Current through Register Vol. 46, No. 12, March 20, 2024
(a) Following
execution of a parole warrant, for any releasee remaining in custody pursuant
to such warrant, a recognizance hearing will be held. The recognizance hearing
shall be presided over by a court of law as set forth in subdivision (b) of
this section and the conduct of such hearing is the responsibility of that
court. Except as provided in paragraph (3) of subdivision (b) of this section,
the recognizance hearing may not be combined with any other proceeding nor
shall the court decide any subject other than the issue of release on
recognizance in regard to the parole warrant.
(b) The releasee for whom a recognizance
hearing must be held will be presented for such hearing as follows:
(1) For any releasee alleged to have
committed a violation of a condition of release in an important respect in the
city of New York, the authorized officer shall present the releasee to the
criminal court of the city of New York or the supreme court criminal term in
the county where the violation is alleged to have been committed for a
recognizance hearing within twenty-four hours of the execution of the warrant.
If no such court of record is available to conduct any business of any type
within twenty-four hours of the execution of the warrant, the recognizance
hearing shall commence on the next day such a court in the jurisdiction is
available to conduct any business of any type.
(2) For any releasee alleged to have
committed a violation of a condition of release in an important respect outside
of the city of New York, the authorized officer shall present the releasee to a
county court, district court or city court in the county or city where the
violation is alleged to have been committed for a recognizance hearing. If no
such court of record is available to conduct any business of any type within
twenty-four hours of the execution of the warrant, the recognizance hearing
shall commence on the next day such court is available to conduct any business
of any type.
(3) If the violation
charge or charges involve conduct that would constitute a new felony or
misdemeanor offense, such recognizance hearing may be held at the same time as
a proceeding pursuant to Article 530 of the Criminal Procedure Law for any
warrant issued by the Department prior to such proceeding. If at the proceeding
pursuant to Article 530 of the Criminal Procedure Law the court imposes bail on
the new alleged criminal offense or commits the releasee to the custody of the
sheriff pursuant to such article and the releasee secures release by paying
bail or under non-monetary conditions or by operation of law, then the releasee
shall not be detained further based solely on the warrant issued by the
Department. If the Department issues a warrant for a non-technical violation
for alleged criminal conduct that has already been the subject of a court's
order pursuant to Article 530 of the Criminal Procedure Law, then within
twenty-four hours of execution of the warrant the releasee shall be provided a
recognizance hearing, provided, however, that if no court as provided in this
section is available to conduct any business of any type within twenty-four
hours of the execution of the warrant, then the recognizance hearing shall
commence on the next day such court is available to conduct any business of any
type.
(4) Authorized officer shall
mean the superintendent or other person in charge of the jail, penitentiary,
lockup or detention pen in which the releasee was detained under the authority
of the parole warrant, or their authorized staff. In its discretion, however,
the Department may permit other peace officers to function as authorized
officers for this purpose.
(5) The
time within which the authorized officer is to present the releasee for
purposes of a recognizance hearing and in which to commence such hearing shall
be extended where reasonable to ensure that such releasee is presented to the
appropriate court as identified in paragraphs (1) and (2) of this
subdivision.
(6) Where the
releasee's custody is pursuant to the parole warrant and they are not detained
in the county within which the violations are alleged to have occurred, except
as may otherwise be deemed appropriate by the Board or Department due to case
specific circumstances, execution of the warrant shall not be deemed completed
within the meaning of this section until their known reception in the
appropriate county, provided however, that for releasees detained pursuant to a
parole warrant within the city of New York, the warrant may be deemed executed
upon their exclusive and known custody pursuant to such warrant within any
county therein.
(7) The failure of
the authorized officer to present the releasee within the periods set forth in
this paragraph shall have no effect on the validity of the parole warrant or
the parole violation charges and shall not in itself require release, but may
provide basis for an application to a court of law, on notice to the Department
and Board of Parole, for an order compelling the appropriate
production.
(c) The
purpose of the recognizance hearing is to determine whether the releasee is to
be detained pending a preliminary or final revocation hearing, and if not, what
non-monetary conditions in the community shall be imposed which will reasonably
assure the releasee's appearance at the preliminary or final revocation
hearing.
(d) At the hearing there
is a presumption of release on recognizance, which release is to be ordered by
the court unless it finds that:
(1) the
releasee currently presents a substantial risk of willfully failing to appear
at preliminary or final revocation hearings; and
(2) that no non-monetary condition or
combination of conditions in the community will reasonably assure the
releasee's appearance at the preliminary or final revocation
hearings.
(e) If the
court makes the findings in subdivision (d) of this section the releasee is to
be ordered detained until the conclusion of all parole revocation proceedings
and the issuance of the final decision therefrom, and as may be consistent with
any decision revoking release and directing the releasee's
reincarceration.
(f) If the court
finds that the standards identified in subdivision (d) of this section for an
order directing the releasee's continued detention are not met, the releasee is
to be ordered released and such order must include the least restrictive
non-monetary conditions that will reasonably assure the releasee's appearance
at subsequent preliminary and final revocation hearings, provided, however:
(1) The releasee shall not be required to pay
for any part of the cost of such conditions imposed by the court.
(2) The Board and Department retain
independent authority to impose conditions of release, including, but not
limited to, conditions intended to support a likelihood that the releasee will
appear at the preliminary and final revocation hearings and appearances, and
any other conditions related to community supervision, whether applicable to
the period following the recognizance hearing or thereafter. Violation of these
conditions for any such releasee may be considered and charged as violations of
the conditions of release.
(g) The releasee has the right to
representation by counsel at the recognizance hearing.
(h) The Department shall be a party to any
recognizance hearing relevant, in whole or in part, to a parole warrant.
(1) The Department should demonstrate to the
recognizance court that the executed warrant had been properly issued, and
should inform the court of the following:
(i)
that there is probable cause to believe the releasee violated one or more of
the conditions of their release in an important respect;
(ii) that such fact was reported to a member
of the Board or a designated officer identified in section
8004.2;
(iii) that upon such report, a Board member
or designated officer issued the parole warrant; and
(iv) the violative behavior the releasee is
believed to have engaged in.
(2) The Department shall present information
to the court regarding the alleged violations, and the releasee's community
supervision record to the extent practicable and where such information is
relevant to the purpose of the recognizance hearing.
(3) Inasmuch as the court may consider such
factors as evidence of the releasee's employment, family and community ties
including length of residency in the community, history of reporting in a
timely fashion to their parole officer, and any other evidence relevant to
their stability, the Department should be prepared to offer such available
information to the court.
(4) Where
practicable and if an alleged violation is the subject of a pending criminal
prosecution, the Department shall coordinate with the office of the district
attorney to ensure that relevant information regarding such alleged violation
is presented to the court.
(i) At the time of the hearing the Department
shall serve the releasee with the notice of violation if they were not
previously served with such notice, and:
(1)
The Department may also provide a copy of the notice to releasee's counsel at
such hearing.
(2) The notice,
amendment thereto or some other document must be served on the releasee at such
time apprising them of the time and place of the preliminary revocation
hearing, or if a preliminary hearing is not required, the time and place of the
final revocation hearing, to any extent such information had not previously
been provided to the releasee. Such information shall be in accord with
relevant provisions in Part 8005 of this Title and must account for the court's
order stemming from the recognizance hearing.
(3) The notice, amendment thereto or some
other document should be served on the releasee at such time stating what
conditions of release are alleged to have been violated and in what manner, to
any extent such information had not previously been provided to the
releasee.
(j) In all
cases the Department should request that a written order regarding recognizance
be issued and promptly served on the Department following such issuance. The
court is required to explain its decision on recognizance on the record or in
writing.
(k) In the event a
recognizance hearing is held without the participation of responsible
Department staff, such fact should be reported as soon as practicable to
Counsels for the Department and for the Board of Parole, but the failure to so
report shall neither affect the court's recognizance order nor prevent further
legal proceedings regarding such.
(l) Nothing within this section shall be
construed as expanding the purpose of, and appropriate scope of inquiry at, a
recognizance hearing as set forth in in subdivisions (c) and (d) of this
section, and the recognizance court remains without authority to rule on the
validity of a notice of violation, parole warrant, or any other aspect of the
parole revocation case and its continuation. The evidence presented at the
recognizance hearing shall not constrain the Department to any position or
representation in the parole revocation process, nor may the court's order or
findings on recognizance affect the preliminary or final parole revocation
decisions, including the determinations by the presiding officer regarding time
assessments that may be imposed upon any sustained violations.
