N.Y. Exec. Law § 259-i

§ 259-i. Procedures for the conduct of the work of the state board of\nparole.\n 2. Parole. * (a) (i) Except as provided in subparagraph (ii) of this\nparagraph, at least one month prior to the date on which an inmate may\nbe paroled pursuant to subdivision one of section 70.40 of the penal\nlaw, a member or members as determined by the rules of the board shall\npersonally interview such inmate and determine whether he should be\nparoled in accordance with the guidelines adopted pursuant to\nsubdivision four of section two hundred fifty-nine-c of this article. If\nparole is not granted upon such review, the inmate shall be informed in\nwriting within two weeks of such appearance of the factors and reasons\nfor such denial of parole. Such reasons shall be given in detail and not\nin conclusory terms. The board shall specify a date not more than\ntwenty-four months from such determination for reconsideration, and the\nprocedures to be followed upon reconsideration shall be the same. If the\ninmate is released, he shall be given a copy of the conditions of\nparole. Such conditions shall where appropriate, include a requirement\nthat the parolee comply with any restitution order, mandatory surcharge,\nsex offender registration fee and DNA databank fee previously imposed by\na court of competent jurisdiction that applies to the parolee. The\nconditions shall indicate which restitution collection agency\nestablished under subdivision eight of section 420.10 of the criminal\nprocedure law, shall be responsible for collection of restitution,\nmandatory surcharge, sex offender registration fees and DNA databank\nfees as provided for in section 60.35 of the penal law and section\neighteen hundred nine of the vehicle and traffic law.\n (ii) Any inmate who is scheduled for presumptive release pursuant to\nsection eight hundred six of the correction law shall not appear before\nthe board as provided in subparagraph (i) of this paragraph unless such\ninmate's scheduled presumptive release is forfeited, canceled, or\nrescinded subsequently as provided in such law. In such event, the\ninmate shall appear before the board for release consideration as\nprovided in subparagraph (i) of this paragraph as soon thereafter as is\npracticable.\n * NB Effective until September 1, 2017\n * (a) At least one month prior to the expiration of the minimum period\nor periods of imprisonment fixed by the court or board, a member or\nmembers as determined by the rules of the board shall personally\ninterview an inmate serving an indeterminate sentence and determine\nwhether he should be paroled at the expiration of the minimum period or\nperiods in accordance with the procedures adopted pursuant to\nsubdivision four of section two hundred fifty-nine-c. If parole is not\ngranted upon such review, the inmate shall be informed in writing within\ntwo weeks of such appearance of the factors and reasons for such denial\nof parole. Such reasons shall be given in detail and not in conclusory\nterms. The board shall specify a date not more than twenty-four months\nfrom such determination for reconsideration, and the procedures to be\nfollowed upon reconsideration shall be the same. If the inmate is\nreleased, he shall be given a copy of the conditions of parole. Such\nconditions shall where appropriate, include a requirement that the\nparolee comply with any restitution order and mandatory surcharge\npreviously imposed by a court of competent jurisdiction that applies to\nthe parolee. The conditions shall indicate which restitution collection\nagency established under subdivision eight of section 420.10 of the\ncriminal procedure law, shall be responsible for collection of\nrestitution and mandatory surcharge as provided for in section 60.35 of\nthe penal law and section eighteen hundred nine of the vehicle and\ntraffic law.\n * NB Effective September 1, 2017\n (b) Persons presumptively released, paroled, conditionally released or\nreleased to post-release supervision from an institution under the\njurisdiction of the department, the department of mental hygiene or the\noffice of children and family services shall, while on presumptive\nrelease, parole, conditional release or post-release supervision, be in\nthe legal custody of the department until expiration of the maximum term\nor period of sentence, or expiration of the period of supervision,\nincluding any period of post-release supervision, or return to\nimprisonment in the custody of the department, as the case may be.\n (c) (A) Discretionary release on parole shall not be granted merely as\na reward for good conduct or efficient performance of duties while\nconfined but after considering if there is a reasonable probability\nthat, if such inmate is released, he will live and remain at liberty\nwithout violating the law, and that his release is not incompatible with\nthe welfare of society and will not so deprecate the seriousness of his\ncrime as to undermine respect for law. In making the parole release\ndecision, the procedures adopted pursuant to subdivision four of section\ntwo hundred fifty-nine-c of this article shall require that the\nfollowing be considered: (i) the institutional record including program\ngoals and accomplishments, academic achievements, vocational education,\ntraining or work assignments, therapy and interactions with staff and\ninmates; (ii) performance, if any, as a participant in a temporary\nrelease program; (iii) release plans including community resources,\nemployment, education and training and support services available to the\ninmate; (iv) any deportation order issued by the federal government\nagainst the inmate while in the custody of the department and any\nrecommendation regarding deportation made by the commissioner of the\ndepartment pursuant to section one hundred forty-seven of the correction\nlaw; (v) any statement made to the board by the crime victim or the\nvictim's representative, where the crime victim is deceased or is\nmentally or physically incapacitated; (vi) the length of the determinate\nsentence to which the inmate would be subject had he or she received a\nsentence pursuant to section 70.70 or section 70.71 of the penal law for\na felony defined in article two hundred twenty or article two hundred\ntwenty-one of the penal law; (vii) the seriousness of the offense with\ndue consideration to the type of sentence, length of sentence and\nrecommendations of the sentencing court, the district attorney, the\nattorney for the inmate, the pre-sentence probation report as well as\nconsideration of any mitigating and aggravating factors, and activities\nfollowing arrest prior to confinement; and (viii) prior criminal record,\nincluding the nature and pattern of offenses, adjustment to any previous\nprobation or parole supervision and institutional confinement. The board\nshall provide toll free telephone access for crime victims. In the case\nof an oral statement made in accordance with subdivision one of section\n440.50 of the criminal procedure law, the parole board member shall\npresent a written report of the statement to the parole board. A crime\nvictim's representative shall mean the crime victim's closest surviving\nrelative, the committee or guardian of such person, or the legal\nrepresentative of any such person. Such statement submitted by the\nvictim or victim's representative may include information concerning\nthreatening or intimidating conduct toward the victim, the victim's\nrepresentative, or the victim's family, made by the person sentenced and\noccurring after the sentencing. Such information may include, but need\nnot be limited to, the threatening or intimidating conduct of any other\nperson who or which is directed by the person sentenced.\n (B) Where a crime victim or victim's representative as defined in\nsubparagraph (A) of this paragraph, or other person submits to the\nparole board a written statement concerning the release of an inmate,\nthe parole board shall keep that individual's name and address\nconfidential.\n (d) (i) Notwithstanding the provisions of paragraphs (a), (b) and (c)\nof this subdivision, after the inmate has served his minimum period of\nimprisonment imposed by the court, or at any time after the inmate's\nperiod of imprisonment has commenced for an inmate serving a determinate\nor indeterminate term of imprisonment, provided that the inmate has had\na final order of deportation issued against him and provided further\nthat the inmate is not convicted of either an A-I felony offense other\nthan an A-I felony offense as defined in article two hundred twenty of\nthe penal law or a violent felony offense as defined in section 70.02 of\nthe penal law, if the inmate is subject to deportation by the United\nStates Bureau of Immigration and Customs Enforcement, in addition to the\ncriteria set forth in paragraph (c) of this subdivision, the board may\nconsider, as a factor warranting earlier release, the fact that such\ninmate will be deported, and may grant parole from an indeterminate\nsentence or release for deportation from a determinate sentence to such\ninmate conditioned specifically on his prompt deportation. The board may\nmake such conditional grant of early parole from an indeterminate\nsentence or release for deportation from a determinate sentence only\nwhere it has received from the United States Bureau of Immigration and\nCustoms Enforcement assurance (A) that an order of deportation will be\nexecuted or that proceedings will promptly be commenced for the purpose\nof deportation upon release of the inmate from the custody of the\ndepartment of correctional services, and (B) that the inmate, if granted\nparole or release for deportation pursuant to this paragraph, will not\nbe released from the custody of the United States Bureau of Immigration\nand Customs Enforcement, unless such release be as a result of\ndeportation without providing the board a reasonable opportunity to\narrange for execution of its warrant for the retaking of such person.\n (ii) An inmate who has been granted parole from an indeterminate\nsentence or release for deportation from a determinate sentence pursuant\nto this paragraph shall be delivered to the custody of the United States\nBureau of Immigration and Customs Enforcement along with the board's\nwarrant for his retaking to be executed in the event of his release from\nsuch custody other than by deportation. In the event that such person is\nnot deported, the board shall execute the warrant, effect his return to\nimprisonment in the custody of the department and within sixty days\nafter such return, provided that the person is serving an indeterminate\nsentence and the minimum period of imprisonment has been served,\npersonally interview him to determine whether he should be paroled in\naccordance with the provisions of paragraphs (a), (b) and (c) of this\nsubdivision. The return of a person granted parole from an indeterminate\nsentence or release for deportation from a determinate sentence pursuant\nto this paragraph for the reason set forth herein shall not be deemed to\nbe a parole delinquency and the interruptions specified in subdivision\nthree of section 70.40 of the penal law shall not apply, but the time\nspent in the custody of the United States Bureau of Immigration and\nCustoms Enforcement shall be credited against the term of the sentence\nin accordance with the rules specified in paragraph (c) of that\nsubdivision. Notwithstanding any other provision of law, any inmate\ngranted parole from an indeterminate sentence or release for deportation\nfrom a determinate sentence pursuant to this paragraph who is\nsubsequently committed to imprisonment in the custody of the department\nfor a felony offense committed after release pursuant to this paragraph\nshall have his parole eligibility date on the indeterminate sentence for\nthe new felony offense, or his conditional release date on the\ndeterminate sentence for the new felony offense, as the case may be,\nextended by the amount of time between the date on which such inmate was\nreleased from imprisonment in the custody of the department pursuant to\nthis paragraph and the date on which such inmate would otherwise have\ncompleted service of the minimum period of imprisonment on the prior\nfelony offense.\n (e) Notwithstanding the requirements of paragraph (a) of this\nsubdivision, the determination to parole an inmate who has successfully\ncompleted the shock incarceration program pursuant to section two\nhundred sixty-seven of the correction law may be made without a personal\ninterview of the inmate and shall be made in accordance with procedures\nset forth in the rules of the board. If parole is not granted, the time\nperiod for reconsideration shall not exceed the court imposed minimum.\n 3. Revocation of presumptive release, parole, conditional release and\npost-release supervision. (a) * (i) If the parole officer having charge\nof a presumptively released, paroled or conditionally released person or\na person released to post-release supervision or a person received under\nthe uniform act for out-of-state parolee supervision shall have\nreasonable cause to believe that such person has lapsed into criminal\nways or company, or has violated one or more conditions of his\npresumptive release, parole, conditional release or post-release\nsupervision, such parole officer shall report such fact to a member of\nthe board, or to any officer of the department designated by the board,\nand thereupon a warrant may be issued for the retaking of such person\nand for his temporary detention in accordance with the rules of the\nboard. The retaking and detention of any such person may be further\nregulated by rules and regulations of the department not inconsistent\nwith this article. A warrant issued pursuant to this section shall\nconstitute sufficient authority to the superintendent or other person in\ncharge of any jail, penitentiary, lockup or detention pen to whom it is\ndelivered to hold in temporary detention the person named therein;\nexcept that a warrant issued with respect to a person who has been\nreleased on medical parole pursuant to section two hundred fifty-nine-r\nof this article and whose parole is being revoked pursuant to paragraph\n(h) of subdivision four of such section shall constitute authority for\nthe immediate placement of the parolee only into imprisonment in the\ncustody of the department to hold in temporary detention. A warrant\nissued pursuant to this section shall also constitute sufficient\nauthority to the person in charge of a drug treatment campus, as defined\nin subdivision twenty of section two of the correction law, to hold the\nperson named therein, in accordance with the procedural requirements of\nthis section, for a period of at least ninety days to complete an\nintensive drug treatment program mandated by the board as an alternative\nto presumptive release or parole or conditional release revocation, or\nthe revocation of post-release supervision, and shall also constitute\nsufficient authority for return of the person named therein to local\ncustody to hold in temporary detention for further revocation\nproceedings in the event said person does not successfully complete the\nintensive drug treatment program. The board's rules shall provide for\ncancellation of delinquency and restoration to supervision upon the\nsuccessful completion of the program.\n * NB Effective until June 8, 2016\n * (i) If the parole officer having charge of a presumptively released,\nparoled or conditionally released person or a person released to\npost-release supervision or a person received under the uniform act for\nout-of-state parolee supervision shall have reasonable cause to believe\nthat such person has lapsed into criminal ways or company, or has\nviolated one or more conditions of his presumptive release, parole,\nconditional release or post-release supervision, such parole officer\nshall report such fact to a member of the board, or to any officer of\nthe department designated by the board, and thereupon a warrant may be\nissued for the retaking of such person and for his temporary detention\nin accordance with the rules of the board unless such person has been\ndetermined to be currently unfit to proceed to trial or is currently\nsubject to a temporary or final order of observation pursuant to article\nseven hundred thirty of the criminal procedure law, in which case no\nwarrant shall be issued. The retaking and detention of any such person\nmay be further regulated by rules and regulations of the department not\ninconsistent with this article. A warrant issued pursuant to this\nsection shall constitute sufficient authority to the superintendent or\nother person in charge of any jail, penitentiary, lockup or detention\npen to whom it is delivered to hold in temporary detention the person\nnamed therein; except that a warrant issued with respect to a person who\nhas been released on medical parole pursuant to section two hundred\nfifty-nine-r of this article and whose parole is being revoked pursuant\nto paragraph (h) of subdivision four of such section shall constitute\nauthority for the immediate placement of the parolee only into\nimprisonment in the custody of the department to hold in temporary\ndetention. A warrant issued pursuant to this section shall also\nconstitute sufficient authority to the person in charge of a drug\ntreatment campus, as defined in subdivision twenty of section two of the\ncorrection law, to hold the person named therein, in accordance with the\nprocedural requirements of this section, for a period of at least ninety\ndays to complete an intensive drug treatment program mandated by the\nboard as an alternative to presumptive release or parole or conditional\nrelease revocation, or the revocation of post-release supervision, and\nshall also constitute sufficient authority for return of the person\nnamed therein to local custody to hold in temporary detention for\nfurther revocation proceedings in the event said person does not\nsuccessfully complete the intensive drug treatment program. The board's\nrules shall provide for cancellation of delinquency and restoration to\nsupervision upon the successful completion of the program.\n * NB Effective June 8, 2016\n (ii) A warrant issued for a presumptive release, a parole, a\nconditional release or a post-release supervision violator may be\nexecuted by any parole officer or any officer authorized to serve\ncriminal process or any peace officer, who is acting pursuant to his\nspecial duties, or police officer. Any such officer to whom such warrant\nshall be delivered is authorized and required to execute such warrant by\ntaking such person and having him detained as provided in this\nparagraph.\n (iii) Where the alleged violator is detained in another state pursuant\nto such warrant and is not under parole supervision pursuant to the\nuniform act for out-of-state parolee supervision or where an alleged\nviolator under parole supervision pursuant to the uniform act for\nout-of-state parolee supervision is detained in a state other than the\nreceiving state, the warrant will not be deemed to be executed until the\nalleged violator is detained exclusively on the basis of such warrant\nand the department has received notification that the alleged violator\n(A) has formally waived extradition to this state or (B) has been\nordered extradited to this state pursuant to a judicial determination.\nThe alleged violator will not be considered to be within the convenience\nand practical control of the department until the warrant is deemed to\nbe executed.\n (b) A person who shall have been taken into custody pursuant to this\nsubdivision for violation of one or more conditions of presumptive\nrelease, parole, conditional release or post-release supervision shall,\ninsofar as practicable, be incarcerated in the county or city in which\nthe arrest occurred.\n (c) (i) Within fifteen days after the warrant for retaking and\ntemporary detention has been executed, unless the releasee has been\nconvicted of a new crime committed while under presumptive release,\nparole, conditional release or post-release supervision, the board of\nparole shall afford the alleged presumptive release, parole, conditional\nrelease or post-release supervision violator a preliminary revocation\nhearing before a hearing officer designated by the board of parole. Such\nhearing officer shall not have had any prior supervisory involvement\nover the alleged violator.\n (ii) The preliminary presumptive release, parole, conditional release\nor post-release supervision revocation hearing shall be conducted at an\nappropriate correctional facility, or such other place reasonably close\nto the area in which the alleged violation occurred as the board may\ndesignate.\n (iii) The alleged violator shall, within three days of the execution\nof the warrant, be given written notice of the time, place and purpose\nof the hearing unless he or she is detained pursuant to the provisions\nof subparagraph (iv) of paragraph (a) of this subdivision. In those\ninstances, the alleged violator will be given written notice of the\ntime, place and purpose of the hearing within five days of the execution\nof the warrant. The notice shall state what conditions of presumptive\nrelease, parole, conditional release or post-release supervision are\nalleged to have been violated, and in what manner; that such person\nshall have the right to appear and speak in his or her own behalf; that\nhe or she shall have the right to introduce letters and documents; that\nhe or she may present witnesses who can give relevant information to the\nhearing officer; that he or she has the right to confront the witnesses\nagainst him or her. Adverse witnesses may be compelled to attend the\npreliminary hearing unless the prisoner has been convicted of a new\ncrime while on supervision or unless the hearing officer finds good\ncause for their non-attendance. As far as practicable or feasible, any\nadditional documents having been collected or prepared that support the\ncharge shall be delivered to the alleged violator.\n (iv) The preliminary hearing shall be scheduled to take place no later\nthan fifteen days from the date of execution of the warrant. The\nstandard of proof at the preliminary hearing shall be probable cause to\nbelieve that the presumptive releasee, parolee, conditional releasee or\nperson under post-release supervision has violated one or more\nconditions of his or her presumptive release, parole, conditional\nrelease or post-release supervision in an important respect. Proof of\nconviction of a crime committed while under supervision shall constitute\nprobable cause for the purposes of this section.\n (v) At the preliminary hearing, the hearing officer shall review the\nviolation charges with the alleged violator, direct the presentation of\nevidence concerning the alleged violation, receive the statements of\nwitnesses and documentary evidence on behalf of the prisoner, and allow\ncross examination of those witnesses in attendance.\n (vi) At the conclusion of the preliminary hearing, the hearing officer\nshall inform the alleged violator of his or her decision as to whether\nthere is probable cause to believe that the presumptive releasee,\nparolee, conditional releasee or person on post-release supervision has\nviolated one or more conditions of his or her release in an important\nrespect. Based solely on the evidence adduced at the hearing, the\nhearing officer shall determine whether there is probable cause to\nbelieve that such person has violated his or her presumptive release,\nparole, conditional release or post-release supervision in an important\nrespect. The hearing officer shall in writing state the reasons for his\nor her determination and the evidence relied on. A copy of the written\nfindings shall be sent to both the alleged violator and his or her\ncounsel.\n (vii) If the hearing officer is satisfied that there is no probable\ncause to believe that such person has violated one or more conditions of\nrelease in an important respect, he or she shall dismiss the notice of\nviolation and direct such person be restored to supervision.\n (viii) If the hearing officer is satisfied that there is probable\ncause to believe that such person has violated one or more conditions of\nrelease in an important respect, he or she shall so find.\n * (d) If a finding of probable cause is made pursuant to this\nsubdivision either by a determination at a preliminary hearing or by the\nwaiver thereof, or if the releasee has been convicted of a new crime\nwhile under presumptive release, parole, conditional release or\npost-release supervision, the board's rules shall provide for (i)\ndeclaring such person to be delinquent as soon as practicable and shall\nrequire reasonable and appropriate action to make a final determination\nwith respect to the alleged violation or (ii) ordering such person to be\nrestored to presumptive release, parole, conditional release or\npost-release supervision under such circumstances as it may deem\nappropriate or (iii) when a presumptive releasee, parolee, conditional\nreleasee or person on post-release supervision has been convicted of a\nnew felony committed while under such supervision and a new\nindeterminate or determinate sentence has been imposed, the board's\nrules shall provide for a final declaration of delinquency. The inmate\nshall then be notified in writing that his release has been revoked on\nthe basis of the new conviction and a copy of the commitment shall\naccompany said notification. The inmate's next appearance before the\nboard shall be governed by the legal requirements of said new\nindeterminate or determinate sentence, or shall occur as soon after a\nfinal reversal of the conviction as is practicable.\n * NB Effective until September 1, 2017\n * (d) If a finding of probable cause is made pursuant to this\nsubdivision either by determination at a preliminary hearing or by the\nwaiver thereof, or if the releasee has been convicted of a new crime\nwhile under his present parole or conditional release supervision, the\nboard's rules shall provide for (i) declaring such person to be\ndelinquent as soon as practicable and shall require reasonable and\nappropriate action to make a final determination with respect to the\nalleged violation or (ii) ordering such person to be restored to parole\nsupervision under such circumstances as it may deem appropriate or (iii)\nwhen a parolee or conditional releasee has been convicted of a new\nfelony committed while under his present parole or conditional release\nsupervision and a new indeterminate sentence has been imposed, the\nboard's rules shall provide for a final declaration of delinquency. The\ninmate shall then be notified in writing that his release has been\nrevoked on the basis of the new conviction and a copy of the commitment\nshall accompany said notification. The inmate's next appearance before\nthe board shall be governed by the legal requirements of said new\nindeterminate sentence, or shall occur as soon after a final reversal of\nthe conviction as is practicable.\n * NB Effective September 1, 2017\n (e) (i) If the alleged violator requests a local revocation hearing,\nhe or she shall be given a revocation hearing reasonably near the place\nof the alleged violation or arrest if he or she has not been convicted\nof a crime committed while under supervision. However, the board may, on\nits own motion, designate a case for a local revocation hearing.\n (ii) If there are two or more alleged violations, the hearing may be\nconducted near the place of the violation chiefly relied upon as a basis\nfor the issuance of the warrant as determined by the board.\n (iii) If a local revocation hearing is not ordered pursuant to\nsubparagraph (i) of this paragraph the alleged violator shall be given a\nrevocation hearing upon his or her return to a state correctional\nfacility.\n (f) (i) Revocation hearings shall be scheduled to be held within\nninety days of the probable cause determination. However, if an alleged\nviolator requests and receives any postponement of his revocation\nhearing, or consents to a postponed revocation proceeding initiated by\nthe board, or if an alleged violator, by his actions otherwise precludes\nthe prompt conduct of such proceedings, the time limit may be extended.\n (ii) The revocation hearing shall be conducted by a presiding officer\nwho may be a member or a hearing officer designated by the board in\naccordance with rules of the board.\n (iii) Both the alleged violator and an attorney who has filed a notice\nof appearance on his behalf in accordance with the rules of the board of\nparole shall be given written notice of the date, place and time of the\nhearing as soon as possible but at least fourteen days prior to the\nscheduled date.\n (iv) The alleged violator shall be given written notice of the rights\nenumerated in subparagraph (iii) of paragraph (c) of this subdivision as\nwell as of his right to present mitigating evidence relevant to\nrestoration to presumptive release, parole, conditional release or\npost-release supervision and his right to counsel.\n * (v) The alleged violator shall be permitted representation by\ncounsel at the revocation hearing. In any case where such person is\nfinancially unable to retain counsel, the criminal court of the city of\nNew York, the county court or district court in the county where the\nviolation is alleged to have occurred or where the hearing is held,\nshall assign counsel in accordance with the county or city plan for\nrepresentation placed in operation pursuant to article eighteen-B of the\ncounty law. He shall have the right to confront and cross-examine\nadverse witnesses, unless there is good cause for their non-attendance\nas determined by the presiding officer; present witnesses and\ndocumentary evidence in defense of the charges; and present witnesses\nand documentary evidence relevant to the question whether\nreincarceration of the alleged violator is appropriate.\n * NB Effective until June 8, 2016\n * (v) The alleged violator shall be permitted representation by\ncounsel at the revocation hearing. In any case, including when a\nsuperior court is called upon to evaluate the capacity of an alleged\nviolator in a parole revocation proceeding, where such person is\nfinancially unable to retain counsel, the criminal court of the city of\nNew York, the county court or district court in the county where the\nviolation is alleged to have occurred or where the hearing is held,\nshall assign counsel in accordance with the county or city plan for\nrepresentation placed in operation pursuant to article eighteen-B of the\ncounty law. He or she shall have the right to confront and cross-examine\nadverse witnesses, unless there is good cause for their non-attendance\nas determined by the presiding officer; present witnesses and\ndocumentary evidence in defense of the charges; and present witnesses\nand documentary evidence relevant to the question whether\nreincarceration of the alleged violator is appropriate.\n * NB Effective June 8, 2016\n (vi) At the revocation hearing, the charges shall be read and the\nalleged violator shall be permitted to plead not guilty, guilty, guilty\nwith explanation or to stand mute. As to each charge, evidence shall be\nintroduced through witnesses and documents, if any, in support of that\ncharge. At the conclusion of each witness's direct testimony, he shall\nbe made available for cross-examination. If the alleged violator intends\nto present a defense to the charges or to present evidence of mitigating\ncircumstances, the alleged violator shall do so after presentation of\nall the evidence in support of a violation of presumptive release,\nparole, conditional release or post-release supervision.\n (vii) All persons giving evidence at the revocation hearing shall be\nsworn before giving any testimony as provided by law.\n (viii) At the conclusion of the hearing the presiding officer may\nsustain any or all of the violation charges or may dismiss any or all\nviolation charges. He may sustain a violation charge only if the charge\nis supported by a preponderance of the evidence adduced.\n (ix) If the presiding officer is not satisfied that there is a\npreponderance of evidence in support of the violation, he shall dismiss\nthe violation, cancel the delinquency and restore the person to\npresumptive release, parole, conditional release or post-release\nsupervision.\n (x) If the presiding officer is satisfied that there is a\npreponderance of evidence that the alleged violator violated one or more\nconditions of release in an important respect, he or she shall so find.\nFor each violation so found, the presiding officer may (A) direct that\nthe presumptive releasee, parolee, conditional releasee or person\nserving a period of post-release supervision be restored to supervision;\n(B) as an alternative to reincarceration, direct the presumptive\nreleasee, parolee, conditional releasee or person serving a period of\npost-release supervision be placed in a parole transition facility for a\nperiod not to exceed one hundred eighty days and subsequent restoration\nto supervision; (C) in the case of presumptive releasees, parolees or\nconditional releasees, direct the violator's reincarceration and fix a\ndate for consideration by the board for re-release on presumptive\nrelease, or parole or conditional release, as the case may be; or (D) in\nthe case of persons released to a period of post-release supervision,\ndirect the violator's reincarceration up to the balance of the remaining\nperiod of post-release supervision, not to exceed five years; provided,\nhowever, that a defendant serving a term of post-release supervision for\na conviction of a felony sex offense defined in section 70.80 of the\npenal law may be subject to a further period of imprisonment up to the\nbalance of the remaining period of post-release supervision. For the\nviolator serving an indeterminate sentence who while re-incarcerated has\nnot been found by the department to have committed a serious\ndisciplinary infraction, such violator shall be re-released on the date\nfixed at the revocation hearing. For the violator serving an\nindeterminate sentence who has been found by the department to have\ncommitted a serious disciplinary infraction while re-incarcerated, the\ndepartment shall refer the violator to the board for consideration for\nre-release to community supervision. Upon such referral the board may\nwaive the personal interview between a member or members of the board\nand the violator to determine the suitability for re-release when the\nboard directs that the violator be re-released upon expiration of the\ntime assessment. The board shall retain the authority to suspend the\ndate fixed for re-release based on the violator's commission of a\nserious disciplinary infraction and shall in such case require a\npersonal interview be conducted within a reasonable time between a panel\nof members of the board and the violator to determine suitability for\nre-release. If an interview is required, the board shall notify the\nviolator in advance of the date and time of such interview in accordance\nwith the rules and regulations of the board.\n (xi) If the presiding officer sustains any violations, he must prepare\na written statement, to be made available to the alleged violator and\nhis counsel, indicating the evidence relied upon and the reasons for\nrevoking presumptive release, parole, conditional release or\npost-release supervision, and for the disposition made.\n * (xii) If at any time during a revocation proceeding the alleged\nviolator, his or her counsel, or an employee of the department contends,\nor if it reasonably appears to the hearing officer, that the alleged\nviolator is an incapacitated person as that term is defined in\nsubdivision one of section 730.10 of the criminal procedure law and no\njudicial determination has been made that the alleged violator is an\nincapacitated person, the revocation proceeding shall be temporarily\nstayed until the superior court determines whether or not the person is\nfit to proceed. The matter shall be promptly referred to the superior\ncourt for determination of the alleged violator's fitness to proceed in\na manner consistent with the provisions of article seven hundred thirty\nof the criminal procedure law, provided however that the superior court\nshall immediately appoint counsel for any unrepresented alleged violator\neligible for appointed counsel under subparagraph (v) of paragraph (f)\nof subdivision three of section two hundred fifty-nine-i of this\nchapter. The court shall decide whether or not the alleged violator is\nincapacitated within thirty days of the referral from the hearing\nofficer. If the court determines that the alleged violator is not an\nincapacitated person, the court shall order that the matter be returned\nto the board of parole for continuation and disposition of the\nrevocation proceeding. If the court determines that the alleged violator\nis an incapacitated person and if no felony charges are pending against\nthe alleged violator, the court shall issue a final order of observation\ncommitting such person to the custody of the commissioner of mental\nhealth or the commissioner of developmental disabilities for care and\ntreatment in an appropriate institution in a manner consistent with\nsubdivision one of section 730.40 of the criminal procedure law. If a\nfinal order of observation has been issued pursuant to this section, the\nhearing officer shall dismiss the violation charges and such dismissal\nshall act as a bar to any further proceeding under this section against\nthe alleged violator for such violations. If felony criminal charges are\npending at any time against an alleged violator who has been referred to\nsuperior court for a fitness evaluation but before a determination of\nfitness has been made pursuant to this section, the court shall decide\nwhether or not the alleged violator is incapacitated pursuant to article\nseven hundred thirty of the criminal procedure law and the revocation\nproceeding shall be held in abeyance until such decision has been\nreached. The hearing officer shall adopt the capacity finding of the\ncourt and either terminate the revocation process if an order of\nobservation has been made by the court or proceed with the revocation\nhearing if the alleged violator has been found not to be an\nincapacitated person.\n * NB Effective June 8, 2016\n (g) Revocation of presumptive release, parole, conditional release or\npost-release supervision shall not prevent re-parole or re-release\nprovided such re-parole or re-release is not inconsistent with any other\nprovisions of law. When there has been a revocation of the period of\npost-release supervision imposed on a felony sex offender who owes three\nyears or more on such period imposed pursuant to subdivision two-a of\nsection 70.45 of the penal law, and a time assessment of three years or\nmore has been imposed, the violator shall be reviewed by the board of\nparole and may be restored to post-release supervision only after\nserving three years of the time assessment, and only upon a\ndetermination by the board of parole made in accordance with the\nprocedures set forth in this section. Even if the hearing officer has\nimposed a time assessment of a certain number of years of three years or\nmore, the violator shall not be released at or before the expiration of\nthat time assessment unless the board authorizes such release, the\nperiod of post-release supervision expires, or release is otherwise\nauthorized by law. If a time assessment of less than three years was\nimposed upon such a defendant, the defendant shall be released upon the\nexpiration of such time assessment, unless he or she is subject to\nfurther imprisonment or confinement under any other law.\n (h) If the alleged violation is not sustained and the alleged violator\nis restored to supervision, the interruptions specified in subdivision\nthree of section 70.40 of the penal law shall not apply, but the time\nspent in custody in any state or local correctional institution shall be\ncredited against the term of the sentence in accordance with the rules\nspecified in paragraph (c) of such subdivision.\n (i) Where there is reasonable cause to believe that a presumptive\nreleasee, parolee, conditional releasee or person under post-release\nsupervision has absconded from supervision the board may declare such\nperson to be delinquent. This paragraph shall not be construed to deny\nsuch person a preliminary revocation hearing upon his retaking, nor to\nrelieve the department of any obligation it may have to exercise due\ndiligence to retake the alleged absconder, nor to relieve the parolee or\nreleasee of any obligation he may have to comply with the conditions of\nhis release.\n 4. Appeals. (a) Except for determinations made upon preliminary\nhearings upon allegations of violation of presumptive release, parole,\nconditional release or post-release supervision, all determinations made\npursuant to this section may be appealed in accordance with rules\npromulgated by the board. Any board member who participated in the\ndecision from which the appeal is taken may not participate in the\nresolution of that appeal. The rules of the board may specify a time\nwithin which any appeal shall be taken and resolved.\n (b) Upon an appeal to the board, the inmate may be represented by an\nattorney. Where the inmate is financially unable to provide for his own\nattorney, upon request an attorney shall be assigned pursuant to the\nprovisions of subparagraph (v) of paragraph (f) of subdivision three of\nthis section.\n 5. Actions of the board. Any action by the board or by a hearing\nofficer pursuant to this article shall be deemed a judicial function and\nshall not be reviewable if done in accordance with law.\n 6. Record of proceedings. (a) (i) The board shall provide for the\nmaking of a verbatim record of each parole release interview, except\nwhere a decision is made to release the inmate to parole supervision,\nand each preliminary and final revocation hearing, except when the\ndecision of the presiding officer after such hearings result in a\ndismissal of all charged violations of parole, conditional release or\npost release supervision.\n (ii) Notwithstanding the provisions of subparagraph (i) of this\nparagraph, the board shall provide for the making of a verbatim record\nof each parole release interview in all proceedings where the inmate is\na detained sex offender as such term is defined in subdivision (g) of\nsection 10.03 of the mental hygiene law. Such record shall be provided\nto the office of mental health for use by the multidisciplinary staff\nand the case review panel pursuant to section 10.05 of the mental\nhygiene law.\n (b) The chairman of the board of parole shall maintain records of all\nparole interviews and hearings for a period of twenty-five years from\nthe date of the parole release interview or until expiration of the\nmaximum term of sentence.\n 7. Deaf person before the board. Whenever any deaf person participates\nin an interview, parole release hearing, preliminary hearing or\nrevocation hearing, there shall be appointed a qualified interpreter who\nis certified by a recognized national or New York state credentialing\nauthority to interpret the proceedings to and the statements or\ntestimony of such deaf person. The board shall determine a reasonable\nfee for all such interpreting services, the cost of which shall be a\ncharge upon the division of parole.\n