2016 New York Laws
EXC - Executive
Article 12-B - (Executive) STATE BOARD 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.
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
  conditions   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 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  rescinded subsequently as provided in  such  law.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  board  for  release consideration as
  provided in subparagraph (i) of this paragraph as soon thereafter as  is
  practicable.
* NB Effective until September 1, 2017
* (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  procedures  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 conditions 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, 2017
(b) Persons presumptively released, paroled, conditionally released or
  released  to  post-release  supervision  from  an  institution under the
  jurisdiction of the department, the department of mental hygiene or  the
  office  of  children  and  family  services  shall, while on presumptive
  release, parole, conditional release or post-release supervision, be  in
  the legal custody of the department 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
  imprisonment in the custody of the department, 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 procedures 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 interactions 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 and any
  recommendation regarding deportation made by  the  commissioner  of  the
  department pursuant to section one hundred forty-seven of the correction
  law;  (v)  any current or prior 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; (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; (vii) 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  prior  to  confinement;  and  (viii)  prior
  criminal   record,   including  the  nature  and  pattern  of  offenses,
  adjustment  to  any  previous  probation  or  parole   supervision   and
  institutional  confinement.  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.  Any  statement  by  a   victim   or   the   victim's
  representative  made  to the board shall be maintained by the department

  in the file provided to  the  board  when  interviewing  the  inmate  in
  consideration  of  release.  A victim or victim's representative who has
  submitted a written request to the department for the transcript of such
  interview  shall  be  provided  such  transcript  as  soon as it becomes
  available.
(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 Bureau of Immigration and Customs Enforcement, 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 Bureau of  Immigration  and
  Customs  Enforcement  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 Bureau of Immigration
  and  Customs  Enforcement,  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
  Bureau  of  Immigration  and  Customs Enforcement 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
  imprisonment  in  the  custody  of  the department 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  Bureau  of  Immigration  and
  Customs  Enforcement  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 imprisonment in the custody of the department
  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 imprisonment in the custody of the department 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, or to any officer of the department 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 unless such person has been determined to be  currently  unfit  to
  proceed  to  trial or is currently subject to a temporary or final order
  of observation pursuant to article seven hundred thirty of the  criminal
  procedure  law,  in  which case no warrant shall be issued. The retaking
  and detention of any such person may be further regulated by  rules  and
  regulations  of  the  department  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 imprisonment in the custody of the  department  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 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  department 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 department 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, 2017
* (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, 2017
(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, including when a superior court
  is called upon to evaluate the capacity of  an  alleged  violator  in  a
  parole revocation proceeding, 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  or  she
  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. For the
  violator serving an indeterminate sentence who while re-incarcerated has
  not  been  found  by  the  department  to  have  committed   a   serious
  disciplinary  infraction, such violator shall be re-released on the date
  fixed  at  the  revocation  hearing.  For  the   violator   serving   an
  indeterminate  sentence  who  has  been  found by the department to have

  committed a serious disciplinary infraction while  re-incarcerated,  the
  department  shall  refer the violator to the board for consideration for
  re-release to community supervision. Upon such referral  the  board  may
  waive  the  personal  interview between a member or members of the board
  and the violator to determine the suitability for  re-release  when  the
  board  directs  that  the violator be re-released upon expiration of the
  time assessment. The board shall retain the  authority  to  suspend  the
  date  fixed  for  re-release  based  on  the  violator's commission of a
  serious disciplinary  infraction  and  shall  in  such  case  require  a
  personal interview be conducted within a reasonable time between a panel
  of  members  of  the board and the violator to determine suitability for
  re-release. If an interview is required,  the  board  shall  notify  the
  violator in advance of the date and time of such interview in accordance
  with the rules and regulations 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.
(xii) If at any  time  during  a  revocation  proceeding  the  alleged
  violator, his or her counsel, or an employee of the department contends,
  or  if  it  reasonably  appears to the hearing officer, that the alleged
  violator  is  an  incapacitated  person  as  that  term  is  defined  in
  subdivision  one  of section 730.10 of the criminal procedure law and no
  judicial determination has been made that the  alleged  violator  is  an
  incapacitated  person,  the  revocation  proceeding shall be temporarily
  stayed until the superior court determines whether or not the person  is
  fit  to  proceed.  The matter shall be promptly referred to the superior
  court for determination of the alleged violator's fitness to proceed  in
  a  manner consistent with the provisions of article seven hundred thirty
  of the criminal procedure law, provided however that the superior  court
  shall immediately appoint counsel for any unrepresented alleged violator
  eligible  for  appointed counsel under subparagraph (v) of paragraph (f)
  of subdivision  three  of  section  two  hundred  fifty-nine-i  of  this
  chapter.  The  court shall decide whether or not the alleged violator is
  incapacitated within thirty  days  of  the  referral  from  the  hearing
  officer.  If  the  court  determines that the alleged violator is not an
  incapacitated person, the court shall order that the matter be  returned
  to  the  board  of  parole  for  continuation  and  disposition  of  the
  revocation proceeding. If the court determines that the alleged violator
  is an incapacitated person and if no felony charges are pending  against
  the alleged violator, the court shall issue a final order of observation
  committing  such  person  to  the  custody of the commissioner of mental
  health or the commissioner of developmental disabilities  for  care  and
  treatment  in  an  appropriate  institution  in a manner consistent with
  subdivision one of section 730.40 of the criminal procedure  law.  If  a
  final order of observation has been issued pursuant to this section, the
  hearing  officer  shall dismiss the violation charges and such dismissal
  shall act as a bar to any further proceeding under this section  against
  the alleged violator for such violations. If felony criminal charges are
  pending at any time against an alleged violator who has been referred to
  superior  court  for  a fitness evaluation but before a determination of
  fitness has been made pursuant to this section, the court  shall  decide
  whether or not the alleged violator is incapacitated pursuant to article
  seven  hundred  thirty  of the criminal procedure law and the revocation
  proceeding shall be held  in  abeyance  until  such  decision  has  been
  reached.  The  hearing  officer  shall adopt the capacity finding of the
  court and either  terminate  the  revocation  process  if  an  order  of

  observation  has  been  made by the court or proceed with the revocation
  hearing  if  the  alleged  violator  has  been  found  not  to   be   an
  incapacitated person.
(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  department  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) (i) 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.
(ii)  Notwithstanding  the  provisions  of  subparagraph  (i)  of this
  paragraph, the board shall provide for the making of a  verbatim  record
  of  each parole release interview in all proceedings where the inmate is
  a detained sex offender as such term is defined in  subdivision  (g)  of
  section  10.03  of the mental hygiene law. Such record shall be provided
  to the office of mental health for use by  the  multidisciplinary  staff
  and  the  case  review  panel  pursuant  to  section 10.05 of the mental
  hygiene law.
(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.
* 8. Foreign born or non-English speaking  person  before  the  board.
  Upon  notification  from  the department pursuant to section two hundred
  fifty-nine-e of this article, or upon the request of any foreign born or
  non-English speaking person  who  is  scheduled  to  participate  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 person. The board shall determine a reasonable fee for
  all such interpreting services, the cost of which shall be a charge upon
  the  board of parole. No such request or appointment shall cause a delay
  of release from incarceration of such person.
* NB Effective March 8, 2017