N.Y. Comp. Codes R. & Regs. tit. 9 § 8004.5

Current through Register Vol. 46, No. 45, November 2, 2024

Section 8004.5 - Parole Warrant for Retaking and Temporary Detention

(a) If a parole officer having charge of a releasee shall have probable cause to believe that such person has violated one or more of the conditions of his release in an important respect, the officer shall report such fact to a member of the Board, or a designated officer identified in section 8004.2 of this Part.

(b) Subject to further provisions and restrictions of this Part, the member or designated officer may issue a parole warrant, which is a warrant for the retaking and temporary detention of the releasee. No officer shall issue a warrant in a case where they are the one who furnishes the report upon which it is based, including those cases wherein a notice of violation had first been issued. Nothing in this section shall be construed as prohibiting the issuance of a warrant upon a non-written report to a member or a designated officer in exigent circumstances.

(c) A warrant issued in accordance with subdivisions (a) and (b) of this section may be issued at any time, including during the pendency of a parole revocation case and prior to any scheduled final revocation hearing.

(d) The warrant may be executed by any parole officer, any officer authorized to serve criminal process or any peace officer.

(e) Such officer shall be authorized to take the releasee and have them detained in any jail, penitentiary, lockup or detention pen which shall be located, insofar as practicable, in the county or city in which the arrest occurred or within the county in which the violations are alleged to have occurred. Said detention pursuant to the warrant shall be until the department's reasonable receipt of a court determination following a recognizance hearing under the Executive Law and, unless such hearing results in a lawful order directing the release of the alleged violator as to the warrant, during the pendency of the revocation proceedings until and as consistent with a decision concluding the revocation case issued pursuant to the authority of the board. Furthermore:

(1) Where there are one or more violations charges involving conduct that would constitute a new felony or misdemeanor offense, detention is also authorized until conclusion of a proceeding pursuant to Article 530 of the Criminal Procedure Law wherein recognizance with respect to the parole revocation case may be determined. The recognizance hearing on the warrant shall not be joined with a Criminal Procedure Law Article 530 proceeding where the warrant had been issued for a violation that was already the subject of a court order pursuant to such a proceeding.

(2) Where a court conducting a recognizance hearing ordered release, and one or more violations are alleged to have occurred subsequent to that hearing or which occurred prior to such hearing but that the Department was unaware of at the time of such hearing, the parole warrant pursuant to this section will authorize detention until the conclusion of the parole revocation case, or until a recognizance court hears the matter again if it had so directed, provided:

(i) where the violation(s) occurred subsequent to the recognizance hearing, the conduct is alleged to have violated a condition of the recognizance court's order or its instructions that there be no further violations of the conditions of the Board or Department; or

(ii) where the violation(s) occurred subsequent to the recognizance hearing, the conduct would independently provide basis for the issuance of a parole warrant, including, but not limited to conduct such as absconding or the commission of a misdemeanor or felony; or

(iii) where the violation(s) occurred subsequent to the recognizance hearing, the conduct constituted a failure to appear for a parole revocation proceeding hearing or appearance; or

(iv) where the violation(s) occurred prior to the recognizance hearing but the Department was unaware of the conduct at the time of such hearing, the conduct is of such a character or quantity as to be substantially likely, if the recognizance court had been aware of it at the time of the recognizance hearing, to have led it to conclude that the releasee presents a substantial risk of willfully failing to appear at any revocation proceeding and no non-monetary conditions in the community could reasonably assure the releasee's appearance at such revocation proceedings. In such instance, the recognizance court shall be promptly informed of the relevant conduct and any retaking pursuant to the warrant.

(3) In the event there exist violations of the type specified in paragraph (2) of this subdivision the Department is not required to again take the releasee into custody under the same warrant and/or as may be related to the same revocation case, and the Department is not precluded by this subdivision from instead charging such violations in a parole revocation case subsequent to the conclusion of the current case, except that the Department may not request cancellation of the current case solely for purposes of pursuing such specified charges in a new revocation case.

(4) Where reincarceration has been imposed at the conclusion of a final parole revocation hearing, further detention pursuant to such warrant and consistent with the revocation decision is authorized.

(f) There shall be a presumption that the execution of a parole warrant occurs when the releasee is known to be detained exclusively under the authority of such warrant prior to a recognizance hearing, and that the revocation process will continue in accordance with further provisions in this Part and Part 8005 of this Title following such hearing.

(g) The issuance of a parole warrant and detention under its authority shall be a severable issue from the legality of a parole revocation case, its continuation, or any final determinations therefrom.

(h) Every parole warrant should include, among other information, the following or a similar notification: "Attention: The Department of Corrections and Community Supervision is a required party to, and intends to appear at, any recognizance hearing to determine continued custody of the subject releasee for purposes of parole revocation proceedings. Following the conclusion of the recognizance hearing, the Department must be promptly provided the court's order therefrom."

N.Y. Comp. Codes R. & Regs. Tit. 9 § 8004.5

Adopted New York State Register May 3, 2023/Volume XLV, Issue 18, eff. 5/3/2023