney who has filed a notice
     8  of  appearance  on his or her behalf in accordance with the rules of the
     9  board of parole shall be given written notice of  the  date,  place  and
    10  time  of  the hearing [pursuant to subparagraph (ix) of paragraph (c) of
    11  this subdivision] as soon as possible but at least fourteen  days  prior
    12  to the scheduled date.
    13    (iv)  The alleged violator shall be given written notice of the rights
    14  enumerated in subparagraph (iii) of paragraph (c) of this subdivision as
    15  well as of his or her right to present mitigating evidence  relevant  to
    16  restoration to presumptive release, parole, conditional release or post-
    17  release supervision and his or her right to counsel.
    18    (v)  The  alleged violator shall [have a right to] be permitted repre-
    19  sentation by counsel at the revocation hearing. In any  case,  including
    20  when  a  superior  court  is  called upon to evaluate the capacity of an
    21  alleged violator in a parole revocation proceeding, where such person is
    22  financially unable to retain counsel, the criminal court of the city  of
    23  New  York,  the  county  court or district court in the county where the
    24  violation is alleged to have occurred or  where  the  hearing  is  held,
    25  shall  assign  counsel  in  accordance  with the county or city plan for
    26  representation placed in operation pursuant to article eighteen-B of the
    27  county law. He or she shall have the right to confront and cross-examine
    28  adverse witnesses, unless there is good cause for  their  non-attendance
    29  as determined by the presiding officer; present witnesses and documenta-
    30  ry  evidence  in defense of the charges; and present witnesses and docu-
    31  mentary evidence relevant to the question whether reincarceration of the
    32  alleged violator is appropriate.
    33    (vi) At the revocation hearing, the charges  shall  be  read  and  the
    34  alleged  violator shall be permitted to plead not guilty, guilty, guilty
    35  with explanation or to stand mute. As to each charge, evidence shall  be
    36  introduced  through  witnesses and documents, if any, in support of that
    37  charge. At the conclusion of each witness's direct testimony, he or  she
    38  shall  be  made available for cross-examination. If the alleged violator
    39  intends to present a defense to the charges or to  present  evidence  of
    40  mitigating circumstances, the alleged violator shall do so after presen-
    41  tation  of  all  the  evidence  in support of a violation of presumptive
    42  release, parole, conditional release or post-release supervision.
    43    (vii) All persons giving evidence at the revocation hearing  shall  be
    44  sworn before giving any testimony as provided by law.
    45    (viii)  At  the  conclusion  of  the hearing the presiding officer may
    46  sustain any or all of the violation charges or may dismiss  any  or  all
    47  violation  charges. He or she may sustain a violation charge only if the
    48  charge is supported by [clear  and  convincing  evidence.  Conduct  that
    49  formed  the  basis  of  an  arrest shall not form a basis of a sustained
    50  parole violation if a court has adjudicated the matter with  an  acquit-
    51  tal,  adjournment in contemplation of dismissal, or violation] a prepon-
    52  derance of the evidence adduced.
    53    (ix) If the presiding officer is not satisfied that  there  is  [clear
    54  and convincing] a preponderance of evidence in support of the violation,
    55  he  or  she  shall  dismiss  the  violation,  cancel the delinquency and
        S. 6263                             8

     1  restore the person to presumptive release, parole,  conditional  release
     2  or post-release supervision.
     3    (x)  If  the  presiding  officer is satisfied that there is [clear and
     4  convincing] a  preponderance  of  evidence  that  the  alleged  violator
     5  violated  one  or more conditions of release in an important respect, he
     6  or she shall so find.   [For  each  sustained  technical  violation  the
     7  presiding  officer  shall  direct  that  no earned time credits shall be
     8  awarded for the thirty day  period  commencing  from  the  date  of  the
     9  sustained  violation.  For any absconding violation found, the presiding
    10  officer shall direct that no earned time credits shall  be  awarded  for
    11  the  entire  time  period  during  which  a  releasee  was found to have
    12  absconded from supervision.
    13    (xi) Incarceration shall not be imposed for any  technical  violation,
    14  except as provided in subparagraph (xii) of this paragraph.
    15    (xii)]  For  each  violation  so  found, the presiding officer may (A)
    16  direct that the [releasee] presumptive  releasee,  parolee,  conditional
    17  releasee  or  person  serving  a  period  of post-release supervision be
    18  restored to supervision;  (B)  as  an  alternative  to  reincarceration,
    19  direct  the  [releasee  receive  re-entry services in the community from
    20  qualified nonprofit agencies; or] presumptive releasee, parolee,  condi-
    21  tional  releasee, or person serving a period of post-release supervision
    22  to be placed in a parole transition facility for a period not to  exceed
    23  one  hundred  eighty days and subsequent restoration to supervision; (C)
    24  in the case of presumptive releasees, parolees or conditional  releasees
    25  direct the violator's reincarceration and [for non-technical violations]
    26  fix  a date for consideration by the board for re-release on presumptive
    27  release, or parole or conditional release, as the case may  be;  or  (D)
    28  [for  non-technical  violations]  in  the  case of persons released to a
    29  period of post-release supervision, direct the  violator's  reincarcera-
    30  tion  up  to  the balance of the remaining period of post-release super-
    31  vision, not to exceed five years; provided, however,  that  a  defendant
    32  serving  a term of post-release supervision for a conviction of a felony
    33  sex offense defined in section 70.80 of the penal law may be subject  to
    34  a  further  period  of  imprisonment  up to the balance of the remaining
    35  period  of  post-release  supervision[,  shall   apply   for   technical
    36  violations; and the following limitations:
    37    (1) Absconding. For absconding up to seven days reincarceration may be
    38  imposed  for the first violation, up to fifteen days reincarceration may
    39  be imposed for the second violation, and up to thirty days  reincarcera-
    40  tion may be imposed for the third or any subsequent violation;
    41    (2)  Sanctions for certain technical violations. Reincarceration shall
    42  not be imposed for a sustained technical violation  that  involves:  (a)
    43  violating  curfew;  (b) alcohol use, provided however that incarceration
    44  is permissible for alcohol use if the person  is  subject  to  community
    45  supervision due to a conviction for driving under the influence of alco-
    46  hol;  (c)  drug  use, provided, however incarceration is permissible for
    47  drug use if the person is subject to  community  supervision  due  to  a
    48  conviction  for  driving  under  the  influence of drugs; (d) failing to
    49  notify parole officer of a change in employment or program  status;  (e)
    50  failing  to pay surcharges and fees; (f) obtaining a driver's license or
    51  driving a car with a valid driver's license, provided however incarcera-
    52  tion is permissible if either action is  explicitly  prohibited  by  the
    53  person's conviction; (g) failing to notify community supervision officer
    54  of contact with any law enforcement agency, provided however, incarcera-
    55  tion is permissible if the person intended to hide illegal behavior; (h)
    56  failing  to  obey other special conditions, provided however that incar-
        S. 6263                             9

     1  ceration is permissible if the failure cannot be addressed in the commu-
     2  nity and all reasonable community-based means  to  address  the  failure
     3  have been exhausted; and
     4    (3)  Sanctions for all other technical violations. For all other tech-
     5  nical violations, no period of reincarceration may be  imposed  for  the
     6  first and second substantiated technical violations for which incarcera-
     7  tion may be imposed; up to seven days reincarceration may be imposed for
     8  the  third substantiated technical violation for which incarceration may
     9  be imposed; up to fifteen days reincarceration may be  imposed  for  the
    10  fourth  substantiated technical violation for which incarceration may be
    11  imposed; up to thirty days reincarceration may be imposed for the  fifth
    12  and  subsequent  substantiated technical violations for which incarcera-
    13  tion may be imposed.
    14    (xiii) If a warrant was executed  pursuant  to  subparagraph  (iv)  of
    15  paragraph  (a)  of  this  subdivision  by a criminal court and the court
    16  released the person pending a preliminary or final  revocation  hearing,
    17  any  period  of reincarceration imposed pursuant to this paragraph shall
    18  be counted from the date of issuance of a determination  after  a  final
    19  revocation  hearing  that the person has violated one or more conditions
    20  of community supervision, and the time between execution of the  warrant
    21  and  release  of  the  person  pending a preliminary or final revocation
    22  hearing shall count toward any period of reincarceration imposed  pursu-
    23  ant  to this paragraph. If a releasee is committed to the custody of the
    24  sheriff pursuant to article five hundred thirty of the  criminal  proce-
    25  dure  law, any time the person spent confined in a correctional facility
    26  or local correctional facility shall be credited toward  any  period  of
    27  reincarceration  imposed  pursuant  to this paragraph. In all cases, the
    28  presiding officer shall impose the least  restrictive  reasonable  sanc-
    29  tion.  Any  periods  of reincarceration imposed pursuant to this section
    30  shall run concurrently if more than one violation  is  sustained.  If  a
    31  period  of  reincarceration  is  imposed pursuant to this paragraph, the
    32  releasee shall be released from custody upon expiration of the period or
    33  the end of the releasee's period  of  community  supervision,  whichever
    34  shall be sooner]. For the violator serving an indeterminate sentence who
    35  while  re-incarcerated  has  not  been  found  by the department to have
    36  committed a serious disciplinary  infraction,  such  violator  shall  be
    37  re-released  on the date fixed at the revocation hearing. For the viola-
    38  tor serving an indeterminate sentence who has been found by the  depart-
    39  ment to have committed a serious disciplinary infraction while re-incar-
    40  cerated,  the  department  shall  refer  the  violator  to the board for
    41  consideration for re-release to community supervision. Upon such  refer-
    42  ral  the  board  may  waive  the  personal interview between a member or
    43  members of the board and the violator to determine the  suitability  for
    44  re-release  when the board directs that the violator be re-released upon
    45  expiration of the time assessment. The board shall retain the  authority
    46  to suspend the date fixed for re-release based on the violator's commis-
    47  sion of a serious disciplinary infraction and shall in such case require
    48  a  personal  interview  be  conducted within a reasonable time between a
    49  panel of members of the board and the violator to determine  suitability
    50  for  re-release. If an interview is required, the board shall notify the
    51  violator in advance of the date and time of such interview in accordance
    52  with the rules and regulations of the board.
    53    [(xiv)] (xi) If the presiding officer sustains  any  violations,  such
    54  officer  must  prepare  a written statement, to be made available to the
    55  alleged violator and his or her counsel, indicating the evidence  relied
    56  upon  and  the  reasons for revoking presumptive release, parole, condi-
        S. 6263                            10

     1  tional release or post-release  supervision,  and  for  the  disposition
     2  made.  The presiding officer shall also advise the alleged violator in a
     3  written statement that revocation will result in loss of  the  right  to
     4  vote  while  he  or  she  is  serving the remainder of his or her felony
     5  sentence in a correctional facility and that the right to vote  will  be
     6  restored upon his or her release.
     7    [(xv)] (xii) If at any time during a revocation proceeding the alleged
     8  violator, his or her counsel, or an employee of the department contends,
     9  or  if  it  reasonably  appears to the hearing officer, that the alleged
    10  violator is an incapacitated person as that term is defined in  subdivi-
    11  sion one of section 730.10 of the criminal procedure law and no judicial
    12  determination  has  been  made that the alleged violator is an incapaci-
    13  tated person, the revocation  proceeding  shall  be  temporarily  stayed
    14  until  the superior court determines whether or not the person is fit to
    15  proceed. The matter shall be promptly referred to the superior court for
    16  determination of the alleged violator's fitness to proceed in  a  manner
    17  consistent  with  the  provisions of article seven hundred thirty of the
    18  criminal procedure law, provided however that the superior  court  shall
    19  immediately  appoint  counsel  for  any  unrepresented  alleged violator
    20  eligible for appointed counsel under subparagraph (v) of this paragraph.
    21  The court shall decide whether or not the alleged violator is  incapaci-
    22  tated  within  thirty  days of the referral from the hearing officer. If
    23  the court determines that the alleged violator is not  an  incapacitated
    24  person,  the  court shall order that the matter be returned to the board
    25  of parole for continuation and disposition of the revocation proceeding.
    26  If the court determines that the alleged violator  is  an  incapacitated
    27  person  and  if no felony charges are pending against the alleged viola-
    28  tor, the court shall issue a final order of observation committing  such
    29  person  to  the  custody  of  the  commissioner  of mental health or the
    30  commissioner of developmental disabilities for care and treatment in  an
    31  appropriate  institution  in a manner consistent with subdivision one of
    32  section 730.40 of the criminal procedure law. If a final order of obser-
    33  vation has been issued pursuant to this  section,  the  hearing  officer
    34  shall  dismiss  the  violation charges and such dismissal shall act as a
    35  bar to any further proceeding under this  section  against  the  alleged
    36  violator  for such violations. If felony criminal charges are pending at
    37  any time against an alleged violator who has been referred  to  superior
    38  court for a fitness evaluation but before a determination of fitness has
    39  been  made  pursuant  to this section, the court shall decide whether or
    40  not the alleged violator is  incapacitated  pursuant  to  article  seven
    41  hundred thirty of the criminal procedure law and the revocation proceed-
    42  ing  shall be held in abeyance until such decision has been reached. The
    43  hearing officer shall adopt the capacity finding of the court and either
    44  terminate the revocation process if an order  of  observation  has  been
    45  made  by the court or proceed with the revocation hearing if the alleged
    46  violator has been found not to be an incapacitated person.
    47    § 10. Subdivision 4-a  of  section  259-i  of  the  executive  law  is
    48  REPEALED.
    49    § 11. Subdivision 9 of section 259-i of the executive law is REPEALED.
    50    § 12. This act shall take effect immediately.