S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6263
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              April 10, 2023
                                ___________
 
 Introduced  by  Sen.  WEIK  --  read twice and ordered printed, and when
   printed to be committed to the Committee on Crime Victims,  Crime  and
   Correction
 
 AN  ACT  to  amend  the  executive law and the penal law, in relation to
   providing for the return of  persons  to  custody  for  violations  of
   conditions  of  presumptive  release,  parole,  conditional release or
   post-release supervision; and to repeal  certain  provisions  of  such
   laws relating thereto
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivisions 5, 6, 7, and 8 of section 259 of the executive
 law are REPEALED.
   § 2. Subdivision 4 of section 70.40 of the penal law is REPEALED.
   § 3. Subdivision 3 of section 70.40 of the penal law,  as  amended  by
 chapter 427 of the laws of 2021, is amended 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
 [releasee's  appearance in response to a notice of violation or the date
 of the execution of a warrant,  whichever  is  earlier]  RETURN  OF  THE
 PERSON  TO AN INSTITUTION UNDER THE JURISDICTION OF THE STATE DEPARTMENT
 OF CORRECTIONS AND COMMUNITY SUPERVISION.
   (b) When a person is alleged 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 [releasee's appear-

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD10728-01-3
              

 S. 6263                             2

 ance in response to a notice of violation or the date of  the  execution
 of a warrant, whichever is earlier] RETURN OF THE PERSON TO THE INSTITU-
 TION  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  THE  DEPARTMENT.  UPON  SUCH  RETURN, THE PERSON SHALL
 RESUME SERVICE OF HIS OR HER SENTENCE.  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  [execution
 of  a  warrant pursuant to paragraph (a) of subdivision three of section
 two hundred fifty-nine-i of the executive law] DELINQUENCY 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. Paragraph (d) of subdivision 5 of section 70.45 of the penal law,
 as amended by chapter 427 of the laws of 2021, 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.  [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 assess-
 ment 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 preliminary or final revo-
 cation 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.
 S. 6263                             3

 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]  IN
 THE  EVENT  THE  BALANCE  OF THE REMAINING PERIOD OF POST-RELEASE SUPER-
 VISION 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 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-
 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.
   § 5. Subparagraphs (iv), (v), (vi), (vii) and (viii) of paragraph  (a)
 of subdivision 3 of section 259-i of the executive law are REPEALED.
   §  6.    Subparagraph (i) of paragraph (a) of subdivision 3 of section
 259-i of the executive law, as amended by chapter 427  of  the  laws  of
 2021, is amended 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 [probable] REASONABLE  cause  to
 believe  that  such  person has [committed a technical violation] LAPSED
 INTO CRIMINAL WAYS OR COMPANY, OR HAS VIOLATED ONE OR MORE CONDITIONS OF
 HIS OR HER presumptive release, parole, conditional release or  post-re-
 lease  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
 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  pursu-
 ant  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 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-
 S. 6263                             4

 sion was served upon the releasee, the releasee may move to vacate  such
 a sustained violation if the releasee can show by a preponderance of the
 evidence  that  the  notice  of violation was not properly served or the
 failure  to appear was otherwise excusable. If the parole officer having
 charge of a person under community supervision shall have probable cause
 to believe that such person has  committed  a  non-technical  violation,
 such  parole officer shall report such fact to a member of the board, or
 to any officer of the department designated by the board, and  thereupon
 a  notice of violation may be issued or] a warrant may be issued for the
 retaking of such person and  for  his  OR  HER  temporary  detention  in
 accordance  with the rules of the board[. However, if a releasee] UNLESS
 SUCH PERSON has been determined to be  currently  unfit  to  proceed  to
 trial  or is currently subject to a temporary or final order of observa-
 tion 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  pursu-
 ant  to  this  subparagraph] may be further regulated by rules and regu-
 lations of the department not inconsistent with this article. A  warrant
 issued pursuant to this section shall constitute sufficient authority to
 the  superintendent or other person in charge of any jail, penitentiary,
 lockup or detention pen to whom it is delivered  to  hold  in  temporary
 detention  the  person  named  therein  [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  adju-
 dicated  a  youthful offender or due to conduct related to cannabis that
 is lawful pursuant to the laws of  New  York];  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.
   §  7.  Subparagraphs (ix) and (x) of paragraph (c) of subdivision 3 of
 section 259-i of the executive law are REPEALED.
   § 8. Subparagraphs (i), (ii), (iii), and  (iv)  of  paragraph  (c)  of
 subdivision 3 of section 259-i of the executive law, as amended by chap-
 ter 427 of the laws of 2021, are amended to read as follows:
   (i)  [(A)  For  any  alleged technical violation for which a notice of
 violation was issued or a person was released on  recognizance  pursuant
 S. 6263                             5

 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,  within  ten
 days  of  the  issuance  of  the  order  of release on recognizance, the
 department shall afford such person a  preliminary  revocation  hearing]
 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.
   (ii) The preliminary presumptive release, parole, conditional  release
 or  post-release  supervision revocation hearing shall be [scheduled and
 held in a courthouse, in cooperation with the chief administrator of the
 courts and the chief administrator's designees, provided, however,  that
 if  such  a courthouse is not reasonably available for such hearing, the
 department may designate a suitable office  or  other  similar  facility
 that  is  not a correctional facility, detention center or local correc-
 tional facility for such hearing] CONDUCTED AT  AN  APPROPRIATE  CORREC-
 TIONAL  FACILITY,  OR  SUCH  OTHER PLACE REASONABLY CLOSE TO THE AREA IN
 WHICH THE ALLEGED VIOLATION OCCURRED AS THE BOARD MAY DESIGNATE.
   (iii) The alleged violator shall, [at the time a notice  of  violation
 is issued or at the time of a recognizance hearing] WITHIN THREE DAYS OF
 THE EXECUTION OF THE WARRANT, be given written notice of the time, place
 and  purpose of the [preliminary] hearing[, or if no preliminary hearing
 is required pursuant to this section, of the final  revocation  hearing]
 UNLESS HE OR SHE IS DETAINED PURSUANT TO THE PROVISIONS 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 WITH-
 IN FIVE DAYS OF THE EXECUTION OF THE WARRANT.  The  notice  shall  state
 what  conditions of [community] 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
 S. 6263                             6

 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 prelimi-
 nary 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 docu-
 ments having been collected or prepared that [are relevant  to]  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 stand-
 ard of proof at the preliminary hearing shall be [a preponderance of the
 evidence] PROBABLE CAUSE to  believe  that  the  [releasee]  PRESUMPTIVE
 RELEASEE,  PAROLEE,  CONDITIONAL  RELEASEE  OR PERSON UNDER POST-RELEASE
 SUPERVISION has violated one or more conditions of his or her  [communi-
 ty]  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 [prima facie evidence
 of  a  violation of a condition of community supervision] PROBABLE CAUSE
 for the purposes of this [subparagraph] SECTION.
   § 9. Paragraph (f) of subdivision 3 of section 259-i of the  executive
 law,  as  amended by chapter 427 of the laws of 2021, is amended to read
 as follows:
   (f) (i) [For any releasee charged with a violation  at  a  preliminary
 hearing:
   (A) If a court issued an order detaining a person after a finding by a
 preponderance  of  the  evidence  that such person committed a violation
 then within thirty days  of  the  finding  by  a  preponderance  of  the
 evidence  determination at the preliminary hearing, the department shall
 afford such person a final revocation hearing in person before a hearing
 officer designated by the department. Such  hearing  officer  shall  not
 have had any prior supervisory involvement over the alleged violator.
   (B)  (1)  If  a  notice  of  violation  was  issued or such person was
 released on recognizance the department shall within forty-five days  of
 the  issuance  of  the  notice  of  violation or the order of release on
 recognizance afford the person a final revocation hearing before a 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)] REVOCATION HEARINGS SHALL BE SCHEDULED TO BE HELD  WITHIN  NINETY
 DAYS  OF THE PROBABLE CAUSE DETERMINATION. However, if an alleged viola-
 tor requests and receives any postponement  of  his  or  her  revocation
 hearing,  or  consents to a postponed revocation proceeding initiated by
 S. 6263                             7
 
 the board, or if an alleged violator, by his OR  HER  actions  otherwise
 precludes  the prompt conduct of such proceedings, the time limit may be
 extended.
   (ii)  The revocation hearing shall be conducted by a presiding officer
 who may be a member or a hearing officer  designated  by  the  board  in
 accordance with rules of the board.
   (iii) Both the alleged violator and an attorney who has filed a notice
 of  appearance  on his or her behalf in accordance with the rules of the
 board of parole shall be given written notice of  the  date,  place  and
 time  of  the hearing [pursuant to subparagraph (ix) of paragraph (c) of
 this subdivision] AS SOON AS POSSIBLE BUT AT LEAST FOURTEEN  DAYS  PRIOR
 TO THE SCHEDULED DATE.
   (iv)  The alleged violator shall be given written notice of the rights
 enumerated in subparagraph (iii) of paragraph (c) of this subdivision as
 well as of his or her right to present mitigating evidence  relevant  to
 restoration to presumptive release, parole, conditional release or post-
 release supervision and his or her right to counsel.
   (v)  The  alleged violator shall [have a right to] BE PERMITTED 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 [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  acquit-
 tal,  adjournment in contemplation of dismissal, or violation] A PREPON-
 DERANCE OF THE EVIDENCE ADDUCED.
   (ix) If the presiding officer is not satisfied that  there  is  [clear
 and convincing] A PREPONDERANCE OF evidence in support of the violation,
 he  or  she  shall  dismiss  the  violation,  cancel the delinquency and
 S. 6263                             8

 restore the person to presumptive release, parole,  conditional  release
 or post-release supervision.
   (x)  If  the  presiding  officer is satisfied that there is [clear and
 convincing] A  PREPONDERANCE  OF  evidence  that  the  alleged  violator
 violated  one  or more conditions of release in an important respect, he
 or she shall so find.   [For  each  sustained  technical  violation  the
 presiding  officer  shall  direct  that  no earned time credits shall be
 awarded for the thirty day  period  commencing  from  the  date  of  the
 sustained  violation.  For any absconding violation found, the presiding
 officer shall direct that no earned time credits shall  be  awarded  for
 the  entire  time  period  during  which  a  releasee  was found to have
 absconded from supervision.
   (xi) Incarceration shall not be imposed for any  technical  violation,
 except as provided in subparagraph (xii) of this paragraph.
   (xii)]  For  each  violation  SO  found, the presiding officer may (A)
 direct that the [releasee] 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  [releasee  receive  re-entry services in the community from
 qualified nonprofit agencies; or] PRESUMPTIVE RELEASEE, PAROLEE,  CONDI-
 TIONAL  RELEASEE, OR PERSON SERVING A PERIOD OF POST-RELEASE SUPERVISION
 TO BE PLACED IN A PAROLE TRANSITION FACILITY FOR A PERIOD NOT TO  EXCEED
 ONE  HUNDRED  EIGHTY DAYS AND SUBSEQUENT RESTORATION TO SUPERVISION; (C)
 IN THE CASE OF PRESUMPTIVE RELEASEES, PAROLEES OR CONDITIONAL  RELEASEES
 direct the violator's reincarceration and [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  reincarcera-
 tion  up  to  the balance of the remaining period of post-release super-
 vision, not to exceed five years; provided, however,  that  a  defendant
 serving  a term of post-release supervision for a conviction of a felony
 sex offense defined in section 70.80 of the penal law may be subject  to
 a  further  period  of  imprisonment  up to the balance of the remaining
 period  of  post-release  supervision[,  shall   apply   for   technical
 violations; and the following limitations:
   (1) Absconding. For absconding up to seven days reincarceration may be
 imposed  for the first violation, up to fifteen days reincarceration may
 be imposed for the second violation, and up to thirty days  reincarcera-
 tion 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-
 S. 6263                             9

 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
 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.
   [(xiv)] (XI) If the presiding officer sustains  any  violations,  such
 officer  must  prepare  a written statement, to be made available to the
 alleged violator and his or her counsel, indicating the evidence  relied
 upon  and  the  reasons for revoking presumptive release, parole, condi-
 S. 6263                            10
 
 tional 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.
   [(xv)] (XII) If at any time during a revocation proceeding the alleged
 violator, his or her counsel, or an employee of the department contends,
 or  if  it  reasonably  appears to the hearing officer, that the alleged
 violator is an incapacitated person as that term is defined in  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.
 The court shall decide whether or not the alleged violator is  incapaci-
 tated  within  thirty  days of the referral from the hearing officer. If
 the court determines that the alleged violator is not  an  incapacitated
 person,  the  court shall order that the matter be returned to the board
 of parole for continuation and disposition of the revocation proceeding.
 If the court determines that the alleged violator  is  an  incapacitated
 person  and  if no felony charges are pending against the alleged viola-
 tor, 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 obser-
 vation 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 proceed-
 ing  shall be held in abeyance until such decision has been reached. The
 hearing officer shall adopt the capacity finding of the court and either
 terminate the revocation process if an order  of  observation  has  been
 made  by the court or proceed with the revocation hearing if the alleged
 violator has been found not to be an incapacitated person.
   § 10. Subdivision 4-a  of  section  259-i  of  the  executive  law  is
 REPEALED.
   § 11. Subdivision 9 of section 259-i of the executive law is REPEALED.
   § 12. This act shall take effect immediately.