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S04780 Summary:

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S04780 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         4780--A
            Cal. No. 424
 
                               2015-2016 Regular Sessions
 
                    IN SENATE
 
                                     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    §  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    § 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    §  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    § 5. This act shall take effect on the one hundred eightieth day after
    43  it shall have become a law.