N.Y. Comp. Codes R. & Regs. tit. 9 § 8002.6

Current through Register Vol. 46, No. 15, April 10, 2024

Section 8002.6 - Parole violator re-release

(a)Definition.

A time assessment is a period of reincarceration which is fixed as a result of a sustained violation at a final parole revocation hearing. A time assessment may be imposed for each sustained violation charge for which a period of reincarceration is authorized in a revocation case. The date upon which a parole violator who receives any time assessment will be eligible for re-release is determined by the expiration of the longest time assessment imposed within the revocation case.

(b)How time assessments are calculated.

(1) Time assessments will be set in months or days, depending on the circumstances, except, where applicable, they may be set as a hold to the maximum expiration of the sentence. Only time assessments corresponding to sustained technical violation charges may be set in days.

(2) Time assessments will commence and be credited as follows:

(i) Where a parole warrant was executed and the violator remained in custody continuously from that date until the conclusion of the final revocation hearing, the time assessments shall commence on the date of the execution of the warrant provided, however, that time assessments will not be credited with any time in which the releasee is not within the convenience and practical control of the Department.

(ii) Where a parole warrant was executed and the violator was ordered released by a court following a recognizance hearing, the time assessments shall commence upon the date of the issuance, by service on the violator, of a determination after a final hearing that the person has violated one or more conditions of release.The time assessments shall be credited with any time the violator spent in custody between the date the warrant was executed and the date of the recognizance hearing.

(iii) Where the revocation case was commenced and no parole warrant was executed, the time assessments shall commence upon the date of the issuance of a determination after a final hearing that the person has violated one or more conditions of release.

(iv) Where the releasee had been committed to the custody of the sheriff within New York State pursuant to Article 530 of the Criminal Procedure Law, any such time the person spent confined in a correctional facility or local correctional facility following execution of the parole warrant or service of the notice of violation, as the case may be, to the date of the final hearing, shall be credited toward the time assessment.

(3) The date of the issuance of a determination after the final hearing within the meaning of this section shall not be until such date as both the completed parole revocation decision has been issued and the releasee is within the physical custody and control of the Department to commence the period of reincarceration as of such date. The Department shall have a reasonable amount of time under the totality of circumstances in which to enforce the time assessments imposed in the cases referenced in subparagraphs (ii) and (iii) of paragraph (2) of this section and shall have no such obligation during any period in which the releasee is outside of the convenience and practical control of the Department or is alleged to have absconded from supervision.

(4) Any time assessments imposed within the same revocation case shall run concurrently with one another.

(5) For any time assessments imposed, if the time remaining on the sentence is less than the time assessments specified by the presiding officer, such assessments shall be deemed a hold to the maximum expiration of the sentence.

(6) Within this section and section 8005.20, sentence shall include sentence and post release supervision time, if any.

(c)

(1) Eligibility for re-release. All parole violators identified as eligible for re-release as defined by subdivision (a) of this section, will be re-released to parole supervision as soon as practicable after completion of the delinquent time assessment imposed irrespective of whether they are in State or local custody. If, at the completion of the delinquent time assessment imposed, the parole violator is serving the balance of a definite sentence of incarceration, the parole warrant will be lifted upon completion of the delinquent time assessment. However, when presented with one or more of the following circumstances, the board of parole will consider the violator's re-release pursuant to subdivision (d) this section:

(i) the parole violator has engaged in behavior, which constitutes a violation of facility rules or has been found guilty of having violated such rules;

(ii) the parole violator has experienced a significant change in his/her emotional/mental state (which may be evidenced by the parole violator's transfer to a psychiatric ward or facility, his/her commitment to a mental hygiene facility, or his/her placement on a suicide watch or functional equivalent);

(iii) the parole violator was arrested/convicted of a new felony subsequent to the final parole revocation hearing; or

(iv) the board receives any information that supports a reasonable conclusion that the parole violator may not be suitable for re-release. Such information shall include, but not be limited to, information pertaining to self-destructive or threatening behavior by the parole violator.

(d)Consideration by the parole board.

(1) Parole violator in local custody. If at any time preceding the expiration of the time assessment imposed, the parole violator is identified as an exception for re-release eligibility under subdivision (c) of this section and the parole violator remains in local custody, the violator will be considered for re-release by the board upon the violator's return to a State correctional facility. Such consideration shall be through an interview by a panel of two or more members of the board of parole as soon as practicable from the time of the violator's return to State custody. When the Board of Parole considers the parole violator for re-release, there shall be no presumption, express or implied, favoring the violator's re-release.

(2) Parole violator in State custody. If at any time preceding the expiration of the time assessment imposed, the parole violator is identified as an exception for re-release eligibility under subdivision (c) of this section and the parole violator is incarcerated in a State correctional facility, then the following rules shall apply:

(i) Consideration by the board of parole of a violator in State custody may be conducted by one or more members of the board during the two-month period immediately preceding the expiration of the time assessment without a personal interview.

(ii) After considering a parole violator who is in State custody for re-release, the board member or members will make one of two possible determinations as follows:

(a) the board may direct that the violator be re-released to supervision upon expiration of the time assessment after a satisfactory release program is developed and approved; or

(b) the board may require that a personal interview be conducted between a panel of two or more members of the board and the parole violator. When the board requires a personal interview, such interview shall be conducted within a reasonable time. When, after such interview, the board again considers the parole violator for re-release, there shall be no presumption, express or implied, favoring the violator's re-release.

(iii) Grounds for requiring a personal interview. Any one of the following circumstances may serve as a ground for the board to require an interview between the panel of the board and the parole violator:

(a) the parole violator has engaged in behavior which constitutes a violation of facility rules or has been found guilty of having violated such rules;

(b) the parole violator has experienced a significant change in his/her emotional/mental state (which may be evidenced by the parole violator's transfer to a psychiatric ward or facility, his/her commitment to a mental hygiene facility, or his/her placement on a suicide watch or functional equivalent);

(c) the parole violator was arrested/convicted of a new felony subsequent to the final parole revocation hearing;

(d) escape, absconding or removal from temporary release; or

(e) the board receives any information that supports a reasonable conclusion that the parole violator may not be suitable for re-release. Such information shall include, but not be limited to, information pertaining to self-destructive or threatening behavior by the parole violator.

(e)Inapplicability to certain cases.

The provisions of this section shall be inapplicable to any parole violator whose eligibility for parole release is governed by the statutory requirements of a new sentence.

(f)Interim procedures for certain cases.

For those parole violators whose time assessments expired prior to the effective date of this section, or will expire within 90 days after the effective date of this section, the provisions of subdivisions (c) and (d) of this section shall be deemed to be modified as follows: consideration by the board will be conducted as soon as practicable following adoption of this section, but may occur after expiration of the time assessment. This section shall not be construed to afford any parole violator a right to release from custody upon expiration of the time assessment, but only a right to consideration by the board as soon as practicable. The effective date of this section is April 20, 1993.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 8002.6

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

The amended version of this section by New York State Register July 20, 2022/Volume XLIV, Issue 29, eff. 6/30/2022 is not yet available.

The amended version of this section by New York State Register March 29, 2023/Volume XLV, Issue 13, eff. 3/13/2023 is not yet available.