New York Codes, Rules and Regulations
Title 9 - EXECUTIVE DEPARTMENT
Subtitle CC - Division of Parole
Part 8002 - Parole Release
Section 8002.5 - Rescission
Universal Citation: 9 NY Comp Codes Rules and Regs ยง 8002.5
Current through Register Vol. 46, No. 12, March 20, 2024
(a) After an inmate has received a parole release date, situations may arise which would cause the board to reconsider its decision to grant parole release. The process for reconsideration of a parole release date shall be governed by the procedure outlined in this section.
(b) Rescission procedure.
(1) Whenever it shall
come to the attention of the senior parole officer or the parole officer in
charge of an institutional parole office that there may be a basis for board
reconsideration of a parole release date, said officer may temporarily suspend
the inmate's release date.
(2)
Events which may cause the temporary suspension and rescission of a parole
release date shall include, but not be limited to:
(i) significant information which existed, or
significant misbehavior which occurred prior to the rendition of the parole
release decision, where such information was not known by the board;
or
(ii) case developments which
occur subsequent to the board's rendition of its decision to grant release:
(a) significant misbehavior or a major
violation of facility rules;
(b)
escape or absconding or removal from temporary release;
(c) substantial change in the inmate's mental
and/or emotional condition which results in commitment to a psychiatric
center;
(d) imposition of an
additional definite sentence;
(e)
imposition of an additional indeterminate sentence or the resentence of the
inmate on the underlying indictment or superior court information to an
indeterminate term where the minimum period of imprisonment of such term
exceeds that of the pre-existing minimum term; and
(f) substantial change in the inmate's status
in relation to any of the factors for consideration denoted in Executive Law,
section
259-i(2)(c).
(3) Subsequent to the
temporary suspension of the inmate's release date, the parole officer shall, as
soon as practicable, notify the inmate in writing of the suspension. The parole
officer having charge of the inmate shall thereafter commence an investigation
into the circumstances surrounding the basis for the temporary suspension, and
shall prepare a rescission report delineating the results of said
investigation. Said report shall be submitted to a member of the board as soon
as practicable.
(4) Upon review of
the rescission report, a member of the board shall order:
(i) that the inmate be held for a rescission
hearing; or
(ii) that the inmate's
release date be reinstated, except that where the board's reinstatement occurs
subsequent to the date originally established for release, the board shall
order that release occur as soon after reinstatement as practicable;
or
(iii) for any case involving the
imposition of an additional indeterminate sentence or a resentence pursuant to
clause (2)(ii)(e) of this subdivision, that the release date be rescinded and
the inmate scheduled to appear before a panel of the Board of Parole at least
one month prior to the expiration of the new or aggregated minimum period of
imprisonment as calculated by the inmate records coordinator. Written notice of
a rescission decision rendered pursuant to this paragraph shall be sent to the
inmate, and shall state the reason for rescission.
(5) When a rescission hearing is ordered by
the board, the inmate shall be presented with a copy of the rescission report
and a notice of rescission hearing. The notice of rescission hearing shall be
presented to the inmate not less than seven days prior to the scheduled date of
the rescission hearing and shall inform the inmate of the following:
(i) the date and place of hearing;
(ii) the specific allegations which will be
considered at the hearing;
(iii)
the inmate's rights at the final hearing, which include:
(a) the right to be represented by
counsel;
(b) the right to appear
and speak on his own behalf; to present witnesses and introduce documentary
evidence; and
(c) the right to
confront and cross-examine adverse witnesses, unless he has been convicted of a
crime for which an additional sentence has been imposed or unless a majority of
the members of the Board of Parole conducting the hearing find good cause in
the record for the nonattendance of a witness.
(6) An attorney who represents an inmate at a
rescission hearing shall file a notice of appearance with the parole officer in
charge of the institutional parole office where the inmate is
incarcerated.
(c) Rescission hearing schedules.
(1) A
rescission hearing shall be scheduled to take place within a reasonable time
after the board orders a hearing. The hearing shall be convened at the inmate's
state facility of incarceration, and shall be conducted by members of the Board
of Parole.
(2) An attorney who has
filed a notice of appearance with the parole officer in charge of the
institutional parole office shall be given reasonable notice of the date, time
and place of the hearing.
(3)
Adjournments will not normally be granted. Applications for an adjournment by
either party shall be made to the board member conducting the hearing. However,
an adjournment may be granted by the parole officer in charge of the
institutional parole office in which the hearing is scheduled to be conducted
in the following instances:
(i) the inmate
cannot appear due to unavoidable circumstances, including incarceration outside
the facility in which the hearing is scheduled or physical
incapacitation;
(ii) not less than
five days before the scheduled hearing, the inmate and/or attorney makes a
written request for a postponement due to unavailability of
witnesses;
(iii) not less than five
days before the hearing, the attorney makes a written request based on his
recent assignment to the case; or
(iv) witnesses to support the allegation are
unavailable. No more than one adjournment shall be permitted for this reason.
A written notice of the time and date of an adjourned hearing shall be provided to the inmate and his attorney.
(d) Disposition.
(1) If a majority of the members of the Board
of Parole conducting the rescission hearing are satisfied that substantial
evidence was presented at the hearing to form a basis for rescinding the grant
of release, they shall so find. In such cases, the majority of the members may:
(i) rescind the inmate's release date and set
a new date for further release consideration not more than 24 months from the
date of the original release interview; or
(ii) rescind the inmate's original release
date and set a new release date.
(2) If a majority of the members of the board
conducting the hearing are not satisfied that substantial evidence exists to
form a basis for rescinding the grant of release, the board shall cancel the
suspension and reinstate the inmate's original release date or, if that date
has past, release shall occur as soon thereafter as is practicable.
(3) Within 14 days after the rescission
hearing, a written statement shall be prepared and sent to the inmate and his
attorney, indicating the disposition of the proceeding and the reasons
therefor.
(e) Appeals. A determination rescinding parole may be administratively appealed in accordance with the provisions of Part 8006 of this Title.
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