Rpld §259 subs 5 - 8, §259-i sub 3 ¶(a) sub¶¶ (iv) - (viii), sub¶¶ (ix) & (x), subs 4-a & 9, amd §259-i, Exec
L; rpld §70.40 sub 4, amd §§70.40 & 70.45, Pen L
Provides for the return of persons to custody for violations of conditions of presumptive release, parole, conditional release or post-release supervision.
STATE OF NEW YORK
________________________________________________________________________
4635
2025-2026 Regular Sessions
IN SENATE
February 10, 2025
___________
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2 law are REPEALED.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 Subdivision 4 of section 70.40 of the penal law is REPEALED.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
16 her] such person's conditional release or post-release supervision [by
17 absconding] and has been declared delinquent by the parole board or the
18 local conditional release commission having supervision over such
19 person, the declaration of delinquency shall interrupt the period of
20 supervision or post-release supervision as of the date of the delinquen-
21 cy. For a conditional release, such interruption shall continue until
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08893-01-5
S. 4635 2
1 the [releasee's appearance in response to a notice of violation or the
2 date of the execution of a warrant, whichever is earlier] return of the
3 person to the institution from which such person was released or, if
4 such person was released from an institution under the jurisdiction of
5 the state department of corrections and community supervision, to an
6 institution under the jurisdiction of the department. Upon such return,
7 the person shall resume service of such person's sentence. For a person
8 released to post-release supervision, the provisions of section 70.45 of
9 this article 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. 4635 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 such person's presumptive release, parole, conditional release or post-
37 release 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. 4635 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] such person's temporary detention
11 in accordance with the rules of the board[. However, if a releasee]
12 unless such person has been determined to be currently unfit to proceed
13 to trial or is currently subject to a temporary or final order of obser-
14 vation pursuant to article seven hundred thirty of the criminal proce-
15 dure law, in which case no [notice of violation or] warrant shall be
16 issued. 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. 4635 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 such alleged violator is detained pursuant to the provisions of
49 paragraph (a) of this subdivision. In those instances, the alleged
50 violator will be given written notice of the time, place and purpose of
51 the hearing within five days of the execution of the warrant. The notice
52 shall state what conditions of [community] presumptive release, parole,
53 conditional release or post-release supervision are alleged to have been
54 violated, and in what manner; that such person shall have the right to
55 appear and speak in [his or her] such person's own behalf; that [he or
56 she] such person shall have the right to introduce letters and docu-
S. 4635 6
1 ments; that [he or she] such person may present witnesses who can give
2 relevant information to the hearing officer[; that he or she has the
3 right to confront the witnesses against him or her; that such person
4 shall have the right to representation by counsel at any preliminary and
5 final revocation hearings; and the name and contact details for institu-
6 tional defenders or assigned private counsel, as applicable]. Adverse
7 witnesses may be compelled to attend the preliminary hearing unless the
8 prisoner has been convicted of a new crime while on supervision or
9 unless the hearing officer finds good cause for their non-attendance. As
10 far as practicable or feasible, any additional documents having been
11 collected or prepared that [are relevant to] support the charge shall be
12 delivered to the alleged violator.
13 (iv) The preliminary hearing shall be scheduled to take place no later
14 than fifteen days from the date of execution of the warrant. The stand-
15 ard of proof at the preliminary hearing shall be [a preponderance of the
16 evidence] probable cause to believe that the [releasee] presumptive
17 releasee, parolee, conditional releasee or person under post-release
18 supervision has violated one or more conditions of [his or her communi-
19 ty] such person's presumptive release, parole, conditional release or
20 post-release supervision in an important respect. Proof of conviction of
21 a crime committed while under supervision shall constitute [prima facie
22 evidence of a violation of a condition of community supervision] proba-
23 ble cause for the purposes of this [subparagraph] section.
24 § 9. Paragraph (f) of subdivision 3 of section 259-i of the executive
25 law, as amended by chapter 427 of the laws of 2021, is amended to read
26 as follows:
27 (f) (i) [For any releasee charged with a violation at a preliminary
28 hearing:
29 (A) If a court issued an order detaining a person after a finding by a
30 preponderance of the evidence that such person committed a violation
31 then within thirty days of the finding by a preponderance of the
32 evidence determination at the preliminary hearing, the department shall
33 afford such person a final revocation hearing in person before a hearing
34 officer designated by the department. Such hearing officer shall not
35 have had any prior supervisory involvement over the alleged violator.
36 (B) (1) If a notice of violation was issued or such person was
37 released on recognizance the department shall within forty-five days of
38 the issuance of the notice of violation or the order of release on
39 recognizance afford the person a final revocation hearing before a hear-
40 ing officer designated by the department. Such hearing officer shall not
41 have had any prior supervisory involvement over the alleged violator.
42 (2) The final revocation hearing shall not be held at a correctional
43 facility, detention center or local correctional facility. Such hearing
44 shall be scheduled and held in a courthouse, in cooperation with the
45 chief administrator of the courts and the chief administrator's desig-
46 nees, provided, however, that if such a courthouse is not reasonably
47 available for such hearing, the department may designate a suitable
48 office or other similar facility that is not a correctional facility,
49 detention center or local correctional facility for such hearing.
50 (3) The department shall have six months from the date of the effec-
51 tive date of the chapter of the laws of two thousand twenty-one that
52 amended this paragraph to begin to hold such hearings at allowable
53 locations.
54 (C)] Revocation hearings shall be scheduled to be held within ninety
55 days of the probable cause determination. However, if an alleged viola-
56 tor requests and receives any postponement of [his or her] such alleged
S. 4635 7
1 violator's revocation hearing, or consents to a postponed revocation
2 proceeding initiated by the board, or if an alleged violator, by [his]
3 such alleged violator's actions otherwise precludes the prompt conduct
4 of such proceedings, the time limit may be extended.
5 (ii) The revocation hearing shall be conducted by a presiding officer
6 who may be a member or a hearing officer designated by the board in
7 accordance with rules of the board.
8 (iii) Both the alleged violator and an attorney who has filed a notice
9 of appearance on [his or her] such alleged violator's behalf in accord-
10 ance with the rules of the board of parole shall be given written notice
11 of the date, place and time of the hearing [pursuant to subparagraph
12 (ix) of paragraph (c) of this subdivision] as soon as possible but at
13 least fourteen days prior to the scheduled date.
14 (iv) The alleged violator shall be given written notice of the rights
15 enumerated in subparagraph (iii) of paragraph (c) of this subdivision as
16 well as of [his or her] such alleged violator's right to present miti-
17 gating evidence relevant to restoration to presumptive release, parole,
18 conditional release or post-release supervision and [his or her] such
19 alleged violator's right to counsel.
20 (v) The alleged violator shall [have a right to] be permitted repre-
21 sentation by counsel at the revocation hearing. In any case, including
22 when a superior court is called upon to evaluate the capacity of an
23 alleged violator in a parole revocation proceeding, where such person is
24 financially unable to retain counsel, the criminal court of the city of
25 New York, the county court or district court in the county where the
26 violation is alleged to have occurred or where the hearing is held,
27 shall assign counsel in accordance with the county or city plan for
28 representation placed in operation pursuant to article eighteen-B of the
29 county law. [He or she] Such alleged violator shall have the right to
30 confront and cross-examine adverse witnesses, unless there is good cause
31 for their non-attendance as determined by the presiding officer; present
32 witnesses and documentary evidence in defense of the charges; and pres-
33 ent witnesses and documentary evidence relevant to the question whether
34 reincarceration of the alleged violator is appropriate.
35 (vi) At the revocation hearing, the charges shall be read and the
36 alleged violator shall be permitted to plead not guilty, guilty, guilty
37 with explanation or to stand mute. As to each charge, evidence shall be
38 introduced through witnesses and documents, if any, in support of that
39 charge. At the conclusion of each witness's direct testimony, [he or
40 she] such alleged violator shall be made available for cross-examina-
41 tion. If the alleged violator intends to present a defense to the charg-
42 es or to present evidence of mitigating circumstances, the alleged
43 violator shall do so after presentation of all the evidence in support
44 of a violation of presumptive release, parole, conditional release or
45 post-release supervision.
46 (vii) All persons giving evidence at the revocation hearing shall be
47 sworn before giving any testimony as provided by law.
48 (viii) At the conclusion of the hearing the presiding officer may
49 sustain any or all of the violation charges or may dismiss any or all
50 violation charges. [He or she] Such presiding officer may sustain a
51 violation charge only if the charge is supported by [clear and convinc-
52 ing evidence. Conduct that formed the basis of an arrest shall not form
53 a basis of a sustained parole violation if a court has adjudicated the
54 matter with an acquittal, adjournment in contemplation of dismissal, or
55 violation] a preponderance of the evidence adduced.
S. 4635 8
1 (ix) If the presiding officer is not satisfied that there is [clear
2 and convincing] a preponderance of evidence in support of the violation,
3 [he or she] such presiding officer shall dismiss the violation, cancel
4 the delinquency and restore the person to presumptive release, parole,
5 conditional release or post-release supervision.
6 (x) If the presiding officer is satisfied that there is [clear and
7 convincing] a preponderance of evidence that the alleged violator
8 violated one or more conditions of release in an important respect, [he
9 or she] such presiding officer shall so find. [For each sustained tech-
10 nical violation the presiding officer shall direct that no earned time
11 credits shall be awarded for the thirty day period commencing from the
12 date of the sustained violation. For any absconding violation found, the
13 presiding officer shall direct that no earned time credits shall be
14 awarded for the entire time period during which a releasee was found to
15 have absconded from supervision.
16 (xi) Incarceration shall not be imposed for any technical violation,
17 except as provided in subparagraph (xii) of this paragraph.
18 (xii)] For each violation so found, the presiding officer may (A)
19 direct that the [releasee] presumptive releasee, parolee, conditional
20 releasee or person serving a period of post-release supervision be
21 restored to supervision; (B) as an alternative to reincarceration,
22 direct the [releasee receive re-entry services in the community from
23 qualified nonprofit agencies; or] presumptive releasee, parolee, condi-
24 tional releasee, or person serving a period of post-release supervision
25 to be placed in a parole transition facility for a period not to exceed
26 one hundred eighty days and subsequent restoration to supervision; (C)
27 in the case of presumptive releasees, parolees or conditional releasees
28 direct the violator's reincarceration and [for non-technical violations]
29 fix a date for consideration by the board for re-release on presumptive
30 release, or parole or conditional release, as the case may be; or (D)
31 [for non-technical violations] in the case of persons released to a
32 period of post-release supervision, direct the violator's reincarcera-
33 tion up to the balance of the remaining period of post-release super-
34 vision, not to exceed five years; provided, however, that a defendant
35 serving a term of post-release supervision for a conviction of a felony
36 sex offense defined in section 70.80 of the penal law may be subject to
37 a further period of imprisonment up to the balance of the remaining
38 period of post-release supervision[, shall apply for technical
39 violations; and the following limitations:
40 (1) Absconding. For absconding up to seven days reincarceration may be
41 imposed for the first violation, up to fifteen days reincarceration may
42 be imposed for the second violation, and up to thirty days reincarcera-
43 tion may be imposed for the third or any subsequent violation;
44 (2) Sanctions for certain technical violations. Reincarceration shall
45 not be imposed for a sustained technical violation that involves: (a)
46 violating curfew; (b) alcohol use, provided however that incarceration
47 is permissible for alcohol use if the person is subject to community
48 supervision due to a conviction for driving under the influence of alco-
49 hol; (c) drug use, provided, however incarceration is permissible for
50 drug use if the person is subject to community supervision due to a
51 conviction for driving under the influence of drugs; (d) failing to
52 notify parole officer of a change in employment or program status; (e)
53 failing to pay surcharges and fees; (f) obtaining a driver's license or
54 driving a car with a valid driver's license, provided however incarcera-
55 tion is permissible if either action is explicitly prohibited by the
56 person's conviction; (g) failing to notify community supervision officer
S. 4635 9
1 of contact with any law enforcement agency, provided however, incarcera-
2 tion is permissible if the person intended to hide illegal behavior; (h)
3 failing to obey other special conditions, provided however that incar-
4 ceration is permissible if the failure cannot be addressed in the commu-
5 nity and all reasonable community-based means to address the failure
6 have been exhausted; and
7 (3) Sanctions for all other technical violations. For all other tech-
8 nical violations, no period of reincarceration may be imposed for the
9 first and second substantiated technical violations for which incarcera-
10 tion may be imposed; up to seven days reincarceration may be imposed for
11 the third substantiated technical violation for which incarceration may
12 be imposed; up to fifteen days reincarceration may be imposed for the
13 fourth substantiated technical violation for which incarceration may be
14 imposed; up to thirty days reincarceration may be imposed for the fifth
15 and subsequent substantiated technical violations for which incarcera-
16 tion may be imposed.
17 (xiii) If a warrant was executed pursuant to subparagraph (iv) of
18 paragraph (a) of this subdivision by a criminal court and the court
19 released the person pending a preliminary or final revocation hearing,
20 any period of reincarceration imposed pursuant to this paragraph shall
21 be counted from the date of issuance of a determination after a final
22 revocation hearing that the person has violated one or more conditions
23 of community supervision, and the time between execution of the warrant
24 and release of the person pending a preliminary or final revocation
25 hearing shall count toward any period of reincarceration imposed pursu-
26 ant to this paragraph. If a releasee is committed to the custody of the
27 sheriff pursuant to article five hundred thirty of the criminal proce-
28 dure law, any time the person spent confined in a correctional facility
29 or local correctional facility shall be credited toward any period of
30 reincarceration imposed pursuant to this paragraph. In all cases, the
31 presiding officer shall impose the least restrictive reasonable sanc-
32 tion. Any periods of reincarceration imposed pursuant to this section
33 shall run concurrently if more than one violation is sustained. If a
34 period of reincarceration is imposed pursuant to this paragraph, the
35 releasee shall be released from custody upon expiration of the period or
36 the end of the releasee's period of community supervision, whichever
37 shall be sooner]. For the violator serving an indeterminate sentence who
38 while re-incarcerated has not been found by the department to have
39 committed a serious disciplinary infraction, such violator shall be
40 re-released on the date fixed at the revocation hearing. For the viola-
41 tor serving an indeterminate sentence who has been found by the depart-
42 ment to have committed a serious disciplinary infraction while re-incar-
43 cerated, the department shall refer the violator to the board for
44 consideration for re-release to community supervision. Upon such refer-
45 ral the board may waive the personal interview between a member or
46 members of the board and the violator to determine the suitability for
47 re-release when the board directs that the violator be re-released upon
48 expiration of the time assessment. The board shall retain the authority
49 to suspend the date fixed for re-release based on the violator's commis-
50 sion of a serious disciplinary infraction and shall in such case require
51 a personal interview be conducted within a reasonable time between a
52 panel of members of the board and the violator to determine suitability
53 for re-release. If an interview is required, the board shall notify the
54 violator in advance of the date and time of such interview in accordance
55 with the rules and regulations of the board.
S. 4635 10
1 [(xiv)] (xi) If the presiding officer sustains any violations, such
2 officer must prepare a written statement, to be made available to the
3 alleged violator and [his or her] such alleged violator's counsel, indi-
4 cating the evidence relied upon and the reasons for revoking presumptive
5 release, parole, conditional release or post-release supervision, and
6 for the disposition made. The presiding officer shall also advise the
7 alleged violator in a written statement that revocation will result in
8 loss of the right to vote while [he or she] such alleged violator is
9 serving the remainder of [his or her] such alleged violator's felony
10 sentence in a correctional facility and that the right to vote will be
11 restored upon [his or her] such alleged violator's release.
12 [(xv)] (xii) If at any time during a revocation proceeding the alleged
13 violator, [his or her] such alleged violator's counsel, or an employee
14 of the department contends, or if it reasonably appears to the hearing
15 officer, that the alleged violator is an incapacitated person as that
16 term is defined in subdivision one of section 730.10 of the criminal
17 procedure law and no judicial determination has been made that the
18 alleged violator is an incapacitated person, the revocation proceeding
19 shall be temporarily stayed until the superior court determines whether
20 or not the person is fit to proceed. The matter shall be promptly
21 referred to the superior court for determination of the alleged viola-
22 tor's fitness to proceed in a manner consistent with the provisions of
23 article seven hundred thirty of the criminal procedure law, provided
24 however that the superior court shall immediately appoint counsel for
25 any unrepresented alleged violator eligible for appointed counsel under
26 subparagraph (v) of this paragraph. The court shall decide whether or
27 not the alleged violator is incapacitated within thirty days of the
28 referral from the hearing officer. If the court determines that the
29 alleged violator is not an incapacitated person, the court shall order
30 that the matter be returned to the board of parole for continuation and
31 disposition of the revocation proceeding. If the court determines that
32 the alleged violator is an incapacitated person and if no felony charges
33 are pending against the alleged violator, the court shall issue a final
34 order of observation committing such person to the custody of the
35 commissioner of mental health or the commissioner of developmental disa-
36 bilities for care and treatment in an appropriate institution in a
37 manner consistent with subdivision one of section 730.40 of the criminal
38 procedure law. If a final order of observation has been issued pursuant
39 to this section, the hearing officer shall dismiss the violation charges
40 and such dismissal shall act as a bar to any further proceeding under
41 this section against the alleged violator for such violations. If felony
42 criminal charges are pending at any time against an alleged violator who
43 has been referred to superior court for a fitness evaluation but before
44 a determination of fitness has been made pursuant to this section, the
45 court shall decide whether or not the alleged violator is incapacitated
46 pursuant to article seven hundred thirty of the criminal procedure law
47 and the revocation proceeding shall be held in abeyance until such deci-
48 sion has been reached. The hearing officer shall adopt the capacity
49 finding of the court and either terminate the revocation process if an
50 order of observation has been made by the court or proceed with the
51 revocation hearing if the alleged violator has been found not to be an
52 incapacitated person.
53 § 10. Subdivision 4-a of section 259-i of the executive law is
54 REPEALED.
55 § 11. Subdivision 9 of section 259-i of the executive law is REPEALED.
56 § 12. This act shall take effect immediately.
