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S01144 Summary:

S01144 Actions:

S01144 Committee Votes:

S01144 Floor Votes:

S01144 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         1144--A
 
                               2021-2022 Regular Sessions
 
                    IN SENATE
 
                                     January 7, 2021
                                       ___________
 
        Introduced  by Sens. BENJAMIN, BAILEY, BIAGGI, BRESLIN, BRISPORT, BROUK,
          COMRIE,  COONEY,  GIANARIS,  GOUNARDES,  HARCKHAM,  HOYLMAN,  JACKSON,
          KAVANAGH,  KENNEDY,  KRUEGER, LIU, MAY, MAYER, MYRIE, PARKER, PERSAUD,
          RAMOS, RIVERA, SALAZAR, SANDERS, SEPULVEDA, SERRANO, STAVISKY --  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 and committed  to  the  Committee  on  Finance  --
          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  four
     2  new subdivisions 5, 6, 7, and 8 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 conduct that violates  a  condition
     8  of community supervision in an important respect, other than the commis-
     9  sion of a new felony or misdemeanor offense under the penal law.
    10    7. "Non-technical violation" means: (a) the commission of a new felony
    11  or  misdemeanor  offense;  or (b) conduct by a releasee who is serving a
    12  sentence for an offense defined in article  130  of  the  penal  law  or
    13  section  255.26  or  255.27  of  such  law,  and such conduct violated a
    14  specific condition reasonably related to such  offense  and  efforts  to
    15  protect the public from the commission of a repeat of such offense.
    16    8. "Absconding" means intentionally avoiding supervision by failing to
    17  maintain contact or communication with the releasee's assigned community
    18  supervision  officer  or  area  bureau  office  and to notify his or her
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04981-04-1
        S. 1144--A                          2
 
     1  assigned community supervision officer or area bureau office of a change
     2  in residence, and reasonable efforts by the  assigned  community  super-
     3  vision officer to re-engage the releasee have been unsuccessful.
     4    §  2.  Subdivision 3 of section 70.40 of the penal law, paragraphs (a)
     5  and (b) as amended by section 127-h of subpart B of part C of chapter 62
     6  of the laws of 2011 and paragraph (c) as amended by chapter 478  of  the
     7  laws  of  1973,  is  amended and a new subdivision 4 is added to read as
     8  follows:
     9    3. Delinquency. (a) When a person is  alleged  to  have  violated  the
    10  terms  of  presumptive  release  or  parole by absconding, and the state
    11  board of parole has declared such person to be delinquent, the  declara-
    12  tion of delinquency shall interrupt the person's sentence as of the date
    13  of  the  delinquency  and  such  interruption  shall  continue until the
    14  [return of the person to an institution under the  jurisdiction  of  the
    15  state  department  of  corrections and community supervision] releasee's
    16  appearance in response to a notice of  violation  or  the  date  of  the
    17  execution of a warrant, whichever is earlier.
    18    (b)  When a person is alleged to have violated the terms of his or her
    19  conditional release or post-release supervision by  absconding  and  has
    20  been  declared  delinquent  by the parole board or the local conditional
    21  release commission having supervision over such person, the  declaration
    22  of delinquency shall interrupt the period of supervision or post-release
    23  supervision  as  of  the  date  of  the  delinquency.  For a conditional
    24  release, such interruption shall  continue  until  the  [return  of  the
    25  person to the institution from which he or she was released or, if he or
    26  she was released from an institution under the jurisdiction of the state
    27  department  of  corrections and community supervision, to an institution
    28  under the jurisdiction of that department. Upon such return, the  person
    29  shall  resume  service  of his or her sentence] releasee's appearance in
    30  response to a notice of violation or the date  of  the  execution  of  a
    31  warrant,  whichever  is earlier.   For a person released to post-release
    32  supervision, the provisions of  section  70.45  of  this  article  shall
    33  apply.
    34    (c) Any time spent by a person in custody from the time of [delinquen-
    35  cy]  execution  of  a  warrant  pursuant to paragraph (a) of subdivision
    36  three of section two hundred fifty-nine-i of the executive  law  to  the
    37  time  service of the sentence resumes shall be credited against the term
    38  or maximum term of the interrupted sentence[, provided:
    39    (i) that such custody was due to an arrest or surrender based upon the
    40  delinquency; or
    41    (ii) that such custody arose from an arrest on  another  charge  which
    42  culminated in a dismissal or an acquittal; or
    43    (iii)  that  such custody arose from an arrest on another charge which
    44  culminated in a conviction, but in such case, if a sentence of imprison-
    45  ment was imposed, the credit allowed shall be limited to the portion  of
    46  the  time spent in custody that exceeds the period, term or maximum term
    47  of imprisonment imposed for such conviction].
    48    4. Earned time credits. (a) Any person  subject  to  community  super-
    49  vision  shall  be awarded earned time credits. The calculation of earned
    50  time credit periods shall begin on the releasee's first day of community
    51  supervision and shall be awarded after each completed thirty day  period
    52  in  compliance  with  the terms of their community supervision. Any such
    53  awarded earned time credits  shall  be  applied  against  such  person's
    54  unserved  portion  of the maximum term, aggregate maximum term or period
    55  of post-release supervision for any current sentence. Persons subject to
    56  a sentence with a maximum term of life imprisonment or  lifetime  super-
        S. 1144--A                          3
 
     1  vision  shall  not be eligible to receive earned time credits under this
     2  section.
     3    (b)  After a person has begun a period of community supervision pursu-
     4  ant to this section and section 70.45 of this article,  such  period  of
     5  community  supervision  shall be reduced by thirty days for every thirty
     6  days that such person does not violate a condition  of  and  remains  in
     7  compliance  with  all  conditions  of  his or her community supervision,
     8  provided, however, that the person is not subject to any sentence with a
     9  maximum term of life imprisonment or lifetime supervision. When a person
    10  is subject to  more  than  one  period  of  community  supervision,  the
    11  reduction  authorized in this subdivision shall be applied to every such
    12  period of parole or conditional release to which the person is subject.
    13    (c) Retroactive earned time  credits  shall  be  awarded  to  eligible
    14  persons  subject  to  community supervision at the time this legislation
    15  becomes effective, provided, however, that the maximum allowable  retro-
    16  active  earned  time  credit  awarded  shall  not exceed a period of two
    17  years. Retroactive earned time credits  shall  not  be  awarded  to  any
    18  releasee  serving  a  term  of  reincarceration  for  a sustained parole
    19  violation at the time of the effective date of the chapter of  the  laws
    20  of  two  thousand  twenty-one  that    added  this subdivision until the
    21  releasee is returned to community  supervision.  Persons  subject  to  a
    22  sentence  with  a  maximum  term of life imprisonment or lifetime super-
    23  vision shall not be eligible to receive retroactive earned time  credits
    24  under this section.
    25    (d)  If  a releasee's current period of community supervision has been
    26  interrupted by a period of reincarceration prior to the  effective  date
    27  of  the  chapter  of the laws of two thousand twenty-one that added this
    28  subdivision, no earned time credits shall be awarded for such period  of
    29  reincarceration.  The department shall calculate retroactive earned time
    30  credits within one year after the bill shall have become law  and  shall
    31  prioritize  earned time credit calculations for releasees whose terms of
    32  community supervision are due to terminate before June first, two  thou-
    33  sand twenty-two.
    34    (e)  Earned time credits may be withheld or revoked for the thirty-day
    35  period commencing from the date of violative behavior as sustained at  a
    36  final  revocation  hearing,  or  for  the period during which a releasee
    37  absconded from supervision, as sustained at a final revocation  hearing.
    38  Earned time credits may not be earned and shall be suspended: (i) during
    39  a  period  of  reincarceration imposed for any sustained violation; (ii)
    40  during the period in which the individual has absconded; or (iii)  pend-
    41  ing the outcome of a preliminary or final revocation hearing. If, at the
    42  preliminary  hearing,  there  is  no  finding  by a preponderance of the
    43  evidence of   a violation of a condition  of  release  in  an  important
    44  respect or a violation is not sustained at the final revocation hearing,
    45  then  the individual shall be deemed to have been in compliance with the
    46  terms of release and shall be awarded earned time credits from the peri-
    47  od in which the accrual was suspended. If a violation is sustained,  the
    48  calculation  of  an  earned  time  credit period shall recommence on the
    49  thirty-first day after the date of the violative  behavior  or,  if  the
    50  sustained violation or conviction resulted in a term of reincarceration,
    51  on  the day the releasee is restored to community supervision, whichever
    52  is later.
    53    (f) At least every one hundred eighty days  from the first date  of  a
    54  person's  release to community supervision, and every one hundred eighty
    55  days thereafter, the department of corrections and community supervision
    56  shall provide each person on community supervision a  report  indicating
        S. 1144--A                          4
 
     1  the  total  earned  time credits received, the total earned time credits
     2  received in the prior one hundred eighty days,  the  total  earned  time
     3  credits  withheld,  the  total earned time credits withheld in the prior
     4  one  hundred  eighty  days,  the  total  amount of time reduced from the
     5  person's sentence, and the person's earliest release date based  on  the
     6  amount of earned time credits received. The department shall provide the
     7  report in written or electronic form.
     8    § 3. Paragraph (d) of subdivision 5 of section 70.45 of the penal law,
     9  as  amended by section 127-j of subpart B of part C of chapter 62 of the
    10  laws of 2011, is amended to read as follows:
    11    (d) When a person is alleged to have violated a condition of  post-re-
    12  lease  supervision  by  absconding and the department of corrections and
    13  community supervision has declared such person to be delinquent: (i) the
    14  declaration of delinquency shall interrupt the  period  of  post-release
    15  supervision;  (ii)  such interruption shall continue until the person is
    16  restored to post-release supervision; (iii) if the person is restored to
    17  post-release supervision without being returned  to  the  department  of
    18  corrections  and  community  supervision, any time spent in custody from
    19  the date of delinquency until restoration  to  post-release  supervision
    20  shall  first be credited to the maximum or aggregate maximum term of the
    21  sentence or sentences of imprisonment, but only to the extent authorized
    22  by subdivision three of section 70.40 of this article. Any time spent in
    23  custody solely pursuant to such  delinquency  after  completion  of  the
    24  maximum or aggregate maximum term of the sentence or sentences of impri-
    25  sonment  shall be credited to the period of post-release supervision, if
    26  any; and (iv) if the person is ordered returned  to  the  department  of
    27  corrections  and  community supervision, the person shall be required to
    28  serve the time  assessment  before  being  re-released  to  post-release
    29  supervision.  [In the event the balance of the remaining period of post-
    30  release supervision is six months or less, such time assessment  may  be
    31  up to six months unless a longer period is authorized pursuant to subdi-
    32  vision  one  of this section. The] If the person is detained pursuant to
    33  paragraph (a) of subdivision three of section two  hundred  fifty-nine-i
    34  of  the executive law pending a preliminary or final revocation hearing,
    35  the time assessment imposed following such hearing shall  commence  upon
    36  the  execution  of  the  warrant.  If a warrant was executed pursuant to
    37  paragraph (a) of subdivision three of section two  hundred  fifty-nine-i
    38  of  the executive law but a court released the person pending a prelimi-
    39  nary or final revocation hearing, the  time  assessment  shall  commence
    40  upon  the  issuance  of  a  determination after a final hearing that the
    41  person has violated one or more conditions of community  supervision  in
    42  an  important  respect,  and  shall  include  the  time  period  between
    43  execution of the warrant and release of the person pending a preliminary
    44  or final revocation hearing. If a releasee is committed to  the  custody
    45  of  the  sheriff pursuant to article five hundred thirty of the criminal
    46  procedure law, the time assessment, if any, shall include any  time  the
    47  releasee  spent  in  such  custody.  If a notice of violation was issued
    48  pursuant to subdivision three of section two hundred fifty-nine-i of the
    49  executive law, the time assessment shall commence upon the issuance of a
    50  determination after a final hearing that the person has violated one  or
    51  more  conditions  of  supervision.  While  serving  such assessment, the
    52  person shall not receive any good behavior allowance pursuant to section
    53  eight hundred three of the correction law.   Any time spent  in  custody
    54  from  the  date  of  delinquency  until  return  to  the  department  of
    55  corrections and community supervision shall first  be  credited  to  the
    56  maximum or aggregate maximum term of the sentence or sentences of impri-
        S. 1144--A                          5
 
     1  sonment,  but  only  to  the  extent  authorized by subdivision three of
     2  section 70.40 of this article. The maximum or aggregate maximum term  of
     3  the  sentence or sentences of imprisonment shall run while the person is
     4  serving  such  time  assessment  in  the  custody  of  the department of
     5  corrections and community supervision. Any time spent in custody  solely
     6  pursuant  to  such delinquency after completion of the maximum or aggre-
     7  gate maximum term of the sentence or sentences of imprisonment shall  be
     8  credited to the period of post-release supervision, if any.
     9    §  4.  Subparagraph  (i)  of paragraph (a) of subdivision 3 of section
    10  259-i of the executive law, as amended by chapter 545  of  the  laws  of
    11  2015,  is  amended and five new subparagraphs (iv), (v), (vi), (vii) and
    12  (viii) are added to read as follows:
    13    (i) If the parole officer having charge of a  presumptively  released,
    14  paroled  or  conditionally released person or a person released to post-
    15  release supervision or a person received under the uniform act for  out-
    16  of-state  parolee  supervision shall have [reasonable] probable cause to
    17  believe that such person has [lapsed into criminal ways or  company,  or
    18  has  violated one or more conditions of his presumptive release, parole,
    19  conditional release or post-release supervision] committed  a  technical
    20  violation, such parole officer shall report such fact to a member of the
    21  board,  or to any officer of the department designated by the board, and
    22  thereupon a written notice of violation may be issued according  to  the
    23  terms  of  subparagraph  (iii) of paragraph (c) of this subdivision, and
    24  shall be promptly served upon such person. If the releasee has failed to
    25  appear as directed in response to a notice of violation and  has  failed
    26  to  appear  voluntarily within forty-eight hours after such time and the
    27  person would be subject to incarceration pursuant to subparagraph  (xii)
    28  of  paragraph  (f) of this subdivision should the violation be sustained
    29  at a final revocation hearing, a warrant may be issued for the  retaking
    30  of  such  person  and for his temporary detention pending a recognizance
    31  hearing in accordance with the rules of the board.  If  the  person  has
    32  intentionally  failed  to  appear as directed in response to a notice of
    33  violation and has intentionally  failed  to  appear  voluntarily  within
    34  forty-eight hours after such time and the person would not be subject to
    35  incarceration  pursuant  to paragraph (f) of this subdivision should the
    36  violation be sustained at a final revocation hearing, no  warrant  shall
    37  issue  and the violation shall be deemed sustained. Notice of that deci-
    38  sion shall be promptly served upon the releasee. In  such  case,  within
    39  one month of the date the notice of decision was served upon the releas-
    40  ee,  the  releasee  may move to vacate such a sustained violation if the
    41  releasee can show by a preponderance of the evidence that the notice  of
    42  violation was not properly served or the failure to appear was otherwise
    43  excusable.  If the parole officer having charge of a person under commu-
    44  nity supervision shall have probable cause to believe that  such  person
    45  has  committed  a  non-technical  violation,  such  parole officer shall
    46  report such fact to a member of the board, or  to  any  officer  of  the
    47  department  designated by the board, and thereupon a notice of violation
    48  may be issued or a warrant may be issued for the retaking of such person
    49  and for his temporary detention in accordance  with  the  rules  of  the
    50  board  [unless  such person]. However, if a releasee has been determined
    51  to be currently unfit to proceed to trial or is currently subject  to  a
    52  temporary  or  final  order  of  observation  pursuant  to article seven
    53  hundred thirty of the criminal procedure law, [in which case] no  notice
    54  of  violation  or  warrant  shall be issued. The issuance of a notice of
    55  violation, service of a notice of violation,  service  of  a  notice  of
    56  decision, and the retaking and detention of any [such] person for whom a
        S. 1144--A                          6
 
     1  warrant  has  been  issued  pursuant to this subparagraph may be further
     2  regulated by rules and regulations of the  department  not  inconsistent
     3  with  this  article.  A  warrant  issued  pursuant to this section shall
     4  constitute sufficient authority to the superintendent or other person in
     5  charge  of any jail, penitentiary, lockup or detention pen to whom it is
     6  delivered to hold in temporary  detention  the  person  named  therein[;
     7  except  that  a  warrant  issued  with  respect to a person who has been
     8  released on medical parole pursuant to section two hundred  fifty-nine-r
     9  of  this article and whose parole is being revoked pursuant to paragraph
    10  (h) of subdivision four of such section shall constitute  authority  for
    11  the  immediate  placement  of  the parolee only into imprisonment in the
    12  custody of the department to hold  in  temporary  detention.  A  warrant
    13  issued pursuant to this section shall also constitute sufficient author-
    14  ity  to  the  person in charge of a drug treatment campus, as defined in
    15  subdivision twenty of section two of the correction  law,  to  hold  the
    16  person  named therein, in accordance with the procedural requirements of
    17  this section, for a period of at least ninety days to complete an inten-
    18  sive drug treatment program mandated by the board as an  alternative  to
    19  presumptive  release or parole or conditional release revocation, or the
    20  revocation of post-release supervision, and shall also constitute suffi-
    21  cient authority for return of the person named therein to local  custody
    22  to hold in temporary detention for further revocation proceedings in the
    23  event  said  person  does  not  successfully complete the intensive drug
    24  treatment program. The board's rules shall provide for  cancellation  of
    25  delinquency   and   restoration   to  supervision  upon  the  successful
    26  completion of the program] pending a recognizance  hearing  pursuant  to
    27  subparagraph  (iv)  of  this paragraph.   It shall not be a condition of
    28  parole nor may a notice of violation or a warrant be  issued  due  to  a
    29  releasee  being  in  the  company of or fraternizing with any person the
    30  releasee knows has a criminal record or knows  has  been  adjudicated  a
    31  youthful  offender  or due to conduct related to cannabis that is lawful
    32  pursuant to the laws of New York.
    33    (iv) Notwithstanding the provisions of any other law,  upon  execution
    34  of a warrant issued pursuant to this section for any releasee alleged to
    35  have  committed  a  violation  of a condition of release in an important
    36  respect in the city of New York, the authorized  officer  shall  present
    37  the  releasee  to  the  criminal  court  of  the city of New York or the
    38  supreme court criminal term in the county where the violation is alleged
    39  to have been committed for a  recognizance  hearing  within  twenty-four
    40  hours  of  the  execution  of the warrant. If no such court of record is
    41  available to conduct any business of any type within  twenty-four  hours
    42  of the execution of the warrant, the recognizance hearing shall commence
    43  on the next day such a court in the jurisdiction is available to conduct
    44  any  business  of any type. For any releasee alleged to have committed a
    45  violation  of a condition of release in an important respect outside  of
    46  the  city of New York, the authorized officer shall present the releasee
    47  to a county court, district court or city court in the  county  or  city
    48  where the violation is alleged to have been committed for a recognizance
    49  hearing.    If no such court of record is available to conduct any busi-
    50  ness of any type within  twenty-four  hours  of  the  execution  of  the
    51  warrant,  the  recognizance  hearing shall commence on the next day such
    52  court is available to conduct any business of any type.
    53    (v) At a recognizance hearing, the department shall have the burden of
    54  demonstrating to the court that the executed warrant was properly issued
    55  and served pursuant to this section. The department shall be responsible
    56  for presenting information to the court regarding the alleged  violation
        S. 1144--A                          7
 
     1  and   the  releasee's  community  supervision  record.  If  the  alleged
     2  violation is the subject of a pending criminal prosecution, the  depart-
     3  ment shall coordinate with the office of the district attorney to ensure
     4  information regarding the alleged violation and the releasee's community
     5  supervision record is presented to the court. At a recognizance hearing,
     6  the  department shall have the burden of demonstrating to the court that
     7  the executed warrant was properly issued and  served  pursuant  to  this
     8  section.  The department shall be responsible for presenting information
     9  to the court regarding the alleged violation and the releasee's communi-
    10  ty supervision record. If the alleged violation  is  the  subject  of  a
    11  pending  criminal  prosecution, the department shall coordinate with the
    12  office of the district attorney  to  ensure  information  regarding  the
    13  alleged  violation  and  the  releasee's community supervision record is
    14  presented to the court.
    15    (vi) At a recognizance hearing, the court shall consider all available
    16  evidence of the releasee's employment, family and community ties includ-
    17  ing length of residency in the community,  history  of  reporting  in  a
    18  timely  fashion to a parole or supervisory officer, and other indicators
    19  of stability. At the conclusion of the recognizance hearing,  the  court
    20  may  order  that the releasee be detained pending a preliminary or final
    21  revocation hearing only upon  a  finding  that  the  releasee  currently
    22  presents  a  substantial  risk  of  willfully  failing  to appear at the
    23  preliminary or final revocation hearings and that no non-monetary condi-
    24  tion or combination of  conditions  in  the  community  will  reasonably
    25  assure  the releasee's appearance at the preliminary or final revocation
    26  hearing. Otherwise, the court shall release the releasee  on  the  least
    27  restrictive  non-monetary  conditions  that  will  reasonably assure the
    28  releasee's appearance at subsequent preliminary or revocation  hearings,
    29  with  a presumption of release on recognizance.  The court shall explain
    30  its decision on the record or in writing. If non-monetary conditions  of
    31  release  are  imposed, the releasee shall not be required to pay for any
    32  part of the cost of such conditions.
    33    (vii) The alleged violator shall have a  right  to  representation  by
    34  counsel at the recognizance hearing. In any case, including when a court
    35  is  called  upon  to  evaluate  the  capacity  of an alleged violator to
    36  participate in a recognizance proceeding, where such  person  is  finan-
    37  cially  unable  to  retain counsel, the court in which any criminal case
    38  against the individual is pending, or if there is no such case  pending,
    39  the criminal court of the city of New York, the county court or district
    40  court  in  the county where the violation is alleged to have occurred or
    41  where the hearing is to be held, shall assign counsel in accordance with
    42  the county or city plan for representation placed in operation  pursuant
    43  to article eighteen-B of the county law.
    44    (viii)  If  the violation charge involves   conduct that would consti-
    45  tute a new felony or misdemeanor offense, such recognizance hearing  may
    46  be  held  at  the  same  time  as  a proceeding pursuant to article five
    47  hundred thirty of the criminal procedure law for any warrants issued  by
    48  the  department  prior to such proceeding. If at the proceeding pursuant
    49  to article five hundred thirty of the criminal procedure law  the  court
    50  imposes bail on the new alleged criminal offense or commits the releasee
    51  to the custody of the sheriff pursuant to article five hundred thirty of
    52  the  criminal  procedure  law and the releasee secures release by paying
    53  bail or under non-monetary conditions or by operation of law,  then  the
    54  releasee  shall  not  be  detained  further  based solely on the warrant
    55  issued by the department. If the department issues a warrant for a  non-
    56  technical  violation  for alleged criminal conduct that has already been
        S. 1144--A                          8
 
     1  the subject of a court's order pursuant to article five  hundred  thirty
     2  of  the  criminal  procedure  law,  then  within  twenty-four  hours  of
     3  execution of the warrant the releasee shall be provided  a  recognizance
     4  hearing  pursuant  to  this  subparagraph, provided, however, that if no
     5  court as defined in subparagraph (iv) of this paragraph is available  to
     6  conduct  any  business  of  any  type  within  twenty-four  hours of the
     7  execution of the warrant, then the recognizance hearing  shall  commence
     8  on  the  next day such court is available to conduct any business of any
     9  type.
    10    § 5. Subparagraphs (i), (ii), (iii)  and  (iv)  of  paragraph  (c)  of
    11  subdivision  3  of section 259-i of the executive law, subparagraphs (i)
    12  and (ii) as amended by section 11 of part E of chapter 62 of the laws of
    13  2003, and subparagraphs (iii) and (iv) as amended by section 1 of part E
    14  of chapter 56 of the laws of 2007, are amended and two new subparagraphs
    15  (ix) and (x) are added to read as follows:
    16    (i) [Within fifteen days after the warrant for retaking and  temporary
    17  detention has been executed, unless the releasee has been convicted of a
    18  new crime committed while under presumptive release, parole, conditional
    19  release  or  post-release  supervision, the board of parole shall afford
    20  the alleged presumptive release, parole, conditional release or post-re-
    21  lease supervision violator a preliminary  revocation  hearing  before  a
    22  hearing  officer designated by the board of parole. Such hearing officer
    23  shall not have had any prior supervisory involvement  over  the  alleged
    24  violator]  (A) For any alleged technical violation for which a notice of
    25  violation was issued or a person was released on  recognizance  pursuant
    26  to  subparagraph  (iv) of paragraph (a) of this subdivision, the depart-
    27  ment shall within ten days of the issuance of the notice of violation or
    28  the order of release on recognizance afford  the  person  a  preliminary
    29  revocation  hearing  before  a hearing officer designated by the depart-
    30  ment. Such hearing officer shall not  have  had  any  prior  supervisory
    31  involvement over the alleged violator. Such hearing shall not be held at
    32  a  correctional facility, detention center or local correctional facili-
    33  ty.  The hearing shall be scheduled and held in a courthouse, in cooper-
    34  ation with the chief administrator of the courts and the chief  adminis-
    35  trator's  designees, provided, however, that if such a courthouse is not
    36  reasonably available for such hearing, the department  may  designate  a
    37  suitable  office  or  other  similar facility that is not a correctional
    38  facility, detention center or local correctional facility for such hear-
    39  ing.
    40    (B) For any alleged violation  for  which  a  court  issued  an  order
    41  detaining  a  person,  within five days of the issuance of such order to
    42  detain or execution of a warrant for the violation, the department shall
    43  afford such person a preliminary hearing before a hearing officer desig-
    44  nated by the department. Such hearing officer shall  not  have  had  any
    45  prior  supervisory  involvement  over  the  alleged  violator.   For any
    46  alleged violation for which a person was released on recognizance, with-
    47  in ten days of the issuance of the order of release on recognizance, the
    48  department shall afford such person a preliminary revocation hearing.
    49    [(ii) The preliminary presumptive release, parole, conditional release
    50  or post-release supervision revocation hearing shall be conducted at  an
    51  appropriate  correctional facility, or such other place reasonably close
    52  to the area in which the alleged violation occurred  as  the  board  may
    53  designate.]  (ii)  The  preliminary  presumptive release, parole, condi-
    54  tional release or post-release supervision revocation hearing  shall  be
    55  scheduled and held in a courthouse, in cooperation with the chief admin-
    56  istrator   of  the  courts  and  the  chief  administrator's  designees,
        S. 1144--A                          9
 
     1  provided, however, that if such a courthouse is not reasonably available
     2  for such hearing, the department may  designate  a  suitable  office  or
     3  other  similar  facility  that is not a correctional facility, detention
     4  center or local correctional facility for such hearing.
     5    (iii)  The alleged violator shall, [within three days of the execution
     6  of the warrant] at the time a notice of violation is issued  or  at  the
     7  time  of  a  recognizance  hearing, be given written notice of the time,
     8  place and purpose of the  preliminary  hearing  [unless  he  or  she  is
     9  detained  pursuant  to  the provisions of subparagraph (iv) of paragraph
    10  (a) of this subdivision. In those instances, the alleged  violator  will
    11  be  given  written  notice of the time, place and purpose of the hearing
    12  within five days of the execution of the warrant], or if no  preliminary
    13  hearing  is  required  pursuant to this section, of the final revocation
    14  hearing.   The  notice  shall  state  what  conditions  of  [presumptive
    15  release,  parole,  conditional release or post-release] community super-
    16  vision are alleged to have been violated, and in what manner; that  such
    17  person  shall  have  the  right  to  appear  and speak in his or her own
    18  behalf; that he or she shall have the right  to  introduce  letters  and
    19  documents;  that  he  or she may present witnesses who can give relevant
    20  information to the hearing officer; that he or  she  has  the  right  to
    21  confront  the  witnesses against him or her; that such person shall have
    22  the right to representation by counsel  at  any  preliminary  and  final
    23  revocation  hearings; and the name and contact details for institutional
    24  defenders or assigned private counsel, as applicable. Adverse  witnesses
    25  may  be  compelled to attend the preliminary hearing unless the prisoner
    26  has been convicted of a new crime while on  supervision  or  unless  the
    27  hearing  officer  finds  good  cause for their non-attendance. As far as
    28  practicable or feasible, any additional documents having been  collected
    29  or prepared that [support] are relevant to the charge shall be delivered
    30  to the alleged violator.
    31    (iv)  [The  preliminary  hearing  shall  be scheduled to take place no
    32  later than fifteen days from the date of execution of the warrant.]  The
    33  standard of proof at the preliminary hearing shall be [probable cause] a
    34  preponderance of the evidence to believe that the [presumptive releasee,
    35  parolee,  conditional releasee or person under post-release supervision]
    36  releasee has violated one or more conditions of his or her  [presumptive
    37  release,  parole,  conditional release or post-release] community super-
    38  vision in an important respect. Proof of conviction of a crime committed
    39  while under supervision shall constitute [probable  cause]  prima  facie
    40  evidence  of a violation of a condition of community supervision for the
    41  purposes of this [section] subparagraph.
    42    (ix) If the hearing officer finds by a preponderance of  the  evidence
    43  that such person has violated one or more conditions of community super-
    44  vision in an important respect, the releasee shall, at the conclusion of
    45  the  preliminary  hearing be given written notice of the time, place and
    46  purpose of the final revocation hearing. The  notice  shall  state  what
    47  conditions  of  community supervision are alleged to have been violated,
    48  when, where and in what manner; that such person shall have the right to
    49  representation by counsel at any final  revocation  hearing;  that  such
    50  person  shall  have  the  right  to  appear  and speak in his or her own
    51  behalf; that he or she shall have the right  to  introduce  letters  and
    52  documents;  that  he  or she may present witnesses who can give relevant
    53  information to the hearing officer; that he or  she  has  the  right  to
    54  confront  the  witnesses  against  him  or her; and the name and contact
    55  details for institutional defenders  or  assigned  private  counsel,  as
    56  applicable.  Any  additional documents having been collected or prepared
        S. 1144--A                         10
 
     1  that support the charges shall be delivered  to  the  releasee.  Adverse
     2  witnesses may be compelled to attend the final revocation hearing unless
     3  the  prisoner  has been convicted of a new crime while on supervision or
     4  unless the hearing officer finds good cause for their non-attendance.
     5    (x) The alleged violator shall have a right to representation by coun-
     6  sel  at  the preliminary hearing. In any case, including when a court is
     7  called upon to evaluate the capacity of an alleged violator in a prelim-
     8  inary proceeding, where such person  is  financially  unable  to  retain
     9  counsel, the criminal court of the city of New York, the county court or
    10  district  court  in  the  county  where the violation is alleged to have
    11  occurred or where the hearing is held, shall assign counsel  in  accord-
    12  ance with the county or city plan for representation placed in operation
    13  pursuant to article eighteen-B of the county law.
    14    §  6. Paragraph (f) of subdivision 3 of section 259-i of the executive
    15  law, as amended by section 11 of part E of chapter 62  of  the  laws  of
    16  2003,  subparagraph  (v)  as  amended and subparagraph (xii) as added by
    17  chapter 545 of the laws of 2015, subparagraph (x) as amended by  section
    18  38-f-1  of  subpart  A  of  part C of chapter 62 of the laws of 2011 and
    19  subparagraph (xi) as amended by chapter 103 of  the  laws  of  2021,  is
    20  amended to read as follows:
    21    (f)  (i)  [Revocation  hearings  shall  be scheduled to be held within
    22  ninety days of  the  probable  cause  determination]  For  any  releasee
    23  charged with a violation at a preliminary hearing:
    24    (A) If a court issued an order detaining a person after a finding by a
    25  preponderance  of  the  evidence  that such person committed a violation
    26  then within thirty days  of  the  finding  by  a  preponderance  of  the
    27  evidence  determination at the preliminary hearing, the department shall
    28  afford such person a final revocation hearing in person before a hearing
    29  officer designated by the department. Such  hearing  officer  shall  not
    30  have had any prior supervisory involvement over the alleged violator.
    31    (B)  (1)  If  a  notice  of  violation  was  issued or such person was
    32  released on recognizance the department shall within forty-five days  of
    33  the  issuance  of  the  notice  of  violation or the order of release on
    34  recognizance afford the person a final revocation hearing before a hear-
    35  ing officer designated by the department. Such hearing officer shall not
    36  have had any prior supervisory involvement over the alleged violator.
    37    (2) The final revocation hearing shall not be held at  a  correctional
    38  facility, detention center or local correctional facility.  Such hearing
    39  shall  be  scheduled  and  held in a courthouse, in cooperation with the
    40  chief administrator of the courts and the chief  administrator's  desig-
    41  nees,  provided,  however,  that  if such a courthouse is not reasonably
    42  available for such hearing, the  department  may  designate  a  suitable
    43  office  or  other  similar facility that is not a correctional facility,
    44  detention center or local correctional facility for such hearing.
    45    (3) The department shall have six months from the date of  the  effec-
    46  tive  date  of  the  chapter of the laws of two thousand twenty-one that
    47  amended this paragraph to begin  to  hold  such  hearings  at  allowable
    48  locations.
    49    (C)  However,  if  an alleged violator requests and receives any post-
    50  ponement of his or her revocation hearing, or consents  to  a  postponed
    51  revocation proceeding initiated by the board, or if an alleged violator,
    52  by   his   actions  otherwise  precludes  the  prompt  conduct  of  such
    53  proceedings, the time limit may be extended.
    54    (ii) The revocation hearing shall be conducted by a presiding  officer
    55  who  may  be  a  member  or a hearing officer designated by the board in
    56  accordance with rules of the board.
        S. 1144--A                         11
 
     1    (iii) Both the alleged violator and an attorney who has filed a notice
     2  of appearance on his or her behalf in accordance with the rules  of  the
     3  board  of  parole  shall  be given written notice of the date, place and
     4  time of the hearing [as soon as possible  but  at  least  fourteen  days
     5  prior  to the scheduled date] pursuant to subparagraph (ix) of paragraph
     6  (c) of this subdivision.
     7    (iv) The alleged violator shall be given written notice of the  rights
     8  enumerated in subparagraph (iii) of paragraph (c) of this subdivision as
     9  well  as  of his or her right to present mitigating evidence relevant to
    10  restoration to presumptive release, parole, conditional release or post-
    11  release supervision and his or her right to counsel.
    12    (v) The alleged violator shall [be permitted] have a right  to  repre-
    13  sentation  by  counsel at the revocation hearing. In any case, including
    14  when a superior court is called upon to  evaluate  the  capacity  of  an
    15  alleged  violator in a [parole] revocation proceeding, where such person
    16  is financially unable to retain counsel, the criminal court of the  city
    17  of  New York, the county court or district court in the county where the
    18  violation is alleged to have occurred or  where  the  hearing  is  held,
    19  shall  assign  counsel  in  accordance  with the county or city plan for
    20  representation placed in operation pursuant to article eighteen-B of the
    21  county law. He or she shall have the right to confront and cross-examine
    22  adverse witnesses, unless there is good cause for  their  non-attendance
    23  as determined by the presiding officer; present witnesses and documenta-
    24  ry  evidence  in defense of the charges; and present witnesses and docu-
    25  mentary evidence relevant to the question whether reincarceration of the
    26  alleged violator is appropriate.
    27    (vi) At the revocation hearing, the charges  shall  be  read  and  the
    28  alleged  violator shall be permitted to plead not guilty, guilty, guilty
    29  with explanation or to stand mute. As to each charge, evidence shall  be
    30  introduced  through  witnesses and documents, if any, in support of that
    31  charge. At the conclusion of each witness's direct testimony, he or  she
    32  shall  be  made available for cross-examination. If the alleged violator
    33  intends to present a defense to the charges or to  present  evidence  of
    34  mitigating circumstances, the alleged violator shall do so after presen-
    35  tation  of  all  the  evidence  in support of a violation of presumptive
    36  release, parole, conditional release or post-release supervision.
    37    (vii) All persons giving evidence at the revocation hearing  shall  be
    38  sworn before giving any testimony as provided by law.
    39    (viii)  At  the  conclusion  of  the hearing the presiding officer may
    40  sustain any or all of the violation charges or may dismiss  any  or  all
    41  violation  charges. He or she may sustain a violation charge only if the
    42  charge is supported by [a preponderance of the evidence  adduced]  clear
    43  and  convincing  evidence.  Conduct  that  formed the basis of an arrest
    44  shall not form a basis of a sustained parole violation if  a  court  has
    45  adjudicated  the  matter with an acquittal, adjournment in contemplation
    46  of dismissal, or violation.
    47    (ix) If the presiding officer  is  not  satisfied  that  there  is  [a
    48  preponderance  of]  clear  and  convincing  evidence  in  support of the
    49  violation, he or she shall dismiss the violation, cancel the delinquency
    50  and restore the  person  to  presumptive  release,  parole,  conditional
    51  release or post-release supervision.
    52    (x)  If the presiding officer is satisfied that there is [a preponder-
    53  ance of]  clear  and  convincing  evidence  that  the  alleged  violator
    54  violated  one  or more conditions of release in an important respect, he
    55  or she shall so find.    For  each  sustained  technical  violation  the
    56  presiding  officer  shall  direct  that  no earned time credits shall be
        S. 1144--A                         12
 
     1  awarded for the thirty day  period  commencing  from  the  date  of  the
     2  sustained  violation.  For any absconding violation found, the presiding
     3  officer shall direct that no earned time credits shall  be  awarded  for
     4  the  entire  time  period  during  which  a  releasee  was found to have
     5  absconded from supervision.
     6    (xi) Incarceration shall not be imposed for any  technical  violation,
     7  except as provided in subparagraph (xii) of this paragraph.
     8    (xii)  For  each  violation  [so] found, the presiding officer may (A)
     9  direct that the [presumptive releasee, parolee, conditional releasee  or
    10  person  serving  a  period  of  post-release  supervision]  releasee  be
    11  restored to supervision;  (B)  as  an  alternative  to  reincarceration,
    12  direct  the  [presumptive  releasee,  parolee,  conditional  releasee or
    13  person serving a period of  post-release  supervision  be  placed  in  a
    14  parole transition facility for a period not to exceed one hundred eighty
    15  days  and subsequent restoration to supervision] releasee receive re-en-
    16  try services in the community from qualified nonprofit agencies; or  (C)
    17  [in  the  case of presumptive releasees, parolees or conditional releas-
    18  ees,]  direct  the  violator's  reincarceration  and  for  non-technical
    19  violations  fix  a date for consideration by the board for re-release on
    20  presumptive release, or parole or conditional release, as the  case  may
    21  be;  or (D) for non-technical violations in the case of persons released
    22  to a period of post-release supervision, direct the violator's  reincar-
    23  ceration  up  to  the  balance  of  the remaining period of post-release
    24  supervision, not to exceed five years; provided, however, that a defend-
    25  ant serving a term of post-release supervision for  a  conviction  of  a
    26  felony  sex  offense  defined  in  section 70.80 of the penal law may be
    27  subject to a further period of imprisonment up to  the  balance  of  the
    28  remaining  period of post-release supervision, shall apply for technical
    29  violations; and the following limitations:
    30    (1) Absconding.  For absconding up to seven days  reincarceration  may
    31  be  imposed  for the first violation, up to fifteen days reincarceration
    32  may be imposed for the second violation, and up to thirty days  reincar-
    33  ceration may be imposed for the third or any subsequent violation;
    34    (2)  Sanctions for certain technical violations. Reincarceration shall
    35  not be imposed  for a sustained technical violation that  involves:  (a)
    36  violating  curfew;  (b) alcohol use, provided however that incarceration
    37  is permissible for alcohol use if the person  is  subject  to  community
    38  supervision due to a conviction for driving under the influence of alco-
    39  hol;  (c)  drug  use, provided, however incarceration is permissible for
    40  drug use if the person is subject to  community  supervision  due  to  a
    41  conviction  for  driving  under  the  influence of drugs; (d) failing to
    42  notify parole officer of a change in employment or program  status;  (e)
    43  failing  to pay surcharges and fees; (f) obtaining a driver's license or
    44  driving a car with a valid driver's license, provided however incarcera-
    45  tion is permissible if either action is  explicitly  prohibited  by  the
    46  person's conviction; (g) failing to notify community supervision officer
    47  of contact with any law enforcement agency, provided however, incarcera-
    48  tion is permissible if the person intended to hide illegal behavior; (h)
    49  failing  to  obey other special conditions, provided however that incar-
    50  ceration is permissible if the failure cannot be addressed in the commu-
    51  nity and all reasonable community-based means  to  address  the  failure
    52  have been exhausted; and
    53    (3)  Sanctions for all other technical violations. For all other tech-
    54  nical violations, no period of reincarceration may be  imposed  for  the
    55  first and second substantiated technical violations for which incarcera-
    56  tion may be imposed; up to seven days reincarceration may be imposed for
        S. 1144--A                         13
 
     1  the  third substantiated technical violation for which incarceration may
     2  be imposed; up to fifteen days reincarceration may be  imposed  for  the
     3  fourth  substantiated technical violation for which incarceration may be
     4  imposed;  up to thirty days reincarceration may be imposed for the fifth
     5  and subsequent substantiated technical violations for  which  incarcera-
     6  tion may be imposed.
     7    (xiii)  If  a  warrant  was  executed pursuant to subparagraph (iv) of
     8  paragraph (a) of this subdivision by a  criminal  court  and  the  court
     9  released  the  person pending a preliminary or final revocation hearing,
    10  any period of reincarceration imposed pursuant to this  paragraph  shall
    11  be  counted  from  the date of issuance of a determination after a final
    12  revocation hearing that the person has violated one or  more  conditions
    13  of  community supervision, and the time between execution of the warrant
    14  and release of the person pending  a  preliminary  or  final  revocation
    15  hearing  shall count toward any period of reincarceration imposed pursu-
    16  ant to this paragraph. If a releasee is committed to the custody of  the
    17  sheriff  pursuant  to article five hundred thirty of the criminal proce-
    18  dure law, any time the person spent confined in a correctional  facility
    19  or  local  correctional  facility shall be credited toward any period of
    20  reincarceration imposed pursuant to this paragraph. In  all  cases,  the
    21  presiding  officer  shall  impose the least restrictive reasonable sanc-
    22  tion. Any periods of reincarceration imposed pursuant  to  this  section
    23  shall  run  concurrently  if  more than one violation is sustained. If a
    24  period of reincarceration is imposed pursuant  to  this  paragraph,  the
    25  releasee shall be released from custody upon expiration of the period or
    26  the  end  of  the  releasee's period of community supervision, whichever
    27  shall be sooner.  For the violator serving an indeterminate sentence who
    28  while re-incarcerated has not been  found  by  the  department  to  have
    29  committed  a  serious  disciplinary  infraction,  such violator shall be
    30  re-released on the date fixed at the revocation hearing. For the  viola-
    31  tor  serving an indeterminate sentence who has been found by the depart-
    32  ment to have committed a serious disciplinary infraction while re-incar-
    33  cerated, the department shall  refer  the  violator  to  the  board  for
    34  consideration  for re-release to community supervision. Upon such refer-
    35  ral the board may waive the  personal  interview  between  a  member  or
    36  members  of  the board and the violator to determine the suitability for
    37  re-release when the board directs that the violator be re-released  upon
    38  expiration  of the time assessment. The board shall retain the authority
    39  to suspend the date fixed for re-release based on the violator's commis-
    40  sion of a serious disciplinary infraction and shall in such case require
    41  a personal interview be conducted within a  reasonable  time  between  a
    42  panel  of members of the board and the violator to determine suitability
    43  for re-release. If an interview is required, the board shall notify  the
    44  violator in advance of the date and time of such interview in accordance
    45  with the rules and regulations of the board.
    46    [(xi)]  (xiv) If the presiding officer sustains any violations, [he or
    47  she] such officer must prepare a written statement, to be made available
    48  to the alleged violator and his or her counsel, indicating the  evidence
    49  relied  upon  and  the reasons for revoking presumptive release, parole,
    50  conditional release or post-release supervision, and for the disposition
    51  made. The presiding officer shall also advise the alleged violator in  a
    52  written  statement  that  revocation will result in loss of the right to
    53  vote while he or she is serving the  remainder  of  his  or  her  felony
    54  sentence  in  a correctional facility and that the right to vote will be
    55  restored upon his or her release.
        S. 1144--A                         14
 
     1    [(xii)] (xv) If at any time during a revocation proceeding the alleged
     2  violator, his or her counsel, or an employee of the department contends,
     3  or if it reasonably appears to the hearing  officer,  that  the  alleged
     4  violator  is an incapacitated person as that term is defined in subdivi-
     5  sion one of section 730.10 of the criminal procedure law and no judicial
     6  determination  has  been  made that the alleged violator is an incapaci-
     7  tated person, the revocation  proceeding  shall  be  temporarily  stayed
     8  until  the superior court determines whether or not the person is fit to
     9  proceed. The matter shall be promptly referred to the superior court for
    10  determination of the alleged violator's fitness to proceed in  a  manner
    11  consistent  with  the  provisions of article seven hundred thirty of the
    12  criminal procedure law, provided however that the superior  court  shall
    13  immediately  appoint  counsel  for  any  unrepresented  alleged violator
    14  eligible for appointed counsel under subparagraph (v) of this  paragraph
    15  [(f)  of  subdivision  three of section two hundred fifty-nine-i of this
    16  chapter]. The court shall decide whether or not the alleged violator  is
    17  incapacitated  within thirty days of the referral from the hearing offi-
    18  cer. If the court determines that the alleged violator is not  an  inca-
    19  pacitated  person,  the court shall order that the matter be returned to
    20  the board of parole for continuation and disposition of  the  revocation
    21  proceeding.  If  the  court  determines  that the alleged violator is an
    22  incapacitated person and if no felony charges are  pending  against  the
    23  alleged  violator,  the  court  shall issue a final order of observation
    24  committing such person to the custody  of  the  commissioner  of  mental
    25  health  or  the  commissioner of developmental disabilities for care and
    26  treatment in an appropriate institution  in  a  manner  consistent  with
    27  subdivision  one  of  section 730.40 of the criminal procedure law. If a
    28  final order of observation has been issued pursuant to this section, the
    29  hearing officer shall dismiss the violation charges and  such  dismissal
    30  shall  act as a bar to any further proceeding under this section against
    31  the alleged violator for such violations. If felony criminal charges are
    32  pending at any time against an alleged violator who has been referred to
    33  superior court for a fitness evaluation but before  a  determination  of
    34  fitness  has  been made pursuant to this section, the court shall decide
    35  whether or not the alleged violator is incapacitated pursuant to article
    36  seven hundred thirty of the criminal procedure law  and  the  revocation
    37  proceeding  shall  be  held  in  abeyance  until  such decision has been
    38  reached. The hearing officer shall adopt the  capacity  finding  of  the
    39  court  and either terminate the revocation process if an order of obser-
    40  vation has been made by the court or proceed with the revocation hearing
    41  if the alleged violator has  been  found  not  to  be  an  incapacitated
    42  person.
    43    §  7.  Section   259-i of the executive law is amended by adding a new
    44  subdivision 4-a to read as follows:
    45    4-a.  Appeals from non-technical violation findings. (a) Notwithstand-
    46  ing the provisions of any other law,  when  in  a  violation  proceeding
    47  brought  pursuant  to  this section, any of the charges sustained by the
    48  hearing officer would constitute a misdemeanor or felony if such  charge
    49  were  or had been brought in a criminal court, the releasee may, in lieu
    50  of an administrative appeal to the board pursuant to subdivision four of
    51  this section, appeal such determination  to  the  lowest  level  of  the
    52  following  courts serving the jurisdiction in which the hearing was held
    53  or in which any such sustained conduct was  alleged  to  have  occurred:
    54  city  court,  district  court,  county court or supreme court; provided,
    55  however, that if any such misdemeanor or felony charge was prosecuted in
        S. 1144--A                         15
 
     1  any city, district, county or supreme court, such appeal shall be  filed
     2  in that court.
     3    (b)  The appeal shall be commenced by the filing of a notice of appeal
     4  in the same manner as an appeal to the appellate division as  set  forth
     5  in  paragraphs  (a), (b), (d) and (e) of subdivision one and subdivision
     6  six of section 460.10 of the criminal procedure law.  Counsel  shall  be
     7  assigned  to  the  individual, if unable to afford counsel, by the court
     8  before which the appeal is taken or is to be taken.  Such court may stay
     9  such determination pending the appeal, in a  manner consistent with  the
    10  provisions  of section 460.50 of the criminal procedure law or as other-
    11  wise authorized. Within thirty days after receiving  such  a  notice  of
    12  appeal, the board shall serve on the individual or counsel and file with
    13  such  court  a  transcript of the proceedings before the hearing officer
    14  prepared pursuant to paragraph (a) of subdivision six of  this  section,
    15  and  copies  of the documents, photographs and records considered by the
    16  hearing officer, and provide access to any other evidence considered  by
    17  the hearing officer who made such determination.
    18    (c)   The appeal shall be perfected in the manner set forth in section
    19  460.70 of the criminal procedure law, other provisions of law  generally
    20  applicable  to  criminal appeals, and authorized rules implementing this
    21  section promulgated by  the  chief  administrator  of  the  courts.  The
    22  department  shall  have  responsibility for presenting  the department's
    23  position through any submissions to the court on the appeal. The depart-
    24  ment shall coordinate with relevant district attorneys to ensure  appro-
    25  priate  information may be provided to the court.  The district attorney
    26  of the jurisdiction may appear on any such appeal without the  necessity
    27  of a motion or order of the court.
    28    (d)    On such appeal, the reviewing city, district, county or supreme
    29  court shall consider de novo the issues raised by the appellant, includ-
    30  ing but  not  limited  to  the  following:  (a)  whether  any  sustained
    31  violation  charge  should  have been sustained; (b) whether reduction or
    32  dismissal of the alleged violation charge or charges  is  warranted,  in
    33  accordance  with  the  principles set forth in section 170.40 or section
    34  210.40 of the criminal procedure law or otherwise; and (c)  whether  any
    35  time  assessment  and  other  authorized sanction imposed by the hearing
    36  officer should be vacated, reduced or, notwithstanding any law, rule  or
    37  regulation  to  the contrary, ordered to run concurrently with any other
    38  sentence, time assessment,   or period of reincarceration imposed.
    39    § 8. Section 259-i of the executive law is amended  by  adding  a  new
    40  subdivision 9 to read as follows:
    41    9.  The board shall promulgate rules and regulations to facilitate the
    42  presence of nonprofit service providers able to offer relevant  communi-
    43  ty-based  services  to releasees at all preliminary and final revocation
    44  hearings for the purpose of helping people subject to  community  super-
    45  vision  successfully  complete  such  supervision  and avoid future such
    46  supervision, and to help ensure  presiding  officers  impose  the  least
    47  restrictive  reasonable  sanction  for any violation of community super-
    48  vision.
    49    § 9. Severability. If any clause, sentence, paragraph, section or part
    50  of this act shall be adjudged by any court of competent jurisdiction  to
    51  be  invalid  and  after  exhaustion  of all further judicial review, the
    52  judgment shall not affect, impair or invalidate the  remainder  thereof,
    53  but  shall  be  confined in its operation to the clause, sentence, para-
    54  graph, section or part of this act directly involved in the  controversy
    55  in which the judgment shall have been rendered.
        S. 1144--A                         16
 
     1    §  10.  This  act  shall take effect March 1, 2022; provided, however,
     2  that the amendments made to subparagraph (xi) of paragraph (f) of subdi-
     3  vision 3 of section 259-i of the executive law made by  section  six  of
     4  this  act  shall  take effect on the same date and in the same manner as
     5  such  chapter of the laws of 2021 takes effect; provided however, within
     6  six months of such effective date, the  department  of  corrections  and
     7  community  supervision  in  consultation  with the board of parole shall
     8  calculate and award all earned time credits pursuant to subdivision 4 of
     9  section 70.40 of the penal law as added by section two of this act    to
    10  all  persons  serving a sentence subject to community supervision at the
    11  time this legislation becomes law retroactive to the initial  date  such
    12  person  began  his or her earliest period of community supervision prior
    13  to any revocation of community supervision. Provided  further,  however,
    14  within  ten  months  of  becoming  law the department of corrections and
    15  community supervision in consultation with the  board  of  parole  shall
    16  identify  all  individuals  incarcerated  for  a  sustained violation of
    17  community supervision and recalculate such individual's time  assessment
    18  in accordance with this act. Effective immediately, the addition, amend-
    19  ment and/or repeal of any rule or regulation necessary for the implemen-
    20  tation  of  this act on its effective date are authorized to be made and
    21  completed on or before such effective date.