There is a newer version of the New York Consolidated Laws
2010 New York Code
EXC - Executive
Article 12-B - (259 - 259-S) STATE DIVISION OF PAROLE
259-I - Procedures for the conduct of the work of the state board of parole.
§ 259-i. Procedures for the conduct of the work of the state board of
parole. 1. Establishment of minimum periods of imprisonment.
(a) In any case where a person is received in an institution under the
jurisdiction of the department of correctional services with an
indeterminate sentence, and the court has not fixed a minimum period of
imprisonment, the board shall cause to be brought before one or more
members in accordance with the rules of the board within one hundred
twenty days from the date on which such person is received in an
institution under the jurisdiction of the department of correctional
services pursuant to such sentence or as soon thereafter as practicable,
all information with regard to such persons referred to in subdivision
three of section two hundred fifty-nine-c of this article. The member or
members receiving such information shall study the same and shall
personally interview the sentenced person. Upon conclusion of the
interview, he shall determine the minimum period of imprisonment to be
served prior to parole consideration in accordance with the guidelines
adopted pursuant to subdivision four of section two hundred fifty-nine-c
of this article. Such guidelines shall include (i) the seriousness of
the offense with due consideration to the type of sentence, length of
sentence and recommendations of the sentencing court, the district
attorney, the attorney for the inmate, the pre-sentence probation report
as well as consideration of any mitigating and aggravating factors, and
activities following arrest and prior to confinement; and (ii) prior
criminal record, including the nature and pattern of offenses,
adjustment to any previous probation or parole supervision and
institutional confinement. Such determination shall have the same force
and effect as a minimum period fixed by a court, except that the board
may provide by rule for the making of subsequent determinations reducing
such minimum period which shall not be reduced to less than one year.
Notification of such determination and of any subsequent determinations
and of the reasons therefor shall be furnished in writing to the
sentenced person and to the person in charge of the institution as soon
as practicable. Such reasons shall be given in detail and not in
conclusory terms.
(b) In any case where the minimum period of imprisonment is fixed
independent of the criteria adopted by the board pursuant to subdivision
four of section two hundred fifty-nine-c of this article, written
reasons shall be given for such determination in detail and not in
conclusory terms.
2. Parole. * (a) (i) Except as provided in subparagraph (ii) of this
paragraph, at least one month prior to the date on which an inmate may
be paroled pursuant to subdivision one of section 70.40 of the penal
law, a member or members as determined by the rules of the board shall
personally interview such inmate and determine whether he should be
paroled in accordance with the guidelines adopted pursuant to
subdivision four of section two hundred fifty-nine-c of this article. If
parole is not granted upon such review, the inmate shall be informed in
writing within two weeks of such appearance of the factors and reasons
for such denial of parole. Such reasons shall be given in detail and not
in conclusory terms. The board shall specify a date not more than
twenty-four months from such determination for reconsideration, and the
procedures to be followed upon reconsideration shall be the same. If the
inmate is released, he shall be given a copy of the conditions of
parole. Such conditions shall where appropriate, include a requirement
that the parolee comply with any restitution order, mandatory surcharge,
sex offender registration fee and DNA databank fee previously imposed by
a court of competent jurisdiction that applies to the parolee. The board
of parole shall indicate which restitution collection agency established
under subdivision eight of section 420.10 of the criminal procedure law,
shall be responsible for collection of restitution, mandatory surcharge,
sex offender registration fees and DNA databank fees as provided for in
section 60.35 of the penal law and section eighteen hundred nine of the
vehicle and traffic law.
(ii) Any inmate who is scheduled for presumptive release pursuant to
section eight hundred six of the correction law shall not appear before
the parole board as provided in subparagraph (i) of this paragraph
unless such inmate's scheduled presumptive release is forfeited,
canceled, or rescinded subsequently as provided in such law. In such
event, the inmate shall appear before the parole board for release
consideration as provided in subparagraph (i) of this paragraph as soon
thereafter as is practicable.
* NB Effective until September 1, 2011
* (a) At least one month prior to the expiration of the minimum period
or periods of imprisonment fixed by the court or board, a member or
members as determined by the rules of the board shall personally
interview an inmate serving an indeterminate sentence and determine
whether he should be paroled at the expiration of the minimum period or
periods in accordance with the guidelines adopted pursuant to
subdivision four of section two hundred fifty-nine-c. If parole is not
granted upon such review, the inmate shall be informed in writing within
two weeks of such appearance of the factors and reasons for such denial
of parole. Such reasons shall be given in detail and not in conclusory
terms. The board shall specify a date not more than twenty-four months
from such determination for reconsideration, and the procedures to be
followed upon reconsideration shall be the same. If the inmate is
released, he shall be given a copy of the conditions of parole. Such
conditions shall where appropriate, include a requirement that the
parolee comply with any restitution order and mandatory surcharge
previously imposed by a court of competent jurisdiction that applies to
the parolee. The board of parole shall indicate which restitution
collection agency established under subdivision eight of section 420.10
of the criminal procedure law, shall be responsible for collection of
restitution and mandatory surcharge as provided for in section 60.35 of
the penal law and section eighteen hundred nine of the vehicle and
traffic law.
* NB Effective September 1, 2011
(b) Persons presumptively released, paroled, conditionally released or
released to post-release supervision from an institution under the
jurisdiction of the department of correctional services or the
department of mental hygiene shall, while on presumptive release,
parole, conditional release or post-release supervision, be in the legal
custody of the division of parole until expiration of the maximum term
or period of sentence, or expiration of the period of supervision,
including any period of post-release supervision, or return to the
custody of the department of correctional services, as the case may be.
(c) (A) Discretionary release on parole shall not be granted merely as
a reward for good conduct or efficient performance of duties while
confined but after considering if there is a reasonable probability
that, if such inmate is released, he will live and remain at liberty
without violating the law, and that his release is not incompatible with
the welfare of society and will not so deprecate the seriousness of his
crime as to undermine respect for law. In making the parole release
decision, the guidelines adopted pursuant to subdivision four of section
two hundred fifty-nine-c of this article shall require that the
following be considered: (i) the institutional record including program
goals and accomplishments, academic achievements, vocational education,
training or work assignments, therapy and interpersonal relationships
with staff and inmates; (ii) performance, if any, as a participant in a
temporary release program; (iii) release plans including community
resources, employment, education and training and support services
available to the inmate; (iv) any deportation order issued by the
federal government against the inmate while in the custody of the
department of correctional services and any recommendation regarding
deportation made by the commissioner of the department of correctional
services pursuant to section one hundred forty-seven of the correction
law; (v) any statement made to the board by the crime victim or the
victim's representative, where the crime victim is deceased or is
mentally or physically incapacitated; and (vi) the length of the
determinate sentence to which the inmate would be subject had he or she
received a sentence pursuant to section 70.70 or section 70.71 of the
penal law for a felony defined in article two hundred twenty or article
two hundred twenty-one of the penal law. The board shall provide toll
free telephone access for crime victims. In the case of an oral
statement made in accordance with subdivision one of section 440.50 of
the criminal procedure law, the parole board member shall present a
written report of the statement to the parole board. A crime victim's
representative shall mean the crime victim's closest surviving relative,
the committee or guardian of such person, or the legal representative of
any such person. Such statement submitted by the victim or victim's
representative may include information concerning threatening or
intimidating conduct toward the victim, the victim's representative, or
the victim's family, made by the person sentenced and occurring after
the sentencing. Such information may include, but need not be limited
to, the threatening or intimidating conduct of any other person who or
which is directed by the person sentenced. Notwithstanding the
provisions of this section, in making the parole release decision for
persons whose minimum period of imprisonment was not fixed pursuant to
the provisions of subdivision one of this section, in addition to the
factors listed in this paragraph the board shall consider the factors
listed in paragraph (a) of subdivision one of this section.
(B) Where a crime victim or victim's representative as defined in
subparagraph (A) of this paragraph, or other person submits to the
parole board a written statement concerning the release of an inmate,
the parole board shall keep that individual's name and address
confidential.
(d) (i) Notwithstanding the provisions of paragraphs (a), (b) and (c)
of this subdivision, after the inmate has served his minimum period of
imprisonment imposed by the court, or at any time after the inmate's
period of imprisonment has commenced for an inmate serving a determinate
or indeterminate term of imprisonment, provided that the inmate has had
a final order of deportation issued against him and provided further
that the inmate is not convicted of either an A-I felony offense other
than an A-I felony offense as defined in article two hundred twenty of
the penal law or a violent felony offense as defined in section 70.02 of
the penal law, if the inmate is subject to deportation by the United
States Immigration and Naturalization Service, in addition to the
criteria set forth in paragraph (c) of this subdivision, the board may
consider, as a factor warranting earlier release, the fact that such
inmate will be deported, and may grant parole from an indeterminate
sentence or release for deportation from a determinate sentence to such
inmate conditioned specifically on his prompt deportation. The board may
make such conditional grant of early parole from an indeterminate
sentence or release for deportation from a determinate sentence only
where it has received from the United States Immigration and
Naturalization Service assurance (A) that an order of deportation will
be executed or that proceedings will promptly be commenced for the
purpose of deportation upon release of the inmate from the custody of
the department of correctional services, and (B) that the inmate, if
granted parole or release for deportation pursuant to this paragraph,
will not be released from the custody of the United States Immigration
and Naturalization Service, unless such release be as a result of
deportation without providing the board a reasonable opportunity to
arrange for execution of its warrant for the retaking of such person.
(ii) An inmate who has been granted parole from an indeterminate
sentence or release for deportation from a determinate sentence pursuant
to this paragraph shall be delivered to the custody of the United States
Immigration and Naturalization Service along with the board's warrant
for his retaking to be executed in the event of his release from such
custody other than by deportation. In the event that such person is not
deported, the board shall execute the warrant, effect his return to the
custody of the department of correctional services and within sixty days
after such return, provided that the person is serving an indeterminate
sentence and the minimum period of imprisonment has been served,
personally interview him to determine whether he should be paroled in
accordance with the provisions of paragraphs (a), (b) and (c) of this
subdivision. The return of a person granted parole from an indeterminate
sentence or release for deportation from a determinate sentence pursuant
to this paragraph for the reason set forth herein shall not be deemed to
be a parole delinquency and the interruptions specified in subdivision
three of section 70.40 of the penal law shall not apply, but the time
spent in the custody of the United States Immigration and Naturalization
Service shall be credited against the term of the sentence in accordance
with the rules specified in paragraph (c) of that subdivision.
Notwithstanding any other provision of law, any inmate granted parole
from an indeterminate sentence or release for deportation from a
determinate sentence pursuant to this paragraph who is subsequently
committed to the custody of the department of correctional services for
a felony offense committed after release pursuant to this paragraph
shall have his parole eligibility date on the indeterminate sentence for
the new felony offense, or his conditional release date on the
determinate sentence for the new felony offense, as the case may be,
extended by the amount of time between the date on which such inmate was
released from the custody of the department of correctional services
pursuant to this paragraph and the date on which such inmate would
otherwise have completed service of the minimum period of imprisonment
on the prior felony offense.
(e) Notwithstanding the requirements of paragraph (a) of this
subdivision, the determination to parole an inmate who has successfully
completed the shock incarceration program pursuant to section two
hundred sixty-seven of the correction law may be made without a personal
interview of the inmate and shall be made in accordance with procedures
set forth in the rules of the board. If parole is not granted, the time
period for reconsideration shall not exceed the court imposed minimum.
3. Revocation of presumptive release, parole, conditional release and
post-release supervision. (a) (i) If the parole officer having charge of
a presumptively released, paroled or conditionally released person or a
person released to post-release supervision or a person received under
the uniform act for out-of-state parolee supervision shall have
reasonable cause to believe that such person has lapsed into criminal
ways or company, or has violated one or more conditions of his
presumptive release, parole, conditional release or post-release
supervision, such parole officer shall report such fact to a member of
the board of parole, or to any officer of the division designated by the
board, and thereupon a warrant may be issued for the retaking of such
person and for his temporary detention in accordance with the rules of
the board. The retaking and detention of any such person may be further
regulated by rules and regulations of the division not inconsistent with
this article. A warrant issued pursuant to this section shall constitute
sufficient authority to the superintendent or other person in charge of
any jail, penitentiary, lockup or detention pen to whom it is delivered
to hold in temporary detention the person named therein; except that a
warrant issued with respect to a person who has been released on medical
parole pursuant to section two hundred fifty-nine-r of this article and
whose parole is being revoked pursuant to paragraph (h) of subdivision
four of such section shall constitute authority for the immediate
placement of the parolee only into the custody of the department of
correctional services to hold in temporary detention. A warrant issued
pursuant to this section shall also constitute sufficient authority to
the person in charge of a drug treatment campus, as defined in
subdivision twenty of section two of the correction law, to hold the
person named therein, in accordance with the procedural requirements of
this section, for a period of at least ninety days to complete an
intensive drug treatment program mandated by the board of parole as an
alternative to presumptive release or parole or conditional release
revocation, or the revocation of post-release supervision, and shall
also constitute sufficient authority for return of the person named
therein to local custody to hold in temporary detention for further
revocation proceedings in the event said person does not successfully
complete the intensive drug treatment program. The board's rules shall
provide for cancellation of delinquency and restoration to supervision
upon the successful completion of the program.
(ii) A warrant issued for a presumptive release, a parole, a
conditional release or a post-release supervision violator may be
executed by any parole officer or any officer authorized to serve
criminal process or any peace officer, who is acting pursuant to his
special duties, or police officer. Any such officer to whom such warrant
shall be delivered is authorized and required to execute such warrant by
taking such person and having him detained as provided in this
paragraph.
(iii) Where the alleged violator is detained in another state pursuant
to such warrant and is not under parole supervision pursuant to the
uniform act for out-of-state parolee supervision or where an alleged
violator under parole supervision pursuant to the uniform act for
out-of-state parolee supervision is detained in a state other than the
receiving state, the warrant will not be deemed to be executed until the
alleged violator is detained exclusively on the basis of such warrant
and the division of parole has received notification that the alleged
violator (A) has formally waived extradition to this state or (B) has
been ordered extradited to this state pursuant to a judicial
determination. The alleged violator will not be considered to be within
the convenience and practical control of the division of parole until
the warrant is deemed to be executed.
(b) A person who shall have been taken into custody pursuant to this
subdivision for violation of one or more conditions of presumptive
release, parole, conditional release or post-release supervision shall,
insofar as practicable, be incarcerated in the county or city in which
the arrest occurred.
(c) (i) Within fifteen days after the warrant for retaking and
temporary detention has been executed, unless the releasee has been
convicted of a new crime committed while under presumptive release,
parole, conditional release or post-release supervision, the board of
parole shall afford the alleged presumptive release, parole, conditional
release or post-release supervision violator a preliminary revocation
hearing before a hearing officer designated by the board of parole. Such
hearing officer shall not have had any prior supervisory involvement
over the alleged violator.
(ii) The preliminary presumptive release, parole, conditional release
or post-release supervision revocation hearing shall be conducted at an
appropriate correctional facility, or such other place reasonably close
to the area in which the alleged violation occurred as the board may
designate.
(iii) The alleged violator shall, within three days of the execution
of the warrant, be given written notice of the time, place and purpose
of the hearing unless he or she is detained pursuant to the provisions
of subparagraph (iv) of paragraph (a) of this subdivision. In those
instances, the alleged violator will be given written notice of the
time, place and purpose of the hearing within five days of the execution
of the warrant. The notice shall state what conditions of presumptive
release, parole, conditional release or post-release supervision are
alleged to have been violated, and in what manner; that such person
shall have the right to appear and speak in his or her own behalf; that
he or she shall have the right to introduce letters and documents; that
he or she may present witnesses who can give relevant information to the
hearing officer; that he or she has the right to confront the witnesses
against him or her. Adverse witnesses may be compelled to attend the
preliminary hearing unless the prisoner has been convicted of a new
crime while on supervision or unless the hearing officer finds good
cause for their non-attendance. As far as practicable or feasible, any
additional documents having been collected or prepared that support the
charge shall be delivered to the alleged violator.
(iv) The preliminary hearing shall be scheduled to take place no later
than fifteen days from the date of execution of the warrant. The
standard of proof at the preliminary hearing shall be probable cause to
believe that the presumptive releasee, parolee, conditional releasee or
person under post-release supervision has violated one or more
conditions of his or her presumptive release, parole, conditional
release or post-release supervision in an important respect. Proof of
conviction of a crime committed while under supervision shall constitute
probable cause for the purposes of this section.
(v) At the preliminary hearing, the hearing officer shall review the
violation charges with the alleged violator, direct the presentation of
evidence concerning the alleged violation, receive the statements of
witnesses and documentary evidence on behalf of the prisoner, and allow
cross examination of those witnesses in attendance.
(vi) At the conclusion of the preliminary hearing, the hearing officer
shall inform the alleged violator of his or her decision as to whether
there is probable cause to believe that the presumptive releasee,
parolee, conditional releasee or person on post-release supervision has
violated one or more conditions of his or her release in an important
respect. Based solely on the evidence adduced at the hearing, the
hearing officer shall determine whether there is probable cause to
believe that such person has violated his or her presumptive release,
parole, conditional release or post-release supervision in an important
respect. The hearing officer shall in writing state the reasons for his
or her determination and the evidence relied on. A copy of the written
findings shall be sent to both the alleged violator and his or her
counsel.
(vii) If the hearing officer is satisfied that there is no probable
cause to believe that such person has violated one or more conditions of
release in an important respect, he or she shall dismiss the notice of
violation and direct such person be restored to supervision.
(viii) If the hearing officer is satisfied that there is probable
cause to believe that such person has violated one or more conditions of
release in an important respect, he or she shall so find.
* (d) If a finding of probable cause is made pursuant to this
subdivision either by a determination at a preliminary hearing or by the
waiver thereof, or if the releasee has been convicted of a new crime
while under presumptive release, parole, conditional release or
post-release supervision, the board's rules shall provide for (i)
declaring such person to be delinquent as soon as practicable and shall
require reasonable and appropriate action to make a final determination
with respect to the alleged violation or (ii) ordering such person to be
restored to presumptive release, parole, conditional release or
post-release supervision under such circumstances as it may deem
appropriate or (iii) when a presumptive releasee, parolee, conditional
releasee or person on post-release supervision has been convicted of a
new felony committed while under such supervision and a new
indeterminate or determinate sentence has been imposed, the board's
rules shall provide for a final declaration of delinquency. The inmate
shall then be notified in writing that his release has been revoked on
the basis of the new conviction and a copy of the commitment shall
accompany said notification. The inmate's next appearance before the
board shall be governed by the legal requirements of said new
indeterminate or determinate sentence, or shall occur as soon after a
final reversal of the conviction as is practicable.
* NB Effective until September 1, 2011
* (d) If a finding of probable cause is made pursuant to this
subdivision either by determination at a preliminary hearing or by the
waiver thereof, or if the releasee has been convicted of a new crime
while under his present parole or conditional release supervision, the
board's rules shall provide for (i) declaring such person to be
delinquent as soon as practicable and shall require reasonable and
appropriate action to make a final determination with respect to the
alleged violation or (ii) ordering such person to be restored to parole
supervision under such circumstances as it may deem appropriate or (iii)
when a parolee or conditional releasee has been convicted of a new
felony committed while under his present parole or conditional release
supervision and a new indeterminate sentence has been imposed, the
board's rules shall provide for a final declaration of delinquency. The
inmate shall then be notified in writing that his release has been
revoked on the basis of the new conviction and a copy of the commitment
shall accompany said notification. The inmate's next appearance before
the board shall be governed by the legal requirements of said new
indeterminate sentence, or shall occur as soon after a final reversal of
the conviction as is practicable.
* NB Effective September 1, 2011
(e) (i) If the alleged violator requests a local revocation hearing,
he or she shall be given a revocation hearing reasonably near the place
of the alleged violation or arrest if he or she has not been convicted
of a crime committed while under supervision. However, the board may, on
its own motion, designate a case for a local revocation hearing.
(ii) If there are two or more alleged violations, the hearing may be
conducted near the place of the violation chiefly relied upon as a basis
for the issuance of the warrant as determined by the board.
(iii) If a local revocation hearing is not ordered pursuant to
subparagraph (i) of this paragraph the alleged violator shall be given a
revocation hearing upon his or her return to a state correctional
facility.
(f) (i) Revocation hearings shall be scheduled to be held within
ninety days of the probable cause determination. However, if an alleged
violator requests and receives any postponement of his revocation
hearing, or consents to a postponed revocation proceeding initiated by
the board, or if an alleged violator, by his actions otherwise precludes
the prompt conduct of such proceedings, the time limit may be extended.
(ii) The revocation hearing shall be conducted by a presiding officer
who may be a member or a hearing officer designated by the board in
accordance with rules of the board.
(iii) Both the alleged violator and an attorney who has filed a notice
of appearance on his behalf in accordance with the rules of the board of
parole shall be given written notice of the date, place and time of the
hearing as soon as possible but at least fourteen days prior to the
scheduled date.
(iv) The alleged violator shall be given written notice of the rights
enumerated in subparagraph (iii) of paragraph (c) of this subdivision as
well as of his right to present mitigating evidence relevant to
restoration to presumptive release, parole, conditional release or
post-release supervision and his right to counsel.
(v) The alleged violator shall be permitted representation by counsel
at the revocation hearing. In any case where such person is financially
unable to retain counsel, the criminal court of the city of New York,
the county court or district court in the county where the violation is
alleged to have occurred or where the hearing is held, shall assign
counsel in accordance with the county or city plan for representation
placed in operation pursuant to article eighteen-B of the county law. He
shall have the right to confront and cross-examine adverse witnesses,
unless there is good cause for their non-attendance as determined by the
presiding officer; present witnesses and documentary evidence in defense
of the charges; and present witnesses and documentary evidence relevant
to the question whether reincarceration of the alleged violator is
appropriate.
(vi) At the revocation hearing, the charges shall be read and the
alleged violator shall be permitted to plead not guilty, guilty, guilty
with explanation or to stand mute. As to each charge, evidence shall be
introduced through witnesses and documents, if any, in support of that
charge. At the conclusion of each witness's direct testimony, he shall
be made available for cross-examination. If the alleged violator intends
to present a defense to the charges or to present evidence of mitigating
circumstances, the alleged violator shall do so after presentation of
all the evidence in support of a violation of presumptive release,
parole, conditional release or post-release supervision.
(vii) All persons giving evidence at the revocation hearing shall be
sworn before giving any testimony as provided by law.
(viii) At the conclusion of the hearing the presiding officer may
sustain any or all of the violation charges or may dismiss any or all
violation charges. He may sustain a violation charge only if the charge
is supported by a preponderance of the evidence adduced.
(ix) If the presiding officer is not satisfied that there is a
preponderance of evidence in support of the violation, he shall dismiss
the violation, cancel the delinquency and restore the person to
presumptive release, parole, conditional release or post-release
supervision.
(x) If the presiding officer is satisfied that there is a
preponderance of evidence that the alleged violator violated one or more
conditions of release in an important respect, he or she shall so find.
For each violation so found, the presiding officer may (A) direct that
the presumptive releasee, parolee, conditional releasee or person
serving a period of post-release supervision be restored to supervision;
(B) as an alternative to reincarceration, direct the presumptive
releasee, parolee, conditional releasee or person serving a period of
post-release supervision be placed in a parole transition facility for a
period not to exceed one hundred eighty days and subsequent restoration
to supervision; (C) in the case of presumptive releasees, parolees or
conditional releasees, direct the violator's reincarceration and fix a
date for consideration by the board for re-release on presumptive
release, or parole or conditional release, as the case may be; or (D) in
the case of persons released to a period of post-release supervision,
direct the violator's reincarceration up to the balance of the remaining
period of post-release supervision, not to exceed five years; provided,
however, that a defendant serving a term of post-release supervision for
a conviction of a felony sex offense defined in section 70.80 of the
penal law may be subject to a further period of imprisonment up to the
balance of the remaining period of post-release supervision. Where a
date has been fixed for the violator's re-release on presumptive
release, parole or conditional release, as the case may be, the board or
board member may waive the personal interview between a member or
members of the board and the violator to determine the suitability for
re-release; provided, however, that the board shall retain the authority
to suspend the date fixed for re-release and to require a personal
interview based on the violator's institutional record or on such other
basis as is authorized by the rules and regulations of the board. If an
interview is required, the board shall notify the violator of the time
of such interview in accordance with the rules and regulations of the
board. If the violator is placed in a parole transition facility or
restored to supervision, the presiding officer may impose such other
conditions of presumptive release, parole, conditional release, or
post-release supervision as he or she may deem appropriate, as
authorized by rules of the board.
(xi) If the presiding officer sustains any violations, he must prepare
a written statement, to be made available to the alleged violator and
his counsel, indicating the evidence relied upon and the reasons for
revoking presumptive release, parole, conditional release or
post-release supervision, and for the disposition made.
(g) Revocation of presumptive release, parole, conditional release or
post-release supervision shall not prevent re-parole or re-release
provided such re-parole or re-release is not inconsistent with any other
provisions of law. When there has been a revocation of the period of
post-release supervision imposed on a felony sex offender who owes three
years or more on such period imposed pursuant to subdivision two-a of
section 70.45 of the penal law, and a time assessment of three years or
more has been imposed, the violator shall be reviewed by the board of
parole and may be restored to post-release supervision only after
serving three years of the time assessment, and only upon a
determination by the board of parole made in accordance with the
procedures set forth in this section. Even if the hearing officer has
imposed a time assessment of a certain number of years of three years or
more, the violator shall not be released at or before the expiration of
that time assessment unless the board authorizes such release, the
period of post-release supervision expires, or release is otherwise
authorized by law. If a time assessment of less than three years was
imposed upon such a defendant, the defendant shall be released upon the
expiration of such time assessment, unless he or she is subject to
further imprisonment or confinement under any other law.
(h) If the alleged violation is not sustained and the alleged violator
is restored to supervision, the interruptions specified in subdivision
three of section 70.40 of the penal law shall not apply, but the time
spent in custody in any state or local correctional institution shall be
credited against the term of the sentence in accordance with the rules
specified in paragraph (c) of such subdivision.
(i) Where there is reasonable cause to believe that a presumptive
releasee, parolee, conditional releasee or person under post-release
supervision has absconded from supervision the board may declare such
person to be delinquent. This paragraph shall not be construed to deny
such person a preliminary revocation hearing upon his retaking, nor to
relieve the division of parole of any obligation it may have to exercise
due diligence to retake the alleged absconder, nor to relieve the
parolee or releasee of any obligation he may have to comply with the
conditions of his release.
4. Appeals. (a) Except for determinations made upon preliminary
hearings upon allegations of violation of presumptive release, parole,
conditional release or post-release supervision, all determinations made
pursuant to this section may be appealed in accordance with rules
promulgated by the board. Any board member who participated in the
decision from which the appeal is taken may not participate in the
resolution of that appeal. The rules of the board may specify a time
within which any appeal shall be taken and resolved.
(b) Upon an appeal to the board, the inmate may be represented by an
attorney. Where the inmate is financially unable to provide for his own
attorney, upon request an attorney shall be assigned pursuant to the
provisions of subparagraph (v) of paragraph (f) of subdivision three of
this section.
5. Actions of the board. Any action by the board or by a hearing
officer pursuant to this article shall be deemed a judicial function and
shall not be reviewable if done in accordance with law.
6. Record of proceedings. (a) The board shall provide for the making
of a verbatim record of each parole release interview, except where a
decision is made to release the inmate to parole supervision, and each
preliminary and final revocation hearing, except when the decision of
the presiding officer after such hearings result in a dismissal of all
charged violations of parole, conditional release or post release
supervision.
(b) The chairman of the board of parole shall maintain records of all
parole interviews and hearings for a period of twenty-five years from
the date of the parole release interview or until expiration of the
maximum term of sentence.
7. Deaf person before the board. Whenever any deaf person participates
in an interview, parole release hearing, preliminary hearing or
revocation hearing, there shall be appointed a qualified interpreter who
is certified by a recognized national or New York state credentialing
authority to interpret the proceedings to and the statements or
testimony of such deaf person. The board shall determine a reasonable
fee for all such interpreting services, the cost of which shall be a
charge upon the division of parole.
Disclaimer: These codes may not be the most recent version. New York may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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