S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7685

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                              May 22, 2015
                               ___________

Introduced  by  M.  of  A.  O'DONNELL  --  read once and referred to the
  Committee on Correction

AN ACT to amend the executive law and the  criminal  procedure  law,  in
  relation to incapacitated parole violators

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subparagraph (i) of  paragraph  (a)  of  subdivision  3  of
section  259-i  of  the  executive law, as amended by section 38-f-l  of
subpart A of part C of chapter 62 of the laws of  2011,  is  amended  to
read as follows:
  (i)  If  the parole officer having charge of a presumptively released,
paroled or conditionally released person or a person released  to  post-
release  supervision or a person received under the uniform act for out-
of-state parolee supervision shall have reasonable cause to believe that
such person has lapsed into criminal ways or company,  or  has  violated
one  or  more conditions of his presumptive release, parole, conditional
release or post-release supervision, such parole  officer  shall  report
such  fact to a member of the board, or to any officer of the department
designated by the board, and thereupon a warrant may be issued  for  the
retaking  of  such  person and for his temporary detention in accordance
with the rules of the board UNLESS SUCH PERSON HAS BEEN DETERMINED TO BE
CURRENTLY UNFIT TO PROCEED TO TRIAL OR IS CURRENTLY SUBJECT TO A  TEMPO-
RARY  OR  FINAL  ORDER  OF OBSERVATION PURSUANT TO ARTICLE SEVEN HUNDRED
THIRTY OF THE CRIMINAL PROCEDURE LAW, IN WHICH CASE NO WARRANT SHALL  BE
ISSUED.    The  retaking and detention of any such person may be further
regulated by rules and regulations of the  department  not  inconsistent
with  this  article.  A  warrant  issued  pursuant to this section shall
constitute sufficient authority to the superintendent or other person in
charge of any jail, penitentiary, lockup or detention pen to whom it  is
delivered  to  hold  in  temporary  detention  the person named therein;
except that a warrant issued with respect  to  a  person  who  has  been

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11153-02-5
              

A. 7685                             2

released  on medical parole pursuant to section two hundred fifty-nine-r
of this article and whose parole is being revoked pursuant to  paragraph
(h)  of  subdivision four of such section shall constitute authority for
the  immediate  placement  of  the parolee only into imprisonment in the
custody of the department to hold  in  temporary  detention.  A  warrant
issued pursuant to this section shall also constitute sufficient author-
ity  to  the  person in charge of a drug treatment campus, as defined in
subdivision twenty of section two of the correction  law,  to  hold  the
person  named therein, in accordance with the procedural requirements of
this section, for a period of at least ninety days to complete an inten-
sive drug treatment program mandated by the board as an  alternative  to
presumptive  release or parole or conditional release revocation, or the
revocation of post-release supervision, and shall also constitute suffi-
cient authority for return of the person named therein to local  custody
to hold in temporary detention for further revocation proceedings in the
event  said  person  does  not  successfully complete the intensive drug
treatment program. The board's rules shall provide for  cancellation  of
delinquency   and   restoration   to  supervision  upon  the  successful
completion of the program.
  S 2. Paragraph (f) of subdivision 3 of section 259-i of the  executive
law is amended by adding a new subparagraph (xii) to read as follows:
  (XII) IF AT ANY TIME DURING A REVOCATION PROCEEDING THE ALLEGED VIOLA-
TOR,  HIS  OR HER COUNSEL, OR AN EMPLOYEE OF THE DEPARTMENT CONTENDS, OR
IF IT REASONABLY APPEARS TO THE HEARING OFFICER, THAT THE ALLEGED VIOLA-
TOR IS AN INCAPACITATED PERSON AS THAT TERM IS  DEFINED  IN  SUBDIVISION
ONE  OF  SECTION  730.10  OF  THE CRIMINAL PROCEDURE LAW AND NO JUDICIAL
DETERMINATION HAS BEEN MADE THAT THE ALLEGED VIOLATOR  IS  AN  INCAPACI-
TATED  PERSON,  THE  REVOCATION  PROCEEDING  SHALL BE TEMPORARILY STAYED
UNTIL THE SUPERIOR COURT DETERMINES WHETHER OR NOT THE PERSON IS FIT  TO
PROCEED. THE MATTER SHALL BE PROMPTLY REFERRED TO THE SUPERIOR COURT FOR
DETERMINATION  OF  THE ALLEGED VIOLATOR'S FITNESS TO PROCEED IN A MANNER
CONSISTENT WITH THE PROVISIONS OF ARTICLE SEVEN HUNDRED  THIRTY  OF  THE
CRIMINAL  PROCEDURE  LAW, PROVIDED HOWEVER THAT THE SUPERIOR COURT SHALL
IMMEDIATELY APPOINT  COUNSEL  FOR  ANY  UNREPRESENTED  ALLEGED  VIOLATOR
ELIGIBLE  FOR  APPOINTED COUNSEL UNDER SUBPARAGRAPH (V) OF PARAGRAPH (F)
OF SUBDIVISION THREE OF SECTION TWO HUNDRED FIFTY-NINE-I OF  THIS  CHAP-
TER. THE COURT SHALL DECIDE WHETHER OR NOT THE ALLEGED VIOLATOR IS INCA-
PACITATED  WITHIN  THIRTY DAYS OF THE REFERRAL FROM THE HEARING OFFICER.
IF THE COURT DETERMINES THAT THE ALLEGED VIOLATOR IS  NOT  AN  INCAPACI-
TATED  PERSON,  THE COURT SHALL ORDER THAT THE MATTER BE RETURNED TO THE
BOARD OF PAROLE FOR  CONTINUATION  AND  DISPOSITION  OF  THE  REVOCATION
PROCEEDING.  IF  THE  COURT  DETERMINES  THAT THE ALLEGED VIOLATOR IS AN
INCAPACITATED PERSON AND IF NO FELONY CHARGES ARE  PENDING  AGAINST  THE
ALLEGED  VIOLATOR,  THE  COURT  SHALL ISSUE A FINAL ORDER OF OBSERVATION
COMMITTING SUCH PERSON TO THE CUSTODY  OF  THE  COMMISSIONER  OF  MENTAL
HEALTH  OR  THE  COMMISSIONER OF DEVELOPMENTAL DISABILITIES FOR CARE AND
TREATMENT IN AN APPROPRIATE INSTITUTION  IN  A  MANNER  CONSISTENT  WITH
SUBDIVISION  ONE  OF  SECTION 730.40 OF THE CRIMINAL PROCEDURE LAW. IF A
FINAL ORDER OF OBSERVATION HAS BEEN ISSUED PURSUANT TO THIS SECTION, THE
HEARING OFFICER SHALL DISMISS THE VIOLATION CHARGES AND  SUCH  DISMISSAL
SHALL  ACT AS A BAR TO ANY FURTHER PROCEEDING UNDER THIS SECTION AGAINST
THE ALLEGED VIOLATOR FOR SUCH VIOLATIONS. IF FELONY CRIMINAL CHARGES ARE
PENDING AT ANY TIME AGAINST AN ALLEGED VIOLATOR WHO HAS BEEN REFERRED TO
SUPERIOR COURT FOR A FITNESS EVALUATION BUT BEFORE  A  DETERMINATION  OF
FITNESS  HAS  BEEN MADE PURSUANT TO THIS SECTION, THE COURT SHALL DECIDE
WHETHER OR NOT THE ALLEGED VIOLATOR IS INCAPACITATED PURSUANT TO ARTICLE

A. 7685                             3

SEVEN HUNDRED THIRTY OF THE CRIMINAL PROCEDURE LAW  AND  THE  REVOCATION
PROCEEDING  SHALL  BE  HELD  IN  ABEYANCE  UNTIL  SUCH DECISION HAS BEEN
REACHED. THE HEARING OFFICER SHALL ADOPT THE  CAPACITY  FINDING  OF  THE
COURT  AND EITHER TERMINATE THE REVOCATION PROCESS IF AN ORDER OF OBSER-
VATION HAS BEEN MADE BY THE COURT OR PROCEED WITH THE REVOCATION HEARING
IF THE ALLEGED VIOLATOR HAS  BEEN  FOUND  NOT  TO  BE  AN  INCAPACITATED
PERSON.
  S 3. Subdivision 2 of section 730.10 of the criminal procedure law, as
amended  by  chapter  566  of  the  laws  of 1994, is amended to read as
follows:
  2. "Order of examination" means an  order  issued  to  an  appropriate
director  by  a  criminal  court  wherein  a  criminal action is pending
against a defendant[,] or BY A  COURT  EVALUATING  THE  CAPACITY  OF  AN
ALLEGED  VIOLATOR IN A PAROLE REVOCATION PROCEEDING PURSUANT TO SUBPARA-
GRAPH (XII) OF PARAGRAPH (F) OF SUBDIVISION THREE OF SECTION TWO HUNDRED
FIFTY-NINE-I OF THE EXECUTIVE LAW, OR by  a  family  court  pursuant  to
section  322.1  of  the  family court act wherein a juvenile delinquency
proceeding is pending against a juvenile, directing that such person  be
examined  for  the  purpose  of  determining  if  he is an incapacitated
person.
  S 4. Subparagraph (v) of paragraph (f) of  subdivision  3  of  section
259-i  of the executive law, as amended by section 11 of part E of chap-
ter 62 of the laws of 2003, is amended to read as follows:
  (v) The alleged violator shall be permitted representation by  counsel
at  the revocation hearing. In any case, INCLUDING WHEN A SUPERIOR COURT
IS CALLED UPON TO EVALUATE THE CAPACITY OF  AN  ALLEGED  VIOLATOR  IN  A
PAROLE REVOCATION PROCEEDING, where such person is financially unable to
retain  counsel,  the criminal court of the city of New York, the county
court or district court in the county where the violation is alleged  to
have  occurred  or  where  the  hearing is held, shall assign counsel in
accordance with the county or city plan  for  representation  placed  in
operation  pursuant  to  article eighteen-B of the county law. He OR SHE
shall have the right to confront and  cross-examine  adverse  witnesses,
unless there is good cause for their non-attendance as determined by the
presiding officer; present witnesses and documentary evidence in defense
of  the charges; and present witnesses and documentary evidence relevant
to the question whether  reincarceration  of  the  alleged  violator  is
appropriate.
  S 5. This act shall take effect on the one hundred eightieth day after
it shall have become a law.