N.Y. Comp. Codes R. & Regs. tit. 9 § 8005.6

Current through Register Vol. 46, No. 19, May 8, 2024

Section 8005.6 - 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:

(1) Where the case may be designated as a technical violation case in which no reincarceration is possible:

(i) If the releasee appears as directed in response to a notice of violation, the preliminary hearing is to be scheduled to occur within 10 days of issuance of the notice.

(ii) If the releasee does not appear as described in paragraph (2) of subdivision (d) of section 8004.6 of this Title, no preliminary hearing is to be held as the violations shall be deemed sustained.

(2) Where the case may be designated as a technical violation case in which reincarceration is possible:

(i) If the releasee appears as directed in response to a notice of violation, the preliminary hearing is to be scheduled to occur within 10 days of issuance of the notice.

(ii) If the releasee does not appear as described in paragraph (2) of subdivision (d) of section 8004.7 of this Title and a parole warrant was issued, 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.

(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

(4) Should release on recognizance be ordered pursuant to the Executive Law but a court thereafter again consider the releasee's detention prior to the preliminary hearing taking place, the preliminary hearing may be scheduled or rescheduled to occur within 5 days of the court's conclusion upon such new consideration if the releasee is ordered detained, or within 10 days of the court's conclusion if the releasee is again ordered released. Nothing within this subdivision shall be interpreted to require a rescheduling of the preliminary hearing, or to require the scheduling of a new preliminary hearing where a preliminary hearing had commenced or been completed.

(5) The scheduling or conduct of a preliminary hearing for a releasee who has absconded from supervision and remains in such status or who is otherwise not within the convenience and practical control of the Department is not required during such period.

(6) Issuance of the notice of violation within the meaning of this subdivision occurs when the releasee has been served with such notice and:

(i) has appeared as directed in response to a notice of violation; or

(ii) has appeared in response to a notice of violation within no later than forty-eight hours of the directed time, but otherwise as directed. Issuance of the notice of violation may, however, be deemed by the Department or Board to have occurred prior to the date and time for which the releasee had been directed to appear in response to the notice of violation, in the event the preliminary hearing has been scheduled to occur upon such date.

(b) Location of the hearing.

(1) For any case in which no parole warrant has been issued or in which the releasee was ordered released on recognizance pursuant to the Executive Law, the preliminary hearing shall be scheduled and held in a courthouse, in cooperation with the chief administrator of the courts and the chief administrator's designees, provided, however, that if such a courthouse is not reasonably available for such hearing, the Department may designate a suitable office or other similar facility that is not a correctional facility, detention center or local correctional facility for such hearing.

(2) Notwithstanding paragraph (1) of this subdivision, the preliminary hearing may, in the Department's discretion and as appropriate, be scheduled and held in a residential treatment facility, or a nursing, medical or mental health facility, as the case may be, where it is reasonably likely that the releasee will remain in custody or residence therein irrespective of the issuance of a parole warrant or the decision on recognizance pursuant to the Executive Law. Subsequent changes in a releasee's custodial or residential status shall permit the Department reasonable extension of time for scheduling or rescheduling at another appropriate location.

(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.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 8005.6

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