S T A T E O F N E W Y O R K
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4780--A
Cal. No. 424
2015-2016 Regular Sessions
I N S E N A T E
April 15, 2015
___________
Introduced by Sen. GALLIVAN -- read twice and ordered printed, and when
printed to be committed to the Committee on Crime Victims, Crime and
Correction -- reported favorably from said committee, ordered to first
and second report, ordered to a third reading, amended and ordered
reprinted, retaining its place in the order of third reading
AN ACT to amend the executive law and the criminal procedure law, in
relation to incapacitated parole violators
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10451-03-5
S. 4780--A 2
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
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
S. 4780--A 3
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
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.