STATE OF NEW YORK
________________________________________________________________________
5493--B
2019-2020 Regular Sessions
IN ASSEMBLY
February 12, 2019
___________
Introduced by M. of A. MOSLEY, ORTIZ, D'URSO, WEPRIN, TAYLOR, GOTTFRIED,
HYNDMAN, O'DONNELL, DICKENS, HUNTER, QUART, REYES, FAHY, COOK, BARRON,
HEVESI, EPSTEIN, SIMOTAS, SIMON, FERNANDEZ, CAHILL -- Multi-Sponsored
by -- M. of A. LENTOL -- read once and referred to the Committee on
Correction -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee -- recommitted to the
Committee on Correction in accordance with Assembly Rule 3, sec. 2 --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee
AN ACT to amend the executive law and the penal law, in relation to
revocation of community supervision
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 259 of the executive law is amended by adding five
2 new subdivisions 5, 6, 7, 8 and 9 to read as follows:
3 5. "Releasee" means an individual released from an institution under
4 the jurisdiction of the department into the community on temporary
5 release, presumptive release, parole, conditional release, post-release
6 supervision or medical parole.
7 6. "Technical violation" means any violation of a condition of commu-
8 nity supervision in an important respect other than conduct that if
9 proved would be a felony offense, or a misdemeanor offense under article
10 one hundred twenty, one hundred twenty-one, one hundred thirty, one
11 hundred thirty-five, two hundred sixty-five or four hundred eighty-five
12 of the penal law.
13 7. "Absconding" means intentionally avoiding supervision by failing to
14 maintain contact or communication with the releasee's assigned community
15 supervision officer or area bureau office and to notify his or her
16 assigned community supervision officer or area bureau office of a change
17 in residence, and reasonable efforts by the assigned community super-
18 vision officer to re-engage the releasee have been unsuccessful.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06090-08-0
A. 5493--B 2
1 8. "Tier 1 violation" means any technical violation not included in
2 the definition of a Tier 2 violation.
3 9. "Tier 2 violation" means any of the following technical violations:
4 violating curfew; failure to pay surcharges and fees, including fees
5 imposed pursuant to section 60.35 of the penal law, sections eighteen
6 hundred nine and eighteen hundred nine-c of the vehicle and traffic law,
7 or section 27.12 of the parks, recreation and historic preservation law;
8 obtaining a driver's license or driving a car with a valid driver's
9 license, provided however it shall not be a tier 2 violation if such
10 action is explicitly prohibited as a condition of such person's
11 sentence; positive test for or use or possession of alcohol, drugs, a
12 controlled substance without proper medical authorization, or drug
13 paraphernalia, provided however it shall not be a tier 2 violation if
14 the releasee is subject to community supervision due to a conviction
15 related to alcohol or drugs pursuant to section eleven hundred ninety-
16 two of the vehicle and traffic law; failing to notify a community super-
17 vision officer of a change in employment or program status; failing to
18 notify a community supervision officer of a change in residence,
19 provided however it shall not be a tier 2 violation if the releasee was
20 absconding; failure to make office or written reports as directed,
21 provided however it shall not be a tier 2 violation if the releasee was
22 absconding; leaving the state of New York or any other state to which
23 the releasee is released or transferred or any area defined in writing
24 by his parole officer, without permission, provided however it shall not
25 be a tier 2 violation if the releasee was absconding; failure to notify
26 community supervision officer of contact with any law enforcement agen-
27 cy, provided however it shall not be a tier 2 violation if the releasee
28 intended to hide evidence of his or others' behavior that constitutes a
29 violation of the penal law; and failure to obey any other special condi-
30 tion of community supervision, provided however it shall not be a tier 2
31 violation if the failure cannot be addressed in the community with coun-
32 seling, treatment, or programming and all reasonable community-based
33 means to address the failure have been exhausted.
34 § 2. Subdivision 3 of section 70.40 of the penal law, paragraphs (a)
35 and (b) as amended by section 127-h of subpart B of part C of chapter 62
36 of the laws of 2011 and paragraph (c) as amended by chapter 478 of the
37 laws of 1973, is amended and a new subdivision 4 is added to read as
38 follows:
39 3. Delinquency. (a) When a person is alleged to have violated the
40 terms of presumptive release or parole by absconding, and the state
41 board of parole has declared such person to be delinquent, the declara-
42 tion of delinquency shall interrupt the person's sentence as of the date
43 of the delinquency and such interruption shall continue until the
44 [return of the person to an institution under the jurisdiction of the
45 state department of corrections and community supervision] releasee's
46 appearance in response to a notice of violation or the date of the
47 execution of a warrant, whichever is earlier.
48 (b) When a person is alleged to have violated the terms of his or her
49 conditional release or post-release supervision by absconding and has
50 been declared delinquent by the parole board or the local conditional
51 release commission having supervision over such person, the declaration
52 of delinquency shall interrupt the period of supervision or post-release
53 supervision as of the date of the delinquency. For a conditional
54 release, such interruption shall continue until the [return of the
55 person to the institution from which he or she was released or, if he or
56 she was released from an institution under the jurisdiction of the state
A. 5493--B 3
1 department of corrections and community supervision, to an institution
2 under the jurisdiction of that department. Upon such return, the person
3 shall resume service of his or her sentence] releasee's appearance in
4 response to a notice of violation or the date of the execution of a
5 warrant, whichever is earlier. For a person released to post-release
6 supervision, the provisions of section 70.45 of this article shall
7 apply.
8 (c) Any time spent by a person in custody from the time of [delinquen-
9 cy] execution of a warrant pursuant to paragraph (a) of subdivision
10 three of section two hundred fifty-nine-i of the executive law to the
11 time service of the sentence resumes shall be credited against the term
12 or maximum term of the interrupted sentence[, provided:
13 (i) that such custody was due to an arrest or surrender based upon the
14 delinquency; or
15 (ii) that such custody arose from an arrest on another charge which
16 culminated in a dismissal or an acquittal; or
17 (iii) that such custody arose from an arrest on another charge which
18 culminated in a conviction, but in such case, if a sentence of imprison-
19 ment was imposed, the credit allowed shall be limited to the portion of
20 the time spent in custody that exceeds the period, term or maximum term
21 of imprisonment imposed for such conviction].
22 4. Earned time credits. (a) After a person has begun a period of
23 community supervision pursuant to this section and section 70.45 of this
24 article, such period shall be reduced by thirty days for every thirty
25 days that such person does not violate a condition of his or her commu-
26 nity supervision, provided the person is not subject to any sentence
27 with a maximum term of life imprisonment. The calculation of earned time
28 credit periods shall begin on the releasee's first day of community
29 supervision and shall be awarded after each completed thirty day period.
30 Any such awarded earned time credits shall be applied against such
31 person's unserved portion of the maximum term, aggregate maximum term or
32 period of post-release supervision for any current sentence.
33 (b) Earned time credits may be withheld or revoked only for the thir-
34 ty-day period commencing from the date of violative behavior sustained
35 at a final revocation hearing, except that earned time credits may be
36 withheld or revoked for the entire time period during which a releasee
37 absconded from supervision, as sustained at a final revocation hearing,
38 and as defined in subparagraph (xii) of paragraph (f) of subdivision
39 three of section two hundred fifty-nine-i of the executive law. Earned
40 time credits may not be earned during a period of incarceration imposed
41 based on a sustained violation or new criminal conviction. After a
42 sustained violation, the calculation of an earned time credit period
43 shall recommence on the thirty-first day after the date of the violative
44 behavior or, if the sustained violation resulted in a term of incarcera-
45 tion, on the day the releasee is restored to community supervision,
46 whichever is later.
47 (c) When a person is subject to more than one period of community
48 supervision, the reduction authorized in this subdivision shall be
49 applied to every period of parole or conditional release to which the
50 person is subject.
51 (d) Earned time credits shall be awarded to any person subject to
52 community supervision at the time this legislation becomes effective
53 retroactive to the initial date such person began his or her earliest
54 current period of community supervision. Provided however, if a
55 releasee's current period of community supervision has been interrupted
56 by a period of incarceration prior to the effective date of the chapter
A. 5493--B 4
1 of the laws of two thousand twenty which added this subdivision, no
2 earned time credits shall be awarded for such period of incarceration.
3 The department shall have six months from the effective date of this
4 subdivision to calculate all retroactive earned time credits; however,
5 the department of corrections and community supervision shall prioritize
6 earned time credit calculations for releasees whose terms of community
7 supervision are due to terminate before the conclusion of such six
8 months. Retroactive earned time credits shall not be awarded to any
9 releasee serving a term of incarceration for a sustained parole
10 violation at the time of the effective date of the chapter of the laws
11 of two thousand twenty which added this subdivision until the releasee
12 is returned to community supervision.
13 § 3. Paragraph (d) of subdivision 5 of section 70.45 of the penal law,
14 as amended by section 127-j of subpart B of part C of chapter 62 of the
15 laws of 2011, is amended to read as follows:
16 (d) When a person is alleged to have violated a condition of post-re-
17 lease supervision by absconding and the department of corrections and
18 community supervision has declared such person to be delinquent: (i) the
19 declaration of delinquency shall interrupt the period of post-release
20 supervision; (ii) such interruption shall continue until the person is
21 restored to post-release supervision; (iii) if the person is restored to
22 post-release supervision without being returned to the department of
23 corrections and community supervision, any time spent in custody from
24 the date of delinquency until restoration to post-release supervision
25 shall first be credited to the maximum or aggregate maximum term of the
26 sentence or sentences of imprisonment, but only to the extent authorized
27 by subdivision three of section 70.40 of this article. Any time spent in
28 custody solely pursuant to such delinquency after completion of the
29 maximum or aggregate maximum term of the sentence or sentences of impri-
30 sonment shall be credited to the period of post-release supervision, if
31 any; and (iv) if the person is ordered returned to the department of
32 corrections and community supervision, the person shall be required to
33 serve the time assessment before being re-released to post-release
34 supervision. [In the event the balance of the remaining period of post-
35 release supervision is six months or less, such time assessment may be
36 up to six months unless a longer period is authorized pursuant to subdi-
37 vision one of this section. The] If the person is detained pursuant to
38 paragraph (a) of subdivision three of section two hundred fifty-nine-i
39 of the executive law pending preliminary or revocation hearings, the
40 time assessment shall commence upon the execution of the warrant. If a
41 warrant was executed pursuant to paragraph (a) of subdivision three of
42 section two hundred fifty-nine-i of the executive law but a trial court
43 released the person pending preliminary or revocation hearings, the time
44 assessment shall commence upon the issuance of a determination after a
45 final hearing that the person has violated one or more conditions of
46 community supervision, and shall include the time period between
47 execution of the warrant and release of the person pending preliminary
48 or revocation hearings. If a releasee is committed to the custody of the
49 sheriff pursuant to article five hundred thirty of the criminal proce-
50 dure law, the time assessment shall include any time the releasee spent
51 in such detention. If a notice of violation was issued pursuant to
52 subdivision three of section two hundred fifty-nine-i of the executive
53 law, the time assessment shall commence upon the issuance of a determi-
54 nation after a final hearing that the person has violated one or more
55 conditions of supervision. While serving such assessment, the person
56 shall not receive any good behavior allowance pursuant to section eight
A. 5493--B 5
1 hundred three of the correction law. Any time spent in custody from the
2 date of delinquency until return to the department of corrections and
3 community supervision shall first be credited to the maximum or aggre-
4 gate maximum term of the sentence or sentences of imprisonment, but only
5 to the extent authorized by subdivision three of section 70.40 of this
6 article. The maximum or aggregate maximum term of the sentence or
7 sentences of imprisonment shall run while the person is serving such
8 time assessment in the custody of the department of corrections and
9 community supervision. Any time spent in custody solely pursuant to such
10 delinquency after completion of the maximum or aggregate maximum term of
11 the sentence or sentences of imprisonment shall be credited to the peri-
12 od of post-release supervision, if any.
13 § 4. Subparagraph (i) of paragraph (a) of subdivision 3 of section
14 259-i of the executive law, as amended by chapter 545 of the laws of
15 2015, is amended and five new subparagraphs (iv), (v), (vi), (vii) and
16 (viii) are added to read as follows:
17 (i) If the parole officer having charge of a presumptively released,
18 paroled or conditionally released person or a person released to post-
19 release supervision or a person received under the uniform act for out-
20 of-state parolee supervision shall have [reasonable] probable cause to
21 believe that such person has [lapsed into criminal ways or company, or
22 has violated one or more conditions of his presumptive release, parole,
23 conditional release or post-release supervision] committed a technical
24 violation, such parole officer shall report such fact to a member of the
25 board, or to any officer of the department designated by the board, and
26 thereupon a written notice of violation may be issued according to the
27 terms of subparagraph (iii) of paragraph (c) of this subdivision, and
28 shall be promptly served upon such person. If the releasee has failed to
29 appear as directed in response to a notice of violation and has failed
30 to appear voluntarily within forty-eight hours after such time and the
31 person would be subject to incarceration pursuant to subparagraph (xii)
32 of paragraph (f) of this subdivision should the violation be sustained
33 at a final revocation hearing, a warrant may be issued for the retaking
34 of such person and for his temporary detention in accordance with the
35 rules of the board. If the person has failed to appear as directed in
36 response to a notice of violation and has failed to appear voluntarily
37 within forty-eight hours after such time and the person would not be
38 subject to incarceration pursuant to subparagraph (xii) of paragraph (f)
39 of this subdivision should the violation be sustained at a final revoca-
40 tion hearing, no warrant shall issue and the violation shall be deemed
41 sustained. Notice of that decision shall be promptly served upon the
42 releasee. In such case, within one month of the date the notice of deci-
43 sion was served upon the releasee, the releasee may move to vacate such
44 a sustained violation if the releasee can show that the notice of
45 violation was not properly served or the failure to appear was otherwise
46 excusable. If the parole officer having charge of a presumptively
47 released, paroled or conditionally released person or a person released
48 to post-release supervision or a person received under the uniform act
49 for out of state parolee supervision shall have probable cause to
50 believe that such person has committed a non-technical violation, such
51 parole officer shall report such fact to a member of the board, or to
52 any officer of the department designated by the board, and thereupon a
53 notice of violation may be issued or a warrant may be issued for the
54 retaking of such person and for his temporary detention in accordance
55 with the rules of the board [unless such person]. However, if a releasee
A. 5493--B 6
1 has been determined to be currently unfit to proceed to trial or is
2 currently subject to a temporary or final order of observation pursuant
3 to article seven hundred thirty of the criminal procedure law, [in which
4 case] no notice of violation or warrant shall be issued. The issuance of
5 a notice of violation, service of a notice of violation, service of a
6 notice of decision, and the retaking and detention of any [such] person
7 for whom a warrant has been issued pursuant to this subparagraph may be
8 further regulated by rules and regulations of the department not incon-
9 sistent with this article. A warrant issued pursuant to this section
10 shall constitute sufficient authority to the superintendent or other
11 person in charge of any jail, penitentiary, lockup or detention pen to
12 whom it is delivered to hold in temporary detention the person named
13 therein[; except that a warrant issued with respect to a person who has
14 been released on medical parole pursuant to section two hundred fifty-
15 nine-r of this article and whose parole is being revoked pursuant to
16 paragraph (h) of subdivision four of such section shall constitute
17 authority for the immediate placement of the parolee only into imprison-
18 ment in the custody of the department to hold in temporary detention. A
19 warrant issued pursuant to this section shall also constitute sufficient
20 authority to the person in charge of a drug treatment campus, as defined
21 in subdivision twenty of section two of the correction law, to hold the
22 person named therein, in accordance with the procedural requirements of
23 this section, for a period of at least ninety days to complete an inten-
24 sive drug treatment program mandated by the board as an alternative to
25 presumptive release or parole or conditional release revocation, or the
26 revocation of post-release supervision, and shall also constitute suffi-
27 cient authority for return of the person named therein to local custody
28 to hold in temporary detention for further revocation proceedings in the
29 event said person does not successfully complete the intensive drug
30 treatment program. The board's rules shall provide for cancellation of
31 delinquency and restoration to supervision upon the successful
32 completion of the program] for up to twenty-four hours pending a recog-
33 nizance hearing pursuant to subparagraph (iv) of this paragraph. It
34 shall no longer be a condition of parole nor may a notice of violation
35 or a warrant be issued due to a releasee being in the company of or
36 fraternizing with any person the releasee knows has a criminal record or
37 knows has been adjudicated a youthful offender.
38 (iv) Upon execution of a warrant issued pursuant to this section, the
39 authorized officer shall take the releasee to a local court with crimi-
40 nal jurisdiction for a recognizance hearing. Such recognizance hearing
41 shall commence within twenty-four hours of the execution of the warrant.
42 (v) At a recognizance hearing, the department shall have the burden to
43 demonstrate to the court that the executed warrant was properly issued
44 and served pursuant to this section.
45 (vi) At a recognizance hearing, the court shall consider all available
46 evidence of the releasee's employment, family and community ties includ-
47 ing length of residency in the community, history of reporting in a
48 timely fashion to a parole or supervisory officer, and other indicators
49 of stability. At the conclusion of the recognizance hearing, the court
50 may order that the releasee be detained pending preliminary or final
51 revocation hearings only upon a finding that the releasee currently
52 presents a substantial risk of willfully failing to appear at the
53 preliminary or final revocation hearings and that no non-monetary condi-
54 tion or combination of conditions in the community will reasonably
55 assure the releasee's appearance at the preliminary or final revocation
56 hearings. Otherwise, the court shall release the releasee on the least
A. 5493--B 7
1 restrictive non-monetary conditions that will reasonably assure the
2 releasee's appearance at subsequent preliminary or revocation hearings,
3 with a presumption of release on recognizance. The court shall explain
4 its decision on the record or in writing. If non-monetary conditions of
5 release are imposed, the releasee shall not be required to pay for any
6 part of the cost of such conditions.
7 (vii) The alleged violator shall have a right to representation by
8 counsel at the recognizance hearing. In any case, including when a court
9 is called upon to evaluate the capacity of an alleged violator in a
10 recognizance proceeding, where such person is financially unable to
11 retain counsel, the criminal court of the city of New York, the county
12 court or district court in the county where the violation is alleged to
13 have occurred or where the hearing is held, shall assign counsel in
14 accordance with the county or city plan for representation placed in
15 operation pursuant to article eighteen-B of the county law.
16 (viii) Such recognizance hearing may be held at the same time as a
17 proceeding pursuant to article five hundred thirty of the criminal
18 procedure law based on the same alleged conduct. If at the proceeding
19 pursuant to article five hundred thirty of the criminal procedure law
20 the court imposes bail or commits the releasee to the custody of the
21 sheriff pursuant to article five hundred thirty of the criminal proce-
22 dure law and the releasee secures release by paying bail or by operation
23 of law, then the releasee shall not be detained further based solely on
24 the warrant issued by the department. If the department issues a warrant
25 for a non-technical violation for alleged criminal conduct that has
26 already been the subject of a court's order pursuant to article five
27 hundred thirty of the criminal procedure law, then within twenty-four
28 hours of execution of the warrant the releasee shall be provided a
29 recognizance hearing pursuant to this subparagraph.
30 § 5. Subparagraphs (i), (iii) and (iv) of paragraph (c) of subdivision
31 3 of section 259-i of the executive law, subparagraph (i) as amended by
32 section 11 of part E of chapter 62 of the laws of 2003, and subpara-
33 graphs (iii) and (iv) as amended by section 1 of part E of chapter 56 of
34 the laws of 2007, are amended and two new subparagraphs (ix) and (x) are
35 added to read as follows:
36 (i) [Within fifteen days after the warrant for retaking and temporary
37 detention has been executed, unless the releasee has been convicted of a
38 new crime committed while under presumptive release, parole, conditional
39 release or post-release supervision, the board of parole shall afford
40 the alleged presumptive release, parole, conditional release or post-re-
41 lease supervision violator a preliminary revocation hearing before a
42 hearing officer designated by the board of parole. Such hearing officer
43 shall not have had any prior supervisory involvement over the alleged
44 violator] (A) For any alleged technical violation for which a notice of
45 violation was issued or a person was released on recognizance pursuant
46 to subparagraph (iv) of paragraph (a) of this subdivision, the depart-
47 ment shall within ten days of the issuance of the notice of violation or
48 the order of release on recognizance afford the person a preliminary
49 revocation hearing before a hearing officer designated by the depart-
50 ment. Such hearing officer shall not have had any prior supervisory
51 involvement over the alleged violator. Such hearing shall not be held at
52 a correctional facility, detention center or local correctional facili-
53 ty.
54 (B) For any alleged technical violation for which a court issued an
55 order detaining a person pursuant to subparagraph (iv) of paragraph (a)
56 of this subdivision and the person would be subject to reincarceration
A. 5493--B 8
1 of up to thirty days pursuant to subparagraph (x) of paragraph (f) of
2 this subdivision should the violation be sustained at a final revocation
3 hearing, then within five days of the issuance of the order of detention
4 the department shall afford such person a preliminary revocation hearing
5 before a hearing officer designated by the department. Such hearing
6 officer shall not have had any prior supervisory involvement over the
7 alleged violator.
8 (C) For any alleged non-technical violation, within ten days of the
9 issuance of a notice or execution of a warrant for the violation the
10 department shall afford such person a preliminary hearing before a hear-
11 ing officer designated by the department. Such hearing officer shall not
12 have had any prior supervisory involvement over the alleged violator.
13 (iii) The alleged violator shall, [within three days of the execution
14 of the warrant] at the time a notice of violation is issued or at the
15 time of a recognizance hearing, be given written notice of the time,
16 place and purpose of the preliminary hearing [unless he or she is
17 detained pursuant to the provisions of subparagraph (iv) of paragraph
18 (a) of this subdivision. In those instances, the alleged violator will
19 be given written notice of the time, place and purpose of the hearing
20 within five days of the execution of the warrant], or if no preliminary
21 hearing is required pursuant to this section, of the final revocation
22 hearing. The notice shall state what conditions of [presumptive
23 release, parole, conditional release or post-release] community super-
24 vision are alleged to have been violated, and in what manner; that such
25 person shall have the right to appear and speak in his or her own
26 behalf; that he or she shall have the right to introduce letters and
27 documents; that he or she may present witnesses who can give relevant
28 information to the hearing officer; that he or she has the right to
29 confront the witnesses against him or her; that such person shall have
30 the right to representation by counsel at any preliminary and final
31 revocation hearings; and the name and contact details for institutional
32 defenders or assigned private counsel, as applicable. Adverse witnesses
33 may be compelled to attend the preliminary hearing unless the prisoner
34 has been convicted of a new crime while on supervision or unless the
35 hearing officer finds good cause for their non-attendance. As far as
36 practicable or feasible, any additional documents having been collected
37 or prepared that [support] are relevant to the charge shall be delivered
38 to the alleged violator.
39 (iv) [The preliminary hearing shall be scheduled to take place no
40 later than fifteen days from the date of execution of the warrant.] The
41 standard of proof at the preliminary hearing shall be [probable cause] a
42 preponderance of the evidence to believe that the [presumptive releasee,
43 parolee, conditional releasee or person under post-release supervision]
44 releasee has violated one or more conditions of his or her [presumptive
45 release, parole, conditional release or post-release] community super-
46 vision in an important respect. Proof of conviction of a crime committed
47 while under supervision shall constitute [probable cause] prima facie
48 evidence of a violation of a condition of community supervision for the
49 purposes of this section.
50 (ix) If the hearing officer finds by a preponderance of the evidence
51 that such person has violated one or more conditions of community super-
52 vision in an important respect, the releasee shall, at the conclusion of
53 the preliminary hearing be given written notice of the time, place and
54 purpose of the final revocation hearing. The notice shall state what
55 conditions of community supervision are alleged to have been violated,
56 when, where and in what manner; that such person shall have the right to
A. 5493--B 9
1 representation by counsel at any final revocation hearing; that such
2 person shall have the right to appear and speak in his or her own
3 behalf; that he or she shall have the right to introduce letters and
4 documents; that he or she may present witnesses who can give relevant
5 information to the hearing officer; that he or she has the right to
6 confront the witnesses against him or her; and the name and contact
7 details for institutional defenders or assigned private counsel, as
8 applicable. Any additional documents having been collected or prepared
9 that support the charge shall be delivered to the releasee. Adverse
10 witnesses may be compelled to attend the final revocation hearing unless
11 the prisoner has been convicted of a new crime while on supervision or
12 unless the hearing officer finds good cause for their non-attendance.
13 (x) The alleged violator shall have a right to representation by coun-
14 sel at the preliminary hearing. In any case, including when a court is
15 called upon to evaluate the capacity of an alleged violator in a prelim-
16 inary proceeding, where such person is financially unable to retain
17 counsel, the criminal court of the city of New York, the county court or
18 district court in the county where the violation is alleged to have
19 occurred or where the hearing is held, shall assign counsel in accord-
20 ance with the county or city plan for representation placed in operation
21 pursuant to article eighteen-B of the county law.
22 § 6. Paragraph (f) of subdivision 3 of section 259-i of the executive
23 law, as amended by section 11 of part E of chapter 62 of the laws of
24 2003, subparagraph (v) as amended and subparagraph (xii) as added by
25 chapter 545 of the laws of 2015 and subparagraph (x) as amended by
26 section 38-f-1 of subpart A of part C of chapter 62 of the laws of 2011,
27 is amended to read as follows:
28 (f) (i) [Revocation hearings shall be scheduled to be held within
29 ninety days of the probable cause determination] For any releasee
30 charged with a violation:
31 (A) If a court issued an order detaining such person pursuant to
32 subparagraph (iv) of paragraph (a) of this subdivision and the person
33 would be subject to reincarceration of up to seven days pursuant to
34 subparagraph (x) of this paragraph should the violation be sustained at
35 a final revocation hearing, then within two days of the issuance of the
36 order of detention, the department shall afford such person a final
37 revocation hearing in person before a hearing officer designated by the
38 department. Such hearing officer shall not have had any prior superviso-
39 ry involvement over the alleged violator. No preliminary revocation
40 hearing shall be held in this instance.
41 (B) If a court issued an order detaining such person pursuant to
42 subparagraph (iv) of paragraph (a) of this subdivision and the person
43 would be subject to reincarceration of up to fifteen days pursuant to
44 subparagraph (x) of this paragraph should the violation be sustained at
45 a final revocation hearing, then within four days of the issuance of the
46 order of detention, the department shall afford such person a final
47 revocation hearing in person before a hearing officer designated by the
48 department. Such hearing officer shall not have had any prior superviso-
49 ry involvement over the alleged violator. No preliminary revocation
50 hearing shall be held in this instance.
51 (C) If a court issued an order detaining such person pursuant to
52 subparagraph (iv) of paragraph (a) of this subdivision and the person
53 would be subject to reincarceration of up to thirty days or more pursu-
54 ant to subparagraph (x) of this paragraph should the violation be
55 sustained at a final revocation hearing, then within ten days after the
56 issuance of the order of detention, the department shall afford such
A. 5493--B 10
1 person a final revocation hearing in person before a hearing officer
2 designated by the department. Such hearing officer shall not have had
3 any prior supervisory involvement over the alleged violator.
4 (D) If a notice of violation was issued or such person was released on
5 recognizance pursuant to subparagraph (iv) of paragraph (a) of this
6 subdivision the department shall within thirty days of the issuance of
7 the notice of violation or the order of release on recognizance afford
8 the person a final revocation hearing in person before a hearing officer
9 designated by the department. Such hearing officer shall not have had
10 any prior supervisory involvement over the alleged violator. Such hear-
11 ing shall not be held at a correctional facility, detention center or
12 local correctional facility. The department shall have six months from
13 the date of the effective date of the chapter of the laws of two thou-
14 sand twenty that amended this paragraph to begin to hold such hearings
15 at allowable locations.
16 (E) If such person is accused of a non-technical violation, the
17 department shall within thirty days of the execution of the warrant
18 afford such person a final revocation hearing in person before a hearing
19 officer designated by the department. Such hearing officer shall not
20 have had any supervisory involvement over the alleged violator.
21 (F) However, if an alleged violator requests and receives any post-
22 ponement of his revocation hearing, or consents to a postponed revoca-
23 tion proceeding initiated by the board, or if an alleged violator, by
24 his actions otherwise precludes the prompt conduct of such proceedings,
25 the time limit may be extended.
26 (ii) The revocation hearing shall be conducted by a presiding officer
27 who may be a member or a hearing officer designated by the board in
28 accordance with rules of the board.
29 (iii) Both the alleged violator and an attorney who has filed a notice
30 of appearance on his behalf in accordance with the rules of the board of
31 parole shall be given written notice of the date, place and time of the
32 hearing [as soon as possible but at least fourteen days prior to the
33 scheduled date] pursuant to subparagraph (ix) of paragraph (c) of this
34 subdivision.
35 (iv) The alleged violator shall be given written notice of the rights
36 enumerated in subparagraph (iii) of paragraph (c) of this subdivision as
37 well as of his right to present mitigating evidence relevant to restora-
38 tion to presumptive release, parole, conditional release or post-release
39 supervision and his right to counsel.
40 (v) The alleged violator shall [be permitted] have a right to repre-
41 sentation by counsel at the revocation hearing. In any case, including
42 when a superior court is called upon to evaluate the capacity of an
43 alleged violator in a [parole] revocation proceeding, where such person
44 is financially unable to retain counsel, the criminal court of the city
45 of New York, the county court or district court in the county where the
46 violation is alleged to have occurred or where the hearing is held,
47 shall assign counsel in accordance with the county or city plan for
48 representation placed in operation pursuant to article eighteen-B of the
49 county law. He or she shall have the right to confront and cross-examine
50 adverse witnesses, unless there is good cause for their non-attendance
51 as determined by the presiding officer; present witnesses and documenta-
52 ry evidence in defense of the charges; and present witnesses and docu-
53 mentary evidence relevant to the question whether reincarceration of the
54 alleged violator is appropriate.
55 (vi) At the revocation hearing, the charges shall be read and the
56 alleged violator shall be permitted to plead not guilty, guilty, guilty
A. 5493--B 11
1 with explanation or to stand mute. As to each charge, evidence shall be
2 introduced through witnesses and documents, if any, in support of that
3 charge. At the conclusion of each witness's direct testimony, he shall
4 be made available for cross-examination. If the alleged violator intends
5 to present a defense to the charges or to present evidence of mitigating
6 circumstances, the alleged violator shall do so after presentation of
7 all the evidence in support of a violation of presumptive release,
8 parole, conditional release or post-release supervision.
9 (vii) All persons giving evidence at the revocation hearing shall be
10 sworn before giving any testimony as provided by law.
11 (viii) At the conclusion of the hearing the presiding officer may
12 sustain any or all of the violation charges or may dismiss any or all
13 violation charges. He may sustain a violation charge only if the charge
14 is supported by [a preponderance of the evidence adduced] clear and
15 convincing evidence. Conduct that formed the basis of an arrest shall
16 not form a basis of a sustained parole violation if a court has adjudi-
17 cated the matter with an acquittal, adjournment in contemplation of
18 dismissal, or violation.
19 (ix) If the presiding officer is not satisfied that there is [a
20 preponderance of] clear and convincing evidence in support of the
21 violation, he shall dismiss the violation, cancel the delinquency and
22 restore the person to presumptive release, parole, conditional release
23 or post-release supervision.
24 (x) If the presiding officer is satisfied that there is [a preponder-
25 ance of] clear and convincing evidence that the alleged violator
26 violated one or more conditions of release in an important respect, he
27 or she shall so find. For each violation found, other than absconding,
28 the presiding officer shall direct that no earned time credits shall be
29 awarded for the thirty day period commencing from the date of the
30 sustained violation. For any absconding violation found, the presiding
31 officer shall direct that no earned time credits shall be awarded for
32 the entire time period during which a releasee was found to have
33 absconded from supervision.
34 (xi) Incarceration shall not be imposed for any tier 2 violation.
35 (xii) For each violation [so] found, the presiding officer may (A)
36 direct that the [presumptive releasee, parolee, conditional releasee or
37 person serving a period of post-release supervision] releasee be
38 restored to supervision; (B) as an alternative to reincarceration,
39 direct the [presumptive releasee, parolee, conditional releasee or
40 person serving a period of post-release supervision be placed in a
41 parole transition facility for a period not to exceed one hundred eighty
42 days and subsequent restoration to supervision] releasee receive re-en-
43 try services in the community from qualified nonprofit agencies; or (C)
44 [in the case of presumptive releasees, parolees or conditional releas-
45 ees,] direct the violator's reincarceration [and fix a date for consid-
46 eration by the board for re-release on presumptive release, or parole or
47 conditional release, as the case may be; or (D) in the case of persons
48 released to a period of post-release supervision, direct the violator's
49 reincarceration up to the balance of the remaining period of post-re-
50 lease supervision, not to exceed five years; provided, however, that a
51 defendant serving a term of post-release supervision for a conviction of
52 a felony sex offense defined in section 70.80 of the penal law may be
53 subject to a further period of imprisonment up to the balance of the
54 remaining period of post-release supervision], subject to the following
55 limitations: (1) for absconding, which is defined as failing to notify
56 his or her community supervision officer of a change in residence will-
A. 5493--B 12
1 fully for the purpose of permanently avoiding supervision; failure to
2 make office or written reports as directed willfully for the purpose of
3 permanently avoiding supervision; and leaving the state of New York or
4 any other state to which the releasee is released or transferred, or any
5 area defined in writing by his parole officer, without permission, will-
6 fully for the purpose of permanently avoiding supervision, up to seven
7 days reincarceration may be imposed for the first violation, up to
8 fifteen days reincarceration may be imposed for the second violation,
9 and up to thirty days reincarceration may be imposed for the third or
10 any subsequent violation; (2) for all other tier 1 violations no period
11 of reincarceration may be imposed for the first and second substantiated
12 technical violations for which incarceration may be imposed; up to seven
13 days reincarceration may be imposed for the third substantiated techni-
14 cal violation for which incarceration may be imposed; up to fifteen days
15 reincarceration may be imposed for the fourth substantiated technical
16 violation for which incarceration may be imposed; up to thirty days
17 reincarceration may be imposed for the fifth and subsequent substanti-
18 ated technical violations for which incarceration may be imposed; and
19 (3) for non-technical violations, up to ninety days reincarceration may
20 be imposed. If a warrant was executed pursuant to subparagraph (iv) of
21 paragraph (a) of this subdivision and the person was detained pursuant
22 to such subparagraph pending preliminary or revocation hearings, any
23 period of reincarceration imposed pursuant to this paragraph shall be
24 counted from the date of the execution of the warrant. If a warrant was
25 executed pursuant to subparagraph (iv) of paragraph (a) of this subdivi-
26 sion but a criminal court released the person pending preliminary or
27 revocation hearings, any period of reincarceration imposed pursuant to
28 this paragraph shall be counted from the date of issuance of a determi-
29 nation after a final hearing that the person has violated one or more
30 conditions of community supervision, and the time between execution of
31 the warrant and release of the person pending preliminary or revocation
32 hearings shall count toward the period of reincarceration imposed pursu-
33 ant to this paragraph. If a releasee is committed to the custody of the
34 sheriff pursuant to article five hundred thirty of the criminal proce-
35 dure law, any time the person spent confined in jail shall count towards
36 any period of reincarceration imposed pursuant to this paragraph. In all
37 cases, the presiding officer shall impose the least restrictive reason-
38 able sanction. Any periods of reincarceration shall run concurrently if
39 more than one violation is adjudicated. If a period of reincarceration
40 is imposed pursuant to this paragraph, the releasee shall be released
41 from custody upon expiration of the period or the end of the releasee's
42 period of community supervision, whichever shall be sooner. For the
43 violator serving an indeterminate sentence who while re-incarcerated has
44 not been found by the department to have committed a serious discipli-
45 nary infraction, such violator shall be re-released on the date fixed at
46 the revocation hearing. For the violator serving an indeterminate
47 sentence who has been found by the department to have committed a seri-
48 ous disciplinary infraction while re-incarcerated, the department shall
49 refer the violator to the board for consideration for re-release to
50 community supervision. Upon such referral the board may waive the
51 personal interview between a member or members of the board and the
52 violator to determine the suitability for re-release when the board
53 directs that the violator be re-released upon expiration of the time
54 assessment. The board shall retain the authority to suspend the date
55 fixed for re-release based on the violator's commission of a serious
56 disciplinary infraction and shall in such case require a personal inter-
A. 5493--B 13
1 view be conducted within a reasonable time between a panel of members of
2 the board and the violator to determine suitability for re-release. If
3 an interview is required, the board shall notify the violator in advance
4 of the date and time of such interview in accordance with the rules and
5 regulations of the board.
6 [(xi)] (xiii) If the presiding officer sustains any violations, he
7 must prepare a written statement, to be made available to the alleged
8 violator and his counsel, indicating the evidence relied upon and the
9 reasons for revoking presumptive release, parole, conditional release or
10 post-release supervision, and for the disposition made.
11 [(xii)] (xiv) If at any time during a revocation proceeding the
12 alleged violator, his or her counsel, or an employee of the department
13 contends, or if it reasonably appears to the hearing officer, that the
14 alleged violator is an incapacitated person as that term is defined in
15 subdivision one of section 730.10 of the criminal procedure law and no
16 judicial determination has been made that the alleged violator is an
17 incapacitated person, the revocation proceeding shall be temporarily
18 stayed until the superior court determines whether or not the person is
19 fit to proceed. The matter shall be promptly referred to the superior
20 court for determination of the alleged violator's fitness to proceed in
21 a manner consistent with the provisions of article seven hundred thirty
22 of the criminal procedure law, provided however that the superior court
23 shall immediately appoint counsel for any unrepresented alleged violator
24 eligible for appointed counsel under subparagraph (v) of this paragraph
25 [(f) of subdivision three of section two hundred fifty-nine-i of this
26 chapter]. The court shall decide whether or not the alleged violator is
27 incapacitated within thirty days of the referral from the hearing offi-
28 cer. If the court determines that the alleged violator is not an inca-
29 pacitated person, the court shall order that the matter be returned to
30 the board of parole for continuation and disposition of the revocation
31 proceeding. If the court determines that the alleged violator is an
32 incapacitated person and if no felony charges are pending against the
33 alleged violator, the court shall issue a final order of observation
34 committing such person to the custody of the commissioner of mental
35 health or the commissioner of developmental disabilities for care and
36 treatment in an appropriate institution in a manner consistent with
37 subdivision one of section 730.40 of the criminal procedure law. If a
38 final order of observation has been issued pursuant to this section, the
39 hearing officer shall dismiss the violation charges and such dismissal
40 shall act as a bar to any further proceeding under this section against
41 the alleged violator for such violations. If felony criminal charges are
42 pending at any time against an alleged violator who has been referred to
43 superior court for a fitness evaluation but before a determination of
44 fitness has been made pursuant to this section, the court shall decide
45 whether or not the alleged violator is incapacitated pursuant to article
46 seven hundred thirty of the criminal procedure law and the revocation
47 proceeding shall be held in abeyance until such decision has been
48 reached. The hearing officer shall adopt the capacity finding of the
49 court and either terminate the revocation process if an order of obser-
50 vation has been made by the court or proceed with the revocation hearing
51 if the alleged violator has been found not to be an incapacitated
52 person.
53 § 7. Section 259-i of the executive law is amended by adding a new
54 subdivision 9 to read as follows:
55 9. The board shall promulgate rules and regulations to facilitate the
56 presence of nonprofit service providers able to offer relevant communi-
A. 5493--B 14
1 ty-based services to releasees at all preliminary and final revocation
2 hearings for the purpose of helping people subject to community super-
3 vision successfully complete such supervision and avoid future such
4 supervision, and to help ensure presiding officers impose the least
5 restrictive reasonable sanction for any violation of community super-
6 vision.
7 § 8. This act shall take effect on the first of April next succeeding
8 the date on which it shall have become a law; provided however the
9 department of corrections and community supervision shall have six
10 months from the effective date of this act to begin holding preliminary
11 revocation hearings required by the amendments to paragraph (c) of
12 subdivision 3 of section 259-i of the executive law made by section five
13 of this act, including establishing preliminary revocation hearing
14 facilities that are not at correctional facilities for people who are
15 not detained pending their hearings. Provided further, however, that the
16 board of parole shall have two months from the effective date of this
17 act to identify each releasee incarcerated for a sustained parole
18 violation and recalculate such releasee's sentence in accordance with
19 this act. If no incarceration may be imposed pursuant to subparagraph
20 (xi) of paragraph (f) of subdivision 3 of section 259-i of the executive
21 law, as added by section six of this act, the board shall immediately
22 restore the releasee to community supervision. If the releasee may be
23 incarcerated for the sustained violation the board shall fix a new date
24 for release pursuant to subparagraph (xii) of paragraph (f) of subdivi-
25 sion 3 of section 259-i of the executive law, as amended by section six
26 of this act. If such release date has passed, the board shall immediate-
27 ly restore the releasee to community supervision. Provided further,
28 however, the department of corrections and community supervision shall
29 have six months from the effective date of this act to set up the final
30 revocation hearing courtrooms that are not at correctional facilities
31 for people who are not detained pending their hearing pursuant to the
32 amendments to paragraph (f) of subdivision 3 of section 259-i of the
33 executive law as made by section six of this act. Effective immediate-
34 ly, the addition, amendment and/or repeal of any rule or regulation
35 necessary for the implementation of this act on its effective date are
36 authorized and directed to be made and completed on or before such
37 effective date.
