S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5493
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 12, 2019
                                ___________
 
 Introduced by M. of A. MOSLEY -- read once and referred to the Committee
   on Correction
 
 AN  ACT  to  amend  the  executive law and the penal law, in relation to
   revocation of presumptive release,  parole,  conditional  release  and
   post-release supervision
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 259 of the executive law is amended by  adding  two
 new subdivisions 5 and 6 to read as follows:
   5.  "RELEASEE"  MEANS AN INDIVIDUAL RELEASED FROM AN INSTITUTION UNDER
 THE JURISDICTION OF THE  DEPARTMENT  INTO  THE  COMMUNITY  ON  TEMPORARY
 RELEASE,  PRESUMPTIVE RELEASE, PAROLE, CONDITIONAL RELEASE, POST-RELEASE
 SUPERVISION OR MEDICAL PAROLE.
   6. "TECHNICAL VIOLATION" MEANS ANY VIOLATION OF A CONDITION OF  COMMU-
 NITY  SUPERVISION  OTHER  THAN  AN  ALLEGATION OF A CRIMINAL ACT THAT IS
 SUBSEQUENTLY PROVEN TO BE A CONVICTION FOR A FELONY OFFENSE OR THAT  HAS
 BEEN  PROVEN  TO BE A MISDEMEANOR OFFENSE UNDER SECTION 135.05 OR 135.45
 OR ARTICLE 120 OR 130 OF THE PENAL LAW.
   § 2. Subdivision 3 of section 70.40 of the penal law,  paragraphs  (a)
 and (b) as amended by section 127-h of subpart B of part C of chapter 62
 of  the  laws of 2011 and paragraph (c) as amended by chapter 478 of the
 laws of 1973, is amended and a new subdivision 4 is  added  to  read  as
 follows:
   3.  Delinquency.  (a)  When  a  person is alleged to have violated the
 terms of presumptive release or parole  WILLFULLY  FOR  THE  PURPOSE  OF
 PERMANENTLY  AVOIDING SUPERVISION BY FAILING TO NOTIFY HIS OR HER COMMU-
 NITY SUPERVISION OFFICER OF A  CHANGE  IN  RESIDENCE,  FAILING  TO  MAKE
 OFFICE  OR WRITTEN REPORTS AS DIRECTED, OR LEAVING THE STATE OF NEW YORK
 OR ANY OTHER STATE TO WHICH THE RELEASEE IS RELEASED OR TRANSFERRED,  OR
 ANY  AREA  DEFINED IN WRITING BY HIS PAROLE OFFICER, WITHOUT PERMISSION,
 and the state board of parole has declared such person to be delinquent,
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD06090-04-9

 A. 5493                             2
 
 the declaration of delinquency shall interrupt the person's sentence  as
 of  the  date  of  the  delinquency and such interruption shall continue
 until the [return of the person to an institution under the jurisdiction
 of  the  state  department  of  corrections  and  community supervision]
 EXECUTION OF THE WARRANT.
   (b) When a person is alleged to have violated the terms of his or  her
 conditional  release  or  post-release  supervision  WILLFULLY  FOR  THE
 PURPOSE OF PERMANENTLY AVOIDING SUPERVISION BY FAILING TO NOTIFY HIS  OR
 HER  COMMUNITY  SUPERVISION OFFICER OF A CHANGE IN RESIDENCE, FAILURE TO
 MAKE OFFICE OR WRITTEN REPORTS AS DIRECTED, OR LEAVING THE STATE OF  NEW
 YORK  OR  ANY  OTHER  STATE  TO WHICH THE RELEASEE IS RELEASED OR TRANS-
 FERRED, OR ANY AREA DEFINED IN WRITING BY HIS  PAROLE  OFFICER,  WITHOUT
 PERMISSION  and  has been declared delinquent by the parole board or the
 local  conditional  release  commission  having  supervision  over  such
 person,  the  declaration  of  delinquency shall interrupt the period of
 supervision or post-release supervision as of the date of the delinquen-
 cy. For a conditional release, such interruption  shall  continue  until
 the  [return  of  the person to the institution from which he or she was
 released or, if he or she was released from  an  institution  under  the
 jurisdiction of the state department of corrections and community super-
 vision,  to  an  institution  under the jurisdiction of that department.
 Upon such return,  the  person  shall  resume  service  of  his  or  her
 sentence]  EXECUTION  OF THE WARRANT.  For a person released to post-re-
 lease supervision, the provisions of section 70.45 OF THIS ARTICLE shall
 apply.
   (c) Any time spent by a person in custody from the time of [delinquen-
 cy] EXECUTION OF A WARRANT PURSUANT  TO  PARAGRAPH  (A)  OF  SUBDIVISION
 THREE  OF  SECTION  TWO HUNDRED FIFTY-NINE-I OF THE EXECUTIVE LAW to the
 time service of the sentence resumes shall be credited against the  term
 or maximum term of the interrupted sentence[, provided:
   (i) that such custody was due to an arrest or surrender based upon the
 delinquency; or
   (ii)  that  such  custody arose from an arrest on another charge which
 culminated in a dismissal or an acquittal; or
   (iii) that such custody arose from an arrest on another  charge  which
 culminated in a conviction, but in such case, if a sentence of imprison-
 ment  was imposed, the credit allowed shall be limited to the portion of
 the time spent in custody that exceeds the period, term or maximum  term
 of imprisonment imposed for such conviction].
   4.  EARNED  TIME  CREDITS.  (A)  AFTER  A PERSON HAS BEGUN A PERIOD OF
 COMMUNITY SUPERVISION PURSUANT TO THIS SECTION AND SECTION 70.45 OF THIS
 ARTICLE, SUCH PERIOD SHALL BE REDUCED BY THIRTY DAYS  FOR  EVERY  THIRTY
 DAYS  THAT SUCH PERSON DOES NOT VIOLATE A CONDITION OF HIS OR HER COMMU-
 NITY SUPERVISION, PROVIDED THE PERSON IS NOT  SUBJECT  TO  ANY  SENTENCE
 WITH  A  MAXIMUM TERM OF LIFE IMPRISONMENT. ANY SUCH AWARDED EARNED TIME
 CREDITS SHALL BE APPLIED AGAINST SUCH PERSON'S UNSERVED PORTION  OF  THE
 MAXIMUM  TERM,  AGGREGATE  MAXIMUM TERM OR PERIOD OF POST-RELEASE SUPER-
 VISION FOR ANY CURRENT SENTENCE.
   (B) EARNED TIME CREDITS MAY BE WITHHELD OR REVOKED ONLY FOR THE  THIR-
 TY-DAY  PERIOD  COMMENCING FROM THE DATE OF VIOLATIVE BEHAVIOR SUSTAINED
 AT A FINAL REVOCATION HEARING, EXCEPT THAT EARNED TIME  CREDITS  MAY  BE
 WITHHELD  OR  REVOKED FOR THE ENTIRE TIME PERIOD DURING WHICH A RELEASEE
 ABSCONDED FROM SUPERVISION, AS SUSTAINED AT A FINAL REVOCATION  HEARING,
 AND  AS  DEFINED  IN  SUBPARAGRAPH (XII) OF PARAGRAPH (F) OF SUBDIVISION
 THREE OF SECTION TWO HUNDRED FIFTY-NINE-I OF THE EXECUTIVE LAW.   EARNED
 TIME  CREDITS MAY NOT BE EARNED DURING A PERIOD OF INCARCERATION IMPOSED

 A. 5493                             3
 
 BASED ON A SUSTAINED VIOLATION. A NEW THIRTY-DAY PERIOD  SHALL  COMMENCE
 ON  THE  DAY  THE  PERIOD  OF  INCARCERATION  ENDS OR AN ORDER IS ISSUED
 RESTORING A PERSON TO SUPERVISION, WHICHEVER IS EARLIER.
   (C)  WHEN  A  PERSON  IS  SUBJECT TO MORE THAN ONE PERIOD OF COMMUNITY
 SUPERVISION, THE REDUCTION  AUTHORIZED  IN  THIS  SUBDIVISION  SHALL  BE
 APPLIED  TO  EVERY  PERIOD OF PAROLE OR CONDITIONAL RELEASE TO WHICH THE
 PERSON IS SUBJECT.
   (D) EARNED TIME CREDITS SHALL BE AWARDED  TO  ALL  PEOPLE  SUBJECT  TO
 COMMUNITY  SUPERVISION  AT  THE  TIME THIS LEGISLATION BECOMES EFFECTIVE
 RETROACTIVE TO THE INITIAL DATE THE PERSON BEGAN  HIS  OR  HER  EARLIEST
 CURRENT  PERIOD OF COMMUNITY SUPERVISION.  THE DEPARTMENT SHALL HAVE SIX
 MONTHS FROM THE EFFECTIVE DATE OF THIS SUBDIVISION TO CALCULATE ALL SUCH
 RETROACTIVE EARNED TIME CREDITS; HOWEVER, THE DEPARTMENT OF  CORRECTIONS
 AND  COMMUNITY  SUPERVISION  SHALL  PRIORITIZE EARNED TIME CREDIT CALCU-
 LATIONS FOR RELEASEES WHOSE TERMS OF COMMUNITY SUPERVISION  ARE  DUE  TO
 TERMINATE BEFORE THE CONCLUSION OF SUCH SIX MONTHS.
   §  3. Paragraphs (d), (e) and (f) of subdivision 5 of section 70.45 of
 the penal law, as amended by section 127-j of subpart B  of  part  C  of
 chapter 62 of the laws of 2011, are amended to read as follows:
   (d)  When a person is alleged to have violated a condition of post-re-
 lease supervision WILLFULLY FOR  THE  PURPOSE  OF  PERMANENTLY  AVOIDING
 SUPERVISION  BY  FAILING  TO  NOTIFY  COMMUNITY SUPERVISION OFFICER OF A
 CHANGE IN RESIDENCE, FAILURE  TO  MAKE  OFFICE  OR  WRITTEN  REPORTS  AS
 DIRECTED,  OR  LEAVING THE STATE OF NEW YORK OR ANY OTHER STATE TO WHICH
 THE RELEASEE IS RELEASED OR TRANSFERRED, OR ANY AREA DEFINED IN  WRITING
 BY  HIS  OR HER PAROLE OFFICER, WITHOUT PERMISSION and the department of
 corrections and community supervision has declared  such  person  to  be
 delinquent: (i) the declaration of delinquency shall interrupt the peri-
 od  of  post-release  supervision; (ii) such interruption shall continue
 until the person is restored to post-release supervision; (iii)  if  the
 person is restored to post-release supervision without being returned to
 the  department of corrections and community supervision, any time spent
 in custody from the date of delinquency until  restoration  to  post-re-
 lease  supervision  shall  first be credited to the maximum or aggregate
 maximum term of the sentence or sentences of imprisonment, but  only  to
 the  extent  authorized  by  subdivision  three of section 70.40 of this
 article. Any time spent in custody solely pursuant to  such  delinquency
 after  completion  of  the  maximum  or  aggregate  maximum  term of the
 sentence or sentences of imprisonment shall be credited to the period of
 post-release supervision, if any; and (iv)  if  the  person  is  ordered
 returned to the department of corrections and community supervision, the
 person  shall  be  required  to  serve  the time assessment before being
 re-released to post-release supervision. [In the event  the  balance  of
 the  remaining period of post-release supervision is six months or less,
 such time assessment may be up to six months unless a longer  period  is
 authorized  pursuant  to  subdivision  one  of this section. The] IF THE
 PERSON IS DETAINED PURSUANT TO PARAGRAPH (A)  OF  SUBDIVISION  THREE  OF
 SECTION  TWO  HUNDRED FIFTY-NINE-I OF THE EXECUTIVE LAW PENDING PRELIMI-
 NARY OR REVOCATION HEARINGS, THE TIME ASSESSMENT SHALL COMMENCE UPON THE
 EXECUTION OF THE WARRANT. IF A WARRANT WAS EXECUTED  PURSUANT  TO  PARA-
 GRAPH  (A)  OF  SUBDIVISION THREE OF SECTION TWO HUNDRED FIFTY-NINE-I OF
 THE EXECUTIVE LAW BUT A  CRIMINAL  COURT  RELEASED  THE  PERSON  PENDING
 PRELIMINARY  OR  REVOCATION HEARINGS, THE TIME ASSESSMENT SHALL COMMENCE
 UPON THE ISSUANCE OF A DETERMINATION AFTER  A  FINAL  HEARING  THAT  THE
 PERSON HAS VIOLATED ONE OR MORE CONDITIONS OF COMMUNITY SUPERVISION, AND
 SHALL  INCLUDE  THE  TIME  PERIOD  BETWEEN  EXECUTION OF THE WARRANT AND

 A. 5493                             4
 
 RELEASE OF THE PERSON PENDING PRELIMINARY OR REVOCATION HEARINGS.  IF  A
 RELEASEE  IS DETAINED ON BAIL PURSUANT TO SECTION 530.10 OF THE CRIMINAL
 PROCEDURE LAW, THE TIME ASSESSMENT SHALL INCLUDE ANY TIME  THE  RELEASEE
 SPENT IN SUCH DETENTION. IF A NOTICE OF VIOLATION WAS ISSUED PURSUANT TO
 SUBDIVISION  THREE  OF SECTION TWO HUNDRED FIFTY-NINE-I OF THE EXECUTIVE
 LAW, THE time assessment shall commence upon the issuance of a  determi-
 nation  after  a  final hearing that the person has violated one or more
 conditions of supervision. While serving  such  assessment,  the  person
 shall  not receive any good behavior allowance pursuant to section eight
 hundred three of the correction law.  Any time spent in custody from the
 date of delinquency until return to the department  of  corrections  and
 community  supervision  shall first be credited to the maximum or aggre-
 gate maximum term of the sentence or sentences of imprisonment, but only
 to the extent authorized by subdivision three of section 70.40  of  this
 article.  The  maximum  or  aggregate  maximum  term  of the sentence or
 sentences of imprisonment shall run while the  person  is  serving  such
 time  assessment  in  the  custody  of the department of corrections and
 community supervision. Any time spent in custody solely pursuant to such
 delinquency after completion of the maximum or aggregate maximum term of
 the sentence or sentences of imprisonment shall be credited to the peri-
 od of post-release supervision, if any.
   [(e) Notwithstanding paragraph (d) of this subdivision, in the event a
 person is sentenced to one or more additional indeterminate or  determi-
 nate term or terms of imprisonment prior to the completion of the period
 of  post-release  supervision,  such  period of post-release supervision
 shall be held in abeyance and the  person  shall  be  committed  to  the
 custody  of  the  department of corrections and community supervision in
 accordance with the requirements of the prior and  additional  terms  of
 imprisonment.
   (f)  When  a  person  serving  a period of post-release supervision is
 returned to the department  of  corrections  and  community  supervision
 pursuant to an additional consecutive sentence of imprisonment and with-
 out  a  declaration  of  delinquency, such period of post-release super-
 vision shall be held in abeyance while the person is in the  custody  of
 the  department of corrections and community supervision. Such period of
 post-release supervision shall resume running upon the  person's  re-re-
 lease.]
   §  4.  Subparagraph  (i)  of paragraph (a) of subdivision 3 of section
 259-i of the executive law, as amended by chapter 545  of  the  laws  of
 2015,  is  amended and five new subparagraphs (iv), (v), (vi), (vii) and
 (viii) are added to read as follows:
   (i) If the parole officer having charge of a  presumptively  released,
 paroled  or  conditionally released person or a person released to post-
 release supervision or a person received under the uniform act for  out-
 of-state  parolee  supervision shall have [reasonable] PROBABLE cause to
 believe that such person has lapsed into criminal ways [or company],  or
 has  violated one or more conditions of his presumptive release, parole,
 conditional release or post-release  supervision,  such  parole  officer
 shall  report  such  fact to a member of the board, or to any officer of
 the department designated by the board, and thereupon A  WRITTEN  NOTICE
 OF  VIOLATION  MAY BE ISSUED, OR IF THE PERSON WOULD BE SUBJECT TO REIN-
 CARCERATION PURSUANT TO SUBPARAGRAPH (X) OF PARAGRAPH (F) OF THIS SUBDI-
 VISION SHOULD THE VIOLATION BE SUSTAINED AT A FINAL REVOCATION HEARING a
 warrant may be issued for the retaking of such person and for his tempo-
 rary detention in accordance with the rules of  the  board  unless  such
 person  has been determined to be currently unfit to proceed to trial or

 A. 5493                             5
 
 is currently subject to a temporary or final order of observation pursu-
 ant to article seven hundred thirty of the criminal  procedure  law,  in
 which case no NOTICE OF VIOLATION OR warrant shall be issued. The retak-
 ing  and  detention of any such person may be further regulated by rules
 and regulations of the department not inconsistent with this article.  A
 warrant  issued  pursuant  to  this  section shall constitute sufficient
 authority to the superintendent or other person in charge of  any  jail,
 penitentiary, lockup or detention pen to whom it is delivered to hold in
 temporary  detention  the  person  named therein[; except that a warrant
 issued with respect to a person who has been released on medical  parole
 pursuant  to  section two hundred fifty-nine-r of this article and whose
 parole is being revoked pursuant to paragraph (h) of subdivision four of
 such section shall constitute authority for the immediate  placement  of
 the  parolee  only into imprisonment in the custody of the department to
 hold in temporary detention. A warrant issued pursuant to  this  section
 shall  also constitute sufficient authority to the person in charge of a
 drug treatment campus, as defined in subdivision twenty of  section  two
 of  the  correction law, to hold the person named therein, in accordance
 with the procedural requirements of this section, for  a  period  of  at
 least  ninety  days  to  complete  an  intensive  drug treatment program
 mandated by the board as an alternative to presumptive release or parole
 or conditional release revocation, or  the  revocation  of  post-release
 supervision,  and  shall also constitute sufficient authority for return
 of the person named therein  to  local  custody  to  hold  in  temporary
 detention  for  further  revocation proceedings in the event said person
 does not successfully complete the intensive drug treatment program. The
 board's rules shall provide for cancellation of delinquency and restora-
 tion to supervision upon the successful completion of the  program]  FOR
 UP  TO  TWENTY-FOUR  HOURS  PENDING  A  RECOGNIZANCE HEARING PURSUANT TO
 SUBPARAGRAPH (IV) OF THIS PARAGRAPH.
   (IV) UPON EXECUTION OF A WARRANT ISSUED PURSUANT TO THIS SECTION,  THE
 AUTHORIZED  OFFICER  SHALL TAKE THE RELEASEE TO THE LOCAL CRIMINAL COURT
 FOR A RECOGNIZANCE HEARING. SUCH  RECOGNIZANCE  HEARING  SHALL  COMMENCE
 WITHIN TWENTY-FOUR HOURS OF THE EXECUTION OF THE WARRANT.
   (V) AT A RECOGNIZANCE HEARING, THE DEPARTMENT SHALL HAVE THE BURDEN TO
 DEMONSTRATE  TO  THE COURT THAT THE EXECUTED WARRANT WAS PROPERLY ISSUED
 PURSUANT TO THIS SECTION, INCLUDING THAT  THERE  IS  PROBABLE  CAUSE  TO
 BELIEVE  THAT THE RELEASEE HAS LAPSED INTO CRIMINAL WAYS OR HAS VIOLATED
 ONE OR MORE CONDITIONS OF HIS PRESUMPTIVE RELEASE,  PAROLE,  CONDITIONAL
 RELEASE  OR  POST-RELEASE  SUPERVISION IN AN IMPORTANT RESPECT, AND THAT
 THE RELEASEE IS POTENTIALLY SUBJECT TO INCARCERATION PURSUANT TO SUBPAR-
 AGRAPH (X) OF PARAGRAPH (F) OF THIS SUBDIVISION.
   (VI) AT A RECOGNIZED HEARING, THE COURT SHALL CONSIDER  ALL  AVAILABLE
 EVIDENCE OF THE RELEASEE'S EMPLOYMENT, FAMILY AND COMMUNITY TIES INCLUD-
 ING  LENGTH  OF  RESIDENCY  IN  THE COMMUNITY, HISTORY OF REPORTING IN A
 TIMELY FASHION TO A PAROLE OR SUPERVISORY OFFICER, AND OTHER  INDICATORS
 OF  STABILITY.  AT THE CONCLUSION OF THE RECOGNIZANCE HEARING, THE COURT
 SHALL RELEASE THE RELEASEE ON HIS OR HER  OWN  RECOGNIZANCE  UNLESS  THE
 COURT  FINDS ON THE RECORD THAT RELEASE ON RECOGNIZANCE WILL NOT REASON-
 ABLY ASSURE THE RELEASEE'S APPEARANCE AT SUBSEQUENT PRELIMINARY OR REVO-
 CATION HEARINGS. IN SUCH INSTANCES, THE COURT MAY ORDER THAT THE RELEAS-
 EE ABIDE BY THE LEAST  RESTRICTIVE  NON-MONETARY  CONDITION  OR  SET  OF
 CONDITIONS   IN   THE  COMMUNITY  NECESSARY  TO  REASONABLY  ENSURE  THE
 RELEASEE'S APPEARANCE AT SUBSEQUENT PRELIMINARY OR REVOCATION  HEARINGS.
 THE  RELEASEE  SHALL  NOT BE REQUIRED TO PAY FOR ANY PART OF THE COST OF
 RELEASE UNDER NON-MONETARY CONDITIONS. THE  COURT  MAY  ORDER  THAT  THE

 A. 5493                             6
 
 RELEASEE  BE  DETAINED  PENDING  PRELIMINARY OR REVOCATION HEARINGS ONLY
 UPON A FINDING THAT THE RELEASEE CURRENTLY PRESENTS A  SUBSTANTIAL  RISK
 OF WILLFULLY FAILING TO APPEAR AT THE PRELIMINARY OR REVOCATION HEARINGS
 AND  THAT  NO NON-MONETARY CONDITION OR COMBINATION OF CONDITIONS IN THE
 COMMUNITY WILL  REASONABLY  ASSURE  THE  RELEASEE'S  APPEARANCE  AT  THE
 PRELIMINARY OR REVOCATION HEARINGS.
   (VII)  THE ALLEGED VIOLATOR SHALL BE PERMITTED REPRESENTATION BY COUN-
 SEL AT THE RECOGNIZANCE HEARING. IN ANY CASE, INCLUDING WHEN A COURT  IS
 CALLED  UPON TO EVALUATE THE CAPACITY OF AN ALLEGED VIOLATOR IN A PAROLE
 RECOGNIZANCE PROCEEDING, WHERE SUCH  PERSON  IS  FINANCIALLY  UNABLE  TO
 RETAIN  COUNSEL,  THE CRIMINAL COURT OF THE CITY OF NEW YORK, THE COUNTY
 COURT OR DISTRICT COURT IN THE COUNTY WHERE THE VIOLATION IS ALLEGED  TO
 HAVE  OCCURRED  OR  WHERE  THE  HEARING IS HELD, SHALL ASSIGN COUNSEL IN
 ACCORDANCE WITH THE COUNTY OR CITY PLAN  FOR  REPRESENTATION  PLACED  IN
 OPERATION PURSUANT TO ARTICLE EIGHTEEN-B OF THE COUNTY LAW.
   (VIII)  IF  A RELEASEE IS BROUGHT TO A CRIMINAL COURT DUE TO AN ARREST
 FOR ANY FELONY OR MISDEMEANOR CHARGE  AND  A  PAROLE  WARRANT  HAS  BEEN
 ISSUED,  THEN  THE  CRIMINAL COURT'S ORDER PURSUANT TO SECTION 510.30 OF
 THE CRIMINAL PROCEDURE LAW SHALL  CONTROL  IN  DETERMINING  WHETHER  THE
 RELEASEE  SHALL BE DETAINED PENDING A PRELIMINARY OR REVOCATION HEARING.
 IF THE CRIMINAL COURT IMPOSES BAIL PURSUANT TO  SECTION  530.10  OF  THE
 CRIMINAL  PROCEDURE  LAW,  AND THE RELEASEE-DEFENDANT SECURES RELEASE BY
 PAYING BAIL OR BY OPERATION OF LAW,  THEN  THE  RELEASEE  SHALL  NOT  BE
 DETAINED FURTHER BASED SOLELY ON THE PAROLE WARRANT.
   § 5. Subparagraphs (i), (iii) and (iv) of paragraph (c) of subdivision
 3  of section 259-i of the executive law, subparagraph (i) as amended by
 section 11 of part E of chapter 62 of the laws  of  2003,  and  subpara-
 graphs (iii) and (iv) as amended by section 1 of part E of chapter 56 of
 the laws of 2007, are amended and two new subparagraphs (ix) and (x) are
 added to read as follows:
   (i)  [Within fifteen days after the warrant for retaking and temporary
 detention has been executed, unless the releasee has been convicted of a
 new crime committed while under presumptive release, parole, conditional
 release or post-release supervision, the board of  parole  shall  afford
 the alleged presumptive release, parole, conditional release or post-re-
 lease  supervision  violator  a  preliminary revocation hearing before a
 hearing officer designated by the board of parole. Such hearing  officer
 shall  not  have  had any prior supervisory involvement over the alleged
 violator] (A) FOR ANY  ALLEGED  TECHNICAL  VIOLATION,  IF  A  NOTICE  OF
 VIOLATION  WAS  ISSUED OR A PERSON WAS RELEASED ON RECOGNIZANCE PURSUANT
 TO SUBPARAGRAPH (IV) OF PARAGRAPH (A) OF THIS SUBDIVISION,  THE  DEPART-
 MENT SHALL WITHIN TEN DAYS OF THE ISSUANCE OF THE NOTICE OF VIOLATION OR
 THE  ORDER  OF  RELEASE  ON RECOGNIZANCE AFFORD THE PERSON A PRELIMINARY
 REVOCATION HEARING BEFORE A HEARING OFFICER DESIGNATED  BY  THE  DEPART-
 MENT.  SUCH  HEARING  OFFICER  SHALL  NOT HAVE HAD ANY PRIOR SUPERVISORY
 INVOLVEMENT OVER THE ALLEGED VIOLATOR. SUCH HEARING SHALL NOT BE HELD AT
 A CORRECTIONAL FACILITY, DETENTION CENTER OR LOCAL CORRECTIONAL  FACILI-
 TY.
   (B)  FOR  ANY  ALLEGED TECHNICAL VIOLATION, IF A COURT ISSUED AN ORDER
 DETAINING A PERSON PURSUANT TO SUBPARAGRAPH (IV)  OF  PARAGRAPH  (A)  OF
 THIS  SUBDIVISION  AND THE PERSON WOULD BE SUBJECT TO REINCARCERATION OF
 UP TO THIRTY DAYS OR MORE PURSUANT TO SUBPARAGRAPH (X) OF PARAGRAPH  (F)
 OF THIS SUBDIVISION SHOULD THE VIOLATION BE SUSTAINED AT A FINAL REVOCA-
 TION  HEARING,  THEN  WITHIN  FIVE  DAYS OF THE ISSUANCE OF THE ORDER OF
 DETENTION THE DEPARTMENT SHALL AFFORD SUCH PERSON A PRELIMINARY  REVOCA-
 TION HEARING BEFORE A HEARING OFFICER DESIGNATED BY THE DEPARTMENT. SUCH

 A. 5493                             7
 
 HEARING  OFFICER  SHALL  NOT  HAVE HAD ANY PRIOR SUPERVISORY INVOLVEMENT
 OVER THE ALLEGED VIOLATOR.
   (iii)  The alleged violator shall, [within three days of the execution
 of the warrant] AT THE TIME A NOTICE OF VIOLATION IS ISSUED  OR  AT  THE
 TIME  OF  A  RECOGNIZANCE  HEARING, be given written notice of the time,
 place and purpose of the  PRELIMINARY  hearing  [unless  he  or  she  is
 detained  pursuant  to  the provisions of subparagraph (iv) of paragraph
 (a) of this subdivision. In those instances, the alleged  violator  will
 be  given  written  notice of the time, place and purpose of the hearing
 within five days of the execution of the warrant], OR IF NO  PRELIMINARY
 HEARING  IS  REQUIRED  PURSUANT TO THIS SECTION, OF THE FINAL REVOCATION
 HEARING.  The notice shall state what conditions of presumptive release,
 parole, conditional release or post-release supervision are  alleged  to
 have  been violated, and in what manner; that such person shall have the
 right to appear and speak in his or her own behalf; that he or she shall
 have the right to introduce letters and documents; that he  or  she  may
 present witnesses who can give relevant information to the hearing offi-
 cer;  that he or she has the right to confront the witnesses against him
 or her; AND THAT SUCH PERSON SHALL HAVE THE RIGHT TO  REPRESENTATION  BY
 COUNSEL  AT  ANY  PRELIMINARY  AND  FINAL REVOCATION HEARINGS.   Adverse
 witnesses may be compelled to attend the preliminary hearing unless  the
 prisoner  has  been  convicted  of  a  new crime while on supervision or
 unless the hearing officer finds good cause for their non-attendance. As
 far as practicable or feasible, any  additional  documents  having  been
 collected  or prepared that support the charge shall be delivered to the
 alleged violator.
   (iv) [The preliminary hearing shall be  scheduled  to  take  place  no
 later  than fifteen days from the date of execution of the warrant.] The
 standard of proof at the preliminary hearing shall be probable cause  to
 believe  that the presumptive releasee, parolee, conditional releasee or
 person under post-release supervision has violated one  or  more  condi-
 tions  of his or her presumptive release, parole, conditional release or
 post-release supervision in an important respect. Proof of conviction of
 a crime committed while  under  supervision  shall  constitute  probable
 cause for the purposes of this section.
   (IX)  IF THE HEARING OFFICER FINDS PROBABLE CAUSE TO BELIEVE THAT SUCH
 PERSON HAS VIOLATED ONE OR MORE CONDITIONS OF RELEASE  IN  AN  IMPORTANT
 RESPECT,  THE RELEASEE SHALL, AT THE CONCLUSION OF THE PRELIMINARY HEAR-
 ING BE GIVEN WRITTEN NOTICE OF THE TIME, PLACE AND PURPOSE OF THE  FINAL
 REVOCATION  HEARING. THE NOTICE SHALL STATE WHAT CONDITIONS OF COMMUNITY
 SUPERVISION ARE ALLEGED TO HAVE BEEN VIOLATED, WHEN, WHERE AND  IN  WHAT
 MANNER; THAT SUCH PERSON SHALL HAVE THE RIGHT TO REPRESENTATION BY COUN-
 SEL  AT  ANY  FINAL  REVOCATION HEARING; THAT SUCH PERSON SHALL HAVE THE
 RIGHT TO APPEAR AND SPEAK IN HIS OR HER OWN BEHALF; THAT HE OR SHE SHALL
 HAVE THE RIGHT TO INTRODUCE LETTERS AND DOCUMENTS; THAT HE  OR  SHE  MAY
 PRESENT WITNESSES WHO CAN GIVE RELEVANT INFORMATION TO THE HEARING OFFI-
 CER;  THAT HE OR SHE HAS THE RIGHT TO CONFRONT THE WITNESSES AGAINST HIM
 OR HER. AS FAR AS PRACTICABLE  OR  FEASIBLE,  ANY  ADDITIONAL  DOCUMENTS
 HAVING  BEEN  COLLECTED  OR  PREPARED  THAT  SUPPORT THE CHARGE SHALL BE
 DELIVERED TO THE RELEASEE. ADVERSE WITNESSES MAY BE COMPELLED TO  ATTEND
 THE FINAL REVOCATION HEARING UNLESS THE PRISONER HAS BEEN CONVICTED OF A
 NEW  CRIME WHILE ON SUPERVISION OR UNLESS THE HEARING OFFICER FINDS GOOD
 CAUSE FOR THEIR NON-ATTENDANCE.
   (X) THE ALLEGED VIOLATOR SHALL BE PERMITTED REPRESENTATION BY  COUNSEL
 AT  THE  PRELIMINARY  HEARING.  IN  ANY  CASE, INCLUDING WHEN A COURT IS
 CALLED UPON TO EVALUATE THE CAPACITY OF AN ALLEGED VIOLATOR IN A  PAROLE

 A. 5493                             8
 
 PRELIMINARY  PROCEEDING,  WHERE  SUCH  PERSON  IS  FINANCIALLY UNABLE TO
 RETAIN COUNSEL, THE CRIMINAL COURT OF THE CITY OF NEW YORK,  THE  COUNTY
 COURT  OR DISTRICT COURT IN THE COUNTY WHERE THE VIOLATION IS ALLEGED TO
 HAVE  OCCURRED  OR  WHERE  THE  HEARING IS HELD, SHALL ASSIGN COUNSEL IN
 ACCORDANCE WITH THE COUNTY OR CITY PLAN  FOR  REPRESENTATION  PLACED  IN
 OPERATION PURSUANT TO ARTICLE EIGHTEEN-B OF THE COUNTY LAW.
   §  6. Paragraph (f) of subdivision 3 of section 259-i of the executive
 law, as amended by section 11 of part E of chapter 62  of  the  laws  of
 2003,  subparagraph  (v)  as  amended and subparagraph (xii) as added by
 chapter 545 of the laws of 2015  and  subparagraph  (x)  as  amended  by
 section 38-f-1 of subpart A of part C of chapter 62 of the laws of 2011,
 is amended to read as follows:
   (f)  (i)  [Revocation  hearings  shall  be scheduled to be held within
 ninety days of  the  probable  cause  determination]  FOR  ANY  RELEASEE
 CHARGED WITH A VIOLATION:
   (A)  IF  A  COURT  ISSUED  AN  ORDER DETAINING SUCH PERSON PURSUANT TO
 SUBPARAGRAPH (IV) OF PARAGRAPH (A) OF THIS SUBDIVISION  AND  THE  PERSON
 WOULD  BE  SUBJECT  TO  REINCARCERATION  OF UP TO SEVEN DAYS PURSUANT TO
 SUBPARAGRAPH (X) OF THIS PARAGRAPH SHOULD THE VIOLATION BE SUSTAINED  AT
 A  FINAL REVOCATION HEARING, THEN WITHIN TWO DAYS OF THE ISSUANCE OF THE
 ORDER OF DETENTION, THE DEPARTMENT SHALL  AFFORD  SUCH  PERSON  A  FINAL
 REVOCATION  HEARING  BEFORE  A HEARING OFFICER DESIGNATED BY THE DEPART-
 MENT. SUCH HEARING OFFICER SHALL NOT  HAVE  HAD  ANY  PRIOR  SUPERVISORY
 INVOLVEMENT OVER THE ALLEGED VIOLATOR. NO PRELIMINARY REVOCATION HEARING
 SHALL BE HELD IN THIS INSTANCE.
   (B)  IF  A  COURT  ISSUED  AN  ORDER DETAINING SUCH PERSON PURSUANT TO
 SUBPARAGRAPH (IV) OF PARAGRAPH (A) OF THIS SUBDIVISION  AND  THE  PERSON
 WOULD  BE  SUBJECT  TO REINCARCERATION OF UP TO FIFTEEN DAYS PURSUANT TO
 SUBPARAGRAPH (X) OF THIS PARAGRAPH SHOULD THE VIOLATION BE SUSTAINED  AT
 A FINAL REVOCATION HEARING, THEN WITHIN FOUR DAYS OF THE ISSUANCE OF THE
 ORDER  OF  DETENTION,  THE  DEPARTMENT  SHALL AFFORD SUCH PERSON A FINAL
 REVOCATION HEARING BEFORE A HEARING OFFICER DESIGNATED  BY  THE  DEPART-
 MENT.  SUCH  HEARING  OFFICER  SHALL  NOT HAVE HAD ANY PRIOR SUPERVISORY
 INVOLVEMENT OVER THE ALLEGED VIOLATOR. NO PRELIMINARY REVOCATION HEARING
 SHALL BE HELD IN THIS INSTANCE.
   (C) IF A COURT ISSUED AN  ORDER  DETAINING  SUCH  PERSON  PURSUANT  TO
 SUBPARAGRAPH  (IV)  OF  PARAGRAPH (A) OF THIS SUBDIVISION AND THE PERSON
 WOULD BE SUBJECT TO REINCARCERATION OF UP TO THIRTY DAYS OR MORE  PURSU-
 ANT  TO  SUBPARAGRAPH  (X)  OF  THIS  PARAGRAPH  SHOULD THE VIOLATION BE
 SUSTAINED AT A FINAL REVOCATION HEARING, THEN WITHIN TEN DAYS AFTER  THE
 ISSUANCE  OF  THE  ORDER  OF DETENTION, THE DEPARTMENT SHALL AFFORD SUCH
 PERSON A FINAL REVOCATION HEARING BEFORE A HEARING OFFICER DESIGNATED BY
 THE DEPARTMENT. SUCH HEARING OFFICER SHALL NOT HAVE HAD ANY PRIOR SUPER-
 VISORY INVOLVEMENT OVER THE ALLEGED VIOLATOR.
   (D) IF A NOTICE OF VIOLATION WAS ISSUED OR SUCH PERSON WAS RELEASED ON
 RECOGNIZANCE PURSUANT TO SUBPARAGRAPH (IV)  OF  PARAGRAPH  (A)  OF  THIS
 SUBDIVISION,  OR THE PERSON IS ACCUSED OF A NON-TECHNICAL VIOLATION, THE
 DEPARTMENT SHALL WITHIN THIRTY DAYS OF THE ISSUANCE  OF  THE  NOTICE  OF
 VIOLATION  OR  THE  ORDER OF RELEASE ON RECOGNIZANCE AFFORD THE PERSON A
 FINAL REVOCATION HEARING BEFORE A  HEARING  OFFICER  DESIGNATED  BY  THE
 DEPARTMENT. SUCH HEARING OFFICER SHALL NOT HAVE HAD ANY PRIOR SUPERVISO-
 RY  INVOLVEMENT  OVER  THE ALLEGED VIOLATOR.   SUCH HEARING SHALL NOT BE
 HELD AT A CORRECTIONAL FACILITY, DETENTION CENTER OR LOCAL  CORRECTIONAL
 FACILITY.  LOCALITIES  SHALL HAVE SIX MONTHS FROM THE DATE OF THE EFFEC-
 TIVE DATE OF THE CHAPTER OF THE  LAWS  OF  TWO  THOUSAND  NINETEEN  THAT

 A. 5493                             9
 
 AMENDED  THIS  PARAGRAPH  TO  BEGIN  HOLD  SUCH  HEARINGS  AT  ALLOWABLE
 LOCATIONS.
   (E)  However,  if  an alleged violator requests and receives any post-
 ponement of his revocation hearing, or consents to a  postponed  revoca-
 tion  proceeding  initiated  by the board, or if an alleged violator, by
 his actions otherwise precludes the prompt conduct of such  proceedings,
 the time limit may be extended.
   (ii)  The revocation hearing shall be conducted by a presiding officer
 who may be a member or a hearing officer  designated  by  the  board  in
 accordance with rules of the board.
   (iii) Both the alleged violator and an attorney who has filed a notice
 of appearance on his behalf in accordance with the rules of the board of
 parole  shall be given written notice of the date, place and time of the
 hearing [as soon as possible but at least fourteen  days  prior  to  the
 scheduled  date]  PURSUANT TO SUBPARAGRAPH (IX) OF PARAGRAPH (C) OF THIS
 SUBDIVISION.
   (iv) The alleged violator shall be given written notice of the  rights
 enumerated in subparagraph (iii) of paragraph (c) of this subdivision as
 well as of his right to present mitigating evidence relevant to restora-
 tion to presumptive release, parole, conditional release or post-release
 supervision and his right to counsel.
   (v)  The alleged violator shall be permitted representation by counsel
 at the revocation hearing. In any case, including when a superior  court
 is  called  upon  to  evaluate  the capacity of an alleged violator in a
 parole revocation proceeding, where such person is financially unable to
 retain counsel, the criminal court of the city of New York,  the  county
 court  or district court in the county where the violation is alleged to
 have occurred or where the hearing is  held,  shall  assign  counsel  in
 accordance  with  the  county  or city plan for representation placed in
 operation pursuant to article eighteen-B of the county law.  He  or  she
 shall  have  the  right to confront and cross-examine adverse witnesses,
 unless there is good cause for their non-attendance as determined by the
 presiding officer; present witnesses and documentary evidence in defense
 of the charges; and present witnesses and documentary evidence  relevant
 to  the  question  whether  reincarceration  of  the alleged violator is
 appropriate.
   (vi) At the revocation hearing, the charges  shall  be  read  and  the
 alleged  violator shall be permitted to plead not guilty, guilty, guilty
 with explanation or to stand mute. As to each charge, evidence shall  be
 introduced  through  witnesses and documents, if any, in support of that
 charge. At the conclusion of each witness's direct testimony,  he  shall
 be made available for cross-examination. If the alleged violator intends
 to present a defense to the charges or to present evidence of mitigating
 circumstances,  the  alleged  violator shall do so after presentation of
 all the evidence in support  of  a  violation  of  presumptive  release,
 parole, conditional release or post-release supervision.
   (vii)  All  persons giving evidence at the revocation hearing shall be
 sworn before giving any testimony as provided by law.
   (viii) At the conclusion of the  hearing  the  presiding  officer  may
 sustain  any  or  all of the violation charges or may dismiss any or all
 violation charges. He may sustain a violation charge only if the  charge
 is  supported  by  [a  preponderance  of the evidence adduced] CLEAR AND
 CONVINCING EVIDENCE. CONDUCT THAT FORMED THE BASIS OF  A  CRIMINAL  CASE
 SHALL  NOT  FORM A BASIS OF A SUSTAINED PAROLE VIOLATION IF THE CRIMINAL
 COURT HAS ADJUDICATED THE  MATTER  WITH  AN  ACQUITTAL,  ADJOURNMENT  IN
 CONTEMPLATION OF DISMISSAL, OR VIOLATION.

 A. 5493                            10

   (ix)  If  the  presiding  officer  is  not  satisfied that there is [a
 preponderance of] CLEAR  AND  CONVINCING  evidence  in  support  of  the
 violation,  he  shall  dismiss the violation, cancel the delinquency and
 restore the person to presumptive release, parole,  conditional  release
 or post-release supervision.
   (x)  If the presiding officer is satisfied that there is [a preponder-
 ance of]  CLEAR  AND  CONVINCING  evidence  that  the  alleged  violator
 violated  one  or more conditions of release in an important respect, he
 or she shall so find.  FOR EACH VIOLATION FOUND, 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.
   (XI)  INCARCERATION  SHALL  NOT  BE  IMPOSED  FOR ANY OF THE FOLLOWING
 VIOLATIONS: (A) POSITIVE DRUG TEST FOR DRUGS OR A  CONTROLLED  SUBSTANCE
 WITHOUT  PROPER  MEDICAL  AUTHORIZATION, OR POSSESSION OF DRUG PARAPHER-
 NALIA, UNLESS THE RELEASEE IS SUBJECT TO COMMUNITY SUPERVISION DUE TO  A
 CONVICTION  FOR DRIVING WHILE ABILITY IMPAIRED AT LEAST IN PART BY DRUGS
 PURSUANT TO SECTION ELEVEN HUNDRED NINETY-TWO OF THE VEHICLE AND TRAFFIC
 LAW; (B) POSITIVE ALCOHOL TEST OR USE OR POSSESSION OF  ALCOHOL,  UNLESS
 THE RELEASEE IS SUBJECT TO COMMUNITY SUPERVISION DUE TO A CONVICTION FOR
 DRIVING  WHILE  ABILITY  IMPAIRED  AT  LEAST IN PART BY ALCOHOL OR WHILE
 INTOXICATED PURSUANT TO SECTION ELEVEN HUNDRED NINETY-TWO OF THE VEHICLE
 AND TRAFFIC LAW; (C) FAILING TO NOTIFY COMMUNITY SUPERVISION OFFICER  OF
 A CHANGE IN EMPLOYMENT OR PROGRAM STATUS; (D) FAILING TO NOTIFY COMMUNI-
 TY  SUPERVISION  OFFICER  OF  A  CHANGE  IN  RESIDENCE, ABSENT CLEAR AND
 CONVINCING EVIDENCE THAT THE RELEASEE ACTED WILLFULLY FOR THE PURPOSE OF
 PERMANENTLY AVOIDING SUPERVISION; (E) VIOLATING CURFEW; (F)  FAILURE  TO
 PAY  SURCHARGES  AND  FEES,  INCLUDING  FEES IMPOSED PURSUANT TO SECTION
 60.35 OF THE PENAL LAW, SECTIONS  EIGHTEEN  HUNDRED  NINE  AND  EIGHTEEN
 HUNDRED  NINE-C  OF THE VEHICLE AND TRAFFIC LAW, OR SECTION 27.12 OF THE
 PARKS, RECREATION AND HISTORIC PRESERVATION LAW; (G) BEING IN THE COMPA-
 NY OF OR FRATERNIZING WITH ANY PERSON WITH A CRIMINAL RECORD OR WHO  HAS
 BEEN  ADJUDICATED  A YOUTHFUL OFFENDER, JUVENILE DELINQUENT, JUVENILE OR
 ADOLESCENT OFFENDER; (H) FAILURE TO MAKE OFFICE OR  WRITTEN  REPORTS  AS
 DIRECTED,  ABSENT  CLEAR AND CONVINCING EVIDENCE THAT THE RELEASEE ACTED
 WILLFULLY FOR THE PURPOSE OF PERMANENTLY AVOIDING SUPERVISION; (I) LEAV-
 ING THE STATE OF NEW YORK OR ANY OTHER STATE TO WHICH  THE  RELEASEE  IS
 RELEASED  OR  TRANSFERRED,  OR ANY AREA DEFINED IN WRITING BY HIS PAROLE
 OFFICER, WITHOUT PERMISSION, ABSENT CLEAR AND CONVINCING  EVIDENCE  THAT
 THE  RELEASEE  ACTED  WILLFULLY  FOR THE PURPOSE OF PERMANENTLY AVOIDING
 SUPERVISION; (J) FAILURE TO  NOTIFY  COMMUNITY  SUPERVISION  OFFICER  OF
 CONTACT  WITH  ANY  LAW  ENFORCEMENT AGENCY, ABSENT CLEAR AND CONVINCING
 EVIDENCE THAT THE RELEASEE INTENDED TO HIDE EVIDENCE OF HIS  OR  OTHERS'
 BEHAVIOR  THAT  CONSTITUTES A VIOLATION OF THE PENAL LAW; (K) FAILURE TO
 OBEY SPECIAL CONDITIONS  OF  COMMUNITY  SUPERVISION,  ABSENT  CLEAR  AND
 CONVINCING  EVIDENCE THAT THE FAILURE POSES A SUBSTANTIAL RISK TO PUBLIC
 SAFETY AND CANNOT BE ADDRESSED SAFELY IN THE  COMMUNITY  INCLUDING  WITH
 COUNSELING OR PROGRAMMING; AND (L) OBTAINING A DRIVER'S LICENSE OR DRIV-
 ING A CAR WITH A VALID DRIVER'S LICENSE, UNLESS EITHER ACTION IS EXPLIC-
 ITLY PROHIBITED BY THE PERSON'S CONVICTION.
   (XII)  For  each  violation  [so] found, the presiding officer may (A)
 direct that the presumptive releasee, parolee, conditional  releasee  or
 person  serving  a  period  of  post-release  supervision be restored to
 supervision; (B)  as  an  alternative  to  reincarceration,  direct  the
 presumptive  releasee, parolee, conditional releasee or person serving a
 period of post-release supervision [be placed  in  a  parole  transition
 facility  for  a period not to exceed one hundred eighty days and subse-

 A. 5493                            11

 quent restoration to  supervision]  RECEIVE  RE-ENTRY  SERVICES  IN  THE
 COMMUNITY FROM QUALIFIED NONPROFIT AGENCIES; (C) in the case of presump-
 tive releasees, parolees or conditional releasees, direct the violator's
 reincarceration  [and  fix  a  date  for  consideration by the board for
 re-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], SUBJECT TO THE FOLLOWING LIMITATIONS: (1) FOR
 ABSCONDING,  WHICH  IS DEFINED AS FAILING TO NOTIFY HIS OR HER COMMUNITY
 SUPERVISION OFFICER OF A CHANGE IN RESIDENCE AFTER A  FINDING  OF  CLEAR
 AND  CONVINCING  EVIDENCE  THAT  THE  RELEASEE  ACTED  WILLFULLY FOR THE
 PURPOSE OF PERMANENTLY AVOIDING SUPERVISION; FAILURE TO MAKE  OFFICE  OR
 WRITTEN  REPORTS  AS  DIRECTED  AFTER  A FINDING OF CLEAR AND CONVINCING
 EVIDENCE THAT THE RELEASEE ACTED WILLFULLY FOR THE PURPOSE OF PERMANENT-
 LY AVOIDING SUPERVISION; AND LEAVING THE STATE OF NEW YORK OR ANY  OTHER
 STATE  TO  WHICH  THE  RELEASEE  IS RELEASED OR TRANSFERRED, OR ANY AREA
 DEFINED IN WRITING BY HIS PAROLE OFFICER, WITHOUT  PERMISSION,  AFTER  A
 FINDING  OF  CLEAR AND CONVINCING EVIDENCE THAT THE RELEASEE ACTED WILL-
 FULLY FOR THE PURPOSE OF PERMANENTLY AVOIDING SUPERVISION, UP  TO  SEVEN
 DAYS INCARCERATION MAY BE IMPOSED FOR THE FIRST VIOLATION, UP TO FIFTEEN
 DAYS  INCARCERATION  MAY  BE IMPOSED FOR THE SECOND VIOLATION, AND UP TO
 THIRTY DAYS INCARCERATION MAY BE IMPOSED FOR THE THIRD OR ANY SUBSEQUENT
 VIOLATION; (2) FOR ALL OTHER TECHNICAL VIOLATIONS NO PERIOD OF  REINCAR-
 CERATION MAY BE IMPOSED FOR THE FIRST AND SECOND SUBSTANTIATED TECHNICAL
 VIOLATIONS;  UP  TO  SEVEN  DAYS  REINCARCERATION MAY BE IMPOSED FOR THE
 THIRD SUBSTANTIATED TECHNICAL VIOLATION; UP TO FIFTEEN DAYS REINCARCERA-
 TION MAY BE IMPOSED FOR THE FOURTH SUBSTANTIATED TECHNICAL VIOLATION; UP
 TO THIRTY DAYS REINCARCERATION MAY BE IMPOSED FOR THE FIFTH  AND  SUBSE-
 QUENT  SUBSTANTIATED  TECHNICAL  VIOLATIONS;  AND  (3) FOR NON-TECHNICAL
 VIOLATIONS, UP TO NINETY DAYS  REINCARCERATION  MAY  BE  IMPOSED.  IF  A
 WARRANT  WAS  EXECUTED PURSUANT TO SUBPARAGRAPH (IV) OF PARAGRAPH (A) OF
 THIS SUBDIVISION AND THE PERSON WAS DETAINED PURSUANT TO  SUCH  SUBPARA-
 GRAPH  PENDING  PRELIMINARY OR REVOCATION HEARINGS, ANY PERIOD OF INCAR-
 CERATION IMPOSED PURSUANT TO THIS PARAGRAPH SHALL BE  COUNTED  FROM  THE
 DATE OF THE EXECUTION OF THE WARRANT. IF A WARRANT WAS EXECUTED PURSUANT
 TO SUBPARAGRAPH (IV) OF PARAGRAPH (A) OF THIS SUBDIVISION BUT A CRIMINAL
 COURT  RELEASED  THE  PERSON PENDING PRELIMINARY OR REVOCATION HEARINGS,
 ANY PERIOD OF INCARCERATION IMPOSED PURSUANT TO THIS PARAGRAPH SHALL  BE
 COUNTED FROM THE DATE OF ISSUANCE OF A DETERMINATION AFTER A FINAL HEAR-
 ING  THAT  THE  PERSON  HAS VIOLATED ONE OR MORE CONDITIONS OF COMMUNITY
 SUPERVISION, AND THE TIME BETWEEN EXECUTION OF THE WARRANT  AND  RELEASE
 OF  THE  PERSON  PENDING  PRELIMINARY OR REVOCATION HEARINGS SHALL COUNT
 TOWARD THE PERIOD OF REINCARCERATION IMPOSED PURSUANT TO THIS PARAGRAPH.
 IF A RELEASEE IS DETAINED ON BAIL PURSUANT  TO  SECTION  530.10  OF  THE
 CRIMINAL  PROCEDURE  LAW, ANY TIME THE PERSON SPENT IN DETENTION ON BAIL
 SHALL COUNT TOWARDS ANY PERIOD OF INCARCERATION IMPOSED PURSUANT TO THIS
 PARAGRAPH. IN ALL CASES, THE PRESIDING OFFICER SHALL  IMPOSE  THE  LEAST
 RESTRICTIVE  REASONABLE  SANCTION.  ANY PERIODS OF REINCARCERATION SHALL
 RUN CONCURRENTLY IF MORE THAN ONE VIOLATION IS ADJUDICATED AT A TIME. IF
 A PERIOD OF INCARCERATION IS IMPOSED PURSUANT  TO  THIS  PARAGRAPH,  THE
 RELEASEE SHALL BE RELEASED FROM CUSTODY UPON EXPIRATION OF THE PERIOD OR

 A. 5493                            12
 
 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  viola-
 tor  serving an indeterminate sentence who has been found by the depart-
 ment to have committed a serious disciplinary infraction while re-incar-
 cerated, the department shall  refer  the  violator  to  the  board  for
 consideration  for re-release to community supervision. Upon such refer-
 ral the board may waive the  personal  interview  between  a  member  or
 members  of  the board and the violator to determine the suitability for
 re-release when the board directs that the violator be re-released  upon
 expiration  of the time assessment. The board shall retain the authority
 to suspend the date fixed for re-release based on the violator's commis-
 sion of a serious disciplinary infraction and shall in such case require
 a personal interview be conducted within a  reasonable  time  between  a
 panel  of members of the board and the violator to determine suitability
 for re-release. If an interview is required, the board shall notify  the
 violator in advance of the date and time of such interview in accordance
 with the rules and regulations of the board.
   [(xi)]  (XIII)  If  the  presiding officer sustains any violations, he
 must prepare a written statement, to be made available  to  the  alleged
 violator  and  his  counsel, indicating the evidence relied upon and the
 reasons for revoking presumptive release, parole, conditional release or
 post-release supervision, and for the disposition made.
   [(xii)] (XIV) If at  any  time  during  a  revocation  proceeding  the
 alleged  violator,  his or her counsel, or an employee of the department
 contends, or if it reasonably appears to the hearing officer,  that  the
 alleged  violator  is an incapacitated person as that term is defined in
 subdivision one of section 730.10 of the criminal procedure law  and  no
 judicial  determination  has  been  made that the alleged violator is an
 incapacitated person, the revocation  proceeding  shall  be  temporarily
 stayed  until the superior court determines whether or not the person is
 fit to proceed. The matter shall be promptly referred  to  the  superior
 court  for determination of the alleged violator's fitness to proceed in
 a manner consistent with the provisions of article seven hundred  thirty
 of  the criminal procedure law, provided however that the superior court
 shall immediately appoint counsel for any unrepresented alleged violator
 eligible for appointed counsel under subparagraph (v) of THIS  paragraph
 [(f)  of  subdivision  three of section two hundred fifty-nine-i of this
 chapter]. The court shall decide whether or not the alleged violator  is
 incapacitated  within thirty days of the referral from the hearing offi-
 cer. If the court determines that the alleged violator is not  an  inca-
 pacitated  person,  the court shall order that the matter be returned to
 the board of parole for continuation and disposition of  the  revocation
 proceeding.  If  the  court  determines  that the alleged violator is an
 incapacitated person and if no felony charges are  pending  against  the
 alleged  violator,  the  court  shall issue a final order of observation
 committing such person to the custody  of  the  commissioner  of  mental
 health  or  the  commissioner of developmental disabilities for care and
 treatment in an appropriate institution  in  a  manner  consistent  with
 subdivision  one  of  section 730.40 of the criminal procedure law. If a
 final order of observation has been issued pursuant to this section, the
 hearing officer shall dismiss the violation charges and  such  dismissal
 shall  act as a bar to any further proceeding under this section against
 the alleged violator for such violations. If felony criminal charges are

 A. 5493                            13
 
 pending at any time against an alleged violator who has been referred to
 superior court for a fitness evaluation but before  a  determination  of
 fitness  has  been made pursuant to this section, the court shall decide
 whether or not the alleged violator is incapacitated pursuant to article
 seven  hundred  thirty  of the criminal procedure law and the revocation
 proceeding shall be held  in  abeyance  until  such  decision  has  been
 reached.  The  hearing  officer  shall adopt the capacity finding of the
 court and either terminate the revocation process if an order of  obser-
 vation has been made by the court or proceed with the revocation hearing
 if  the  alleged  violator  has  been  found  not to be an incapacitated
 person.
   § 7. Section 259-i of the executive law is amended  by  adding  a  new
 subdivision 9 to read as follows:
   9.  THE BOARD SHALL PROMULGATE RULES AND REGULATIONS TO FACILITATE THE
 PRESENCE OF NONPROFIT SERVICE PROVIDERS ABLE TO OFFER RELEVANT  COMMUNI-
 TY-BASED  SERVICES  TO RELEASEES AT ALL PRELIMINARY AND FINAL REVOCATION
 HEARINGS FOR THE PURPOSE OF HELPING PEOPLE SUBJECT TO  COMMUNITY  SUPER-
 VISION  SUCCESSFULLY  COMPLETE  SUCH  SUPERVISION  AND AVOID FUTURE SUCH
 SUPERVISION, AND TO HELP ENSURE  PRESIDING  OFFICERS  IMPOSE  THE  LEAST
 RESTRICTIVE  REASONABLE  SANCTION  FOR ANY VIOLATION OF COMMUNITY SUPER-
 VISION.
   § 8. This act shall take effect on the ninetieth day  after  it  shall
 have  become  a  law; provided however the department of corrections and
 community supervision shall have six months from the effective  date  of
 this  act  to  begin holding preliminary revocation hearings required by
 the amendments to paragraph (c) of subdivision 3 of section 259-i of the
 executive law made by section five of this act. Provided further, howev-
 er, that the board of parole shall have two months  from  the  effective
 date  of this act to identify each releasee incarcerated for a sustained
 parole violation and determine whether incarceration may be imposed  for
 the  sustained  parole  violation pursuant to subparagraph (xi) of para-
 graph (f) of subdivision 3 of section 259-i of  the  executive  law,  as
 added  by  section  six  of this act. If no incarceration may be imposed
 pursuant to such subparagraph, the board shall immediately  restore  the
 releasee  to  community supervision. If the releasee may be incarcerated
 for the sustained violation the board shall fix a new date  for  release
 pursuant  to  subparagraph  (xii)  of  paragraph (f) of subdivision 3 of
 section 259-i of the executive law, as amended by section  six  of  this
 act.  If  such  release  date  has  passed,  the board shall immediately
 restore the releasee to community supervision.  Provided further, howev-
 er, the department of corrections and community supervision  shall  have
 six months from the effective date of this act to set up the final revo-
 cation  hearing  courtrooms  that are not at correctional facilities for
 people who are not detained pending their hearing pursuant to the amend-
 ments to paragraph (f) of subdivision 3 of section 259-p of  the  execu-
 tive law as made by section six of this act.  Effective immediately, the
 addition,  amendment  and/or  repeal of any rule or regulation necessary
 for the implementation of this act on its effective date are  authorized
 and directed to be made and completed on or before such effective date.

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5493--B
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 12, 2019
                                ___________
 
 Introduced by M. of A. MOSLEY, ORTIZ, D'URSO, WEPRIN, TAYLOR, GOTTFRIED,
   HYNDMAN, O'DONNELL, DICKENS, HUNTER, QUART, REYES, FAHY, COOK, BARRON,
   HEVESI,  EPSTEIN, SIMOTAS, SIMON, FERNANDEZ, CAHILL -- Multi-Sponsored
   by -- M.  of A. LENTOL -- read once and referred to the  Committee  on
   Correction -- committee discharged, bill amended, ordered reprinted as
   amended  and  recommitted  to  said  committee  --  recommitted to the
   Committee on Correction in accordance with Assembly Rule 3, sec. 2  --
   committee  discharged,  bill amended, ordered reprinted as amended and
   recommitted to said committee
 
 AN ACT to amend the executive law and the  penal  law,  in  relation  to
   revocation of community supervision
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 259 of the executive law is amended by adding  five
 new subdivisions 5, 6, 7, 8 and 9 to read as follows:
   5.  "RELEASEE"  MEANS AN INDIVIDUAL RELEASED FROM AN INSTITUTION UNDER
 THE JURISDICTION OF THE  DEPARTMENT  INTO  THE  COMMUNITY  ON  TEMPORARY
 RELEASE,  PRESUMPTIVE RELEASE, PAROLE, CONDITIONAL RELEASE, POST-RELEASE
 SUPERVISION OR MEDICAL PAROLE.
   6. "TECHNICAL VIOLATION" MEANS ANY VIOLATION OF A CONDITION OF  COMMU-
 NITY  SUPERVISION  IN  AN  IMPORTANT  RESPECT OTHER THAN CONDUCT THAT IF
 PROVED WOULD BE A FELONY OFFENSE, OR A MISDEMEANOR OFFENSE UNDER ARTICLE
 ONE HUNDRED TWENTY, ONE HUNDRED  TWENTY-ONE,  ONE  HUNDRED  THIRTY,  ONE
 HUNDRED  THIRTY-FIVE, TWO HUNDRED SIXTY-FIVE OR FOUR HUNDRED EIGHTY-FIVE
 OF THE PENAL LAW.
   7. "ABSCONDING" MEANS INTENTIONALLY AVOIDING SUPERVISION BY FAILING TO
 MAINTAIN CONTACT OR COMMUNICATION WITH THE RELEASEE'S ASSIGNED COMMUNITY
 SUPERVISION OFFICER OR AREA BUREAU OFFICE  AND  TO  NOTIFY  HIS  OR  HER
 ASSIGNED COMMUNITY SUPERVISION OFFICER OR AREA BUREAU OFFICE OF A CHANGE
 IN  RESIDENCE,  AND  REASONABLE EFFORTS BY THE ASSIGNED COMMUNITY SUPER-
 VISION OFFICER TO RE-ENGAGE THE RELEASEE HAVE BEEN UNSUCCESSFUL.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD06090-08-0

 A. 5493--B                          2
 
   8. "TIER 1 VIOLATION" MEANS ANY TECHNICAL VIOLATION  NOT  INCLUDED  IN
 THE DEFINITION OF A TIER 2 VIOLATION.
   9. "TIER 2 VIOLATION" MEANS ANY OF THE FOLLOWING TECHNICAL VIOLATIONS:
 VIOLATING  CURFEW;  FAILURE  TO  PAY SURCHARGES AND FEES, INCLUDING FEES
 IMPOSED PURSUANT TO SECTION 60.35 OF THE PENAL  LAW,  SECTIONS  EIGHTEEN
 HUNDRED NINE AND EIGHTEEN HUNDRED NINE-C OF THE VEHICLE AND TRAFFIC LAW,
 OR SECTION 27.12 OF THE PARKS, RECREATION AND HISTORIC PRESERVATION LAW;
 OBTAINING  A  DRIVER'S  LICENSE  OR  DRIVING A CAR WITH A VALID DRIVER'S
 LICENSE, PROVIDED HOWEVER IT SHALL NOT BE A TIER  2  VIOLATION  IF  SUCH
 ACTION  IS  EXPLICITLY  PROHIBITED  AS  A  CONDITION  OF  SUCH  PERSON'S
 SENTENCE; POSITIVE TEST FOR OR USE OR POSSESSION OF  ALCOHOL,  DRUGS,  A
 CONTROLLED  SUBSTANCE  WITHOUT  PROPER  MEDICAL  AUTHORIZATION,  OR DRUG
 PARAPHERNALIA, PROVIDED HOWEVER IT SHALL NOT BE A TIER  2  VIOLATION  IF
 THE  RELEASEE  IS  SUBJECT  TO COMMUNITY SUPERVISION DUE TO A CONVICTION
 RELATED TO ALCOHOL OR DRUGS PURSUANT TO SECTION ELEVEN  HUNDRED  NINETY-
 TWO OF THE VEHICLE AND TRAFFIC LAW; FAILING TO NOTIFY A COMMUNITY SUPER-
 VISION  OFFICER  OF A CHANGE IN EMPLOYMENT OR PROGRAM STATUS; FAILING TO
 NOTIFY A  COMMUNITY  SUPERVISION  OFFICER  OF  A  CHANGE  IN  RESIDENCE,
 PROVIDED  HOWEVER IT SHALL NOT BE A TIER 2 VIOLATION IF THE RELEASEE WAS
 ABSCONDING; FAILURE TO MAKE  OFFICE  OR  WRITTEN  REPORTS  AS  DIRECTED,
 PROVIDED  HOWEVER IT SHALL NOT BE A TIER 2 VIOLATION IF THE RELEASEE WAS
 ABSCONDING; LEAVING THE STATE OF NEW YORK OR ANY OTHER  STATE  TO  WHICH
 THE  RELEASEE  IS RELEASED OR TRANSFERRED OR ANY AREA DEFINED IN WRITING
 BY HIS PAROLE OFFICER, WITHOUT PERMISSION, PROVIDED HOWEVER IT SHALL NOT
 BE A TIER 2 VIOLATION IF THE RELEASEE WAS ABSCONDING; FAILURE TO  NOTIFY
 COMMUNITY  SUPERVISION OFFICER OF CONTACT WITH ANY LAW ENFORCEMENT AGEN-
 CY, PROVIDED HOWEVER IT SHALL NOT BE A TIER 2 VIOLATION IF THE  RELEASEE
 INTENDED  TO HIDE EVIDENCE OF HIS OR OTHERS' BEHAVIOR THAT CONSTITUTES A
 VIOLATION OF THE PENAL LAW; AND FAILURE TO OBEY ANY OTHER SPECIAL CONDI-
 TION OF COMMUNITY SUPERVISION, PROVIDED HOWEVER IT SHALL NOT BE A TIER 2
 VIOLATION IF THE FAILURE CANNOT BE ADDRESSED IN THE COMMUNITY WITH COUN-
 SELING, TREATMENT, OR PROGRAMMING  AND  ALL  REASONABLE  COMMUNITY-BASED
 MEANS TO ADDRESS THE FAILURE HAVE BEEN EXHAUSTED.
   §  2.  Subdivision 3 of section 70.40 of the penal law, paragraphs (a)
 and (b) as amended by section 127-h of subpart B of part C of chapter 62
 of the laws of 2011 and paragraph (c) as amended by chapter 478  of  the
 laws  of  1973,  is  amended and a new subdivision 4 is added to read as
 follows:
   3. Delinquency. (a) When a person is  alleged  to  have  violated  the
 terms  of  presumptive  release  or  parole BY ABSCONDING, and the state
 board of parole has declared such person to be delinquent, the  declara-
 tion of delinquency shall interrupt the person's sentence as of the date
 of  the  delinquency  and  such  interruption  shall  continue until the
 [return of the person to an institution under the  jurisdiction  of  the
 state  department  of  corrections and community supervision] RELEASEE'S
 APPEARANCE IN RESPONSE TO A NOTICE OF  VIOLATION  OR  THE  DATE  OF  THE
 EXECUTION OF A WARRANT, WHICHEVER IS EARLIER.
   (b)  When a person is alleged to have violated the terms of his or her
 conditional release or post-release supervision BY  ABSCONDING  and  has
 been  declared  delinquent  by the parole board or the local conditional
 release commission having supervision over such person, the  declaration
 of delinquency shall interrupt the period of supervision or post-release
 supervision  as  of  the  date  of  the  delinquency.  For a conditional
 release, such interruption shall  continue  until  the  [return  of  the
 person to the institution from which he or she was released or, if he or
 she was released from an institution under the jurisdiction of the state

 A. 5493--B                          3

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

 A. 5493--B                          4

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

 A. 5493--B                          5
 
 hundred three of the correction law.  Any time spent in custody from the
 date of delinquency until return to the department  of  corrections  and
 community  supervision  shall first be credited to the maximum or aggre-
 gate maximum term of the sentence or sentences of imprisonment, but only
 to  the  extent authorized by subdivision three of section 70.40 of this
 article. The maximum or  aggregate  maximum  term  of  the  sentence  or
 sentences  of  imprisonment  shall  run while the person is serving such
 time assessment in the custody of  the  department  of  corrections  and
 community supervision. Any time spent in custody solely pursuant to such
 delinquency after completion of the maximum or aggregate maximum term of
 the sentence or sentences of imprisonment shall be credited to the peri-
 od of post-release supervision, if any.
   §  4.  Subparagraph  (i)  of paragraph (a) of subdivision 3 of section
 259-i of the executive law, as amended by chapter 545  of  the  laws  of
 2015,  is  amended and five new subparagraphs (iv), (v), (vi), (vii) and
 (viii) are added to read as follows:
   (i) If the parole officer having charge of a  presumptively  released,
 paroled  or  conditionally released person or a person released to post-
 release supervision or a person received under the uniform act for  out-
 of-state  parolee  supervision shall have [reasonable] PROBABLE cause to
 believe that such person has [lapsed into criminal ways or  company,  or
 has  violated one or more conditions of his presumptive release, parole,
 conditional release or post-release supervision] COMMITTED  A  TECHNICAL
 VIOLATION, such parole officer shall report such fact to a member of the
 board,  or to any officer of the department designated by the board, and
 thereupon A WRITTEN NOTICE OF VIOLATION MAY BE ISSUED ACCORDING  TO  THE
 TERMS  OF  SUBPARAGRAPH  (III) OF PARAGRAPH (C) OF THIS SUBDIVISION, AND
 SHALL BE PROMPTLY SERVED UPON SUCH PERSON. IF THE RELEASEE HAS FAILED TO
 APPEAR AS DIRECTED IN RESPONSE TO A NOTICE OF VIOLATION AND  HAS  FAILED
 TO  APPEAR  VOLUNTARILY WITHIN FORTY-EIGHT HOURS AFTER SUCH TIME AND THE
 PERSON WOULD BE SUBJECT TO INCARCERATION PURSUANT TO SUBPARAGRAPH  (XII)
 OF  PARAGRAPH  (F) OF THIS SUBDIVISION SHOULD THE VIOLATION BE SUSTAINED
 AT A FINAL REVOCATION HEARING, A WARRANT MAY BE ISSUED FOR THE  RETAKING
 OF  SUCH  PERSON  AND FOR HIS TEMPORARY DETENTION IN ACCORDANCE WITH THE
 RULES OF THE BOARD. IF THE PERSON HAS FAILED TO APPEAR  AS  DIRECTED  IN
 RESPONSE  TO  A NOTICE OF VIOLATION AND HAS FAILED TO APPEAR VOLUNTARILY
 WITHIN FORTY-EIGHT HOURS AFTER SUCH TIME AND THE  PERSON  WOULD  NOT  BE
 SUBJECT TO INCARCERATION PURSUANT TO SUBPARAGRAPH (XII) OF PARAGRAPH (F)
 OF THIS SUBDIVISION SHOULD THE VIOLATION BE SUSTAINED AT A FINAL REVOCA-
 TION  HEARING,  NO WARRANT SHALL ISSUE AND THE VIOLATION SHALL BE DEEMED
 SUSTAINED. NOTICE OF THAT DECISION SHALL BE  PROMPTLY  SERVED  UPON  THE
 RELEASEE. IN SUCH CASE, WITHIN ONE MONTH OF THE DATE THE NOTICE OF DECI-
 SION  WAS SERVED UPON THE RELEASEE, THE RELEASEE MAY MOVE TO VACATE SUCH
 A SUSTAINED VIOLATION IF THE  RELEASEE  CAN  SHOW  THAT  THE  NOTICE  OF
 VIOLATION WAS NOT PROPERLY SERVED OR THE FAILURE TO APPEAR WAS OTHERWISE
 EXCUSABLE.  IF  THE  PAROLE  OFFICER  HAVING  CHARGE  OF A PRESUMPTIVELY
 RELEASED, PAROLED OR CONDITIONALLY RELEASED PERSON OR A PERSON  RELEASED
 TO  POST-RELEASE  SUPERVISION OR A PERSON RECEIVED UNDER THE UNIFORM ACT
 FOR OUT OF STATE  PAROLEE  SUPERVISION  SHALL  HAVE  PROBABLE  CAUSE  TO
 BELIEVE  THAT  SUCH PERSON HAS COMMITTED A NON-TECHNICAL VIOLATION, SUCH
 PAROLE OFFICER SHALL REPORT SUCH FACT TO A MEMBER OF THE  BOARD,  OR  TO
 ANY  OFFICER  OF THE DEPARTMENT DESIGNATED BY THE BOARD, AND THEREUPON A
 NOTICE OF VIOLATION MAY BE ISSUED OR a warrant may  be  issued  for  the
 retaking  of  such  person and for his temporary detention in accordance
 with the rules of the board [unless such person]. HOWEVER, IF A RELEASEE

 A. 5493--B                          6
 
  has been determined to be currently unfit to proceed  to  trial  or  is
 currently  subject to a temporary or final order of observation pursuant
 to article seven hundred thirty of the criminal procedure law, [in which
 case] no NOTICE OF VIOLATION OR warrant shall be issued. The ISSUANCE OF
 A  NOTICE  OF  VIOLATION, SERVICE OF A NOTICE OF VIOLATION, SERVICE OF A
 NOTICE OF DECISION, AND THE retaking and detention of any [such]  person
 FOR  WHOM A WARRANT HAS BEEN ISSUED PURSUANT TO THIS SUBPARAGRAPH may be
 further regulated by rules and regulations of the department not  incon-
 sistent  with  this  article.  A warrant issued pursuant to this section
 shall constitute sufficient authority to  the  superintendent  or  other
 person  in  charge of any jail, penitentiary, lockup or detention pen to
 whom it is delivered to hold in temporary  detention  the  person  named
 therein[;  except that a warrant issued with respect to a person who has
 been released on medical parole pursuant to section two  hundred  fifty-
 nine-r  of  this  article  and whose parole is being revoked pursuant to
 paragraph (h) of subdivision  four  of  such  section  shall  constitute
 authority for the immediate placement of the parolee only into imprison-
 ment  in the custody of the department to hold in temporary detention. A
 warrant issued pursuant to this section shall also constitute sufficient
 authority to the person in charge of a drug treatment campus, as defined
 in subdivision twenty of section two of the correction law, to hold  the
 person  named therein, in accordance with the procedural requirements of
 this section, for a period of at least ninety days to complete an inten-
 sive drug treatment program mandated by the board as an  alternative  to
 presumptive  release or parole or conditional release revocation, or the
 revocation of post-release supervision, and shall also constitute suffi-
 cient authority for return of the person named therein to local  custody
 to hold in temporary detention for further revocation proceedings in the
 event  said  person  does  not  successfully complete the intensive drug
 treatment program. The board's rules shall provide for  cancellation  of
 delinquency   and   restoration   to  supervision  upon  the  successful
 completion of the program] FOR UP TO TWENTY-FOUR HOURS PENDING A  RECOG-
 NIZANCE  HEARING  PURSUANT  TO  SUBPARAGRAPH (IV) OF THIS PARAGRAPH.  IT
 SHALL NO LONGER BE A CONDITION OF PAROLE NOR MAY A NOTICE  OF  VIOLATION
 OR  A  WARRANT  BE  ISSUED  DUE TO A RELEASEE BEING IN THE COMPANY OF OR
 FRATERNIZING WITH ANY PERSON THE RELEASEE KNOWS HAS A CRIMINAL RECORD OR
 KNOWS HAS BEEN ADJUDICATED A YOUTHFUL OFFENDER.
   (IV) UPON EXECUTION OF A WARRANT ISSUED PURSUANT TO THIS SECTION,  THE
 AUTHORIZED  OFFICER SHALL TAKE THE RELEASEE TO A LOCAL COURT WITH CRIMI-
 NAL JURISDICTION FOR A RECOGNIZANCE HEARING. SUCH  RECOGNIZANCE  HEARING
 SHALL COMMENCE WITHIN TWENTY-FOUR HOURS OF THE EXECUTION OF THE WARRANT.
   (V) AT A RECOGNIZANCE HEARING, THE DEPARTMENT SHALL HAVE THE BURDEN TO
 DEMONSTRATE  TO  THE COURT THAT THE EXECUTED WARRANT WAS PROPERLY ISSUED
 AND SERVED PURSUANT TO THIS SECTION.
   (VI) AT A RECOGNIZANCE HEARING, THE COURT SHALL CONSIDER ALL AVAILABLE
 EVIDENCE OF THE RELEASEE'S EMPLOYMENT, FAMILY AND COMMUNITY TIES INCLUD-
 ING LENGTH OF RESIDENCY IN THE COMMUNITY,  HISTORY  OF  REPORTING  IN  A
 TIMELY  FASHION TO A PAROLE OR SUPERVISORY OFFICER, AND OTHER INDICATORS
 OF STABILITY. AT THE CONCLUSION OF THE RECOGNIZANCE HEARING,  THE  COURT
 MAY  ORDER  THAT  THE  RELEASEE BE DETAINED PENDING PRELIMINARY OR FINAL
 REVOCATION HEARINGS ONLY UPON A  FINDING  THAT  THE  RELEASEE  CURRENTLY
 PRESENTS  A  SUBSTANTIAL  RISK  OF  WILLFULLY  FAILING  TO APPEAR AT THE
 PRELIMINARY OR FINAL REVOCATION HEARINGS AND THAT NO NON-MONETARY CONDI-
 TION OR COMBINATION OF  CONDITIONS  IN  THE  COMMUNITY  WILL  REASONABLY
 ASSURE  THE RELEASEE'S APPEARANCE AT THE PRELIMINARY OR FINAL REVOCATION
 HEARINGS. OTHERWISE, THE COURT SHALL RELEASE THE RELEASEE ON  THE  LEAST

 A. 5493--B                          7

 RESTRICTIVE  NON-MONETARY  CONDITIONS  THAT  WILL  REASONABLY ASSURE THE
 RELEASEE'S APPEARANCE AT SUBSEQUENT PRELIMINARY OR REVOCATION  HEARINGS,
 WITH  A PRESUMPTION OF RELEASE ON RECOGNIZANCE.  THE COURT SHALL EXPLAIN
 ITS  DECISION ON THE RECORD OR IN WRITING. IF NON-MONETARY CONDITIONS OF
 RELEASE ARE IMPOSED, THE RELEASEE SHALL NOT BE REQUIRED TO PAY  FOR  ANY
 PART OF THE COST OF SUCH CONDITIONS.
   (VII)  THE  ALLEGED  VIOLATOR  SHALL HAVE A RIGHT TO REPRESENTATION BY
 COUNSEL AT THE RECOGNIZANCE HEARING. IN ANY CASE, INCLUDING WHEN A COURT
 IS CALLED UPON TO EVALUATE THE CAPACITY OF  AN  ALLEGED  VIOLATOR  IN  A
 RECOGNIZANCE  PROCEEDING,  WHERE  SUCH  PERSON  IS FINANCIALLY UNABLE TO
 RETAIN COUNSEL, THE CRIMINAL COURT OF THE CITY OF NEW YORK,  THE  COUNTY
 COURT  OR DISTRICT COURT IN THE COUNTY WHERE THE VIOLATION IS ALLEGED TO
 HAVE OCCURRED OR WHERE THE HEARING IS  HELD,  SHALL  ASSIGN  COUNSEL  IN
 ACCORDANCE  WITH  THE  COUNTY  OR CITY PLAN FOR REPRESENTATION PLACED IN
 OPERATION PURSUANT TO ARTICLE EIGHTEEN-B OF THE COUNTY LAW.
   (VIII) SUCH RECOGNIZANCE HEARING MAY BE HELD AT THE  SAME  TIME  AS  A
 PROCEEDING  PURSUANT  TO  ARTICLE  FIVE  HUNDRED  THIRTY OF THE CRIMINAL
 PROCEDURE LAW BASED ON THE SAME ALLEGED CONDUCT. IF  AT  THE  PROCEEDING
 PURSUANT  TO  ARTICLE  FIVE HUNDRED THIRTY OF THE CRIMINAL PROCEDURE LAW
 THE COURT IMPOSES BAIL OR COMMITS THE RELEASEE TO  THE  CUSTODY  OF  THE
 SHERIFF  PURSUANT  TO ARTICLE FIVE HUNDRED THIRTY OF THE CRIMINAL PROCE-
 DURE LAW AND THE RELEASEE SECURES RELEASE BY PAYING BAIL OR BY OPERATION
 OF LAW, THEN THE RELEASEE SHALL NOT BE DETAINED FURTHER BASED SOLELY  ON
 THE WARRANT ISSUED BY THE DEPARTMENT. IF THE DEPARTMENT ISSUES A WARRANT
 FOR  A  NON-TECHNICAL  VIOLATION  FOR  ALLEGED CRIMINAL CONDUCT THAT HAS
 ALREADY BEEN THE SUBJECT OF A COURT'S ORDER  PURSUANT  TO  ARTICLE  FIVE
 HUNDRED  THIRTY  OF  THE CRIMINAL PROCEDURE LAW, THEN WITHIN TWENTY-FOUR
 HOURS OF EXECUTION OF THE WARRANT  THE  RELEASEE  SHALL  BE  PROVIDED  A
 RECOGNIZANCE HEARING PURSUANT TO THIS SUBPARAGRAPH.
   § 5. Subparagraphs (i), (iii) and (iv) of paragraph (c) of subdivision
 3  of section 259-i of the executive law, subparagraph (i) as amended by
 section 11 of part E of chapter 62 of the laws  of  2003,  and  subpara-
 graphs (iii) and (iv) as amended by section 1 of part E of chapter 56 of
 the laws of 2007, are amended and two new subparagraphs (ix) and (x) are
 added to read as follows:
   (i)  [Within fifteen days after the warrant for retaking and temporary
 detention has been executed, unless the releasee has been convicted of a
 new crime committed while under presumptive release, parole, conditional
 release or post-release supervision, the board of  parole  shall  afford
 the alleged presumptive release, parole, conditional release or post-re-
 lease  supervision  violator  a  preliminary revocation hearing before a
 hearing officer designated by the board of parole. Such hearing  officer
 shall  not  have  had any prior supervisory involvement over the alleged
 violator] (A) FOR ANY ALLEGED TECHNICAL VIOLATION FOR WHICH A NOTICE  OF
 VIOLATION  WAS  ISSUED OR A PERSON WAS RELEASED ON RECOGNIZANCE PURSUANT
 TO SUBPARAGRAPH (IV) OF PARAGRAPH (A) OF THIS SUBDIVISION,  THE  DEPART-
 MENT SHALL WITHIN TEN DAYS OF THE ISSUANCE OF THE NOTICE OF VIOLATION OR
 THE  ORDER  OF  RELEASE  ON RECOGNIZANCE AFFORD THE PERSON A PRELIMINARY
 REVOCATION HEARING BEFORE A HEARING OFFICER DESIGNATED  BY  THE  DEPART-
 MENT.  SUCH  HEARING  OFFICER  SHALL  NOT HAVE HAD ANY PRIOR SUPERVISORY
 INVOLVEMENT OVER THE ALLEGED VIOLATOR. SUCH HEARING SHALL NOT BE HELD AT
 A CORRECTIONAL FACILITY, DETENTION CENTER OR LOCAL CORRECTIONAL  FACILI-
 TY.
   (B)  FOR  ANY  ALLEGED TECHNICAL VIOLATION FOR WHICH A COURT ISSUED AN
 ORDER DETAINING A PERSON PURSUANT TO SUBPARAGRAPH (IV) OF PARAGRAPH  (A)
 OF  THIS  SUBDIVISION AND THE PERSON WOULD BE SUBJECT TO REINCARCERATION

 A. 5493--B                          8
 
 OF UP TO THIRTY DAYS PURSUANT TO SUBPARAGRAPH (X) OF  PARAGRAPH  (F)  OF
 THIS SUBDIVISION SHOULD THE VIOLATION BE SUSTAINED AT A FINAL REVOCATION
 HEARING, THEN WITHIN FIVE DAYS OF THE ISSUANCE OF THE ORDER OF DETENTION
 THE DEPARTMENT SHALL AFFORD SUCH PERSON A PRELIMINARY REVOCATION HEARING
 BEFORE  A  HEARING  OFFICER  DESIGNATED  BY THE DEPARTMENT. SUCH HEARING
 OFFICER SHALL NOT HAVE HAD ANY PRIOR SUPERVISORY  INVOLVEMENT  OVER  THE
 ALLEGED VIOLATOR.
   (C)  FOR  ANY  ALLEGED NON-TECHNICAL VIOLATION, WITHIN TEN DAYS OF THE
 ISSUANCE OF A NOTICE OR EXECUTION OF A WARRANT  FOR  THE  VIOLATION  THE
 DEPARTMENT SHALL AFFORD SUCH PERSON A PRELIMINARY HEARING BEFORE A HEAR-
 ING OFFICER DESIGNATED BY THE DEPARTMENT. SUCH HEARING OFFICER SHALL NOT
 HAVE HAD ANY PRIOR SUPERVISORY INVOLVEMENT OVER THE ALLEGED VIOLATOR.
   (iii)  The alleged violator shall, [within three days of the execution
 of the warrant] AT THE TIME A NOTICE OF VIOLATION IS ISSUED  OR  AT  THE
 TIME  OF  A  RECOGNIZANCE  HEARING, be given written notice of the time,
 place and purpose of the  PRELIMINARY  hearing  [unless  he  or  she  is
 detained  pursuant  to  the provisions of subparagraph (iv) of paragraph
 (a) of this subdivision. In those instances, the alleged  violator  will
 be  given  written  notice of the time, place and purpose of the hearing
 within five days of the execution of the warrant], OR IF NO  PRELIMINARY
 HEARING  IS  REQUIRED  PURSUANT TO THIS SECTION, OF THE FINAL REVOCATION
 HEARING.   The  notice  shall  state  what  conditions  of  [presumptive
 release,  parole,  conditional release or post-release] COMMUNITY super-
 vision are alleged to have been violated, and in what manner; that  such
 person  shall  have  the  right  to  appear  and speak in his or her own
 behalf; that he or she shall have the right  to  introduce  letters  and
 documents;  that  he  or she may present witnesses who can give relevant
 information to the hearing officer; that he or  she  has  the  right  to
 confront  the  witnesses against him or her; THAT SUCH PERSON SHALL HAVE
 THE RIGHT TO REPRESENTATION BY COUNSEL  AT  ANY  PRELIMINARY  AND  FINAL
 REVOCATION  HEARINGS; AND THE NAME AND CONTACT DETAILS FOR INSTITUTIONAL
 DEFENDERS OR ASSIGNED PRIVATE COUNSEL, AS APPLICABLE. Adverse  witnesses
 may  be  compelled to attend the preliminary hearing unless the prisoner
 has been convicted of a new crime while on  supervision  or  unless  the
 hearing  officer  finds  good  cause for their non-attendance. As far as
 practicable or feasible, any additional documents having been  collected
 or prepared that [support] ARE RELEVANT TO the charge shall be delivered
 to the alleged violator.
   (iv)  [The  preliminary  hearing  shall  be scheduled to take place no
 later than fifteen days from the date of execution of the warrant.]  The
 standard of proof at the preliminary hearing shall be [probable cause] A
 PREPONDERANCE OF THE EVIDENCE to believe that the [presumptive releasee,
 parolee,  conditional releasee or person under post-release supervision]
 RELEASEE has violated one or more conditions of his or her  [presumptive
 release,  parole,  conditional release or post-release] COMMUNITY super-
 vision in an important respect. Proof of conviction of a crime committed
 while under supervision shall constitute [probable  cause]  PRIMA  FACIE
 EVIDENCE  OF A VIOLATION OF A CONDITION OF COMMUNITY SUPERVISION for the
 purposes of this section.
   (IX) IF THE HEARING OFFICER FINDS BY A PREPONDERANCE OF  THE  EVIDENCE
 THAT SUCH PERSON HAS VIOLATED ONE OR MORE CONDITIONS OF COMMUNITY SUPER-
 VISION IN AN IMPORTANT RESPECT, THE RELEASEE SHALL, AT THE CONCLUSION OF
 THE  PRELIMINARY  HEARING BE GIVEN WRITTEN NOTICE OF THE TIME, PLACE AND
 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

 A. 5493--B                          9
 
 REPRESENTATION BY COUNSEL AT ANY FINAL  REVOCATION  HEARING;  THAT  SUCH
 PERSON  SHALL  HAVE  THE  RIGHT  TO  APPEAR  AND SPEAK IN HIS OR HER OWN
 BEHALF; THAT HE OR SHE SHALL HAVE THE RIGHT  TO  INTRODUCE  LETTERS  AND
 DOCUMENTS;  THAT  HE  OR SHE MAY PRESENT WITNESSES WHO CAN GIVE RELEVANT
 INFORMATION TO THE HEARING OFFICER; THAT HE OR  SHE  HAS  THE  RIGHT  TO
 CONFRONT  THE  WITNESSES  AGAINST  HIM  OR HER; AND THE NAME AND CONTACT
 DETAILS FOR INSTITUTIONAL DEFENDERS  OR  ASSIGNED  PRIVATE  COUNSEL,  AS
 APPLICABLE.  ANY  ADDITIONAL DOCUMENTS HAVING BEEN COLLECTED OR PREPARED
 THAT SUPPORT THE CHARGE SHALL BE  DELIVERED  TO  THE  RELEASEE.  ADVERSE
 WITNESSES MAY BE COMPELLED TO ATTEND THE FINAL REVOCATION HEARING UNLESS
 THE  PRISONER  HAS BEEN CONVICTED OF A NEW CRIME WHILE ON SUPERVISION OR
 UNLESS THE HEARING OFFICER FINDS GOOD CAUSE FOR THEIR NON-ATTENDANCE.
   (X) THE ALLEGED VIOLATOR SHALL HAVE A RIGHT TO REPRESENTATION BY COUN-
 SEL AT THE PRELIMINARY HEARING. IN ANY CASE, INCLUDING WHEN A  COURT  IS
 CALLED UPON TO EVALUATE THE CAPACITY OF AN ALLEGED VIOLATOR IN A PRELIM-
 INARY  PROCEEDING,  WHERE  SUCH  PERSON  IS FINANCIALLY UNABLE TO RETAIN
 COUNSEL, THE CRIMINAL COURT OF THE CITY OF NEW YORK, THE COUNTY COURT OR
 DISTRICT COURT IN THE COUNTY WHERE THE  VIOLATION  IS  ALLEGED  TO  HAVE
 OCCURRED  OR  WHERE THE HEARING IS HELD, SHALL ASSIGN COUNSEL IN ACCORD-
 ANCE WITH THE COUNTY OR CITY PLAN FOR REPRESENTATION PLACED IN OPERATION
 PURSUANT TO ARTICLE EIGHTEEN-B OF THE COUNTY LAW.
   § 6. Paragraph (f) of subdivision 3 of section 259-i of the  executive
 law,  as  amended  by  section 11 of part E of chapter 62 of the laws of
 2003, subparagraph (v) as amended and subparagraph  (xii)  as  added  by
 chapter  545  of  the  laws  of  2015 and subparagraph (x) as amended by
 section 38-f-1 of subpart A of part C of chapter 62 of the laws of 2011,
 is amended to read as follows:
   (f) (i) [Revocation hearings shall be  scheduled  to  be  held  within
 ninety  days  of  the  probable  cause  determination]  FOR ANY RELEASEE
 CHARGED WITH A VIOLATION:
   (A) IF A COURT ISSUED AN  ORDER  DETAINING  SUCH  PERSON  PURSUANT  TO
 SUBPARAGRAPH  (IV)  OF  PARAGRAPH (A) OF THIS SUBDIVISION AND THE PERSON
 WOULD BE SUBJECT TO REINCARCERATION OF UP  TO  SEVEN  DAYS  PURSUANT  TO
 SUBPARAGRAPH  (X) OF THIS PARAGRAPH SHOULD THE VIOLATION BE SUSTAINED AT
 A FINAL REVOCATION HEARING, THEN WITHIN TWO DAYS OF THE ISSUANCE OF  THE
 ORDER  OF  DETENTION,  THE  DEPARTMENT  SHALL AFFORD SUCH PERSON A FINAL
 REVOCATION HEARING IN PERSON BEFORE A HEARING OFFICER DESIGNATED BY  THE
 DEPARTMENT. SUCH HEARING OFFICER SHALL NOT HAVE HAD ANY PRIOR SUPERVISO-
 RY  INVOLVEMENT  OVER  THE  ALLEGED  VIOLATOR. NO PRELIMINARY REVOCATION
 HEARING SHALL BE HELD IN THIS INSTANCE.
   (B) IF A COURT ISSUED AN  ORDER  DETAINING  SUCH  PERSON  PURSUANT  TO
 SUBPARAGRAPH  (IV)  OF  PARAGRAPH (A) OF THIS SUBDIVISION AND THE PERSON
 WOULD BE SUBJECT TO REINCARCERATION OF UP TO FIFTEEN  DAYS  PURSUANT  TO
 SUBPARAGRAPH  (X) OF THIS PARAGRAPH SHOULD THE VIOLATION BE SUSTAINED AT
 A FINAL REVOCATION HEARING, THEN WITHIN FOUR DAYS OF THE ISSUANCE OF THE
 ORDER OF DETENTION, THE DEPARTMENT SHALL  AFFORD  SUCH  PERSON  A  FINAL
 REVOCATION  HEARING IN PERSON BEFORE A HEARING OFFICER DESIGNATED BY THE
 DEPARTMENT. SUCH HEARING OFFICER SHALL NOT HAVE HAD ANY PRIOR SUPERVISO-
 RY INVOLVEMENT OVER THE  ALLEGED  VIOLATOR.  NO  PRELIMINARY  REVOCATION
 HEARING SHALL BE HELD IN THIS INSTANCE.
   (C)  IF  A  COURT  ISSUED  AN  ORDER DETAINING SUCH PERSON PURSUANT TO
 SUBPARAGRAPH (IV) OF PARAGRAPH (A) OF THIS SUBDIVISION  AND  THE  PERSON
 WOULD  BE SUBJECT TO REINCARCERATION OF UP TO THIRTY DAYS OR MORE PURSU-
 ANT TO SUBPARAGRAPH (X)  OF  THIS  PARAGRAPH  SHOULD  THE  VIOLATION  BE
 SUSTAINED  AT A FINAL REVOCATION HEARING, THEN WITHIN TEN DAYS AFTER THE
 ISSUANCE OF THE ORDER OF DETENTION, THE  DEPARTMENT  SHALL  AFFORD  SUCH

 A. 5493--B                         10
 
 PERSON  A  FINAL  REVOCATION  HEARING IN PERSON BEFORE A HEARING OFFICER
 DESIGNATED BY THE DEPARTMENT. SUCH HEARING OFFICER SHALL  NOT  HAVE  HAD
 ANY PRIOR SUPERVISORY INVOLVEMENT OVER THE ALLEGED VIOLATOR.
   (D) IF A NOTICE OF VIOLATION WAS ISSUED OR SUCH PERSON WAS RELEASED ON
 RECOGNIZANCE  PURSUANT  TO  SUBPARAGRAPH  (IV)  OF PARAGRAPH (A) OF THIS
 SUBDIVISION THE DEPARTMENT SHALL WITHIN THIRTY DAYS OF THE  ISSUANCE  OF
 THE  NOTICE  OF VIOLATION OR THE ORDER OF RELEASE ON RECOGNIZANCE AFFORD
 THE PERSON A FINAL REVOCATION HEARING IN PERSON BEFORE A HEARING OFFICER
 DESIGNATED BY THE DEPARTMENT. SUCH HEARING OFFICER SHALL  NOT  HAVE  HAD
 ANY PRIOR SUPERVISORY INVOLVEMENT OVER THE ALLEGED VIOLATOR.  SUCH HEAR-
 ING  SHALL  NOT  BE HELD AT A CORRECTIONAL FACILITY, DETENTION CENTER OR
 LOCAL CORRECTIONAL FACILITY. THE DEPARTMENT SHALL HAVE SIX  MONTHS  FROM
 THE  DATE  OF THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF TWO THOU-
 SAND TWENTY THAT AMENDED THIS PARAGRAPH TO BEGIN TO HOLD  SUCH  HEARINGS
 AT ALLOWABLE LOCATIONS.
   (E)  IF  SUCH  PERSON  IS  ACCUSED  OF  A NON-TECHNICAL VIOLATION, THE
 DEPARTMENT SHALL WITHIN THIRTY DAYS OF  THE  EXECUTION  OF  THE  WARRANT
 AFFORD SUCH PERSON A FINAL REVOCATION HEARING IN PERSON BEFORE A HEARING
 OFFICER  DESIGNATED  BY  THE  DEPARTMENT. SUCH HEARING OFFICER SHALL NOT
 HAVE HAD ANY SUPERVISORY INVOLVEMENT OVER THE ALLEGED VIOLATOR.
   (F) However, if an alleged violator requests and  receives  any  post-
 ponement  of  his revocation hearing, or consents to a postponed revoca-
 tion proceeding initiated by the board, or if an  alleged  violator,  by
 his  actions otherwise precludes the prompt conduct of such proceedings,
 the time limit may be extended.
   (ii) The revocation hearing shall be conducted by a presiding  officer
 who  may  be  a  member  or a hearing officer designated by the board in
 accordance with rules of the board.
   (iii) Both the alleged violator and an attorney who has filed a notice
 of appearance on his behalf in accordance with the rules of the board of
 parole shall be given written notice of the date, place and time of  the
 hearing  [as  soon  as  possible but at least fourteen days prior to the
 scheduled date] PURSUANT TO SUBPARAGRAPH (IX) OF PARAGRAPH (C)  OF  THIS
 SUBDIVISION.
   (iv)  The alleged violator shall be given written notice of the rights
 enumerated in subparagraph (iii) of paragraph (c) of this subdivision as
 well as of his right to present mitigating evidence relevant to restora-
 tion to presumptive release, parole, conditional release or post-release
 supervision and his right to counsel.
   (v) The alleged violator shall [be permitted] HAVE A RIGHT  TO  repre-
 sentation  by  counsel at the revocation hearing. In any case, including
 when a superior court is called upon to  evaluate  the  capacity  of  an
 alleged  violator in a [parole] revocation proceeding, where such person
 is financially unable to retain counsel, the criminal court of the  city
 of  New York, the county court or district court in the county where the
 violation is alleged to have occurred or  where  the  hearing  is  held,
 shall  assign  counsel  in  accordance  with the county or city plan for
 representation placed in operation pursuant to article eighteen-B of the
 county law. He or she shall have the right to confront and cross-examine
 adverse witnesses, unless there is good cause for  their  non-attendance
 as determined by the presiding officer; present witnesses and documenta-
 ry  evidence  in defense of the charges; and present witnesses and docu-
 mentary evidence relevant to the question whether reincarceration of the
 alleged violator is appropriate.
   (vi) At the revocation hearing, the charges  shall  be  read  and  the
 alleged  violator shall be permitted to plead not guilty, guilty, guilty

 A. 5493--B                         11
 
 with explanation or to stand mute. As to each charge, evidence shall  be
 introduced  through  witnesses and documents, if any, in support of that
 charge. At the conclusion of each witness's direct testimony,  he  shall
 be made available for cross-examination. If the alleged violator intends
 to present a defense to the charges or to present evidence of mitigating
 circumstances,  the  alleged  violator shall do so after presentation of
 all the evidence in support  of  a  violation  of  presumptive  release,
 parole, conditional release or post-release supervision.
   (vii)  All  persons giving evidence at the revocation hearing shall be
 sworn before giving any testimony as provided by law.
   (viii) At the conclusion of the  hearing  the  presiding  officer  may
 sustain  any  or  all of the violation charges or may dismiss any or all
 violation charges. He may sustain a violation charge only if the  charge
 is  supported  by  [a  preponderance  of the evidence adduced] CLEAR AND
 CONVINCING EVIDENCE. CONDUCT THAT FORMED THE BASIS OF  AN  ARREST  SHALL
 NOT  FORM A BASIS OF A SUSTAINED PAROLE VIOLATION IF A COURT HAS ADJUDI-
 CATED THE MATTER WITH AN  ACQUITTAL,  ADJOURNMENT  IN  CONTEMPLATION  OF
 DISMISSAL, OR VIOLATION.
   (ix)  If  the  presiding  officer  is  not  satisfied that there is [a
 preponderance of] CLEAR  AND  CONVINCING  evidence  in  support  of  the
 violation,  he  shall  dismiss the violation, cancel the delinquency and
 restore the person to presumptive release, parole,  conditional  release
 or post-release supervision.
   (x)  If the presiding officer is satisfied that there is [a preponder-
 ance of]  CLEAR  AND  CONVINCING  evidence  that  the  alleged  violator
 violated  one  or more conditions of release in an important respect, he
 or she shall so find.  FOR EACH VIOLATION FOUND, OTHER THAN  ABSCONDING,
 THE  PRESIDING OFFICER SHALL DIRECT THAT NO EARNED TIME CREDITS SHALL BE
 AWARDED FOR THE THIRTY DAY  PERIOD  COMMENCING  FROM  THE  DATE  OF  THE
 SUSTAINED  VIOLATION.  FOR ANY ABSCONDING VIOLATION FOUND, THE PRESIDING
 OFFICER SHALL DIRECT THAT NO EARNED TIME CREDITS SHALL  BE  AWARDED  FOR
 THE  ENTIRE  TIME  PERIOD  DURING  WHICH  A  RELEASEE  WAS FOUND TO HAVE
 ABSCONDED FROM SUPERVISION.
   (XI) INCARCERATION SHALL NOT BE IMPOSED FOR ANY TIER 2 VIOLATION.
   (XII) For each violation [so] found, the  presiding  officer  may  (A)
 direct  that the [presumptive releasee, parolee, conditional releasee or
 person  serving  a  period  of  post-release  supervision]  RELEASEE  be
 restored  to  supervision;  (B)  as  an  alternative to reincarceration,
 direct the  [presumptive  releasee,  parolee,  conditional  releasee  or
 person  serving  a  period  of  post-release  supervision be placed in a
 parole transition facility for a period not to exceed one hundred eighty
 days and subsequent restoration to supervision] RELEASEE RECEIVE  RE-EN-
 TRY  SERVICES IN THE COMMUNITY FROM QUALIFIED NONPROFIT AGENCIES; OR (C)
 [in the case of presumptive releasees, parolees or  conditional  releas-
 ees,]  direct the violator's reincarceration [and fix a date for consid-
 eration by the board for re-release on presumptive release, or parole or
 conditional release, as the case may be; or (D) in the case  of  persons
 released  to a period of post-release supervision, direct the violator's
 reincarceration up to the balance of the remaining  period  of  post-re-
 lease  supervision,  not to exceed five years; provided, however, that a
 defendant serving a term of post-release supervision for a conviction of
 a felony sex offense defined in section 70.80 of the penal  law  may  be
 subject  to  a  further  period of imprisonment up to the balance of the
 remaining period of post-release supervision], SUBJECT TO THE  FOLLOWING
 LIMITATIONS:  (1)  FOR ABSCONDING, WHICH IS DEFINED AS FAILING TO NOTIFY
 HIS OR HER COMMUNITY SUPERVISION OFFICER OF A CHANGE IN RESIDENCE  WILL-

 A. 5493--B                         12
 
 FULLY  FOR  THE  PURPOSE OF PERMANENTLY AVOIDING SUPERVISION; FAILURE TO
 MAKE OFFICE OR WRITTEN REPORTS AS DIRECTED WILLFULLY FOR THE PURPOSE  OF
 PERMANENTLY  AVOIDING  SUPERVISION; AND LEAVING THE STATE OF NEW YORK OR
 ANY OTHER STATE TO WHICH THE RELEASEE IS RELEASED OR TRANSFERRED, OR ANY
 AREA DEFINED IN WRITING BY HIS PAROLE OFFICER, WITHOUT PERMISSION, WILL-
 FULLY  FOR  THE PURPOSE OF PERMANENTLY AVOIDING SUPERVISION, UP TO SEVEN
 DAYS REINCARCERATION MAY BE IMPOSED  FOR  THE  FIRST  VIOLATION,  UP  TO
 FIFTEEN  DAYS  REINCARCERATION  MAY BE IMPOSED FOR THE SECOND VIOLATION,
 AND UP TO THIRTY DAYS REINCARCERATION MAY BE IMPOSED FOR  THE  THIRD  OR
 ANY  SUBSEQUENT VIOLATION; (2) FOR ALL OTHER TIER 1 VIOLATIONS NO PERIOD
 OF REINCARCERATION MAY BE IMPOSED FOR THE FIRST AND SECOND SUBSTANTIATED
 TECHNICAL VIOLATIONS FOR WHICH INCARCERATION MAY BE IMPOSED; UP TO SEVEN
 DAYS REINCARCERATION MAY BE IMPOSED FOR THE THIRD SUBSTANTIATED  TECHNI-
 CAL VIOLATION FOR WHICH INCARCERATION MAY BE IMPOSED; UP TO FIFTEEN DAYS
 REINCARCERATION  MAY  BE  IMPOSED FOR THE FOURTH SUBSTANTIATED TECHNICAL
 VIOLATION FOR WHICH INCARCERATION MAY BE  IMPOSED;  UP  TO  THIRTY  DAYS
 REINCARCERATION  MAY  BE IMPOSED FOR THE FIFTH AND SUBSEQUENT SUBSTANTI-
 ATED TECHNICAL VIOLATIONS FOR WHICH INCARCERATION MAY  BE  IMPOSED;  AND
 (3)  FOR NON-TECHNICAL VIOLATIONS, UP TO NINETY DAYS REINCARCERATION MAY
 BE IMPOSED. IF A WARRANT WAS EXECUTED PURSUANT TO SUBPARAGRAPH  (IV)  OF
 PARAGRAPH  (A)  OF THIS SUBDIVISION AND THE PERSON WAS DETAINED PURSUANT
 TO SUCH SUBPARAGRAPH PENDING PRELIMINARY  OR  REVOCATION  HEARINGS,  ANY
 PERIOD  OF  REINCARCERATION  IMPOSED PURSUANT TO THIS PARAGRAPH SHALL BE
 COUNTED FROM THE DATE OF THE EXECUTION OF THE WARRANT. IF A WARRANT  WAS
 EXECUTED PURSUANT TO SUBPARAGRAPH (IV) OF PARAGRAPH (A) OF THIS SUBDIVI-
 SION  BUT  A  CRIMINAL  COURT RELEASED THE PERSON PENDING PRELIMINARY OR
 REVOCATION HEARINGS, ANY PERIOD OF REINCARCERATION IMPOSED  PURSUANT  TO
 THIS  PARAGRAPH SHALL BE COUNTED FROM THE DATE OF ISSUANCE OF A DETERMI-
 NATION AFTER A FINAL HEARING THAT THE PERSON HAS VIOLATED  ONE  OR  MORE
 CONDITIONS  OF  COMMUNITY SUPERVISION, AND THE TIME BETWEEN EXECUTION OF
 THE WARRANT AND RELEASE OF THE PERSON PENDING PRELIMINARY OR  REVOCATION
 HEARINGS SHALL COUNT TOWARD THE PERIOD OF REINCARCERATION IMPOSED PURSU-
 ANT  TO THIS PARAGRAPH. IF A RELEASEE IS COMMITTED TO THE CUSTODY OF THE
 SHERIFF PURSUANT TO ARTICLE FIVE HUNDRED THIRTY OF THE  CRIMINAL  PROCE-
 DURE LAW, ANY TIME THE PERSON SPENT CONFINED IN JAIL SHALL COUNT TOWARDS
 ANY PERIOD OF REINCARCERATION IMPOSED PURSUANT TO THIS PARAGRAPH. IN ALL
 CASES,  THE PRESIDING OFFICER SHALL IMPOSE THE LEAST RESTRICTIVE REASON-
 ABLE SANCTION. ANY PERIODS OF REINCARCERATION SHALL RUN CONCURRENTLY  IF
 MORE  THAN  ONE VIOLATION IS ADJUDICATED. IF A PERIOD OF REINCARCERATION
 IS IMPOSED PURSUANT TO THIS PARAGRAPH, THE RELEASEE  SHALL  BE  RELEASED
 FROM  CUSTODY UPON EXPIRATION OF THE PERIOD OR THE END OF THE RELEASEE'S
 PERIOD OF COMMUNITY SUPERVISION, WHICHEVER SHALL BE  SOONER.    For  the
 violator serving an indeterminate sentence who while re-incarcerated has
 not  been  found by the department to have committed a serious discipli-
 nary infraction, such violator shall be re-released on the date fixed at
 the revocation  hearing.  For  the  violator  serving  an  indeterminate
 sentence  who has been found by the department to have committed a seri-
 ous disciplinary infraction while re-incarcerated, the department  shall
 refer  the  violator  to  the  board for consideration for re-release to
 community supervision. Upon  such  referral  the  board  may  waive  the
 personal  interview  between  a  member  or members of the board and the
 violator to determine the suitability  for  re-release  when  the  board
 directs  that  the  violator  be re-released upon expiration of the time
 assessment. The board shall retain the authority  to  suspend  the  date
 fixed  for  re-release  based  on the violator's commission of a serious
 disciplinary infraction and shall in such case require a personal inter-

 A. 5493--B                         13
 
 view be conducted within a reasonable time between a panel of members of
 the board and the violator to determine suitability for  re-release.  If
 an interview is required, the board shall notify the violator in advance
 of  the date and time of such interview in accordance with the rules and
 regulations of the board.
   [(xi)] (XIII) If the presiding officer  sustains  any  violations,  he
 must  prepare  a  written statement, to be made available to the alleged
 violator and his counsel, indicating the evidence relied  upon  and  the
 reasons for revoking presumptive release, parole, conditional release or
 post-release supervision, and for the disposition made.
   [(xii)]  (XIV)  If  at  any  time  during  a revocation proceeding the
 alleged violator, his or her counsel, or an employee of  the  department
 contends,  or  if it reasonably appears to the hearing officer, that the
 alleged violator is an incapacitated person as that term is  defined  in
 subdivision  one  of section 730.10 of the criminal procedure law and no
 judicial determination has been made that the  alleged  violator  is  an
 incapacitated  person,  the  revocation  proceeding shall be temporarily
 stayed until the superior court determines whether or not the person  is
 fit  to  proceed.  The matter shall be promptly referred to the superior
 court for determination of the alleged violator's fitness to proceed  in
 a  manner consistent with the provisions of article seven hundred thirty
 of the criminal procedure law, provided however that the superior  court
 shall immediately appoint counsel for any unrepresented alleged violator
 eligible  for appointed counsel under subparagraph (v) of THIS paragraph
 [(f) of subdivision three of section two hundred  fifty-nine-i  of  this
 chapter].  The court shall decide whether or not the alleged violator is
 incapacitated within thirty days of the referral from the hearing  offi-
 cer.  If  the court determines that the alleged violator is not an inca-
 pacitated person, the court shall order that the matter be  returned  to
 the  board  of parole for continuation and disposition of the revocation
 proceeding. If the court determines that  the  alleged  violator  is  an
 incapacitated  person  and  if no felony charges are pending against the
 alleged violator, the court shall issue a  final  order  of  observation
 committing  such  person  to  the  custody of the commissioner of mental
 health or the commissioner of developmental disabilities  for  care  and
 treatment  in  an  appropriate  institution  in a manner consistent with
 subdivision one of section 730.40 of the criminal procedure  law.  If  a
 final order of observation has been issued pursuant to this section, the
 hearing  officer  shall dismiss the violation charges and such dismissal
 shall act as a bar to any further proceeding under this section  against
 the alleged violator for such violations. If felony criminal charges are
 pending at any time against an alleged violator who has been referred to
 superior  court  for  a fitness evaluation but before a determination of
 fitness has been made pursuant to this section, the court  shall  decide
 whether or not the alleged violator is incapacitated pursuant to article
 seven  hundred  thirty  of the criminal procedure law and the revocation
 proceeding shall be held  in  abeyance  until  such  decision  has  been
 reached.  The  hearing  officer  shall adopt the capacity finding of the
 court and either terminate the revocation process if an order of  obser-
 vation has been made by the court or proceed with the revocation hearing
 if  the  alleged  violator  has  been  found  not to be an incapacitated
 person.
   § 7. Section 259-i of the executive law is amended  by  adding  a  new
 subdivision 9 to read as follows:
   9.  THE BOARD SHALL PROMULGATE RULES AND REGULATIONS TO FACILITATE THE
 PRESENCE OF NONPROFIT SERVICE PROVIDERS ABLE TO OFFER RELEVANT  COMMUNI-

 A. 5493--B                         14

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