N.Y. Comp. Codes R. & Regs. tit. 9 § 8005.7

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

Section 8005.7 - Conduct of the Preliminary Revocation Hearing

(a) At the preliminary revocation hearing, the preliminary hearing officer shall read each violation charge and the alleged violator shall plead not guilty, guilty, guilty with an explanation, or stand mute with respect to each charge. The Department may, for purposes of the preliminary hearing, elect to proceed on only one of the, or certain additional, existing charges.

(b) If the alleged violator at a preliminary hearing pleads guilty to the substance of any charge or an acceptable variation thereof, or admits charged conduct which is a violation of the conditions of release in an important respect, the preliminary hearing officer shall conclude the hearing.

(c) If the alleged violator pleads not guilty to the charges, or elects to stand mute, the preliminary hearing officer shall proceed to direct the presentation of evidence concerning a violation charge, receive statements of witnesses and documentary evidence on behalf of the alleged violator and allow cross-examination of those witnesses in attendance with respect to that charge.

(d) The standard of proof at the preliminary hearing shall be a preponderance of evidence to believe that the releasee has violated one or more of the conditions of their release in an important respect. Proof of conviction of a crime committed subsequent to release on parole or conditional release shall constitute prima facie evidence of a violation of a condition of community supervision.

(e) The hearing shall conclude at such time as the preliminary hearing officer finds that there is a preponderance of evidence to believe that the alleged violator has violated a condition or conditions of their release in an important respect, or when all charges have been heard and no preponderance of evidence has been found.

(f) If the preliminary hearing officer finds that there is a preponderance of evidence to believe that the alleged violator has violated one or more of the conditions of parole in an important respect, the matter shall proceed to a final revocation hearing except as may be otherwise directed pursuant to section 8004.11 of this Title. When the matter proceeds to a final hearing the Department may prosecute all charges and any additional charges upon sufficient notice, whether or not a preponderance of evidence had been found on such charges at the preliminary hearing.

(g) If the preliminary hearing officer finds that there is no preponderance of evidence to believe that the alleged violator has violated one or more of the conditions of their release in an important respect, they shall dismiss the notice of violation and direct such person be restored to supervision.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 8005.7

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