Revocation

Parole Revocation Process
In September of 2021, Governor Kathy Hochul signed into law the “Less is More Act” (LIM) in New York State. LIM incorporates a new due process procedural component that requires that alleged parole and post-release supervision violators be provided with a recognizance hearing to determine whether they should be reincarcerated in a correctional facility pending the outcome of the administrative revocation proceedings. The recognizance hearings take place in the local criminal courts, and the recognizance hearings are presided over by criminal court judges (State’s Office of Court Administration).
 

Violation Of Parole
If the Parole Officer (PO) has probable cause to believe that a releasee under supervision by the Department has violated one or more of the conditions of their release in an important respect, the PO will conference the case with a supervisor at which time a warrant may be issued, depending on the circumstances. Any individual formally accused of a parole violation will be served with a Notice of Violation, which describes some of the releasee’s basic rights in the parole revocation process, and a Violation of Release Report that lists the violation charges. A releasee may choose to waive or have their Preliminary Hearing. If a releasee chooses to have the Preliminary Hearing, it will be held within five (5) days if detained or ten (10) days of an order from a Recognizance Hearing.
 

Certain Technical Violations
Per LIM, there are certain technical violations for which a releasee may never be subject to a time assessment. This includes alcohol or drug use (subject to limited exception), curfew violations, and certain other specified conduct. Technical violations where a time assessment may be possible Unless specifically exempt from potential reincarceration as indicated above, then technical violative behavior may result in reincarceration consistent with a schedule/scale that links the number of sustained violations the releasee has committed to a limited maximum number of days for the time assessment. For most re-incarcerable technical violations, the schedule is as follows: no period of reincarceration may be imposed for the first and second substantiated technical violations for which incarceration may be imposed; up to 7 days reincarceration may be imposed for the third such violation; up to 15 days reincarceration may be imposed for the fourth such violation; up to 30 days reincarceration may be imposed for the fifth and subsequent such violation. For absconding violations only, the schedule is generally as follows: up to 7 days reincarceration may be imposed for the first absconding violation, up to 15 days reincarceration may be imposed for the second absconding violation, and up to 30 days reincarceration may be imposed for the third or any subsequent absconding violation. While multiple time assessments may therefore be imposed within the same revocation case, all time assessments run concurrently.
 

Non-Technical Violations
Where one or more non-technical violation charges alleging the commission of a new felony or misdemeanor offense are sustained, a time assessment for each such violation may be imposed, which will be: no less than 6 months for a misdemeanor except one under Penal Law article 130; no less than 12 months for any felony, or for any misdemeanor under article 130. Where the releasee is serving a sentence for an offense defined in article 130 of the Penal Law or section 255.26 or 255.27 of such law, and the sustained charge(s) are considered non-technical in that context and are not for a felony or misdemeanor offense, a time assessment for each such violation may be imposed, which will be no less than 6 months. Finally, upon agreement of all parties in a case alleging non-technical violations, parole may be revoked upon a guilty plea to a charge other than one alleging conduct that would constitute a felony or misdemeanor offense but with the understanding that the releasee will be deemed, and treated as, a nontechnical violator. In such case if a period of reincarceration is directed, it will be for no less than a period of months set forth in Board regulations.
 

Recognizance Hearing
Under LIM, alleged violators who are detained on a parole violation warrant must be provided with a recognizance hearing, in addition to a preliminary revocation hearing and a final revocation hearing. Release on recognizance may occur when an individual is facing new criminal charges while also being charged with a violation of the conditions of release. The criminal court judge issues a decision to either remand an individual pending the outcome of the revocation hearing process or authorizes the release of the individual to the community where the revocation hearings are conducted while the alleged violator is at liberty. If released pending the completion of the process in the community setting, the alleged violator is supervised by a parole officer and is subject to the conditions of release imposed prior to the alleged violation and the alleged violator may also be subject to conditions of release imposed by the judge who presided over the recognizance hearing. The pretrial or pre-adjudication conditions of release may include enrollment in electronic monitoring, increased reporting, substance abuse screening, participation in substance abuse treatment, behavioral therapy, mental health services, travel restrictions, or prohibited contact with crime victims, family members, domestic partners, or other vulnerable persons.
 

Preliminary Hearing
A Preliminary Hearing is a hearing conducted for the purpose of determining whether there is preponderance of the evidence to believe that the releasee has violated one (1) or more of their conditions of release in an important respect. In most cases, the preliminary hearing is held in a local courthouse near the community where the alleged violative behavior occurred or where the releasee was taken into custody. The releasee has a right to counsel. If the releasee does not plead guilty to one of the charges, it is incumbent upon the Department (DOCCS) to present its case through the presentation of evidence and testimony. Upon completion of the hearing, the Preliminary Hearing Officer (PHO) or the Administrative Law Judge (ALJ) will either find or not find a preponderance of the evidence. The parole violator will receive a copy of the preliminary hearing decision following the hearing. If there is a finding of the preponderance of the evidence, the revocation case will proceed to the Final Hearing phase of the revocation hearing process. If a preponderance is not found, the releasee will be restored to supervision.
 

Final Revocation Hearing
A Final Revocation Hearing shall be scheduled to take place within thirty (30) days (if detained) or forty-five (45) days of the determination or waiver of the preliminary hearing. An alleged parole violator is entitled to be represented by an attorney who shall file a notice of appearance with the Department’s Parole Violation Unit (PVU) in the bureau located in the jurisdiction where the releasee is incarcerated. The Administrative Law Judge (ALJ), or a member of the Parole Board will conduct the hearing, will administer oaths, may entertain applications for an adjournment, will direct the presentation of evidence, and will make a determination as to which charges have been sustained by clear and convincing evidence. The Department is represented by a Parole Revocation Specialist (PRS) who will present evidence and examine witnesses to testify to the charges in the violation. The alleged parole violator may secure his/her own attorney or request to have the public defender/ legal aid represent them at the Final Hearing. The parole violator may present evidence and witnesses to refute or to mitigate the charges. If no violation charges are sustained, the ALJ will dismiss the charges and the releasee is returned to supervision. If one or more charges are sustained, a delinquency date will be established based on the earliest proven date of the violative behavior. The attorney for the releasee and the PRS representing the Department will make recommendations regarding the disposition and such final dispositions may involve time assessments or a decision to revoke release and restore the releasee to supervision in the community. The releasee will receive a copy of his/her final decision after the ALJ considers the recommendations and makes a final determination.

An administrative appeal may be filed within thirty (30) days of receipt of the final revocation hearing decision and the appeal submission must be perfected within one-hundred and twenty (120) days.