LBD04981-04-1
S. 1144--A 2
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.
§ 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
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) ANY PERSON SUBJECT TO COMMUNITY SUPER-
VISION SHALL BE AWARDED EARNED TIME CREDITS. 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
IN COMPLIANCE WITH THE TERMS OF THEIR COMMUNITY SUPERVISION. 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. PERSONS SUBJECT TO
A SENTENCE WITH A MAXIMUM TERM OF LIFE IMPRISONMENT OR LIFETIME SUPER-
S. 1144--A 3
VISION SHALL NOT BE ELIGIBLE TO RECEIVE EARNED TIME CREDITS UNDER THIS
SECTION.
(B) AFTER A PERSON HAS BEGUN A PERIOD OF COMMUNITY SUPERVISION PURSU-
ANT TO THIS SECTION AND SECTION 70.45 OF THIS ARTICLE, SUCH PERIOD OF
COMMUNITY SUPERVISION SHALL BE REDUCED BY THIRTY DAYS FOR EVERY THIRTY
DAYS THAT SUCH PERSON DOES NOT VIOLATE A CONDITION OF AND REMAINS IN
COMPLIANCE WITH ALL CONDITIONS OF HIS OR HER COMMUNITY SUPERVISION,
PROVIDED, HOWEVER, THAT THE PERSON IS NOT SUBJECT TO ANY SENTENCE WITH A
MAXIMUM TERM OF LIFE IMPRISONMENT OR LIFETIME SUPERVISION. WHEN A PERSON
IS SUBJECT TO MORE THAN ONE PERIOD OF COMMUNITY SUPERVISION, THE
REDUCTION AUTHORIZED IN THIS SUBDIVISION SHALL BE APPLIED TO EVERY SUCH
PERIOD OF PAROLE OR CONDITIONAL RELEASE TO WHICH THE PERSON IS SUBJECT.
(C) RETROACTIVE EARNED TIME CREDITS SHALL BE AWARDED TO ELIGIBLE
PERSONS SUBJECT TO COMMUNITY SUPERVISION AT THE TIME THIS LEGISLATION
BECOMES EFFECTIVE, PROVIDED, HOWEVER, THAT THE MAXIMUM ALLOWABLE RETRO-
ACTIVE EARNED TIME CREDIT AWARDED SHALL NOT EXCEED A PERIOD OF TWO
YEARS. RETROACTIVE EARNED TIME CREDITS SHALL NOT BE AWARDED TO ANY
RELEASEE SERVING A TERM OF REINCARCERATION FOR A SUSTAINED PAROLE
VIOLATION AT THE TIME OF THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS
OF TWO THOUSAND TWENTY-ONE THAT ADDED THIS SUBDIVISION UNTIL THE
RELEASEE IS RETURNED TO COMMUNITY SUPERVISION. PERSONS SUBJECT TO A
SENTENCE WITH A MAXIMUM TERM OF LIFE IMPRISONMENT OR LIFETIME SUPER-
VISION SHALL NOT BE ELIGIBLE TO RECEIVE RETROACTIVE EARNED TIME CREDITS
UNDER THIS SECTION.
(D) IF A RELEASEE'S CURRENT PERIOD OF COMMUNITY SUPERVISION HAS BEEN
INTERRUPTED BY A PERIOD OF REINCARCERATION PRIOR TO THE EFFECTIVE DATE
OF THE CHAPTER OF THE LAWS OF TWO THOUSAND TWENTY-ONE THAT ADDED THIS
SUBDIVISION, NO EARNED TIME CREDITS SHALL BE AWARDED FOR SUCH PERIOD OF
REINCARCERATION. THE DEPARTMENT SHALL CALCULATE RETROACTIVE EARNED TIME
CREDITS WITHIN ONE YEAR AFTER THE BILL SHALL HAVE BECOME LAW AND SHALL
PRIORITIZE EARNED TIME CREDIT CALCULATIONS FOR RELEASEES WHOSE TERMS OF
COMMUNITY SUPERVISION ARE DUE TO TERMINATE BEFORE JUNE FIRST, TWO THOU-
SAND TWENTY-TWO.
(E) EARNED TIME CREDITS MAY BE WITHHELD OR REVOKED FOR THE THIRTY-DAY
PERIOD COMMENCING FROM THE DATE OF VIOLATIVE BEHAVIOR AS SUSTAINED AT A
FINAL REVOCATION HEARING, OR FOR THE PERIOD DURING WHICH A RELEASEE
ABSCONDED FROM SUPERVISION, AS SUSTAINED AT A FINAL REVOCATION HEARING.
EARNED TIME CREDITS MAY NOT BE EARNED AND SHALL BE SUSPENDED: (I) DURING
A PERIOD OF REINCARCERATION IMPOSED FOR ANY SUSTAINED VIOLATION; (II)
DURING THE PERIOD IN WHICH THE INDIVIDUAL HAS ABSCONDED; OR (III) PEND-
ING THE OUTCOME OF A PRELIMINARY OR FINAL REVOCATION HEARING. IF, AT THE
PRELIMINARY HEARING, THERE IS NO FINDING BY A PREPONDERANCE OF THE
EVIDENCE OF A VIOLATION OF A CONDITION OF RELEASE IN AN IMPORTANT
RESPECT OR A VIOLATION IS NOT SUSTAINED AT THE FINAL REVOCATION HEARING,
THEN THE INDIVIDUAL SHALL BE DEEMED TO HAVE BEEN IN COMPLIANCE WITH THE
TERMS OF RELEASE AND SHALL BE AWARDED EARNED TIME CREDITS FROM THE PERI-
OD IN WHICH THE ACCRUAL WAS SUSPENDED. IF A VIOLATION IS SUSTAINED, 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 OR CONVICTION RESULTED IN A TERM OF REINCARCERATION,
ON THE DAY THE RELEASEE IS RESTORED TO COMMUNITY SUPERVISION, WHICHEVER
IS LATER.
(F) AT LEAST EVERY ONE HUNDRED EIGHTY DAYS FROM THE FIRST DATE OF A
PERSON'S RELEASE TO COMMUNITY SUPERVISION, AND EVERY ONE HUNDRED EIGHTY
DAYS THEREAFTER, THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION
SHALL PROVIDE EACH PERSON ON COMMUNITY SUPERVISION A REPORT INDICATING
S. 1144--A 4
THE TOTAL EARNED TIME CREDITS RECEIVED, THE TOTAL EARNED TIME CREDITS
RECEIVED IN THE PRIOR ONE HUNDRED EIGHTY DAYS, THE TOTAL EARNED TIME
CREDITS WITHHELD, THE TOTAL EARNED TIME CREDITS WITHHELD IN THE PRIOR
ONE HUNDRED EIGHTY DAYS, THE TOTAL AMOUNT OF TIME REDUCED FROM THE
PERSON'S SENTENCE, AND THE PERSON'S EARLIEST RELEASE DATE BASED ON THE
AMOUNT OF EARNED TIME CREDITS RECEIVED. THE DEPARTMENT SHALL PROVIDE THE
REPORT IN WRITTEN OR ELECTRONIC FORM.
§ 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 A PRELIMINARY OR FINAL REVOCATION HEARING,
THE TIME ASSESSMENT IMPOSED FOLLOWING SUCH HEARING 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 COURT RELEASED THE PERSON PENDING A PRELIMI-
NARY OR FINAL REVOCATION HEARING, 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 IN
AN IMPORTANT RESPECT, AND SHALL INCLUDE THE TIME PERIOD BETWEEN
EXECUTION OF THE WARRANT AND RELEASE OF THE PERSON PENDING A PRELIMINARY
OR FINAL REVOCATION HEARING. IF A RELEASEE IS COMMITTED TO THE CUSTODY
OF THE SHERIFF PURSUANT TO ARTICLE FIVE HUNDRED THIRTY OF THE CRIMINAL
PROCEDURE LAW, THE TIME ASSESSMENT, IF ANY, SHALL INCLUDE ANY TIME THE
RELEASEE SPENT IN SUCH CUSTODY. 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
determination 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 aggregate maximum term of the sentence or sentences of impri-
S. 1144--A 5
sonment, 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 aggre-
gate maximum term of the sentence or sentences of imprisonment shall be
credited to the period 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 PENDING A RECOGNIZANCE
HEARING IN ACCORDANCE WITH THE RULES OF THE BOARD. IF THE PERSON HAS
INTENTIONALLY FAILED TO APPEAR AS DIRECTED IN RESPONSE TO A NOTICE OF
VIOLATION AND HAS INTENTIONALLY FAILED TO APPEAR VOLUNTARILY WITHIN
FORTY-EIGHT HOURS AFTER SUCH TIME AND THE PERSON WOULD NOT BE SUBJECT TO
INCARCERATION PURSUANT TO PARAGRAPH (F) OF THIS SUBDIVISION SHOULD THE
VIOLATION BE SUSTAINED AT A FINAL REVOCATION HEARING, NO WARRANT SHALL
ISSUE AND THE VIOLATION SHALL BE DEEMED SUSTAINED. NOTICE OF THAT DECI-
SION SHALL BE PROMPTLY SERVED UPON THE RELEASEE. IN SUCH CASE, WITHIN
ONE MONTH OF THE DATE THE NOTICE OF DECISION WAS SERVED UPON THE RELEAS-
EE, THE RELEASEE MAY MOVE TO VACATE SUCH A SUSTAINED VIOLATION IF THE
RELEASEE CAN SHOW BY A PREPONDERANCE OF THE EVIDENCE THAT THE NOTICE OF
VIOLATION WAS NOT PROPERLY SERVED OR THE FAILURE TO APPEAR WAS OTHERWISE
EXCUSABLE. IF THE PAROLE OFFICER HAVING CHARGE OF A PERSON UNDER COMMU-
NITY 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 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
S. 1144--A 6
WARRANT HAS BEEN ISSUED PURSUANT TO THIS SUBPARAGRAPH may be further
regulated by rules and regulations of the department not inconsistent
with this article. A warrant issued pursuant to this section shall
constitute sufficient authority to the superintendent or other person in
charge of any jail, penitentiary, lockup or detention pen to whom it is
delivered to hold in temporary detention the person named therein[;
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 author-
ity 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] PENDING A RECOGNIZANCE HEARING PURSUANT TO
SUBPARAGRAPH (IV) OF THIS PARAGRAPH. IT SHALL NOT BE A CONDITION OF
PAROLE NOR MAY A NOTICE OF VIOLATION OR A WARRANT BE ISSUED DUE TO A
RELEASEE BEING IN THE COMPANY OF OR FRATERNIZING WITH ANY PERSON THE
RELEASEE KNOWS HAS A CRIMINAL RECORD OR KNOWS HAS BEEN ADJUDICATED A
YOUTHFUL OFFENDER OR DUE TO CONDUCT RELATED TO CANNABIS THAT IS LAWFUL
PURSUANT TO THE LAWS OF NEW YORK.
(IV) NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW, UPON EXECUTION
OF A WARRANT ISSUED PURSUANT TO THIS SECTION FOR ANY RELEASEE ALLEGED TO
HAVE COMMITTED A VIOLATION OF A CONDITION OF RELEASE IN AN IMPORTANT
RESPECT IN THE CITY OF NEW YORK, THE AUTHORIZED OFFICER SHALL PRESENT
THE RELEASEE TO THE CRIMINAL COURT OF THE CITY OF NEW YORK OR THE
SUPREME COURT CRIMINAL TERM IN THE COUNTY WHERE THE VIOLATION IS ALLEGED
TO HAVE BEEN COMMITTED FOR A RECOGNIZANCE HEARING WITHIN TWENTY-FOUR
HOURS OF THE EXECUTION OF THE WARRANT. IF NO SUCH COURT OF RECORD IS
AVAILABLE TO CONDUCT ANY BUSINESS OF ANY TYPE WITHIN TWENTY-FOUR HOURS
OF THE EXECUTION OF THE WARRANT, THE RECOGNIZANCE HEARING SHALL COMMENCE
ON THE NEXT DAY SUCH A COURT IN THE JURISDICTION IS AVAILABLE TO CONDUCT
ANY BUSINESS OF ANY TYPE. FOR ANY RELEASEE ALLEGED TO HAVE COMMITTED A
VIOLATION OF A CONDITION OF RELEASE IN AN IMPORTANT RESPECT OUTSIDE OF
THE CITY OF NEW YORK, THE AUTHORIZED OFFICER SHALL PRESENT THE RELEASEE
TO A COUNTY COURT, DISTRICT COURT OR CITY COURT IN THE COUNTY OR CITY
WHERE THE VIOLATION IS ALLEGED TO HAVE BEEN COMMITTED FOR A RECOGNIZANCE
HEARING. IF NO SUCH COURT OF RECORD IS AVAILABLE TO CONDUCT ANY BUSI-
NESS OF ANY TYPE WITHIN TWENTY-FOUR HOURS OF THE EXECUTION OF THE
WARRANT, THE RECOGNIZANCE HEARING SHALL COMMENCE ON THE NEXT DAY SUCH
COURT IS AVAILABLE TO CONDUCT ANY BUSINESS OF ANY TYPE.
(V) AT A RECOGNIZANCE HEARING, THE DEPARTMENT SHALL HAVE THE BURDEN OF
DEMONSTRATING TO THE COURT THAT THE EXECUTED WARRANT WAS PROPERLY ISSUED
AND SERVED PURSUANT TO THIS SECTION. THE DEPARTMENT SHALL BE RESPONSIBLE
FOR PRESENTING INFORMATION TO THE COURT REGARDING THE ALLEGED VIOLATION
S. 1144--A 7
AND THE RELEASEE'S COMMUNITY SUPERVISION RECORD. IF THE ALLEGED
VIOLATION IS THE SUBJECT OF A PENDING CRIMINAL PROSECUTION, THE DEPART-
MENT SHALL COORDINATE WITH THE OFFICE OF THE DISTRICT ATTORNEY TO ENSURE
INFORMATION REGARDING THE ALLEGED VIOLATION AND THE RELEASEE'S COMMUNITY
SUPERVISION RECORD IS PRESENTED TO THE COURT. AT A RECOGNIZANCE HEARING,
THE DEPARTMENT SHALL HAVE THE BURDEN OF DEMONSTRATING TO THE COURT THAT
THE EXECUTED WARRANT WAS PROPERLY ISSUED AND SERVED PURSUANT TO THIS
SECTION. THE DEPARTMENT SHALL BE RESPONSIBLE FOR PRESENTING INFORMATION
TO THE COURT REGARDING THE ALLEGED VIOLATION AND THE RELEASEE'S COMMUNI-
TY SUPERVISION RECORD. IF THE ALLEGED VIOLATION IS THE SUBJECT OF A
PENDING CRIMINAL PROSECUTION, THE DEPARTMENT SHALL COORDINATE WITH THE
OFFICE OF THE DISTRICT ATTORNEY TO ENSURE INFORMATION REGARDING THE
ALLEGED VIOLATION AND THE RELEASEE'S COMMUNITY SUPERVISION RECORD IS
PRESENTED TO THE COURT.
(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 A PRELIMINARY OR FINAL
REVOCATION HEARING ONLY UPON A FINDING THAT THE RELEASEE CURRENTLY
PRESENTS A SUBSTANTIAL RISK OF WILLFULLY FAILING TO APPEAR AT THE
PRELIMINARY OR FINAL REVOCATION HEARINGS AND THAT NO NON-MONETARY CONDI-
TION OR COMBINATION OF CONDITIONS IN THE COMMUNITY WILL REASONABLY
ASSURE THE RELEASEE'S APPEARANCE AT THE PRELIMINARY OR FINAL REVOCATION
HEARING. OTHERWISE, THE COURT SHALL RELEASE THE RELEASEE ON THE LEAST
RESTRICTIVE NON-MONETARY CONDITIONS THAT WILL REASONABLY ASSURE THE
RELEASEE'S APPEARANCE AT SUBSEQUENT PRELIMINARY OR REVOCATION HEARINGS,
WITH A PRESUMPTION OF RELEASE ON RECOGNIZANCE. THE COURT SHALL EXPLAIN
ITS DECISION ON THE RECORD OR IN WRITING. IF NON-MONETARY CONDITIONS OF
RELEASE ARE IMPOSED, THE RELEASEE SHALL NOT BE REQUIRED TO PAY FOR ANY
PART OF THE COST OF SUCH CONDITIONS.
(VII) THE ALLEGED VIOLATOR SHALL HAVE A RIGHT TO REPRESENTATION BY
COUNSEL AT THE RECOGNIZANCE HEARING. IN ANY CASE, INCLUDING WHEN A COURT
IS CALLED UPON TO EVALUATE THE CAPACITY OF AN ALLEGED VIOLATOR TO
PARTICIPATE IN A RECOGNIZANCE PROCEEDING, WHERE SUCH PERSON IS FINAN-
CIALLY UNABLE TO RETAIN COUNSEL, THE COURT IN WHICH ANY CRIMINAL CASE
AGAINST THE INDIVIDUAL IS PENDING, OR IF THERE IS NO SUCH CASE PENDING,
THE CRIMINAL COURT OF THE CITY OF NEW YORK, THE COUNTY COURT OR DISTRICT
COURT IN THE COUNTY WHERE THE VIOLATION IS ALLEGED TO HAVE OCCURRED OR
WHERE THE HEARING IS TO BE HELD, SHALL ASSIGN COUNSEL IN ACCORDANCE WITH
THE COUNTY OR CITY PLAN FOR REPRESENTATION PLACED IN OPERATION PURSUANT
TO ARTICLE EIGHTEEN-B OF THE COUNTY LAW.
(VIII) IF THE VIOLATION CHARGE INVOLVES CONDUCT THAT WOULD CONSTI-
TUTE A NEW FELONY OR MISDEMEANOR OFFENSE, SUCH RECOGNIZANCE HEARING MAY
BE HELD AT THE SAME TIME AS A PROCEEDING PURSUANT TO ARTICLE FIVE
HUNDRED THIRTY OF THE CRIMINAL PROCEDURE LAW FOR ANY WARRANTS ISSUED BY
THE DEPARTMENT PRIOR TO SUCH PROCEEDING. IF AT THE PROCEEDING PURSUANT
TO ARTICLE FIVE HUNDRED THIRTY OF THE CRIMINAL PROCEDURE LAW THE COURT
IMPOSES BAIL ON THE NEW ALLEGED CRIMINAL OFFENSE OR COMMITS THE RELEASEE
TO THE CUSTODY OF THE SHERIFF PURSUANT TO ARTICLE FIVE HUNDRED THIRTY OF
THE CRIMINAL PROCEDURE LAW AND THE RELEASEE SECURES RELEASE BY PAYING
BAIL OR UNDER NON-MONETARY CONDITIONS OR BY OPERATION OF LAW, THEN THE
RELEASEE SHALL NOT BE DETAINED FURTHER BASED SOLELY ON THE WARRANT
ISSUED BY THE DEPARTMENT. IF THE DEPARTMENT ISSUES A WARRANT FOR A NON-
TECHNICAL VIOLATION FOR ALLEGED CRIMINAL CONDUCT THAT HAS ALREADY BEEN
S. 1144--A 8
THE SUBJECT OF A COURT'S ORDER PURSUANT TO ARTICLE FIVE HUNDRED THIRTY
OF THE CRIMINAL PROCEDURE LAW, THEN WITHIN TWENTY-FOUR HOURS OF
EXECUTION OF THE WARRANT THE RELEASEE SHALL BE PROVIDED A RECOGNIZANCE
HEARING PURSUANT TO THIS SUBPARAGRAPH, PROVIDED, HOWEVER, THAT IF NO
COURT AS DEFINED IN SUBPARAGRAPH (IV) OF THIS PARAGRAPH IS AVAILABLE TO
CONDUCT ANY BUSINESS OF ANY TYPE WITHIN TWENTY-FOUR HOURS OF THE
EXECUTION OF THE WARRANT, THEN THE RECOGNIZANCE HEARING SHALL COMMENCE
ON THE NEXT DAY SUCH COURT IS AVAILABLE TO CONDUCT ANY BUSINESS OF ANY
TYPE.
§ 5. Subparagraphs (i), (ii), (iii) and (iv) of paragraph (c) of
subdivision 3 of section 259-i of the executive law, subparagraphs (i)
and (ii) as amended by section 11 of part E of chapter 62 of the laws of
2003, and subparagraphs (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. THE HEARING SHALL BE SCHEDULED AND HELD IN A COURTHOUSE, IN COOPER-
ATION WITH THE CHIEF ADMINISTRATOR OF THE COURTS AND THE CHIEF ADMINIS-
TRATOR'S DESIGNEES, PROVIDED, HOWEVER, THAT IF SUCH A COURTHOUSE IS NOT
REASONABLY AVAILABLE FOR SUCH HEARING, THE DEPARTMENT MAY DESIGNATE A
SUITABLE OFFICE OR OTHER SIMILAR FACILITY THAT IS NOT A CORRECTIONAL
FACILITY, DETENTION CENTER OR LOCAL CORRECTIONAL FACILITY FOR SUCH HEAR-
ING.
(B) FOR ANY ALLEGED VIOLATION FOR WHICH A COURT ISSUED AN ORDER
DETAINING A PERSON, WITHIN FIVE DAYS OF THE ISSUANCE OF SUCH ORDER TO
DETAIN OR EXECUTION OF A WARRANT FOR THE VIOLATION, THE DEPARTMENT SHALL
AFFORD SUCH PERSON A PRELIMINARY HEARING BEFORE A HEARING OFFICER DESIG-
NATED BY THE DEPARTMENT. SUCH HEARING OFFICER SHALL NOT HAVE HAD ANY
PRIOR SUPERVISORY INVOLVEMENT OVER THE ALLEGED VIOLATOR. FOR ANY
ALLEGED VIOLATION FOR WHICH A PERSON WAS RELEASED ON RECOGNIZANCE, WITH-
IN TEN DAYS OF THE ISSUANCE OF THE ORDER OF RELEASE ON RECOGNIZANCE, THE
DEPARTMENT SHALL AFFORD SUCH PERSON A PRELIMINARY REVOCATION HEARING.
[(ii) The preliminary presumptive release, parole, conditional release
or post-release supervision revocation hearing shall be conducted at an
appropriate correctional facility, or such other place reasonably close
to the area in which the alleged violation occurred as the board may
designate.] (II) THE PRELIMINARY PRESUMPTIVE RELEASE, PAROLE, CONDI-
TIONAL RELEASE OR POST-RELEASE SUPERVISION REVOCATION HEARING SHALL BE
SCHEDULED AND HELD IN A COURTHOUSE, IN COOPERATION WITH THE CHIEF ADMIN-
ISTRATOR OF THE COURTS AND THE CHIEF ADMINISTRATOR'S DESIGNEES,
S. 1144--A 9
PROVIDED, HOWEVER, THAT IF SUCH A COURTHOUSE IS NOT REASONABLY AVAILABLE
FOR SUCH HEARING, THE DEPARTMENT MAY DESIGNATE A SUITABLE OFFICE OR
OTHER SIMILAR FACILITY THAT IS NOT A CORRECTIONAL FACILITY, DETENTION
CENTER OR LOCAL CORRECTIONAL FACILITY FOR SUCH HEARING.
(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] SUBPARAGRAPH.
(IX) IF THE HEARING OFFICER FINDS BY A PREPONDERANCE OF THE EVIDENCE
THAT SUCH PERSON HAS VIOLATED ONE OR MORE CONDITIONS OF COMMUNITY SUPER-
VISION IN AN IMPORTANT RESPECT, THE RELEASEE SHALL, AT THE CONCLUSION OF
THE PRELIMINARY HEARING BE GIVEN WRITTEN NOTICE OF THE TIME, PLACE AND
PURPOSE OF THE FINAL REVOCATION HEARING. THE NOTICE SHALL STATE WHAT
CONDITIONS OF COMMUNITY SUPERVISION ARE ALLEGED TO HAVE BEEN VIOLATED,
WHEN, WHERE AND IN WHAT MANNER; THAT SUCH PERSON SHALL HAVE THE RIGHT TO
REPRESENTATION BY COUNSEL AT ANY FINAL REVOCATION HEARING; THAT SUCH
PERSON SHALL HAVE THE RIGHT TO APPEAR AND SPEAK IN HIS OR HER OWN
BEHALF; THAT HE OR SHE SHALL HAVE THE RIGHT TO INTRODUCE LETTERS AND
DOCUMENTS; THAT HE OR SHE MAY PRESENT WITNESSES WHO CAN GIVE RELEVANT
INFORMATION TO THE HEARING OFFICER; THAT HE OR SHE HAS THE RIGHT TO
CONFRONT THE WITNESSES AGAINST HIM OR HER; AND THE NAME AND CONTACT
DETAILS FOR INSTITUTIONAL DEFENDERS OR ASSIGNED PRIVATE COUNSEL, AS
APPLICABLE. ANY ADDITIONAL DOCUMENTS HAVING BEEN COLLECTED OR PREPARED
S. 1144--A 10
THAT SUPPORT THE CHARGES SHALL BE DELIVERED TO THE RELEASEE. ADVERSE
WITNESSES MAY BE COMPELLED TO ATTEND THE FINAL REVOCATION HEARING UNLESS
THE PRISONER HAS BEEN CONVICTED OF A NEW CRIME WHILE ON SUPERVISION OR
UNLESS THE HEARING OFFICER FINDS GOOD CAUSE FOR THEIR NON-ATTENDANCE.
(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, subparagraph (x) as amended by section
38-f-1 of subpart A of part C of chapter 62 of the laws of 2011 and
subparagraph (xi) as amended by chapter 103 of the laws of 2021, 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 AT A PRELIMINARY HEARING:
(A) IF A COURT ISSUED AN ORDER DETAINING A PERSON AFTER A FINDING BY A
PREPONDERANCE OF THE EVIDENCE THAT SUCH PERSON COMMITTED A VIOLATION
THEN WITHIN THIRTY DAYS OF THE FINDING BY A PREPONDERANCE OF THE
EVIDENCE DETERMINATION AT THE PRELIMINARY HEARING, THE DEPARTMENT SHALL
AFFORD SUCH PERSON A FINAL REVOCATION HEARING IN PERSON BEFORE A HEARING
OFFICER DESIGNATED BY THE DEPARTMENT. SUCH HEARING OFFICER SHALL NOT
HAVE HAD ANY PRIOR SUPERVISORY INVOLVEMENT OVER THE ALLEGED VIOLATOR.
(B) (1) IF A NOTICE OF VIOLATION WAS ISSUED OR SUCH PERSON WAS
RELEASED ON RECOGNIZANCE THE DEPARTMENT SHALL WITHIN FORTY-FIVE DAYS OF
THE ISSUANCE OF THE NOTICE OF VIOLATION OR THE ORDER OF RELEASE ON
RECOGNIZANCE AFFORD THE PERSON A FINAL REVOCATION HEARING BEFORE A HEAR-
ING OFFICER DESIGNATED BY THE DEPARTMENT. SUCH HEARING OFFICER SHALL NOT
HAVE HAD ANY PRIOR SUPERVISORY INVOLVEMENT OVER THE ALLEGED VIOLATOR.
(2) THE FINAL REVOCATION HEARING SHALL NOT BE HELD AT A CORRECTIONAL
FACILITY, DETENTION CENTER OR LOCAL CORRECTIONAL FACILITY. SUCH HEARING
SHALL BE SCHEDULED AND HELD IN A COURTHOUSE, IN COOPERATION WITH THE
CHIEF ADMINISTRATOR OF THE COURTS AND THE CHIEF ADMINISTRATOR'S DESIG-
NEES, PROVIDED, HOWEVER, THAT IF SUCH A COURTHOUSE IS NOT REASONABLY
AVAILABLE FOR SUCH HEARING, THE DEPARTMENT MAY DESIGNATE A SUITABLE
OFFICE OR OTHER SIMILAR FACILITY THAT IS NOT A CORRECTIONAL FACILITY,
DETENTION CENTER OR LOCAL CORRECTIONAL FACILITY FOR SUCH HEARING.
(3) THE DEPARTMENT SHALL HAVE SIX MONTHS FROM THE DATE OF THE EFFEC-
TIVE DATE OF THE CHAPTER OF THE LAWS OF TWO THOUSAND TWENTY-ONE THAT
AMENDED THIS PARAGRAPH TO BEGIN TO HOLD SUCH HEARINGS AT ALLOWABLE
LOCATIONS.
(C) However, if an alleged violator requests and receives any post-
ponement of his OR HER revocation hearing, or consents to a postponed
revocation proceeding initiated by the board, or if an alleged violator,
by his actions otherwise precludes the prompt conduct of such
proceedings, the time limit may be extended.
(ii) The revocation hearing shall be conducted by a presiding officer
who may be a member or a hearing officer designated by the board in
accordance with rules of the board.
S. 1144--A 11
(iii) Both the alleged violator and an attorney who has filed a notice
of appearance on his OR HER behalf in accordance with the rules of the
board of parole shall be given written notice of the date, place and
time of the hearing [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 OR HER right to present mitigating evidence relevant to
restoration to presumptive release, parole, conditional release or post-
release supervision and his OR HER right to counsel.
(v) The alleged violator shall [be permitted] HAVE A RIGHT TO repre-
sentation by counsel at the revocation hearing. In any case, including
when a superior court is called upon to evaluate the capacity of an
alleged violator in a [parole] revocation proceeding, where such person
is financially unable to retain counsel, the criminal court of the city
of New York, the county court or district court in the county where the
violation is alleged to have occurred or where the hearing is held,
shall assign counsel in accordance with the county or city plan for
representation placed in operation pursuant to article eighteen-B of the
county law. He or she shall have the right to confront and cross-examine
adverse witnesses, unless there is good cause for their non-attendance
as determined by the presiding officer; present witnesses and documenta-
ry evidence in defense of the charges; and present witnesses and docu-
mentary evidence relevant to the question whether reincarceration of the
alleged violator is appropriate.
(vi) At the revocation hearing, the charges shall be read and the
alleged violator shall be permitted to plead not guilty, guilty, guilty
with explanation or to stand mute. As to each charge, evidence shall be
introduced through witnesses and documents, if any, in support of that
charge. At the conclusion of each witness's direct testimony, he OR SHE
shall be made available for cross-examination. If the alleged violator
intends to present a defense to the charges or to present evidence of
mitigating circumstances, the alleged violator shall do so after presen-
tation of all the evidence in support of a violation of presumptive
release, parole, conditional release or post-release supervision.
(vii) All persons giving evidence at the revocation hearing shall be
sworn before giving any testimony as provided by law.
(viii) At the conclusion of the hearing the presiding officer may
sustain any or all of the violation charges or may dismiss any or all
violation charges. He OR SHE may sustain a violation charge only if the
charge is supported by [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
ADJUDICATED THE MATTER WITH AN ACQUITTAL, ADJOURNMENT IN CONTEMPLATION
OF DISMISSAL, OR VIOLATION.
(ix) If the presiding officer is not satisfied that there is [a
preponderance of] CLEAR AND CONVINCING evidence in support of the
violation, he OR SHE shall dismiss the violation, cancel the delinquency
and restore the person to presumptive release, parole, conditional
release or post-release supervision.
(x) If the presiding officer is satisfied that there is [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 SUSTAINED TECHNICAL VIOLATION THE
PRESIDING OFFICER SHALL DIRECT THAT NO EARNED TIME CREDITS SHALL BE
S. 1144--A 12
AWARDED FOR THE THIRTY DAY PERIOD COMMENCING FROM THE DATE OF THE
SUSTAINED VIOLATION. FOR ANY ABSCONDING VIOLATION FOUND, THE PRESIDING
OFFICER SHALL DIRECT THAT NO EARNED TIME CREDITS SHALL BE AWARDED FOR
THE ENTIRE TIME PERIOD DURING WHICH A RELEASEE WAS FOUND TO HAVE
ABSCONDED FROM SUPERVISION.
(XI) INCARCERATION SHALL NOT BE IMPOSED FOR ANY TECHNICAL VIOLATION,
EXCEPT AS PROVIDED IN SUBPARAGRAPH (XII) OF THIS PARAGRAPH.
(XII) For each violation [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 FOR NON-TECHNICAL
VIOLATIONS fix a date for consideration by the board for re-release on
presumptive release, or parole or conditional release, as the case may
be; or (D) FOR NON-TECHNICAL VIOLATIONS in the case of persons released
to a period of post-release supervision, direct the violator's reincar-
ceration up to the balance of the remaining period of post-release
supervision, not to exceed five years; provided, however, that a defend-
ant serving a term of post-release supervision for a conviction of a
felony sex offense defined in section 70.80 of the penal law may be
subject to a further period of imprisonment up to the balance of the
remaining period of post-release supervision, SHALL APPLY FOR TECHNICAL
VIOLATIONS; AND THE FOLLOWING LIMITATIONS:
(1) ABSCONDING. FOR ABSCONDING UP TO SEVEN DAYS REINCARCERATION MAY
BE IMPOSED FOR THE FIRST VIOLATION, UP TO FIFTEEN DAYS REINCARCERATION
MAY BE IMPOSED FOR THE SECOND VIOLATION, AND UP TO THIRTY DAYS REINCAR-
CERATION MAY BE IMPOSED FOR THE THIRD OR ANY SUBSEQUENT VIOLATION;
(2) SANCTIONS FOR CERTAIN TECHNICAL VIOLATIONS. REINCARCERATION SHALL
NOT BE IMPOSED FOR A SUSTAINED TECHNICAL VIOLATION THAT INVOLVES: (A)
VIOLATING CURFEW; (B) ALCOHOL USE, PROVIDED HOWEVER THAT INCARCERATION
IS PERMISSIBLE FOR ALCOHOL USE IF THE PERSON IS SUBJECT TO COMMUNITY
SUPERVISION DUE TO A CONVICTION FOR DRIVING UNDER THE INFLUENCE OF ALCO-
HOL; (C) DRUG USE, PROVIDED, HOWEVER INCARCERATION IS PERMISSIBLE FOR
DRUG USE IF THE PERSON IS SUBJECT TO COMMUNITY SUPERVISION DUE TO A
CONVICTION FOR DRIVING UNDER THE INFLUENCE OF DRUGS; (D) FAILING TO
NOTIFY PAROLE OFFICER OF A CHANGE IN EMPLOYMENT OR PROGRAM STATUS; (E)
FAILING TO PAY SURCHARGES AND FEES; (F) OBTAINING A DRIVER'S LICENSE OR
DRIVING A CAR WITH A VALID DRIVER'S LICENSE, PROVIDED HOWEVER INCARCERA-
TION IS PERMISSIBLE IF EITHER ACTION IS EXPLICITLY PROHIBITED BY THE
PERSON'S CONVICTION; (G) FAILING TO NOTIFY COMMUNITY SUPERVISION OFFICER
OF CONTACT WITH ANY LAW ENFORCEMENT AGENCY, PROVIDED HOWEVER, INCARCERA-
TION IS PERMISSIBLE IF THE PERSON INTENDED TO HIDE ILLEGAL BEHAVIOR; (H)
FAILING TO OBEY OTHER SPECIAL CONDITIONS, PROVIDED HOWEVER THAT INCAR-
CERATION IS PERMISSIBLE IF THE FAILURE CANNOT BE ADDRESSED IN THE COMMU-
NITY AND ALL REASONABLE COMMUNITY-BASED MEANS TO ADDRESS THE FAILURE
HAVE BEEN EXHAUSTED; AND
(3) SANCTIONS FOR ALL OTHER TECHNICAL VIOLATIONS. FOR ALL OTHER TECH-
NICAL VIOLATIONS, NO PERIOD OF REINCARCERATION MAY BE IMPOSED FOR THE
FIRST AND SECOND SUBSTANTIATED TECHNICAL VIOLATIONS FOR WHICH INCARCERA-
TION MAY BE IMPOSED; UP TO SEVEN DAYS REINCARCERATION MAY BE IMPOSED FOR
S. 1144--A 13
THE THIRD SUBSTANTIATED TECHNICAL VIOLATION FOR WHICH INCARCERATION MAY
BE IMPOSED; UP TO FIFTEEN DAYS REINCARCERATION MAY BE IMPOSED FOR THE
FOURTH SUBSTANTIATED TECHNICAL VIOLATION FOR WHICH INCARCERATION MAY BE
IMPOSED; UP TO THIRTY DAYS REINCARCERATION MAY BE IMPOSED FOR THE FIFTH
AND SUBSEQUENT SUBSTANTIATED TECHNICAL VIOLATIONS FOR WHICH INCARCERA-
TION MAY BE IMPOSED.
(XIII) IF A WARRANT WAS EXECUTED PURSUANT TO SUBPARAGRAPH (IV) OF
PARAGRAPH (A) OF THIS SUBDIVISION BY A CRIMINAL COURT AND THE COURT
RELEASED THE PERSON PENDING A PRELIMINARY OR FINAL REVOCATION HEARING,
ANY PERIOD OF REINCARCERATION IMPOSED PURSUANT TO THIS PARAGRAPH SHALL
BE COUNTED FROM THE DATE OF ISSUANCE OF A DETERMINATION AFTER A FINAL
REVOCATION HEARING THAT THE PERSON HAS VIOLATED ONE OR MORE CONDITIONS
OF COMMUNITY SUPERVISION, AND THE TIME BETWEEN EXECUTION OF THE WARRANT
AND RELEASE OF THE PERSON PENDING A PRELIMINARY OR FINAL REVOCATION
HEARING SHALL COUNT TOWARD ANY PERIOD OF REINCARCERATION IMPOSED 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 A CORRECTIONAL FACILITY
OR LOCAL CORRECTIONAL FACILITY SHALL BE CREDITED TOWARD ANY PERIOD OF
REINCARCERATION IMPOSED PURSUANT TO THIS PARAGRAPH. IN ALL CASES, THE
PRESIDING OFFICER SHALL IMPOSE THE LEAST RESTRICTIVE REASONABLE SANC-
TION. ANY PERIODS OF REINCARCERATION IMPOSED PURSUANT TO THIS SECTION
SHALL RUN CONCURRENTLY IF MORE THAN ONE VIOLATION IS SUSTAINED. IF A
PERIOD OF REINCARCERATION IS IMPOSED PURSUANT TO THIS PARAGRAPH, THE
RELEASEE SHALL BE RELEASED FROM CUSTODY UPON EXPIRATION OF THE PERIOD OR
THE END OF THE RELEASEE'S PERIOD OF COMMUNITY SUPERVISION, WHICHEVER
SHALL BE SOONER. For the violator serving an indeterminate sentence who
while re-incarcerated has not been found by the department to have
committed a serious disciplinary infraction, such violator shall be
re-released on the date fixed at the revocation hearing. For the 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)] (XIV) If the presiding officer sustains any violations, [he or
she] SUCH OFFICER must prepare a written statement, to be made available
to the alleged violator and his or her counsel, indicating the evidence
relied upon and the reasons for revoking presumptive release, parole,
conditional release or post-release supervision, and for the disposition
made. The presiding officer shall also advise the alleged violator in a
written statement that revocation will result in loss of the right to
vote while he or she is serving the remainder of his or her felony
sentence in a correctional facility and that the right to vote will be
restored upon his or her release.
S. 1144--A 14
[(xii)] (XV) If at any time during a revocation proceeding the alleged
violator, his or her counsel, or an employee of the department contends,
or if it reasonably appears to the hearing officer, that the alleged
violator is an incapacitated person as that term is defined in subdivi-
sion one of section 730.10 of the criminal procedure law and no judicial
determination has been made that the alleged violator is an incapaci-
tated person, the revocation proceeding shall be temporarily stayed
until the superior court determines whether or not the person is fit to
proceed. The matter shall be promptly referred to the superior court for
determination of the alleged violator's fitness to proceed in a manner
consistent with the provisions of article seven hundred thirty of the
criminal procedure law, provided however that the superior court shall
immediately appoint counsel for any unrepresented alleged violator
eligible for appointed counsel under subparagraph (v) of THIS paragraph
[(f) of subdivision three of section two hundred fifty-nine-i of this
chapter]. The court shall decide whether or not the alleged violator is
incapacitated within thirty days of the referral from the hearing offi-
cer. If the court determines that the alleged violator is not an inca-
pacitated person, the court shall order that the matter be returned to
the board of parole for continuation and disposition of the revocation
proceeding. If the court determines that the alleged violator is an
incapacitated person and if no felony charges are pending against the
alleged violator, the court shall issue a final order of observation
committing such person to the custody of the commissioner of mental
health or the commissioner of developmental disabilities for care and
treatment in an appropriate institution in a manner consistent with
subdivision one of section 730.40 of the criminal procedure law. If a
final order of observation has been issued pursuant to this section, the
hearing officer shall dismiss the violation charges and such dismissal
shall act as a bar to any further proceeding under this section against
the alleged violator for such violations. If felony criminal charges are
pending at any time against an alleged violator who has been referred to
superior court for a fitness evaluation but before a determination of
fitness has been made pursuant to this section, the court shall decide
whether or not the alleged violator is incapacitated pursuant to article
seven hundred thirty of the criminal procedure law and the revocation
proceeding shall be held in abeyance until such decision has been
reached. The hearing officer shall adopt the capacity finding of the
court and either terminate the revocation process if an order of obser-
vation has been made by the court or proceed with the revocation hearing
if the alleged violator has been found not to be an incapacitated
person.
§ 7. Section 259-i of the executive law is amended by adding a new
subdivision 4-a to read as follows:
4-A. APPEALS FROM NON-TECHNICAL VIOLATION FINDINGS. (A) NOTWITHSTAND-
ING THE PROVISIONS OF ANY OTHER LAW, WHEN IN A VIOLATION PROCEEDING
BROUGHT PURSUANT TO THIS SECTION, ANY OF THE CHARGES SUSTAINED BY THE
HEARING OFFICER WOULD CONSTITUTE A MISDEMEANOR OR FELONY IF SUCH CHARGE
WERE OR HAD BEEN BROUGHT IN A CRIMINAL COURT, THE RELEASEE MAY, IN LIEU
OF AN ADMINISTRATIVE APPEAL TO THE BOARD PURSUANT TO SUBDIVISION FOUR OF
THIS SECTION, APPEAL SUCH DETERMINATION TO THE LOWEST LEVEL OF THE
FOLLOWING COURTS SERVING THE JURISDICTION IN WHICH THE HEARING WAS HELD
OR IN WHICH ANY SUCH SUSTAINED CONDUCT WAS ALLEGED TO HAVE OCCURRED:
CITY COURT, DISTRICT COURT, COUNTY COURT OR SUPREME COURT; PROVIDED,
HOWEVER, THAT IF ANY SUCH MISDEMEANOR OR FELONY CHARGE WAS PROSECUTED IN
S. 1144--A 15
ANY CITY, DISTRICT, COUNTY OR SUPREME COURT, SUCH APPEAL SHALL BE FILED
IN THAT COURT.
(B) THE APPEAL SHALL BE COMMENCED BY THE FILING OF A NOTICE OF APPEAL
IN THE SAME MANNER AS AN APPEAL TO THE APPELLATE DIVISION AS SET FORTH
IN PARAGRAPHS (A), (B), (D) AND (E) OF SUBDIVISION ONE AND SUBDIVISION
SIX OF SECTION 460.10 OF THE CRIMINAL PROCEDURE LAW. COUNSEL SHALL BE
ASSIGNED TO THE INDIVIDUAL, IF UNABLE TO AFFORD COUNSEL, BY THE COURT
BEFORE WHICH THE APPEAL IS TAKEN OR IS TO BE TAKEN. SUCH COURT MAY STAY
SUCH DETERMINATION PENDING THE APPEAL, IN A MANNER CONSISTENT WITH THE
PROVISIONS OF SECTION 460.50 OF THE CRIMINAL PROCEDURE LAW OR AS OTHER-
WISE AUTHORIZED. WITHIN THIRTY DAYS AFTER RECEIVING SUCH A NOTICE OF
APPEAL, THE BOARD SHALL SERVE ON THE INDIVIDUAL OR COUNSEL AND FILE WITH
SUCH COURT A TRANSCRIPT OF THE PROCEEDINGS BEFORE THE HEARING OFFICER
PREPARED PURSUANT TO PARAGRAPH (A) OF SUBDIVISION SIX OF THIS SECTION,
AND COPIES OF THE DOCUMENTS, PHOTOGRAPHS AND RECORDS CONSIDERED BY THE
HEARING OFFICER, AND PROVIDE ACCESS TO ANY OTHER EVIDENCE CONSIDERED BY
THE HEARING OFFICER WHO MADE SUCH DETERMINATION.
(C) THE APPEAL SHALL BE PERFECTED IN THE MANNER SET FORTH IN SECTION
460.70 OF THE CRIMINAL PROCEDURE LAW, OTHER PROVISIONS OF LAW GENERALLY
APPLICABLE TO CRIMINAL APPEALS, AND AUTHORIZED RULES IMPLEMENTING THIS
SECTION PROMULGATED BY THE CHIEF ADMINISTRATOR OF THE COURTS. THE
DEPARTMENT SHALL HAVE RESPONSIBILITY FOR PRESENTING THE DEPARTMENT'S
POSITION THROUGH ANY SUBMISSIONS TO THE COURT ON THE APPEAL. THE DEPART-
MENT SHALL COORDINATE WITH RELEVANT DISTRICT ATTORNEYS TO ENSURE APPRO-
PRIATE INFORMATION MAY BE PROVIDED TO THE COURT. THE DISTRICT ATTORNEY
OF THE JURISDICTION MAY APPEAR ON ANY SUCH APPEAL WITHOUT THE NECESSITY
OF A MOTION OR ORDER OF THE COURT.
(D) ON SUCH APPEAL, THE REVIEWING CITY, DISTRICT, COUNTY OR SUPREME
COURT SHALL CONSIDER DE NOVO THE ISSUES RAISED BY THE APPELLANT, INCLUD-
ING BUT NOT LIMITED TO THE FOLLOWING: (A) WHETHER ANY SUSTAINED
VIOLATION CHARGE SHOULD HAVE BEEN SUSTAINED; (B) WHETHER REDUCTION OR
DISMISSAL OF THE ALLEGED VIOLATION CHARGE OR CHARGES IS WARRANTED, IN
ACCORDANCE WITH THE PRINCIPLES SET FORTH IN SECTION 170.40 OR SECTION
210.40 OF THE CRIMINAL PROCEDURE LAW OR OTHERWISE; AND (C) WHETHER ANY
TIME ASSESSMENT AND OTHER AUTHORIZED SANCTION IMPOSED BY THE HEARING
OFFICER SHOULD BE VACATED, REDUCED OR, NOTWITHSTANDING ANY LAW, RULE OR
REGULATION TO THE CONTRARY, ORDERED TO RUN CONCURRENTLY WITH ANY OTHER
SENTENCE, TIME ASSESSMENT, OR PERIOD OF REINCARCERATION IMPOSED.
§ 8. 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.
§ 9. Severability. If any clause, sentence, paragraph, section or part
of this act shall be adjudged by any court of competent jurisdiction to
be invalid and after exhaustion of all further judicial review, the
judgment shall not affect, impair or invalidate the remainder thereof,
but shall be confined in its operation to the clause, sentence, para-
graph, section or part of this act directly involved in the controversy
in which the judgment shall have been rendered.
S. 1144--A 16
§ 10. This act shall take effect March 1, 2022; provided, however,
that the amendments made to subparagraph (xi) of paragraph (f) of subdi-
vision 3 of section 259-i of the executive law made by section six of
this act shall take effect on the same date and in the same manner as
such chapter of the laws of 2021 takes effect; provided however, within
six months of such effective date, the department of corrections and
community supervision in consultation with the board of parole shall
calculate and award all earned time credits pursuant to subdivision 4 of
section 70.40 of the penal law as added by section two of this act to
all persons serving a sentence subject to community supervision at the
time this legislation becomes law retroactive to the initial date such
person began his or her earliest period of community supervision prior
to any revocation of community supervision. Provided further, however,
within ten months of becoming law the department of corrections and
community supervision in consultation with the board of parole shall
identify all individuals incarcerated for a sustained violation of
community supervision and recalculate such individual's time assessment
in accordance with this act. Effective immediately, the addition, amend-
ment and/or repeal of any rule or regulation necessary for the implemen-
tation of this act on its effective date are authorized to be made and
completed on or before such effective date.
