N.Y. Comp. Codes R. & Regs. tit. 9 § 349.4

Current through Register Vol. 46, No. 22, May 29, 2024

Section 349.4 - Requirements for the intrastate transfers of supervision

(a) Any intrastate transfer must be pursuant to a designation and order of the court. A probationer must agree in writing to comply with any and all conditions set forth by the receiving court and be subject to any other fees and/or surcharges authorized by law. No intrastate transfer shall be initiated by a sending probation department when there exists a pending violation of probation in its jurisdiction unless the receiving probation department expresses in writing willingness to accept transfer. No transfer of interim probation cases shall be initiated unless statutorily authorized. Transfers are prohibited whenever there exists pending criminal charge(s) in the sending jurisdiction unless the probationer is a resident of the receiving jurisdiction at time of commission of the offense or at sentencing/disposition or has family residing in the receiving jurisdiction with whom he/she will reside, the transfer enhances public safety, and the receiving probation department expresses in writing willingness to accept transfer.

(b) Prior to a transfer, the sending probation department shall provide the court with information relevant to a probationer's prospective plan of transfer, including residence, in the jurisdiction to which supervision is to be transferred.

(c)

(1) Immediately upon knowledge that a person being considered for probation or on probation resides or desires to reside in another jurisdiction, the sending probation department may request the receiving probation department to verify the subject's residence or prospective residence except those cases enumerated in paragraph (2) of this subdivision. All efforts shall be made to afford the receiving department adequate time so as not to delay disposition of the case.

Factors that may be considered when determining suitability to transfer to another probation department are the individual's address for mailing and/or tax purposes, where he/she lives the majority of time, votes, and where his/her vehicle is registered.

(2) Prior to a transfer involving any person convicted or adjudicated of an offense defined in articles 130, 235, 263 of the Penal Law or section 255.25 of such law, or of an offense between spouses, parent and child, or between members of the same family or household, or any other crime where an order of protection exists, and where a probationer is not a resident of the receiving jurisdiction at the time of sentencing or disposition, the sending probation department shall afford the receiving probation department the opportunity to investigate the prospective transfer and verify actual residence prior to his/her movement and transfer of supervision to a receiving jurisdiction. For purposes of this section, offense shall include the criminal offense or matter for which convicted or adjudicated, as well as any other criminal offense or matter that is part of the same criminal transaction or underlying behavior or that is contained in any other accusatory instrument or petition disposed of by a plea of guilty or finding of fact or admission of guilt in satisfaction.

(3) The sending probation department shall provide the receiving department at a minimum the following information:

(i) subject's current address and prospective address, if different;

(ii) subject's current home and business telephone number;

(iii) the order and conditions of probation;

(iv) a copy of any existing order of protection;

(v) a brief description of the underlying offense or act;

(vi) where applicable, subject's current employer and prospective employer if different; and

(vii) where applicable, the name, address and telephone number of the subject's residential treatment provider or educational institution.

(4) The receiving probation department shall use reasonable efforts to verify residency in a prompt manner. Where the subject of the proposed transfer has not provided adequate verification of his or her address such efforts shall include, at a minimum, two written communications to the subject of the transfer at the address provided by the sending department. Where no response has been obtained from these written communications, it is recommended that a home visit be conducted.

(5) Upon verification of residency by receiving department all information shall be promptly provided to the sending department by the receiving probation department upon request.

(6) The receiving probation department shall, upon verification of residency within its jurisdiction, complete the acknowledgment section contained in the applicable form and promptly return, by fax if available, two duly executed copies to the sending probation department. Upon a finding of nonresidency, the receiving department shall complete the acknowledgment section contained in the form and promptly return two duly executed copies and all transfer materials to the sending department.

(d) When a probationer is granted transfer, a sending probation department shall immediately provide the designee in the receiving department in the most expeditious manner available with the orders and conditions of probation and preliminary information about the probationer, including at a minimum, the name, address and telephone number of the probationer, date of leaving, date of arrival, underlying offense which resulted in probation supervision, sentencing court, and type of transfer. The sending department shall receive instructions from the receiving department as to where the probationer shall report. The sending department shall direct the probationer in writing to report to a specific location in the receiving department within 10 business days of arrival.

(e) The sending probation department shall take all necessary steps to ensure fingerprinting, DNA testing, and sex offender registration, where applicable, are completed prior to transfer and shall indicate what actions it has taken with regard to these requirements. The sending probation department, within 10 business days of receipt of a court order of transfer, shall transmit to the receiving probation department designee the following information:

(1) a completed form DCJS-16, 16a or 16b, whichever is applicable or such other form and/or manner as may be prescribed by DCJS;

(2) the pre-sentence or pre-disposition investigation report where available or in lieu of the report, a completed pre-sentence or pre-disposition report facesheet, the accusatory instrument or the petition, whichever is applicable, and police report(s) where available;

(3) periodic supervision reports;

(4) any mental health/substance abuse evaluation and/or treatment summary;

(5) any records regarding outstanding financial obligations;

(6) a photograph if available;

(7) a copy of any existing or recent orders of protection and/or victim information, including name and address;

(8) whether the probationer is subject to sex offender registration and where applicable all documents relating to sex offender registration, including photograph;

(9) any other information authorized by law;

(10) information required by either the court ordering the transfer or the court to which supervision is transferred;

(11) name, address, phone number of probationer's prospective or existing employer, residential treatment provider, and/or educational institution;

(12) proposed residence, phone number, and information pertaining to others living in the household; and

(13) whether the individual is subject to fingerprinting and/or DNA testing.

Where any convicted individual, youthful offender, or juvenile delinquent adjudicated of a fingerprintable offense, is under probation supervision, the sending probation department shall electronically transmit, utilizing the State's integrated probation registration system, the ORI number and the probationer's registration number associated with the underlying offense for which such person is under supervision.

(f) If it is determined that the probationer: resides at the specified address in the order of transfer; has absconded; does not reside; or will not be residing at the specified address in the order of transfer; the receiving probation department shall immediately upon knowledge, but no later than 60 calendar days after the date the initial court transfer order is received, notify the sending probation department of its finding with respect to residency or non-residency. If the address in the order of transfer is inaccurate, the correct address shall be provided. Any verbal notification shall be immediately confirmed in writing. The sending probation department shall notify the sending court of the finding. The sending probation department shall retain the duty of supervision for the probationer and the sending court shall retain jurisdiction over the case prior to verification of residence or upon notification of probationer non-residence within the time period. If no notification of residency or non-residency occurs within 60 calendar days of the date the court transfer order is received, the transfer shall be effective and the receiving court shall assume those powers and duties as otherwise specified in the court order and the receiving probation department shall assume the duty of supervision. Upon knowledge of residency or non-residency, the receiving probation department shall complete the acknowledgment section contained in the appropriate DCJS transfer form and return two duly executed copies to the sending probation department. Upon acceptance, the receiving probation department shall electronically transmit updated transfer information to DCJS, utilizing the State's integrated probation registrant system. After 60 calendar days of the court order being received, if the receiving department has not already done so, the sending department shall electronically transmit to DCJS updated transfer information with respect to completion of transfer, utilizing the State's integrated probation registrant system. Where non-residency is determined, the receiving probation department shall return all appropriate transfer material to the sending probation department within 10 calendar days of such a determination.

(g) Where the receiving probation department recommends additional conditions, it shall seek to calendar the case with the receiving court for modification of conditions within 20 business days of acceptance of transfer. Nothing shall preclude the ability of the receiving probation department to request modification of conditions and/or a court to modify conditions during the term of supervision.

(h) A subsequent intrastate transfer of the supervision of a probationer shall originate from the appropriate court which possesses the jurisdiction to re-transfer.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 349.4

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