Bill Text: NY S01343 | 2019-2020 | General Assembly | Amended
Bill Title: Modifies the standard of evidence and certain other procedures when determining whether to revoke the community supervision of a person.
Spectrum: Partisan Bill (Democrat 20-0)
Status: (Introduced - Dead) 2020-04-17 - PRINT NUMBER 1343C [S01343 Detail]
Download: New_York-2019-S01343-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 1343--C 2019-2020 Regular Sessions IN SENATE 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: 1 Section 1. Section 259 of the executive law is amended by adding five 2 new subdivisions 5, 6, 7, 8 and 9 to read as follows: 3 5. "Releasee" means an individual released from an institution under 4 the jurisdiction of the department into the community on temporary 5 release, presumptive release, parole, conditional release, post-release 6 supervision or medical parole. 7 6. "Technical violation" means any violation of a condition of commu- 8 nity supervision in an important respect other than conduct that if 9 proved would be a felony offense, or a misdemeanor offense under article 10 one hundred twenty, one hundred twenty-one, one hundred thirty, one 11 hundred thirty-five, two hundred sixty-five or four hundred eighty-five 12 of the penal law. 13 7. "Absconding" means intentionally avoiding supervision by failing to 14 maintain contact or communication with the releasee's assigned community 15 supervision officer or area bureau office and to notify his or her 16 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. LBD06090-07-0S. 1343--C 2 1 in residence, and reasonable efforts by the assigned community super- 2 vision officer to re-engage the releasee have been unsuccessful. 3 8. "Tier 1 violation" means any technical violation not included in 4 the definition of a Tier 2 violation. 5 9. "Tier 2 violation" means any of the following technical violations: 6 violating curfew; failure to pay surcharges and fees, including fees 7 imposed pursuant to section 60.35 of the penal law, sections eighteen 8 hundred nine and eighteen hundred nine-c of the vehicle and traffic law, 9 or section 27.12 of the parks, recreation and historic preservation law; 10 obtaining a driver's license or driving a car with a valid driver's 11 license, provided however it shall not be a tier 2 violation if such 12 action is explicitly prohibited as a condition of such person's 13 sentence; positive test for or use or possession of alcohol, drugs, a 14 controlled substance without proper medical authorization, or drug 15 paraphernalia, provided however it shall not be a tier 2 violation if 16 the releasee is subject to community supervision due to a conviction 17 related to alcohol or drugs pursuant to section eleven hundred ninety- 18 two of the vehicle and traffic law; failing to notify a community super- 19 vision officer of a change in employment or program status; failing to 20 notify a community supervision officer of a change in residence, 21 provided however it shall not be a tier 2 violation if the releasee was 22 absconding; failure to make office or written reports as directed, 23 provided however it shall not be a tier 2 violation if the releasee was 24 absconding; leaving the state of New York or any other state to which 25 the releasee is released or transferred or any area defined in writing 26 by his parole officer, without permission, provided however it shall not 27 be a tier 2 violation if the releasee was absconding; failure to notify 28 community supervision officer of contact with any law enforcement agen- 29 cy, provided however it shall not be a tier 2 violation if the releasee 30 intended to hide evidence of his or others' behavior that constitutes a 31 violation of the penal law; and failure to obey any other special condi- 32 tion of community supervision, provided however it shall not be a tier 2 33 violation if the failure cannot be addressed in the community with coun- 34 seling, treatment, or programming and all reasonable community-based 35 means to address the failure have been exhausted. 36 § 2. Subdivision 3 of section 70.40 of the penal law, paragraphs (a) 37 and (b) as amended by section 127-h of subpart B of part C of chapter 62 38 of the laws of 2011 and paragraph (c) as amended by chapter 478 of the 39 laws of 1973, is amended and a new subdivision 4 is added to read as 40 follows: 41 3. Delinquency. (a) When a person is alleged to have violated the 42 terms of presumptive release or parole by absconding, and the state 43 board of parole has declared such person to be delinquent, the declara- 44 tion of delinquency shall interrupt the person's sentence as of the date 45 of the delinquency and such interruption shall continue until the 46 [return of the person to an institution under the jurisdiction of the47state department of corrections and community supervision] releasee's 48 appearance in response to a notice of violation or the date of the 49 execution of a warrant, whichever is earlier. 50 (b) When a person is alleged to have violated the terms of his or her 51 conditional release or post-release supervision by absconding and has 52 been declared delinquent by the parole board or the local conditional 53 release commission having supervision over such person, the declaration 54 of delinquency shall interrupt the period of supervision or post-release 55 supervision as of the date of the delinquency. For a conditional 56 release, such interruption shall continue until the [return of theS. 1343--C 3 1person to the institution from which he or she was released or, if he or2she was released from an institution under the jurisdiction of the state3department of corrections and community supervision, to an institution4under the jurisdiction of that department. Upon such return, the person5shall resume service of his or her sentence] releasee's appearance in 6 response to a notice of violation or the date of the execution of a 7 warrant, whichever is earlier. For a person released to post-release 8 supervision, the provisions of section 70.45 of this article shall 9 apply. 10 (c) Any time spent by a person in custody from the time of [delinquen-11cy] execution of a warrant pursuant to paragraph (a) of subdivision 12 three of section two hundred fifty-nine-i of the executive law to the 13 time service of the sentence resumes shall be credited against the term 14 or maximum term of the interrupted sentence[, provided:15(i) that such custody was due to an arrest or surrender based upon the16delinquency; or17(ii) that such custody arose from an arrest on another charge which18culminated in a dismissal or an acquittal; or19(iii) that such custody arose from an arrest on another charge which20culminated in a conviction, but in such case, if a sentence of imprison-21ment was imposed, the credit allowed shall be limited to the portion of22the time spent in custody that exceeds the period, term or maximum term23of imprisonment imposed for such conviction]. 24 4. Earned time credits. (a) After a person has begun a period of 25 community supervision pursuant to this section and section 70.45 of this 26 article, such period shall be reduced by thirty days for every thirty 27 days that such person does not violate a condition of his or her commu- 28 nity supervision, provided the person is not subject to any sentence 29 with a maximum term of life imprisonment. The calculation of earned time 30 credit periods shall begin on the releasee's first day of community 31 supervision and shall be awarded after each completed thirty day period. 32 Any such awarded earned time credits shall be applied against such 33 person's unserved portion of the maximum term, aggregate maximum term or 34 period of post-release supervision for any current sentence. 35 (b) Earned time credits may be withheld or revoked only for the thir- 36 ty-day period commencing from the date of violative behavior sustained 37 at a final revocation hearing, except that earned time credits may be 38 withheld or revoked for the entire time period during which a releasee 39 absconded from supervision, as sustained at a final revocation hearing, 40 and as defined in subparagraph (xii) of paragraph (f) of subdivision 41 three of section two hundred fifty-nine-i of the executive law. Earned 42 time credits may not be earned during a period of incarceration imposed 43 based on a sustained violation or new criminal conviction. After a 44 sustained violation, the calculation of an earned time credit period 45 shall recommence on the thirty-first day after the date of the violative 46 behavior or, if the sustained violation resulted in a term of incarcera- 47 tion, on the day the releasee is restored to community supervision, 48 whichever is later. 49 (c) When a person is subject to more than one period of community 50 supervision, the reduction authorized in this subdivision shall be 51 applied to every period of parole or conditional release to which the 52 person is subject. 53 (d) Earned time credits shall be awarded to any person subject to 54 community supervision at the time this legislation becomes effective 55 retroactive to the initial date such person began his or her earliest 56 current period of community supervision. Provided however, if aS. 1343--C 4 1 releasee's current period of community supervision has been interrupted 2 by a period of incarceration prior to the effective date of the chapter 3 of the laws of two thousand twenty which added this subdivision, no 4 earned time credits shall be awarded for such period of incarceration. 5 The department shall have six months from the effective date of this 6 subdivision to calculate all retroactive earned time credits; however, 7 the department of corrections and community supervision shall prioritize 8 earned time credit calculations for releasees whose terms of community 9 supervision are due to terminate before the conclusion of such six 10 months. Retroactive earned time credits shall not be awarded to any 11 releasee serving a term of incarceration for a sustained parole 12 violation at the time of the effective date of the chapter of the laws 13 of two thousand twenty which added this subdivision until the releasee 14 is returned to community supervision. 15 § 3. Paragraph (d) of subdivision 5 of section 70.45 of the penal law, 16 as amended by section 127-j of subpart B of part C of chapter 62 of the 17 laws of 2011, is amended to read as follows: 18 (d) When a person is alleged to have violated a condition of post-re- 19 lease supervision by absconding and the department of corrections and 20 community supervision has declared such person to be delinquent: (i) the 21 declaration of delinquency shall interrupt the period of post-release 22 supervision; (ii) such interruption shall continue until the person is 23 restored to post-release supervision; (iii) if the person is restored to 24 post-release supervision without being returned to the department of 25 corrections and community supervision, any time spent in custody from 26 the date of delinquency until restoration to post-release supervision 27 shall first be credited to the maximum or aggregate maximum term of the 28 sentence or sentences of imprisonment, but only to the extent authorized 29 by subdivision three of section 70.40 of this article. Any time spent in 30 custody solely pursuant to such delinquency after completion of the 31 maximum or aggregate maximum term of the sentence or sentences of impri- 32 sonment shall be credited to the period of post-release supervision, if 33 any; and (iv) if the person is ordered returned to the department of 34 corrections and community supervision, the person shall be required to 35 serve the time assessment before being re-released to post-release 36 supervision. [In the event the balance of the remaining period of post-37release supervision is six months or less, such time assessment may be38up to six months unless a longer period is authorized pursuant to subdi-39vision one of this section. The] If the person is detained pursuant to 40 paragraph (a) of subdivision three of section two hundred fifty-nine-i 41 of the executive law pending preliminary or revocation hearings, the 42 time assessment shall commence upon the execution of the warrant. If a 43 warrant was executed pursuant to paragraph (a) of subdivision three of 44 section two hundred fifty-nine-i of the executive law but a trial court 45 released the person pending preliminary or revocation hearings, the time 46 assessment shall commence upon the issuance of a determination after a 47 final hearing that the person has violated one or more conditions of 48 community supervision, and shall include the time period between 49 execution of the warrant and release of the person pending preliminary 50 or revocation hearings. If a releasee is committed to the custody of the 51 sheriff pursuant to article five hundred thirty of the criminal proce- 52 dure law, the time assessment shall include any time the releasee spent 53 in such detention. If a notice of violation was issued pursuant to 54 subdivision three of section two hundred fifty-nine-i of the executive 55 law, the time assessment shall commence upon the issuance of a determi- 56 nation after a final hearing that the person has violated one or moreS. 1343--C 5 1 conditions of supervision. While serving such assessment, the person 2 shall not receive any good behavior allowance pursuant to section eight 3 hundred three of the correction law. Any time spent in custody from the 4 date of delinquency until return to the department of corrections and 5 community supervision shall first be credited to the maximum or aggre- 6 gate maximum term of the sentence or sentences of imprisonment, but only 7 to the extent authorized by subdivision three of section 70.40 of this 8 article. The maximum or aggregate maximum term of the sentence or 9 sentences of imprisonment shall run while the person is serving such 10 time assessment in the custody of the department of corrections and 11 community supervision. Any time spent in custody solely pursuant to such 12 delinquency after completion of the maximum or aggregate maximum term of 13 the sentence or sentences of imprisonment shall be credited to the peri- 14 od of post-release supervision, if any. 15 § 4. Subparagraph (i) of paragraph (a) of subdivision 3 of section 16 259-i of the executive law, as amended by chapter 545 of the laws of 17 2015, is amended and five new subparagraphs (iv), (v), (vi), (vii) and 18 (viii) are added to read as follows: 19 (i) If the parole officer having charge of a presumptively released, 20 paroled or conditionally released person or a person released to post- 21 release supervision or a person received under the uniform act for out- 22 of-state parolee supervision shall have [reasonable] probable cause to 23 believe that such person has [lapsed into criminal ways or company, or24has violated one or more conditions of his presumptive release, parole,25conditional release or post-release supervision] committed a technical 26 violation, such parole officer shall report such fact to a member of the 27 board, or to any officer of the department designated by the board, and 28 thereupon a written notice of violation may be issued according to the 29 terms of subparagraph (iii) of paragraph (c) of this subdivision, and 30 shall be promptly served upon such person. If the releasee has failed to 31 appear as directed in response to a notice of violation and has failed 32 to appear voluntarily within forty-eight hours after such time and the 33 person would be subject to incarceration pursuant to subparagraph (xii) 34 of paragraph (f) of this subdivision should the violation be sustained 35 at a final revocation hearing, a warrant may be issued for the retaking 36 of such person and for his temporary detention in accordance with the 37 rules of the board. If the person has failed to appear as directed in 38 response to a notice of violation and has failed to appear voluntarily 39 within forty-eight hours after such time and the person would not be 40 subject to incarceration pursuant to subparagraph (xii) of paragraph (f) 41 of this subdivision should the violation be sustained at a final revoca- 42 tion hearing, no warrant shall issue and the violation shall be deemed 43 sustained. Notice of that decision shall be promptly served upon the 44 releasee. In such case, within one month of the date the notice of deci- 45 sion was served upon the releasee, the releasee may move to vacate such 46 a sustained violation if the releasee can show that the notice of 47 violation was not properly served or the failure to appear was otherwise 48 excusable. If the parole officer having charge of a presumptively 49 released, paroled or conditionally released person or a person released 50 to post-release supervision or a person received under the uniform act 51 for out of state parolee supervision shall have probable cause to 52 believe that such person has committed a non-technical violation, such 53 parole officer shall report such fact to a member of the board, or to 54 any officer of the department designated by the board, and thereupon a 55 notice of violation may be issued or a warrant may be issued for theS. 1343--C 6 1 retaking of such person and for his temporary detention in accordance 2 with the rules of the board [unless such person]. However, if a releasee 3 has been determined to be currently unfit to proceed to trial or is 4 currently subject to a temporary or final order of observation pursuant 5 to article seven hundred thirty of the criminal procedure law, [in which6case] no notice of violation or warrant shall be issued. The issuance of 7 a notice of violation, service of a notice of violation, service of a 8 notice of decision, and the retaking and detention of any [such] person 9 for whom a warrant has been issued pursuant to this subparagraph may be 10 further regulated by rules and regulations of the department not incon- 11 sistent with this article. A warrant issued pursuant to this section 12 shall constitute sufficient authority to the superintendent or other 13 person in charge of any jail, penitentiary, lockup or detention pen to 14 whom it is delivered to hold in temporary detention the person named 15 therein[; except that a warrant issued with respect to a person who has16been released on medical parole pursuant to section two hundred fifty-17nine-r of this article and whose parole is being revoked pursuant to18paragraph (h) of subdivision four of such section shall constitute19authority for the immediate placement of the parolee only into imprison-20ment in the custody of the department to hold in temporary detention. A21warrant issued pursuant to this section shall also constitute sufficient22authority to the person in charge of a drug treatment campus, as defined23in subdivision twenty of section two of the correction law, to hold the24person named therein, in accordance with the procedural requirements of25this section, for a period of at least ninety days to complete an inten-26sive drug treatment program mandated by the board as an alternative to27presumptive release or parole or conditional release revocation, or the28revocation of post-release supervision, and shall also constitute suffi-29cient authority for return of the person named therein to local custody30to hold in temporary detention for further revocation proceedings in the31event said person does not successfully complete the intensive drug32treatment program. The board's rules shall provide for cancellation of33delinquency and restoration to supervision upon the successful34completion of the program] for up to twenty-four hours pending a recog- 35 nizance hearing pursuant to subparagraph (iv) of this paragraph. It 36 shall no longer be a condition of parole nor may a notice of violation 37 or a warrant be issued due to a releasee being in the company of or 38 fraternizing with any person the releasee knows has a criminal record or 39 knows has been adjudicated a youthful offender. 40 (iv) Upon execution of a warrant issued pursuant to this section, the 41 authorized officer shall take the releasee to a local court with crimi- 42 nal jurisdiction for a recognizance hearing. Such recognizance hearing 43 shall commence within twenty-four hours of the execution of the warrant. 44 (v) At a recognizance hearing, the department shall have the burden to 45 demonstrate to the court that the executed warrant was properly issued 46 and served pursuant to this section. 47 (vi) At a recognizance hearing, the court shall consider all available 48 evidence of the releasee's employment, family and community ties includ- 49 ing length of residency in the community, history of reporting in a 50 timely fashion to a parole or supervisory officer, and other indicators 51 of stability. At the conclusion of the recognizance hearing, the court 52 may order that the releasee be detained pending preliminary or final 53 revocation hearings only upon a finding that the releasee currently 54 presents a substantial risk of willfully failing to appear at the 55 preliminary or final revocation hearings and that no non-monetary condi- 56 tion or combination of conditions in the community will reasonablyS. 1343--C 7 1 assure the releasee's appearance at the preliminary or final revocation 2 hearings. Otherwise, the court shall release the releasee on the least 3 restrictive non-monetary conditions that will reasonably assure the 4 releasee's appearance at subsequent preliminary or revocation hearings, 5 with a presumption of release on recognizance. The court shall explain 6 its decision on the record or in writing. If non-monetary conditions of 7 release are imposed, the releasee shall not be required to pay for any 8 part of the cost of such conditions. 9 (vii) The alleged violator shall have a right to representation by 10 counsel at the recognizance hearing. In any case, including when a court 11 is called upon to evaluate the capacity of an alleged violator in a 12 recognizance proceeding, where such person is financially unable to 13 retain counsel, the criminal court of the city of New York, the county 14 court or district court in the county where the violation is alleged to 15 have occurred or where the hearing is held, shall assign counsel in 16 accordance with the county or city plan for representation placed in 17 operation pursuant to article eighteen-B of the county law. 18 (viii) Such recognizance hearing may be held at the same time as a 19 proceeding pursuant to article five hundred thirty of the criminal 20 procedure law based on the same alleged conduct. If at the proceeding 21 pursuant to article five hundred thirty of the criminal procedure law 22 the court imposes bail or commits the releasee to the custody of the 23 sheriff pursuant to article five hundred thirty of the criminal proce- 24 dure law and the releasee secures release by paying bail or by operation 25 of law, then the releasee shall not be detained further based solely on 26 the warrant issued by the department. If the department issues a warrant 27 for a non-technical violation for alleged criminal conduct that has 28 already been the subject of a court's order pursuant to article five 29 hundred thirty of the criminal procedure law, then within twenty-four 30 hours of execution of the warrant the releasee shall be provided a 31 recognizance hearing pursuant to this subparagraph. 32 § 5. Subparagraphs (i), (iii) and (iv) of paragraph (c) of subdivision 33 3 of section 259-i of the executive law, subparagraph (i) as amended by 34 section 11 of part E of chapter 62 of the laws of 2003, and subpara- 35 graphs (iii) and (iv) as amended by section 1 of part E of chapter 56 of 36 the laws of 2007, are amended and two new subparagraphs (ix) and (x) are 37 added to read as follows: 38 (i) [Within fifteen days after the warrant for retaking and temporary39detention has been executed, unless the releasee has been convicted of a40new crime committed while under presumptive release, parole, conditional41release or post-release supervision, the board of parole shall afford42the alleged presumptive release, parole, conditional release or post-re-43lease supervision violator a preliminary revocation hearing before a44hearing officer designated by the board of parole. Such hearing officer45shall not have had any prior supervisory involvement over the alleged46violator] (A) For any alleged technical violation for which a notice of 47 violation was issued or a person was released on recognizance pursuant 48 to subparagraph (iv) of paragraph (a) of this subdivision, the depart- 49 ment shall within ten days of the issuance of the notice of violation or 50 the order of release on recognizance afford the person a preliminary 51 revocation hearing before a hearing officer designated by the depart- 52 ment. Such hearing officer shall not have had any prior supervisory 53 involvement over the alleged violator. Such hearing shall not be held at 54 a correctional facility, detention center or local correctional facili- 55 ty.S. 1343--C 8 1 (B) For any alleged technical violation for which a court issued an 2 order detaining a person pursuant to subparagraph (iv) of paragraph (a) 3 of this subdivision and the person would be subject to reincarceration 4 of up to thirty days pursuant to subparagraph (x) of paragraph (f) of 5 this subdivision should the violation be sustained at a final revocation 6 hearing, then within five days of the issuance of the order of detention 7 the department shall afford such person a preliminary revocation hearing 8 before a hearing officer designated by the department. Such hearing 9 officer shall not have had any prior supervisory involvement over the 10 alleged violator. 11 (C) For any alleged non-technical violation, within ten days of the 12 issuance of a notice or execution of a warrant for the violation the 13 department shall afford such person a preliminary hearing before a hear- 14 ing officer designated by the department. Such hearing officer shall not 15 have had any prior supervisory involvement over the alleged violator. 16 (iii) The alleged violator shall, [within three days of the execution17of the warrant] at the time a notice of violation is issued or at the 18 time of a recognizance hearing, be given written notice of the time, 19 place and purpose of the preliminary hearing [unless he or she is20detained pursuant to the provisions of subparagraph (iv) of paragraph21(a) of this subdivision. In those instances, the alleged violator will22be given written notice of the time, place and purpose of the hearing23within five days of the execution of the warrant], or if no preliminary 24 hearing is required pursuant to this section, of the final revocation 25 hearing. The notice shall state what conditions of [presumptive26release, parole, conditional release or post-release] community super- 27 vision are alleged to have been violated, and in what manner; that such 28 person shall have the right to appear and speak in his or her own 29 behalf; that he or she shall have the right to introduce letters and 30 documents; that he or she may present witnesses who can give relevant 31 information to the hearing officer; that he or she has the right to 32 confront the witnesses against him or her; that such person shall have 33 the right to representation by counsel at any preliminary and final 34 revocation hearings; and the name and contact details for institutional 35 defenders or assigned private counsel, as applicable. Adverse witnesses 36 may be compelled to attend the preliminary hearing unless the prisoner 37 has been convicted of a new crime while on supervision or unless the 38 hearing officer finds good cause for their non-attendance. As far as 39 practicable or feasible, any additional documents having been collected 40 or prepared that [support] are relevant to the charge shall be delivered 41 to the alleged violator. 42 (iv) [The preliminary hearing shall be scheduled to take place no43later than fifteen days from the date of execution of the warrant.] The 44 standard of proof at the preliminary hearing shall be [probable cause] a 45 preponderance of the evidence to believe that the [presumptive releasee,46parolee, conditional releasee or person under post-release supervision] 47 releasee has violated one or more conditions of his or her [presumptive48release, parole, conditional release or post-release] community super- 49 vision in an important respect. Proof of conviction of a crime committed 50 while under supervision shall constitute [probable cause] prima facie 51 evidence of a violation of a condition of community supervision for the 52 purposes of this section. 53 (ix) If the hearing officer finds by a preponderance of the evidence 54 that such person has violated one or more conditions of community super- 55 vision in an important respect, the releasee shall, at the conclusion of 56 the preliminary hearing be given written notice of the time, place andS. 1343--C 9 1 purpose of the final revocation hearing. The notice shall state what 2 conditions of community supervision are alleged to have been violated, 3 when, where and in what manner; that such person shall have the right to 4 representation by counsel at any final revocation hearing; that such 5 person shall have the right to appear and speak in his or her own 6 behalf; that he or she shall have the right to introduce letters and 7 documents; that he or she may present witnesses who can give relevant 8 information to the hearing officer; that he or she has the right to 9 confront the witnesses against him or her; and the name and contact 10 details for institutional defenders or assigned private counsel, as 11 applicable. Any additional documents having been collected or prepared 12 that support the charge shall be delivered to the releasee. Adverse 13 witnesses may be compelled to attend the final revocation hearing unless 14 the prisoner has been convicted of a new crime while on supervision or 15 unless the hearing officer finds good cause for their non-attendance. 16 (x) The alleged violator shall have a right to representation by coun- 17 sel at the preliminary hearing. In any case, including when a court is 18 called upon to evaluate the capacity of an alleged violator in a prelim- 19 inary proceeding, where such person is financially unable to retain 20 counsel, the criminal court of the city of New York, the county court or 21 district court in the county where the violation is alleged to have 22 occurred or where the hearing is held, shall assign counsel in accord- 23 ance with the county or city plan for representation placed in operation 24 pursuant to article eighteen-B of the county law. 25 § 6. Paragraph (f) of subdivision 3 of section 259-i of the executive 26 law, as amended by section 11 of part E of chapter 62 of the laws of 27 2003, subparagraph (v) as amended and subparagraph (xii) as added by 28 chapter 545 of the laws of 2015 and subparagraph (x) as amended by 29 section 38-f-1 of subpart A of part C of chapter 62 of the laws of 2011, 30 is amended to read as follows: 31 (f) (i) [Revocation hearings shall be scheduled to be held within32ninety days of the probable cause determination] For any releasee 33 charged with a violation: 34 (A) If a court issued an order detaining such person pursuant to 35 subparagraph (iv) of paragraph (a) of this subdivision and the person 36 would be subject to reincarceration of up to seven days pursuant to 37 subparagraph (x) of this paragraph should the violation be sustained at 38 a final revocation hearing, then within two days of the issuance of the 39 order of detention, the department shall afford such person a final 40 revocation hearing in person before a hearing officer designated by the 41 department. Such hearing officer shall not have had any prior superviso- 42 ry involvement over the alleged violator. No preliminary revocation 43 hearing shall be held in this instance. 44 (B) If a court issued an order detaining such person pursuant to 45 subparagraph (iv) of paragraph (a) of this subdivision and the person 46 would be subject to reincarceration of up to fifteen days pursuant to 47 subparagraph (x) of this paragraph should the violation be sustained at 48 a final revocation hearing, then within four days of the issuance of the 49 order of detention, the department shall afford such person a final 50 revocation hearing in person before a hearing officer designated by the 51 department. Such hearing officer shall not have had any prior superviso- 52 ry involvement over the alleged violator. No preliminary revocation 53 hearing shall be held in this instance. 54 (C) If a court issued an order detaining such person pursuant to 55 subparagraph (iv) of paragraph (a) of this subdivision and the person 56 would be subject to reincarceration of up to thirty days or more pursu-S. 1343--C 10 1 ant to subparagraph (x) of this paragraph should the violation be 2 sustained at a final revocation hearing, then within ten days after the 3 issuance of the order of detention, the department shall afford such 4 person a final revocation hearing in person before a hearing officer 5 designated by the department. Such hearing officer shall not have had 6 any prior supervisory involvement over the alleged violator. 7 (D) If a notice of violation was issued or such person was released on 8 recognizance pursuant to subparagraph (iv) of paragraph (a) of this 9 subdivision the department shall within thirty days of the issuance of 10 the notice of violation or the order of release on recognizance afford 11 the person a final revocation hearing in person before a hearing officer 12 designated by the department. Such hearing officer shall not have had 13 any prior supervisory involvement over the alleged violator. Such hear- 14 ing shall not be held at a correctional facility, detention center or 15 local correctional facility. The department shall have six months from 16 the date of the effective date of the chapter of the laws of two thou- 17 sand twenty that amended this paragraph to begin to hold such hearings 18 at allowable locations. 19 (E) If such person is accused of a non-technical violation, the 20 department shall within thirty days of the execution of the warrant 21 afford such person a final revocation hearing in person before a hearing 22 officer designated by the department. Such hearing officer shall not 23 have had any supervisory involvement over the alleged violator. 24 (F) However, if an alleged violator requests and receives any post- 25 ponement of his revocation hearing, or consents to a postponed revoca- 26 tion proceeding initiated by the board, or if an alleged violator, by 27 his actions otherwise precludes the prompt conduct of such proceedings, 28 the time limit may be extended. 29 (ii) The revocation hearing shall be conducted by a presiding officer 30 who may be a member or a hearing officer designated by the board in 31 accordance with rules of the board. 32 (iii) Both the alleged violator and an attorney who has filed a notice 33 of appearance on his behalf in accordance with the rules of the board of 34 parole shall be given written notice of the date, place and time of the 35 hearing [as soon as possible but at least fourteen days prior to the36scheduled date] pursuant to subparagraph (ix) of paragraph (c) of this 37 subdivision. 38 (iv) The alleged violator shall be given written notice of the rights 39 enumerated in subparagraph (iii) of paragraph (c) of this subdivision as 40 well as of his right to present mitigating evidence relevant to restora- 41 tion to presumptive release, parole, conditional release or post-release 42 supervision and his right to counsel. 43 (v) The alleged violator shall [be permitted] have a right to repre- 44 sentation by counsel at the revocation hearing. In any case, including 45 when a superior court is called upon to evaluate the capacity of an 46 alleged violator in a [parole] revocation proceeding, where such person 47 is financially unable to retain counsel, the criminal court of the city 48 of New York, the county court or district court in the county where the 49 violation is alleged to have occurred or where the hearing is held, 50 shall assign counsel in accordance with the county or city plan for 51 representation placed in operation pursuant to article eighteen-B of the 52 county law. He or she shall have the right to confront and cross-examine 53 adverse witnesses, unless there is good cause for their non-attendance 54 as determined by the presiding officer; present witnesses and documenta- 55 ry evidence in defense of the charges; and present witnesses and docu-S. 1343--C 11 1 mentary evidence relevant to the question whether reincarceration of the 2 alleged violator is appropriate. 3 (vi) At the revocation hearing, the charges shall be read and the 4 alleged violator shall be permitted to plead not guilty, guilty, guilty 5 with explanation or to stand mute. As to each charge, evidence shall be 6 introduced through witnesses and documents, if any, in support of that 7 charge. At the conclusion of each witness's direct testimony, he shall 8 be made available for cross-examination. If the alleged violator intends 9 to present a defense to the charges or to present evidence of mitigating 10 circumstances, the alleged violator shall do so after presentation of 11 all the evidence in support of a violation of presumptive release, 12 parole, conditional release or post-release supervision. 13 (vii) All persons giving evidence at the revocation hearing shall be 14 sworn before giving any testimony as provided by law. 15 (viii) At the conclusion of the hearing the presiding officer may 16 sustain any or all of the violation charges or may dismiss any or all 17 violation charges. He may sustain a violation charge only if the charge 18 is supported by [a preponderance of the evidence adduced] clear and 19 convincing evidence. Conduct that formed the basis of an arrest shall 20 not form a basis of a sustained parole violation if a court has adjudi- 21 cated the matter with an acquittal, adjournment in contemplation of 22 dismissal, or violation. 23 (ix) If the presiding officer is not satisfied that there is [a24preponderance of] clear and convincing evidence in support of the 25 violation, he shall dismiss the violation, cancel the delinquency and 26 restore the person to presumptive release, parole, conditional release 27 or post-release supervision. 28 (x) If the presiding officer is satisfied that there is [a preponder-29ance of] clear and convincing evidence that the alleged violator 30 violated one or more conditions of release in an important respect, he 31 or she shall so find. For each violation found, other than absconding, 32 the presiding officer shall direct that no earned time credits shall be 33 awarded for the thirty day period commencing from the date of the 34 sustained violation. For any absconding violation found, the presiding 35 officer shall direct that no earned time credits shall be awarded for 36 the entire time period during which a releasee was found to have 37 absconded from supervision. 38 (xi) Incarceration shall not be imposed for any tier 2 violation. 39 (xii) For each violation [so] found, the presiding officer may (A) 40 direct that the [presumptive releasee, parolee, conditional releasee or41person serving a period of post-release supervision] releasee be 42 restored to supervision; (B) as an alternative to reincarceration, 43 direct the [presumptive releasee, parolee, conditional releasee or44person serving a period of post-release supervision be placed in a45parole transition facility for a period not to exceed one hundred eighty46days and subsequent restoration to supervision] releasee receive re-en- 47 try services in the community from qualified nonprofit agencies; or (C) 48 [in the case of presumptive releasees, parolees or conditional releas-49ees,] direct the violator's reincarceration [and fix a date for consid-50eration by the board for re-release on presumptive release, or parole or51conditional release, as the case may be; or (D) in the case of persons52released to a period of post-release supervision, direct the violator's53reincarceration up to the balance of the remaining period of post-re-54lease supervision, not to exceed five years; provided, however, that a55defendant serving a term of post-release supervision for a conviction of56a felony sex offense defined in section 70.80 of the penal law may beS. 1343--C 12 1subject to a further period of imprisonment up to the balance of the2remaining period of post-release supervision], subject to the following 3 limitations: (1) for absconding, which is defined as failing to notify 4 his or her community supervision officer of a change in residence will- 5 fully for the purpose of permanently avoiding supervision; failure to 6 make office or written reports as directed willfully for the purpose of 7 permanently avoiding supervision; and leaving the state of New York or 8 any other state to which the releasee is released or transferred, or any 9 area defined in writing by his parole officer, without permission, will- 10 fully for the purpose of permanently avoiding supervision, up to seven 11 days reincarceration may be imposed for the first violation, up to 12 fifteen days reincarceration may be imposed for the second violation, 13 and up to thirty days reincarceration may be imposed for the third or 14 any subsequent violation; (2) for all other tier 1 violations no period 15 of reincarceration may be imposed for the first and second substantiated 16 technical violations for which incarceration may be imposed; up to seven 17 days reincarceration may be imposed for the third substantiated techni- 18 cal violation for which incarceration may be imposed; up to fifteen days 19 reincarceration may be imposed for the fourth substantiated technical 20 violation for which incarceration may be imposed; up to thirty days 21 reincarceration may be imposed for the fifth and subsequent substanti- 22 ated technical violations for which incarceration may be imposed; and 23 (3) for non-technical violations, up to ninety days reincarceration may 24 be imposed. If a warrant was executed pursuant to subparagraph (iv) of 25 paragraph (a) of this subdivision and the person was detained pursuant 26 to such subparagraph pending preliminary or revocation hearings, any 27 period of reincarceration imposed pursuant to this paragraph shall be 28 counted from the date of the execution of the warrant. If a warrant was 29 executed pursuant to subparagraph (iv) of paragraph (a) of this subdivi- 30 sion but a criminal court released the person pending preliminary or 31 revocation hearings, any period of reincarceration imposed pursuant to 32 this paragraph shall be counted from the date of issuance of a determi- 33 nation after a final hearing that the person has violated one or more 34 conditions of community supervision, and the time between execution of 35 the warrant and release of the person pending preliminary or revocation 36 hearings shall count toward the period of reincarceration imposed pursu- 37 ant to this paragraph. If a releasee is committed to the custody of the 38 sheriff pursuant to article five hundred thirty of the criminal proce- 39 dure law, any time the person spent confined in jail shall count towards 40 any period of reincarceration imposed pursuant to this paragraph. In all 41 cases, the presiding officer shall impose the least restrictive reason- 42 able sanction. Any periods of reincarceration shall run concurrently if 43 more than one violation is adjudicated. If a period of reincarceration 44 is imposed pursuant to this paragraph, the releasee shall be released 45 from custody upon expiration of the period or the end of the releasee's 46 period of community supervision, whichever shall be sooner. For the 47 violator serving an indeterminate sentence who while re-incarcerated has 48 not been found by the department to have committed a serious discipli- 49 nary infraction, such violator shall be re-released on the date fixed at 50 the revocation hearing. For the violator serving an indeterminate 51 sentence who has been found by the department to have committed a seri- 52 ous disciplinary infraction while re-incarcerated, the department shall 53 refer the violator to the board for consideration for re-release to 54 community supervision. Upon such referral the board may waive the 55 personal interview between a member or members of the board and the 56 violator to determine the suitability for re-release when the boardS. 1343--C 13 1 directs that the violator be re-released upon expiration of the time 2 assessment. The board shall retain the authority to suspend the date 3 fixed for re-release based on the violator's commission of a serious 4 disciplinary infraction and shall in such case require a personal inter- 5 view be conducted within a reasonable time between a panel of members of 6 the board and the violator to determine suitability for re-release. If 7 an interview is required, the board shall notify the violator in advance 8 of the date and time of such interview in accordance with the rules and 9 regulations of the board. 10 [(xi)] (xiii) If the presiding officer sustains any violations, he 11 must prepare a written statement, to be made available to the alleged 12 violator and his counsel, indicating the evidence relied upon and the 13 reasons for revoking presumptive release, parole, conditional release or 14 post-release supervision, and for the disposition made. 15 [(xii)] (xiv) If at any time during a revocation proceeding the 16 alleged violator, his or her counsel, or an employee of the department 17 contends, or if it reasonably appears to the hearing officer, that the 18 alleged violator is an incapacitated person as that term is defined in 19 subdivision one of section 730.10 of the criminal procedure law and no 20 judicial determination has been made that the alleged violator is an 21 incapacitated person, the revocation proceeding shall be temporarily 22 stayed until the superior court determines whether or not the person is 23 fit to proceed. The matter shall be promptly referred to the superior 24 court for determination of the alleged violator's fitness to proceed in 25 a manner consistent with the provisions of article seven hundred thirty 26 of the criminal procedure law, provided however that the superior court 27 shall immediately appoint counsel for any unrepresented alleged violator 28 eligible for appointed counsel under subparagraph (v) of this paragraph 29 [(f) of subdivision three of section two hundred fifty-nine-i of this30chapter]. The court shall decide whether or not the alleged violator is 31 incapacitated within thirty days of the referral from the hearing offi- 32 cer. If the court determines that the alleged violator is not an inca- 33 pacitated person, the court shall order that the matter be returned to 34 the board of parole for continuation and disposition of the revocation 35 proceeding. If the court determines that the alleged violator is an 36 incapacitated person and if no felony charges are pending against the 37 alleged violator, the court shall issue a final order of observation 38 committing such person to the custody of the commissioner of mental 39 health or the commissioner of developmental disabilities for care and 40 treatment in an appropriate institution in a manner consistent with 41 subdivision one of section 730.40 of the criminal procedure law. If a 42 final order of observation has been issued pursuant to this section, the 43 hearing officer shall dismiss the violation charges and such dismissal 44 shall act as a bar to any further proceeding under this section against 45 the alleged violator for such violations. If felony criminal charges are 46 pending at any time against an alleged violator who has been referred to 47 superior court for a fitness evaluation but before a determination of 48 fitness has been made pursuant to this section, the court shall decide 49 whether or not the alleged violator is incapacitated pursuant to article 50 seven hundred thirty of the criminal procedure law and the revocation 51 proceeding shall be held in abeyance until such decision has been 52 reached. The hearing officer shall adopt the capacity finding of the 53 court and either terminate the revocation process if an order of obser- 54 vation has been made by the court or proceed with the revocation hearing 55 if the alleged violator has been found not to be an incapacitated 56 person.S. 1343--C 14 1 § 7. Section 259-i of the executive law is amended by adding a new 2 subdivision 9 to read as follows: 3 9. The board shall promulgate rules and regulations to facilitate the 4 presence of nonprofit service providers able to offer relevant communi- 5 ty-based services to releasees at all preliminary and final revocation 6 hearings for the purpose of helping people subject to community super- 7 vision successfully complete such supervision and avoid future such 8 supervision, and to help ensure presiding officers impose the least 9 restrictive reasonable sanction for any violation of community super- 10 vision. 11 § 8. This act shall take effect on the first of April next succeeding 12 the date on which it shall have become a law; provided however the 13 department of corrections and community supervision shall have six 14 months from the effective date of this act to begin holding preliminary 15 revocation hearings required by the amendments to paragraph (c) of 16 subdivision 3 of section 259-i of the executive law made by section five 17 of this act, including establishing preliminary revocation hearing 18 facilities that are not at correctional facilities for people who are 19 not detained pending their hearings. Provided further, however, that the 20 board of parole shall have two months from the effective date of this 21 act to identify each releasee incarcerated for a sustained parole 22 violation and recalculate such releasee's sentence in accordance with 23 this act. If no incarceration may be imposed pursuant to subparagraph 24 (xi) of paragraph (f) of subdivision 3 of section 259-i of the executive 25 law, as added by section six of this act, the board shall immediately 26 restore the releasee to community supervision. If the releasee may be 27 incarcerated for the sustained violation the board shall fix a new date 28 for release pursuant to subparagraph (xii) of paragraph (f) of subdivi- 29 sion 3 of section 259-i of the executive law, as amended by section six 30 of this act. If such release date has passed, the board shall immediate- 31 ly restore the releasee to community supervision. Provided further, 32 however, the department of corrections and community supervision shall 33 have six months from the effective date of this act to set up the final 34 revocation hearing courtrooms that are not at correctional facilities 35 for people who are not detained pending their hearing pursuant to the 36 amendments to paragraph (f) of subdivision 3 of section 259-i of the 37 executive law as made by section six of this act. Effective immediate- 38 ly, the addition, amendment and/or repeal of any rule or regulation 39 necessary for the implementation of this act on its effective date are 40 authorized and directed to be made and completed on or before such 41 effective date.
