Title 9 Part 8005

Hearings Generally

(a) The Department shall coordinate with the Board in matters pertaining to the timely processing of parole revocation cases and revocation hearing schedules. As required and appropriate the Department shall also coordinate with the chief administrator of the courts or their designees, the State Office of Court Administration, or courts of law in regard to certain revocation hearings that are to be held in such court facilities.

(b) The Department will monitor the status of each revocation case and make efforts to ensure it remains appropriately designated per section 8004.2 of this Title.

(c) Inasmuch as the scheduling of the revocation hearings for each case may vary with their circumstances, the Department will endeavor to track relevant events such as releasee appearance or nonappearance in response to a notice of violation, the date and outcome of any relevant recognizance hearing, and the date and outcome of the preliminary hearing, if held. The Department should be prepared to provide such information upon request to the Board or a presiding officer.

Scheduling of the Preliminary Revocation Hearing

(a) The preliminary revocation hearing shall be scheduled to take place according to the rules provided in this section, and other sections of this Part and Part 8004 of this Title as may be relevant to reasonably ensure substantial compliance with the Executive Law. Generally:

(a) If the releasee was ordered released by the court, the preliminary hearing is to be scheduled to occur within 10 days of the issuance of such order, or

(iii) Nothing within this paragraph shall be construed as prohibiting the conduct of a preliminary hearing in absentia.

(3) Where the case may be designated as a non-technical violation case:

(i) If the Department proceeded by notice of violation and there is no parole warrant, the provisions of paragraph (2) of this subdivision shall apply.

(ii) If a parole warrant was issued and executed, then upon completion of a recognizance hearing and an order from the court therefrom,

(a)If the releasee was ordered released by the court, the preliminary hearing is to be scheduled to occur within 10 days of the issuance of such order, or

(b)If the releasee was ordered by the court to be detained pending completion of their revocation case, the preliminary hearing is to be scheduled to occur within 5 days of the issuance of such order.

(b) Location of the hearing.

(c) The right to a preliminary hearing may be waived. The waiver of a preliminary hearing may be made either in writing on forms provided, or orally on the record at any appearance in response to a notice of violation, the recognizance hearing or the preliminary hearing.

(d) An adjournment may be granted at the preliminary hearing for the releasee to obtain counsel or for good cause shown. An attorney who represents the releasee may only obtain an adjournment for good cause prior to the scheduled date of a preliminary hearing by contacting the hearing coordinator.

(e) There shall be good cause to extend the time in which the preliminary hearing is scheduled to occur where reasonably necessary to allow for its conduct at the appropriate location and facility.

Notice of Final Revocation Hearings

(a) The alleged violator and an attorney who has filed a notice of appearance in accordance with rules of the Board shall be given written notice of the date, place and time of the final revocation hearing. Such notice shall occur at the conclusion of the preliminary revocation hearing where a preponderance of the evidence has been found, upon the waiver of such hearing or earlier. Additional or revised notice thereafter is timely where it is in reasonable advance of the final hearing under the totality of the circumstances.

(b) Notice to the alleged violator shall also include notice of the purpose of the final hearing, a statement of the conditions of release that are alleged to have been violated and in what manner, and identification of the alleged violator’s rights at a final revocation hearing, which are those listed in subdivision (c) of section 8004.4 of this Title and include a right to present mitigating evidence relevant to the possible restoration to supervision

(c) Notice to the alleged violator shall include the name and contact details for institutional defenders or assigned private counsel, as the case may be, except that such notice is not required where an attorney has filed a notice of appearance in the matter or representation by counsel has otherwise been established.

(d) The notice to the alleged violator required by this section may be provided through the notice of violation, violation of release report or other documents, and nothing herein shall be construed as requiring duplicate notice, or written notice of adjourned or continuation dates where such information has been adequately conveyed to the releasee or counsel on the record.

(e) As far as practicable or feasible, any additional documents having been collected or prepared that support the violation charges shall be delivered to the releasee but need not be included with the notice in regard to the final hearing.

(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.

(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:

(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.