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

Universal Citation: 9 NY Comp Codes Rules and Regs ยง 8004.1

Current through Register Vol. 46, No. 12, March 20, 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.

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