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This entry was published on 2021-09-24
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SECTION 259-I
Procedures for the conduct of the work of the state board of parole
Executive (EXC) CHAPTER 18, ARTICLE 12-B
§ 259-i. Procedures for the conduct of the work of the state board of
parole.

2. Parole. * (a) (i) Except as provided in subparagraph (ii) of this
paragraph, at least one month prior to the date on which an incarcerated
individual may be paroled pursuant to subdivision one of section 70.40
of the penal law, a member or members as determined by the rules of the
board shall personally interview such incarcerated individual and
determine whether he or she should be paroled in accordance with the
guidelines adopted pursuant to subdivision four of section two hundred
fifty-nine-c of this article. If parole is not granted upon such review,
the incarcerated individual shall be informed in writing within two
weeks of such appearance of the factors and reasons for such denial of
parole. Such reasons shall be given in detail and not in conclusory
terms. The board shall specify a date not more than twenty-four months
from such determination for reconsideration, and the procedures to be
followed upon reconsideration shall be the same. If the incarcerated
individual is released, he or she shall be given a copy of the
conditions of parole. Such conditions shall where appropriate, include a
requirement that the parolee comply with any restitution order,
mandatory surcharge, sex offender registration fee and DNA databank fee
previously imposed by a court of competent jurisdiction that applies to
the parolee. The conditions shall indicate which restitution collection
agency established under subdivision eight of section 420.10 of the
criminal procedure law, shall be responsible for collection of
restitution, mandatory surcharge, sex offender registration fees and DNA
databank fees as provided for in section 60.35 of the penal law and
section eighteen hundred nine of the vehicle and traffic law. If the
inmate is released, he or she shall also be notified in writing that his
or her voting rights will be restored upon release.

(ii) Any incarcerated individual who is scheduled for presumptive
release pursuant to section eight hundred six of the correction law
shall not appear before the board as provided in subparagraph (i) of
this paragraph unless such incarcerated individual's scheduled
presumptive release is forfeited, canceled, or rescinded subsequently as
provided in such law. In such event, the incarcerated individual shall
appear before the board for release consideration as provided in
subparagraph (i) of this paragraph as soon thereafter as is practicable.

* NB Effective until September 1, 2023

* (a) At least one month prior to the expiration of the minimum period
or periods of imprisonment fixed by the court or board, a member or
members as determined by the rules of the board shall personally
interview an incarcerated individual serving an indeterminate sentence
and determine whether he or she should be paroled at the expiration of
the minimum period or periods in accordance with the procedures adopted
pursuant to subdivision four of section two hundred fifty-nine-c of this
article. If parole is not granted upon such review, the incarcerated
individual shall be informed in writing within two weeks of such
appearance of the factors and reasons for such denial of parole. Such
reasons shall be given in detail and not in conclusory terms. The board
shall specify a date not more than twenty-four months from such
determination for reconsideration, and the procedures to be followed
upon reconsideration shall be the same. If the incarcerated individual
is released, he or she shall be given a copy of the conditions of
parole. Such conditions shall where appropriate, include a requirement
that the parolee comply with any restitution order and mandatory
surcharge previously imposed by a court of competent jurisdiction that
applies to the parolee. The conditions shall indicate which restitution
collection agency established under subdivision eight of section 420.10
of the criminal procedure law, shall be responsible for collection of
restitution and mandatory surcharge as provided for in section 60.35 of
the penal law and section eighteen hundred nine of the vehicle and
traffic law. If the inmate is released, he or she shall also be notified
in writing that his or her voting rights will be restored upon release.

* NB Effective September 1, 2023

(b) Persons presumptively released, paroled, conditionally released or
released to post-release supervision from an institution under the
jurisdiction of the department, the department of mental hygiene or the
office of children and family services shall, while on presumptive
release, parole, conditional release or post-release supervision, be in
the legal custody of the department until expiration of the maximum term
or period of sentence, or expiration of the period of supervision,
including any period of post-release supervision, or return to
imprisonment in the custody of the department, as the case may be.

(c) (A) Discretionary release on parole shall not be granted merely as
a reward for good conduct or efficient performance of duties while
confined but after considering if there is a reasonable probability
that, if such incarcerated individual is released, he or she will live
and remain at liberty without violating the law, and that his or her
release is not incompatible with the welfare of society and will not so
deprecate the seriousness of his or her crime as to undermine respect
for law. In making the parole release decision, the procedures adopted
pursuant to subdivision four of section two hundred fifty-nine-c of this
article shall require that the following be considered: (i) the
institutional record including program goals and accomplishments,
academic achievements, vocational education, training or work
assignments, therapy and interactions with staff and incarcerated
individuals; (ii) performance, if any, as a participant in a temporary
release program; (iii) release plans including community resources,
employment, education and training and support services available to the
incarcerated individual; (iv) any deportation order issued by the
federal government against the incarcerated individual while in the
custody of the department and any recommendation regarding deportation
made by the commissioner of the department pursuant to section one
hundred forty-seven of the correction law; (v) any current or prior
statement made to the board by the crime victim or the victim's
representative, where the crime victim is deceased or is mentally or
physically incapacitated; (vi) the length of the determinate sentence to
which the incarcerated individual would be subject had he or she
received a sentence pursuant to section 70.70 or section 70.71 of the
penal law for a felony defined in article two hundred twenty or article
two hundred twenty-one of the penal law; (vii) the seriousness of the
offense with due consideration to the type of sentence, length of
sentence and recommendations of the sentencing court, the district
attorney, the attorney for the incarcerated individual, the pre-sentence
probation report as well as consideration of any mitigating and
aggravating factors, and activities following arrest prior to
confinement; and (viii) prior criminal record, including the nature and
pattern of offenses, adjustment to any previous probation or parole
supervision and institutional confinement. The board shall provide toll
free telephone access for crime victims. In the case of an oral
statement made in accordance with subdivision one of section 440.50 of
the criminal procedure law, the parole board member shall present a
written report of the statement to the parole board. A crime victim's
representative shall mean the crime victim's closest surviving relative,
the committee or guardian of such person, or the legal representative of
any such person. Such statement submitted by the victim or victim's
representative may include information concerning threatening or
intimidating conduct toward the victim, the victim's representative, or
the victim's family, made by the person sentenced and occurring after
the sentencing. Such information may include, but need not be limited
to, the threatening or intimidating conduct of any other person who or
which is directed by the person sentenced. Any statement by a victim or
the victim's representative made to the board shall be maintained by the
department in the file provided to the board when interviewing the
incarcerated individual in consideration of release. A victim or
victim's representative who has submitted a written request to the
department for the transcript of such interview shall be provided such
transcript as soon as it becomes available.

(B) Where a crime victim or victim's representative as defined in
subparagraph (A) of this paragraph, or other person submits to the
parole board a written statement concerning the release of an
incarcerated individual, the parole board shall keep that individual's
name and address confidential.

(d) (i) Notwithstanding the provisions of paragraphs (a), (b) and (c)
of this subdivision, after the incarcerated individual has served his or
her minimum period of imprisonment imposed by the court, or at any time
after the incarcerated individual's period of imprisonment has commenced
for an incarcerated individual serving a determinate or indeterminate
term of imprisonment, provided that the incarcerated individual has had
a final order of deportation issued against him or her and provided
further that the incarcerated individual is not convicted of either an
A-I felony offense other than an A-I felony offense as defined in
article two hundred twenty of the penal law or a violent felony offense
as defined in section 70.02 of the penal law, if the incarcerated
individual is subject to deportation by the United States Bureau of
Immigration and Customs Enforcement, in addition to the criteria set
forth in paragraph (c) of this subdivision, the board may consider, as a
factor warranting earlier release, the fact that such incarcerated
individual will be deported, and may grant parole from an indeterminate
sentence or release for deportation from a determinate sentence to such
incarcerated individual conditioned specifically on his or her prompt
deportation. The board may make such conditional grant of early parole
from an indeterminate sentence or release for deportation from a
determinate sentence only where it has received from the United States
Bureau of Immigration and Customs Enforcement assurance (A) that an
order of deportation will be executed or that proceedings will promptly
be commenced for the purpose of deportation upon release of the
incarcerated individual from the custody of the department of
correctional services, and (B) that the incarcerated individual, if
granted parole or release for deportation pursuant to this paragraph,
will not be released from the custody of the United States Bureau of
Immigration and Customs Enforcement, unless such release be as a result
of deportation without providing the board a reasonable opportunity to
arrange for execution of its warrant for the retaking of such person.

(ii) An incarcerated individual who has been granted parole from an
indeterminate sentence or release for deportation from a determinate
sentence pursuant to this paragraph shall be delivered to the custody of
the United States Bureau of Immigration and Customs Enforcement along
with the board's warrant for his or her retaking to be executed in the
event of his release from such custody other than by deportation. In the
event that such person is not deported, the board shall execute the
warrant, effect his return to imprisonment in the custody of the
department and within sixty days after such return, provided that the
person is serving an indeterminate sentence and the minimum period of
imprisonment has been served, personally interview him or her to
determine whether he or she should be paroled in accordance with the
provisions of paragraphs (a), (b) and (c) of this subdivision. The
return of a person granted parole from an indeterminate sentence or
release for deportation from a determinate sentence pursuant to this
paragraph for the reason set forth herein shall not be deemed to be a
parole delinquency and the interruptions specified in subdivision three
of section 70.40 of the penal law shall not apply, but the time spent in
the custody of the United States Bureau of Immigration and Customs
Enforcement shall be credited against the term of the sentence in
accordance with the rules specified in paragraph (c) of that
subdivision. Notwithstanding any other provision of law, any
incarcerated individual granted parole from an indeterminate sentence or
release for deportation from a determinate sentence pursuant to this
paragraph who is subsequently committed to imprisonment in the custody
of the department for a felony offense committed after release pursuant
to this paragraph shall have his parole eligibility date on the
indeterminate sentence for the new felony offense, or his or her
conditional release date on the determinate sentence for the new felony
offense, as the case may be, extended by the amount of time between the
date on which such incarcerated individual was released from
imprisonment in the custody of the department pursuant to this paragraph
and the date on which such incarcerated individual would otherwise have
completed service of the minimum period of imprisonment on the prior
felony offense.

(e) Notwithstanding the requirements of paragraph (a) of this
subdivision, the determination to parole an incarcerated individual who
has successfully completed the shock incarceration program pursuant to
section eight hundred sixty-seven of the correction law may be made
without a personal interview of the incarcerated individual and shall be
made in accordance with procedures set forth in the rules of the board.
If parole is not granted, the time period for reconsideration shall not
exceed the court imposed minimum.

3. Revocation of presumptive release, parole, conditional release and
post-release supervision. (a) * (i) If the parole officer having charge
of a presumptively released, paroled or conditionally released person or
a person released to post-release supervision or a person received under
the uniform act for out-of-state parolee supervision shall have
reasonable cause to believe that such person has lapsed into criminal
ways or company, or has violated one or more conditions of his
presumptive release, parole, conditional release or post-release
supervision, such parole officer shall report such fact to a member of
the board, or to any officer of the department designated by the board,
and thereupon a warrant may be issued for the retaking of such person
and for his temporary detention in accordance with the rules of the
board unless such person has been determined to be currently unfit to
proceed to trial or is currently subject to a temporary or final order
of observation pursuant to article seven hundred thirty of the criminal
procedure law, in which case no warrant shall be issued. The retaking
and detention of any such person may be further regulated by rules and
regulations of the department not inconsistent with this article. A
warrant issued pursuant to this section shall constitute sufficient
authority to the superintendent or other person in charge of any jail,
penitentiary, lockup or detention pen to whom it is delivered to hold in
temporary detention the person named therein; except that a warrant
issued with respect to a person who has been 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 supervision upon the successful completion of the
program.

* NB Effective until March 1, 2022

* (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 probable cause to believe
that such person has 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 pending a recognizance
hearing in accordance with the rules of the board. If the person has
intentionally failed to appear as directed in response to a notice of
violation and has intentionally failed to appear voluntarily within
forty-eight hours after such time and the person would not be subject to
incarceration pursuant to paragraph (f) of this subdivision should the
violation be sustained at a final revocation 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 decision was served upon the
releasee, the releasee may move to vacate such a sustained violation if
the releasee can show by a preponderance of the evidence 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 person
under community 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 retaking of
such person and for his temporary detention in accordance with the rules
of the board. 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, 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 person for whom a warrant has been issued pursuant to
this subparagraph 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 pending a recognizance hearing
pursuant to subparagraph (iv) of this paragraph. It shall not 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 or due to conduct related to cannabis
that is lawful pursuant to the laws of New York.

* NB Effective March 1, 2022

(ii) A warrant issued for a presumptive release, a parole, a
conditional release or a post-release supervision violator may be
executed by any parole officer or any officer authorized to serve
criminal process or any peace officer, who is acting pursuant to his
special duties, or police officer. Any such officer to whom such warrant
shall be delivered is authorized and required to execute such warrant by
taking such person and having him detained as provided in this
paragraph.

(iii) Where the alleged violator is detained in another state pursuant
to such warrant and is not under parole supervision pursuant to the
uniform act for out-of-state parolee supervision or where an alleged
violator under parole supervision pursuant to the uniform act for
out-of-state parolee supervision is detained in a state other than the
receiving state, the warrant will not be deemed to be executed until the
alleged violator is detained exclusively on the basis of such warrant
and the department has received notification that the alleged violator
(A) has formally waived extradition to this state or (B) has been
ordered extradited to this state pursuant to a judicial determination.
The alleged violator will not be considered to be within the convenience
and practical control of the department until the warrant is deemed to
be executed.

* (iv) Notwithstanding the provisions of any other law, upon execution
of a warrant issued pursuant to this section for any releasee alleged to
have committed a violation of a condition of release in an important
respect in the city of New York, the authorized officer shall present
the releasee to the criminal court of the city of New York or the
supreme court criminal term in the county where the violation is alleged
to have been committed for a recognizance hearing within twenty-four
hours of the execution of the warrant. If no such court of record is
available to conduct any business of any type within twenty-four hours
of the execution of the warrant, the recognizance hearing shall commence
on the next day such a court in the jurisdiction is available to conduct
any business of any type. For any releasee alleged to have committed a
violation of a condition of release in an important respect outside of
the city of New York, the authorized officer shall present the releasee
to a county court, district court or city court in the county or city
where the violation is alleged to have been committed for a recognizance
hearing. If no such court of record is available to conduct any business
of any type within twenty-four hours of the execution of the warrant,
the recognizance hearing shall commence on the next day such court is
available to conduct any business of any type.

* NB Effective March 1, 2022

* (v) At a recognizance hearing, the department shall have the burden
of demonstrating to the court that the executed warrant was properly
issued and served pursuant to this section. The department shall be
responsible for presenting information to the court regarding the
alleged violation and the releasee's community supervision record. If
the alleged violation is the subject of a pending criminal prosecution,
the department shall coordinate with the office of the district attorney
to ensure information regarding the alleged violation and the releasee's
community supervision record is presented to the court. At a
recognizance hearing, the department shall have the burden of
demonstrating to the court that the executed warrant was properly issued
and served pursuant to this section. The department shall be responsible
for presenting information to the court regarding the alleged violation
and the releasee's community supervision record. If the alleged
violation is the subject of a pending criminal prosecution, the
department shall coordinate with the office of the district attorney to
ensure information regarding the alleged violation and the releasee's
community supervision record is presented to the court.

* NB Effective March 1, 2022

* (vi) At a recognizance hearing, 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 conclusion of the recognizance
hearing, the court may order that the releasee be detained pending a
preliminary or final revocation hearing only upon a finding that the
releasee currently presents a substantial risk of willfully failing to
appear at the preliminary or final revocation hearings and that no
non-monetary condition or combination of conditions in the community
will reasonably assure the releasee's appearance at the preliminary or
final revocation hearing. 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.

* NB Effective March 1, 2022

* (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 to
participate in a recognizance proceeding, where such person is
financially unable to retain counsel, the court in which any criminal
case against the individual is pending, or if there is no such case
pending, 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 to be 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.

* NB Effective March 1, 2022

* (viii) If the violation charge involves conduct that would
constitute a new felony or misdemeanor offense, such recognizance
hearing may be held at the same time as a proceeding pursuant to article
five hundred thirty of the criminal procedure law for any warrants
issued by the department prior to such proceeding. If at the proceeding
pursuant to article five hundred thirty of the criminal procedure law
the court imposes bail on the new alleged criminal offense or commits
the releasee to the custody of the sheriff pursuant to article five
hundred thirty of the criminal procedure law and the releasee secures
release by paying bail or under non-monetary conditions 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, provided, however,
that if no court as defined in subparagraph (iv) of this paragraph is
available to conduct any business of any type within twenty-four hours
of the execution of the warrant, then the recognizance hearing shall
commence on the next day such court is available to conduct any business
of any type.

* NB Effective March 1, 2022

(b) A person who shall have been taken into custody pursuant to this
subdivision for violation of one or more conditions of presumptive
release, parole, conditional release or post-release supervision shall,
insofar as practicable, be incarcerated in the county or city in which
the arrest occurred.

(c) * (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-release supervision violator a preliminary revocation
hearing before a hearing officer designated by the board of parole. Such
hearing officer shall not have had any prior supervisory involvement
over the alleged violator.

* NB Effective until March 1, 2022

* (i) (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
department 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 department. Such hearing officer shall not have had any prior
supervisory involvement over the alleged violator. Such hearing shall
not be held at a correctional facility, detention center or local
correctional facility. The hearing shall be scheduled and held in a
courthouse, in cooperation with the chief administrator of the courts
and the chief administrator's designees, provided, however, that if such
a courthouse is not reasonably available for such hearing, the
department may designate a suitable office or other similar facility
that is not a correctional facility, detention center or local
correctional facility for such hearing.

(B) For any alleged violation for which a court issued an order
detaining a person, within five days of the issuance of such order to
detain or execution of a 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 supervisory involvement over the alleged violator. For any
alleged violation for which a person was released on recognizance,
within ten days of the issuance of the order of release on recognizance,
the department shall afford such person a preliminary revocation
hearing.

* NB Effective March 1, 2022

* (ii) The preliminary presumptive release, parole, conditional
release or post-release supervision revocation hearing shall be
conducted at an appropriate correctional facility, or such other place
reasonably close to the area in which the alleged violation occurred as
the board may designate.

* NB Effective until March 1, 2022

* (ii) The preliminary presumptive release, parole, conditional
release or post-release supervision revocation hearing shall be
scheduled and held in a courthouse, in cooperation with the chief
administrator of the courts and the chief administrator's designees,
provided, however, that if such a courthouse is not reasonably available
for such hearing, the department may designate a suitable office or
other similar facility that is not a correctional facility, detention
center or local correctional facility for such hearing.

* NB Effective March 1, 2022

* (iii) The alleged violator shall, within three days of the execution
of the warrant, be given written notice of the time, place and purpose
of the 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. 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 officer; that he or she has the right to confront the witnesses
against him or her. 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.

* NB Effective until March 1, 2022

* (iii) The alleged violator shall, 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, or if
no preliminary hearing is required pursuant to this section, of the
final revocation hearing. The notice shall state what conditions of
community 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 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 are relevant to the
charge shall be delivered to the alleged violator.

* NB Effective March 1, 2022

* (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
conditions 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.

* NB Effective until March 1, 2022

* (iv) The standard of proof at the preliminary hearing shall be a
preponderance of the evidence to believe that the releasee has violated
one or more conditions of his or her community supervision in an
important respect. Proof of conviction of a crime committed while under
supervision shall constitute prima facie evidence of a violation of a
condition of community supervision for the purposes of this
subparagraph.

* NB Effective March 1, 2022

(v) At the preliminary hearing, the hearing officer shall review the
violation charges with the alleged violator, direct the presentation of
evidence concerning the alleged violation, receive the statements of
witnesses and documentary evidence on behalf of the prisoner, and allow
cross examination of those witnesses in attendance.

(vi) At the conclusion of the preliminary hearing, the hearing officer
shall inform the alleged violator of his or her decision as to whether
there is probable cause to believe that the presumptive releasee,
parolee, conditional releasee or person on post-release supervision has
violated one or more conditions of his or her release in an important
respect. Based solely on the evidence adduced at the hearing, the
hearing officer shall determine whether there is probable cause to
believe that such person has violated his or her presumptive release,
parole, conditional release or post-release supervision in an important
respect. The hearing officer shall in writing state the reasons for his
or her determination and the evidence relied on. A copy of the written
findings shall be sent to both the alleged violator and his or her
counsel.

(vii) If the hearing officer is satisfied that there is no probable
cause to believe that such person has violated one or more conditions of
release in an important respect, he or she shall dismiss the notice of
violation and direct such person be restored to supervision.

(viii) If the hearing officer is satisfied that there is probable
cause to believe that such person has violated one or more conditions of
release in an important respect, he or she shall so find.

* (ix) If the hearing officer finds by a preponderance of the evidence
that such person has violated one or more conditions of community
supervision in an important respect, the releasee shall, at the
conclusion of the preliminary 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; 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 charges 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.

* NB Effective March 1, 2022

* (x) The alleged violator shall have a right to 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
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.

* NB Effective March 1, 2022

* (d) If a finding of probable cause is made pursuant to this
subdivision either by a determination at a preliminary hearing or by the
waiver thereof, or if the releasee has been convicted of a new crime
while under presumptive release, parole, conditional release or
post-release supervision, the board's rules shall provide for (i)
declaring such person to be delinquent as soon as practicable and shall
require reasonable and appropriate action to make a final determination
with respect to the alleged violation or (ii) ordering such person to be
restored to presumptive release, parole, conditional release or
post-release supervision under such circumstances as it may deem
appropriate or (iii) when a presumptive releasee, parolee, conditional
releasee or person on post-release supervision has been convicted of a
new felony committed while under such supervision and a new
indeterminate or determinate sentence has been imposed, the board's
rules shall provide for a final declaration of delinquency. The
incarcerated individual shall then be notified in writing that his or
her release has been revoked on the basis of the new conviction and a
copy of the commitment shall accompany said notification. The
incarcerated individual's next appearance before the board shall be
governed by the legal requirements of said new indeterminate or
determinate sentence, or shall occur as soon after a final reversal of
the conviction as is practicable.

* NB Effective until September 1, 2023

* (d) If a finding of probable cause is made pursuant to this
subdivision either by determination at a preliminary hearing or by the
waiver thereof, or if the releasee has been convicted of a new crime
while under his present parole or conditional release supervision, the
board's rules shall provide for (i) declaring such person to be
delinquent as soon as practicable and shall require reasonable and
appropriate action to make a final determination with respect to the
alleged violation or (ii) ordering such person to be restored to parole
supervision under such circumstances as it may deem appropriate or (iii)
when a parolee or conditional releasee has been convicted of a new
felony committed while under his or her present parole or conditional
release supervision and a new indeterminate sentence has been imposed,
the board's rules shall provide for a final declaration of delinquency.
The incarcerated individual shall then be notified in writing that his
or her release has been revoked on the basis of the new conviction and a
copy of the commitment shall accompany said notification. The
incarcerated individual's next appearance before the board shall be
governed by the legal requirements of said new indeterminate sentence,
or shall occur as soon after a final reversal of the conviction as is
practicable.

* NB Effective September 1, 2023

(e) (i) If the alleged violator requests a local revocation hearing,
he or she shall be given a revocation hearing reasonably near the place
of the alleged violation or arrest if he or she has not been convicted
of a crime committed while under supervision. However, the board may, on
its own motion, designate a case for a local revocation hearing.

(ii) If there are two or more alleged violations, the hearing may be
conducted near the place of the violation chiefly relied upon as a basis
for the issuance of the warrant as determined by the board.

(iii) If a local revocation hearing is not ordered pursuant to
subparagraph (i) of this paragraph the alleged violator shall be given a
revocation hearing upon his or her return to a state correctional
facility.

* (f) (i) Revocation hearings shall be scheduled to be held within
ninety days of the probable cause determination. However, if an alleged
violator requests and receives any postponement of his revocation
hearing, or consents to a postponed revocation 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.

(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
restoration to presumptive release, parole, conditional release or
post-release supervision and his right to counsel.

(v) The alleged violator shall be permitted representation by counsel
at the revocation hearing. In any case, including when a superior court
is called upon to evaluate the capacity of an alleged violator in a
parole revocation proceeding, where such person is financially unable to
retain counsel, the criminal court of the city of New York, the county
court or district court in the county where the violation is alleged to
have occurred or where the hearing is held, shall assign counsel in
accordance with the county or city plan for representation placed in
operation pursuant to article eighteen-B of the county law. He or she
shall have the right to confront and cross-examine adverse witnesses,
unless there is good cause for their non-attendance as determined by the
presiding officer; present witnesses and documentary evidence in defense
of the charges; and present witnesses and documentary evidence relevant
to the question whether reincarceration of the alleged violator is
appropriate.

(vi) At the revocation hearing, the charges shall be read and the
alleged violator shall be permitted to plead not guilty, guilty, guilty
with explanation or to stand mute. As to each charge, evidence shall be
introduced through witnesses and documents, if any, in support of that
charge. At the conclusion of each witness's direct testimony, he shall
be made available for cross-examination. If the alleged violator intends
to present a defense to the charges or to present evidence of mitigating
circumstances, the alleged violator shall do so after presentation of
all the evidence in support of a violation of presumptive release,
parole, conditional release or post-release supervision.

(vii) All persons giving evidence at the revocation hearing shall be
sworn before giving any testimony as provided by law.

(viii) At the conclusion of the hearing the presiding officer may
sustain any or all of the violation charges or may dismiss any or all
violation charges. He may sustain a violation charge only if the charge
is supported by a preponderance of the evidence adduced.

(ix) If the presiding officer is not satisfied that there is a
preponderance of evidence in support of the violation, he shall dismiss
the violation, cancel the delinquency and restore the person to
presumptive release, parole, conditional release or post-release
supervision.

(x) If the presiding officer is satisfied that there is a
preponderance of 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 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 subsequent restoration
to supervision; (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 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-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. 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 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 commission 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) If the presiding officer sustains any violations, he or she must
prepare a written statement, to be made available to the alleged
violator and his or her 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. The
presiding officer shall also advise the alleged violator in a written
statement that revocation will result in loss of the right to vote while
he or she is serving the remainder of his or her felony sentence in a
correctional facility and that the right to vote will be restored upon
his or her release.

(xii) 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 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
officer. If the court determines that the alleged violator is not an
incapacitated 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
observation 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.

* NB Effective until March 1, 2022

* (f) (i) For any releasee charged with a violation at a preliminary
hearing:

(A) If a court issued an order detaining a person after a finding by a
preponderance of the evidence that such person committed a violation
then within thirty days of the finding by a preponderance of the
evidence determination at the preliminary hearing, 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.

(B) (1) If a notice of violation was issued or such person was
released on recognizance the department shall within forty-five 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 supervisory involvement over the alleged
violator.

(2) The final revocation hearing shall not be held at a correctional
facility, detention center or local correctional facility. Such hearing
shall be scheduled and held in a courthouse, in cooperation with the
chief administrator of the courts and the chief administrator's
designees, provided, however, that if such a courthouse is not
reasonably available for such hearing, the department may designate a
suitable office or other similar facility that is not a correctional
facility, detention center or local correctional facility for such
hearing.

(3) The department shall have six months from the date of the
effective date of the chapter of the laws of two thousand twenty-one
that amended this paragraph to begin to hold such hearings at allowable
locations.

(C) However, if an alleged violator requests and receives any
postponement of his or her revocation hearing, or consents to a
postponed revocation 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 or her 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 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 or her right to present mitigating evidence relevant to
restoration to presumptive release, parole, conditional release or
post-release supervision and his or her right to counsel.

(v) The alleged violator shall have a right to 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 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 or she
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 or she may sustain a violation charge only if the
charge is supported by 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 adjudicated the matter with an
acquittal, adjournment in contemplation of dismissal, or violation.

(ix) If the presiding officer is not satisfied that there is clear and
convincing evidence in support of the violation, he or she 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 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 sustained technical violation 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 technical violation,
except as provided in subparagraph (xii) of this paragraph.

(xii) For each violation found, the presiding officer may (A) direct
that the releasee be restored to supervision; (B) as an alternative to
reincarceration, direct the releasee receive re-entry services in the
community from qualified nonprofit agencies; or (C) direct the
violator's reincarceration and for non-technical violations fix a date
for consideration by the board for re-release on presumptive release, or
parole or conditional release, as the case may be; or (D) for
non-technical violations 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, shall apply for technical violations; and the
following limitations:

(1) Absconding. For absconding 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) Sanctions for certain technical violations. Reincarceration shall
not be imposed for a sustained technical violation that involves: (a)
violating curfew; (b) alcohol use, provided however that incarceration
is permissible for alcohol use if the person is subject to community
supervision due to a conviction for driving under the influence of
alcohol; (c) drug use, provided, however incarceration is permissible
for drug use if the person is subject to community supervision due to a
conviction for driving under the influence of drugs; (d) failing to
notify parole officer of a change in employment or program status; (e)
failing to pay surcharges and fees; (f) obtaining a driver's license or
driving a car with a valid driver's license, provided however
incarceration is permissible if either action is explicitly prohibited
by the person's conviction; (g) failing to notify community supervision
officer of contact with any law enforcement agency, provided however,
incarceration is permissible if the person intended to hide illegal
behavior; (h) failing to obey other special conditions, provided however
that incarceration is permissible if the failure cannot be addressed in
the community and all reasonable community-based means to address the
failure have been exhausted; and

(3) Sanctions for all other technical violations. For all other
technical 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 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 incarceration may be imposed.

(xiii) If a warrant was executed pursuant to subparagraph (iv) of
paragraph (a) of this subdivision by a criminal court and the court
released the person pending a preliminary or final revocation hearing,
any period of reincarceration imposed pursuant to this paragraph shall
be counted from the date of issuance of a determination after a final
revocation 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 a preliminary or final revocation
hearing shall count toward any period of reincarceration imposed
pursuant to this paragraph. If a releasee is committed to the custody of
the sheriff pursuant to article five hundred thirty of the criminal
procedure law, any time the person spent confined in a correctional
facility or local correctional facility shall be credited toward any
period of reincarceration imposed pursuant to this paragraph. In all
cases, the presiding officer shall impose the least restrictive
reasonable sanction. Any periods of reincarceration imposed pursuant to
this section shall run concurrently if more than one violation is
sustained. 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 disciplinary 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 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 commission 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.

** (xiv) If the presiding officer sustains any violations, such
officer must prepare a written statement, to be made available to the
alleged violator and his or her 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. The presiding officer shall also advise the alleged violator in a
written statement that revocation will result in loss of the right to
vote while he or she is serving the remainder of his or her felony
sentence in a correctional facility and that the right to vote will be
restored upon his or her release.

** NB Effective immediately per chapter 103/2021 § 8

(xv) 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.
The court shall decide whether or not the alleged violator is
incapacitated within thirty days of the referral from the hearing
officer. If the court determines that the alleged violator is not an
incapacitated 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
observation 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.

* NB Effective March 1, 2022

(g) Revocation of presumptive release, parole, conditional release or
post-release supervision shall not prevent re-parole or re-release
provided such re-parole or re-release is not inconsistent with any other
provisions of law. When there has been a revocation of the period of
post-release supervision imposed on a felony sex offender who owes three
years or more on such period imposed pursuant to subdivision two-a of
section 70.45 of the penal law, and a time assessment of three years or
more has been imposed, the violator shall be reviewed by the board of
parole and may be restored to post-release supervision only after
serving three years of the time assessment, and only upon a
determination by the board of parole made in accordance with the
procedures set forth in this section. Even if the hearing officer has
imposed a time assessment of a certain number of years of three years or
more, the violator shall not be released at or before the expiration of
that time assessment unless the board authorizes such release, the
period of post-release supervision expires, or release is otherwise
authorized by law. If a time assessment of less than three years was
imposed upon such a defendant, the defendant shall be released upon the
expiration of such time assessment, unless he or she is subject to
further imprisonment or confinement under any other law.

(h) If the alleged violation is not sustained and the alleged violator
is restored to supervision, the interruptions specified in subdivision
three of section 70.40 of the penal law shall not apply, but the time
spent in custody in any state or local correctional institution shall be
credited against the term of the sentence in accordance with the rules
specified in paragraph (c) of such subdivision.

(i) Where there is reasonable cause to believe that a presumptive
releasee, parolee, conditional releasee or person under post-release
supervision has absconded from supervision the board may declare such
person to be delinquent. This paragraph shall not be construed to deny
such person a preliminary revocation hearing upon his retaking, nor to
relieve the department of any obligation it may have to exercise due
diligence to retake the alleged absconder, nor to relieve the parolee or
releasee of any obligation he may have to comply with the conditions of
his release.

4. Appeals. (a) Except for determinations made upon preliminary
hearings upon allegations of violation of presumptive release, parole,
conditional release or post-release supervision, all determinations made
pursuant to this section may be appealed in accordance with rules
promulgated by the board. Any board member who participated in the
decision from which the appeal is taken may not participate in the
resolution of that appeal. The rules of the board may specify a time
within which any appeal shall be taken and resolved.

(b) Upon an appeal to the board, the incarcerated individual may be
represented by an attorney. Where the incarcerated individual is
financially unable to provide for his or her own attorney, upon request
an attorney shall be assigned pursuant to the provisions of subparagraph
(v) of paragraph (f) of subdivision three of this section.

(c) All board of parole administrative appeal findings and
recommendations shall be published within one hundred twenty days of the
determination on a publicly accessible website that includes a
word-searchable database. The department of corrections and community
supervision shall provide electronic or print copies of such findings
and recommendations to all correctional facility law libraries on a
quarterly basis. Copies of such individual findings and recommendations
shall also be made available upon written request to the department of
corrections and community supervision. Information which would reveal
confidential material that may not be released pursuant to federal or
state law shall be redacted from any such website or findings and
recommendations.

* 4-a. Appeals from non-technical violation findings. (a)
Notwithstanding the provisions of any other law, when in a violation
proceeding brought pursuant to this section, any of the charges
sustained by the hearing officer would constitute a misdemeanor or
felony if such charge were or had been brought in a criminal court, the
releasee may, in lieu of an administrative appeal to the board pursuant
to subdivision four of this section, appeal such determination to the
lowest level of the following courts serving the jurisdiction in which
the hearing was held or in which any such sustained conduct was alleged
to have occurred: city court, district court, county court or supreme
court; provided, however, that if any such misdemeanor or felony charge
was prosecuted in any city, district, county or supreme court, such
appeal shall be filed in that court.

(b) The appeal shall be commenced by the filing of a notice of appeal
in the same manner as an appeal to the appellate division as set forth
in paragraphs (a), (b), (d) and (e) of subdivision one and subdivision
six of section 460.10 of the criminal procedure law. Counsel shall be
assigned to the individual, if unable to afford counsel, by the court
before which the appeal is taken or is to be taken. Such court may stay
such determination pending the appeal, in a manner consistent with the
provisions of section 460.50 of the criminal procedure law or as
otherwise authorized. Within thirty days after receiving such a notice
of appeal, the board shall serve on the individual or counsel and file
with such court a transcript of the proceedings before the hearing
officer prepared pursuant to paragraph (a) of subdivision six of this
section, and copies of the documents, photographs and records considered
by the hearing officer, and provide access to any other evidence
considered by the hearing officer who made such determination.

(c) The appeal shall be perfected in the manner set forth in section
460.70 of the criminal procedure law, other provisions of law generally
applicable to criminal appeals, and authorized rules implementing this
section promulgated by the chief administrator of the courts. The
department shall have responsibility for presenting the department's
position through any submissions to the court on the appeal. The
department shall coordinate with relevant district attorneys to ensure
appropriate information may be provided to the court. The district
attorney of the jurisdiction may appear on any such appeal without the
necessity of a motion or order of the court.

(d) On such appeal, the reviewing city, district, county or supreme
court shall consider de novo the issues raised by the appellant,
including but not limited to the following: (a) whether any sustained
violation charge should have been sustained; (b) whether reduction or
dismissal of the alleged violation charge or charges is warranted, in
accordance with the principles set forth in section 170.40 or section
210.40 of the criminal procedure law or otherwise; and (c) whether any
time assessment and other authorized sanction imposed by the hearing
officer should be vacated, reduced or, notwithstanding any law, rule or
regulation to the contrary, ordered to run concurrently with any other
sentence, time assessment, or period of reincarceration imposed.

* NB Effective March 1, 2022

5. Actions of the board. Any action by the board or by a hearing
officer pursuant to this article shall be deemed a judicial function and
shall not be reviewable if done in accordance with law.

6. Record of proceedings. (a) (i) The board shall provide for the
making of a verbatim record of each parole release interview, except
where a decision is made to release the incarcerated individual to
parole supervision, and each preliminary and final revocation hearing,
except when the decision of the presiding officer after such hearings
result in a dismissal of all charged violations of parole, conditional
release or post release supervision.

(ii) Notwithstanding the provisions of subparagraph (i) of this
paragraph, the board shall provide for the making of a verbatim record
of each parole release interview in all proceedings where the
incarcerated individual is a detained sex offender as such term is
defined in subdivision (g) of section 10.03 of the mental hygiene law.
Such record shall be provided to the office of mental health for use by
the multidisciplinary staff and the case review panel pursuant to
section 10.05 of the mental hygiene law.

(b) The chairman of the board of parole shall maintain records of all
parole interviews and hearings for a period of twenty-five years from
the date of the parole release interview or until expiration of the
maximum term of sentence.

7. Deaf person before the board. Whenever any deaf person participates
in an interview, parole release hearing, preliminary hearing or
revocation hearing, there shall be appointed a qualified interpreter who
is certified by a recognized national or New York state credentialing
authority to interpret the proceedings to and the statements or
testimony of such deaf person. The department shall determine a
reasonable fee for all such interpreting services, the cost of which
shall be a charge upon the department.

8. Foreign born or non-English speaking person before the board. Upon
notification from the department pursuant to section two hundred
fifty-nine-e of this article, or upon the request of any foreign born or
non-English speaking person who is scheduled to participate in an
interview, parole release hearing, preliminary hearing or revocation
hearing, there shall be appointed from the New York state office of
general services statewide administrative services contract, a qualified
interpreter to interpret the proceedings to and the statements or
testimony of such person. The board shall determine a reasonable fee for
all such interpreting services, the cost of which shall be a charge upon
the board of parole. No such request or appointment shall cause a delay
of release from incarceration of such person.

* 9. The board shall promulgate rules and regulations to facilitate
the presence of nonprofit service providers able to offer relevant
community-based services to releasees at all preliminary and final
revocation hearings for the purpose of helping people subject to
community supervision 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
supervision.

* NB Effective March 1, 2022