[ ] is old law to be omitted.
LBD16506-01-0
S. 8453 2
ACTION IS EXPLICITLY PROHIBITED AS A CONDITION OF SUCH PERSON'S
SENTENCE; POSITIVE TEST FOR OR USE OR POSSESSION OF ALCOHOL, DRUGS, A
CONTROLLED SUBSTANCE WITHOUT PROPER MEDICAL AUTHORIZATION, OR DRUG
PARAPHERNALIA, PROVIDED HOWEVER IT SHALL NOT BE A TIER 2 VIOLATION IF
THE RELEASEE IS SUBJECT TO COMMUNITY SUPERVISION DUE TO A CONVICTION
RELATED TO ALCOHOL OR DRUGS PURSUANT TO SECTION ELEVEN HUNDRED NINETY-
TWO OF THE VEHICLE AND TRAFFIC LAW; FAILING TO NOTIFY A COMMUNITY SUPER-
VISION OFFICER OF A CHANGE IN EMPLOYMENT OR PROGRAM STATUS; FAILING TO
NOTIFY A COMMUNITY SUPERVISION OFFICER OF A CHANGE IN RESIDENCE,
PROVIDED HOWEVER IT SHALL NOT BE A TIER 2 VIOLATION IF THE RELEASEE WAS
ABSCONDING; FAILURE TO MAKE OFFICE OR WRITTEN REPORTS AS DIRECTED,
PROVIDED HOWEVER IT SHALL NOT BE A TIER 2 VIOLATION IF THE RELEASEE WAS
ABSCONDING; LEAVING THE STATE OF NEW YORK OR ANY OTHER STATE TO WHICH
THE RELEASEE IS RELEASED OR TRANSFERRED OR ANY AREA DEFINED IN WRITING
BY HIS PAROLE OFFICER, WITHOUT PERMISSION, PROVIDED HOWEVER IT SHALL NOT
BE A TIER 2 VIOLATION IF THE RELEASEE WAS ABSCONDING; FAILURE TO NOTIFY
COMMUNITY SUPERVISION OFFICER OF CONTACT WITH ANY LAW ENFORCEMENT AGEN-
CY, PROVIDED HOWEVER IT SHALL NOT BE A TIER 2 VIOLATION IF THE RELEASEE
INTENDED TO HIDE EVIDENCE OF HIS OR OTHERS' BEHAVIOR THAT CONSTITUTES A
VIOLATION OF THE PENAL LAW; AND FAILURE TO OBEY ANY OTHER SPECIAL CONDI-
TION OF COMMUNITY SUPERVISION, PROVIDED HOWEVER IT SHALL NOT BE A TIER 2
VIOLATION IF THE FAILURE CANNOT BE ADDRESSED IN THE COMMUNITY WITH COUN-
SELING, TREATMENT, OR PROGRAMMING AND ALL REASONABLE COMMUNITY-BASED
MEANS TO ADDRESS THE FAILURE HAVE BEEN EXHAUSTED.
§ 2. Any releasee who is detained on the effective date of this act
pursuant to a warrant issued for an alleged technical violation shall be
restored to community supervision. For any such releasee who has been
detained for fewer than thirty days, the board may issue and promptly
serve a written notice of violation on such releasee according to the
terms of subparagraph (iii) of paragraph (c) of subdivision 3 of section
259-i of the executive law.
§ 3. Any releasee who has been incarcerated for thirty days or more on
the effective date of this act for a sustained technical parole
violation shall be immediately restored to community supervision. All
other releasees incarcerated on the effective date of this act for a
sustained technical parole violation shall be restored to supervision
after serving thirty days, or released at the end of the releasee's
period of community supervision, whichever shall be sooner.
§ 4. Any releasee detained on the effective date of this act pursuant
to a warrant issued for an alleged non-technical violation shall receive
a recognizance hearing pursuant to paragraph (a) of subdivision 3 of
section 259-i of the executive law within 72 hours of the effective date
of this act.
§ 5. Subparagraph (i) of paragraph (a) of subdivision 3 of section
259-i of the executive law, as amended by chapter 545 of the laws of
2015, is amended and five new subparagraphs (iv), (v), (vi), (vii) and
(viii) are added 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] COMMITTED A TECHNICAL VIOLATION,
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
S. 8453 3
A WRITTEN NOTICE OF VIOLATION MAY BE ISSUED ACCORDING TO THE TERMS OF
SUBPARAGRAPH (III) OF PARAGRAPH (C) OF THIS SUBDIVISION, AND SHALL BE
PROMPTLY SERVED UPON SUCH PERSON. IF THE RELEASEE HAS FAILED TO APPEAR
AS DIRECTED IN RESPONSE TO A NOTICE OF VIOLATION AND HAS FAILED TO
APPEAR VOLUNTARILY WITHIN FORTY-EIGHT HOURS AFTER SUCH TIME AND THE
PERSON WOULD BE SUBJECT TO INCARCERATION PURSUANT TO SUBPARAGRAPH (XII)
OF PARAGRAPH (F) OF THIS SUBDIVISION SHOULD THE VIOLATION BE SUSTAINED
AT A FINAL REVOCATION HEARING, A WARRANT MAY BE ISSUED FOR THE RETAKING
OF SUCH PERSON AND FOR HIS TEMPORARY DETENTION IN ACCORDANCE WITH THE
RULES OF THE BOARD. IF THE PERSON HAS FAILED TO APPEAR AS DIRECTED IN
RESPONSE TO A NOTICE OF VIOLATION AND HAS FAILED TO APPEAR VOLUNTARILY
WITHIN FORTY-EIGHT HOURS AFTER SUCH TIME AND THE PERSON WOULD NOT BE
SUBJECT TO INCARCERATION PURSUANT TO SUBPARAGRAPH (XII) OF PARAGRAPH (F)
OF THIS SUBDIVISION SHOULD THE VIOLATION BE SUSTAINED AT A FINAL REVOCA-
TION HEARING, NO WARRANT SHALL ISSUE AND THE VIOLATION SHALL BE DEEMED
SUSTAINED. NOTICE OF THAT DECISION SHALL BE PROMPTLY SERVED UPON THE
RELEASEE. IN SUCH CASE, WITHIN ONE MONTH OF THE DATE THE NOTICE OF DECI-
SION WAS SERVED UPON THE RELEASEE, THE RELEASEE MAY MOVE TO VACATE SUCH
A SUSTAINED VIOLATION IF THE RELEASEE CAN SHOW THAT THE NOTICE OF
VIOLATION WAS NOT PROPERLY SERVED OR THE FAILURE TO APPEAR WAS OTHERWISE
EXCUSABLE. 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 COMMITTED A NON-TECHNICAL VIOLATION, 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
NOTICE OF VIOLATION MAY BE ISSUED OR 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]. HOWEVER, IF A RELEAS-
EE has been determined to be currently unfit to proceed to trial or is
currently subject to a temporary or final order of observation pursuant
to article seven hundred thirty of the criminal procedure law, [in which
case] no NOTICE OF VIOLATION OR warrant shall be issued. The ISSUANCE OF
A NOTICE OF VIOLATION, SERVICE OF A NOTICE OF VIOLATION, SERVICE OF A
NOTICE OF DECISION, AND THE retaking and detention of any [such] person
FOR WHOM A WARRANT HAS BEEN ISSUED PURSUANT TO THIS SUBPARAGRAPH may be
further regulated by rules and regulations of the department not incon-
sistent 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 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 imprison-
ment in the custody of the department to hold in temporary detention. A
warrant issued pursuant to this section shall also constitute sufficient
authority 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-
S. 8453 4
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] FOR UP TO TWENTY-FOUR HOURS PENDING A RECOG-
NIZANCE HEARING PURSUANT TO SUBPARAGRAPH (IV) OF THIS PARAGRAPH. IT
SHALL NO LONGER BE A CONDITION OF PAROLE NOR MAY A NOTICE OF VIOLATION
OR A WARRANT BE ISSUED DUE TO A RELEASEE BEING IN THE COMPANY OF OR
FRATERNIZING WITH ANY PERSON THE RELEASEE KNOWS HAS A CRIMINAL RECORD OR
KNOWS HAS BEEN ADJUDICATED A YOUTHFUL OFFENDER.
(IV) UPON EXECUTION OF A WARRANT ISSUED PURSUANT TO THIS SECTION, THE
AUTHORIZED OFFICER SHALL TAKE THE RELEASEE TO A LOCAL COURT WITH CRIMI-
NAL JURISDICTION FOR A RECOGNIZANCE HEARING. SUCH RECOGNIZANCE HEARING
SHALL COMMENCE WITHIN TWENTY-FOUR HOURS OF THE EXECUTION OF THE WARRANT.
(V) AT A RECOGNIZANCE HEARING, THE DEPARTMENT SHALL HAVE THE BURDEN TO
DEMONSTRATE TO THE COURT THAT THE EXECUTED WARRANT WAS PROPERLY ISSUED
AND SERVED PURSUANT TO THIS SECTION.
(VI) AT A RECOGNIZANCE HEARING, THE COURT SHALL CONSIDER ALL AVAILABLE
EVIDENCE OF THE RELEASEE'S EMPLOYMENT, FAMILY AND COMMUNITY TIES INCLUD-
ING LENGTH OF RESIDENCY IN THE COMMUNITY, HISTORY OF REPORTING IN A
TIMELY FASHION TO A PAROLE OR SUPERVISORY OFFICER, OTHER INDICATORS OF
STABILITY AND THE REASONS FOR THE RELEASEE'S FAILURE TO APPEAR AT THE
PRIOR PRELIMINARY OR REVOCATION HEARING. AT THE CONCLUSION OF THE RECOG-
NIZANCE HEARING, THE COURT MAY ORDER THAT THE RELEASEE BE DETAINED PEND-
ING PRELIMINARY OR FINAL REVOCATION HEARINGS ONLY UPON A FINDING THAT
THE RELEASEE CURRENTLY PRESENTS A SUBSTANTIAL RISK OF WILLFULLY FAILING
TO APPEAR AT THE PRELIMINARY OR FINAL REVOCATION HEARINGS AND THAT NO
NON-MONETARY CONDITION OR COMBINATION OF CONDITIONS IN THE COMMUNITY
WILL REASONABLY ASSURE THE RELEASEE'S APPEARANCE AT THE PRELIMINARY OR
FINAL REVOCATION HEARINGS. OTHERWISE, THE COURT SHALL RELEASE THE
RELEASEE ON THE LEAST RESTRICTIVE NON-MONETARY CONDITIONS THAT WILL
REASONABLY ASSURE THE RELEASEE'S APPEARANCE AT SUBSEQUENT PRELIMINARY OR
REVOCATION HEARINGS, WITH A PRESUMPTION OF RELEASE ON RECOGNIZANCE. THE
COURT SHALL EXPLAIN ITS DECISION ON THE RECORD OR IN WRITING. IF NON-
MONETARY CONDITIONS OF RELEASE ARE IMPOSED, THE RELEASEE SHALL NOT BE
REQUIRED TO PAY FOR ANY PART OF THE COST OF SUCH CONDITIONS.
(VII) THE ALLEGED VIOLATOR SHALL HAVE A RIGHT TO REPRESENTATION BY
COUNSEL AT THE RECOGNIZANCE HEARING. IN ANY CASE, INCLUDING WHEN A COURT
IS CALLED UPON TO EVALUATE THE CAPACITY OF AN ALLEGED VIOLATOR IN A
RECOGNIZANCE 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.
(VIII) SUCH RECOGNIZANCE HEARING MAY BE HELD AT THE SAME TIME AS A
PROCEEDING PURSUANT TO ARTICLE FIVE HUNDRED THIRTY OF THE CRIMINAL
PROCEDURE LAW BASED ON THE SAME ALLEGED CONDUCT. IF AT THE PROCEEDING
PURSUANT TO ARTICLE FIVE HUNDRED THIRTY OF THE CRIMINAL PROCEDURE LAW
THE COURT IMPOSES BAIL OR COMMITS THE RELEASEE TO THE CUSTODY OF THE
SHERIFF PURSUANT TO ARTICLE FIVE HUNDRED THIRTY OF THE CRIMINAL PROCE-
DURE LAW AND THE RELEASEE SECURES RELEASE BY PAYING BAIL OR BY OPERATION
OF LAW, THEN THE RELEASEE SHALL NOT BE DETAINED FURTHER BASED SOLELY ON
THE WARRANT ISSUED BY THE DEPARTMENT. IF THE DEPARTMENT ISSUES A WARRANT
FOR A NON-TECHNICAL VIOLATION FOR ALLEGED CRIMINAL CONDUCT THAT HAS
S. 8453 5
ALREADY BEEN THE SUBJECT OF A COURT'S ORDER PURSUANT TO ARTICLE FIVE
HUNDRED THIRTY OF THE CRIMINAL PROCEDURE LAW, THEN WITHIN TWENTY-FOUR
HOURS OF EXECUTION OF THE WARRANT THE RELEASEE SHALL BE PROVIDED A
RECOGNIZANCE HEARING PURSUANT TO THIS SUBPARAGRAPH.
§ 6. Subparagraphs (i), (iii) and (iv) of paragraph (c) of subdivision
3 of section 259-i of the executive law, subparagraph (i) as amended by
section 11 of part E of chapter 62 of the laws of 2003, and subpara-
graphs (iii) and (iv) as amended by section 1 of part E of chapter 56 of
the laws of 2007, are amended and two new subparagraphs (ix) and (x) are
added to read as follows:
(i) [Within] (A) FOR ANY ALLEGED NON-TECHNICAL VIOLATION, WITHIN
fifteen days after the warrant for retaking and temporary detention has
been executed, unless the releasee has been convicted of a new crime
committed while under presumptive release, parole, conditional release
or post-release supervision, the board of parole shall afford the
alleged presumptive release, parole, conditional release or post-release
supervision violator a preliminary revocation hearing before a hearing
officer designated by the board of parole. Such hearing officer shall
not have had any prior supervisory involvement over the alleged viola-
tor.
(B) FOR ANY ALLEGED TECHNICAL VIOLATION FOR WHICH A NOTICE OF
VIOLATION WAS ISSUED OR A PERSON WAS RELEASED PURSUANT TO SUBPARAGRAPH
(VI) OF PARAGRAPH (A) OF THIS SUBDIVISION, THE DEPARTMENT SHALL WITHIN
TEN DAYS OF THE ISSUANCE OF THE NOTICE OF VIOLATION OR THE ORDER OF
RELEASE, WHICHEVER IS LATER, AFFORD THE PERSON A PRELIMINARY REVOCATION
HEARING BEFORE A HEARING OFFICER DESIGNATED BY THE DEPARTMENT. SUCH
HEARING OFFICER SHALL NOT HAVE HAD ANY PRIOR SUPERVISORY INVOLVEMENT
OVER THE ALLEGED VIOLATOR. SUCH HEARING SHALL NOT BE HELD AT A CORREC-
TIONAL FACILITY, DETENTION CENTER OR LOCAL CORRECTIONAL FACILITY.
(C) FOR ANY ALLEGED TECHNICAL VIOLATION FOR WHICH A COURT ISSUED AN
ORDER DETAINING A PERSON PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (A)
OF THIS SUBDIVISION AND THE PERSON WOULD BE SUBJECT TO REINCARCERATION
OF UP TO THIRTY DAYS PURSUANT TO SUBPARAGRAPH (X) OF PARAGRAPH (F) OF
THIS SUBDIVISION SHOULD THE VIOLATION BE SUSTAINED AT A FINAL REVOCATION
HEARING, THEN WITHIN FIVE DAYS OF THE ISSUANCE OF THE ORDER OF DETENTION
THE DEPARTMENT SHALL AFFORD SUCH PERSON A PRELIMINARY REVOCATION HEARING
BEFORE A HEARING OFFICER DESIGNATED BY THE DEPARTMENT. SUCH HEARING
OFFICER SHALL NOT HAVE HAD ANY PRIOR SUPERVISORY INVOLVEMENT OVER THE
ALLEGED VIOLATOR. SUCH HEARING SHALL NOT BE HELD AT A CORRECTIONAL
FACILITY, DETENTION CENTER OR A LOCAL CORRECTIONAL FACILITY.
(iii) The alleged violator shall, [within three days of the execution
of the warrant] AT THE TIME A NOTICE OF VIOLATION IS ISSUED OR AT THE
TIME OF A RECOGNIZANCE HEARING, be given written notice of the time,
place and purpose of the PRELIMINARY hearing [unless he or she is
detained pursuant to the provisions of subparagraph (iv) of paragraph
(a) of this subdivision. In those instances, the alleged violator will
be given written notice of the time, place and purpose of the hearing
within five days of the execution of the warrant], OR IF NO PRELIMINARY
HEARING IS REQUIRED PURSUANT TO THIS SECTION, OF THE FINAL REVOCATION
HEARING. The notice shall state what conditions of [presumptive
release, parole, conditional release or post-release] COMMUNITY super-
vision are alleged to have been violated, WHEN, WHERE, and in what
manner; that such person shall have the right to appear and speak in his
or her own behalf; that he or she shall have the right to introduce
letters and documents; that he or she may present witnesses who can give
relevant information to the hearing officer; that he or she has the
S. 8453 6
right to confront the witnesses against him or her; THAT SUCH PERSON
SHALL HAVE THE RIGHT TO REPRESENTATION BY COUNSEL AT ANY PRELIMINARY AND
FINAL REVOCATION HEARINGS; AND THE NAME AND CONTACT DETAILS FOR INSTITU-
TIONAL DEFENDERS OR ASSIGNED PRIVATE COUNSEL, AS APPLICABLE. Adverse
witnesses may be compelled to attend the preliminary hearing unless the
prisoner has been convicted of a new crime while on supervision or
unless the hearing officer finds good cause for their non-attendance. As
far as practicable or feasible, any additional documents having been
collected or prepared that [support] ARE RELEVANT TO the charge shall be
delivered to the alleged violator.
(iv) [The preliminary hearing shall be scheduled to take place no
later than fifteen days from the date of execution of the warrant.] The
standard of proof at the preliminary hearing shall be probable cause to
believe that the [presumptive releasee, parolee, conditional releasee or
person under post-release supervision] RELEASEE has violated one or more
conditions of his or her [presumptive release, parole, conditional
release or post-release] COMMUNITY supervision in an important respect.
Proof of conviction of a crime committed while under supervision shall
constitute probable cause for the purposes of this section.
(IX) IF THE HEARING OFFICER FINDS PROBABLE CAUSE THAT SUCH PERSON HAS
VIOLATED ONE OR MORE CONDITIONS OF COMMUNITY SUPERVISION IN AN IMPORTANT
RESPECT, THE RELEASEE SHALL, AT THE CONCLUSION OF THE PRELIMINARY HEAR-
ING BE GIVEN WRITTEN NOTICE OF THE TIME, PLACE AND PURPOSE OF THE FINAL
REVOCATION HEARING. THE NOTICE SHALL STATE WHAT CONDITIONS OF COMMUNITY
SUPERVISION ARE ALLEGED TO HAVE BEEN VIOLATED, WHEN, WHERE AND IN WHAT
MANNER; THAT SUCH PERSON SHALL HAVE THE RIGHT TO REPRESENTATION BY COUN-
SEL AT ANY FINAL REVOCATION HEARING; THAT SUCH PERSON SHALL HAVE THE
RIGHT TO APPEAR AND SPEAK IN HIS OR HER OWN BEHALF; THAT HE OR SHE SHALL
HAVE THE RIGHT TO INTRODUCE LETTERS AND DOCUMENTS; THAT HE OR SHE MAY
PRESENT WITNESSES WHO CAN GIVE RELEVANT INFORMATION TO THE HEARING OFFI-
CER; THAT HE OR SHE HAS THE RIGHT TO CONFRONT THE WITNESSES AGAINST HIM
OR HER; AND THE NAME AND CONTACT DETAILS FOR INSTITUTIONAL DEFENDERS OR
ASSIGNED PRIVATE COUNSEL, AS APPLICABLE. ANY ADDITIONAL DOCUMENTS HAVING
BEEN COLLECTED OR PREPARED THAT ARE RELEVANT TO THE CHARGE SHALL BE
DELIVERED TO THE RELEASEE. ADVERSE WITNESSES MAY BE COMPELLED TO ATTEND
THE FINAL REVOCATION HEARING UNLESS THE PRISONER HAS BEEN CONVICTED OF A
NEW CRIME WHILE ON SUPERVISION OR UNLESS THE HEARING OFFICER FINDS GOOD
CAUSE FOR THEIR NON-ATTENDANCE.
(X) THE ALLEGED VIOLATOR SHALL HAVE A RIGHT TO REPRESENTATION BY COUN-
SEL AT THE PRELIMINARY HEARING. IN ANY CASE, INCLUDING WHEN A COURT IS
CALLED UPON TO EVALUATE THE CAPACITY OF AN ALLEGED VIOLATOR IN A PRELIM-
INARY 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 ACCORD-
ANCE WITH THE COUNTY OR CITY PLAN FOR REPRESENTATION PLACED IN OPERATION
PURSUANT TO ARTICLE EIGHTEEN-B OF THE COUNTY LAW.
§ 7. Paragraph (f) of subdivision 3 of section 259-i of the executive
law, as amended by section 11 of part E of chapter 62 of the laws of
2003, subparagraph (v) as amended and subparagraph (xii) as added by
chapter 545 of the laws of 2015 and subparagraph (x) as amended by
section 38-f-1 of subpart A of part C of chapter 62 of the laws of 2011,
is amended to read as follows:
(f) (i) [Revocation] FOR ANY ALLEGED NON-TECHNICAL VIOLATIONS, REVOCA-
TION hearings shall be scheduled to be held within [ninety] THIRTY days
S. 8453 7
of the probable cause determination. FOR ANY ALLEGED TECHNICAL
VIOLATIONS:
(A) IF THE RELEASEE IS DETAINED PURSUANT TO SUBPARAGRAPH (VI) OF PARA-
GRAPH (A) OF THIS SUBDIVISION AND THE PERSON WOULD BE SUBJECT TO REIN-
CARCERATION OF UP TO SEVEN DAYS PURSUANT TO SUBPARAGRAPH (XII) OF THIS
PARAGRAPH SHOULD THE VIOLATION BE SUSTAINED AT A FINAL REVOCATION HEAR-
ING, THEN WITHIN TWO DAYS OF THE ISSUANCE OF THE ORDER OF DETENTION, THE
DEPARTMENT SHALL AFFORD SUCH PERSON A FINAL REVOCATION HEARING IN PERSON
BEFORE A HEARING OFFICER DESIGNATED BY THE DEPARTMENT. SUCH HEARING
OFFICER SHALL NOT HAVE HAD ANY PRIOR SUPERVISORY INVOLVEMENT OVER THE
ALLEGED VIOLATOR. NO PRELIMINARY REVOCATION HEARING SHALL BE HELD IN
THIS INSTANCE.
(B) IF THE RELEASEE IS DETAINED PURSUANT TO SUBPARAGRAPH (VI) OF PARA-
GRAPH (A) OF THIS SUBDIVISION AND THE PERSON WOULD BE SUBJECT TO REIN-
CARCERATION OF UP TO FIFTEEN DAYS PURSUANT TO SUBPARAGRAPH (XII) OF THIS
PARAGRAPH SHOULD THE VIOLATION BE SUSTAINED AT A FINAL REVOCATION HEAR-
ING, THEN WITHIN FOUR DAYS OF THE ISSUANCE OF THE ORDER OF DETENTION,
THE DEPARTMENT SHALL AFFORD SUCH PERSON A FINAL REVOCATION HEARING IN
PERSON BEFORE A HEARING OFFICER DESIGNATED BY THE DEPARTMENT. SUCH HEAR-
ING OFFICER SHALL NOT HAVE HAD ANY PRIOR SUPERVISORY INVOLVEMENT OVER
THE ALLEGED VIOLATOR. NO PRELIMINARY REVOCATION HEARING SHALL BE HELD IN
THIS INSTANCE.
(C) IF THE RELEASEE IS DETAINED PURSUANT TO SUBPARAGRAPH (VI) OF PARA-
GRAPH (A) OF THIS SUBDIVISION AND THE PERSON WOULD BE SUBJECT TO REIN-
CARCERATION OF UP TO THIRTY DAYS PURSUANT TO SUBPARAGRAPH (X) OF THIS
PARAGRAPH SHOULD THE VIOLATION BE SUSTAINED AT A FINAL REVOCATION HEAR-
ING, THEN WITHIN TEN DAYS AFTER THE ISSUANCE OF THE ORDER OF DETENTION,
THE DEPARTMENT SHALL AFFORD SUCH PERSON A FINAL REVOCATION HEARING IN
PERSON BEFORE A HEARING OFFICER DESIGNATED BY THE DEPARTMENT. SUCH
HEARING OFFICER SHALL NOT HAVE HAD ANY PRIOR SUPERVISORY INVOLVEMENT
OVER THE ALLEGED VIOLATOR.
(D) IF A NOTICE OF VIOLATION WAS ISSUED OR THE RELEASEE WAS RELEASED
PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (A) OF THIS SUBDIVISION THE
DEPARTMENT SHALL WITHIN THIRTY DAYS OF THE ISSUANCE OF THE NOTICE OF
VIOLATION OR THE ORDER OF RELEASE AFFORD THE PERSON A FINAL REVOCATION
HEARING IN PERSON BEFORE A HEARING OFFICER DESIGNATED BY THE DEPARTMENT.
SUCH HEARING OFFICER SHALL NOT HAVE HAD ANY PRIOR SUPERVISORY INVOLVE-
MENT OVER THE ALLEGED VIOLATOR. SUCH HEARING SHALL NOT BE HELD AT A
CORRECTIONAL FACILITY, DETENTION CENTER OR LOCAL CORRECTIONAL FACILITY.
(E) However, if an alleged violator requests and receives any post-
ponement of his revocation hearing, or consents to a postponed revoca-
tion proceeding initiated by the board, or if an alleged violator, by
his actions otherwise precludes the prompt conduct of such proceedings,
the time limit may be extended.
(ii) The revocation hearing shall be conducted by a presiding officer
who may be a member or a hearing officer designated by the board in
accordance with rules of the board.
(iii) Both the alleged violator and an attorney who has filed a notice
of appearance on his behalf in accordance with the rules of the board of
parole shall be given written notice of the date, place and time of the
hearing [as soon as possible but at least fourteen days prior to the
scheduled date] PURSUANT TO SUBPARAGRAPH (IX) OF PARAGRAPH (C) OF THIS
SUBDIVISION.
(iv) The alleged violator shall be given written notice of the rights
enumerated in subparagraph (iii) of paragraph (c) of this subdivision as
well as of his right to present mitigating evidence relevant to restora-
S. 8453 8
tion to presumptive release, parole, conditional release or post-release
supervision and his right to counsel.
(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.
(vi) At the revocation hearing, the charges shall be read and the
alleged violator shall be permitted to plead not guilty, guilty, guilty
with explanation or to stand mute. As to each charge, evidence shall be
introduced through witnesses and documents, if any, in support of that
charge. At the conclusion of each witness's direct testimony, he shall
be made available for cross-examination. If the alleged violator intends
to present a defense to the charges or to present evidence of mitigating
circumstances, the alleged violator shall do so after presentation of
all the evidence in support of a violation of presumptive release,
parole, conditional release or post-release supervision.
(vii) All persons giving evidence at the revocation hearing shall be
sworn before giving any testimony as provided by law.
(viii) At the conclusion of the hearing the presiding officer may
sustain any or all of the violation charges or may dismiss any or all
violation charges. He may sustain a violation charge only if the charge
is supported by a preponderance of the evidence adduced.
(ix) If the presiding officer is not satisfied that there is a prepon-
derance of evidence in support of the violation, he shall dismiss the
violation, cancel the delinquency and restore the person to presumptive
release, parole, conditional release or post-release supervision.
(x) If the presiding officer is satisfied that there is a preponder-
ance of evidence that the alleged violator violated one or more condi-
tions of release in an important respect, he or she shall so find.
INCARCERATION SHALL NOT BE IMPOSED FOR ANY TIER 2 VIOLATION. For each
TIER 1 violation so found, the presiding officer may (A) direct that the
[presumptive releasee, parolee, conditional releasee or person serving a
period of post-release supervision] RELEASEE be restored to supervision;
(B) as an alternative to reincarceration, direct the [presumptive
releasee, parolee, conditional releasee or person serving a period of
post-release supervision be placed in a parole transition facility for a
period not to exceed one hundred eighty days and subsequent restoration
to supervision] RELEASEE RECEIVE RE-ENTRY SERVICES IN THE COMMUNITY FROM
QUALIFIED NONPROFIT AGENCIES; OR (C) [in the case of presumptive releas-
ees, parolees or conditional releasees,] SUBJECT TO SUBPARAGRAPH (XI) OF
THIS PARAGRAPH direct the violator's reincarceration [and fix a date for
consideration by the board for re-release on presumptive release, or
parole or conditional release, as the case may be; or (D) in the case of
persons released to a period of post-release supervision, direct the
violator's reincarceration up to the balance of the remaining period of
S. 8453 9
post-release supervision, not to exceed five years; provided, however,
that a defendant serving a term of post-release supervision for a
conviction of a felony sex offense defined in section 70.80 of the penal
law may be subject to a further period of imprisonment up to the balance
of the remaining period of post-release supervision], SUBJECT TO THE
FOLLOWING LIMITATIONS: (1) FOR ABSCONDING, UP TO SEVEN DAYS REINCARCERA-
TION MAY BE IMPOSED FOR THE FIRST VIOLATION, UP TO FIFTEEN DAYS REINCAR-
CERATION MAY BE IMPOSED FOR THE SECOND VIOLATION, AND UP TO THIRTY DAYS
REINCARCERATION MAY BE IMPOSED FOR THE THIRD OR ANY SUBSEQUENT
VIOLATION; AND (2) FOR ALL OTHER TIER 1 VIOLATIONS NO PERIOD OF REINCAR-
CERATION MAY BE IMPOSED FOR THE FIRST AND SECOND SUBSTANTIATED TECHNICAL
VIOLATIONS FOR WHICH INCARCERATION MAY BE IMPOSED; UP TO SEVEN DAYS
REINCARCERATION MAY BE IMPOSED FOR THE THIRD SUBSTANTIATED TECHNICAL
VIOLATION FOR WHICH INCARCERATION MAY BE IMPOSED; UP TO FIFTEEN DAYS
REINCARCERATION MAY BE IMPOSED FOR THE FOURTH SUBSTANTIATED TECHNICAL
VIOLATION FOR WHICH INCARCERATION MAY BE IMPOSED; UP TO THIRTY DAYS
REINCARCERATION MAY BE IMPOSED FOR THE FIFTH AND SUBSEQUENT SUBSTANTI-
ATED TECHNICAL VIOLATIONS FOR WHICH INCARCERATION MAY BE IMPOSED. IF A
WARRANT WAS EXECUTED PURSUANT TO SUBPARAGRAPH (VI) OF PARAGRAPH (A) OF
THIS SUBDIVISION AND THE PERSON WAS DETAINED PURSUANT TO SUCH SUBPARA-
GRAPH PENDING PRELIMINARY OR REVOCATION HEARINGS, ANY PERIOD OF REINCAR-
CERATION IMPOSED PURSUANT TO THIS PARAGRAPH SHALL BE COUNTED FROM THE
DATE OF THE EXECUTION OF THE WARRANT. IF A WARRANT WAS EXECUTED PURSUANT
TO SUBPARAGRAPH (VI) OF PARAGRAPH (A) OF THIS SUBDIVISION BUT A COURT
RELEASED THE PERSON PENDING PRELIMINARY OR REVOCATION HEARINGS, ANY
PERIOD OF REINCARCERATION IMPOSED PURSUANT TO THIS PARAGRAPH SHALL BE
COUNTED FROM THE DATE OF ISSUANCE OF A DETERMINATION AFTER A FINAL HEAR-
ING THAT THE PERSON HAS VIOLATED ONE OR MORE CONDITIONS OF COMMUNITY
SUPERVISION, AND THE TIME BETWEEN EXECUTION OF THE WARRANT AND RELEASE
OF THE PERSON PENDING PRELIMINARY OR REVOCATION HEARINGS SHALL COUNT
TOWARD THE PERIOD OF REINCARCERATION IMPOSED PURSUANT TO THIS PARAGRAPH.
IF A RELEASEE IS COMMITTED TO THE CUSTODY OF THE SHERIFF PURSUANT TO
ARTICLE FIVE HUNDRED THIRTY OF THE CRIMINAL PROCEDURE LAW FOR CONDUCT
THAT IS THE SUBJECT OF A NOTICE OF VIOLATION, ANY TIME THE PERSON SPENT
CONFINED IN JAIL SHALL COUNT TOWARDS ANY PERIOD OF REINCARCERATION
IMPOSED PURSUANT TO THIS PARAGRAPH. IN ALL CASES, THE PRESIDING OFFICER
SHALL IMPOSE THE LEAST RESTRICTIVE REASONABLE SANCTION. ANY PERIODS OF
REINCARCERATION SHALL RUN CONCURRENTLY IF MORE THAN ONE VIOLATION IS
ADJUDICATED. IF A PERIOD OF REINCARCERATION IS IMPOSED PURSUANT TO THIS
PARAGRAPH, THE RELEASEE SHALL BE RELEASED FROM CUSTODY UPON EXPIRATION
OF THE PERIOD OR THE END OF THE RELEASEE'S PERIOD OF COMMUNITY SUPER-
VISION, WHICHEVER SHALL BE SOONER. [For the violator serving an inde-
terminate sentence who while re-incarcerated has not been found by the
department to have committed a serious disciplinary infraction, such
violator shall be re-released on the date fixed at the revocation hear-
ing. For the violator serving an indeterminate sentence who has been
found by the department to have committed a serious disciplinary infrac-
tion while re-incarcerated, the department shall refer the violator to
the board for consideration for re-release to community supervision.
Upon such referral the board may waive the personal interview between a
member or members of the board and the violator to determine the suit-
ability for re-release when the board directs that the violator be
re-released upon expiration of the time assessment. The board shall
retain the authority to suspend the date fixed for re-release based on
the violator's commission of a serious disciplinary infraction and shall
in such case require a personal interview be conducted within a reason-
S. 8453 10
able time between a panel of members of the board and the violator to
determine suitability for re-release. If an interview is required, the
board shall notify the violator in advance of the date and time of such
interview in accordance with the rules and regulations of the board.]
(xi) If the presiding officer sustains any violations, he must prepare
a written statement, to be made available to the alleged violator and
his counsel, indicating the evidence relied upon and the reasons for
revoking presumptive release, parole, conditional release or post-re-
lease supervision, and for the disposition made.
(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 THIS paragraph
[(f) of subdivision three of section two hundred fifty-nine-i of this
chapter]. The court shall decide whether or not the alleged violator is
incapacitated within thirty days of the referral from the hearing offi-
cer. If the court determines that the alleged violator is not an inca-
pacitated 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
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.
§ 8. This act shall take effect immediately.
