NY Exec L § 259-I (2021)
2021 New York Laws EXC - Executive Article 12-B - State Board of Parole 259-I - Procedures for the Conduct of the Work of the State Board of Parole.

§ 259-i. Procedures  for the conduct of the work of the state board of parole.   2. Parole. * (a) (i) Except as provided in subparagraph (ii)  of  this paragraph, at least one month prior to the date on which an incarcerated individual  may  be paroled pursuant to subdivision one of section 70.40 of the penal law, a member or members as determined by the rules of  the board  shall  personally  interview  such  incarcerated  individual  and determine whether he or she should be paroled  in  accordance  with  the guidelines  adopted  pursuant to subdivision four of section two hundred fifty-nine-c of this article. If parole is not granted upon such review, the incarcerated individual shall be  informed  in  writing  within  two weeks  of  such appearance of the factors and reasons for such denial of parole. Such reasons shall be given in  detail  and  not  in  conclusory terms.  The  board shall specify a date not more than twenty-four months from such determination for reconsideration, and the  procedures  to  be followed  upon  reconsideration  shall  be the same. If the incarcerated individual is released,  he  or  she  shall  be  given  a  copy  of  the conditions of parole. Such conditions shall where appropriate, include a requirement   that  the  parolee  comply  with  any  restitution  order, mandatory surcharge, sex offender registration fee and DNA databank  fee previously  imposed by a court of competent jurisdiction that applies to the parolee. The conditions shall indicate which restitution  collection agency  established  under  subdivision  eight  of section 420.10 of the criminal  procedure  law,  shall  be  responsible  for   collection   of restitution, mandatory surcharge, sex offender registration fees and DNA databank  fees  as  provided  for  in section 60.35 of the penal law and section eighteen hundred nine of the vehicle and  traffic  law.  If  the inmate is released, he or she shall also be notified in writing that his or her voting rights will be restored upon release.  (ii)  Any  incarcerated  individual  who  is scheduled for presumptive release pursuant to section eight hundred  six  of  the  correction  law shall  not  appear  before  the board as provided in subparagraph (i) of this  paragraph  unless   such   incarcerated   individual's   scheduled presumptive release is forfeited, canceled, or rescinded subsequently as provided  in  such law. In such event, the incarcerated individual shall appear before  the  board  for  release  consideration  as  provided  in subparagraph (i) of this paragraph as soon thereafter as is practicable.   * NB Effective until September 1, 2023   * (a) At least one month prior to the expiration of the minimum period or  periods  of  imprisonment  fixed  by the court or board, a member or members as determined  by  the  rules  of  the  board  shall  personally interview  an  incarcerated individual serving an indeterminate sentence and determine whether he or she should be paroled at the  expiration  of the  minimum period or periods in accordance with the procedures adopted pursuant to subdivision four of section two hundred fifty-nine-c of this article. If parole is not granted upon  such  review,  the  incarcerated individual  shall  be  informed  in  writing  within  two  weeks of such appearance of the factors and reasons for such denial  of  parole.  Such reasons  shall be given in detail and not in conclusory terms. The board shall specify  a  date  not  more  than  twenty-four  months  from  such determination  for  reconsideration,  and  the procedures to be followed upon reconsideration shall be the same. If the  incarcerated  individual is  released,  he  or  she  shall  be  given a copy of the conditions of parole. Such conditions shall where appropriate, include  a  requirement that  the  parolee  comply  with  any  restitution  order  and mandatory surcharge previously imposed by a court of competent  jurisdiction  that applies  to the parolee. The conditions shall indicate which restitution collection agency established under subdivision eight of section  420.10  of  the  criminal  procedure law, shall be responsible for collection of restitution and mandatory surcharge as provided for in section 60.35  of the  penal  law  and  section  eighteen  hundred nine of the vehicle and traffic law. If the inmate is released, he or she shall also be notified in writing that his or her voting rights will be restored upon release.   * NB Effective September 1, 2023  (b) Persons presumptively released, paroled, conditionally released or released  to  post-release  supervision  from  an  institution under the jurisdiction of the department, the department of mental hygiene or  the office  of  children  and  family  services  shall, while on presumptive release, parole, conditional release or post-release supervision, be  in the legal custody of the department until expiration of the maximum term or  period  of  sentence,  or  expiration  of the period of supervision, including  any  period  of  post-release  supervision,  or   return   to imprisonment in the custody of the department, as the case may be.  (c) (A) Discretionary release on parole shall not be granted merely as a  reward  for  good  conduct  or  efficient performance of duties while confined but after considering if  there  is  a  reasonable  probability that,  if  such incarcerated individual is released, he or she will live and remain at liberty without violating the law, and  that  his  or  her release  is not incompatible with the welfare of society and will not so deprecate the seriousness of his or her crime as  to  undermine  respect for  law.  In making the parole release decision, the procedures adopted pursuant to subdivision four of section two hundred fifty-nine-c of this article  shall  require  that  the  following  be  considered:  (i)  the institutional   record  including  program  goals  and  accomplishments, academic  achievements,   vocational   education,   training   or   work assignments,  therapy  and  interactions  with  staff  and  incarcerated individuals; (ii) performance, if any, as a participant in  a  temporary release  program;  (iii)  release  plans  including community resources, employment, education and training and support services available to the incarcerated individual;  (iv)  any  deportation  order  issued  by  the federal  government  against  the  incarcerated  individual while in the custody of the department and any recommendation  regarding  deportation made  by  the  commissioner  of  the  department pursuant to section one hundred forty-seven of the correction law;  (v)  any  current  or  prior statement  made  to  the  board  by  the  crime  victim  or the victim's representative, where the crime victim is deceased  or  is  mentally  or physically incapacitated; (vi) the length of the determinate sentence to which  the  incarcerated  individual  would  be  subject  had  he or she received a sentence pursuant to section 70.70 or section  70.71  of  the penal  law for a felony defined in article two hundred twenty or article two hundred twenty-one of the penal law; (vii) the  seriousness  of  the offense  with  due  consideration  to  the  type  of sentence, length of sentence and recommendations  of  the  sentencing  court,  the  district attorney, the attorney for the incarcerated individual, the pre-sentence probation  report  as  well  as  consideration  of  any  mitigating  and aggravating  factors,  and  activities   following   arrest   prior   to confinement;  and (viii) prior criminal record, including the nature and pattern of offenses, adjustment to  any  previous  probation  or  parole supervision  and institutional confinement. The board shall provide toll free telephone access  for  crime  victims.  In  the  case  of  an  oral statement  made  in accordance with subdivision one of section 440.50 of the criminal procedure law, the parole  board  member  shall  present  a written  report  of  the statement to the parole board. A crime victim's representative shall mean the crime victim's closest surviving relative, the committee or guardian of such person, or the legal representative of any such person. Such statement submitted  by  the  victim  or  victim's  representative   may   include  information  concerning  threatening  or intimidating conduct toward the victim, the victim's representative,  or the  victim's  family,  made by the person sentenced and occurring after the  sentencing.  Such  information may include, but need not be limited to, the threatening or intimidating conduct of any other person  who  or which  is directed by the person sentenced. Any statement by a victim or the victim's representative made to the board shall be maintained by the department in the file provided  to  the  board  when  interviewing  the incarcerated  individual  in  consideration  of  release.  A  victim  or victim's representative who has  submitted  a  written  request  to  the department  for  the transcript of such interview shall be provided such transcript as soon as it becomes available.  (B) Where a crime victim or  victim's  representative  as  defined  in subparagraph  (A)  of  this  paragraph,  or  other person submits to the parole  board  a  written  statement  concerning  the  release   of   an incarcerated  individual,  the parole board shall keep that individual's name and address confidential.  (d) (i) Notwithstanding the provisions of paragraphs (a), (b) and  (c) of this subdivision, after the incarcerated individual has served his or her  minimum period of imprisonment imposed by the court, or at any time after the incarcerated individual's period of imprisonment has commenced for an incarcerated individual serving a  determinate  or  indeterminate term  of imprisonment, provided that the incarcerated individual has had a final order of deportation issued against  him  or  her  and  provided further  that  the incarcerated individual is not convicted of either an A-I felony offense other than  an  A-I  felony  offense  as  defined  in article  two hundred twenty of the penal law or a violent felony offense as defined in section 70.02  of  the  penal  law,  if  the  incarcerated individual  is  subject  to  deportation  by the United States Bureau of Immigration and Customs Enforcement, in addition  to  the  criteria  set forth in paragraph (c) of this subdivision, the board may consider, as a factor  warranting  earlier  release,  the  fact  that such incarcerated individual will be deported, and may grant parole from an  indeterminate sentence  or release for deportation from a determinate sentence to such incarcerated individual conditioned specifically on his  or  her  prompt deportation.  The  board may make such conditional grant of early parole from an  indeterminate  sentence  or  release  for  deportation  from  a determinate  sentence  only where it has received from the United States Bureau of Immigration and Customs  Enforcement  assurance  (A)  that  an order  of deportation will be executed or that proceedings will promptly be commenced  for  the  purpose  of  deportation  upon  release  of  the incarcerated   individual   from   the  custody  of  the  department  of correctional services, and (B)  that  the  incarcerated  individual,  if granted  parole  or  release for deportation pursuant to this paragraph, will not be released from the custody of the  United  States  Bureau  of Immigration  and Customs Enforcement, unless such release be as a result of deportation without providing the board a reasonable  opportunity  to arrange for execution of its warrant for the retaking of such person.  (ii)  An  incarcerated  individual who has been granted parole from an indeterminate sentence or release for  deportation  from  a  determinate sentence pursuant to this paragraph shall be delivered to the custody of the  United  States  Bureau of Immigration and Customs Enforcement along with the board's warrant for his or her retaking to be executed  in  the event of his release from such custody other than by deportation. In the event  that  such  person  is  not deported, the board shall execute the warrant, effect his  return  to  imprisonment  in  the  custody  of  the department  and  within  sixty days after such return, provided that the person is serving an indeterminate sentence and the  minimum  period  of  imprisonment  has  been  served,  personally  interview  him  or  her to determine whether he or she should be paroled  in  accordance  with  the provisions  of  paragraphs  (a),  (b)  and  (c) of this subdivision. The return  of  a  person  granted  parole from an indeterminate sentence or release for deportation from a determinate  sentence  pursuant  to  this paragraph  for  the  reason set forth herein shall not be deemed to be a parole delinquency and the interruptions specified in subdivision  three of section 70.40 of the penal law shall not apply, but the time spent in the  custody  of  the  United  States  Bureau of Immigration and Customs Enforcement shall be credited  against  the  term  of  the  sentence  in accordance   with   the   rules  specified  in  paragraph  (c)  of  that subdivision.  Notwithstanding  any   other   provision   of   law,   any incarcerated individual granted parole from an indeterminate sentence or release  for  deportation  from  a determinate sentence pursuant to this paragraph who is subsequently committed to imprisonment in  the  custody of  the department for a felony offense committed after release pursuant to this  paragraph  shall  have  his  parole  eligibility  date  on  the indeterminate  sentence  for  the  new  felony  offense,  or  his or her conditional release date on the determinate sentence for the new  felony offense,  as the case may be, extended by the amount of time between the date  on  which  such  incarcerated   individual   was   released   from imprisonment in the custody of the department pursuant to this paragraph and  the date on which such incarcerated individual would otherwise have completed service of the minimum period of  imprisonment  on  the  prior felony offense.  (e)   Notwithstanding  the  requirements  of  paragraph  (a)  of  this subdivision, the determination to parole an incarcerated individual  who has  successfully  completed the shock incarceration program pursuant to section eight hundred sixty-seven of the  correction  law  may  be  made without a personal interview of the incarcerated individual and shall be made  in accordance with procedures set forth in the rules of the board. If parole is not granted, the time period for reconsideration shall  not exceed the court imposed minimum.   3.  Revocation of presumptive release, parole, conditional release and post-release supervision. (a) * (i) If the parole officer having  charge of a presumptively released, paroled or conditionally released person or a person released to post-release supervision or a person received under the   uniform  act  for  out-of-state  parolee  supervision  shall  have reasonable cause to believe that such person has  lapsed  into  criminal ways  or  company,  or  has  violated  one  or  more  conditions  of his presumptive  release,  parole,  conditional  release   or   post-release supervision,  such  parole officer shall report such fact to a member of the board, or to any officer of the department designated by the  board, and  thereupon  a  warrant may be issued for the retaking of such person and for his temporary detention in accordance  with  the  rules  of  the board  unless  such  person has been determined to be currently unfit to proceed to trial or is currently subject to a temporary or  final  order of  observation pursuant to article seven hundred thirty of the criminal procedure law, in which case no warrant shall be  issued.  The  retaking and  detention  of any such person may be further regulated by rules and regulations of the department not  inconsistent  with  this  article.  A warrant  issued  pursuant  to  this  section shall constitute sufficient authority to the superintendent or other person in charge of  any  jail, penitentiary, lockup or detention pen to whom it is delivered to hold in temporary  detention  the  person  named  therein; except that a warrant issued with respect to a person who has been released on medical  parole pursuant  to  section two hundred fifty-nine-r of this article and whose parole is being revoked pursuant to paragraph (h) of subdivision four of  such section shall constitute authority for the immediate  placement  of the  parolee  only into imprisonment in the custody of the department to hold in temporary detention. A warrant issued pursuant to  this  section shall  also constitute sufficient authority to the person in charge of a drug treatment campus, as defined in subdivision twenty of  section  two of  the  correction law, to hold the person named therein, in accordance with the procedural requirements of this section, for  a  period  of  at least  ninety  days  to  complete  an  intensive  drug treatment program mandated by the board as an alternative to presumptive release or parole or conditional release revocation, or  the  revocation  of  post-release supervision,  and  shall also constitute sufficient authority for return of the person named therein  to  local  custody  to  hold  in  temporary detention  for  further  revocation proceedings in the event said person does not successfully complete the intensive drug treatment program. The board's  rules  shall  provide  for  cancellation  of  delinquency   and restoration  to  supervision  upon  the  successful  completion  of  the program.   * NB Effective until March 1, 2022   * (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  cause  to  believe that  such  person  has  committed  a  technical  violation, such parole officer shall report such fact to a member  of  the  board,  or  to  any officer  of  the  department  designated  by  the board, and thereupon a written notice of violation may be issued  according  to  the  terms  of subparagraph  (iii)  of  paragraph (c) of this subdivision, and shall be promptly served upon such person. If the releasee has failed  to  appear as  directed  in  response  to  a  notice of violation and has failed to appear voluntarily within forty-eight hours  after  such  time  and  the person  would be subject to incarceration pursuant to subparagraph (xii) of paragraph (f) of this subdivision should the violation  be  sustained at  a final revocation hearing, a warrant may be issued for the retaking of such person and for his temporary detention  pending  a  recognizance hearing  in  accordance  with  the rules of the board. If the person has intentionally failed to appear as directed in response to  a  notice  of violation  and  has  intentionally  failed  to appear voluntarily within forty-eight hours after such time and the person would not be subject to incarceration pursuant to paragraph (f) of this subdivision  should  the violation  be  sustained at a final revocation hearing, no warrant shall issue and the violation  shall  be  deemed  sustained.  Notice  of  that decision  shall  be  promptly  served  upon  the releasee. In such case, within one month of the date the notice of decision 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 temporary detention in accordance with the rules of the board. However, if a releasee has been determined to be currently unfit to proceed to trial or is currently  subject  to  a  temporary  or final  order  of observation pursuant to article seven hundred thirty of the criminal procedure law, 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 person for whom a warrant has been issued pursuant to this subparagraph may be further regulated by rules and  regulations  of the  department  not  inconsistent  with  this article. A warrant issued pursuant to this section shall constitute sufficient  authority  to  the superintendent  or  other  person  in  charge of any jail, penitentiary, lockup or detention pen to whom it is delivered  to  hold  in  temporary detention  the  person  named  therein  pending  a  recognizance hearing pursuant to subparagraph (iv) of this  paragraph.  It  shall  not  be  a condition of parole nor may a notice of violation or a warrant be issued due  to  a  releasee  being  in  the company of or fraternizing with any person the releasee knows has  a  criminal  record  or  knows  has  been adjudicated  a  youthful  offender or due to conduct related to cannabis that is lawful pursuant to the laws of New York.   * NB Effective March 1, 2022  (ii)  A  warrant  issued  for  a  presumptive  release,  a  parole,  a conditional  release  or  a  post-release  supervision  violator  may be executed by any parole  officer  or  any  officer  authorized  to  serve criminal  process  or  any  peace officer, who is acting pursuant to his special duties, or police officer. Any such officer to whom such warrant shall be delivered is authorized and required to execute such warrant by taking  such  person  and  having  him  detained  as  provided  in  this paragraph.  (iii) Where the alleged violator is detained in another state pursuant to  such  warrant  and  is  not under parole supervision pursuant to the uniform act for out-of-state parolee supervision  or  where  an  alleged violator  under  parole  supervision  pursuant  to  the  uniform act for out-of-state parolee supervision is detained in a state other  than  the receiving state, the warrant will not be deemed to be executed until the alleged  violator  is  detained exclusively on the basis of such warrant and the department has received notification that the  alleged  violator (A)  has  formally  waived  extradition  to  this  state or (B) has been ordered extradited to this state pursuant to a  judicial  determination. The alleged violator will not be considered to be within the convenience and  practical  control of the department until the warrant is deemed to be executed.   * (iv) Notwithstanding the provisions of any other law, upon execution of a warrant issued pursuant to this section for any releasee alleged to have committed a violation of a condition of  release  in  an  important respect  in  the  city of New York, the authorized officer shall present the releasee to the criminal court of  the  city  of  New  York  or  the supreme court criminal term in the county where the violation is alleged to  have  been  committed  for a recognizance hearing within twenty-four hours of the execution of the warrant. If no such  court  of  record  is available  to  conduct any business of any type within twenty-four hours of the execution of the warrant, the recognizance hearing shall commence on the next day such a court in the jurisdiction is available to conduct any business of any type. For any releasee alleged to have  committed  a violation  of  a condition of release in an important respect outside of the city of New York, the authorized officer shall present the  releasee to  a  county  court, district court or city court in the county or city where the violation is alleged to have been committed for a recognizance hearing. If no such court of record is available to conduct any business of any type within twenty-four hours of the execution  of  the  warrant, the  recognizance  hearing  shall commence on the next day such court is available to conduct any business of any type.   * NB Effective March 1, 2022    * (v) At a recognizance hearing, the department shall have the  burden of  demonstrating  to  the  court that the executed warrant was properly issued and served pursuant to this  section.  The  department  shall  be responsible  for  presenting  information  to  the  court  regarding the alleged  violation  and  the releasee's community supervision record. If the alleged violation is the subject of a pending criminal  prosecution, the department shall coordinate with the office of the district attorney to ensure information regarding the alleged violation and the releasee's community   supervision   record   is  presented  to  the  court.  At  a recognizance  hearing,  the  department  shall  have   the   burden   of demonstrating to the court that the executed warrant was properly issued and served pursuant to this section. The department shall be responsible for  presenting information to the court regarding the alleged violation and  the  releasee's  community  supervision  record.  If  the   alleged violation  is  the  subject  of  a  pending  criminal  prosecution,  the department shall coordinate with the office of the district attorney  to ensure  information  regarding  the alleged violation and the releasee's community supervision record is presented to the court.   * NB Effective March 1, 2022   * (vi) At  a  recognizance  hearing,  the  court  shall  consider  all available  evidence  of  the releasee's employment, family and community ties  including  length  of  residency  in  the  community,  history  of reporting  in  a  timely fashion to a parole or supervisory officer, and other indicators of stability. At the  conclusion  of  the  recognizance hearing,  the  court  may  order that the releasee be detained pending a preliminary or final revocation hearing only upon  a  finding  that  the releasee  currently  presents a substantial risk of willfully failing to appear at the preliminary or  final  revocation  hearings  and  that  no non-monetary  condition  or  combination  of conditions in the community will reasonably assure the releasee's appearance at the  preliminary  or final  revocation  hearing.  Otherwise,  the  court  shall  release  the releasee on the least  restrictive  non-monetary  conditions  that  will reasonably assure the releasee's appearance at subsequent preliminary or revocation  hearings, with a presumption of release on recognizance. The court shall explain its  decision  on  the  record  or  in  writing.  If non-monetary  conditions  of release are imposed, the releasee shall not be required to pay for any part of the cost of such conditions.   * NB Effective March 1, 2022   * (vii) The alleged violator shall have a right to  representation  by counsel at the recognizance hearing. In any case, including when a court is  called  upon  to  evaluate  the  capacity  of an alleged violator to participate  in  a  recognizance  proceeding,  where  such   person   is financially  unable  to  retain counsel, the court in which any criminal case against the individual is pending, or if  there  is  no  such  case pending, the criminal court of the city of New York, the county court or district  court  in  the  county  where the violation is alleged to have occurred or where the hearing is to be held,  shall  assign  counsel  in accordance  with  the  county  or city plan for representation placed in operation pursuant to article eighteen-B of the county law.   * NB Effective March 1, 2022   * (viii)  If  the  violation  charge  involves  conduct   that   would constitute  a  new  felony  or  misdemeanor  offense,  such recognizance hearing may be held at the same time as a proceeding pursuant to article five hundred thirty of the  criminal  procedure  law  for  any  warrants issued  by the department prior to such proceeding. If at the proceeding pursuant to article five hundred thirty of the  criminal  procedure  law the  court  imposes  bail on the new alleged criminal offense or commits the releasee to the custody of the  sheriff  pursuant  to  article  five  hundred  thirty  of  the criminal procedure law and the releasee secures release by paying bail or under non-monetary conditions or by  operation of  law, then the releasee shall not be detained further based solely on the warrant issued by the department. If the department issues a warrant for  a  non-technical  violation  for  alleged criminal conduct that has already been the subject of a court's order  pursuant  to  article  five hundred  thirty  of  the criminal procedure law, then within twenty-four hours of execution of the warrant  the  releasee  shall  be  provided  a recognizance  hearing  pursuant to this subparagraph, provided, however, that if no court as defined in subparagraph (iv) of  this  paragraph  is available  to  conduct any business of any type within twenty-four hours of the execution of the warrant, then  the  recognizance  hearing  shall commence on the next day such court is available to conduct any business of any type.   * NB Effective March 1, 2022  (b)  A  person who shall have been taken into custody pursuant to this subdivision for violation of  one  or  more  conditions  of  presumptive release,  parole, conditional release or post-release supervision shall, insofar as practicable, be incarcerated in the county or city  in  which the arrest occurred.  (c)  * (i)  Within  fifteen  days  after  the warrant for retaking and temporary detention has been executed,  unless  the  releasee  has  been convicted  of  a  new  crime  committed while under presumptive release, parole, conditional release or post-release supervision,  the  board  of parole shall afford the alleged presumptive release, parole, conditional release  or  post-release  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.   * NB Effective until March 1, 2022   * (i)  (A)  For  any alleged technical violation for which a notice of violation was issued or a person was released on  recognizance  pursuant to   subparagraph  (iv)  of  paragraph  (a)  of  this  subdivision,  the department 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  department.  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 facility. The 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 correctional facility for such hearing.  (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 designated 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.   * NB Effective March 1, 2022    * (ii)  The  preliminary  presumptive  release,  parole,   conditional release   or   post-release  supervision  revocation  hearing  shall  be conducted at an appropriate correctional facility, or such  other  place reasonably  close to the area in which the alleged violation occurred as the board may designate.   * NB Effective until March 1, 2022   * (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 correctional facility for such hearing.   * NB Effective March 1, 2022   * (iii) The alleged violator shall, within three days of the execution of  the  warrant, be given written notice of the time, place and purpose of the hearing unless he or she is detained pursuant to  the  provisions of  subparagraph  (iv)  of  paragraph  (a) of this subdivision. In those instances, the alleged violator will be  given  written  notice  of  the time, place and purpose of the hearing within five days of the execution of  the  warrant.  The notice shall state what conditions of presumptive release, parole, conditional release  or  post-release  supervision  are alleged  to  have  been  violated,  and in what manner; that such person shall have the right to appear and speak in his or her own behalf;  that he  or she shall have the right to introduce letters and documents; that he or she may present witnesses who can give relevant information to the hearing officer; that he or she has the right to confront the  witnesses against  him  or  her.  Adverse witnesses may be compelled to attend the preliminary hearing unless the prisoner has  been  convicted  of  a  new crime  while  on  supervision  or  unless the hearing officer finds good cause for their non-attendance. As far as practicable or  feasible,  any additional  documents having been collected or prepared that support the charge shall be delivered to the alleged violator.   * NB Effective until March 1, 2022   * (iii) The alleged violator shall, at the time a notice of  violation is  issued  or  at  the time of a recognizance hearing, be given written notice of the time, place and purpose of the preliminary hearing, or  if no  preliminary  hearing  is  required  pursuant to this section, of the final revocation hearing. The notice  shall  state  what  conditions  of community  supervision  are  alleged  to have been violated, and in what manner; that such person shall have the right to appear and speak in his or her own behalf; that he or she shall  have  the  right  to  introduce letters and documents; that he or she may present witnesses who can give relevant  information  to  the  hearing  officer; that he or she has the right to confront the witnesses against him or  her;  that  such  person shall have the right to representation by counsel at any preliminary and final  revocation  hearings;  and  the  name  and  contact  details  for institutional defenders or  assigned  private  counsel,  as  applicable. Adverse  witnesses  may  be  compelled to attend the preliminary hearing unless the  prisoner  has  been  convicted  of  a  new  crime  while  on supervision  or  unless  the  hearing officer finds good cause for their non-attendance. As  far  as  practicable  or  feasible,  any  additional documents  having  been  collected  or prepared that are relevant to the charge shall be delivered to the alleged violator.   * NB Effective March 1, 2022   * (iv) The preliminary hearing shall be scheduled  to  take  place  no later  than  fifteen days from the date of execution of the warrant. The  standard of proof at the preliminary hearing shall be probable cause  to believe  that the presumptive releasee, parolee, conditional releasee or person  under  post-release  supervision  has  violated  one   or   more conditions  of  his  or  her  presumptive  release,  parole, conditional release or post-release supervision in an important  respect.  Proof  of conviction of a crime committed while under supervision shall constitute probable cause for the purposes of this section.   * NB Effective until March 1, 2022   * (iv)  The  standard  of  proof at the preliminary hearing shall be a preponderance of the evidence to believe that the releasee has  violated one  or  more  conditions  of  his  or  her  community 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   for   the   purposes   of   this subparagraph.   * NB Effective March 1, 2022  (v)  At  the preliminary hearing, the hearing officer shall review the violation charges with the alleged violator, direct the presentation  of evidence  concerning  the  alleged  violation, receive the statements of witnesses and documentary evidence on behalf of the prisoner, and  allow cross examination of those witnesses in attendance.  (vi) At the conclusion of the preliminary hearing, the hearing officer shall  inform  the alleged violator of his or her decision as to whether there is probable  cause  to  believe  that  the  presumptive  releasee, parolee,  conditional releasee or person on post-release supervision has violated one or more conditions of his or her release  in  an  important respect.  Based  solely  on  the  evidence  adduced  at the hearing, the hearing officer shall determine  whether  there  is  probable  cause  to believe  that  such  person has violated his or her presumptive release, parole, conditional release or post-release supervision in an  important respect.  The hearing officer shall in writing state the reasons for his or her determination and the evidence relied on. A copy of  the  written findings  shall  be  sent  to  both  the alleged violator and his or her counsel.  (vii) If the hearing officer is satisfied that there  is  no  probable cause to believe that such person has violated one or more conditions of release  in  an important respect, he or she shall dismiss the notice of violation and direct such person be restored to supervision.  (viii) If the hearing officer is  satisfied  that  there  is  probable cause to believe that such person has violated one or more conditions of release in an important respect, he or she shall so find.   * (ix) If the hearing officer finds by a preponderance of the evidence that  such  person  has  violated  one  or  more conditions of community supervision  in  an  important  respect,  the  releasee  shall,  at  the conclusion  of  the  preliminary  hearing be given written notice of the time, place and purpose of the  final  revocation  hearing.  The  notice shall state what conditions of community supervision are alleged to have been  violated,  when,  where and in what manner; that such person shall have the right to representation by  counsel  at  any  final  revocation hearing;  that  such  person shall have the right to appear and speak in his or her own behalf; that he or she shall have the right to  introduce letters and documents; that he or she may present witnesses who can give relevant  information  to  the  hearing  officer; that he or she has the right to confront the witnesses against him or her;  and  the  name  and contact details for institutional defenders or assigned private counsel, as  applicable.  Any  additional  documents  having  been  collected  or prepared that support the charges shall be delivered  to  the  releasee. Adverse  witnesses  may  be  compelled  to  attend  the final revocation  hearing unless the prisoner has been convicted of a new crime  while  on supervision  or  unless  the  hearing officer finds good cause for their non-attendance.   * NB Effective March 1, 2022   * (x)  The  alleged  violator  shall have a right to representation by counsel at the preliminary hearing. In any case, including when a  court is  called  upon  to  evaluate  the capacity of an alleged violator in a preliminary proceeding, where  such  person  is  financially  unable  to retain  counsel,  the criminal court of the city of New York, the county court or district court in the county where the violation is alleged  to have  occurred  or  where  the  hearing is held, shall assign counsel in accordance with the county or city plan  for  representation  placed  in operation pursuant to article eighteen-B of the county law.   * NB Effective March 1, 2022   * (d)  If  a  finding  of  probable  cause  is  made  pursuant to this subdivision either by a determination at a preliminary hearing or by the waiver thereof, or if the releasee has been convicted  of  a  new  crime while   under   presumptive  release,  parole,  conditional  release  or post-release supervision,  the  board's  rules  shall  provide  for  (i) declaring  such person to be delinquent as soon as practicable and shall require reasonable and appropriate action to make a final  determination with respect to the alleged violation or (ii) ordering such person to be restored   to   presumptive  release,  parole,  conditional  release  or post-release  supervision  under  such  circumstances  as  it  may  deem appropriate  or  (iii) when a presumptive releasee, parolee, conditional releasee or person on post-release supervision has been convicted  of  a new   felony   committed   while   under  such  supervision  and  a  new indeterminate or determinate sentence  has  been  imposed,  the  board's rules  shall  provide  for  a  final  declaration  of  delinquency.  The incarcerated individual shall then be notified in writing  that  his  or her  release  has  been revoked on the basis of the new conviction and a copy  of  the  commitment  shall  accompany   said   notification.   The incarcerated  individual's  next  appearance  before  the board shall be governed  by  the  legal  requirements  of  said  new  indeterminate  or determinate  sentence,  or shall occur as soon after a final reversal of the conviction as is practicable.   * NB Effective until September 1, 2023   * (d) If a  finding  of  probable  cause  is  made  pursuant  to  this subdivision  either  by determination at a preliminary hearing or by the waiver thereof, or if the releasee has been convicted  of  a  new  crime while  under  his present parole or conditional release supervision, the board's rules  shall  provide  for  (i)  declaring  such  person  to  be delinquent  as  soon  as  practicable  and  shall require reasonable and appropriate action to make a final determination  with  respect  to  the alleged  violation or (ii) ordering such person to be restored to parole supervision under such circumstances as it may deem appropriate or (iii) when a parolee or conditional releasee  has  been  convicted  of  a  new felony  committed  while  under his or her present parole or conditional release supervision and a new indeterminate sentence has  been  imposed, the  board's rules shall provide for a final declaration of delinquency. The incarcerated individual shall then be notified in writing  that  his or her release has been revoked on the basis of the new conviction and a copy   of   the   commitment  shall  accompany  said  notification.  The incarcerated individual's next appearance  before  the  board  shall  be governed  by  the legal requirements of said new indeterminate sentence, or shall occur as soon after a final reversal of the  conviction  as  is practicable.   * NB Effective September 1, 2023  (e)  (i)  If the alleged violator requests a local revocation hearing, he or she shall be given a revocation hearing reasonably near the  place of  the  alleged violation or arrest if he or she has not been convicted of a crime committed while under supervision. However, the board may, on its own motion, designate a case for a local revocation hearing.  (ii)  If  there are two or more alleged violations, the hearing may be conducted near the place of the violation chiefly relied upon as a basis for the issuance of the warrant as determined by the board.  (iii) If a  local  revocation  hearing  is  not  ordered  pursuant  to subparagraph (i) of this paragraph the alleged violator shall be given a revocation  hearing  upon  his  or  her  return  to a state correctional facility.   * (f) (i) Revocation hearings shall be scheduled  to  be  held  within ninety  days of the probable cause determination. However, if an alleged violator requests  and  receives  any  postponement  of  his  revocation hearing,  or  consents to a postponed revocation proceeding initiated by the board, or if an alleged violator, by his actions otherwise precludes the prompt conduct of such proceedings, the time limit may be extended.  (ii) The revocation hearing shall be conducted by a presiding  officer who  may  be  a  member  or a hearing officer designated by the board in accordance with rules of the board.  (iii) Both the alleged violator and an attorney who has filed a notice of appearance on his behalf in accordance with the rules of the board of parole shall be given written notice of the date, place and time of  the hearing  as  soon  as  possible  but at least fourteen days prior to the scheduled date.  (iv) The alleged violator shall be given written notice of the  rights enumerated in subparagraph (iii) of paragraph (c) of this subdivision as well  as  of  his  right  to  present  mitigating  evidence  relevant to restoration to  presumptive  release,  parole,  conditional  release  or post-release supervision and his right to counsel.  (v)  The alleged violator shall be permitted representation by counsel at the revocation hearing. In any case, including when a superior  court is  called  upon  to  evaluate  the capacity of an alleged violator in a parole revocation proceeding, where such person is financially unable to retain counsel, the criminal court of the city of New York,  the  county court  or district court in the county where the violation is alleged to have occurred or where the hearing is  held,  shall  assign  counsel  in accordance  with  the  county  or city plan for representation placed in operation pursuant to article eighteen-B of the county law.  He  or  she shall  have  the  right to confront and cross-examine adverse witnesses, unless there is good cause for their non-attendance as determined by the presiding officer; present witnesses and documentary evidence in defense of the charges; and present witnesses and documentary evidence  relevant to  the  question  whether  reincarceration  of  the alleged violator is appropriate.  (vi) At the revocation hearing, the charges  shall  be  read  and  the alleged  violator shall be permitted to plead not guilty, guilty, guilty with explanation or to stand mute. As to each charge, evidence shall  be introduced  through  witnesses and documents, if any, in support of that charge. At the conclusion of each witness's direct testimony,  he  shall be made available for cross-examination. If the alleged violator intends to present a defense to the charges or to present evidence of mitigating circumstances,  the  alleged  violator shall do so after presentation of all the evidence in support  of  a  violation  of  presumptive  release, parole, conditional release or post-release supervision.  (vii)  All  persons giving evidence at the revocation hearing shall be sworn before giving any testimony as provided by law.  (viii) At the conclusion of the  hearing  the  presiding  officer  may sustain  any  or  all of the violation charges or may dismiss any or all violation charges. He may sustain a violation charge only if the  charge is supported by a preponderance of the evidence adduced.  (ix)  If  the  presiding  officer  is  not  satisfied  that there is a preponderance of evidence in support of the violation, he shall  dismiss the  violation,  cancel  the  delinquency  and  restore  the  person  to presumptive  release,  parole,  conditional  release   or   post-release supervision.  (x)   If   the   presiding  officer  is  satisfied  that  there  is  a preponderance of evidence that the alleged violator violated one or more conditions of release in an important respect, he or she shall so  find. For  each  violation so found, the presiding officer may (A) direct that the  presumptive  releasee,  parolee,  conditional  releasee  or  person serving a period of post-release supervision be restored to supervision; (B)  as  an  alternative  to  reincarceration,  direct  the  presumptive releasee, parolee, conditional releasee or person serving  a  period  of post-release supervision be placed in a parole transition facility for a period  not to exceed one hundred eighty days and subsequent restoration to supervision; (C) in the case of presumptive  releasees,  parolees  or conditional  releasees,  direct the violator's reincarceration and fix a date for consideration  by  the  board  for  re-release  on  presumptive release, or parole or conditional release, as the case may be; or (D) in the  case  of  persons released to a period of post-release supervision, direct the violator's reincarceration up to the balance of the remaining period of post-release supervision, not to exceed five years;  provided, however, that a defendant serving a term of post-release supervision for a  conviction  of  a  felony sex offense defined in section 70.80 of the penal law may be subject to a further period of imprisonment up  to  the balance  of  the  remaining  period of post-release supervision. 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   violator   serving   an indeterminate  sentence  who  has  been  found by the department to have committed a serious disciplinary infraction while  re-incarcerated,  the department  shall  refer the violator to the board for consideration for re-release to community supervision. Upon such referral  the  board  may waive  the  personal  interview between a member or members of the board and the violator to determine the suitability for  re-release  when  the board  directs  that  the violator be re-released upon expiration of the time assessment. The board shall retain the  authority  to  suspend  the date  fixed  for  re-release  based  on  the  violator's commission of a serious disciplinary  infraction  and  shall  in  such  case  require  a personal interview be conducted within a reasonable time between a panel of  members  of  the board and the violator to determine suitability for re-release. If an interview is required,  the  board  shall  notify  the violator in advance of the date and time of such interview in accordance with the rules and regulations of the board.  (xi)  If the presiding officer sustains any violations, he or she must prepare a written  statement,  to  be  made  available  to  the  alleged violator and his or her counsel, indicating the evidence relied upon and the  reasons  for  revoking  presumptive  release,  parole,  conditional release or post-release supervision, and for the disposition  made.  The presiding  officer  shall  also advise the alleged violator in a written statement that revocation will result in loss of the right to vote while he or she is serving the remainder of his or her felony  sentence  in  a  correctional  facility  and that the right to vote will be restored upon his or her release.  (xii)  If  at  any  time  during  a  revocation proceeding the alleged violator, his or her counsel, or an employee of the department contends, or if it reasonably appears to the hearing  officer,  that  the  alleged violator  is  an  incapacitated  person  as  that  term  is  defined  in subdivision one of section 730.10 of the criminal procedure law  and  no judicial  determination  has  been  made that the alleged violator is an incapacitated person, the revocation  proceeding  shall  be  temporarily stayed  until the superior court determines whether or not the person is fit to proceed. The matter shall be promptly referred  to  the  superior court  for determination of the alleged violator's fitness to proceed in a manner consistent with the provisions of article seven hundred  thirty of  the criminal procedure law, provided however that the superior court shall immediately appoint counsel for any unrepresented alleged violator eligible for appointed counsel under subparagraph (v) of  paragraph  (f) of  subdivision  three  of  section  two  hundred  fifty-nine-i  of this chapter. The court shall decide whether or not the alleged  violator  is incapacitated  within  thirty  days  of  the  referral  from the hearing 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 disabilities for care and treatment in an appropriate institution  in  a  manner  consistent  with subdivision  one  of  section 730.40 of the criminal procedure law. If a final order of observation has been issued pursuant to this section, the hearing officer shall dismiss the violation charges and  such  dismissal shall  act as a bar to any further proceeding under this section against the alleged violator for such violations. If felony criminal charges are pending at any time against an alleged violator who has been referred to superior court for a fitness evaluation but before  a  determination  of fitness  has  been made pursuant to this section, the court shall decide whether or not the alleged violator is incapacitated pursuant to article seven hundred thirty of the criminal procedure law  and  the  revocation proceeding  shall  be  held  in  abeyance  until  such decision has been reached. The hearing officer shall adopt the  capacity  finding  of  the court  and  either  terminate  the  revocation  process  if  an order of 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.   * NB Effective until March 1, 2022   * (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  hearing 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 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 hearing.  (3)  The  department  shall  have  six  months  from  the  date of the effective date of the chapter of the laws  of  two  thousand  twenty-one that  amended this paragraph to begin to hold such hearings at allowable locations.  (C)  However,  if  an  alleged  violator  requests  and  receives  any postponement  of  his  or  her  revocation  hearing,  or  consents  to a postponed revocation proceeding initiated by the board, or if an alleged violator, by his actions otherwise precludes the prompt conduct of  such proceedings, the time limit may be extended.  (ii)  The revocation hearing shall be conducted by a presiding officer who may be a member or a hearing officer  designated  by  the  board  in accordance with rules of the board.  (iii) Both the alleged violator and an attorney who has filed a notice of  appearance  on his or her behalf in accordance with the rules of the board of parole shall be given written notice of  the  date,  place  and time  of  the  hearing pursuant to subparagraph (ix) of paragraph (c) of this subdivision.  (iv) The alleged violator shall be given written notice of the  rights enumerated in subparagraph (iii) of paragraph (c) of this subdivision as well  as  of his or her right to present mitigating evidence relevant to restoration to  presumptive  release,  parole,  conditional  release  or post-release supervision and his or her right to counsel.  (v)  The  alleged  violator  shall  have  a right to representation by counsel at the  revocation  hearing.  In  any  case,  including  when  a superior  court  is  called  upon to evaluate the capacity of an alleged violator in a revocation proceeding, where such  person  is  financially unable  to  retain  counsel, the criminal court of the city of New York, the county court or district court in the county where the violation  is alleged  to  have  occurred  or  where the hearing is held, shall assign counsel in accordance with the county or city  plan  for  representation placed in operation pursuant to article eighteen-B of the county law. He or  she  shall  have  the  right  to  confront and cross-examine adverse witnesses, unless there  is  good  cause  for  their  non-attendance  as determined  by  the presiding officer; present witnesses and documentary evidence  in  defense  of  the  charges;  and  present   witnesses   and documentary evidence relevant to the question whether reincarceration of the alleged violator is appropriate.  (vi)  At  the  revocation  hearing,  the charges shall be read and the alleged violator shall be permitted to plead not guilty, guilty,  guilty with  explanation or to stand mute. As to each charge, evidence shall be introduced through witnesses and documents, if any, in support  of  that charge.  At the conclusion of each witness's direct testimony, he or she shall be made available for cross-examination. If the  alleged  violator intends  to  present  a defense to the charges or to present evidence of mitigating  circumstances,  the  alleged  violator  shall  do  so  after 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 may sustain a violation charge only if  the charge  is  supported  by  clear  and  convincing evidence. Conduct that formed the basis of an arrest shall not form  a  basis  of  a  sustained parole  violation  if  a  court  has  adjudicated  the  matter  with  an acquittal, adjournment in contemplation of dismissal, or violation.  (ix) If the presiding officer is not satisfied that there is clear and convincing evidence in support of the violation, he or she shall dismiss the  violation,  cancel  the  delinquency  and  restore  the  person  to presumptive   release,   parole,  conditional  release  or  post-release supervision.  (x) If the presiding officer is satisfied  that  there  is  clear  and convincing  evidence  that  the  alleged  violator  violated one or more conditions of release in an important respect, he or she shall so  find. For  each  sustained  technical  violation  the  presiding officer shall direct that no earned time credits shall be 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 found, the presiding officer may (A) direct that the releasee 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  (C)   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  reincarceration  up  to the  balance of the remaining period of post-release supervision, not to exceed five years; provided, however, that a defendant serving a term of post-release supervision for  a  conviction  of  a  felony  sex  offense defined  in  section  70.80 of the penal law may be subject to a further period of imprisonment up to the balance  of  the  remaining  period  of post-release  supervision, 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 reincarceration  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 alcohol; (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 incarceration is permissible if either action is  explicitly  prohibited by  the person's conviction; (g) failing to notify community supervision officer  of  contact  with any law enforcement agency, provided however, incarceration is permissible if the  person  intended  to  hide  illegal behavior; (h) failing to obey other special conditions, provided however that  incarceration is permissible if the failure cannot be addressed in the community and all reasonable community-based means  to  address  the failure have been exhausted; and  (3)  Sanctions  for  all  other  technical  violations.  For all other technical violations, no period of reincarceration may  be  imposed  for the  first  and  second  substantiated  technical  violations  for which incarceration may be imposed; up to seven days  reincarceration  may  be imposed  for  the  third  substantiated  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 incarceration 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 pursuant to this paragraph. If a releasee is committed to the custody of the  sheriff  pursuant  to  article  five hundred thirty of the criminal procedure 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 sanction. 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 violator serving an indeterminate sentence who has been found by  the  department  to  have  committed  a  serious  disciplinary infraction   while  re-incarcerated,  the  department  shall  refer  the violator to the board for  consideration  for  re-release  to  community supervision.  Upon  such  referral  the  board  may  waive  the personal interview between a member or members of the board and the  violator  to determine the suitability for re-release when the board directs that the violator  be  re-released  upon  expiration  of the time assessment. The board  shall  retain  the  authority  to  suspend  the  date  fixed  for re-release  based on the violator's commission of a serious disciplinary infraction and shall in  such  case  require  a  personal  interview  be conducted  within  a  reasonable  time between a panel of members of the board and the violator to determine suitability for  re-release.  If  an interview is required, the board shall notify the violator in advance of  the  date  and  time  of such interview in accordance with the rules and regulations of the board.   ** (xiv)  If  the  presiding  officer  sustains  any  violations, such officer must prepare a written statement, to be made  available  to  the alleged  violator and his or her counsel, indicating the evidence relied upon  and  the  reasons  for  revoking  presumptive   release,   parole, conditional release or post-release supervision, and for the disposition made.  The presiding officer shall also advise the alleged violator in a written statement that revocation will result in loss of  the  right  to vote  while  he  or  she  is  serving the remainder of his or her felony sentence in a correctional facility and that the right to vote  will  be restored upon his or her release.   ** NB Effective immediately per chapter 103/2021 § 8  (xv)  If  at  any  time  during  a  revocation  proceeding the alleged violator, his or her counsel, or an employee of the department contends, or if it reasonably appears to the hearing  officer,  that  the  alleged violator  is  an  incapacitated  person  as  that  term  is  defined  in subdivision one of section 730.10 of the criminal procedure law  and  no judicial  determination  has  been  made that the alleged violator is an incapacitated person, the revocation  proceeding  shall  be  temporarily stayed  until the superior court determines whether or not the person is fit to proceed. The matter shall be promptly referred  to  the  superior court  for determination of the alleged violator's fitness to proceed in a manner consistent with the provisions of article seven hundred  thirty of  the criminal procedure law, provided however that the superior court shall immediately appoint counsel for any unrepresented alleged violator eligible for appointed counsel under subparagraph (v) of this paragraph. 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 disabilities for care and treatment in an appropriate institution  in  a  manner  consistent  with subdivision  one  of  section 730.40 of the criminal procedure law. If a final order of observation has been issued pursuant to this section, the hearing officer shall dismiss the violation charges and  such  dismissal shall  act as a bar to any further proceeding under this section against the alleged violator for such violations. If felony criminal charges are pending at any time against an alleged violator who has been referred to superior court for a fitness evaluation but before  a  determination  of fitness  has  been made pursuant to this section, the court shall decide whether or not the alleged violator is incapacitated pursuant to article seven hundred thirty of the criminal procedure law  and  the  revocation proceeding  shall  be  held  in  abeyance  until  such decision has been reached. The hearing officer shall adopt the  capacity  finding  of  the court  and  either  terminate  the  revocation  process  if  an order of 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.   * NB Effective March 1, 2022  (g) Revocation of presumptive release, parole, conditional release  or post-release  supervision  shall  not  prevent  re-parole  or re-release provided such re-parole or re-release is not inconsistent with any other  provisions of law. When there has been a revocation  of  the  period  of post-release supervision imposed on a felony sex offender who owes three years  or  more  on such period imposed pursuant to subdivision two-a of section  70.45 of the penal law, and a time assessment of three years or more has been imposed, the violator shall be reviewed by  the  board  of parole  and  may  be  restored  to  post-release  supervision only after serving  three  years  of  the  time  assessment,  and   only   upon   a determination  by  the  board  of  parole  made  in  accordance with the procedures set forth in this section. Even if the  hearing  officer  has imposed a time assessment of a certain number of years of three years or more,  the violator shall not be released at or before the expiration of that time assessment unless  the  board  authorizes  such  release,  the period  of  post-release  supervision  expires,  or release is otherwise authorized by law. If a time assessment of less  than  three  years  was imposed  upon such a defendant, the defendant shall be released upon the expiration of such time assessment, unless  he  or  she  is  subject  to further imprisonment or confinement under any other law.  (h) If the alleged violation is not sustained and the alleged violator is  restored  to supervision, the interruptions specified in subdivision three of section 70.40 of the penal law shall not apply,  but  the  time spent in custody in any state or local correctional institution shall be credited  against  the term of the sentence in accordance with the rules specified in paragraph (c) of such subdivision.  (i) Where there is reasonable cause  to  believe  that  a  presumptive releasee,  parolee,  conditional  releasee  or person under post-release supervision has absconded from supervision the board  may  declare  such person  to  be delinquent. This paragraph shall not be construed to deny such person a preliminary revocation hearing upon his retaking,  nor  to relieve  the  department  of  any obligation it may have to exercise due diligence to retake the alleged absconder, nor to relieve the parolee or releasee of any obligation he may have to comply with the conditions  of his release.   4.  Appeals.  (a)  Except  for  determinations  made  upon preliminary hearings upon allegations of violation of presumptive  release,  parole, conditional release or post-release supervision, all determinations made pursuant  to  this  section  may  be  appealed  in accordance with rules promulgated by the board. Any  board  member  who  participated  in  the decision  from  which  the  appeal  is  taken may not participate in the resolution of that appeal. The rules of the board  may  specify  a  time within which any appeal shall be taken and resolved.  (b)  Upon  an  appeal to the board, the incarcerated individual may be represented  by  an  attorney.  Where  the  incarcerated  individual  is financially  unable to provide for his or her own attorney, upon request an attorney shall be assigned pursuant to the provisions of subparagraph (v) of paragraph (f) of subdivision three of this section.  (c)  All  board  of  parole   administrative   appeal   findings   and recommendations shall be published within one hundred twenty days of the determination   on   a  publicly  accessible  website  that  includes  a word-searchable database. The department of  corrections  and  community supervision  shall  provide  electronic or print copies of such findings and recommendations to all correctional  facility  law  libraries  on  a quarterly  basis. Copies of such individual findings and recommendations shall also be made available upon written request to the  department  of corrections  and  community  supervision. Information which would reveal confidential material that may not be released pursuant  to  federal  or state  law  shall  be  redacted  from  any  such website or findings and recommendations.    * 4-a.   Appeals   from   non-technical   violation   findings.  (a) Notwithstanding  the  provisions  of  any other law, when in a violation proceeding  brought  pursuant  to  this  section,  any  of  the  charges sustained  by  the  hearing  officer  would  constitute a misdemeanor or felony  if such charge were or had been brought in a criminal court, the releasee may, in lieu of an administrative appeal to the board  pursuant to  subdivision  four  of this section, appeal such determination to the lowest level of the following courts serving the jurisdiction  in  which the  hearing was held or in which any such sustained conduct was alleged to have occurred: city court, district court, county  court  or  supreme court;  provided, however, that if any such misdemeanor or felony charge was prosecuted in any city, district,  county  or  supreme  court,  such appeal shall be filed in that court.  (b)  The appeal shall be commenced by the filing of a notice of appeal in the same manner as an appeal to the appellate division as  set  forth in  paragraphs  (a), (b), (d) and (e) of subdivision one and subdivision six of section 460.10 of the criminal procedure law.  Counsel  shall  be assigned  to  the  individual, if unable to afford counsel, by the court before which the appeal is taken or is to be taken. Such court may  stay such  determination  pending the appeal, in a manner consistent with the provisions of section  460.50  of  the  criminal  procedure  law  or  as otherwise  authorized.  Within thirty days after receiving such a notice of appeal, the board shall serve on the individual or counsel  and  file with  such  court  a  transcript  of  the proceedings before the hearing officer prepared pursuant to paragraph (a) of subdivision  six  of  this section, and copies of the documents, photographs and records considered by  the  hearing  officer,  and  provide  access  to  any other evidence considered by the hearing officer who made such determination.  (c) The appeal shall be perfected in the manner set forth  in  section 460.70  of the criminal procedure law, other provisions of law generally applicable to criminal appeals, and authorized rules  implementing  this section  promulgated  by  the  chief  administrator  of  the courts. The department shall have responsibility  for  presenting  the  department's position  through  any  submissions  to  the  court  on  the appeal. The department shall coordinate with relevant district attorneys  to  ensure appropriate  information  may  be  provided  to  the court. The district attorney of the jurisdiction may appear on any such appeal  without  the necessity of a motion or order of the court.  (d)  On  such  appeal, the reviewing city, district, county or supreme court shall consider  de  novo  the  issues  raised  by  the  appellant, including  but  not  limited to the following: (a) whether any sustained violation charge should have been sustained; (b)  whether  reduction  or dismissal  of  the  alleged violation charge or charges is warranted, in accordance with the principles set forth in section  170.40  or  section 210.40  of  the criminal procedure law or otherwise; and (c) whether any time assessment and other authorized sanction  imposed  by  the  hearing officer  should be vacated, reduced or, notwithstanding any law, rule or regulation to the contrary, ordered to run concurrently with  any  other sentence, time assessment, or period of reincarceration imposed.   * NB Effective March 1, 2022   5.  Actions  of  the  board.  Any  action by the board or by a hearing officer pursuant to this article shall be deemed a judicial function and shall not be reviewable if done in accordance with law.   6. Record of proceedings. (a) (i) The  board  shall  provide  for  the making  of  a  verbatim  record of each parole release interview, except where a decision is made  to  release  the  incarcerated  individual  to parole  supervision,  and each preliminary and final revocation hearing, except when the decision of the presiding officer  after  such  hearings  result  in  a dismissal of all charged violations of parole, conditional release or post release supervision.  (ii)  Notwithstanding  the  provisions  of  subparagraph  (i)  of this paragraph, the board shall provide for the making of a  verbatim  record of   each   parole  release  interview  in  all  proceedings  where  the incarcerated individual is a detained  sex  offender  as  such  term  is defined  in  subdivision (g) of section 10.03 of the mental hygiene law. Such record shall be provided to the office of mental health for use  by the  multidisciplinary  staff  and  the  case  review  panel pursuant to section 10.05 of the mental hygiene law.  (b) The chairman of the board of parole shall maintain records of  all parole  interviews  and  hearings for a period of twenty-five years from the date of the parole release interview  or  until  expiration  of  the maximum term of sentence.   7. Deaf person before the board. Whenever any deaf person participates in   an  interview,  parole  release  hearing,  preliminary  hearing  or revocation hearing, there shall be appointed a qualified interpreter who is certified by a recognized national or New  York  state  credentialing authority  to  interpret  the  proceedings  to  and  the  statements  or testimony  of  such  deaf  person.  The  department  shall  determine  a reasonable  fee  for  all  such interpreting services, the cost of which shall be a charge upon the department.   8. Foreign born or non-English speaking person before the board.  Upon notification  from  the  department  pursuant  to  section  two  hundred fifty-nine-e of this article, or upon the request of any foreign born or non-English speaking person  who  is  scheduled  to  participate  in  an interview,  parole  release  hearing,  preliminary hearing or revocation hearing, there shall be appointed from the  New  York  state  office  of general services statewide administrative services contract, a qualified interpreter  to  interpret  the  proceedings  to  and  the statements or testimony of such person. The board shall determine a reasonable fee for all such interpreting services, the cost of which shall be a charge upon the board of parole. No such request or appointment shall cause a  delay of release from incarceration of such person.   * 9.  The  board  shall promulgate rules and regulations to facilitate the presence of nonprofit  service  providers  able  to  offer  relevant community-based  services  to  releasees  at  all  preliminary and final revocation hearings  for  the  purpose  of  helping  people  subject  to community  supervision  successfully complete such supervision and avoid future such supervision, and to help ensure  presiding  officers  impose the least restrictive reasonable sanction for any violation of community supervision.   * NB Effective March 1, 2022