N.Y. Comp. Codes R. & Regs. tit. 9 § 8005.20

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

Section 8005.20 - Final revocation hearing determination

(a) If the presiding officer is not satisfied that there is clear and convincing evidence in support of any of the violation charges, they must dismiss the charges and restore the releasee to supervision.

(b) If the presiding officer is satisfied that there clear and convincing evidence in support of a violation charge or charges, and that the alleged violator violated one or more of the conditions of release in an important respect, they shall so find.

(c) Where one or more charges of violation are sustained pursuant to subdivision (b) of this section, the presiding officer shall revoke the violator's release. Upon a decision to revoke the violator's release and following consideration of relevant mitigating and aggravating factors as set forth in subdivision (g) of this section, the presiding officer may:

(1) restore such violator to supervision, and in their discretion impose conditions directly related to such restoration, including but not limited to direction that the releasee cooperate with re-entry services provided in the community by a qualified non-profit agency; or (2) where reincarceration is permitted, impose one or more time assessments. The presiding officer shall impose the least restrictive reasonable sanction.

(d) Notwithstanding any other provisions of this Part, if in a case alleging non-technical violations the alleged violator, the Department and the presiding officer agree, the alleged violator's release may be revoked upon a guilty plea to a charge other than one alleging conduct that would constitute a felony or misdemeanor offense but with the understanding that they will be deemed, and treated as, a non-technical violator. In such case if a period of reincarceration is directed, it shall be for no less than 3 months.

(e) Time assessments.

(1) A time assessment may be imposed for each such sustained violation wherein reincarceration is permitted by the sustaining of such charge. When there is more than one time assessment imposed in the case, such time assessments will run concurrently.

(2) Technical violation cases.

(i) Where one or more violation charges are sustained in a technical violation case for which reincarceration may have been possible, those current sustained charges and sustained charges in all prior revocation cases on the instant term(s) must be reviewed to determine whether reincarceration is a permitted disposition in the current case, with the following understanding: no period of reincarceration may be imposed for the first and second substantiated technical violations for which incarceration may be imposed; up to seven days reincarceration may be imposed for the third substantiated technical violation for which incarceration may be imposed; up to fifteen days reincarceration may be imposed for the fourth substantiated technical violation for which incarceration may be imposed; up to thirty days reincarceration may be imposed for the fifth and subsequent substantiated technical violations for which incarceration may be imposed.

(ii) Upon the review in subparagraph (i) of this paragraph, the presiding officer may impose a time assessment only where there are at least three qualifying "for which incarceration may be imposed" violations sustained within the current case, or at least one such charge sustained in the current case which may be combined with such qualifying sustained prior violations on the instant term(s) as to reach the threshold of three sustained such violations.

(iii) Notwithstanding the above, in any case wherein a charge of absconding from supervision is sustained, a time assessment may be imposed, with the following understanding: up to seven days reincarceration may be imposed for the first absconding violation, up to fifteen days reincarceration may be imposed for the second absconding violation, and up to thirty days reincarceration may be imposed for the third or any subsequent absconding violation. Where a charge or charges of absconding are sustained in the current case, prior sustained absconding violations shall be considered in accordance with this subparagraph but any absconding violation shall be considered in accord with subparagraph (i) of this paragraph where a greater time assessment may result and provided moreover, nothing herein shall be construed as prohibiting any other time assessments in such matter in accord with subparagraph (i) of this paragraph.

(iv) Where one or more time assessments are imposed in these cases, they are to be imposed in accordance with the understandings in this paragraph, with a presumption, in such instance, that the maximum available period(s) of reincarceration will be imposed.

(3) Non-technical violation cases.

(i) Where one or more non-technical violation charges alleging the commission of a new felony or misdemeanor offense are sustained in the current case, a time assessment for each such violation may be imposed, which shall be: no less than 6 months for a misdemeanor except one under Penal Law Article 130; no less than 12 months for any felony, or for any misdemeanor under Article 130.

(ii) Where the violator is serving a sentence for an offense defined in article 130 of the penal law or section 255.26 or 255.27 of such law, and the sustained charge(s) are considered non-technical in accordance with subdivision (a) of section 8004.8 and are not for a felony or misdemeanor offense, a time assessment for each such violation may be imposed, which shall be no less than 6 months.

(iii) Nothing herein shall be construed as prohibiting other time assessments in the case as may appropriately correspond to any sustained technical violation charges.

(f) No violator shall be restored to supervision in the community upon a decision revoking such violator's release unless the presiding officer concludes that such violator's needs, as related to the violative behavior, could be appropriately addressed in the community with community supervision and that a restoration to supervision would not have an adverse effect on public safety and public confidence in the integrity of the criminal justice system. The presiding officer may, when directing that the violator be restored to supervision, impose appropriate special conditions of release. Such conditions may be modified or removed, solely upon the initiation of the Department, by a member or members of the Board of Parole.

(g) Mitigating and aggravating factors. Where one or more charges of violation are sustained pursuant to subdivision (b) of this section and the violator's release is revoked, the resulting disposition shall be in the interests of public safety and justice. In all cases the presiding officer will consider mitigating and aggravating factors in determining the appropriate sanction. These factors include, but are not limited to:

(1) Mitigating Factors:

(i) Length of time the violator has spent in custody due to the parole warrant

(ii) Violator has been deemed to have the lowest supervision risk level as determined by the assessment tool utilized by the Department

(iii) Violator was the primary caregiver of a dependent person immediately prior to having been incarcerated on the parole violation warrant, and if restored to supervision has a residence and means of support so that they would continue to care for the dependent person

(iv) Absconder who voluntarily surrendered

(v) A violator whose medical or psychiatric needs would be most appropriately and safely addressed through continued community supervision

(vi) No prior sustained violations on the instant offense term

(vii) Employed/attending school

(viii) Diligent program participation prior to current warrant issuance

(ix) Stable residence

(x) Lack of criminal history other than the instant offense

(xi) Length of time on supervision between last date of release and earliest date of current alleged violation

(xii) General adjustment to supervision

(xiii) Violator acknowledged responsibility for conduct

(xiv) Cooperation with law enforcement or a prosecutorial agency which the Department requests that the presiding officer consider as a mitigating factor

(2) Aggravating Factors:

(i) Violator has been deemed to have the highest supervision risk level as determined by the assessment tool utilized by the Department

(ii) Prior sustained violation(s)

(iii) Absconder who did not voluntarily surrender

(iv) Physical evasion of or physical resistance to a parole, police or peace officer

(v) Length of time on supervision between last date of release and earliest date of current alleged violation

(vi) Tampering with or removal of GPS/electronic monitoring device

(vii) Criminal history

(viii) Prior history of absconding

(ix) History of domestic violence

(x) General adjustment to supervision

(h) Decision. The decision made pursuant to subdivision (c) of this section shall be in writing, or stated on the record of the hearing, and shall state the evidence relied upon and the reasons for the revocation of community supervision, and the reasons for the disposition made.

(i) Notification. As soon as practicable after a final revocation hearing, the releasee and their attorney shall be advised in writing of the revocation hearing decision, including the reason for the determination and the evidence relied upon.

(j) A final decision made by a presiding officer pursuant to this section shall be binding in all instances and deemed a decision of the Board for purposes of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 8005.20

Amended New York State Register January 8, 2019/Volume XLII, Issue 01, eff. 12/8/2020

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