S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4635
 
                        2025-2026 Regular Sessions
 
                             I N  S E N A T E
 
                             February 10, 2025
                                ___________
 
 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 law are REPEALED.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 Subdivision 4 of section 70.40 of the penal law is REPEALED.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]  SUCH  PERSON'S 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 delinquen-
 cy.  For  a  conditional release, such interruption shall continue until
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD08893-01-5
              

 S. 4635                             2
 
 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 THE INSTITUTION FROM WHICH SUCH PERSON  WAS  RELEASED  OR,  IF
 SUCH  PERSON  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 SUCH PERSON'S 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. 4635                             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
 SUCH PERSON'S PRESUMPTIVE RELEASE, PAROLE, CONDITIONAL RELEASE OR  POST-
 RELEASE  SUPERVISION,  such  parole  officer shall report such fact to a
 member of the board, or to any officer of the department  designated  by
 the  board,  and  thereupon [a written notice of violation may be issued
 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. 4635                             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] SUCH PERSON'S 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 obser-
 vation  pursuant  to article seven hundred thirty of the criminal proce-
 dure 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. 4635                             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  SUCH  ALLEGED VIOLATOR 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 WITHIN 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] SUCH PERSON'S own behalf; that  [he  or
 she]  SUCH  PERSON  shall  have the right to introduce letters and docu-
 S. 4635                             6

 ments; that [he or she] SUCH PERSON 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 institu-
 tional  defenders  or  assigned private counsel, as applicable]. Adverse
 witnesses may be compelled to attend the preliminary hearing unless  the
 prisoner  has  been  convicted  of  a  new crime while on supervision or
 unless the hearing officer finds good cause for their non-attendance. As
 far as practicable or feasible, any  additional  documents  having  been
 collected or prepared that [are relevant to] 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]  SUCH  PERSON'S  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] PROBA-
 BLE 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] SUCH  ALLEGED
 S. 4635                             7
 
 VIOLATOR'S  revocation  hearing,  or  consents to a postponed revocation
 proceeding initiated by the board, or if an alleged violator,  by  [his]
 SUCH  ALLEGED  VIOLATOR'S 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] SUCH ALLEGED VIOLATOR'S behalf in accord-
 ance 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] SUCH ALLEGED VIOLATOR'S right to present miti-
 gating evidence relevant to restoration to presumptive release,  parole,
 conditional  release  or  post-release supervision and [his or her] SUCH
 ALLEGED VIOLATOR'S 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] SUCH ALLEGED VIOLATOR shall have the right to
 confront and cross-examine adverse witnesses, unless there is good cause
 for their non-attendance as determined by the presiding officer; present
 witnesses and documentary evidence in defense of the charges; and  pres-
 ent  witnesses and documentary evidence relevant to the question whether
 reincarceration of the alleged violator is appropriate.
   (vi) At the revocation hearing, the charges  shall  be  read  and  the
 alleged  violator shall be permitted to plead not guilty, guilty, guilty
 with explanation or to stand mute. As to each charge, evidence shall  be
 introduced  through  witnesses and documents, if any, in support of that
 charge. At the conclusion of each witness's  direct  testimony,  [he  or
 she]  SUCH  ALLEGED  VIOLATOR shall be made available for cross-examina-
 tion. If the alleged violator intends to present a defense to the charg-
 es or to present  evidence  of  mitigating  circumstances,  the  alleged
 violator  shall  do so after presentation of all the evidence in support
 of a violation of presumptive release, parole,  conditional  release  or
 post-release supervision.
   (vii)  All  persons giving evidence at the revocation hearing shall be
 sworn before giving any testimony as provided by law.
   (viii) At the conclusion of the  hearing  the  presiding  officer  may
 sustain  any  or  all of the violation charges or may dismiss any or all
 violation charges. [He or she] SUCH  PRESIDING  OFFICER  may  sustain  a
 violation  charge only if the charge is supported by [clear and convinc-
 ing 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] A PREPONDERANCE OF THE EVIDENCE ADDUCED.
 S. 4635                             8
 
   (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] SUCH PRESIDING OFFICER shall dismiss the  violation,  cancel
 the  delinquency  and restore the person to presumptive release, parole,
 conditional release or post-release supervision.
   (x)  If  the  presiding  officer is satisfied that there is [clear and
 convincing] A  PREPONDERANCE  OF  evidence  that  the  alleged  violator
 violated  one or more conditions of release in an important respect, [he
 or she] SUCH PRESIDING OFFICER shall so find.  [For each sustained tech-
 nical 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
 S. 4635                             9

 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
 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.
 S. 4635                            10
 
   [(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] SUCH ALLEGED VIOLATOR'S counsel, indi-
 cating 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]  SUCH  ALLEGED  VIOLATOR  is
 serving  the  remainder  of  [his or her] SUCH ALLEGED VIOLATOR'S felony
 sentence in a correctional facility and that the right to vote  will  be
 restored upon [his or her] SUCH ALLEGED VIOLATOR'S release.
   [(xv)] (XII) If at any time during a revocation proceeding the alleged
 violator,  [his  or her] SUCH ALLEGED VIOLATOR'S counsel, or an employee
 of the department contends, or if it reasonably appears to  the  hearing
 officer,  that  the  alleged violator is an incapacitated person as that
 term is defined in subdivision one of section  730.10  of  the  criminal
 procedure  law  and  no  judicial  determination  has been made that the
 alleged violator is an incapacitated person, the  revocation  proceeding
 shall  be temporarily stayed until the superior court determines whether
 or not the person is fit  to  proceed.  The  matter  shall  be  promptly
 referred  to  the superior court for determination of the alleged viola-
 tor's fitness to proceed in a manner consistent with the  provisions  of
 article  seven  hundred  thirty  of the criminal procedure law, provided
 however that the superior court shall immediately  appoint  counsel  for
 any  unrepresented alleged violator eligible for appointed counsel under
 subparagraph (v) of this paragraph.  The court shall decide  whether  or
 not  the  alleged  violator  is  incapacitated within thirty days of the
 referral from the hearing officer. If  the  court  determines  that  the
 alleged  violator  is not an incapacitated person, the court shall order
 that the matter be returned to the board of parole for continuation  and
 disposition  of  the revocation proceeding. If the court determines that
 the alleged violator is an incapacitated person and if no felony charges
 are pending against the alleged violator, the court shall issue a  final
 order  of  observation  committing  such  person  to  the custody of the
 commissioner of mental health or the commissioner of developmental disa-
 bilities 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 deci-
 sion  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.