New York Codes, Rules and Regulations › Title 9 - EXECUTIVE DEPARTMENT › Subtitle CC - Division of Parole › Part 8004 - Revocation Process › Section 8004.1 - General

Current through Register Vol. 46, No. 28, July 10, 2024
(a) A person who
				fails to comply with the terms of their release may be declared delinquent, and
				may be returned to a correctional facility. A person on presumptive, parole or
				conditional release, or serving a period of post-release supervision, may be
				returned to a correctional facility for a period equal to the remaining portion
				of their sentence(s), and for any remaining period of post-release supervision.
				A person on conditional release under a definite sentence of imprisonment may
				be returned for a period equal to the unexpired portion of the term of
				imprisonment as of the date of their conditional release.
(b) A violation of a term of release in an
				important respect may be a non-technical violation, or a technical violation
				whether or not reincarceration is authorized for such.
(c) If, at the final hearing, the presiding
				officer concludes that the conduct established by the appropriate standard of
				proof under section
				8005.20  of this Title is
				insufficient to sustain the charge as the type of violation described, but
				sufficient to sustain the charge as a violation with an authorized disposition
				of lesser severity, it shall be so sustained and the charge conformed to the
				proof, provided that the notice afforded to the releasee was sufficient to
				inform them of the conduct comprising such conformed charge.
(d) The term parole warrant shall mean a
				warrant for the retaking and temporary detention of a releasee in accordance
				with the Executive Law and section
				8004.5  of this Part.
(e) The term violation as used in this Part
				and Part 8005 of this Title, and in section
				8002.6  of this Title, may refer to
				an individual act of violating a condition of release. Multiple violations may
				be charged and sustained within a single parole revocation case.
(f) "Absconding" means intentionally avoiding
				supervision by failing to maintain contact or communication with the releasee's
				parole officer or area office / bureau and to notify his or her assigned parole
				officer or area office / bureau of a change in residence, and reasonable
				efforts by the parole officer to re-engage the releasee have been unsuccessful.
				Evidence that reasonable efforts by the parole officer to re-engage the
				releasee have been unsuccessful may be provided by the Department during
				revocation proceedings and such reasonable efforts need not be alleged in
				writing within a charge or charges. Evidence that the releasee has voluntarily
				surrendered to custody or that they have at some point re-engaged with the
				parole officer does not necessarily preclude a finding of absconding.
(g) A releasee may, as a condition of release
				and/or instruction of the parole officer, be directed to appear at any parole
				revocation process appearance, including the appearance directed in response to
				a notice of violation, and any preliminary and/or final revocation hearing and
				any adjourned or continuation appearances therefrom. A violation of such
				direction may provide basis for the releasee's retaking and temporary detention
				consistent with further provisions of this Part or as ordered by a court. A
				releasee may also be directed to appear at any recognizance hearing to occur
				following execution of a parole warrant.
(h) Being in the company of, or fraternizing
				with, a person the releasee knows to have a criminal record or to have been
				adjudicated a youthful offender shall not in itself be prohibited by a
				condition of release or form the basis for a parole revocation. However,
				conditions of release that prohibit a releasee from having contact with
				specified individuals, or other specified groups including criminal
				organizations or gangs, are not precluded.
(i) Conduct related to cannabis that is
				lawful pursuant to the laws of this State shall not in itself form the basis
				for a parole revocation except where violative of a special condition, which
				condition may only be imposed upon clear and convincing evidence that the
				prohibition is reasonably related to the releasee's underlying crime(s). In a
				revocation proceeding any such condition is presumed to have met the applicable
				standard for imposition and the propriety of such imposition shall not be
				reviewable in such context.
(j)
				Reincarceration as used in this Part and Part 8005 of this Title, and as may be
				used in section
				8002.6  of this Title, includes a
				time assessment which may be imposed with the disposition of a parole
				revocation case where one or more violation charges are sustained. A time
				assessment may be imposed for each sustained violation for which a period of
				reincarceration is authorized provided, however, that in a single revocation
				case all such periods imposed shall run concurrently.
(k) Mental capacity/fitness of a releasee who
				is an alleged violator of the conditions of release.
(1) If, prior to the issuance of a notice of
				violation or parole warrant where no notice has been issued, a releasee has
				been determined to be currently mentally 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 at that time.
(2) If, from a recognizance hearing
				appearance pursuant to the Executive Law, the releasee has been referred for a
				determination of their mental fitness to proceed in a manner consistent with
				the provisions of article seven hundred thirty of the Criminal Procedure Law
				and been determined by a court of law to currently be an incapacitated person
				as that term is defined in subdivision one of section 730.10  of the Criminal Procedure Law, no
				preliminary or final revocation proceedings shall be scheduled to occur at that
				time or during the period in which the alleged violator is subject to the order
				of observation.
(3) Where a hearing
				officer at a preliminary or final parole revocation hearing appearance has
				stayed the revocation proceedings for a superior court determination, pursuant
				to the Executive Law, regarding the alleged violator's mental fitness to
				proceed in a manner consistent with the provisions of article seven hundred
				thirty of the criminal procedure law:
(i) If
				the superior court in such circumstances determines that the alleged violator
				is not an incapacitated person, then following the court's notice of such
				determination to the Board, the revocation case shall proceed with reasonable
				allowance for appropriate scheduling and notice thereof; or
(ii) If the superior court in such
				circumstances determines that the alleged violator is an incapacitated person
				and issues 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, following
				the Board's timely receipt of notice of such determination from the court and
				notification of the facility/institution designation by the appropriate
				commissioner, the hearing officer shall dismiss the violation charges and such
				dismissal shall act as a bar to any further revocation proceeding against the
				alleged violator for such violations.