Senate Bill S1343A

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1343
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             January 14, 2019
                                ___________
 
 Introduced  by Sen. BENJAMIN -- read twice and ordered printed, and when
   printed to be committed to the Committee on Crime Victims,  Crime  and
   Correction
 
 AN  ACT  to  amend  the  executive law and the penal law, in relation to
   revocation of presumptive release,  parole,  conditional  release  and
   post-release supervision

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 259 of the executive law is amended by  adding  two
 new subdivisions 5 and 6 to read as follows:
   5.  "RELEASEE"  MEANS AN INDIVIDUAL RELEASED FROM AN INSTITUTION UNDER
 THE JURISDICTION OF THE  DEPARTMENT  INTO  THE  COMMUNITY  ON  TEMPORARY
 RELEASE,  PRESUMPTIVE RELEASE, PAROLE, CONDITIONAL RELEASE, POST-RELEASE
 SUPERVISION OR MEDICAL PAROLE.
   6. "TECHNICAL VIOLATION" MEANS ANY VIOLATION OF A CONDITION OF  COMMU-
 NITY  SUPERVISION  OTHER  THAN  AN  ALLEGATION OF A CRIMINAL ACT THAT IS
 SUBSEQUENTLY PROVEN TO BE A CONVICTION FOR A FELONY OFFENSE, OR THAT  IS
 SUBSEQUENTLY  PROVEN  TO  BE A CONVICTION FOR A MISDEMEANOR OFFENSE THAT
 INCLUDES THE ELEMENT OF INTENT TO COMMIT THE ACT AGAINST ANOTHER  PERSON
 AND  IS  CHARGED  PURSUANT TO EITHER SECTION 121.11, 135.05 OR 135.45 OR
 ARTICLE 120 OR 130 OF THE PENAL LAW.
   § 2. Subdivision 3 of section 70.40 of the penal law,  paragraphs  (a)
 and (b) as amended by section 127-h of subpart B of part C of chapter 62
 of  the  laws of 2011 and paragraph (c) as amended by chapter 478 of the
 laws of 1973, is amended and a new subdivision 4 is  added  to  read  as
 follows:
   3.  Delinquency.  (a)  When  a  person is [alleged] FOUND BY CLEAR AND
 CONVINCING EVIDENCE to have violated the terms of presumptive release or
 parole WILLFULLY FOR THE PURPOSE OF PERMANENTLY AVOIDING SUPERVISION  BY
 FAILING  TO  NOTIFY HIS OR HER COMMUNITY SUPERVISION OFFICER OF A CHANGE
 IN RESIDENCE, FAILING TO MAKE OFFICE OR WRITTEN REPORTS AS DIRECTED,  OR
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD06090-01-9

 S. 1343                             2
 
 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, and the state board of parole has  declared
 such  person  to  be  delinquent,  the  declaration of delinquency shall
 interrupt the person's sentence as of  the  date  of  the  [delinquency]
 ISSUANCE  OF A WARRANT PURSUANT TO SUBPARAGRAPH (IV) OF PARAGRAPH (A) OF
 SUBDIVISION THREE OF SECTION TWO HUNDRED FIFTY-NINE-I OF  THE  EXECUTIVE
 LAW  and such interruption shall continue until the return of the person
 to an institution under the jurisdiction  of  the  state  department  of
 corrections and community supervision.
   (b)  When a person is [alleged] FOUND BY CLEAR AND CONVINCING EVIDENCE
 to have violated the terms of his or her conditional release or post-re-
 lease supervision WILLFULLY FOR  THE  PURPOSE  OF  PERMANENTLY  AVOIDING
 SUPERVISION  BY FAILING TO NOTIFY HIS OR HER COMMUNITY SUPERVISION OFFI-
 CER OF A CHANGE IN RESIDENCE, FAILURE TO MAKE OFFICE OR WRITTEN  REPORTS
 AS  DIRECTED,  OR  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 and has been declared
 delinquent by the parole board or the local conditional release  commis-
 sion having supervision over such person, the declaration of delinquency
 shall interrupt the period of supervision or post-release supervision as
 of  the  date  of  the  [delinquency]  ISSUANCE OF A WARRANT PURSUANT TO
 SUBPARAGRAPH (IV) OF PARAGRAPH (A) OF SUBDIVISION THREE OF  SECTION  TWO
 HUNDRED  FIFTY-NINE-I  OF THE EXECUTIVE LAW.  For a conditional release,
 such interruption shall continue until [the return of the person to  the
 institution  from  which  he  or  she  was released or, if he or she was
 released from an institution under the jurisdiction of the state depart-
 ment of corrections and community supervision, to an  institution  under
 the  jurisdiction of that department. Upon such return, the person shall
 resume service of his or her sentence] EXECUTION OF THE WARRANT.  For  a
 person  released  to post-release supervision, the provisions of section
 70.45 OF THIS ARTICLE shall apply.
   (c) Any time spent by a person in custody from the time of [delinquen-
 cy] EXECUTION OF A WARRANT PURSUANT  TO  PARAGRAPH  (A)  OF  SUBDIVISION
 THREE  OF  SECTION  TWO HUNDRED FIFTY-NINE-I OF THE EXECUTIVE LAW to the
 time service of the sentence resumes shall be credited against the  term
 or maximum term of the interrupted sentence[, provided:
   (i) that such custody was due to an arrest or surrender based upon the
 delinquency; or
   (ii)  that  such  custody arose from an arrest on another charge which
 culminated in a dismissal or an acquittal; or
   (iii) that such custody arose from an arrest on another  charge  which
 culminated in a conviction, but in such case, if a sentence of imprison-
 ment  was imposed, the credit allowed shall be limited to the portion of
 the time spent in custody that exceeds the period, term or maximum  term
 of imprisonment imposed for such conviction].
   4.  EARNED  TIME  CREDITS.  (A)  AFTER  A PERSON HAS BEGUN A PERIOD OF
 PRESUMPTIVE RELEASE, PAROLE OR CONDITIONAL RELEASE PURSUANT TO  SUBDIVI-
 SIONS ONE OR TWO OF THIS SECTION, SUCH PERIOD SHALL BE REDUCED BY THIRTY
 DAYS FOR EVERY THIRTY DAYS THAT SUCH PERSON DOES NOT VIOLATE A CONDITION
 OF  HIS  OR  HER  PRESUMPTIVE  RELEASE,  PAROLE  OR CONDITIONAL RELEASE,
 PROVIDED THE PERSON IS NOT SUBJECT TO ANY SENTENCE WITH A  MAXIMUM  TERM
 OF  LIFE  IMPRISONMENT.  ANY  SUCH  AWARDED EARNED TIME CREDITS SHALL BE
 APPLIED AGAINST SUCH PERSON'S UNSERVED  PORTION  OF  THE  MAXIMUM  TERM,
 AGGREGATE MAXIMUM TERM OR PERIOD OF POST-RELEASE SUPERVISION.

 S. 1343                             3
 
   (B)  EARNED TIME CREDITS MAY BE WITHHELD OR REVOKED ONLY FOR THE THIR-
 TY-DAY PERIOD COMMENCING FROM THE DATE OF VIOLATIVE  BEHAVIOR  SUSTAINED
 AT  A  FINAL REVOCATION HEARING.   EARNED TIME CREDITS MAY NOT BE EARNED
 DURING A PERIOD OF INCARCERATION IMPOSED BASED ON A SUSTAINED VIOLATION.
 A  NEW  THIRTY-DAY PERIOD SHALL COMMENCE ON THE DAY THE PERIOD OF INCAR-
 CERATION ENDS OR AN ORDER IS ISSUED RESTORING A PERSON  TO  SUPERVISION,
 WHICHEVER IS EARLIER.
   (C)  WHEN  A  PERSON IS SUBJECT TO MORE THAN ONE PERIOD OF PRESUMPTIVE
 RELEASE, PAROLE, OR CONDITIONAL RELEASE,  THE  REDUCTION  AUTHORIZED  IN
 THIS  SUBDIVISION  SHALL  BE APPLIED TO EVERY PERIOD OF PAROLE OR CONDI-
 TIONAL RELEASE TO WHICH THE PERSON IS SUBJECT.
   (D) EARNED TIME CREDITS SHALL BE AWARDED  TO  ALL  PEOPLE  SUBJECT  TO
 PAROLE  OR  CONDITIONAL  RELEASE  AT  THE  TIME THIS LEGISLATION BECOMES
 EFFECTIVE RETROACTIVE TO THE INITIAL DATE THE PERSON BEGAN  HIS  OR  HER
 EARLIEST  CURRENT  PERIOD OF PAROLE OR CONDITIONAL RELEASE.  THE DEPART-
 MENT SHALL HAVE SIX MONTHS FROM THE EFFECTIVE DATE OF  THIS  SUBDIVISION
 TO CALCULATE ALL SUCH RETROACTIVE EARNED TIME CREDITS.
   §  3. Paragraphs (d), (e) and (f) of subdivision 5 of section 70.45 of
 the penal law, as amended by section 127-j of subpart B  of  part  C  of
 chapter  62  of the laws of 2011, are amended and a new subdivision 6 is
 added to read as follows:
   (d) When a person is [alleged] FOUND BY CLEAR AND CONVINCING  EVIDENCE
 to  have  violated a condition of post-release supervision WILLFULLY FOR
 THE PURPOSE OF PERMANENTLY AVOIDING SUPERVISION  BY  FAILING  TO  NOTIFY
 COMMUNITY  SUPERVISION OFFICER OF A CHANGE IN RESIDENCE, FAILURE TO MAKE
 OFFICE OR WRITTEN REPORTS AS DIRECTED, OR 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  OR  HER  PAROLE  OFFICER,  WITHOUT
 PERMISSION  and  the department of corrections and community supervision
 has declared such person to  be  delinquent:  (i)  [the  declaration  of
 delinquency shall interrupt the period of post-release supervision; (ii)
 such  interruption  shall continue until the person is restored to post-
 release supervision; (iii)] if the person is  restored  to  post-release
 supervision  without being returned to the department of corrections and
 community supervision, any time spent in custody from the date of delin-
 quency until restoration to  post-release  supervision  shall  first  be
 credited  to  the  maximum  or aggregate maximum term of the sentence or
 sentences of imprisonment, but only to the extent authorized by subdivi-
 sion three of section 70.40 of this article. Any time spent  in  custody
 solely  pursuant  to such delinquency after completion of the maximum or
 aggregate maximum term of the  sentence  or  sentences  of  imprisonment
 shall be credited to the period of post-release supervision, if any; and
 [(iv)]  (II)  if  the  person  is  ordered returned to the department of
 corrections and community supervision, the person shall be  required  to
 serve  the  time  assessment  before  being  re-released to post-release
 supervision. [In the event the balance of the remaining period of  post-
 release  supervision  is six months or less, such time assessment may be
 up to six months unless a longer period is authorized pursuant to subdi-
 vision one of this section. The] IF THE PERSON IS DETAINED  PURSUANT  TO
 PARAGRAPH  (A)  OF SUBDIVISION THREE OF SECTION TWO HUNDRED FIFTY-NINE-I
 OF THE EXECUTIVE LAW PENDING PRELIMINARY  OR  REVOCATION  HEARINGS,  THE
 TIME  ASSESSMENT  SHALL COMMENCE UPON THE EXECUTION OF THE WARRANT. IF A
 WARRANT WAS EXECUTED PURSUANT TO PARAGRAPH (A) OF SUBDIVISION  THREE  OF
 SECTION  TWO  HUNDRED  FIFTY-NINE-I  OF THE EXECUTIVE LAW BUT A CRIMINAL
 COURT RELEASED THE PERSON PENDING PRELIMINARY  OR  REVOCATION  HEARINGS,
 THE  TIME ASSESSMENT SHALL COMMENCE UPON THE ISSUANCE OF A DETERMINATION

 S. 1343                             4
 
 AFTER A FINAL HEARING THAT THE PERSON HAS VIOLATED ONE  OR  MORE  CONDI-
 TIONS  OF  COMMUNITY  SUPERVISION,  AND  SHALL  INCLUDE  THE TIME PERIOD
 BETWEEN EXECUTION OF THE WARRANT  AND  RELEASE  OF  THE  PERSON  PENDING
 PRELIMINARY  OR  REVOCATION  HEARINGS. IF A RELEASEE IS DETAINED ON BAIL
 PURSUANT TO SECTION 530.10 OF  THE  CRIMINAL  PROCEDURE  LAW,  THE  TIME
 ASSESSMENT  SHALL INCLUDE ANY TIME THE RELEASEE SPENT IN SUCH DETENTION.
 IF A NOTICE OF VIOLATION WAS ISSUED PURSUANT  TO  SUBDIVISION  THREE  OF
 SECTION  TWO HUNDRED FIFTY-NINE-I OF THE EXECUTIVE LAW, THE time assess-
 ment shall commence upon the issuance of a determination after  a  final
 hearing  that  the  person has violated one or more conditions of super-
 vision. While serving such assessment, the person shall not receive  any
 good  behavior  allowance pursuant to section eight hundred three of the
 correction law.  Any time spent in custody from the date of  delinquency
 until  return to the department of corrections and community supervision
 shall first be credited to the maximum or aggregate maximum term of  the
 sentence or sentences of imprisonment, but only to the extent authorized
 by  subdivision  three  of section 70.40 of this article. The maximum or
 aggregate maximum term of the  sentence  or  sentences  of  imprisonment
 shall run while the person is serving such time assessment in the custo-
 dy  of the department of corrections and community supervision. Any time
 spent in custody solely pursuant to such delinquency after completion of
 the maximum or aggregate maximum term of the sentence  or  sentences  of
 imprisonment  shall  be  credited  to  the period of post-release super-
 vision, if any.
   [(e) Notwithstanding paragraph (d) of this subdivision, in the event a
 person is sentenced to one or more additional indeterminate or  determi-
 nate term or terms of imprisonment prior to the completion of the period
 of  post-release  supervision,  such  period of post-release supervision
 shall be held in abeyance and the  person  shall  be  committed  to  the
 custody  of  the  department of corrections and community supervision in
 accordance with the requirements of the prior and  additional  terms  of
 imprisonment.
   (f)  When  a  person  serving  a period of post-release supervision is
 returned to the department  of  corrections  and  community  supervision
 pursuant to an additional consecutive sentence of imprisonment and with-
 out  a  declaration  of  delinquency, such period of post-release super-
 vision shall be held in abeyance while the person is in the  custody  of
 the  department of corrections and community supervision. Such period of
 post-release supervision shall resume running upon the  person's  re-re-
 lease.]
   6. EARNED TIME CREDITS. (A) AFTER A PERSON HAS BEGUN A PERIOD OF POST-
 RELEASE  SUPERVISION  PURSUANT  TO  PARAGRAPH (A) OF SUBDIVISION FIVE OF
 THIS SECTION, SUCH PERIOD SHALL BE REDUCED  BY  THIRTY  DAYS  FOR  EVERY
 THIRTY DAYS THAT THE PERSON DOES NOT VIOLATE A CONDITION OF POST-RELEASE
 SUPERVISION,  PROVIDED  THE PERSON IS NOT SUBJECT TO ANY SENTENCE WITH A
 MAXIMUM TERM OF LIFE IMPRISONMENT. ANY SUCH AWARDED EARNED TIME  CREDITS
 SHALL  BE  APPLIED AGAINST THE PERSON'S REMAINING PORTION OF ANY MAXIMUM
 TERM OR AGGREGATE MAXIMUM TERM.
   (B) EARNED TIME CREDITS MAY BE WITHHELD OR REVOKED ONLY FOR THE  THIR-
 TY-DAY  PERIOD  COMMENCING FROM THE DATE OF VIOLATIVE BEHAVIOR SUSTAINED
 AT A FINAL REVOCATION HEARING.  EARNED TIME CREDITS MAY  NOT  BE  EARNED
 DURING A PERIOD OF INCARCERATION IMPOSED BASED ON A SUSTAINED VIOLATION.
 A  NEW  THIRTY-DAY PERIOD SHALL COMMENCE ON THE DAY THE PERIOD OF INCAR-
 CERATION ENDS OR AN ORDER IS ISSUED RESTORING A PERSON  TO  SUPERVISION,
 WHICHEVER IS EARLIER.

 S. 1343                             5
 
   (C)  WHEN  A PERSON IS SUBJECT TO MORE THAN ONE PERIOD OF POST-RELEASE
 SUPERVISION, THE REDUCTION  AUTHORIZED  IN  THIS  SUBDIVISION  SHALL  BE
 APPLIED  TO EVERY PERIOD OF POST-RELEASE SUPERVISION TO WHICH THE PERSON
 IS SUBJECT.
   (D)  EARNED  TIME  CREDITS  SHALL  BE AWARDED TO ALL PEOPLE SUBJECT TO
 POST-RELEASE SUPERVISION AT THE TIME THIS LEGISLATION BECOMES  EFFECTIVE
 RETROACTIVE  TO  THE  INITIAL DATE THE PERSON BEGAN HIS EARLIEST CURRENT
 PERIOD OF POST-RELEASE SUPERVISION.    THE  DEPARTMENT  SHALL  HAVE  SIX
 MONTHS FROM THE EFFECTIVE DATE OF THIS SUBDIVISION TO CALCULATE ALL SUCH
 RETROACTIVE EARNED TIME CREDITS.
   §  4.  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  three  new subparagraphs (iv), (v) and (vi) 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, 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 WRITTEN NOTICE OF VIOLATION MAY
 BE ISSUED, OR IF THE PERSON WOULD BE SUBJECT TO REINCARCERATION PURSUANT
 TO  SUBPARAGRAPH  (X)  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 unless such  person  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 retaking and
 detention of any such person may be further regulated by rules and regu-
 lations 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 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 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  intensive 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 sufficient 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

 S. 1343                             6

 supervision  upon  the  successful  completion of the program] FOR UP TO
 TWENTY-FOUR HOURS PENDING A RECOGNIZANCE HEARING  PURSUANT  TO  SUBPARA-
 GRAPH (IV) OF THIS PARAGRAPH.
   (IV)  UPON EXECUTION OF A WARRANT ISSUED PURSUANT TO THIS SECTION, THE
 AUTHORIZED OFFICER SHALL TAKE THE RELEASEE TO THE LOCAL  CRIMINAL  COURT
 FOR  A  RECOGNIZANCE  HEARING.  SUCH RECOGNIZANCE HEARING SHALL COMMENCE
 WITHIN TWENTY-FOUR HOURS OF THE EXECUTION OF THE WARRANT. AT  THE  HEAR-
 ING,  THE  COURT SHALL CONSIDER ALL AVAILABLE EVIDENCE OF THE RELEASEE'S
 EMPLOYMENT, FAMILY AND COMMUNITY TIES INCLUDING LENGTH OF  RESIDENCY  IN
 THE  COMMUNITY,  HISTORY OF REPORTING IN A TIMELY FASHION TO A PAROLE OR
 SUPERVISORY OFFICER, AND OTHER INDICATORS OF STABILITY. AT  THE  CONCLU-
 SION  OF  THE RECOGNIZANCE HEARING, THE COURT SHALL RELEASE THE RELEASEE
 ON HIS OR HER OWN RECOGNIZANCE UNLESS THE COURT FINDS ON THE RECORD THAT
 RELEASE ON  RECOGNIZANCE  WILL  NOT  REASONABLY  ASSURE  THE  RELEASEE'S
 APPEARANCE  AT  SUBSEQUENT  PRELIMINARY  OR REVOCATION HEARINGS. IN SUCH
 INSTANCES, THE COURT MAY ORDER THAT THE  RELEASEE  ABIDE  BY  THE  LEAST
 RESTRICTIVE NON-MONETARY CONDITION OR SET OF CONDITIONS IN THE COMMUNITY
 NECESSARY  TO  REASONABLY ENSURE THE RELEASEE'S APPEARANCE AT SUBSEQUENT
 PRELIMINARY OR REVOCATION HEARINGS. THE RELEASEE SHALL NOT  BE  REQUIRED
 TO  PAY  FOR  ANY  PART OF THE COST OF RELEASE UNDER NON-MONETARY CONDI-
 TIONS. THE COURT MAY ORDER THAT THE RELEASEE BE DETAINED PENDING PRELIM-
 INARY OR REVOCATION HEARINGS ONLY  UPON  A  FINDING  THAT  THE  RELEASEE
 CURRENTLY  PRESENTS A SUBSTANTIAL RISK OF WILLFULLY FAILING TO APPEAR AT
 THE PRELIMINARY OR REVOCATION HEARINGS AND THAT NO  NON-MONETARY  CONDI-
 TION  OR  COMBINATION  OF  CONDITIONS  IN  THE COMMUNITY WILL REASONABLY
 ASSURE THE RELEASEE'S APPEARANCE AT THE PRELIMINARY OR REVOCATION  HEAR-
 INGS.
   (V)  THE ALLEGED VIOLATOR SHALL BE PERMITTED 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 PAROLE
 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.
   (VI) IF A RELEASEE IS BROUGHT TO A CRIMINAL COURT DUE TO AN ARREST FOR
 ANY  FELONY  OR MISDEMEANOR CHARGE AND A PAROLE WARRANT HAS BEEN ISSUED,
 THEN THE CRIMINAL COURT'S ORDER PURSUANT TO SECTION 510.30 OF THE CRIMI-
 NAL PROCEDURE LAW SHALL CONTROL  IN  DETERMINING  WHETHER  THE  RELEASEE
 SHALL  BE  DETAINED  PENDING A PRELIMINARY OR REVOCATION HEARING. IF THE
 CRIMINAL COURT IMPOSES BAIL PURSUANT TO SECTION 530.10 OF  THE  CRIMINAL
 PROCEDURE LAW, AND THE RELEASEE-DEFENDANT SECURES RELEASE BY PAYING BAIL
 OR  BY OPERATION OF LAW, THEN THE RELEASEE SHALL NOT BE DETAINED FURTHER
 BASED SOLELY ON THE PAROLE WARRANT.
   § 5. 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 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-re-

 S. 1343                             7

 lease 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
 violator]  (A)  FOR  ANY  ALLEGED  TECHNICAL  VIOLATION,  IF A NOTICE OF
 VIOLATION WAS ISSUED OR A PERSON WAS RELEASED ON  RECOGNIZANCE  PURSUANT
 TO  SUBPARAGRAPH  (IV) OF PARAGRAPH (A) OF THIS SUBDIVISION, THE DEPART-
 MENT SHALL WITHIN TEN DAYS OF THE ISSUANCE OF THE NOTICE OF VIOLATION OR
 THE ORDER OF RELEASE ON RECOGNIZANCE AFFORD  THE  PERSON  A  PRELIMINARY
 REVOCATION  HEARING  BEFORE  A HEARING OFFICER DESIGNATED BY THE DEPART-
 MENT. SUCH HEARING OFFICER SHALL NOT  HAVE  HAD  ANY  PRIOR  SUPERVISORY
 INVOLVEMENT OVER THE ALLEGED VIOLATOR.
   (B)  FOR  ANY  ALLEGED TECHNICAL VIOLATION, IF A COURT ISSUED AN ORDER
 DETAINING A PERSON PURSUANT TO SUBPARAGRAPH (IV)  OF  PARAGRAPH  (A)  OF
 THIS  SUBDIVISION  AND THE PERSON WOULD BE SUBJECT TO REINCARCERATION OF
 UP TO THIRTY DAYS OR MORE PURSUANT TO SUBPARAGRAPH (X) OF PARAGRAPH  (F)
 OF THIS SUBDIVISION SHOULD THE VIOLATION BE SUSTAINED AT A FINAL REVOCA-
 TION  HEARING,  THEN  WITHIN  FIVE  DAYS OF THE ISSUANCE OF THE ORDER OF
 DETENTION THE DEPARTMENT SHALL AFFORD SUCH PERSON A PRELIMINARY  REVOCA-
 TION HEARING BEFORE A HEARING OFFICER DESIGNATED BY THE DEPARTMENT. SUCH
 HEARING  OFFICER  SHALL  NOT  HAVE HAD ANY PRIOR SUPERVISORY INVOLVEMENT
 OVER THE ALLEGED VIOLATOR.
   (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 supervision are alleged to
 have been violated, 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 offi-
 cer; that he or she has the right to confront the witnesses against  him
 or  her;  AND THAT SUCH PERSON SHALL HAVE THE RIGHT TO REPRESENTATION BY
 COUNSEL AT ANY PRELIMINARY  AND  FINAL  REVOCATION  HEARINGS.    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 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 has violated one or more condi-
 tions of his or her presumptive release, parole, conditional release  or
 post-release 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 TO BELIEVE THAT  SUCH
 PERSON  HAS  VIOLATED  ONE OR MORE CONDITIONS OF RELEASE IN AN IMPORTANT

 S. 1343                             8

 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.  AS  FAR  AS  PRACTICABLE OR FEASIBLE, ANY ADDITIONAL DOCUMENTS
 HAVING BEEN COLLECTED OR PREPARED  THAT  SUPPORT  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 BE PERMITTED REPRESENTATION BY COUNSEL
 AT THE PRELIMINARY HEARING. IN ANY  CASE,  INCLUDING  WHEN  A  COURT  IS
 CALLED  UPON TO EVALUATE THE CAPACITY OF AN ALLEGED VIOLATOR IN A PAROLE
 PRELIMINARY 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.
   §  6. 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  hearings  shall  be scheduled to be held within
 ninety days of  the  probable  cause  determination]  FOR  ANY  RELEASEE
 CHARGED WITH A VIOLATION:
   (A)  IF  A  COURT  ISSUED  AN  ORDER DETAINING SUCH PERSON PURSUANT TO
 SUBPARAGRAPH (IV) OF PARAGRAPH (A) OF THIS SUBDIVISION  AND  THE  PERSON
 WOULD  BE  SUBJECT  TO  REINCARCERATION  OF UP TO SEVEN DAYS PURSUANT TO
 SUBPARAGRAPH (X) OF THIS PARAGRAPH SHOULD THE VIOLATION BE SUSTAINED  AT
 A  FINAL REVOCATION HEARING, THEN WITHIN TWO DAYS OF THE ISSUANCE OF THE
 ORDER OF DETENTION, THE DEPARTMENT SHALL  AFFORD  SUCH  PERSON  A  FINAL
 REVOCATION  HEARING  BEFORE  A HEARING OFFICER DESIGNATED BY THE DEPART-
 MENT. 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  A  COURT  ISSUED  AN  ORDER DETAINING SUCH PERSON PURSUANT TO
 SUBPARAGRAPH (IV) OF PARAGRAPH (A) OF THIS SUBDIVISION  AND  THE  PERSON
 WOULD  BE  SUBJECT  TO REINCARCERATION OF UP TO FIFTEEN DAYS PURSUANT TO
 SUBPARAGRAPH (X) OF THIS PARAGRAPH SHOULD THE VIOLATION BE SUSTAINED  AT
 A FINAL REVOCATION HEARING, THEN WITHIN FOUR DAYS OF THE ISSUANCE OF THE
 ORDER  OF  DETENTION,  THE  DEPARTMENT  SHALL AFFORD SUCH PERSON A FINAL
 REVOCATION HEARING BEFORE A HEARING OFFICER DESIGNATED  BY  THE  DEPART-
 MENT.  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.
   (C) IF A COURT ISSUED AN  ORDER  DETAINING  SUCH  PERSON  PURSUANT  TO
 SUBPARAGRAPH  (IV)  OF  PARAGRAPH (A) OF THIS SUBDIVISION AND THE PERSON

 S. 1343                             9
 
 WOULD BE SUBJECT TO REINCARCERATION OF UP TO THIRTY DAYS OR MORE  PURSU-
 ANT  TO  SUBPARAGRAPH  (X)  OF  THIS  PARAGRAPH  SHOULD THE VIOLATION BE
 SUSTAINED AT A FINAL REVOCATION HEARING, THEN WITHIN FIFTEEN DAYS  AFTER
 THE ISSUANCE OF THE ORDER OF DETENTION, THE DEPARTMENT SHALL AFFORD SUCH
 PERSON A FINAL REVOCATION HEARING BEFORE A HEARING OFFICER DESIGNATED BY
 THE DEPARTMENT. SUCH HEARING OFFICER SHALL NOT HAVE HAD ANY PRIOR SUPER-
 VISORY INVOLVEMENT OVER THE ALLEGED VIOLATOR.
   (D) IF A NOTICE OF VIOLATION WAS ISSUED OR SUCH PERSON WAS RELEASED ON
 RECOGNIZANCE  PURSUANT  TO  SUBPARAGRAPH  (IV)  OF PARAGRAPH (A) OF THIS
 SUBDIVISION, OR THE PERSON IS ACCUSED OF A NON-TECHNICAL VIOLATION,  THE
 DEPARTMENT  SHALL  WITHIN  THIRTY  DAYS OF THE ISSUANCE OF THE NOTICE OF
 VIOLATION OR THE ORDER OF RELEASE ON RECOGNIZANCE AFFORD  THE  PERSON  A
 FINAL  REVOCATION  HEARING  BEFORE  A  HEARING OFFICER DESIGNATED BY THE
 DEPARTMENT. SUCH HEARING OFFICER SHALL NOT HAVE HAD ANY PRIOR SUPERVISO-
 RY INVOLVEMENT OVER THE ALLEGED VIOLATOR.
   (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-
 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

 S. 1343                            10
 
 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] CLEAR AND
 CONVINCING EVIDENCE. CONDUCT THAT FORMED THE BASIS OF  A  CRIMINAL  CASE
 SHALL  NOT  FORM A BASIS OF A SUSTAINED PAROLE VIOLATION IF THE CRIMINAL
 COURT HAS ADJUDICATED THE  MATTER  WITH  AN  ACQUITTAL,  ADJOURNMENT  IN
 CONTEMPLATION OF DISMISSAL, OR VIOLATION.
   (ix)  If  the  presiding  officer  is  not  satisfied that there is [a
 preponderance of] CLEAR  AND  CONVINCING  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]  CLEAR  AND  CONVINCING  evidence  that  the  alleged  violator
 violated  one  or more conditions of release in an important respect, he
 or she shall so find.
   (XI) For each 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  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  subse-
 quent  restoration  to  supervision]  RECEIVE  RE-ENTRY  SERVICES IN THE
 COMMUNITY FROM QUALIFIED NONPROFIT AGENCIES; (C) in the case of presump-
 tive releasees, parolees or conditional releasees, direct the violator's
 reincarceration and fix a date for consideration by the board for re-re-
 lease on presumptive release, or parole or conditional release,  as  the
 case  may  be,  SUBJECT TO THE FOLLOWING LIMITATIONS: (1) FOR FAILING TO
 NOTIFY HIS OR HER COMMUNITY SUPERVISION OFFICER OF A CHANGE IN RESIDENCE
 AFTER A FINDING OF CLEAR AND CONVINCING EVIDENCE THAT THE RELEASEE ACTED
 WILLFULLY FOR THE PURPOSE OF PERMANENTLY AVOIDING  SUPERVISION;  FAILURE
 TO  MAKE  OFFICE OR WRITTEN REPORTS AS DIRECTED AFTER A FINDING OF CLEAR
 AND CONVINCING EVIDENCE  THAT  THE  RELEASEE  ACTED  WILLFULLY  FOR  THE
 PURPOSE  OF  PERMANENTLY  AVOIDING SUPERVISION; AND LEAVING THE STATE OF
 NEW YORK OR ANY OTHER STATE TO WHICH THE RELEASEE IS RELEASED OR  TRANS-
 FERRED,  OR  ANY  AREA DEFINED IN WRITING BY HIS PAROLE OFFICER, WITHOUT
 PERMISSION, AFTER A FINDING OF CLEAR AND CONVINCING  EVIDENCE  THAT  THE
 RELEASEE  ACTED WILLFULLY FOR THE PURPOSE OF PERMANENTLY AVOIDING SUPER-
 VISION, UP TO SEVEN DAYS INCARCERATION MAY  BE  IMPOSED  FOR  THE  FIRST
 VIOLATION,  UP  TO  FIFTEEN  DAYS  INCARCERATION  MAY BE IMPOSED FOR THE
 SECOND VIOLATION, AND UP TO THIRTY DAYS INCARCERATION MAY BE IMPOSED FOR
 THE THIRD OR ANY SUBSEQUENT  VIOLATION;  (2)  FOR  ALL  OTHER  TECHNICAL
 VIOLATIONS NO PERIOD OF REINCARCERATION MAY BE IMPOSED FOR THE FIRST AND
 SECOND SUBSTANTIATED TECHNICAL VIOLATIONS; UP TO SEVEN DAYS REINCARCERA-
 TION  MAY BE IMPOSED FOR THE THIRD SUBSTANTIATED TECHNICAL VIOLATION; UP
 TO FIFTEEN DAYS REINCARCERATION MAY BE IMPOSED FOR THE FOURTH SUBSTANTI-
 ATED TECHNICAL VIOLATION; UP  TO  THIRTY  DAYS  REINCARCERATION  MAY  BE
 IMPOSED FOR THE FIFTH AND SUBSEQUENT SUBSTANTIATED TECHNICAL VIOLATIONS;
 AND  (3) FOR NON-TECHNICAL VIOLATIONS, UP TO NINETY DAYS REINCARCERATION

 S. 1343                            11
 
 MAY BE IMPOSED; 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 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
 FAILING TO NOTIFY COMMUNITY SUPERVISION OFFICER OF A CHANGE IN RESIDENCE
 AFTER A FINDING OF CLEAR AND CONVINCING EVIDENCE THAT THE RELEASEE ACTED
 WILLFULLY  FOR  THE PURPOSE OF PERMANENTLY AVOIDING SUPERVISION; FAILURE
 TO MAKE OFFICE OR WRITTEN REPORTS AS DIRECTED AFTER A FINDING  OF  CLEAR
 AND  CONVINCING  EVIDENCE  THAT  THE  RELEASEE  ACTED  WILLFULLY FOR THE
 PURPOSE OF PERMANENTLY AVOIDING SUPERVISION; AND LEAVING  THE  STATE  OF
 NEW  YORK OR ANY OTHER STATE TO WHICH THE RELEASEE IS RELEASED OR TRANS-
 FERRED, OR ANY AREA DEFINED IN WRITING BY HIS  PAROLE  OFFICER,  WITHOUT
 PERMISSION,  AFTER  A  FINDING OF CLEAR AND CONVINCING EVIDENCE THAT THE
 RELEASEE ACTED WILLFULLY FOR THE PURPOSE OF PERMANENTLY AVOIDING  SUPER-
 VISION,  UP  TO  SEVEN  DAYS  INCARCERATION MAY BE IMPOSED FOR THE FIRST
 VIOLATION, UP TO FIFTEEN DAYS  INCARCERATION  MAY  BE  IMPOSED  FOR  THE
 SECOND VIOLATION, AND UP TO THIRTY DAYS INCARCERATION MAY BE IMPOSED FOR
 THE  THIRD  OR  ANY  SUBSEQUENT  VIOLATION;  (2) FOR ALL OTHER TECHNICAL
 VIOLATIONS NO PERIOD OF REINCARCERATION MAY BE IMPOSED FOR THE FIRST AND
 SECOND SUBSTANTIATED TECHNICAL VIOLATIONS; UP TO SEVEN DAYS REINCARCERA-
 TION MAY BE IMPOSED FOR THE THIRD SUBSTANTIATED TECHNICAL VIOLATION;  UP
 TO FIFTEEN DAYS REINCARCERATION MAY BE IMPOSED FOR THE FOURTH SUBSTANTI-
 ATED  TECHNICAL  VIOLATION;  UP  TO  THIRTY  DAYS REINCARCERATION MAY BE
 IMPOSED FOR THE FIFTH AND SUBSEQUENT SUBSTANTIATED TECHNICAL VIOLATIONS;
 AND (3) FOR NON-TECHNICAL VIOLATIONS, UP TO NINETY DAYS  REINCARCERATION
 MAY  BE IMPOSED. IF A WARRANT WAS EXECUTED PURSUANT TO SUBPARAGRAPH (IV)
 OF PARAGRAPH (A) OF THIS SUBDIVISION AND THE PERSON WAS DETAINED  PURSU-
 ANT TO SUCH SUBPARAGRAPH PENDING PRELIMINARY OR REVOCATION HEARINGS, ANY
 PERIOD  OF  INCARCERATION  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 (IV) OF PARAGRAPH (A) OF THIS SUBDIVI-
 SION  BUT  A  CRIMINAL  COURT RELEASED THE PERSON PENDING PRELIMINARY OR
 REVOCATION HEARINGS, ANY PERIOD OF  INCARCERATION  IMPOSED  PURSUANT  TO
 THIS  PARAGRAPH SHALL BE COUNTED FROM THE DATE OF ISSUANCE OF A DETERMI-
 NATION AFTER A FINAL HEARING 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 PURSU-
 ANT  TO  THIS  PARAGRAPH.  IF A RELEASEE IS DETAINED ON BAIL PURSUANT TO
 SECTION 530.10 OF THE CRIMINAL PROCEDURE LAW, ANY TIME THE PERSON  SPENT
 IN  DETENTION  ON  BAIL  SHALL COUNT TOWARDS ANY PERIOD OF INCARCERATION
 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  AT A TIME. IF A PERIOD OF INCARCERATION 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 COMMUNI-
 TY  SUPERVISION, WHICHEVER SHALL BE SOONER.  For the violator serving an
 indeterminate 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

 S. 1343                            12
 
 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-
 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)] (XII) If the presiding officer sustains any violations, he must
 prepare a written statement, to be made available to the alleged  viola-
 tor and his counsel, indicating the evidence relied upon and the reasons
 for  revoking  presumptive release, parole, conditional release or post-
 release supervision, and for the disposition made.
   [(xii)] (XIII) If at any  time  during  a  revocation  proceeding  the
 alleged  violator,  his or her counsel, or an employee of the department
 contends, or if it reasonably appears to the hearing officer,  that  the
 alleged  violator  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
 incapacitated 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

 S. 1343                            13
 
 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.
   § 7. Section 259-i of the executive law is amended  by  adding  a  new
 subdivision 9 to read as follows:
   9.  THE BOARD SHALL PROMULGATE RULES AND REGULATIONS TO FACILITATE THE
 PRESENCE OF NONPROFIT SERVICE PROVIDERS ABLE TO OFFER RELEVANT  COMMUNI-
 TY-BASED  SERVICES  TO RELEASEES AT ALL PRELIMINARY AND FINAL REVOCATION
 HEARINGS FOR THE PURPOSE OF HELPING PEOPLE SUBJECT TO  COMMUNITY  SUPER-
 VISION  SUCCESSFULLY  COMPLETE  SUCH  SUPERVISION  AND AVOID FUTURE SUCH
 SUPERVISION, AND TO HELP ENSURE  PRESIDING  OFFICERS  IMPOSE  THE  LEAST
 RESTRICTIVE  REASONABLE  SANCTION  FOR ANY VIOLATION OF COMMUNITY SUPER-
 VISION.
   § 8. This act shall take effect on the ninetieth day  after  it  shall
 have  become  a  law.    Effective  immediately, the addition, amendment
 and/or repeal of any rule or regulation necessary for the implementation
 of this act on its effective date are authorized and directed to be made
 and completed on or before such effective date.

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  1343--B
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             January 14, 2019
                                ___________
 
 Introduced  by  Sens. BENJAMIN, BAILEY, MONTGOMERY, MYRIE, RIVERA, SALA-
   ZAR, SERRANO -- read twice and ordered printed, and when printed to be
   committed to the Committee on Crime Victims, Crime and  Correction  --
   committee  discharged,  bill amended, ordered reprinted as amended and
   recommitted to said committee -- 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:
 
   Section  1.  Section 259 of the executive law is amended by adding two
 new subdivisions 5 and 6 to read as follows:
   5. "RELEASEE" MEANS AN INDIVIDUAL RELEASED FROM AN  INSTITUTION  UNDER
 THE  JURISDICTION  OF  THE  DEPARTMENT  INTO  THE COMMUNITY ON TEMPORARY
 RELEASE, PRESUMPTIVE RELEASE, PAROLE, CONDITIONAL RELEASE,  POST-RELEASE
 SUPERVISION OR MEDICAL PAROLE.
   6.  "TECHNICAL VIOLATION" MEANS ANY VIOLATION OF A CONDITION OF COMMU-
 NITY SUPERVISION OTHER THAN A CONVICTION FOR A FELONY  OFFENSE  OR  THAT
 HAS BEEN PROVEN TO BE A MISDEMEANOR OFFENSE UNDER SECTION 121.11, 135.05
 OR 135.45 OR ARTICLE 120 OR 130 OF THE PENAL LAW.
   §  2.  Subdivision 3 of section 70.40 of the penal law, paragraphs (a)
 and (b) as amended by section 127-h of subpart B of part C of chapter 62
 of the laws of 2011 and paragraph (c) as amended by chapter 478  of  the
 laws  of  1973,  is  amended and a new subdivision 4 is added to read as
 follows:
   3. Delinquency. (a) When a person is  alleged  to  have  violated  the
 terms  of  presumptive  release  or  parole WILLFULLY FOR THE PURPOSE OF
 PERMANENTLY AVOIDING SUPERVISION BY FAILING TO NOTIFY HIS OR HER  COMMU-
 NITY  SUPERVISION  OFFICER  OF  A  CHANGE  IN RESIDENCE, FAILING TO MAKE
 OFFICE OR WRITTEN REPORTS AS DIRECTED, OR LEAVING THE STATE OF NEW  YORK
 OR  ANY OTHER STATE TO WHICH THE RELEASEE IS RELEASED OR TRANSFERRED, OR
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD06090-05-9

 S. 1343--B                          2
 
 ANY AREA DEFINED IN WRITING BY HIS PAROLE OFFICER,  WITHOUT  PERMISSION,
 and the state board of parole has declared such person to be delinquent,
 the  declaration of delinquency shall interrupt the person's sentence as
 of  the  date  of  the  delinquency and such interruption shall continue
 until the [return of the person to an institution under the jurisdiction
 of the  state  department  of  corrections  and  community  supervision]
 EXECUTION OF THE WARRANT.
   (b)  When a person is alleged to have violated the terms of his or her
 conditional  release  or  post-release  supervision  WILLFULLY  FOR  THE
 PURPOSE  OF PERMANENTLY AVOIDING SUPERVISION BY FAILING TO NOTIFY HIS OR
 HER COMMUNITY SUPERVISION OFFICER OF A CHANGE IN RESIDENCE,  FAILURE  TO
 MAKE  OFFICE OR WRITTEN REPORTS AS DIRECTED, OR LEAVING THE STATE OF NEW
 YORK OR ANY OTHER STATE TO WHICH THE  RELEASEE  IS  RELEASED  OR  TRANS-
 FERRED,  OR  ANY  AREA DEFINED IN WRITING BY HIS PAROLE OFFICER, WITHOUT
 PERMISSION and has been declared delinquent by the parole board  or  the
 local  conditional  release  commission  having  supervision  over  such
 person, the declaration of delinquency shall  interrupt  the  period  of
 supervision or post-release supervision as of the date of the delinquen-
 cy.  For  a  conditional release, such interruption shall continue until
 the [return of the person to the institution from which he  or  she  was
 released  or,  if  he  or she was released from an institution under the
 jurisdiction of the state department of corrections and community super-
 vision, to an institution under the  jurisdiction  of  that  department.
 Upon  such  return,  the  person  shall  resume  service  of  his or her
 sentence] EXECUTION OF THE WARRANT.  For a person released  to  post-re-
 lease supervision, the provisions of section 70.45 OF THIS ARTICLE shall
 apply.
   (c) Any time spent by a person in custody from the time of [delinquen-
 cy]  EXECUTION  OF  A  WARRANT  PURSUANT TO PARAGRAPH (A) OF SUBDIVISION
 THREE OF SECTION TWO HUNDRED FIFTY-NINE-I OF THE EXECUTIVE  LAW  to  the
 time  service of the sentence resumes shall be credited against the term
 or maximum term of the interrupted sentence[, provided:
   (i) that such custody was due to an arrest or surrender based upon the
 delinquency; or
   (ii) that such custody arose from an arrest on  another  charge  which
 culminated in a dismissal or an acquittal; or
   (iii)  that  such custody arose from an arrest on another charge which
 culminated in a conviction, but in such case, if a sentence of imprison-
 ment was imposed, the credit allowed shall be limited to the portion  of
 the  time spent in custody that exceeds the period, term or maximum term
 of imprisonment imposed for such conviction].
   4. EARNED TIME CREDITS. (A) AFTER A  PERSON  HAS  BEGUN  A  PERIOD  OF
 COMMUNITY SUPERVISION PURSUANT TO THIS SECTION AND SECTION 70.45 OF THIS
 ARTICLE,  SUCH  PERIOD  SHALL BE REDUCED BY THIRTY DAYS FOR EVERY THIRTY
 DAYS THAT SUCH PERSON DOES NOT VIOLATE A CONDITION OF HIS OR HER  COMMU-
 NITY  SUPERVISION,  PROVIDED  THE  PERSON IS NOT SUBJECT TO ANY SENTENCE
 WITH A MAXIMUM TERM OF LIFE IMPRISONMENT. THE CALCULATION OF EARNED TIME
 CREDIT PERIODS SHALL BEGIN ON THE  RELEASEE'S  FIRST  DAY  OF  COMMUNITY
 SUPERVISION AND SHALL BE AWARDED AFTER EACH COMPLETED THIRTY DAY PERIOD.
 ANY  SUCH  AWARDED  EARNED  TIME  CREDITS  SHALL BE APPLIED AGAINST SUCH
 PERSON'S UNSERVED PORTION OF THE MAXIMUM TERM, AGGREGATE MAXIMUM TERM OR
 PERIOD OF POST-RELEASE SUPERVISION FOR ANY CURRENT SENTENCE.
   (B) EARNED TIME CREDITS MAY BE WITHHELD OR REVOKED ONLY FOR THE  THIR-
 TY-DAY  PERIOD  COMMENCING FROM THE DATE OF VIOLATIVE BEHAVIOR SUSTAINED
 AT A FINAL REVOCATION HEARING, EXCEPT THAT EARNED TIME  CREDITS  MAY  BE
 WITHHELD  OR  REVOKED FOR THE ENTIRE TIME PERIOD DURING WHICH A RELEASEE

 S. 1343--B                          3
 
 ABSCONDED FROM SUPERVISION, AS SUSTAINED AT A FINAL REVOCATION  HEARING,
 AND  AS  DEFINED  IN  SUBPARAGRAPH (XII) OF PARAGRAPH (F) OF SUBDIVISION
 THREE OF SECTION TWO HUNDRED FIFTY-NINE-I OF THE EXECUTIVE LAW.   EARNED
 TIME  CREDITS MAY NOT BE EARNED DURING A PERIOD OF INCARCERATION IMPOSED
 BASED ON A SUSTAINED VIOLATION  OR  NEW  CRIMINAL  CONVICTION.  AFTER  A
 SUSTAINED  VIOLATION,  THE  CALCULATION  OF AN EARNED TIME CREDIT PERIOD
 SHALL RECOMMENCE ON THE THIRTY-FIRST DAY AFTER THE DATE OF THE VIOLATIVE
 BEHAVIOR OR, IF THE SUSTAINED VIOLATION RESULTED IN A TERM OF INCARCERA-
 TION, ON THE DAY THE RELEASEE  IS  RESTORED  TO  COMMUNITY  SUPERVISION,
 WHICHEVER IS LATER.
   (C)  WHEN  A  PERSON  IS  SUBJECT TO MORE THAN ONE PERIOD OF COMMUNITY
 SUPERVISION, THE REDUCTION  AUTHORIZED  IN  THIS  SUBDIVISION  SHALL  BE
 APPLIED  TO  EVERY  PERIOD OF PAROLE OR CONDITIONAL RELEASE TO WHICH THE
 PERSON IS SUBJECT.
   (D) EARNED TIME CREDITS SHALL BE AWARDED  TO  ANY  PERSON  SUBJECT  TO
 COMMUNITY  SUPERVISION  AT  THE  TIME THIS LEGISLATION BECOMES EFFECTIVE
 RETROACTIVE TO THE INITIAL DATE SUCH PERSON BEGAN HIS  OR  HER  EARLIEST
 CURRENT PERIOD OF COMMUNITY SUPERVISION.  IF A RELEASEE'S CURRENT PERIOD
 OF  COMMUNITY SUPERVISION HAS BEEN INTERRUPTED BY A PERIOD OF INCARCERA-
 TION PRIOR TO THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF TWO THOU-
 SAND NINETEEN WHICH ADDED THIS SUBDIVISION AND ANY PORTION OF SUCH PERI-
 OD OF INCARCERATION WOULD HAVE BEEN INELIGIBLE FOR INCARCERATION IF SUCH
 CHAPTER OF THE LAWS OF TWO THOUSAND NINETEEN WHICH ADDED  THIS  SUBDIVI-
 SION  HAD ALREADY BEEN IN EFFECT, THE DEPARTMENT SHALL AWARD RETROACTIVE
 EARNED TIME CREDITS TO THE RELEASEE FOR SUCH INELIGIBLE PORTION OF  SUCH
 PERIOD  OF  INCARCERATION. THE DEPARTMENT SHALL HAVE SIX MONTHS FROM THE
 EFFECTIVE DATE OF THIS SUBDIVISION TO CALCULATE ALL  RETROACTIVE  EARNED
 TIME  CREDITS;  HOWEVER,  THE  DEPARTMENT  OF  CORRECTIONS AND COMMUNITY
 SUPERVISION SHALL PRIORITIZE EARNED TIME CREDIT CALCULATIONS FOR RELEAS-
 EES WHOSE TERMS OF COMMUNITY SUPERVISION ARE DUE TO TERMINATE BEFORE THE
 CONCLUSION OF SUCH SIX MONTHS. RETROACTIVE EARNED TIME CREDITS SHALL NOT
 BE AWARDED TO ANY  RELEASEE  SERVING  A  TERM  OF  INCARCERATION  FOR  A
 SUSTAINED  PAROLE  VIOLATION  AT  THE  TIME OF THE EFFECTIVE DATE OF THE
 CHAPTER OF THE LAWS OF TWO THOUSAND NINETEEN WHICH ADDED  THIS  SUBDIVI-
 SION UNTIL THE RELEASEE IS RETURNED TO COMMUNITY SUPERVISION.
   §  3. Paragraphs (d), (e) and (f) of subdivision 5 of section 70.45 of
 the penal law, as amended by section 127-j of subpart B  of  part  C  of
 chapter 62 of the laws of 2011, are amended to read as follows:
   (d)  When a person is alleged to have violated a condition of post-re-
 lease supervision WILLFULLY FOR  THE  PURPOSE  OF  PERMANENTLY  AVOIDING
 SUPERVISION  BY  FAILING  TO  NOTIFY  COMMUNITY SUPERVISION OFFICER OF A
 CHANGE IN RESIDENCE, FAILURE  TO  MAKE  OFFICE  OR  WRITTEN  REPORTS  AS
 DIRECTED,  OR  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  OR HER PAROLE OFFICER, WITHOUT PERMISSION and the department of
 corrections and community supervision has declared  such  person  to  be
 delinquent: (i) the declaration of delinquency shall interrupt the peri-
 od  of  post-release  supervision; (ii) such interruption shall continue
 until the person is restored to post-release supervision; (iii)  if  the
 person is restored to post-release supervision without being returned to
 the  department of corrections and community supervision, any time spent
 in custody from the date of delinquency until  restoration  to  post-re-
 lease  supervision  shall  first be credited to the maximum or aggregate
 maximum term of the sentence or sentences of imprisonment, but  only  to
 the  extent  authorized  by  subdivision  three of section 70.40 of this
 article. Any time spent in custody solely pursuant to  such  delinquency

 S. 1343--B                          4
 
 after  completion  of  the  maximum  or  aggregate  maximum  term of the
 sentence or sentences of imprisonment shall be credited to the period of
 post-release supervision, if any; and (iv)  if  the  person  is  ordered
 returned to the department of corrections and community supervision, the
 person  shall  be  required  to  serve  the time assessment before being
 re-released to post-release supervision. [In the event  the  balance  of
 the  remaining period of post-release supervision is six months or less,
 such time assessment may be up to six months unless a longer  period  is
 authorized  pursuant  to  subdivision  one  of this section. The] IF THE
 PERSON IS DETAINED PURSUANT TO PARAGRAPH (A)  OF  SUBDIVISION  THREE  OF
 SECTION  TWO  HUNDRED FIFTY-NINE-I OF THE EXECUTIVE LAW PENDING PRELIMI-
 NARY OR REVOCATION HEARINGS, THE TIME ASSESSMENT SHALL COMMENCE UPON THE
 EXECUTION OF THE WARRANT. IF A WARRANT WAS EXECUTED  PURSUANT  TO  PARA-
 GRAPH  (A)  OF  SUBDIVISION THREE OF SECTION TWO HUNDRED FIFTY-NINE-I OF
 THE EXECUTIVE LAW BUT A TRIAL COURT RELEASED THE PERSON PENDING PRELIMI-
 NARY OR REVOCATION HEARINGS, THE TIME ASSESSMENT SHALL COMMENCE UPON THE
 ISSUANCE OF A DETERMINATION AFTER A FINAL HEARING THAT  THE  PERSON  HAS
 VIOLATED  ONE  OR  MORE  CONDITIONS  OF COMMUNITY SUPERVISION, AND SHALL
 INCLUDE THE TIME PERIOD BETWEEN EXECUTION OF THE WARRANT AND RELEASE  OF
 THE  PERSON PENDING PRELIMINARY OR REVOCATION HEARINGS. IF A RELEASEE IS
 DETAINED ON BAIL PURSUANT TO SECTION 530.10 OF  THE  CRIMINAL  PROCEDURE
 LAW,  THE  TIME  ASSESSMENT SHALL INCLUDE ANY TIME THE RELEASEE SPENT IN
 SUCH DETENTION. IF A NOTICE OF VIOLATION WAS ISSUED PURSUANT TO SUBDIVI-
 SION THREE OF SECTION TWO HUNDRED FIFTY-NINE-I OF THE EXECUTIVE LAW, THE
 time assessment shall commence upon  the  issuance  of  a  determination
 after  a  final  hearing that the person has violated one or more condi-
 tions of supervision. While serving such assessment,  the  person  shall
 not  receive  any  good  behavior  allowance  pursuant  to section eight
 hundred three of the correction law.  Any time spent in custody from the
 date of delinquency until return to the department  of  corrections  and
 community  supervision  shall first be credited to the maximum or aggre-
 gate maximum term of the sentence or sentences of imprisonment, but only
 to the extent authorized by subdivision three of section 70.40  of  this
 article.  The  maximum  or  aggregate  maximum  term  of the sentence or
 sentences of imprisonment shall run while the  person  is  serving  such
 time  assessment  in  the  custody  of the department of corrections and
 community supervision. Any time spent in custody solely pursuant to such
 delinquency after completion of the maximum or aggregate maximum term of
 the sentence or sentences of imprisonment shall be credited to the peri-
 od of post-release supervision, if any.
   [(e) Notwithstanding paragraph (d) of this subdivision, in the event a
 person is sentenced to one or more additional indeterminate or  determi-
 nate term or terms of imprisonment prior to the completion of the period
 of  post-release  supervision,  such  period of post-release supervision
 shall be held in abeyance and the  person  shall  be  committed  to  the
 custody  of  the  department of corrections and community supervision in
 accordance with the requirements of the prior and  additional  terms  of
 imprisonment.
   (f)  When  a  person  serving  a period of post-release supervision is
 returned to the department  of  corrections  and  community  supervision
 pursuant to an additional consecutive sentence of imprisonment and with-
 out  a  declaration  of  delinquency, such period of post-release super-
 vision shall be held in abeyance while the person is in the  custody  of
 the  department of corrections and community supervision. Such period of
 post-release supervision shall resume running upon the  person's  re-re-
 lease.]

 S. 1343--B                          5
 
   §  4.  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] PROBABLE  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 WRITTEN NOTICE
 OF VIOLATION MAY BE ISSUED, OR IF THE PERSON WOULD BE SUBJECT  TO  REIN-
 CARCERATION PURSUANT TO SUBPARAGRAPH (X) OF PARAGRAPH (F) OF THIS SUBDI-
 VISION SHOULD THE VIOLATION BE SUSTAINED AT A FINAL REVOCATION HEARING a
 warrant may be issued for the retaking of such person and for his tempo-
 rary  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 temporary or final order of observation pursu-
 ant  to  article  seven hundred thirty of the criminal procedure law, in
 which case no NOTICE OF VIOLATION OR warrant shall be issued. The retak-
 ing 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 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 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  intensive  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 sufficient 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 restora-
 tion  to  supervision upon the successful completion of the program] FOR
 UP TO TWENTY-FOUR HOURS  PENDING  A  RECOGNIZANCE  HEARING  PURSUANT  TO
 SUBPARAGRAPH  (IV) OF THIS PARAGRAPH.  NO NOTICE OF VIOLATION OR WARRANT
 SHALL BE ISSUED DUE TO A RELEASEE BEING IN THE COMPANY OF OR  FRATERNIZ-
 ING  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 THE LOCAL TRIAL COURT FOR
 A RECOGNIZANCE HEARING. SUCH RECOGNIZANCE HEARING SHALL COMMENCE  WITHIN
 TWENTY-FOUR HOURS OF THE EXECUTION OF THE WARRANT.

 S. 1343--B                          6
 
   (V) AT A RECOGNIZANCE HEARING, THE DEPARTMENT SHALL HAVE THE BURDEN TO
 DEMONSTRATE  TO  THE COURT THAT THE EXECUTED WARRANT WAS PROPERLY ISSUED
 PURSUANT TO THIS SECTION AND THAT THE RELEASEE IS POTENTIALLY SUBJECT TO
 INCARCERATION PURSUANT TO PARAGRAPH (F) OF THIS SUBDIVISION.
   (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, AND OTHER  INDICATORS
 OF  STABILITY.  AT THE CONCLUSION OF THE RECOGNIZANCE HEARING, THE COURT
 SHALL RELEASE THE RELEASEE ON HIS OR HER  OWN  RECOGNIZANCE  UNLESS  THE
 COURT  FINDS  ON  THE  RECORD OR IN WRITING THAT RELEASE ON RECOGNIZANCE
 WILL NOT REASONABLY  ASSURE  THE  RELEASEE'S  APPEARANCE  AT  SUBSEQUENT
 PRELIMINARY  OR  REVOCATION HEARINGS. IN SUCH INSTANCES, THE COURT SHALL
 RELEASE THE RELEASEE UNDER NON-MONETARY CONDITIONS, SELECTING THE  LEAST
 RESTRICTIVE  ALTERNATIVE  CONDITIONS  THAT  WILL  REASONABLY  ASSURE THE
 RELEASEE'S APPEARANCE AT SUBSEQUENT PRELIMINARY OR REVOCATION  HEARINGS.
 THE  COURT  SHALL  EXPLAIN  ITS  CHOICE OF ALTERNATIVE CONDITIONS ON THE
 RECORD OR IN WRITING. THE RELEASEE SHALL NOT BE REQUIRED TO PAY FOR  ANY
 PART OF THE COST OF RELEASE UNDER NON-MONETARY CONDITIONS. THE COURT MAY
 ORDER THAT THE RELEASEE BE DETAINED PENDING PRELIMINARY OR FINAL REVOCA-
 TION 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 COMBINA-
 TION  OF  CONDITIONS  IN  THE  COMMUNITY  WILL  REASONABLY  ASSURE   THE
 RELEASEE'S APPEARANCE AT THE PRELIMINARY OR FINAL REVOCATION HEARINGS.
   (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) IF A RELEASEE IS BROUGHT TO OR APPEARS IN A TRIAL COURT DUE  TO
 AN  ARREST  FOR  ANY ALLEGED FELONY OR MISDEMEANOR, AND AT ANY POINT THE
 DEPARTMENT ISSUES A WARRANT FOR THE SAME ALLEGED CRIMINAL CONDUCT,  THEN
 THE  COURT'S  ORDER PURSUANT TO SECTION 530.10 OF THE CRIMINAL PROCEDURE
 LAW SHALL CONTROL IN DETERMINING WHETHER THE RELEASEE SHALL BE  DETAINED
 PENDING  A PRELIMINARY OR FINAL REVOCATION HEARING, PROVIDED THAT AT THE
 TIME OF THE COURT'S ORDER, PURSUANT TO SECTION 530.10  OF  THE  CRIMINAL
 PROCEDURE LAW, THE COURT WAS INFORMED THE RELEASEE WAS SUBJECT TO COMMU-
 NITY SUPERVISION. PROVIDED, HOWEVER, THAT NOTWITHSTANDING SECTION 530.10
 OF  THE CRIMINAL PROCEDURE LAW, THE COURT MAY ORDER THAT THE RELEASEE BE
 DETAINED PENDING PRELIMINARY OR FINAL REVOCATION HEARINGS UPON A FINDING
 ON THE RECORD OR IN WRITING  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 COMBINA-
 TION OF CONDITIONS IN THE COMMUNITY SUPERVISION WILL  REASONABLY  ASSURE
 THE  RELEASEE'S  APPEARANCE AT THE PRELIMINARY OR FINAL REVOCATION HEAR-
 INGS. IF THE CRIMINAL COURT IMPOSES BAIL PURSUANT TO SECTION  530.10  OF
 THE  CRIMINAL  PROCEDURE LAW, AND THE RELEASEE-DEFENDANT 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;
 PROVIDED, HOWEVER, IF THE DEPARTMENT  ISSUES  A  WARRANT  FOR  THE  SAME
 ALLEGED  CRIMINAL  CONDUCT  AFTER  THE COURT'S ORDER PURSUANT TO SECTION

 S. 1343--B                          7
 
 530.10 OF THE CRIMINAL PROCEDURE LAW AND THE DEPARTMENT CAN  DEMONSTRATE
 THAT  AT  THE  TIME OF SUCH COURT'S ORDER THE COURT WAS NOT INFORMED THE
 RELEASEE WAS SUBJECT TO COMMUNITY SUPERVISION, THEN THE COURT SHALL HOLD
 A  RECOGNIZANCE HEARING WITHIN TWENTY-FOUR HOURS OF THE EXECUTION OF THE
 WARRANT.
   § 5. 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 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-re-
 lease 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
 violator]  (A) FOR ANY ALLEGED TECHNICAL VIOLATION FOR WHICH A NOTICE OF
 VIOLATION WAS ISSUED OR A PERSON WAS RELEASED ON  RECOGNIZANCE  PURSUANT
 TO  SUBPARAGRAPH  (IV) OF PARAGRAPH (A) OF THIS SUBDIVISION, THE DEPART-
 MENT SHALL WITHIN TEN DAYS OF THE ISSUANCE OF THE NOTICE OF VIOLATION OR
 THE ORDER OF RELEASE ON RECOGNIZANCE AFFORD  THE  PERSON  A  PRELIMINARY
 REVOCATION  HEARING  BEFORE  A HEARING OFFICER DESIGNATED BY THE DEPART-
 MENT. 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 LOCAL CORRECTIONAL FACILI-
 TY.
   (B) FOR ANY ALLEGED TECHNICAL VIOLATION FOR WHICH A  COURT  ISSUED  AN
 ORDER  DETAINING A PERSON PURSUANT TO SUBPARAGRAPH (IV) OF PARAGRAPH (A)
 OF THIS SUBDIVISION AND THE PERSON WOULD BE SUBJECT  TO  REINCARCERATION
 OF  UP  TO THIRTY DAYS OR MORE 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 REVO-
 CATION HEARING BEFORE A HEARING OFFICER DESIGNATED  BY  THE  DEPARTMENT.
 SUCH  HEARING  OFFICER SHALL NOT HAVE HAD ANY PRIOR SUPERVISORY INVOLVE-
 MENT OVER THE ALLEGED VIOLATOR.
   (C) FOR ANY ALLEGED NON-TECHNICAL VIOLATION, WITHIN TEN  DAYS  OF  THE
 EXECUTION  OF  THE WARRANT FOR THE VIOLATION THE DEPARTMENT SHALL AFFORD
 SUCH PERSON A PRELIMINARY HEARING BEFORE A HEARING OFFICER DESIGNATED BY
 THE DEPARTMENT. SUCH HEARING OFFICER SHALL NOT HAVE HAD ANY PRIOR SUPER-
 VISORY INVOLVEMENT OVER THE ALLEGED VIOLATOR.
   (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, and in what manner; that such

 S. 1343--B                          8
 
 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 right to
 confront the witnesses against him or her; AND THAT  SUCH  PERSON  SHALL
 HAVE THE RIGHT TO REPRESENTATION BY COUNSEL AT ANY PRELIMINARY AND FINAL
 REVOCATION  HEARINGS.   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 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] A
 PREPONDERANCE OF THE EVIDENCE 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  super-
 vision in an important respect. Proof of conviction of a crime committed
 while  under  supervision  shall constitute [probable cause] PRIMA FACIE
 EVIDENCE OF A VIOLATION OF A CONDITION OF COMMUNITY SUPERVISION for  the
 purposes of this section.
   (IX)  IF  THE HEARING OFFICER FINDS BY A PREPONDERANCE OF THE EVIDENCE
 THAT SUCH PERSON HAS VIOLATED ONE OR MORE CONDITIONS OF COMMUNITY SUPER-
 VISION IN AN IMPORTANT RESPECT, THE RELEASEE SHALL, AT THE CONCLUSION OF
 THE PRELIMINARY HEARING 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  COUNSEL  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  OFFICER;  THAT HE OR SHE HAS THE RIGHT TO
 CONFRONT THE WITNESSES AGAINST HIM OR HER.  AS  FAR  AS  PRACTICABLE  OR
 FEASIBLE,  ANY  ADDITIONAL  DOCUMENTS  HAVING BEEN COLLECTED OR PREPARED
 THAT SUPPORT 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.
   § 6. 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:

 S. 1343--B                          9

   (f) (i) [Revocation hearings shall be  scheduled  to  be  held  within
 ninety  days  of  the  probable  cause  determination]  FOR ANY RELEASEE
 CHARGED WITH A VIOLATION:
   (A)  IF  A  COURT  ISSUED  AN  ORDER DETAINING SUCH PERSON PURSUANT TO
 SUBPARAGRAPH (IV) OF PARAGRAPH (A) OF THIS SUBDIVISION  AND  THE  PERSON
 WOULD  BE  SUBJECT  TO  REINCARCERATION  OF UP TO SEVEN DAYS PURSUANT TO
 SUBPARAGRAPH (X) OF THIS PARAGRAPH SHOULD THE VIOLATION BE SUSTAINED  AT
 A  FINAL REVOCATION HEARING, 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 SUPERVISO-
 RY INVOLVEMENT OVER THE  ALLEGED  VIOLATOR.  NO  PRELIMINARY  REVOCATION
 HEARING SHALL BE HELD IN THIS INSTANCE.
   (B)  IF  A  COURT  ISSUED  AN  ORDER DETAINING SUCH PERSON PURSUANT TO
 SUBPARAGRAPH (IV) OF PARAGRAPH (A) OF THIS SUBDIVISION  AND  THE  PERSON
 WOULD  BE  SUBJECT  TO REINCARCERATION OF UP TO FIFTEEN DAYS PURSUANT TO
 SUBPARAGRAPH (X) OF THIS PARAGRAPH SHOULD THE VIOLATION BE SUSTAINED  AT
 A FINAL REVOCATION HEARING, 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 HEARING OFFICER SHALL NOT HAVE HAD ANY PRIOR SUPERVISO-
 RY  INVOLVEMENT  OVER  THE  ALLEGED  VIOLATOR. NO PRELIMINARY REVOCATION
 HEARING SHALL BE HELD IN THIS INSTANCE.
   (C) IF A COURT ISSUED AN  ORDER  DETAINING  SUCH  PERSON  PURSUANT  TO
 SUBPARAGRAPH  (IV)  OF  PARAGRAPH (A) OF THIS SUBDIVISION AND THE PERSON
 WOULD BE SUBJECT TO REINCARCERATION OF UP TO THIRTY DAYS OR MORE  PURSU-
 ANT  TO  SUBPARAGRAPH  (X)  OF  THIS  PARAGRAPH  SHOULD THE VIOLATION BE
 SUSTAINED AT A FINAL REVOCATION HEARING, 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 SUCH PERSON WAS RELEASED ON
 RECOGNIZANCE PURSUANT TO SUBPARAGRAPH (IV)  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 ON  RECOGNIZANCE  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 INVOLVEMENT OVER THE ALLEGED VIOLATOR.  SUCH HEAR-
 ING SHALL NOT BE HELD AT A CORRECTIONAL FACILITY,  DETENTION  CENTER  OR
 LOCAL  CORRECTIONAL  FACILITY. THE DEPARTMENT SHALL HAVE SIX MONTHS FROM
 THE DATE OF THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF  TWO  THOU-
 SAND NINETEEN THAT AMENDED THIS PARAGRAPH TO BEGIN TO HOLD SUCH HEARINGS
 AT ALLOWABLE LOCATIONS.
   (E)  IF  SUCH  PERSON  IS  ACCUSED  OF  A NON-TECHNICAL VIOLATION, THE
 DEPARTMENT SHALL WITHIN THIRTY DAYS OF  THE  EXECUTION  OF  THE  WARRANT
 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 SUPERVISORY INVOLVEMENT OVER THE ALLEGED VIOLATOR.
   (F) 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.

 S. 1343--B                         10
 
   (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-
 tion to presumptive release, parole, conditional release or post-release
 supervision and his right to counsel.
   (v)  The  alleged violator shall [be permitted] HAVE A RIGHT TO repre-
 sentation 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 documenta-
 ry evidence in defense of the charges; and present witnesses  and  docu-
 mentary 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]  CLEAR  AND
 CONVINCING  EVIDENCE.  CONDUCT  THAT FORMED THE BASIS OF AN ARREST SHALL
 NOT FORM A BASIS OF A SUSTAINED PAROLE VIOLATION IF A COURT HAS  ADJUDI-
 CATED  THE  MATTER  WITH  AN  ACQUITTAL, ADJOURNMENT IN CONTEMPLATION OF
 DISMISSAL, OR VIOLATION.
   (ix) If the presiding officer  is  not  satisfied  that  there  is  [a
 preponderance  of]  CLEAR  AND  CONVINCING  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]  CLEAR  AND  CONVINCING  evidence  that  the  alleged violator

 S. 1343--B                         11
 
 violated one or more conditions of release in an important  respect,  he
 or  she shall so find.  FOR EACH VIOLATION FOUND, OTHER THAN ABSCONDING,
 THE PRESIDING OFFICER SHALL DIRECT THAT NO EARNED TIME CREDITS SHALL  BE
 AWARDED  FOR  THE  THIRTY  DAY  PERIOD  COMMENCING  FROM THE DATE OF THE
 SUSTAINED VIOLATION. FOR ANY ABSCONDING VIOLATION FOUND,  THE  PRESIDING
 OFFICER  SHALL  DIRECT  THAT NO EARNED TIME CREDITS SHALL BE AWARDED FOR
 THE ENTIRE TIME PERIOD  DURING  WHICH  A  RELEASEE  WAS  FOUND  TO  HAVE
 ABSCONDED FROM SUPERVISION.
   (XI)  INCARCERATION  SHALL  NOT  BE  IMPOSED  FOR ANY OF THE FOLLOWING
 VIOLATIONS: (A) POSITIVE DRUG TEST FOR DRUGS OR A  CONTROLLED  SUBSTANCE
 WITHOUT  PROPER  MEDICAL  AUTHORIZATION, OR POSSESSION OF DRUG PARAPHER-
 NALIA, UNLESS THE RELEASEE IS SUBJECT TO COMMUNITY SUPERVISION DUE TO  A
 CONVICTION  FOR DRIVING WHILE ABILITY IMPAIRED AT LEAST IN PART BY DRUGS
 PURSUANT TO SECTION ELEVEN HUNDRED NINETY-TWO OF THE VEHICLE AND TRAFFIC
 LAW; (B) POSITIVE ALCOHOL TEST OR USE OR POSSESSION OF  ALCOHOL,  UNLESS
 THE RELEASEE IS SUBJECT TO COMMUNITY SUPERVISION DUE TO A CONVICTION FOR
 DRIVING  WHILE  ABILITY  IMPAIRED  AT  LEAST IN PART BY ALCOHOL OR WHILE
 INTOXICATED PURSUANT TO SECTION ELEVEN HUNDRED NINETY-TWO OF THE VEHICLE
 AND TRAFFIC LAW; (C) FAILING TO NOTIFY COMMUNITY SUPERVISION OFFICER  OF
 A CHANGE IN EMPLOYMENT OR PROGRAM STATUS; (D) FAILING TO NOTIFY COMMUNI-
 TY  SUPERVISION  OFFICER  OF  A  CHANGE  IN  RESIDENCE, ABSENT CLEAR AND
 CONVINCING EVIDENCE THAT THE RELEASEE ACTED WILLFULLY FOR THE PURPOSE OF
 PERMANENTLY AVOIDING SUPERVISION; (E) VIOLATING CURFEW; (F)  FAILURE  TO
 PAY  SURCHARGES  AND  FEES,  INCLUDING  FEES IMPOSED PURSUANT TO SECTION
 60.35 OF THE PENAL LAW, SECTIONS  EIGHTEEN  HUNDRED  NINE  AND  EIGHTEEN
 HUNDRED  NINE-C  OF THE VEHICLE AND TRAFFIC LAW, OR SECTION 27.12 OF THE
 PARKS, RECREATION AND HISTORIC PRESERVATION LAW;  (G)  FAILURE  TO  MAKE
 OFFICE  OR  WRITTEN  REPORTS  AS  DIRECTED,  ABSENT CLEAR AND CONVINCING
 EVIDENCE THAT THE RELEASEE ACTED WILLFULLY FOR THE PURPOSE OF PERMANENT-
 LY AVOIDING SUPERVISION; (H) 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,  ABSENT
 CLEAR  AND CONVINCING EVIDENCE THAT THE RELEASEE ACTED WILLFULLY FOR THE
 PURPOSE OF PERMANENTLY  AVOIDING  SUPERVISION;  (I)  FAILURE  TO  NOTIFY
 COMMUNITY  SUPERVISION OFFICER OF CONTACT WITH ANY LAW ENFORCEMENT AGEN-
 CY, ABSENT CLEAR AND CONVINCING EVIDENCE THAT THE RELEASEE  INTENDED  TO
 HIDE EVIDENCE OF HIS OR OTHERS' BEHAVIOR THAT CONSTITUTES A VIOLATION OF
 THE  PENAL  LAW;  (J)  FAILURE  TO  OBEY SPECIAL CONDITIONS OF COMMUNITY
 SUPERVISION, ABSENT CLEAR AND CONVINCING EVIDENCE THAT THE FAILURE POSES
 A SUBSTANTIAL RISK TO PUBLIC SAFETY AND CANNOT BE  ADDRESSED  SAFELY  IN
 THE  COMMUNITY INCLUDING WITH COUNSELING OR PROGRAMMING; AND (K) OBTAIN-
 ING A DRIVER'S LICENSE OR DRIVING A CAR WITH A VALID  DRIVER'S  LICENSE,
 UNLESS   EITHER   ACTION   IS  EXPLICITLY  PROHIBITED  BY  THE  PERSON'S
 CONVICTION.
   (XII) For each 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-EN-
 TRY SERVICES IN THE COMMUNITY FROM QUALIFIED NONPROFIT AGENCIES; (C) [in
 the  case  of presumptive releasees, parolees or conditional releasees,]
 direct the violator's reincarceration [and fix a date for  consideration
 by  the board for re-release on presumptive release, or parole or condi-

 S. 1343--B                         12

 tional 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  post-re-
 lease  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, WHICH IS DEFINED AS FAILING TO NOTIFY
 HIS OR HER COMMUNITY SUPERVISION OFFICER OF A CHANGE IN RESIDENCE  WILL-
 FULLY  FOR  THE  PURPOSE OF PERMANENTLY AVOIDING SUPERVISION; FAILURE TO
 MAKE OFFICE OR WRITTEN REPORTS AS DIRECTED WILLFULLY FOR THE PURPOSE  OF
 PERMANENTLY  AVOIDING  SUPERVISION; AND 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, WILL-
 FULLY FOR THE PURPOSE OF PERMANENTLY AVOIDING SUPERVISION, UP  TO  SEVEN
 DAYS INCARCERATION MAY BE IMPOSED FOR THE FIRST VIOLATION, UP TO FIFTEEN
 DAYS  INCARCERATION  MAY  BE IMPOSED FOR THE SECOND VIOLATION, AND UP TO
 THIRTY DAYS INCARCERATION MAY BE IMPOSED FOR THE THIRD OR ANY SUBSEQUENT
 VIOLATION; (2) FOR ALL OTHER TECHNICAL VIOLATIONS FOR  WHICH  INCARCERA-
 TION  MAY BE IMPOSED NO PERIOD OF REINCARCERATION MAY BE IMPOSED FOR THE
 FIRST AND SECOND SUBSTANTIATED TECHNICAL VIOLATIONS FOR WHICH INCARCERA-
 TION 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 SUBSTANTIATED TECHNICAL VIOLATIONS FOR  WHICH  INCARCERA-
 TION  MAY BE IMPOSED; AND (3) FOR NON-TECHNICAL VIOLATIONS, UP TO NINETY
 DAYS REINCARCERATION MAY BE IMPOSED. IF A WARRANT WAS EXECUTED  PURSUANT
 TO SUBPARAGRAPH (IV) OF PARAGRAPH (A) OF THIS SUBDIVISION AND THE PERSON
 WAS  DETAINED PURSUANT TO SUCH SUBPARAGRAPH PENDING PRELIMINARY OR REVO-
 CATION HEARINGS, ANY PERIOD OF INCARCERATION 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  (IV)  OF
 PARAGRAPH  (A)  OF  THIS  SUBDIVISION  BUT A CRIMINAL COURT RELEASED THE
 PERSON PENDING PRELIMINARY OR REVOCATION HEARINGS, ANY PERIOD OF  INCAR-
 CERATION  IMPOSED  PURSUANT  TO THIS PARAGRAPH SHALL BE COUNTED FROM THE
 DATE OF ISSUANCE OF A DETERMINATION  AFTER  A  FINAL  HEARING  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
 DETAINED  ON BAIL OR COMMITTED TO THE CUSTODY OF THE SHERIFF PURSUANT TO
 SECTION 530.10 OF THE CRIMINAL PROCEDURE LAW, ANY TIME THE PERSON  SPENT
 CONFINED IN JAIL SHALL COUNT TOWARDS ANY PERIOD OF INCARCERATION IMPOSED
 PURSUANT  TO  THIS  PARAGRAPH. IN ALL CASES, THE PRESIDING OFFICER SHALL
 IMPOSE THE LEAST RESTRICTIVE REASONABLE SANCTION. ANY PERIODS  OF  REIN-
 CARCERATION SHALL RUN CONCURRENTLY IF MORE THAN ONE VIOLATION IS ADJUDI-
 CATED.  IF  A  PERIOD OF INCARCERATION IS IMPOSED PURSUANT TO THIS PARA-
 GRAPH, THE RELEASEE SHALL BE RELEASED FROM CUSTODY  UPON  EXPIRATION  OF
 THE PERIOD OR THE END OF THE RELEASEE'S PERIOD OF COMMUNITY SUPERVISION,
 WHICHEVER  SHALL  BE SOONER.   For the violator serving an indeterminate
 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 hearing. For the

 S. 1343--B                         13
 
 violator serving an indeterminate sentence who has  been  found  by  the
 department  to  have  committed  a serious disciplinary infraction 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 suitability 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 commis-
 sion of a serious disciplinary infraction and shall in such case require
 a personal interview be conducted within a  reasonable  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)]  (XIII)  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-release supervision, and for the disposition made.
   [(xii)] (XIV) If at  any  time  during  a  revocation  proceeding  the
 alleged  violator,  his or her counsel, or an employee of the department
 contends, or if it reasonably appears to the hearing officer,  that  the
 alleged  violator  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
 incapacitated 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

 S. 1343--B                         14
 
 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.
   § 7. Section 259-i of the executive law is amended  by  adding  a  new
 subdivision 9 to read as follows:
   9.  THE BOARD SHALL PROMULGATE RULES AND REGULATIONS TO FACILITATE THE
 PRESENCE OF NONPROFIT SERVICE PROVIDERS ABLE TO OFFER RELEVANT  COMMUNI-
 TY-BASED  SERVICES  TO RELEASEES AT ALL PRELIMINARY AND FINAL REVOCATION
 HEARINGS FOR THE PURPOSE OF HELPING PEOPLE SUBJECT TO  COMMUNITY  SUPER-
 VISION  SUCCESSFULLY  COMPLETE  SUCH  SUPERVISION  AND AVOID FUTURE SUCH
 SUPERVISION, AND TO HELP ENSURE  PRESIDING  OFFICERS  IMPOSE  THE  LEAST
 RESTRICTIVE  REASONABLE  SANCTION  FOR ANY VIOLATION OF COMMUNITY SUPER-
 VISION.
   § 8. This act shall take effect on the first of April next  succeeding
 the  date  on  which  it  shall  have become a law; provided however the
 department of corrections  and  community  supervision  shall  have  six
 months  from the effective date of this act to begin holding preliminary
 revocation hearings required by  the  amendments  to  paragraph  (c)  of
 subdivision 3 of section 259-i of the executive law made by section five
 of  this  act,  including  establishing  preliminary  revocation hearing
 facilities that are not at correctional facilities for  people  who  are
 not detained pending their hearings. Provided further, however, that the
 board  of  parole  shall have two months from the effective date of this
 act to identify  each  releasee  incarcerated  for  a  sustained  parole
 violation  and  recalculate  such releasee's sentence in accordance with
 this act. If no incarceration may be imposed  pursuant  to  subparagraph
 (xi) of paragraph (f) of subdivision 3 of section 259-i of the executive
 law,  as  added  by section six of this act, the board shall immediately
 restore the releasee to community supervision. If the  releasee  may  be
 incarcerated  for the sustained violation the board shall fix a new date
 for release pursuant to subparagraph (xii) of paragraph (f) of  subdivi-
 sion  3 of section 259-i of the executive law, as amended by section six
 of this act. If such release date has passed, the board shall immediate-
 ly restore the releasee to community  supervision.    Provided  further,
 however,  the  department of corrections and community supervision shall
 have six months from the effective date of this act to set up the  final
 revocation  hearing  courtrooms  that are not at correctional facilities
 for people who are not detained pending their hearing  pursuant  to  the
 amendments  to  paragraph  (f)  of subdivision 3 of section 259-i of the
 executive law as made by section six of this act.  Effective  immediate-
 ly,  the  addition,  amendment  and/or  repeal of any rule or regulation
 necessary for the implementation of this act on its effective  date  are
 authorized  and  directed  to  be  made  and completed on or before such
 effective date.

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  1343--C
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             January 14, 2019
                                ___________
 
 Introduced by Sens. BENJAMIN, BAILEY, BIAGGI, BRESLIN, COMRIE, GIANARIS,
   HOYLMAN,  JACKSON,  KRUEGER,  MAY,  MONTGOMERY, MYRIE, PARKER, RIVERA,
   SALAZAR, SEPULVEDA, SERRANO -- read twice  and  ordered  printed,  and
   when  printed to be committed to the Committee on Crime Victims, Crime
   and  Correction  --  committee  discharged,  bill   amended,   ordered
   reprinted  as  amended  and recommitted to said committee -- committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to said committee -- recommitted to the Committee  on  Crime  Victims,
   Crime  and  Correction  in  accordance  with  Senate Rule 6, sec. 8 --
   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:
 
   Section  1. Section 259 of the executive law is amended by adding five
 new subdivisions 5, 6, 7, 8 and 9 to read as follows:
   5. "RELEASEE" MEANS AN INDIVIDUAL RELEASED FROM AN  INSTITUTION  UNDER
 THE  JURISDICTION  OF  THE  DEPARTMENT  INTO  THE COMMUNITY ON TEMPORARY
 RELEASE, PRESUMPTIVE RELEASE, PAROLE, CONDITIONAL RELEASE,  POST-RELEASE
 SUPERVISION OR MEDICAL PAROLE.
   6.  "TECHNICAL VIOLATION" MEANS ANY VIOLATION OF A CONDITION OF COMMU-
 NITY SUPERVISION IN AN IMPORTANT RESPECT  OTHER  THAN  CONDUCT  THAT  IF
 PROVED WOULD BE A FELONY OFFENSE, OR A MISDEMEANOR OFFENSE UNDER ARTICLE
 ONE  HUNDRED  TWENTY,  ONE  HUNDRED  TWENTY-ONE, ONE HUNDRED THIRTY, ONE
 HUNDRED THIRTY-FIVE, TWO HUNDRED SIXTY-FIVE OR FOUR HUNDRED  EIGHTY-FIVE
 OF THE PENAL LAW.
   7. "ABSCONDING" MEANS INTENTIONALLY AVOIDING SUPERVISION BY FAILING TO
 MAINTAIN CONTACT OR COMMUNICATION WITH THE RELEASEE'S ASSIGNED COMMUNITY
 SUPERVISION  OFFICER  OR  AREA  BUREAU  OFFICE  AND TO NOTIFY HIS OR HER
 ASSIGNED COMMUNITY SUPERVISION OFFICER OR AREA BUREAU OFFICE OF A CHANGE
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD06090-07-0

 S. 1343--C                          2
 
 IN RESIDENCE, AND REASONABLE EFFORTS BY THE  ASSIGNED  COMMUNITY  SUPER-
 VISION OFFICER TO RE-ENGAGE THE RELEASEE HAVE BEEN UNSUCCESSFUL.
   8.  "TIER  1  VIOLATION" MEANS ANY TECHNICAL VIOLATION NOT INCLUDED IN
 THE DEFINITION OF A TIER 2 VIOLATION.
   9. "TIER 2 VIOLATION" MEANS ANY OF THE FOLLOWING TECHNICAL VIOLATIONS:
 VIOLATING CURFEW; FAILURE TO PAY SURCHARGES  AND  FEES,  INCLUDING  FEES
 IMPOSED  PURSUANT  TO  SECTION 60.35 OF THE PENAL LAW, SECTIONS EIGHTEEN
 HUNDRED NINE AND EIGHTEEN HUNDRED NINE-C OF THE VEHICLE AND TRAFFIC LAW,
 OR SECTION 27.12 OF THE PARKS, RECREATION AND HISTORIC PRESERVATION LAW;
 OBTAINING A DRIVER'S LICENSE OR DRIVING A  CAR  WITH  A  VALID  DRIVER'S
 LICENSE,  PROVIDED  HOWEVER  IT  SHALL NOT BE A TIER 2 VIOLATION IF SUCH
 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. Subdivision 3 of section 70.40 of the penal law,  paragraphs  (a)
 and (b) as amended by section 127-h of subpart B of part C of chapter 62
 of  the  laws of 2011 and paragraph (c) as amended by chapter 478 of the
 laws of 1973, is amended and a new subdivision 4 is  added  to  read  as
 follows:
   3.  Delinquency.  (a)  When  a  person is alleged to have violated the
 terms of presumptive release or parole  BY  ABSCONDING,  and  the  state
 board  of parole has declared such person to be delinquent, the declara-
 tion of delinquency shall interrupt the person's sentence as of the date
 of the delinquency  and  such  interruption  shall  continue  until  the
 [return  of  the  person to an institution under the jurisdiction of the
 state department of corrections and  community  supervision]  RELEASEE'S
 APPEARANCE  IN  RESPONSE  TO  A  NOTICE  OF VIOLATION OR THE DATE OF THE
 EXECUTION OF A WARRANT, WHICHEVER IS EARLIER.
   (b) When a person is alleged to have violated the terms of his or  her
 conditional  release  or  post-release supervision BY ABSCONDING and has
 been declared delinquent by the parole board or  the  local  conditional
 release  commission having supervision over such person, the declaration
 of delinquency shall interrupt the period of supervision or post-release
 supervision as of  the  date  of  the  delinquency.  For  a  conditional
 release,  such  interruption  shall  continue  until  the [return of the

 S. 1343--C                          3

 person to the institution from which he or she was released or, if he or
 she was released from an institution under the jurisdiction of the state
 department of corrections and community supervision, to  an  institution
 under  the jurisdiction of that department. Upon such return, the person
 shall resume service of his or her sentence]  RELEASEE'S  APPEARANCE  IN
 RESPONSE  TO  A  NOTICE  OF  VIOLATION OR THE DATE OF THE EXECUTION OF A
 WARRANT, WHICHEVER IS EARLIER.  For a person  released  to  post-release
 supervision,  the  provisions  of  section  70.45  OF THIS ARTICLE shall
 apply.
   (c) Any time spent by a person in custody from the time of [delinquen-
 cy] EXECUTION OF A WARRANT PURSUANT  TO  PARAGRAPH  (A)  OF  SUBDIVISION
 THREE  OF  SECTION  TWO HUNDRED FIFTY-NINE-I OF THE EXECUTIVE LAW to the
 time service of the sentence resumes shall be credited against the  term
 or maximum term of the interrupted sentence[, provided:
   (i) that such custody was due to an arrest or surrender based upon the
 delinquency; or
   (ii)  that  such  custody arose from an arrest on another charge which
 culminated in a dismissal or an acquittal; or
   (iii) that such custody arose from an arrest on another  charge  which
 culminated in a conviction, but in such case, if a sentence of imprison-
 ment  was imposed, the credit allowed shall be limited to the portion of
 the time spent in custody that exceeds the period, term or maximum  term
 of imprisonment imposed for such conviction].
   4.  EARNED  TIME  CREDITS.  (A)  AFTER  A PERSON HAS BEGUN A PERIOD OF
 COMMUNITY SUPERVISION PURSUANT TO THIS SECTION AND SECTION 70.45 OF THIS
 ARTICLE, SUCH PERIOD SHALL BE REDUCED BY THIRTY DAYS  FOR  EVERY  THIRTY
 DAYS  THAT SUCH PERSON DOES NOT VIOLATE A CONDITION OF HIS OR HER COMMU-
 NITY SUPERVISION, PROVIDED THE PERSON IS NOT  SUBJECT  TO  ANY  SENTENCE
 WITH A MAXIMUM TERM OF LIFE IMPRISONMENT. THE CALCULATION OF EARNED TIME
 CREDIT  PERIODS  SHALL  BEGIN  ON  THE RELEASEE'S FIRST DAY OF COMMUNITY
 SUPERVISION AND SHALL BE AWARDED AFTER EACH COMPLETED THIRTY DAY PERIOD.
 ANY SUCH AWARDED EARNED TIME  CREDITS  SHALL  BE  APPLIED  AGAINST  SUCH
 PERSON'S UNSERVED PORTION OF THE MAXIMUM TERM, AGGREGATE MAXIMUM TERM OR
 PERIOD OF POST-RELEASE SUPERVISION FOR ANY CURRENT SENTENCE.
   (B)  EARNED TIME CREDITS MAY BE WITHHELD OR REVOKED ONLY FOR THE THIR-
 TY-DAY PERIOD COMMENCING FROM THE DATE OF VIOLATIVE  BEHAVIOR  SUSTAINED
 AT  A  FINAL  REVOCATION HEARING, EXCEPT THAT EARNED TIME CREDITS MAY BE
 WITHHELD OR REVOKED FOR THE ENTIRE TIME PERIOD DURING WHICH  A  RELEASEE
 ABSCONDED  FROM SUPERVISION, AS SUSTAINED AT A FINAL REVOCATION HEARING,
 AND AS DEFINED IN SUBPARAGRAPH (XII) OF  PARAGRAPH  (F)  OF  SUBDIVISION
 THREE  OF SECTION TWO HUNDRED FIFTY-NINE-I OF THE EXECUTIVE LAW.  EARNED
 TIME CREDITS MAY NOT BE EARNED DURING A PERIOD OF INCARCERATION  IMPOSED
 BASED  ON  A  SUSTAINED  VIOLATION  OR  NEW CRIMINAL CONVICTION. AFTER A
 SUSTAINED VIOLATION, THE CALCULATION OF AN  EARNED  TIME  CREDIT  PERIOD
 SHALL RECOMMENCE ON THE THIRTY-FIRST DAY AFTER THE DATE OF THE VIOLATIVE
 BEHAVIOR OR, IF THE SUSTAINED VIOLATION RESULTED IN A TERM OF INCARCERA-
 TION,  ON  THE  DAY  THE  RELEASEE IS RESTORED TO COMMUNITY SUPERVISION,
 WHICHEVER IS LATER.
   (C) WHEN A PERSON IS SUBJECT TO MORE  THAN  ONE  PERIOD  OF  COMMUNITY
 SUPERVISION,  THE  REDUCTION  AUTHORIZED  IN  THIS  SUBDIVISION SHALL BE
 APPLIED TO EVERY PERIOD OF PAROLE OR CONDITIONAL RELEASE  TO  WHICH  THE
 PERSON IS SUBJECT.
   (D)  EARNED  TIME  CREDITS  SHALL  BE AWARDED TO ANY PERSON SUBJECT TO
 COMMUNITY SUPERVISION AT THE TIME  THIS  LEGISLATION  BECOMES  EFFECTIVE
 RETROACTIVE  TO  THE  INITIAL DATE SUCH PERSON BEGAN HIS OR HER EARLIEST
 CURRENT PERIOD  OF  COMMUNITY  SUPERVISION.    PROVIDED  HOWEVER,  IF  A

 S. 1343--C                          4
 
 RELEASEE'S  CURRENT PERIOD OF COMMUNITY SUPERVISION HAS BEEN INTERRUPTED
 BY A PERIOD OF INCARCERATION PRIOR TO THE EFFECTIVE DATE OF THE  CHAPTER
 OF  THE  LAWS  OF  TWO  THOUSAND TWENTY WHICH ADDED THIS SUBDIVISION, NO
 EARNED  TIME  CREDITS SHALL BE AWARDED FOR SUCH PERIOD OF INCARCERATION.
 THE DEPARTMENT SHALL HAVE SIX MONTHS FROM THE  EFFECTIVE  DATE  OF  THIS
 SUBDIVISION  TO  CALCULATE ALL RETROACTIVE EARNED TIME CREDITS; HOWEVER,
 THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION SHALL PRIORITIZE
 EARNED TIME CREDIT CALCULATIONS FOR RELEASEES WHOSE TERMS  OF  COMMUNITY
 SUPERVISION  ARE  DUE  TO  TERMINATE  BEFORE  THE CONCLUSION OF SUCH SIX
 MONTHS. RETROACTIVE EARNED TIME CREDITS SHALL  NOT  BE  AWARDED  TO  ANY
 RELEASEE  SERVING  A  TERM  OF  INCARCERATION  FOR  A  SUSTAINED  PAROLE
 VIOLATION AT THE TIME OF THE EFFECTIVE DATE OF THE CHAPTER OF  THE  LAWS
 OF  TWO  THOUSAND TWENTY WHICH ADDED THIS SUBDIVISION UNTIL THE RELEASEE
 IS RETURNED TO COMMUNITY SUPERVISION.
   § 3. Paragraph (d) of subdivision 5 of section 70.45 of the penal law,
 as amended by section 127-j of subpart B of part C of chapter 62 of  the
 laws of 2011, is amended to read as follows:
   (d)  When a person is alleged to have violated a condition of post-re-
 lease supervision BY ABSCONDING and the department  of  corrections  and
 community supervision has declared such person to be delinquent: (i) the
 declaration  of  delinquency  shall interrupt the period of post-release
 supervision; (ii) such interruption shall continue until the  person  is
 restored to post-release supervision; (iii) if the person is restored to
 post-release  supervision  without  being  returned to the department of
 corrections and community supervision, any time spent  in  custody  from
 the  date  of  delinquency until restoration to post-release supervision
 shall first be credited to the maximum or aggregate maximum term of  the
 sentence or sentences of imprisonment, but only to the extent authorized
 by subdivision three of section 70.40 of this article. Any time spent in
 custody  solely  pursuant  to  such  delinquency after completion of the
 maximum or aggregate maximum term of the sentence or sentences of impri-
 sonment shall be credited to the period of post-release supervision,  if
 any;  and  (iv)  if  the person is ordered returned to the department of
 corrections and community supervision, the person shall be  required  to
 serve  the  time  assessment  before  being  re-released to post-release
 supervision. [In the event the balance of the remaining period of  post-
 release  supervision  is six months or less, such time assessment may be
 up to six months unless a longer period is authorized pursuant to subdi-
 vision one of this section. The] IF THE PERSON IS DETAINED  PURSUANT  TO
 PARAGRAPH  (A)  OF SUBDIVISION THREE OF SECTION TWO HUNDRED FIFTY-NINE-I
 OF THE EXECUTIVE LAW PENDING PRELIMINARY  OR  REVOCATION  HEARINGS,  THE
 TIME  ASSESSMENT  SHALL COMMENCE UPON THE EXECUTION OF THE WARRANT. IF A
 WARRANT WAS EXECUTED PURSUANT TO PARAGRAPH (A) OF SUBDIVISION  THREE  OF
 SECTION  TWO HUNDRED FIFTY-NINE-I OF THE EXECUTIVE LAW BUT A TRIAL COURT
 RELEASED THE PERSON PENDING PRELIMINARY OR REVOCATION HEARINGS, THE TIME
 ASSESSMENT SHALL COMMENCE UPON THE ISSUANCE OF A DETERMINATION  AFTER  A
 FINAL  HEARING  THAT  THE  PERSON HAS VIOLATED ONE OR MORE CONDITIONS OF
 COMMUNITY  SUPERVISION,  AND  SHALL  INCLUDE  THE  TIME  PERIOD  BETWEEN
 EXECUTION  OF  THE WARRANT AND RELEASE OF THE PERSON PENDING PRELIMINARY
 OR REVOCATION HEARINGS. IF A RELEASEE IS COMMITTED TO THE CUSTODY OF THE
 SHERIFF PURSUANT TO ARTICLE FIVE HUNDRED THIRTY OF THE  CRIMINAL  PROCE-
 DURE  LAW, THE TIME ASSESSMENT SHALL INCLUDE ANY TIME THE RELEASEE SPENT
 IN SUCH DETENTION. IF A NOTICE  OF  VIOLATION  WAS  ISSUED  PURSUANT  TO
 SUBDIVISION  THREE  OF SECTION TWO HUNDRED FIFTY-NINE-I OF THE EXECUTIVE
 LAW, THE time assessment shall commence upon the issuance of a  determi-
 nation  after  a  final hearing that the person has violated one or more

 S. 1343--C                          5
 
 conditions of supervision. While serving  such  assessment,  the  person
 shall  not receive any good behavior allowance pursuant to section eight
 hundred three of the correction law.  Any time spent in custody from the
 date  of  delinquency  until return to the department of corrections and
 community supervision shall first be credited to the maximum  or  aggre-
 gate maximum term of the sentence or sentences of imprisonment, but only
 to  the  extent authorized by subdivision three of section 70.40 of this
 article. The maximum or  aggregate  maximum  term  of  the  sentence  or
 sentences  of  imprisonment  shall  run while the person is serving such
 time assessment in the custody of  the  department  of  corrections  and
 community supervision. Any time spent in custody solely pursuant to such
 delinquency after completion of the maximum or aggregate maximum term of
 the sentence or sentences of imprisonment shall be credited to the peri-
 od of post-release supervision, if any.
   §  4.  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] PROBABLE 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 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  PROBABLE  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

 S. 1343--C                          6
 
 retaking  of  such  person and for his temporary detention in accordance
 with the rules of the board [unless such person]. HOWEVER, IF A RELEASEE
  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-
 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, AND OTHER INDICATORS
 OF STABILITY. AT THE CONCLUSION OF THE RECOGNIZANCE HEARING,  THE  COURT
 MAY  ORDER  THAT  THE  RELEASEE BE DETAINED PENDING 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 CONDI-
 TION OR COMBINATION OF  CONDITIONS  IN  THE  COMMUNITY  WILL  REASONABLY

 S. 1343--C                          7
 
 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
 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.
   § 5. 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 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-re-
 lease  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
 violator] (A) FOR ANY ALLEGED TECHNICAL VIOLATION FOR WHICH A NOTICE  OF
 VIOLATION  WAS  ISSUED OR A PERSON WAS RELEASED ON RECOGNIZANCE PURSUANT
 TO SUBPARAGRAPH (IV) OF PARAGRAPH (A) OF THIS SUBDIVISION,  THE  DEPART-
 MENT SHALL WITHIN TEN DAYS OF THE ISSUANCE OF THE NOTICE OF VIOLATION OR
 THE  ORDER  OF  RELEASE  ON RECOGNIZANCE AFFORD THE PERSON A PRELIMINARY
 REVOCATION HEARING BEFORE A HEARING OFFICER DESIGNATED  BY  THE  DEPART-
 MENT.  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 LOCAL CORRECTIONAL  FACILI-
 TY.

 S. 1343--C                          8
 
   (B)  FOR  ANY  ALLEGED TECHNICAL VIOLATION FOR WHICH A COURT ISSUED AN
 ORDER DETAINING A PERSON PURSUANT TO SUBPARAGRAPH (IV) 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.
   (C)  FOR  ANY  ALLEGED NON-TECHNICAL VIOLATION, WITHIN TEN DAYS OF THE
 ISSUANCE OF A NOTICE OR EXECUTION OF A WARRANT  FOR  THE  VIOLATION  THE
 DEPARTMENT SHALL AFFORD SUCH PERSON A PRELIMINARY HEARING BEFORE A HEAR-
 ING OFFICER DESIGNATED BY THE DEPARTMENT. SUCH HEARING OFFICER SHALL NOT
 HAVE HAD ANY PRIOR SUPERVISORY INVOLVEMENT OVER THE ALLEGED VIOLATOR.
   (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, 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  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 INSTITUTIONAL
 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] A
 PREPONDERANCE OF THE EVIDENCE 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 super-
 vision in an important respect. Proof of conviction of a crime committed
 while under supervision shall constitute [probable  cause]  PRIMA  FACIE
 EVIDENCE  OF A VIOLATION OF A CONDITION OF COMMUNITY SUPERVISION for the
 purposes of this section.
   (IX) IF THE HEARING OFFICER FINDS BY A PREPONDERANCE OF  THE  EVIDENCE
 THAT SUCH PERSON HAS VIOLATED ONE OR MORE CONDITIONS OF COMMUNITY SUPER-
 VISION IN AN IMPORTANT RESPECT, THE RELEASEE SHALL, AT THE CONCLUSION OF
 THE  PRELIMINARY  HEARING BE GIVEN WRITTEN NOTICE OF THE TIME, PLACE AND

 S. 1343--C                          9
 
 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  COUNSEL  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  OFFICER;  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  SUPPORT  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.
   §  6. 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  hearings  shall  be scheduled to be held within
 ninety days of  the  probable  cause  determination]  FOR  ANY  RELEASEE
 CHARGED WITH A VIOLATION:
   (A)  IF  A  COURT  ISSUED  AN  ORDER DETAINING SUCH PERSON PURSUANT TO
 SUBPARAGRAPH (IV) OF PARAGRAPH (A) OF THIS SUBDIVISION  AND  THE  PERSON
 WOULD  BE  SUBJECT  TO  REINCARCERATION  OF UP TO SEVEN DAYS PURSUANT TO
 SUBPARAGRAPH (X) OF THIS PARAGRAPH SHOULD THE VIOLATION BE SUSTAINED  AT
 A  FINAL REVOCATION HEARING, 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 SUPERVISO-
 RY INVOLVEMENT OVER THE  ALLEGED  VIOLATOR.  NO  PRELIMINARY  REVOCATION
 HEARING SHALL BE HELD IN THIS INSTANCE.
   (B)  IF  A  COURT  ISSUED  AN  ORDER DETAINING SUCH PERSON PURSUANT TO
 SUBPARAGRAPH (IV) OF PARAGRAPH (A) OF THIS SUBDIVISION  AND  THE  PERSON
 WOULD  BE  SUBJECT  TO REINCARCERATION OF UP TO FIFTEEN DAYS PURSUANT TO
 SUBPARAGRAPH (X) OF THIS PARAGRAPH SHOULD THE VIOLATION BE SUSTAINED  AT
 A FINAL REVOCATION HEARING, 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 HEARING OFFICER SHALL NOT HAVE HAD ANY PRIOR SUPERVISO-
 RY  INVOLVEMENT  OVER  THE  ALLEGED  VIOLATOR. NO PRELIMINARY REVOCATION
 HEARING SHALL BE HELD IN THIS INSTANCE.
   (C) IF A COURT ISSUED AN  ORDER  DETAINING  SUCH  PERSON  PURSUANT  TO
 SUBPARAGRAPH  (IV)  OF  PARAGRAPH (A) OF THIS SUBDIVISION AND THE PERSON
 WOULD BE SUBJECT TO REINCARCERATION OF UP TO THIRTY DAYS OR MORE  PURSU-

 S. 1343--C                         10
 
 ANT  TO  SUBPARAGRAPH  (X)  OF  THIS  PARAGRAPH  SHOULD THE VIOLATION BE
 SUSTAINED AT A FINAL REVOCATION HEARING, 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 SUCH PERSON WAS RELEASED ON
 RECOGNIZANCE  PURSUANT  TO  SUBPARAGRAPH  (IV)  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 ON RECOGNIZANCE 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 INVOLVEMENT OVER THE ALLEGED VIOLATOR.  SUCH HEAR-
 ING  SHALL  NOT  BE HELD AT A CORRECTIONAL FACILITY, DETENTION CENTER OR
 LOCAL CORRECTIONAL FACILITY. THE DEPARTMENT SHALL HAVE SIX  MONTHS  FROM
 THE  DATE  OF THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF TWO THOU-
 SAND TWENTY THAT AMENDED THIS PARAGRAPH TO BEGIN TO HOLD  SUCH  HEARINGS
 AT ALLOWABLE LOCATIONS.
   (E)  IF  SUCH  PERSON  IS  ACCUSED  OF  A NON-TECHNICAL VIOLATION, THE
 DEPARTMENT SHALL WITHIN THIRTY DAYS OF  THE  EXECUTION  OF  THE  WARRANT
 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 SUPERVISORY INVOLVEMENT OVER THE ALLEGED VIOLATOR.
   (F) 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-
 tion to presumptive release, parole, conditional release or post-release
 supervision and his right to counsel.
   (v) The alleged violator shall [be permitted] HAVE A RIGHT  TO  repre-
 sentation  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 documenta-
 ry  evidence  in defense of the charges; and present witnesses and docu-

 S. 1343--C                         11
 
 mentary 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]  CLEAR  AND
 CONVINCING  EVIDENCE.  CONDUCT  THAT FORMED THE BASIS OF AN ARREST SHALL
 NOT FORM A BASIS OF A SUSTAINED PAROLE VIOLATION IF A COURT HAS  ADJUDI-
 CATED  THE  MATTER  WITH  AN  ACQUITTAL, ADJOURNMENT IN CONTEMPLATION OF
 DISMISSAL, OR VIOLATION.
   (ix) If the presiding officer  is  not  satisfied  that  there  is  [a
 preponderance  of]  CLEAR  AND  CONVINCING  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]  CLEAR  AND  CONVINCING  evidence  that  the  alleged violator
 violated one or more conditions of release in an important  respect,  he
 or  she shall so find.  FOR EACH VIOLATION FOUND, OTHER THAN ABSCONDING,
 THE PRESIDING OFFICER SHALL DIRECT THAT NO EARNED TIME CREDITS SHALL  BE
 AWARDED  FOR  THE  THIRTY  DAY  PERIOD  COMMENCING  FROM THE DATE OF THE
 SUSTAINED VIOLATION. FOR ANY ABSCONDING VIOLATION FOUND,  THE  PRESIDING
 OFFICER  SHALL  DIRECT  THAT NO EARNED TIME CREDITS SHALL BE AWARDED FOR
 THE ENTIRE TIME PERIOD  DURING  WHICH  A  RELEASEE  WAS  FOUND  TO  HAVE
 ABSCONDED FROM SUPERVISION.
   (XI) INCARCERATION SHALL NOT BE IMPOSED FOR ANY TIER 2 VIOLATION.
   (XII)  For  each  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-EN-
 TRY SERVICES IN THE COMMUNITY FROM QUALIFIED NONPROFIT AGENCIES; OR  (C)
 [in  the  case of presumptive releasees, parolees or conditional releas-
 ees,] direct the violator's reincarceration [and fix a date for  consid-
 eration 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 post-re-
 lease 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

 S. 1343--C                         12

 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, WHICH IS DEFINED AS FAILING  TO  NOTIFY
 HIS  OR HER COMMUNITY SUPERVISION OFFICER OF A CHANGE IN RESIDENCE WILL-
 FULLY FOR THE PURPOSE OF PERMANENTLY AVOIDING  SUPERVISION;  FAILURE  TO
 MAKE  OFFICE OR WRITTEN REPORTS AS DIRECTED WILLFULLY FOR THE PURPOSE OF
 PERMANENTLY AVOIDING SUPERVISION; AND 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, WILL-
 FULLY  FOR  THE PURPOSE OF PERMANENTLY AVOIDING SUPERVISION, UP TO SEVEN
 DAYS REINCARCERATION MAY BE IMPOSED  FOR  THE  FIRST  VIOLATION,  UP  TO
 FIFTEEN  DAYS  REINCARCERATION  MAY BE IMPOSED FOR THE SECOND VIOLATION,
 AND UP TO THIRTY DAYS REINCARCERATION MAY BE IMPOSED FOR  THE  THIRD  OR
 ANY  SUBSEQUENT VIOLATION; (2) FOR ALL OTHER TIER 1 VIOLATIONS NO PERIOD
 OF REINCARCERATION 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  TECHNI-
 CAL 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;  AND
 (3)  FOR NON-TECHNICAL VIOLATIONS, UP TO NINETY DAYS REINCARCERATION MAY
 BE IMPOSED. IF A WARRANT WAS EXECUTED PURSUANT TO SUBPARAGRAPH  (IV)  OF
 PARAGRAPH  (A)  OF THIS SUBDIVISION AND THE PERSON WAS DETAINED PURSUANT
 TO SUCH SUBPARAGRAPH PENDING PRELIMINARY  OR  REVOCATION  HEARINGS,  ANY
 PERIOD  OF  REINCARCERATION  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 (IV) OF PARAGRAPH (A) OF THIS SUBDIVI-
 SION  BUT  A  CRIMINAL  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 DETERMI-
 NATION AFTER A FINAL HEARING 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 PURSU-
 ANT  TO THIS PARAGRAPH. IF A RELEASEE IS COMMITTED TO THE CUSTODY OF THE
 SHERIFF PURSUANT TO ARTICLE FIVE HUNDRED THIRTY OF THE  CRIMINAL  PROCE-
 DURE LAW, 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 REASON-
 ABLE 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 SUPERVISION, WHICHEVER SHALL BE  SOONER.    For  the
 violator serving an indeterminate sentence who while re-incarcerated has
 not  been  found by the department to have committed a serious discipli-
 nary infraction, such violator shall be re-released on the date fixed at
 the revocation  hearing.  For  the  violator  serving  an  indeterminate
 sentence  who has been found by the department to have committed a seri-
 ous disciplinary infraction 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 suitability  for  re-release  when  the  board

 S. 1343--C                         13
 
 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 inter-
 view be conducted within a reasonable 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)]  (XIII)  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-release supervision, and for the disposition made.
   [(xii)] (XIV) If at  any  time  during  a  revocation  proceeding  the
 alleged  violator,  his or her counsel, or an employee of the department
 contends, or if it reasonably appears to the hearing officer,  that  the
 alleged  violator  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
 incapacitated 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.

 S. 1343--C                         14
 
   §  7.  Section  259-i  of the executive law is amended by adding a new
 subdivision 9 to read as follows:
   9.  THE BOARD SHALL PROMULGATE RULES AND REGULATIONS TO FACILITATE THE
 PRESENCE OF NONPROFIT SERVICE PROVIDERS ABLE TO OFFER RELEVANT  COMMUNI-
 TY-BASED  SERVICES  TO RELEASEES AT ALL PRELIMINARY AND FINAL REVOCATION
 HEARINGS FOR THE PURPOSE OF HELPING PEOPLE SUBJECT TO  COMMUNITY  SUPER-
 VISION  SUCCESSFULLY  COMPLETE  SUCH  SUPERVISION  AND AVOID FUTURE SUCH
 SUPERVISION, AND TO HELP ENSURE  PRESIDING  OFFICERS  IMPOSE  THE  LEAST
 RESTRICTIVE  REASONABLE  SANCTION  FOR ANY VIOLATION OF COMMUNITY SUPER-
 VISION.
   § 8. This act shall take effect on the first of April next  succeeding
 the  date  on  which  it  shall  have become a law; provided however the
 department of corrections  and  community  supervision  shall  have  six
 months  from the effective date of this act to begin holding preliminary
 revocation hearings required by  the  amendments  to  paragraph  (c)  of
 subdivision 3 of section 259-i of the executive law made by section five
 of  this  act,  including  establishing  preliminary  revocation hearing
 facilities that are not at correctional facilities for  people  who  are
 not detained pending their hearings. Provided further, however, that the
 board  of  parole  shall have two months from the effective date of this
 act to identify  each  releasee  incarcerated  for  a  sustained  parole
 violation  and  recalculate  such releasee's sentence in accordance with
 this act. If no incarceration may be imposed  pursuant  to  subparagraph
 (xi) of paragraph (f) of subdivision 3 of section 259-i of the executive
 law,  as  added  by section six of this act, the board shall immediately
 restore the releasee to community supervision. If the  releasee  may  be
 incarcerated  for the sustained violation the board shall fix a new date
 for release pursuant to subparagraph (xii) of paragraph (f) of  subdivi-
 sion  3 of section 259-i of the executive law, as amended by section six
 of this act. If such release date has passed, the board shall immediate-
 ly restore the releasee to community  supervision.    Provided  further,
 however,  the  department of corrections and community supervision shall
 have six months from the effective date of this act to set up the  final
 revocation  hearing  courtrooms  that are not at correctional facilities
 for people who are not detained pending their hearing  pursuant  to  the
 amendments  to  paragraph  (f)  of subdivision 3 of section 259-i of the
 executive law as made by section six of this act.  Effective  immediate-
 ly,  the  addition,  amendment  and/or  repeal of any rule or regulation
 necessary for the implementation of this act on its effective  date  are
 authorized  and  directed  to  be  made  and completed on or before such
 effective date.