Reform Parole Revocation Process

Section 1. Section 259 of the executive law is amended by adding five new subdivisions 5, 6, 7, 8 and 9 to read as follows:

5. "Releasee" means an individual released from an institution under the jurisdiction of the department into the community on temporary release, presumptive release, parole, conditional release, post-release supervision or medical parole.

6. "Technical violation" means any violation of a condition of community supervision in an important respect other than conduct that if proved would be a felony offense, or a misdemeanor offense under article one hundred twenty, one hundred twenty-one, one hundred thirty, one hundred thirty-five, two hundred sixty-five or four hundred eighty-five of the penal law.

7. "Absconding" means intentionally avoiding supervision by failing to maintain contact or communication with the releasee's assigned community supervision officer or area bureau office and to notify his or her assigned community supervision officer or area bureau office of a change in residence, and reasonable efforts by the assigned community supervision officer to re-engage the releasee have been unsuccessful.

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD06090-08-0

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8. "Tier 1 violation" means any technical violation not included in the definition of a Tier 2 violation.

9. "Tier 2 violation" means any of the following technical violations: violating curfew; failure to pay surcharges and fees, including fees imposed pursuant to section 60.35 of the penal law, sections eighteen hundred nine and eighteen hundred nine-c of the vehicle and traffic law, or section 27.12 of the parks, recreation and historic preservation law; obtaining a driver's license or driving a car with a valid driver's license, provided however it shall not be a tier 2 violation if such action is explicitly prohibited as a condition of such person's sentence; positive test for or use or possession of alcohol, drugs, a controlled substance without proper medical authorization, or drug paraphernalia, provided however it shall not be a tier 2 violation if the releasee is subject to community supervision due to a conviction related to alcohol or drugs pursuant to section eleven hundred ninetytwo of the vehicle and traffic law; failing to notify a community supervision officer of a change in employment or program status; failing to notify a community supervision officer of a change in residence, provided however it shall not be a tier 2 violation if the releasee was absconding; failure to make office or written reports as directed, provided however it shall not be a tier 2 violation if the releasee was absconding; leaving the state of New York or any other state to which the releasee is released or transferred or any area defined in writing by his parole officer, without permission, provided however it shall not be a tier 2 violation if the releasee was absconding; failure to notify community supervision officer of contact with any law enforcement agency, provided however it shall not be a tier 2 violation if the releasee intended to hide evidence of his or others' behavior that constitutes a violation of the penal law; and failure to obey any other special condition of community supervision, provided however it shall not be a tier 2 violation if the failure cannot be addressed in the community with counseling, treatment, or programming and all reasonable community-based means to address the failure have been exhausted.

§ 2. Subdivision 3 of section 70.40 of the penal law, paragraphs (a) and (b) as amended by section 127-h of subpart B of part C of chapter 62 of the laws of 2011 and paragraph (c) as amended by chapter 478 of the laws of 1973, is amended and a new subdivision 4 is added to read as follows:

3. Delinquency. (a) When a person is alleged to have violated the terms of presumptive release or parole by absconding, and the state board of parole has declared such person to be delinquent, the declaration of delinquency shall interrupt the person's sentence as of the date of the delinquency and such interruption shall continue until the [return of the person to an institution under the jurisdiction of the state department of corrections and community supervision] releasee's appearance in response to a notice of violation or the date of the execution of a warrant, whichever is earlier.

(b) When a person is alleged to have violated the terms of his or her conditional release or post-release supervision by absconding and has been declared delinquent by the parole board or the local conditional release commission having supervision over such person, the declaration of delinquency shall interrupt the period of supervision or post-release supervision as of the date of the delinquency. For a conditional release, such interruption shall continue until the [return of the person to the institution from which he or she was released or, if he or she was released from an institution under the jurisdiction of the state

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department of corrections and community supervision, to an institution under the jurisdiction of that department. Upon such return, the person shall resume service of his or her sentence] releasee's appearance in response to a notice of violation or the date of the execution of a warrant, whichever is earlier. For a person released to post-release supervision, the provisions of section 70.45 of this article shall apply.

(c) Any time spent by a person in custody from the time of [delinquency] execution of a warrant pursuant to paragraph (a) of subdivision three of section two hundred fifty-nine-i of the executive law to the time service of the sentence resumes shall be credited against the term or maximum term of the interrupted sentence[, provided:

(i) that such custody was due to an arrest or surrender based upon the delinquency; or

(ii) that such custody arose from an arrest on another charge which culminated in a dismissal or an acquittal; or

(iii) that such custody arose from an arrest on another charge which culminated in a conviction, but in such case, if a sentence of imprisonment was imposed, the credit allowed shall be limited to the portion of the time spent in custody that exceeds the period, term or maximum term of imprisonment imposed for such conviction].

4. Earned time credits. (a) After a person has begun a period of community supervision pursuant to this section and section 70.45 of this article, such period shall be reduced by thirty days for every thirty days that such person does not violate a condition of his or her community supervision, provided the person is not subject to any sentence with a maximum term of life imprisonment. The calculation of earned time credit periods shall begin on the releasee's first day of community supervision and shall be awarded after each completed thirty day period. Any such awarded earned time credits shall be applied against such person's unserved portion of the maximum term, aggregate maximum term or period of post-release supervision for any current sentence.

(b) Earned time credits may be withheld or revoked only for the thirty-day period commencing from the date of violative behavior sustained at a final revocation hearing, except that earned time credits may be withheld or revoked for the entire time period during which a releasee absconded from supervision, as sustained at a final revocation hearing, and as defined in subparagraph (xii) of paragraph (f) of subdivision three of section two hundred fifty-nine-i of the executive law. Earned time credits may not be earned during a period of incarceration imposed based on a sustained violation or new criminal conviction. After a sustained violation, the calculation of an earned time credit period shall recommence on the thirty-first day after the date of the violative behavior or, if the sustained violation resulted in a term of incarceration, on the day the releasee is restored to community supervision, whichever is later.

(c) When a person is subject to more than one period of community supervision, the reduction authorized in this subdivision shall be applied to every period of parole or conditional release to which the person is subject.

(d) Earned time credits shall be awarded to any person subject to community supervision at the time this legislation becomes effective retroactive to the initial date such person began his or her earliest current period of community supervision. Provided however, if a releasee's current period of community supervision has been interrupted by a period of incarceration prior to the effective date of the chapter

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of the laws of two thousand twenty which added this subdivision, no earned time credits shall be awarded for such period of incarceration. The department shall have six months from the effective date of this subdivision to calculate all retroactive earned time credits; however, the department of corrections and community supervision shall prioritize earned time credit calculations for releasees whose terms of community supervision are due to terminate before the conclusion of such six months. Retroactive earned time credits shall not be awarded to any releasee serving a term of incarceration for a sustained parole violation at the time of the effective date of the chapter of the laws of two thousand twenty which added this subdivision until the releasee is returned to community supervision.

§ 3. Paragraph (d) of subdivision 5 of section 70.45 of the penal law, as amended by section 127-j of subpart B of part C of chapter 62 of the laws of 2011, is amended to read as follows:

(d) When a person is alleged to have violated a condition of post-release supervision by absconding and the department of corrections and community supervision has declared such person to be delinquent: (i) the declaration of delinquency shall interrupt the period of post-release supervision; (ii) such interruption shall continue until the person is restored to post-release supervision; (iii) if the person is restored to post-release supervision without being returned to the department of corrections and community supervision, any time spent in custody from the date of delinquency until restoration to post-release supervision shall first be credited to the maximum or aggregate maximum term of the sentence or sentences of imprisonment, but only to the extent authorized by subdivision three of section 70.40 of this article. Any time spent in custody solely pursuant to such delinquency after completion of the maximum or aggregate maximum term of the sentence or sentences of imprisonment shall be credited to the period of post-release supervision, if any; and (iv) if the person is ordered returned to the department of corrections and community supervision, the person shall be required to serve the time assessment before being re-released to post-release supervision. [In the event the balance of the remaining period of postrelease supervision is six months or less, such time assessment may be up to six months unless a longer period is authorized pursuant to subdivision one of this section. The] If the person is detained pursuant to paragraph (a) of subdivision three of section two hundred fifty-nine-i of the executive law pending preliminary or revocation hearings, the time assessment shall commence upon the execution of the warrant. If a warrant was executed pursuant to paragraph (a) of subdivision three of section two hundred fifty-nine-i of the executive law but a trial court released the person pending preliminary or revocation hearings, the time assessment shall commence upon the issuance of a determination after a final hearing that the person has violated one or more conditions of community supervision, and shall include the time period between execution of the warrant and release of the person pending preliminary or revocation hearings. If a releasee is committed to the custody of the sheriff pursuant to article five hundred thirty of the criminal procedure law, the time assessment shall include any time the releasee spent in such detention. If a notice of violation was issued pursuant to subdivision three of section two hundred fifty-nine-i of the executive law, the time assessment shall commence upon the issuance of a determination after a final hearing that the person has violated one or more conditions of supervision. While serving such assessment, the person shall not receive any good behavior allowance pursuant to section eight

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hundred three of the correction law. Any time spent in custody from the date of delinquency until return to the department of corrections and community supervision shall first be credited to the maximum or aggregate maximum term of the sentence or sentences of imprisonment, but only to the extent authorized by subdivision three of section 70.40 of this article. The maximum or aggregate maximum term of the sentence or sentences of imprisonment shall run while the person is serving such time assessment in the custody of the department of corrections and community supervision. Any time spent in custody solely pursuant to such delinquency after completion of the maximum or aggregate maximum term of the sentence or sentences of imprisonment shall be credited to the period of post-release supervision, if any.