Current through Register Vol. 46, No. 12, March 20, 2024
(a) Participation in a temporary release
program is a privilege. Nothing contained in the Correction Law, the Executive
Law or this Subpart shall be construed to confer upon any resident the right to
participate, or to continue to participate, in a temporary release
program.
(b) Any resident's
privilege to participate in a temporary release program may be revoked by the
facility director: whenever he has knowledge that a resident's continued
participation in the program is inconsistent with the safety of the community,
the disciplined secure functioning of the facility, or the best interests or
welfare of the resident; or if the resident has indicated by his conduct that
there is a substantial likelihood he cannot successfully adjust to or complete
his temporary release program; or upon recommendation of the temporary release
committee chairperson. Such revocation must be made only with the approval of
the director of temporary release programs.
(c) Indications of unsuitability for
continued temporary release programming include, but are not limited to:
(1) arrest and/or conviction for a crime
committed while participating in program;
(2) absconding, or attempting to abscond,
from program;
(3) a violation of
division, facility or temporary release program rules or regulations;
(4) threats by the participant against
himself, his family, other residents, facility employees, or members of the
community;
(5) threats made against
the participant which require his placement in a protective custody
location;
(6) changes in the
participant's physical or mental status which have changed his ability to
successfully adjust to program;
(7)
an uncooperative attitude or a lack of motivation on the part of the
participant evidenced by his failure to successfully participate in the
temporary release program; or
(8) a
significant negative change in the participant's employment or student
status.
(d) Removal
procedures for short-term temporary release participants. The assigned parole
officer or any employee of the Division for Youth shall notify the facility
director of any firsthand knowledge of a resident's unsatisfactory
participation in a short-term temporary release program. The facility director
shall determine whether the resident should be removed from the short-term
temporary release program and notify the temporary release committee
chairperson of this decision.
(e)
Removal procedures for continuous temporary release participants.
(1) The temporary release parole officer or
any employee of the Division for Youth who has firsthand knowledge of a
continuous temporary release participant's unsatisfactory or deteriorating
adjustment to his temporary release program may file a written statement with
the chairperson of the temporary release committee requesting a review of the
participant's adjustment to the program. The temporary release committee shall
then evaluate the participant's progress in, and adjustment to, the program and
make a recommendation to the facility director regarding the participant's
suitability for continued participation in the temporary release program. If a
resident violates a division, facility or temporary release rule or regulation,
a report of such violation shall be referred to the adjustment committee for
consideration. This violation must be resolved by normal division disciplinary
procedures, pursuant to Subpart 179-1 of this Part, before the temporary
release committee may review the participant's program adjustment and
suitability for continuation in the temporary release program.
(2) If a temporary release participant
receives a disciplinary infraction or misbehavior report and appears before an
adjustment committee or facility director's proceeding for a violation of
division, facility or temporary release rule or regulation prior to his
appearance before the temporary release committee, the adjustment committee or
facility director's proceeding shall not recommend removal from a temporary
release program as a dispositional option. However, the adjustment committee or
facility director's proceeding may refer a resident's case to the temporary
release committee for review pursuant to paragraph (1) of this subdivision. It
is the temporary release committee's responsibility to make a recommendation to
the facility director concerning the resident's suitability for continued
participation in a temporary release program. The temporary release committee
may not use a disciplinary infraction or misbehavior report as a reason for
recommending that a resident be removed from a temporary release program if the
disciplinary violation is not sustained by an adjustment committee or facility
director's proceeding. However, the temporary release committee may recommend a
participant's removal from a temporary release program for other
reasons.
(3) Upon receiving a
written request to review a temporary release participant's adjustment in a
temporary release program, the chairperson of the temporary release committee
shall evaluate the referral and schedule a meeting of the temporary release
committee in accordance with the urgency of the referral. If the resident has
not had a disciplinary violation sustained by an adjustment committee or a
facility director's proceeding, and the resident has not been transferred from
the temporary release facility, he shall be scheduled to appear at the
temporary release committee meeting. At least 24 hours before the resident's
scheduled meeting with the temporary release committee, he shall be given a
written statement of the reason(s) for his referral. A copy of the statement
shall be retained in the resident's facility file.
(4) Upon convening the meeting of the
temporary release committee, the chairperson shall advise the committee members
of the nature of the referral and the resident's adjustment in program to date,
and provide any other information which the committee needs to evaluate the
resident's adjustment. The resident shall then be given the opportunity to meet
with the temporary release committee to discuss the evaluation of his program
participation.
(5) The temporary
release committee shall ensure that appropriate efforts have been made to
address the resident's problems. Then, the temporary release committee shall
decide, by majority vote, what action should be recommended to the facility
director. The chairperson of the temporary release committee shall promptly
forward to the facility director a written statement containing the committee's
recommendation and its reason(s) therefor.
(6) Immediate transfer.
(i) A temporary release participant who is
considered a security risk may be transferred from a temporary release facility
to another division secure facility before a temporary release committee
meeting, adjustment committee meeting or facility director's proceeding is
convened. A participant may be considered a security risk if:
(a) he is violent;
(b) he presents a danger to himself, other
persons, property, or facility security;
(c) there is an immediate threat to his
safety;
(d) there is reasonable
cause to believe he may try to escape or abscond; or
(e) he has been arrested and released on bail
or his own recognizance.
(ii) A temporary release participant also may
be transferred if he requires immediate medical or other professional care or
treatment which is not available at the temporary release facility.
(iii) A transfer order must be obtained from
the director of temporary release programs to move a resident out of a
temporary release facility.
(iv) In
all other cases, the removal or revocation procedures described in paragraphs
(2)-(5) and (7)-(10) of this subdivision must be completed before a participant
may be transferred from the temporary release facility.
(v) It is not necessary for a temporary
release participant who has been transferred from the temporary release
facility and who has a sustained disciplinary violation to appear at the
temporary release committee meeting. However, if a disciplinary violation is
not sustained against a temporary release participant who has already been
transferred from the temporary release facility, the chairperson of the
temporary release committee at the facility from which the resident was
transferred shall visit the resident at the facility to which he has been
transferred to advise the resident of the nature of the referral and the
factors about which the temporary release committee is concerned, and to give
the resident the opportunity to address these issues in the chairperson's
presence. At least 24 hours before the resident is scheduled to appear before
the temporary release committee chairperson, the resident shall be given a
written statement of the reason(s) for his referral.
(vi) In exigent circumstances, the facility
director of the facility from which the resident has been transferred may
request the facility director of the facility to which the resident was
transferred to have that facility's temporary release committee meet with the
resident to advise him of the nature of the referral and the factors about
which the sending temporary release committee is concerned, and to give the
resident the opportunity to address these issues in the presence of the
receiving facility's temporary release committee. At least 24 hours before the
resident is scheduled to appear before the temporary release committee, he
shall be given a written statement of the reasons for his referral.
(vii) In exigent circumstances where the
receiving facility's temporary release committee cannot be assembled, the
facility director may act as the temporary release committee for program review
purposes.
(viii) The chairperson of
the temporary release committee holding the meeting shall promptly forward a
written statement to the facility director of the facility where the resident
has been participating in a temporary release program, recommending that the
resident either be returned to that facility for further temporary release
programming or be removed from temporary release. The statement shall include
the reason(s) for the recommendation.
(7) The facility director shall either
approve or disapprove the temporary release committee's recommendation. If the
facility director disapproves such a recommendation, he shall provide the
temporary release committee chairperson who made the recommendation with a
written statement of the reason(s) for his decision.
(8) If the facility director approves a
recommendation that a resident be removed from the temporary release program,
the resident's privilege to participate in a temporary release program shall be
revoked.
(9) The facility director
shall advise the chairperson of the temporary release committee of any action
to revoke a resident's privilege to participate in a temporary release program.
The temporary release committee chairperson then shall forward a written
statement to the resident, advising that removal from temporary release has
been ordered by the facility director and stating the reason(s) why this action
is being taken. Copies of this statement shall also be placed in the resident's
facility file and made available to the Board of Parole before the resident's
next appearance.
(10) When a
resident's privilege to participate in a temporary release program is revoked,
a copy of the temporary release committee's recommendation and the facility
director's decision shall be forwarded to the director of temporary release
programs for review. If a disciplinary violation was a factor in the decision
to revoke the resident's temporary release privilege, a copy of the adjustment
committee's or facility director's proceeding reports regarding the violation
shall also be forwarded. A transfer order shall be obtained from the director
of temporary release programs to move a resident out of the temporary release
facility.
(11) Parole Board action
affecting participation.
(i) A resident held
more than 12 months.
(a) A resident who meets
the Board of Parole and is ordered held in excess of 12 months is statutorily
ineligible to continue to participate in a temporary release program unless his
conditional release or maximum expiration date is less than 12 months away.
Such a resident shall be removed from program immediately. An order from the
director of temporary release programs shall be obtained to transfer the
resident to an appropriate secure facility.
(b) A resident who is removed from the
program because he was held by the Board of Parole in excess of 12 months has
no entitlement to be placed back in a temporary release program immediately
upon his again becoming statutorily eligible for temporary release. A new
application for temporary release must be submitted at that time.
(ii) A resident held less than 12
months.
(a) A resident who meets the Board of
Parole and is ordered held for less than 12 months, or a resident held for more
than 12 months who has a conditional release or maximum expiration date less
than 12 months away, shall be reevaluated by the temporary release committee to
determine whether he should be permitted to continue in program or any aspect
of his program should be changed before he is again permitted to leave the
facility on temporary release. If the temporary release committee concludes
that a resident should be removed from his temporary release program, the
resident shall appear before the temporary release committee and the procedures
detailed in paragraphs (2) through (10) of this subdivision shall be
followed.
(b) When appropriate, the
parole officer at the temporary release facility shall ensure that the Board of
Parole's decision regarding a continuous temporary release participant is made
available immediately to the temporary release committee chairperson so the
temporary release committee can make a prompt decision whether the participant
should be permitted to leave the facility on temporary release, and schedule an
evaluation if necessary. Whenever possible, the parole officer should give the
temporary release committee chairperson the Board of Parole's reason(s) for
ordering an appearance at a later date.