N.Y. Comp. Codes R. & Regs. tit. 9 § 352.6

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

Section 352.6 - Procedures for non-compliant behaviors and Probation violations in criminal and family court cases

(a) Procedures for responding to non-compliant behaviors, other than absconding or new offenses, to be utilized in the absence of court direction.

(1) Investigation of alleged non-compliance.

(i) When a probation officer has reasonable cause to believe that a probationer has not complied with condition(s) of probation, the probation officer shall commence an investigation.

(ii) Such investigation shall, to the extent necessary, consist of determining the facts and seriousness of the alleged non-compliance.

(iii) The probation officer shall review incentives and sanctions that have been utilized during the supervision period.

(2) Consistent with department policy, the probation officer shall consider addressing non-compliant behavior through the use of sanction(s).

(i) the probation officer shall use the department's graduated response protocol or grid in response to non-compliant behavior.

(ii) the department's graduated response protocol or grid shall consider the individual's risk of re-offending, the severity (minor, moderate or serious) and frequency of the non-compliant behavior, the impact to any victim, and seriousness of the underlying offense.

(3) Supervisor notification and consultation. Where a significant technical violation has occurred, the facts of this investigation shall be presented to the immediate supervisor or other probation official.

(4) Required actions. With supervisory approval, one of the following actions shall be taken, pursuant to local written probation policy, based upon the nature of the alleged non-compliant behaviors and potential threat of the probationer to the victim(s), community, and/or self, and previous attempts to use graduated responses:

(i) Administrative Review. When it is determined that the non-compliance does not require court involvement, the probation officer and supervisor/director shall discuss the non-compliant behavior(s) with the probationer. Where the probationer is under 16 years of age, the parent/guardian shall also be present. When the youth is a 16 or 17-year-old, the Probation Officer should include the parent or other person(s) legally responsible for the youth's care, where feasible. During this meeting, the probationer's progress in achieving the goals of the case plan and adhering to the conditions of probation will be addressed. A summary of the meeting shall be entered into the case record.

(ii) Judicial Reprimand and/or Modification of Conditions. As a result of an administrative review, the probation department may request that the court require the probationer to appear for the purpose of modifying the conditions of probation or for judicial reprimand. A Court Notification Report shall be utilized for this purpose.

(iii) Violation of Probation. When it is concluded that a violation of probation hearing is appropriate, a Violation of Probation Petition and Report shall be prepared by the probation officer with supervisory approval and forwarded to the court. A request for any Declaration of Delinquency for criminal cases shall also be forwarded to the court at this time. A request for a Notice to Appear or a warrant for the arrest of the probationer shall accompany such report.

(b) Procedures for technical violations in cases of absconders.

(1) Upon the determination that a probationer has absconded, the probation officer shall file a Violation of Probation Petition and Report together with requests for any Declaration of Delinquency and a warrant for the arrest of the probationer.

(2) Probation departments shall make reasonable efforts, consistent with local resources, to work with law enforcement agencies to address probation violations and warrants.

(3) The director of probation or designee shall be responsible for maintaining a log of all active absconder cases.

(4) The provision of this section shall not relieve, or in any way alter, the responsibility of the Probation Department to comply with the provisions of Section 355.3(d) of Part 355 of this Chapter, governing Probation Officers as Peace Officers.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 352.6

Amended New York State Register March 27, 2019/Volume XLI, Issue 13, eff. 3/27/2019