(2) If the releasee has intentionally failed
to appear as directed in response to the notice of violation and has
intentionally failed to appear within forty-eight hours after such time, no
parole warrant may be issued and the violation charges shall be deemed
sustained.
(i) In such case, notice of the
decision shall be promptly served upon the releasee. Acceptable service in this
regard occurs when the releasee is served with notice of the decision within a
reasonable amount of time under the totality of the circumstances, and such
service may include, but not be limited to, delivering the notice of decision
to the releasee's approved address, or last known address if different than the
approved address.
(ii) Within one
month of the date the notice of decision was served upon the releasee, the
releasee may move to vacate such sustained violation(s) if the releasee can
show by a preponderance of the evidence that the notice of violation was not
properly served or the failure to appear was otherwise excusable.
(a) The releasee may make this motion by
paper submission only, filed with the Board of Parole Appeals Unit, at the
Board of Parole, New York State Department of Corrections and Community
Supervision, 1220 Washington Avenue, Albany, New York 12226. The motion must
include a copy of the notice of decision. The motion shall also be on notice to
the Department, including the Area Supervisor / Bureau Chief of the supervision
office responsible for the releasee's supervision in the community, which
notice must include a full copy of the filing with the Appeals Unit.
(b) The Department may respond to the motion
by submission to the Board of Parole Appeals Unit. Nothing shall preclude the
Appeals Unit or other Board staff from obtaining additional information as may
be relevant to the case and decision, including information from Department
staff and records.
(c) Following a
review of the motion, any response submitted the Department, and any additional
information that may be deemed relevant by the Appeals Unit, the Unit will make
a recommendation to the Board of Parole for determination. The matter will
thereafter be considered by at least one member of the Board for their
determination.
(d) If it is
determined that the releasee has shown by a preponderance of the evidence that
the notice of violation was not properly served or the failure to appear was
otherwise excusable, the revocation case will be reopened as may be
directed.
(e) Where it is
determined that the releasee failed to make the required showing, the automatic
sustaining of the violation charges and revocation shall stand.
(f) Motions provided for in this subparagraph
shall not be considered administrative appeals pursuant to Part 8006 of this
Title, and the process for their review and determination may be further
regulated pursuant to policy and procedures of the Board of Parole. The
determination upon any such review shall be an exhaustion of administrative
remedies on the motion and not subject to further administrative review or
consideration by the Board.