New York Codes, Rules and Regulations › Title 9 - EXECUTIVE DEPARTMENT › Subtitle CC - Division of Parole › Part 8004 - Revocation Process › Section 8004.11 - Discretionary Cancellation of Revocation Process

Current through Register Vol. 46, No. 28, July 10, 2024
(a) At any time
				after the completion and approval for prosecution of a notice of violation, or
				after the issuance of a notice of violation or a warrant for retaking and
				temporary detention, and before the preliminary hearing or waiver thereof, an
				officer of the Department assigned to field service and holding a title above
				senior parole officer, after consultation with the designated officer issuing
				the notice of violation or warrant, may report in writing such circumstances
				concerning the notice of violation or warrant as are relevant to a Board member
				who may then vacate the notice of violation or warrant, and cancel the
				revocation case.
(b) Actions
				pursuant to subdivision (a) of this section may be without prejudice to the
				recommencement of the revocation case or issuance of a new notice of violation
				and/or warrant based upon the same charges, as the Board member
				directs.
(c) Following a waiver by
				the releasee of a preliminary parole revocation hearing or a finding of a
				preponderance of the evidence at a preliminary hearing, upon application of the
				Department submitted to the Board and prior to any appearance at a final
				hearing, upon agreement of three Board members, the notice of violation or
				warrant may be vacated with the releasee restored to supervision under such
				circumstances as are deemed appropriate.
(d) Where a final revocation hearing has not
				yet commenced by the swearing of witnesses and the taking of testimony or
				evidence, the revocation case, notice of violation, and delinquency, if any,
				may be cancelled by three members of the Board of Parole or the administrative
				law judge, who shall state their reasons in writing for the cancellation at or
				before the time of the final hearing but prior to the swearing of witnesses and
				the taking of testimony or evidence. In cases where the alleged violator is
				serving a sentence for a felony offense under articles 120, 125, 130, 135, 160,
				230, 235, 255, 263, 265, 485 or 490 of the Penal Law, or where the releasee has
				been granted early conditional parole for deportation only or conditional
				parole for deportation only pursuant to section 259-i (2) (d)  of the Executive Law, such cancellation
				can only be effectuated by the three members of the Board. Cancellation under
				this subdivision shall not preclude a subsequent notice of violation or warrant
				based on the same charges.
(e)
				Where a final revocation hearing has commenced by the swearing of witnesses and
				the taking of testimony or evidence, a revocation case may no longer be
				cancelled except following dismissal of all violation charges at the conclusion
				of a final revocation hearing. A cancellation under this subdivision shall
				preclude a subsequent notice of violation or warrant based upon the same
				violation charges.
(f) A warrant
				may be withdrawn or cancelled without a cancellation of the revocation
				case.
(g) Cancellation of the
				revocation case pursuant to this section shall also cancel the delinquency that
				may have been declared pursuant to subdivision (a) of section
				8004.10  of this Part.