A05576 Summary:

BILL NOA05576A
 
SAME ASSAME AS S01144-A
 
SPONSORForrest
 
COSPNSRHunter, Richardson, Niou, Septimo, Mamdani, Burdick, Gonzalez-Rojas, Jackson, Gallagher, Kelles, Mitaynes, Meeks, Clark, Epstein, Simon, Hevesi, Barron, Anderson, Weprin, Taylor, O'Donnell, Quart, Rosenthal L, Abinanti, Carroll, Gottfried, Dickens, Aubry, Dinowitz, Bichotte Hermelyn, Cruz, Seawright, Paulin, Walker, Cook, Otis, Reyes, Bronson, Perry, Burgos, Vanel, Lupardo, Cahill, Lavine, Fahy, De La Rosa, Galef, Rodriguez, Barrett, Hyndman, Solages, Frontus, McDonald, Rivera JD, Davila, Pretlow, Steck, Kim, Joyner, Jean-Pierre, Pichardo, Rivera J, Darling, Fernandez
 
MLTSPNSRThiele, Zinerman
 
Amd §§259 & 259-i, Exec L; amd §§70.40 & 70.45, Pen L
 
Modifies the standard of evidence and certain other procedures when determining whether to revoke the community supervision of a person.
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A05576 Actions:

BILL NOA05576A
 
02/19/2021referred to correction
06/07/2021amend and recommit to correction
06/07/2021print number 5576a
06/08/2021reference changed to codes
06/09/2021reported referred to rules
06/09/2021reported
06/09/2021rules report cal.710
06/09/2021ordered to third reading rules cal.710
06/10/2021substituted by s1144a
 S01144 AMEND=A BENJAMIN
 01/07/2021REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION
 02/08/2021REPORTED AND COMMITTED TO FINANCE
 06/07/2021AMEND AND RECOMMIT TO FINANCE
 06/07/2021PRINT NUMBER 1144A
 06/09/2021COMMITTEE DISCHARGED AND COMMITTED TO RULES
 06/09/2021ORDERED TO THIRD READING CAL.1685
 06/10/2021PASSED SENATE
 06/10/2021DELIVERED TO ASSEMBLY
 06/10/2021referred to codes
 06/10/2021substituted for a5576a
 06/10/2021ordered to third reading rules cal.710
 06/10/2021passed assembly
 06/10/2021returned to senate
 09/17/2021DELIVERED TO GOVERNOR
 09/17/2021SIGNED CHAP.427
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A05576 Committee Votes:

CODES Chair:Dinowitz DATE:06/09/2021AYE/NAY:16/6 Action: Favorable refer to committee Rules
DinowitzAyeMorinelloNay
PretlowAyeGiglioNay
CookAyeMontesanoNay
CymbrowitzAyeReillyNay
O'DonnellAyeMikulinNay
LavineAyeTannousisNay
PerryAye
AbinantiAye
WeprinAye
HevesiAye
FahyAye
SeawrightAye
RosenthalAye
WalkerAye
VanelAye
CruzAye

RULES Chair:Gottfried DATE:06/09/2021AYE/NAY:20/8 Action: Favorable
HeastieExcusedBarclayNay
GottfriedAyeHawleyNay
NolanExcusedGiglioNay
WeinsteinAyeBlankenbushNay
PretlowAyeNorrisNay
CookExcusedMontesanoNay
GlickAyeRaNay
AubryAyeBrabenecNay
EnglebrightAye
DinowitzAye
ColtonAye
MagnarelliAye
PerryAye
PaulinAye
Peoples-StokesAye
BenedettoAye
LavineAye
LupardoAye
ZebrowskiAye
ThieleAye
BraunsteinAye
DickensAye
DavilaAye

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A05576 Floor Votes:

There are no votes for this bill in this legislative session.
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A05576 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A5576A               Revised 6/8/2021
 
SPONSOR: Forrest
  TITLE OF BILL: An act to amend the executive law and the penal law, in relation to revocation of community supervision   PURPOSE OR GENERAL IDEA OF BILL: This bill would help ensure that the NYS Department of Corrections and Community Supervision focuses resources on helping people successfully complete community supervision and, for technical violations and where otherwise avoidable, avoid a return to DOCCS custody.   SUMMARY OF SPECIFIC PROVISIONS: This bill would help facilitate the positive reintegration into society of people who are subject to community supervision (parole, presumptive release, conditional release, and post-release supervision) and to reduce the number of people held in jail and prison in New York. Specif- ically, it would: (1) allow people subject to community supervision to receive "earned time credits," to help encourage positive behavior by accelerating discharge from supervision; (2) raise the standard for parole officials to issue a notice of violation or warrant for someone accused of a parole violation, as well as the standard for determining a violation; (3) ensure that people who are alleged to have violated the terms of their community supervision receive a hearing before criminal court to determine whether they should be detained in jail pending adjudication of the alleged violation; (4) limit the circumstances under which people subject to community supervision may be re-incarcerated for violations of the terms of commu- nity supervision and capping the length of such re-incarceration for technical violations; (5) shorten the timeframe for adjudicatory hearings; and 1 (6) establish a new right of for a person on state supervision, found to have committed conduct that is equivalent to a misdemeanor or felony, and those sentenced for a sex offense who face potential return to pris- on for certain non-criminal violations, to have a de novo review of the parole hearing officer's finding and any time assessment by appeal to a criminal court; an appeal would thereafter be available to the Appellate Division.   JUSTIFICATION: New York re-incarcerates more people on parole for technical violations like missing an appointment with a parole officer, being late for curfew or testing positive for alcohol than any state in the country, with the exception of Illinois. Of people on parole whom New York sent back to prison in 2016, more than 6,300 or 6596 were re-incarcerated for a tech- nical parole violation. That's five times the national average. Only 1,318 or 1496 of parolees who were re-incarcerated were returned to prison because they were convicted of a new crime. The racial disparity is stark: black people are incarcerated in New York City jails for tech- nical parole violations at more than 12 times the rate of whites. There are approximately 35,000 people under active parole supervision in New York State who at almost any time can see their efforts to success- fully rejoin the workforce and reintegrate into their families and their communities disrupted by re-incarceration for a technical violation. This not only harms individual lives and families without commensurate public safety gains, but also drives up the population in the state prisons and local jails, wasting taxpayer money. Other states, such as Arkansas, Arizona, Georgia, Idaho, Kentucky, Louisiana, Mississippi, South Carolina and Utah, have implemented reforms similar to those proposed here, reducing community supervision populations and curbing violations. According to research by the federal Bureau of Justice Assistance Justice Reinvestment Initiative ("JRI") published by the Pew Charitable Trust, in eighteen states (AK, AR, AZ, DE, GA, ID, KS, KY, LA, MD, MO, MS, MT, NH, OR, SC, SD, UT) releasees can shorten their supervision periods by up to 30.days for 30 days of compliance.- Further, sixteen Justice Reinvestment states have put caps or guidelines on how long individuals can serve for a technical violation of supervision condi- tions (AK, AL, AR, GA, HI, ID, KS, LA, MD, MO, MS, MT, NC, OK, PA, UT). These reforms have worked. After South Carolina adopted graduated sanc- tions, compliance revocations decreased 46 percent, and recidivism rates for people under supervision dropped by a third. Meanwhile, crime rates dropped by over 20 percent. Similarly, after Louisiana implemented caps on jail or prison terms for first-time technical violations, length of incarceration declined by 281 days and 2296 fewer people under community supervision were sent back to prison for new crimes. After Missouri adopted earned time credits for people on probation and parole, super- vision terms dropped by 14 months, the supervised population fell 18 percent, average caseloads decreased 16 percent, and recidivism rates did not rise. Permitting people to earn accelerated discharge of community supervision for good behavior would responsibly shrink the number of people subject to such supervision. It would allow the state to concentrate finite resources on those who are most in need and who pose the greatest risk. New York can reduce jail and prison populations, support people in the reentry process, and promote safety and justice for families and commu- nities.   PRIOR LEGISLATIVE HISTORY: A. 5493-B (2019-20). FISCAL IMPLICATIONS: A single year of incarcera- tion for one individual costs the state approximately $60,000. With a significant fraction of parolees no longer incarcerated for technical violations, significant savings can be anticipated.   EFFECTIVE DATE: The bill would take effect on March 1, 2022.
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A05576 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         5576--A
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 19, 2021
                                       ___________
 
        Introduced  by  M.  of  A.  FORREST,  HUNTER, RICHARDSON, NIOU, SEPTIMO,
          MAMDANI,  BURDICK,   GONZALEZ-ROJAS,   JACKSON,   GALLAGHER,   KELLES,
          MITAYNES,  MEEKS,  CLARK,  EPSTEIN,  SIMON,  HEVESI, BARRON, ANDERSON,
          WEPRIN, TAYLOR, O'DONNELL,  QUART,  L. ROSENTHAL,  ABINANTI,  CARROLL,
          GOTTFRIED,   DICKENS,   AUBRY,   DINOWITZ,   BICHOTTE HERMELYN,  CRUZ,
          SEAWRIGHT, PAULIN, WALKER, COOK, OTIS, REYES, BRONSON, PERRY,  BURGOS,
          VANEL,  LUPARDO,  CAHILL,  LAVINE, FAHY, DE LA ROSA, GALEF, RODRIGUEZ,
          BARRETT, HYNDMAN, SOLAGES, FRONTUS,  McDONALD,  J. D. RIVERA,  DAVILA,
          PRETLOW,   STECK,   KIM,  JOYNER,  JEAN-PIERRE,  PICHARDO,  J. RIVERA,
          DARLING, FERNANDEZ -- Multi-Sponsored by -- M. of A. THIELE,  ZINERMAN
          --  read once and referred to the Committee on Correction -- committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee
 
        AN ACT to amend the executive law and the  penal  law,  in  relation  to
          revocation of community supervision
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Section 259 of the executive law is amended by adding  four
     2  new subdivisions 5, 6, 7, and 8 to read as follows:
     3    5.  "Releasee"  means an individual released from an institution under
     4  the jurisdiction of the  department  into  the  community  on  temporary
     5  release,  presumptive release, parole, conditional release, post-release
     6  supervision or medical parole.
     7    6. "Technical violation" means any conduct that violates  a  condition
     8  of community supervision in an important respect, other than the commis-
     9  sion of a new felony or misdemeanor offense under the penal law.
    10    7. "Non-technical violation" means: (a) the commission of a new felony
    11  or  misdemeanor  offense;  or (b) conduct by a releasee who is serving a
    12  sentence for an offense defined in article  130  of  the  penal  law  or
    13  section  255.26  or  255.27  of  such  law,  and such conduct violated a
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04981-05-1

        A. 5576--A                          2
 
     1  specific condition reasonably related to such  offense  and  efforts  to
     2  protect the public from the commission of a repeat of such offense.
     3    8. "Absconding" means intentionally avoiding supervision by failing to
     4  maintain contact or communication with the releasee's assigned community
     5  supervision  officer  or  area  bureau  office  and to notify his or her
     6  assigned community supervision officer or area bureau office of a change
     7  in residence, and reasonable efforts by the  assigned  community  super-
     8  vision officer to re-engage the releasee have been unsuccessful.
     9    §  2.  Subdivision 3 of section 70.40 of the penal law, paragraphs (a)
    10  and (b) as amended by section 127-h of subpart B of part C of chapter 62
    11  of the laws of 2011 and paragraph (c) as amended by chapter 478  of  the
    12  laws  of  1973,  is  amended and a new subdivision 4 is added to read as
    13  follows:
    14    3. Delinquency. (a) When a person is  alleged  to  have  violated  the
    15  terms  of  presumptive  release  or  parole by absconding, and the state
    16  board of parole has declared such person to be delinquent, the  declara-
    17  tion of delinquency shall interrupt the person's sentence as of the date
    18  of  the  delinquency  and  such  interruption  shall  continue until the
    19  [return of the person to an institution under the  jurisdiction  of  the
    20  state  department  of  corrections and community supervision] releasee's
    21  appearance in response to a notice of  violation  or  the  date  of  the
    22  execution of a warrant, whichever is earlier.
    23    (b)  When a person is alleged to have violated the terms of his or her
    24  conditional release or post-release supervision by  absconding  and  has
    25  been  declared  delinquent  by the parole board or the local conditional
    26  release commission having supervision over such person, the  declaration
    27  of delinquency shall interrupt the period of supervision or post-release
    28  supervision  as  of  the  date  of  the  delinquency.  For a conditional
    29  release, such interruption shall  continue  until  the  [return  of  the
    30  person to the institution from which he or she was released or, if he or
    31  she was released from an institution under the jurisdiction of the state
    32  department  of  corrections and community supervision, to an institution
    33  under the jurisdiction of that department. Upon such return, the  person
    34  shall  resume  service  of his or her sentence] releasee's appearance in
    35  response to a notice of violation or the date  of  the  execution  of  a
    36  warrant,  whichever  is earlier.   For a person released to post-release
    37  supervision, the provisions of  section  70.45  of  this  article  shall
    38  apply.
    39    (c) Any time spent by a person in custody from the time of [delinquen-
    40  cy]  execution  of  a  warrant  pursuant to paragraph (a) of subdivision
    41  three of section two hundred fifty-nine-i of the executive  law  to  the
    42  time  service of the sentence resumes shall be credited against the term
    43  or maximum term of the interrupted sentence[, provided:
    44    (i) that such custody was due to an arrest or surrender based upon the
    45  delinquency; or
    46    (ii) that such custody arose from an arrest on  another  charge  which
    47  culminated in a dismissal or an acquittal; or
    48    (iii)  that  such custody arose from an arrest on another charge which
    49  culminated in a conviction, but in such case, if a sentence of imprison-
    50  ment was imposed, the credit allowed shall be limited to the portion  of
    51  the  time spent in custody that exceeds the period, term or maximum term
    52  of imprisonment imposed for such conviction].
    53    4. Earned time credits. (a) Any person  subject  to  community  super-
    54  vision  shall  be awarded earned time credits. The calculation of earned
    55  time credit periods shall begin on the releasee's first day of community
    56  supervision and shall be awarded after each completed thirty day  period

        A. 5576--A                          3
 
     1  in  compliance  with  the terms of their community supervision. Any such
     2  awarded earned time credits  shall  be  applied  against  such  person's
     3  unserved  portion  of the maximum term, aggregate maximum term or period
     4  of post-release supervision for any current sentence. Persons subject to
     5  a  sentence  with a maximum term of life imprisonment or lifetime super-
     6  vision shall not be eligible to receive earned time credits  under  this
     7  section.
     8    (b)  After a person has begun a period of community supervision pursu-
     9  ant to this section and section 70.45 of this article,  such  period  of
    10  community  supervision  shall be reduced by thirty days for every thirty
    11  days that such person does not violate a condition  of  and  remains  in
    12  compliance  with  all  conditions  of  his or her community supervision,
    13  provided, however, that the person is not subject to any sentence with a
    14  maximum term of life imprisonment or lifetime supervision. When a person
    15  is subject to  more  than  one  period  of  community  supervision,  the
    16  reduction  authorized in this subdivision shall be applied to every such
    17  period of parole or conditional release to which the person is subject.
    18    (c) Retroactive earned time  credits  shall  be  awarded  to  eligible
    19  persons  subject  to  community supervision at the time this legislation
    20  becomes effective, provided, however, that the maximum allowable  retro-
    21  active  earned  time  credit  awarded  shall  not exceed a period of two
    22  years. Retroactive earned time credits  shall  not  be  awarded  to  any
    23  releasee  serving  a  term  of  reincarceration  for  a sustained parole
    24  violation at the time of the effective date of the chapter of  the  laws
    25  of  two  thousand  twenty-one  that    added  this subdivision until the
    26  releasee is returned to community  supervision.  Persons  subject  to  a
    27  sentence  with  a  maximum  term of life imprisonment or lifetime super-
    28  vision shall not be eligible to receive retroactive earned time  credits
    29  under this section.
    30    (d)  If  a releasee's current period of community supervision has been
    31  interrupted by a period of reincarceration prior to the  effective  date
    32  of  the  chapter  of the laws of two thousand twenty-one that added this
    33  subdivision, no earned time credits shall be awarded for such period  of
    34  reincarceration.  The department shall calculate retroactive earned time
    35  credits within one year after the bill shall have become law  and  shall
    36  prioritize  earned time credit calculations for releasees whose terms of
    37  community supervision are due to terminate before June first, two  thou-
    38  sand twenty-two.
    39    (e)  Earned time credits may be withheld or revoked for the thirty-day
    40  period commencing from the date of violative behavior as sustained at  a
    41  final  revocation  hearing,  or  for  the period during which a releasee
    42  absconded from supervision, as sustained at a final revocation  hearing.
    43  Earned time credits may not be earned and shall be suspended: (i) during
    44  a  period  of  reincarceration imposed for any sustained violation; (ii)
    45  during the period in which the individual has absconded; or (iii)  pend-
    46  ing the outcome of a preliminary or final revocation hearing. If, at the
    47  preliminary  hearing,  there  is  no  finding  by a preponderance of the
    48  evidence of   a violation of a condition  of  release  in  an  important
    49  respect or a violation is not sustained at the final revocation hearing,
    50  then  the individual shall be deemed to have been in compliance with the
    51  terms of release and shall be awarded earned time credits from the peri-
    52  od in which the accrual was suspended. If a violation is sustained,  the
    53  calculation  of  an  earned  time  credit period shall recommence on the
    54  thirty-first day after the date of the violative  behavior  or,  if  the
    55  sustained violation or conviction resulted in a term of reincarceration,

        A. 5576--A                          4
 
     1  on  the day the releasee is restored to community supervision, whichever
     2  is later.
     3    (f)  At  least every one hundred eighty days  from the first date of a
     4  person's release to community supervision, and every one hundred  eighty
     5  days thereafter, the department of corrections and community supervision
     6  shall  provide  each person on community supervision a report indicating
     7  the total earned time credits received, the total  earned  time  credits
     8  received  in  the  prior  one hundred eighty days, the total earned time
     9  credits withheld, the total earned time credits withheld  in  the  prior
    10  one  hundred  eighty  days,  the  total  amount of time reduced from the
    11  person's sentence, and the person's earliest release date based  on  the
    12  amount of earned time credits received. The department shall provide the
    13  report in written or electronic form.
    14    § 3. Paragraph (d) of subdivision 5 of section 70.45 of the penal law,
    15  as  amended by section 127-j of subpart B of part C of chapter 62 of the
    16  laws of 2011, is amended to read as follows:
    17    (d) When a person is alleged to have violated a condition of  post-re-
    18  lease  supervision  by  absconding and the department of corrections and
    19  community supervision has declared such person to be delinquent: (i) the
    20  declaration of delinquency shall interrupt the  period  of  post-release
    21  supervision;  (ii)  such interruption shall continue until the person is
    22  restored to post-release supervision; (iii) if the person is restored to
    23  post-release supervision without being returned  to  the  department  of
    24  corrections  and  community  supervision, any time spent in custody from
    25  the date of delinquency until restoration  to  post-release  supervision
    26  shall  first be credited to the maximum or aggregate maximum term of the
    27  sentence or sentences of imprisonment, but only to the extent authorized
    28  by subdivision three of section 70.40 of this article. Any time spent in
    29  custody solely pursuant to such  delinquency  after  completion  of  the
    30  maximum or aggregate maximum term of the sentence or sentences of impri-
    31  sonment  shall be credited to the period of post-release supervision, if
    32  any; and (iv) if the person is ordered returned  to  the  department  of
    33  corrections  and  community supervision, the person shall be required to
    34  serve the time  assessment  before  being  re-released  to  post-release
    35  supervision.  [In the event the balance of the remaining period of post-
    36  release supervision is six months or less, such time assessment  may  be
    37  up to six months unless a longer period is authorized pursuant to subdi-
    38  vision  one  of this section. The] If the person is detained pursuant to
    39  paragraph (a) of subdivision three of section two  hundred  fifty-nine-i
    40  of  the executive law pending a preliminary or final revocation hearing,
    41  the time assessment imposed following such hearing shall  commence  upon
    42  the  execution  of  the  warrant.  If a warrant was executed pursuant to
    43  paragraph (a) of subdivision three of section two  hundred  fifty-nine-i
    44  of  the executive law but a court released the person pending a prelimi-
    45  nary or final revocation hearing, the  time  assessment  shall  commence
    46  upon  the  issuance  of  a  determination after a final hearing that the
    47  person has violated one or more conditions of community  supervision  in
    48  an  important  respect,  and  shall  include  the  time  period  between
    49  execution of the warrant and release of the person pending a preliminary
    50  or final revocation hearing. If a releasee is committed to  the  custody
    51  of  the  sheriff pursuant to article five hundred thirty of the criminal
    52  procedure law, the time assessment, if any, shall include any  time  the
    53  releasee  spent  in  such  custody.  If a notice of violation was issued
    54  pursuant to subdivision three of section two hundred fifty-nine-i of the
    55  executive law, the time assessment shall commence upon the issuance of a
    56  determination after a final hearing that the person has violated one  or

        A. 5576--A                          5

     1  more  conditions  of  supervision.  While  serving  such assessment, the
     2  person shall not receive any good behavior allowance pursuant to section
     3  eight hundred three of the correction law.   Any time spent  in  custody
     4  from  the  date  of  delinquency  until  return  to  the  department  of
     5  corrections and community supervision shall first  be  credited  to  the
     6  maximum or aggregate maximum term of the sentence or sentences of impri-
     7  sonment,  but  only  to  the  extent  authorized by subdivision three of
     8  section 70.40 of this article. The maximum or aggregate maximum term  of
     9  the  sentence or sentences of imprisonment shall run while the person is
    10  serving such time  assessment  in  the  custody  of  the  department  of
    11  corrections  and community supervision. Any time spent in custody solely
    12  pursuant to such delinquency after completion of the maximum  or  aggre-
    13  gate  maximum term of the sentence or sentences of imprisonment shall be
    14  credited to the period of post-release supervision, if any.
    15    § 4. Subparagraph (i) of paragraph (a) of  subdivision  3  of  section
    16  259-i  of  the  executive  law, as amended by chapter 545 of the laws of
    17  2015, is amended and five new subparagraphs (iv), (v), (vi),  (vii)  and
    18  (viii) are added to read as follows:
    19    (i)  If  the parole officer having charge of a presumptively released,
    20  paroled or conditionally released person or a person released  to  post-
    21  release  supervision or a person received under the uniform act for out-
    22  of-state parolee supervision shall have [reasonable] probable  cause  to
    23  believe  that  such person has [lapsed into criminal ways or company, or
    24  has violated one or more conditions of his presumptive release,  parole,
    25  conditional  release  or post-release supervision] committed a technical
    26  violation, such parole officer shall report such fact to a member of the
    27  board, or to any officer of the department designated by the board,  and
    28  thereupon  a  written notice of violation may be issued according to the
    29  terms of subparagraph (iii) of paragraph (c) of  this  subdivision,  and
    30  shall be promptly served upon such person. If the releasee has failed to
    31  appear  as  directed in response to a notice of violation and has failed
    32  to appear voluntarily within forty-eight hours after such time  and  the
    33  person  would be subject to incarceration pursuant to subparagraph (xii)
    34  of paragraph (f) of this subdivision should the violation  be  sustained
    35  at  a final revocation hearing, a warrant may be issued for the retaking
    36  of such person and for his temporary detention  pending  a  recognizance
    37  hearing  in  accordance  with  the rules of the board. If the person has
    38  intentionally failed to appear as directed in response to  a  notice  of
    39  violation  and  has  intentionally  failed  to appear voluntarily within
    40  forty-eight hours after such time and the person would not be subject to
    41  incarceration pursuant to paragraph (f) of this subdivision  should  the
    42  violation  be  sustained at a final revocation hearing, no warrant shall
    43  issue and the violation shall be deemed sustained. Notice of that  deci-
    44  sion  shall  be  promptly served upon the releasee. In such case, within
    45  one month of the date the notice of decision was served upon the releas-
    46  ee, the releasee may move to vacate such a sustained  violation  if  the
    47  releasee  can show by a preponderance of the evidence that the notice of
    48  violation was not properly served or the failure to appear was otherwise
    49  excusable. If the parole officer having charge of a person under  commu-
    50  nity  supervision  shall have probable cause to believe that such person
    51  has committed a  non-technical  violation,  such  parole  officer  shall
    52  report  such  fact  to  a  member of the board, or to any officer of the
    53  department designated by the board, and thereupon a notice of  violation
    54  may be issued or a warrant may be issued for the retaking of such person
    55  and  for  his  temporary  detention  in accordance with the rules of the
    56  board [unless such person]. However, if a releasee has  been  determined

        A. 5576--A                          6
 
     1  to  be  currently unfit to proceed to trial or is currently subject to a
     2  temporary or final  order  of  observation  pursuant  to  article  seven
     3  hundred  thirty of the criminal procedure law, [in which case] no notice
     4  of  violation  or  warrant  shall be issued. The issuance of a notice of
     5  violation, service of a notice of violation,  service  of  a  notice  of
     6  decision, and the retaking and detention of any [such] person for whom a
     7  warrant  has  been  issued  pursuant to this subparagraph may be further
     8  regulated by rules and regulations of the  department  not  inconsistent
     9  with  this  article.  A  warrant  issued  pursuant to this section shall
    10  constitute sufficient authority to the superintendent or other person in
    11  charge of any jail, penitentiary, lockup or detention pen to whom it  is
    12  delivered  to  hold  in  temporary  detention the person named therein[;
    13  except that a warrant issued with respect  to  a  person  who  has  been
    14  released  on medical parole pursuant to section two hundred fifty-nine-r
    15  of this article and whose parole is being revoked pursuant to  paragraph
    16  (h)  of  subdivision four of such section shall constitute authority for
    17  the immediate placement of the parolee only  into  imprisonment  in  the
    18  custody  of  the  department  to  hold in temporary detention. A warrant
    19  issued pursuant to this section shall also constitute sufficient author-
    20  ity to the person in charge of a drug treatment campus,  as  defined  in
    21  subdivision  twenty  of  section  two of the correction law, to hold the
    22  person named therein, in accordance with the procedural requirements  of
    23  this section, for a period of at least ninety days to complete an inten-
    24  sive  drug  treatment program mandated by the board as an alternative to
    25  presumptive release or parole or conditional release revocation, or  the
    26  revocation of post-release supervision, and shall also constitute suffi-
    27  cient  authority for return of the person named therein to local custody
    28  to hold in temporary detention for further revocation proceedings in the
    29  event said person does not  successfully  complete  the  intensive  drug
    30  treatment  program.  The board's rules shall provide for cancellation of
    31  delinquency  and  restoration  to  supervision   upon   the   successful
    32  completion  of  the  program] pending a recognizance hearing pursuant to
    33  subparagraph (iv) of this paragraph.   It shall not be  a  condition  of
    34  parole  nor  may  a  notice of violation or a warrant be issued due to a
    35  releasee being in the company of or fraternizing  with  any  person  the
    36  releasee  knows  has  a  criminal record or knows has been adjudicated a
    37  youthful offender or due to conduct related to cannabis that  is  lawful
    38  pursuant to the laws of New York.
    39    (iv)  Notwithstanding  the provisions of any other law, upon execution
    40  of a warrant issued pursuant to this section for any releasee alleged to
    41  have committed a violation of a condition of  release  in  an  important
    42  respect  in  the  city of New York, the authorized officer shall present
    43  the releasee to the criminal court of  the  city  of  New  York  or  the
    44  supreme court criminal term in the county where the violation is alleged
    45  to  have  been  committed  for a recognizance hearing within twenty-four
    46  hours of the execution of the warrant. If no such  court  of  record  is
    47  available  to  conduct any business of any type within twenty-four hours
    48  of the execution of the warrant, the recognizance hearing shall commence
    49  on the next day such a court in the jurisdiction is available to conduct
    50  any business of any type. For any releasee alleged to have  committed  a
    51  violation   of a condition of release in an important respect outside of
    52  the city of New York, the authorized officer shall present the  releasee
    53  to  a  county  court, district court or city court in the county or city
    54  where the violation is alleged to have been committed for a recognizance
    55  hearing.  If no such court of record is available to conduct  any  busi-
    56  ness  of  any  type  within  twenty-four  hours  of the execution of the

        A. 5576--A                          7
 
     1  warrant, the recognizance hearing shall commence on the  next  day  such
     2  court is available to conduct any business of any type.
     3    (v) At a recognizance hearing, the department shall have the burden of
     4  demonstrating to the court that the executed warrant was properly issued
     5  and served pursuant to this section. The department shall be responsible
     6  for  presenting information to the court regarding the alleged violation
     7  and  the  releasee's  community  supervision  record.  If  the   alleged
     8  violation  is the subject of a pending criminal prosecution, the depart-
     9  ment shall coordinate with the office of the district attorney to ensure
    10  information regarding the alleged violation and the releasee's community
    11  supervision record is presented to the court. At a recognizance hearing,
    12  the department shall have the burden of demonstrating to the court  that
    13  the  executed  warrant  was  properly issued and served pursuant to this
    14  section. The department shall be responsible for presenting  information
    15  to the court regarding the alleged violation and the releasee's communi-
    16  ty  supervision  record.  If  the  alleged violation is the subject of a
    17  pending criminal prosecution, the department shall coordinate  with  the
    18  office  of  the  district  attorney  to ensure information regarding the
    19  alleged violation and the releasee's  community  supervision  record  is
    20  presented to the court.
    21    (vi) At a recognizance hearing, the court shall consider all available
    22  evidence of the releasee's employment, family and community ties includ-
    23  ing  length  of  residency  in  the community, history of reporting in a
    24  timely fashion to a parole or supervisory officer, and other  indicators
    25  of  stability.  At the conclusion of the recognizance hearing, the court
    26  may order that the releasee be detained pending a preliminary  or  final
    27  revocation  hearing  only  upon  a  finding  that the releasee currently
    28  presents a substantial risk  of  willfully  failing  to  appear  at  the
    29  preliminary or final revocation hearings and that no non-monetary condi-
    30  tion  or  combination  of  conditions  in  the community will reasonably
    31  assure the releasee's appearance at the preliminary or final  revocation
    32  hearing.  Otherwise,  the  court shall release the releasee on the least
    33  restrictive non-monetary conditions  that  will  reasonably  assure  the
    34  releasee's  appearance at subsequent preliminary or revocation hearings,
    35  with a presumption of release on recognizance.  The court shall  explain
    36  its  decision on the record or in writing. If non-monetary conditions of
    37  release are imposed, the releasee shall not be required to pay  for  any
    38  part of the cost of such conditions.
    39    (vii)  The  alleged  violator  shall have a right to representation by
    40  counsel at the recognizance hearing. In any case, including when a court
    41  is called upon to evaluate  the  capacity  of  an  alleged  violator  to
    42  participate  in  a  recognizance proceeding, where such person is finan-
    43  cially unable to retain counsel, the court in which  any  criminal  case
    44  against  the individual is pending, or if there is no such case pending,
    45  the criminal court of the city of New York, the county court or district
    46  court in the county where the violation is alleged to have  occurred  or
    47  where the hearing is to be held, shall assign counsel in accordance with
    48  the  county or city plan for representation placed in operation pursuant
    49  to article eighteen-B of the county law.
    50    (viii) If the violation charge involves    conduct that would  consti-
    51  tute  a new felony or misdemeanor offense, such recognizance hearing may
    52  be held at the same time  as  a  proceeding  pursuant  to  article  five
    53  hundred  thirty of the criminal procedure law for any warrants issued by
    54  the department prior to such proceeding. If at the  proceeding  pursuant
    55  to  article  five hundred thirty of the criminal procedure law the court
    56  imposes bail on the new alleged criminal offense or commits the releasee

        A. 5576--A                          8
 
     1  to the custody of the sheriff pursuant to article five hundred thirty of
     2  the criminal procedure law and the releasee secures  release  by  paying
     3  bail  or  under non-monetary conditions or by operation of law, then the
     4  releasee  shall  not  be  detained  further  based solely on the warrant
     5  issued by the department. If the department issues a warrant for a  non-
     6  technical  violation  for alleged criminal conduct that has already been
     7  the subject of a court's order pursuant to article five  hundred  thirty
     8  of  the  criminal  procedure  law,  then  within  twenty-four  hours  of
     9  execution of the warrant the releasee shall be provided  a  recognizance
    10  hearing  pursuant  to  this  subparagraph, provided, however, that if no
    11  court as defined in subparagraph (iv) of this paragraph is available  to
    12  conduct  any  business  of  any  type  within  twenty-four  hours of the
    13  execution of the warrant, then the recognizance hearing  shall  commence
    14  on  the  next day such court is available to conduct any business of any
    15  type.
    16    § 5. Subparagraphs (i), (ii), (iii)  and  (iv)  of  paragraph  (c)  of
    17  subdivision  3  of section 259-i of the executive law, subparagraphs (i)
    18  and (ii) as amended by section 11 of part E of chapter 62 of the laws of
    19  2003, and subparagraphs (iii) and (iv) as amended by section 1 of part E
    20  of chapter 56 of the laws of 2007, are amended and two new subparagraphs
    21  (ix) and (x) are added to read as follows:
    22    (i) [Within fifteen days after the warrant for retaking and  temporary
    23  detention has been executed, unless the releasee has been convicted of a
    24  new crime committed while under presumptive release, parole, conditional
    25  release  or  post-release  supervision, the board of parole shall afford
    26  the alleged presumptive release, parole, conditional release or post-re-
    27  lease supervision violator a preliminary  revocation  hearing  before  a
    28  hearing  officer designated by the board of parole. Such hearing officer
    29  shall not have had any prior supervisory involvement  over  the  alleged
    30  violator]  (A) For any alleged technical violation for which a notice of
    31  violation was issued or a person was released on  recognizance  pursuant
    32  to  subparagraph  (iv) of paragraph (a) of this subdivision, the depart-
    33  ment shall within ten days of the issuance of the notice of violation or
    34  the order of release on recognizance afford  the  person  a  preliminary
    35  revocation  hearing  before  a hearing officer designated by the depart-
    36  ment. Such hearing officer shall not  have  had  any  prior  supervisory
    37  involvement over the alleged violator. Such hearing shall not be held at
    38  a  correctional facility, detention center or local correctional facili-
    39  ty.  The hearing shall be scheduled and held in a courthouse, in cooper-
    40  ation with the chief administrator of the courts and the chief  adminis-
    41  trator's  designees, provided, however, that if such a courthouse is not
    42  reasonably available for such hearing, the department  may  designate  a
    43  suitable  office  or  other  similar facility that is not a correctional
    44  facility, detention center or local correctional facility for such hear-
    45  ing.
    46    (B) For any alleged violation  for  which  a  court  issued  an  order
    47  detaining  a  person,  within five days of the issuance of such order to
    48  detain or execution of a warrant for the violation, the department shall
    49  afford such person a preliminary hearing before a hearing officer desig-
    50  nated by the department. Such hearing officer shall  not  have  had  any
    51  prior  supervisory  involvement  over  the  alleged  violator.   For any
    52  alleged violation for which a person was released on recognizance, with-
    53  in ten days of the issuance of the order of release on recognizance, the
    54  department shall afford such person a preliminary revocation hearing.
    55    [(ii) The preliminary presumptive release, parole, conditional release
    56  or post-release supervision revocation hearing shall be conducted at  an

        A. 5576--A                          9

     1  appropriate  correctional facility, or such other place reasonably close
     2  to the area in which the alleged violation occurred  as  the  board  may
     3  designate.]  (ii)  The  preliminary  presumptive release, parole, condi-
     4  tional  release  or post-release supervision revocation hearing shall be
     5  scheduled and held in a courthouse, in cooperation with the chief admin-
     6  istrator  of  the  courts  and  the  chief  administrator's   designees,
     7  provided, however, that if such a courthouse is not reasonably available
     8  for  such  hearing,  the  department  may designate a suitable office or
     9  other similar facility that is not a  correctional  facility,  detention
    10  center or local correctional facility for such hearing.
    11    (iii)  The alleged violator shall, [within three days of the execution
    12  of the warrant] at the time a notice of violation is issued  or  at  the
    13  time  of  a  recognizance  hearing, be given written notice of the time,
    14  place and purpose of the  preliminary  hearing  [unless  he  or  she  is
    15  detained  pursuant  to  the provisions of subparagraph (iv) of paragraph
    16  (a) of this subdivision. In those instances, the alleged  violator  will
    17  be  given  written  notice of the time, place and purpose of the hearing
    18  within five days of the execution of the warrant], or if no  preliminary
    19  hearing  is  required  pursuant to this section, of the final revocation
    20  hearing.   The  notice  shall  state  what  conditions  of  [presumptive
    21  release,  parole,  conditional release or post-release] community super-
    22  vision are alleged to have been violated, and in what manner; that  such
    23  person  shall  have  the  right  to  appear  and speak in his or her own
    24  behalf; that he or she shall have the right  to  introduce  letters  and
    25  documents;  that  he  or she may present witnesses who can give relevant
    26  information to the hearing officer; that he or  she  has  the  right  to
    27  confront  the  witnesses against him or her; that such person shall have
    28  the right to representation by counsel  at  any  preliminary  and  final
    29  revocation  hearings; and the name and contact details for institutional
    30  defenders or assigned private counsel, as applicable. Adverse  witnesses
    31  may  be  compelled to attend the preliminary hearing unless the prisoner
    32  has been convicted of a new crime while on  supervision  or  unless  the
    33  hearing  officer  finds  good  cause for their non-attendance. As far as
    34  practicable or feasible, any additional documents having been  collected
    35  or prepared that [support] are relevant to the charge shall be delivered
    36  to the alleged violator.
    37    (iv)  [The  preliminary  hearing  shall  be scheduled to take place no
    38  later than fifteen days from the date of execution of the warrant.]  The
    39  standard of proof at the preliminary hearing shall be [probable cause] a
    40  preponderance of the evidence to believe that the [presumptive releasee,
    41  parolee,  conditional releasee or person under post-release supervision]
    42  releasee has violated one or more conditions of his or her  [presumptive
    43  release,  parole,  conditional release or post-release] community super-
    44  vision in an important respect. Proof of conviction of a crime committed
    45  while under supervision shall constitute [probable  cause]  prima  facie
    46  evidence  of a violation of a condition of community supervision for the
    47  purposes of this [section] subparagraph.
    48    (ix) If the hearing officer finds by a preponderance of  the  evidence
    49  that such person has violated one or more conditions of community super-
    50  vision in an important respect, the releasee shall, at the conclusion of
    51  the  preliminary  hearing be given written notice of the time, place and
    52  purpose of the final revocation hearing. The  notice  shall  state  what
    53  conditions  of  community supervision are alleged to have been violated,
    54  when, where and in what manner; that such person shall have the right to
    55  representation by counsel at any final  revocation  hearing;  that  such
    56  person  shall  have  the  right  to  appear  and speak in his or her own

        A. 5576--A                         10
 
     1  behalf; that he or she shall have the right  to  introduce  letters  and
     2  documents;  that  he  or she may present witnesses who can give relevant
     3  information to the hearing officer; that he or  she  has  the  right  to
     4  confront  the  witnesses  against  him  or her; and the name and contact
     5  details for institutional defenders  or  assigned  private  counsel,  as
     6  applicable.  Any  additional documents having been collected or prepared
     7  that support the charges shall be delivered  to  the  releasee.  Adverse
     8  witnesses may be compelled to attend the final revocation hearing unless
     9  the  prisoner  has been convicted of a new crime while on supervision or
    10  unless the hearing officer finds good cause for their non-attendance.
    11    (x) The alleged violator shall have a right to representation by coun-
    12  sel at the preliminary hearing. In any case, including when a  court  is
    13  called upon to evaluate the capacity of an alleged violator in a prelim-
    14  inary  proceeding,  where  such  person  is financially unable to retain
    15  counsel, the criminal court of the city of New York, the county court or
    16  district court in the county where the  violation  is  alleged  to  have
    17  occurred  or  where the hearing is held, shall assign counsel in accord-
    18  ance with the county or city plan for representation placed in operation
    19  pursuant to article eighteen-B of the county law.
    20    § 6. Paragraph (f) of subdivision 3 of section 259-i of the  executive
    21  law,  as  amended  by  section 11 of part E of chapter 62 of the laws of
    22  2003, subparagraph (v) as amended and subparagraph  (xii)  as  added  by
    23  chapter  545 of the laws of 2015, subparagraph (x) as amended by section
    24  38-f-1 of subpart A of part C of chapter 62 of  the  laws  of  2011  and
    25  subparagraph  (xi)  as  amended  by  chapter 103 of the laws of 2021, is
    26  amended to read as follows:
    27    (f) (i) [Revocation hearings shall be  scheduled  to  be  held  within
    28  ninety  days  of  the  probable  cause  determination]  For any releasee
    29  charged with a violation at a preliminary hearing:
    30    (A) If a court issued an order detaining a person after a finding by a
    31  preponderance of the evidence that such  person  committed  a  violation
    32  then  within  thirty  days  of  the  finding  by  a preponderance of the
    33  evidence determination at the preliminary hearing, the department  shall
    34  afford such person a final revocation hearing in person before a hearing
    35  officer  designated  by  the  department. Such hearing officer shall not
    36  have had any prior supervisory involvement over the alleged violator.
    37    (B) (1) If a notice  of  violation  was  issued  or  such  person  was
    38  released  on recognizance the department shall within forty-five days of
    39  the issuance of the notice of violation  or  the  order  of  release  on
    40  recognizance afford the person a final revocation hearing before a hear-
    41  ing officer designated by the department. Such hearing officer shall not
    42  have had any prior supervisory involvement over the alleged violator.
    43    (2)  The  final revocation hearing shall not be held at a correctional
    44  facility, detention center or local correctional facility.  Such hearing
    45  shall be scheduled and held in a courthouse,  in  cooperation  with  the
    46  chief  administrator  of the courts and the chief administrator's desig-
    47  nees, provided, however, that if such a  courthouse  is  not  reasonably
    48  available  for  such  hearing,  the  department may designate a suitable
    49  office or other similar facility that is not  a  correctional  facility,
    50  detention center or local correctional facility for such hearing.
    51    (3)  The  department shall have six months from the date of the effec-
    52  tive date of the chapter of the laws of  two  thousand  twenty-one  that
    53  amended  this  paragraph  to  begin  to  hold such hearings at allowable
    54  locations.
    55    (C) However, if an alleged violator requests and  receives  any  post-
    56  ponement  of  his  or her revocation hearing, or consents to a postponed

        A. 5576--A                         11
 
     1  revocation proceeding initiated by the board, or if an alleged violator,
     2  by  his  actions  otherwise  precludes  the  prompt  conduct   of   such
     3  proceedings, the time limit may be extended.
     4    (ii)  The revocation hearing shall be conducted by a presiding officer
     5  who may be a member or a hearing officer  designated  by  the  board  in
     6  accordance with rules of the board.
     7    (iii) Both the alleged violator and an attorney who has filed a notice
     8  of  appearance  on his or her behalf in accordance with the rules of the
     9  board of parole shall be given written notice of  the  date,  place  and
    10  time  of  the  hearing  [as  soon as possible but at least fourteen days
    11  prior to the scheduled date] pursuant to subparagraph (ix) of  paragraph
    12  (c) of this subdivision.
    13    (iv)  The alleged violator shall be given written notice of the rights
    14  enumerated in subparagraph (iii) of paragraph (c) of this subdivision as
    15  well as of his or her right to present mitigating evidence  relevant  to
    16  restoration to presumptive release, parole, conditional release or post-
    17  release supervision and his or her right to counsel.
    18    (v)  The  alleged violator shall [be permitted] have a right to repre-
    19  sentation by counsel at the revocation hearing. In any  case,  including
    20  when  a  superior  court  is  called upon to evaluate the capacity of an
    21  alleged violator in a [parole] revocation proceeding, where such  person
    22  is  financially unable to retain counsel, the criminal court of the city
    23  of New York, the county court or district court in the county where  the
    24  violation  is  alleged  to  have  occurred or where the hearing is held,
    25  shall assign counsel in accordance with the  county  or  city  plan  for
    26  representation placed in operation pursuant to article eighteen-B of the
    27  county law. He or she shall have the right to confront and cross-examine
    28  adverse  witnesses,  unless there is good cause for their non-attendance
    29  as determined by the presiding officer; present witnesses and documenta-
    30  ry evidence in defense of the charges; and present witnesses  and  docu-
    31  mentary evidence relevant to the question whether reincarceration of the
    32  alleged violator is appropriate.
    33    (vi)  At  the  revocation  hearing,  the charges shall be read and the
    34  alleged violator shall be permitted to plead not guilty, guilty,  guilty
    35  with  explanation or to stand mute. As to each charge, evidence shall be
    36  introduced through witnesses and documents, if any, in support  of  that
    37  charge.  At the conclusion of each witness's direct testimony, he or she
    38  shall be made available for cross-examination. If the  alleged  violator
    39  intends  to  present  a defense to the charges or to present evidence of
    40  mitigating circumstances, the alleged violator shall do so after presen-
    41  tation of all the evidence in support  of  a  violation  of  presumptive
    42  release, parole, conditional release or post-release supervision.
    43    (vii)  All  persons giving evidence at the revocation hearing shall be
    44  sworn before giving any testimony as provided by law.
    45    (viii) At the conclusion of the  hearing  the  presiding  officer  may
    46  sustain  any  or  all of the violation charges or may dismiss any or all
    47  violation charges. He or she may sustain a violation charge only if  the
    48  charge  is  supported by [a preponderance of the evidence adduced] clear
    49  and convincing evidence. Conduct that formed  the  basis  of  an  arrest
    50  shall  not  form  a basis of a sustained parole violation if a court has
    51  adjudicated the matter with an acquittal, adjournment  in  contemplation
    52  of dismissal, or violation.
    53    (ix)  If  the  presiding  officer  is  not  satisfied that there is [a
    54  preponderance of] clear  and  convincing  evidence  in  support  of  the
    55  violation, he or she shall dismiss the violation, cancel the delinquency

        A. 5576--A                         12
 
     1  and  restore  the  person  to  presumptive  release, parole, conditional
     2  release or post-release supervision.
     3    (x)  If the presiding officer is satisfied that there is [a preponder-
     4  ance of]  clear  and  convincing  evidence  that  the  alleged  violator
     5  violated  one  or more conditions of release in an important respect, he
     6  or she shall so find.    For  each  sustained  technical  violation  the
     7  presiding  officer  shall  direct  that  no earned time credits shall be
     8  awarded for the thirty day  period  commencing  from  the  date  of  the
     9  sustained  violation.  For any absconding violation found, the presiding
    10  officer shall direct that no earned time credits shall  be  awarded  for
    11  the  entire  time  period  during  which  a  releasee  was found to have
    12  absconded from supervision.
    13    (xi) Incarceration shall not be imposed for any  technical  violation,
    14  except as provided in subparagraph (xii) of this paragraph.
    15    (xii)  For  each  violation  [so] found, the presiding officer may (A)
    16  direct that the [presumptive releasee, parolee, conditional releasee  or
    17  person  serving  a  period  of  post-release  supervision]  releasee  be
    18  restored to supervision;  (B)  as  an  alternative  to  reincarceration,
    19  direct  the  [presumptive  releasee,  parolee,  conditional  releasee or
    20  person serving a period of  post-release  supervision  be  placed  in  a
    21  parole transition facility for a period not to exceed one hundred eighty
    22  days  and subsequent restoration to supervision] releasee receive re-en-
    23  try services in the community from qualified nonprofit agencies; or  (C)
    24  [in  the  case of presumptive releasees, parolees or conditional releas-
    25  ees,]  direct  the  violator's  reincarceration  and  for  non-technical
    26  violations  fix  a date for consideration by the board for re-release on
    27  presumptive release, or parole or conditional release, as the  case  may
    28  be;  or (D) for non-technical violations in the case of persons released
    29  to a period of post-release supervision, direct the violator's  reincar-
    30  ceration  up  to  the  balance  of  the remaining period of post-release
    31  supervision, not to exceed five years; provided, however, that a defend-
    32  ant serving a term of post-release supervision for  a  conviction  of  a
    33  felony  sex  offense  defined  in  section 70.80 of the penal law may be
    34  subject to a further period of imprisonment up to  the  balance  of  the
    35  remaining  period of post-release supervision, shall apply for technical
    36  violations; and the following limitations:
    37    (1) Absconding.  For absconding up to seven days  reincarceration  may
    38  be  imposed  for the first violation, up to fifteen days reincarceration
    39  may be imposed for the second violation, and up to thirty days  reincar-
    40  ceration may be imposed for the third or any subsequent violation;
    41    (2)  Sanctions for certain technical violations. Reincarceration shall
    42  not be imposed  for a sustained technical violation that  involves:  (a)
    43  violating  curfew;  (b) alcohol use, provided however that incarceration
    44  is permissible for alcohol use if the person  is  subject  to  community
    45  supervision due to a conviction for driving under the influence of alco-
    46  hol;  (c)  drug  use, provided, however incarceration is permissible for
    47  drug use if the person is subject to  community  supervision  due  to  a
    48  conviction  for  driving  under  the  influence of drugs; (d) failing to
    49  notify parole officer of a change in employment or program  status;  (e)
    50  failing  to pay surcharges and fees; (f) obtaining a driver's license or
    51  driving a car with a valid driver's license, provided however incarcera-
    52  tion is permissible if either action is  explicitly  prohibited  by  the
    53  person's conviction; (g) failing to notify community supervision officer
    54  of contact with any law enforcement agency, provided however, incarcera-
    55  tion is permissible if the person intended to hide illegal behavior; (h)
    56  failing  to  obey other special conditions, provided however that incar-

        A. 5576--A                         13
 
     1  ceration is permissible if the failure cannot be addressed in the commu-
     2  nity and all reasonable community-based means  to  address  the  failure
     3  have been exhausted; and
     4    (3)  Sanctions for all other technical violations. For all other tech-
     5  nical violations, no period of reincarceration may be  imposed  for  the
     6  first and second substantiated technical violations for which incarcera-
     7  tion may be imposed; up to seven days reincarceration may be imposed for
     8  the  third substantiated technical violation for which incarceration may
     9  be imposed; up to fifteen days reincarceration may be  imposed  for  the
    10  fourth  substantiated technical violation for which incarceration may be
    11  imposed; up to thirty days reincarceration may be imposed for the  fifth
    12  and  subsequent  substantiated technical violations for which incarcera-
    13  tion may be imposed.
    14    (xiii) If a warrant was executed  pursuant  to  subparagraph  (iv)  of
    15  paragraph  (a)  of  this  subdivision  by a criminal court and the court
    16  released the person pending a preliminary or final  revocation  hearing,
    17  any  period  of reincarceration imposed pursuant to this paragraph shall
    18  be counted from the date of issuance of a determination  after  a  final
    19  revocation  hearing  that the person has violated one or more conditions
    20  of community supervision, and the time between execution of the  warrant
    21  and  release  of  the  person  pending a preliminary or final revocation
    22  hearing shall count toward any period of reincarceration imposed  pursu-
    23  ant  to this paragraph. If a releasee is committed to the custody of the
    24  sheriff pursuant to article five hundred thirty of the  criminal  proce-
    25  dure  law, any time the person spent confined in a correctional facility
    26  or local correctional facility shall be credited toward  any  period  of
    27  reincarceration  imposed  pursuant  to this paragraph. In all cases, the
    28  presiding officer shall impose the least  restrictive  reasonable  sanc-
    29  tion.  Any  periods  of reincarceration imposed pursuant to this section
    30  shall run concurrently if more than one violation  is  sustained.  If  a
    31  period  of  reincarceration  is  imposed pursuant to this paragraph, the
    32  releasee shall be released from custody upon expiration of the period or
    33  the end of the releasee's period  of  community  supervision,  whichever
    34  shall be sooner.  For the violator serving an indeterminate sentence who
    35  while  re-incarcerated  has  not  been  found  by the department to have
    36  committed a serious disciplinary  infraction,  such  violator  shall  be
    37  re-released  on the date fixed at the revocation hearing. For the viola-
    38  tor serving an indeterminate sentence who has been found by the  depart-
    39  ment to have committed a serious disciplinary infraction while re-incar-
    40  cerated,  the  department  shall  refer  the  violator  to the board for
    41  consideration for re-release to community supervision. Upon such  refer-
    42  ral  the  board  may  waive  the  personal interview between a member or
    43  members of the board and the violator to determine the  suitability  for
    44  re-release  when the board directs that the violator be re-released upon
    45  expiration of the time assessment. The board shall retain the  authority
    46  to suspend the date fixed for re-release based on the violator's commis-
    47  sion of a serious disciplinary infraction and shall in such case require
    48  a  personal  interview  be  conducted within a reasonable time between a
    49  panel of members of the board and the violator to determine  suitability
    50  for  re-release. If an interview is required, the board shall notify the
    51  violator in advance of the date and time of such interview in accordance
    52  with the rules and regulations of the board.
    53    [(xi)] (xiv) If the presiding officer sustains any violations, [he  or
    54  she] such officer must prepare a written statement, to be made available
    55  to  the alleged violator and his or her counsel, indicating the evidence
    56  relied upon and the reasons for revoking  presumptive  release,  parole,

        A. 5576--A                         14
 
     1  conditional release or post-release supervision, and for the disposition
     2  made.  The presiding officer shall also advise the alleged violator in a
     3  written statement that revocation will result in loss of  the  right  to
     4  vote  while  he  or  she  is  serving the remainder of his or her felony
     5  sentence in a correctional facility and that the right to vote  will  be
     6  restored upon his or her release.
     7    [(xii)] (xv) If at any time during a revocation proceeding the alleged
     8  violator, his or her counsel, or an employee of the department contends,
     9  or  if  it  reasonably  appears to the hearing officer, that the alleged
    10  violator is an incapacitated person as that term is defined in  subdivi-
    11  sion one of section 730.10 of the criminal procedure law and no judicial
    12  determination  has  been  made that the alleged violator is an incapaci-
    13  tated person, the revocation  proceeding  shall  be  temporarily  stayed
    14  until  the superior court determines whether or not the person is fit to
    15  proceed. The matter shall be promptly referred to the superior court for
    16  determination of the alleged violator's fitness to proceed in  a  manner
    17  consistent  with  the  provisions of article seven hundred thirty of the
    18  criminal procedure law, provided however that the superior  court  shall
    19  immediately  appoint  counsel  for  any  unrepresented  alleged violator
    20  eligible for appointed counsel under subparagraph (v) of this  paragraph
    21  [(f)  of  subdivision  three of section two hundred fifty-nine-i of this
    22  chapter]. The court shall decide whether or not the alleged violator  is
    23  incapacitated  within thirty days of the referral from the hearing offi-
    24  cer. If the court determines that the alleged violator is not  an  inca-
    25  pacitated  person,  the court shall order that the matter be returned to
    26  the board of parole for continuation and disposition of  the  revocation
    27  proceeding.  If  the  court  determines  that the alleged violator is an
    28  incapacitated person and if no felony charges are  pending  against  the
    29  alleged  violator,  the  court  shall issue a final order of observation
    30  committing such person to the custody  of  the  commissioner  of  mental
    31  health  or  the  commissioner of developmental disabilities for care and
    32  treatment in an appropriate institution  in  a  manner  consistent  with
    33  subdivision  one  of  section 730.40 of the criminal procedure law. If a
    34  final order of observation has been issued pursuant to this section, the
    35  hearing officer shall dismiss the violation charges and  such  dismissal
    36  shall  act as a bar to any further proceeding under this section against
    37  the alleged violator for such violations. If felony criminal charges are
    38  pending at any time against an alleged violator who has been referred to
    39  superior court for a fitness evaluation but before  a  determination  of
    40  fitness  has  been made pursuant to this section, the court shall decide
    41  whether or not the alleged violator is incapacitated pursuant to article
    42  seven hundred thirty of the criminal procedure law  and  the  revocation
    43  proceeding  shall  be  held  in  abeyance  until  such decision has been
    44  reached. The hearing officer shall adopt the  capacity  finding  of  the
    45  court  and either terminate the revocation process if an order of obser-
    46  vation has been made by the court or proceed with the revocation hearing
    47  if the alleged violator has  been  found  not  to  be  an  incapacitated
    48  person.
    49    §  7.  Section   259-i of the executive law is amended by adding a new
    50  subdivision 4-a to read as follows:
    51    4-a.  Appeals from non-technical violation findings. (a) Notwithstand-
    52  ing the provisions of any other law,  when  in  a  violation  proceeding
    53  brought  pursuant  to  this section, any of the charges sustained by the
    54  hearing officer would constitute a misdemeanor or felony if such  charge
    55  were  or had been brought in a criminal court, the releasee may, in lieu
    56  of an administrative appeal to the board pursuant to subdivision four of

        A. 5576--A                         15
 
     1  this section, appeal such determination  to  the  lowest  level  of  the
     2  following  courts serving the jurisdiction in which the hearing was held
     3  or in which any such sustained conduct was  alleged  to  have  occurred:
     4  city  court,  district  court,  county court or supreme court; provided,
     5  however, that if any such misdemeanor or felony charge was prosecuted in
     6  any city, district, county or supreme court, such appeal shall be  filed
     7  in that court.
     8    (b)  The appeal shall be commenced by the filing of a notice of appeal
     9  in the same manner as an appeal to the appellate division as  set  forth
    10  in  paragraphs  (a), (b), (d) and (e) of subdivision one and subdivision
    11  six of section 460.10 of the criminal procedure law.  Counsel  shall  be
    12  assigned  to  the  individual, if unable to afford counsel, by the court
    13  before which the appeal is taken or is to be taken.  Such court may stay
    14  such determination pending the appeal, in a  manner consistent with  the
    15  provisions  of section 460.50 of the criminal procedure law or as other-
    16  wise authorized. Within thirty days after receiving  such  a  notice  of
    17  appeal, the board shall serve on the individual or counsel and file with
    18  such  court  a  transcript of the proceedings before the hearing officer
    19  prepared pursuant to paragraph (a) of subdivision six of  this  section,
    20  and  copies  of the documents, photographs and records considered by the
    21  hearing officer, and provide access to any other evidence considered  by
    22  the hearing officer who made such determination.
    23    (c)   The appeal shall be perfected in the manner set forth in section
    24  460.70 of the criminal procedure law, other provisions of law  generally
    25  applicable  to  criminal appeals, and authorized rules implementing this
    26  section promulgated by  the  chief  administrator  of  the  courts.  The
    27  department  shall  have  responsibility for presenting  the department's
    28  position through any submissions to the court on the appeal. The depart-
    29  ment shall coordinate with relevant district attorneys to ensure  appro-
    30  priate  information may be provided to the court.  The district attorney
    31  of the jurisdiction may appear on any such appeal without the  necessity
    32  of a motion or order of the court.
    33    (d)    On such appeal, the reviewing city, district, county or supreme
    34  court shall consider de novo the issues raised by the appellant, includ-
    35  ing but  not  limited  to  the  following:  (a)  whether  any  sustained
    36  violation  charge  should  have been sustained; (b) whether reduction or
    37  dismissal of the alleged violation charge or charges  is  warranted,  in
    38  accordance  with  the  principles set forth in section 170.40 or section
    39  210.40 of the criminal procedure law or otherwise; and (c)  whether  any
    40  time  assessment  and  other  authorized sanction imposed by the hearing
    41  officer should be vacated, reduced or, notwithstanding any law, rule  or
    42  regulation  to  the contrary, ordered to run concurrently with any other
    43  sentence, time assessment,   or period of reincarceration imposed.
    44    § 8. Section 259-i of the executive law is amended  by  adding  a  new
    45  subdivision 9 to read as follows:
    46    9.  The board shall promulgate rules and regulations to facilitate the
    47  presence of nonprofit service providers able to offer relevant  communi-
    48  ty-based  services  to releasees at all preliminary and final revocation
    49  hearings for the purpose of helping people subject to  community  super-
    50  vision  successfully  complete  such  supervision  and avoid future such
    51  supervision, and to help ensure  presiding  officers  impose  the  least
    52  restrictive  reasonable  sanction  for any violation of community super-
    53  vision.
    54    § 9. Severability. If any clause, sentence, paragraph, section or part
    55  of this act shall be adjudged by any court of competent jurisdiction  to
    56  be  invalid  and  after  exhaustion  of all further judicial review, the

        A. 5576--A                         16
 
     1  judgment shall not affect, impair or invalidate the  remainder  thereof,
     2  but  shall  be  confined in its operation to the clause, sentence, para-
     3  graph, section or part of this act directly involved in the  controversy
     4  in which the judgment shall have been rendered.
     5    §  10.  This  act  shall take effect March 1, 2022; provided, however,
     6  that the amendments made to subparagraph (xi) of paragraph (f) of subdi-
     7  vision 3 of section 259-i of the executive law made by  section  six  of
     8  this  act  shall  take effect on the same date and in the same manner as
     9  such chapter of the laws of 2021 takes effect; provided however,  within
    10  six  months  of  such  effective date, the department of corrections and
    11  community supervision in consultation with the  board  of  parole  shall
    12  calculate and award all earned time credits pursuant to subdivision 4 of
    13  section  70.40  of the penal law as added by section two of this act  to
    14  all persons serving a sentence subject to community supervision  at  the
    15  time  this  legislation becomes law retroactive to the initial date such
    16  person began his or her earliest period of community  supervision  prior
    17  to  any  revocation of community supervision. Provided further, however,
    18  within ten months of becoming law  the  department  of  corrections  and
    19  community  supervision  in  consultation  with the board of parole shall
    20  identify all individuals  incarcerated  for  a  sustained  violation  of
    21  community  supervision and recalculate such individual's time assessment
    22  in accordance with this act. Effective immediately, the addition, amend-
    23  ment and/or repeal of any rule or regulation necessary for the implemen-
    24  tation of this act on its effective date are authorized to be  made  and
    25  completed on or before such effective date.
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