Current through Register Vol. 46, No. 12, March 20, 2024
(a)
Definition.
A time assessment is a period of
reincarceration which is fixed as a result of a sustained violation at a final
parole revocation hearing. A time assessment may be imposed for each sustained
violation charge for which a period of reincarceration is authorized in a
revocation case. The date upon which a parole violator who receives any time
assessment will be eligible for re-release is determined by the expiration of
the longest time assessment imposed within the revocation
case.
(b)
How time
assessments are calculated.
(1) Time
assessments will be set in months or days, depending on the circumstances,
except, where applicable, they may be set as a hold to the maximum expiration
of the sentence. Only time assessments corresponding to sustained technical
violation charges may be set in days.
(2) Time assessments will commence and be
credited as follows:
(i) Where a parole
warrant was executed and the violator remained in custody continuously from
that date until the conclusion of the final revocation hearing, the time
assessments shall commence on the date of the execution of the warrant
provided, however, that time assessments will not be credited with any time in
which the releasee is not within the convenience and practical control of the
Department.
(ii) Where a parole
warrant was executed and the violator was ordered released by a court following
a recognizance hearing, the time assessments shall commence upon the date of
the issuance, by service on the violator, of a determination after a final
hearing that the person has violated one or more conditions of release.The time
assessments shall be credited with any time the violator spent in custody
between the date the warrant was executed and the date of the recognizance
hearing.
(iii) Where the revocation
case was commenced and no parole warrant was executed, the time assessments
shall commence upon the date of the issuance of a determination after a final
hearing that the person has violated one or more conditions of
release.
(iv) Where the releasee
had been committed to the custody of the sheriff within New York State pursuant
to Article 530 of the Criminal Procedure Law, any such time the person spent
confined in a correctional facility or local correctional facility following
execution of the parole warrant or service of the notice of violation, as the
case may be, to the date of the final hearing, shall be credited toward the
time assessment.
(3) The
date of the issuance of a determination after the final hearing within the
meaning of this section shall not be until such date as both the completed
parole revocation decision has been issued and the releasee is within the
physical custody and control of the Department to commence the period of
reincarceration as of such date. The Department shall have a reasonable amount
of time under the totality of circumstances in which to enforce the time
assessments imposed in the cases referenced in subparagraphs (ii) and (iii) of
paragraph (2) of this section and shall have no such obligation during any
period in which the releasee is outside of the convenience and practical
control of the Department or is alleged to have absconded from
supervision.
(4) Any time
assessments imposed within the same revocation case shall run concurrently with
one another.
(5) For any time
assessments imposed, if the time remaining on the sentence is less than the
time assessments specified by the presiding officer, such assessments shall be
deemed a hold to the maximum expiration of the sentence.
(6) Within this section and section
8005.20, sentence shall include
sentence and post release supervision time, if any.
(c)
(1)
Eligibility for re-release. All parole violators identified as eligible for
re-release as defined by subdivision (a) of this section, will be re-released
to parole supervision as soon as practicable after completion of the delinquent
time assessment imposed irrespective of whether they are in State or local
custody. If, at the completion of the delinquent time assessment imposed, the
parole violator is serving the balance of a definite sentence of incarceration,
the parole warrant will be lifted upon completion of the delinquent time
assessment. However, when presented with one or more of the following
circumstances, the board of parole will consider the violator's re-release
pursuant to subdivision (d) this section:
(i)
the parole violator has engaged in behavior, which constitutes a violation of
facility rules or has been found guilty of having violated such
rules;
(ii) the parole violator has
experienced a significant change in his/her emotional/mental state (which may
be evidenced by the parole violator's transfer to a psychiatric ward or
facility, his/her commitment to a mental hygiene facility, or his/her placement
on a suicide watch or functional equivalent);
(iii) the parole violator was
arrested/convicted of a new felony subsequent to the final parole revocation
hearing; or
(iv) the board receives
any information that supports a reasonable conclusion that the parole violator
may not be suitable for re-release. Such information shall include, but not be
limited to, information pertaining to self-destructive or threatening behavior
by the parole violator.
(d)
Consideration by the parole
board.
(1) Parole violator in local
custody. If at any time preceding the expiration of the time assessment
imposed, the parole violator is identified as an exception for re-release
eligibility under subdivision (c) of this section and the parole violator
remains in local custody, the violator will be considered for re-release by the
board upon the violator's return to a State correctional facility. Such
consideration shall be through an interview by a panel of two or more members
of the board of parole as soon as practicable from the time of the violator's
return to State custody. When the Board of Parole considers the parole violator
for re-release, there shall be no presumption, express or implied, favoring the
violator's re-release.
(2) Parole
violator in State custody. If at any time preceding the expiration of the time
assessment imposed, the parole violator is identified as an exception for
re-release eligibility under subdivision (c) of this section and the parole
violator is incarcerated in a State correctional facility, then the following
rules shall apply:
(i) Consideration by the
board of parole of a violator in State custody may be conducted by one or more
members of the board during the two-month period immediately preceding the
expiration of the time assessment without a personal interview.
(ii) After considering a parole violator who
is in State custody for re-release, the board member or members will make one
of two possible determinations as follows:
(a)
the board may direct that the violator be re-released to supervision upon
expiration of the time assessment after a satisfactory release program is
developed and approved; or
(b) the
board may require that a personal interview be conducted between a panel of two
or more members of the board and the parole violator. When the board requires a
personal interview, such interview shall be conducted within a reasonable time.
When, after such interview, the board again considers the parole violator for
re-release, there shall be no presumption, express or implied, favoring the
violator's re-release.
(iii) Grounds for requiring a personal
interview. Any one of the following circumstances may serve as a ground for the
board to require an interview between the panel of the board and the parole
violator:
(a) the parole violator has engaged
in behavior which constitutes a violation of facility rules or has been found
guilty of having violated such rules;
(b) the parole violator has experienced a
significant change in his/her emotional/mental state (which may be evidenced by
the parole violator's transfer to a psychiatric ward or facility, his/her
commitment to a mental hygiene facility, or his/her placement on a suicide
watch or functional equivalent);
(c) the parole violator was
arrested/convicted of a new felony subsequent to the final parole revocation
hearing;
(d) escape, absconding or
removal from temporary release; or
(e) the board receives any information that
supports a reasonable conclusion that the parole violator may not be suitable
for re-release. Such information shall include, but not be limited to,
information pertaining to self-destructive or threatening behavior by the
parole violator.
(e)
Inapplicability to certain cases.
The provisions of this section shall be inapplicable to any
parole violator whose eligibility for parole release is governed by the
statutory requirements of a new sentence.
(f)
Interim procedures for certain
cases.
For those parole violators whose time assessments expired
prior to the effective date of this section, or will expire within 90 days
after the effective date of this section, the provisions of subdivisions (c)
and (d) of this section shall be deemed to be modified as follows:
consideration by the board will be conducted as soon as practicable following
adoption of this section, but may occur after expiration of the time
assessment. This section shall not be construed to afford any parole violator a
right to release from custody upon expiration of the time assessment, but only
a right to consideration by the board as soon as practicable. The effective
date of this section is April 20, 1993.
The
amended version of this section by
New
York State Register July 20, 2022/Volume XLIV, Issue 29, eff.
6/30/2022 is not yet
available.
The
amended version of this section by
New
York State Register March 29, 2023/Volume XLV, Issue 13, eff.
3/13/2023 is not yet
available.