N.Y. Comp. Codes R. & Regs. tit. 9 § 8006.4

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

Section 8006.4 - Determination of the Appeal

(a) A properly perfected appeal will be reviewed by the appeals unit, which will thereafter take one of the following actions:

(1) where, in an appeal of a release denial, or in an appeal of a revocation determination wherein the only issue presented relates to the length or propriety of a time assessment imposed, the appeals unit determines that the appeal is moot based upon the release or imminent release from custody of the appellant, the appeals unit will so notify the appellant or counsel therefor of such determination, and said notification will terminate the appeal; or

(2) in all other cases the appeals unit will issue written findings of fact and/or law, and recommend disposition of the appeal. The written findings and recommendation of the appeals unit shall thereupon be mailed to the incarcerated person/violator or, where the appellant was represented by counsel, to the counsel for appellant.

(b) Upon the issuance by the appeals unit of its findings and recommendation the appeal will be presented as soon as practicable to three members of the Board of Parole for determination.

(c) Should the appeals unit fail to issue its findings and recommendation within four months of the date that the perfected appeal was received, the appellant may deem this administrative remedy to have been exhausted, and thereupon seek judicial review of the underlying determination from which the appeal was taken. In that circumstance, the Board and Department will not raise the doctrine of exhaustion of administrative remedy as a defense to such litigation.

(d) An appeal shall be considered by three members of the Board of Parole, except that any board member who participated in the decision from which the appeal was taken may not participate in the resolution of the appeal. The appeal shall be decided by a majority of the three board members who review the appeal.

(e) The three board members who review the appeal, or a majority thereof, may affirm, modify or reverse the decision.

(f) Factual determinations made by a presiding officer at a rescission hearing shall not be subject to modification or reversal on appeal, unless the majority of the board members who review the appeal concludes that the factual determination was not supported by a preponderance of the evidence. Factual determinations made by a presiding officer at a final revocation hearing shall not be subject to modification or reversal on appeal, unless the majority of the board members who review the appeal concludes that the factual determination was not supported by clear and convincing evidence.

(g) When three reviewing members of the board, or a majority thereof, render a determination, reasons for such decision shall be provided when such decision is at variance with the recommendation of the appeals unit.

(h) When three reviewing members of the board, or a majority thereof, reverse or modify a determination, they shall direct the action to be taken, except that, should they determine that the time assessment imposed at a release proceeding was excessive, they shall direct a rehearing.

(i) Upon disposition of an appeal by three reviewing members of the board, a copy of such decision shall be mailed to the incarcerated person/violator and counsel therefor.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 8006.4

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