New York Codes, Rules and Regulations › Title 9 - EXECUTIVE DEPARTMENT › Subtitle L - Division of Military and Naval Affairs › Chapter IV - Military Justice › Part 516 - Rules For Courts-martial › Section 516.11 - Post-trial procedure

Current through Register Vol. 46, No. 28, July 10, 2024
(a)
				  Report of result of trial; post-trial restraint; deferment of confinement.
(1) Report of the result of trial. After
				  final adjournment of the court-martial in a case, the trial counsel must
				  promptly notify the accused's immediate commander, the convening authority or
				  the convening authority's designee, and, if appropriate, the officer in charge
				  of the confinement facility of the findings and sentence (See ML,
				  130.60[a]).
(2) Post-trial
				  confinement.
(i) In general. An accused may
				  be placed in post-trial confinement if the sentence adjudged by the
				  court-martial includes confinement (ML, 130.57[b]).
(ii) Who may order confinement. Unless
				  limited by superior authority, a commander of the accused may order the accused
				  into post-trial confinement when post-trial confinement is authorized under
				  subparagraph (i) of this paragraph. A commander authorized to order post-trial
				  confinement under this paragraph may delegate this authority to the trial
				  counsel.
(iii) Confinement on other
				  grounds. Nothing in this subdivision prohibits confinement of a person after a
				  court-martial on proper grounds other than the offenses for which the accused
				  was tried at that court-martial.
(3) Deferment of confinement.
(i) In general. Deferment of a sentence to
				  confinement is a postponement of the service and of the running of the sentence
				  (ML, 130.57[d]).
(ii) Who may
				  defer. The convening authority or, if the accused is no longer in the convening
				  authority's jurisdiction, the officer exercising general court-martial
				  jurisdiction over the command to which the accused is assigned, may, upon
				  written application of the accused, at any time after the adjournment of the
				  court-martial, defer the accused's service of a sentence to confinement which
				  has not been ordered executed.
(iii) Action on deferment request. The
				  authority acting on the deferment request may, in that authority's discretion,
				  defer service of a sentence to confinement. The accused has the burden to show
				  that the interests of the accused and the community in release outweigh the
				  community's interests in confinement. Factors that the authority acting on a
				  deferment request may consider in determining whether to grant the deferment
				  request include: the probability of the accused's flight; the probability of
				  the accused's commission of other offenses, intimidation of witness, or
				  interference with the administration of justice; the nature of the offenses
				  (including the effect on the victim) of which the accused was convicted; the
				  sentence adjudged; the command's immediate need for the accused; the effect of
				  deferment on good order and discipline in the command; and the accused's
				  character, mental condition, family situation, and service record. The decision
				  of the authority acting on the deferment shall be subject to judicial review
				  only for abuse of discretion. The action of the convening authority shall be
				  written and a copy shall be provided to the accused.
(iv) Orders. The action granting deferment
				  must be reported in the convening authority's action under N.Y.R.C.M.
				  1107(f)(4)(E) and must include the date of the action on the request when it
				  occurs prior to or concurrently with the action. Action granting deferment
				  after the convening authority's action under N.Y.R.C.M. 1107 must be reported
				  in orders under N.Y.R.C.M. 1114 and included in the record of trial.
(v) Restraint when deferment is granted. When
				  deferment of confinement is granted, no form of restraint or other limitation
				  on the accused's liberty may be ordered as a substitute form of
				  punishment.
(vi) End of deferment.
				  Deferment of a sentence to confinement ends when:
(a) the convening authority takes action
				  under N.Y.R.C.M. 1107, unless the convening authority specifies in the action
				  that service of confinement after the action is deferred;
(b) the confinement is suspended;
(c) the deferment expires by it own terms;
				  or
(d) the deferment is otherwise
				  rescinded in accordance with subparagraph (vii) of this paragraph.
Deferment of confinement may not continue after the
					 conviction is final under N.Y.R.C.M. 1209.
(vii) Rescission of deferment.
(a) Who may rescind. The authority who
				  granted the deferment or, if the accused is no longer within that authority's
				  jurisdiction, the officer exercising general court-martial jurisdiction over
				  the command to which the accused is assigned, may rescind the
				  deferment.
(b) Action. Deferment of
				  confinement may be rescinded when additional information is presented to a
				  proper authority which, when considered with all other information in the case,
				  that authority finds, in that authority's discretion, is grounds for denial of
				  deferment under subparagraph (iii) of this paragraph. The accused must promptly
				  be informed of the basis for the rescission and of the right to submit written
				  matters in the accused's behalf and to request that the rescission be
				  reconsidered. However, the accused may be required to serve the sentence to
				  confinement pending this action.
(c) Execution. When deferment is rescinded
				  after the convening authority's action under N.Y.R.C.M. 1107, the confinement
				  may be ordered executed. However, no such order may be issued within seven days
				  of notice of the rescission to the accused under clause (b) of this
				  subparagraph, to afford the accused an opportunity to respond. The authority
				  rescinding the deferment may extend this period for good cause shown. The
				  accused must be credited with any confinement actually served during this
				  period.
(d) Orders. Rescission of a
				  deferment before or concurrently with the initial action in the case must be
				  reported in the action under N.Y.R.C.M 1107(f)(4)(E), which action includes the
				  dates of the granting of the deferment and the rescission. Rescission of a
				  deferment after the convening authority's action must be reported in
				  supplementary orders in accordance with N.Y.R.C.M. 1114 and must state whether
				  the approved period of confinement is to be executed or whether all or part of
				  it is to be suspended.