If the Parole Officer (PO) has reasonable cause to believe a parolee under supervision by the Department has lapsed into criminal ways or has violated one or more of the conditions of release in an important respect, the PO will confer the case with a supervisor, at which time a warrant may be issued. The warrant will remain in effect with no right to bail throughout the violation process.
For individuals lodged in New York State, the alleged violator (parolee) will be served a Notice of Violation within three days of the date the warrant is executed. The Notice of Violation describes the hearing process and the parolee's rights with respect to the revocation process.
Parolees are also provided a copy of the Violation of Release Report that lists the violation charges. For cases lodged out of state, the parolee must be served within five days of becoming available to the warrant.
Parolees may choose to waive or have their Preliminary Hearing. Parolees choosing to have the Preliminary Hearing will have it held within 15 days of the execution of the parole warrant. Parolees choosing to waive their Preliminary Hearing will have a Final Hearing held within 90 days of the waiver.
Hearings and Delinquencies
A Preliminary Hearing is a hearing conducted for the purpose of determining whether there is probable cause to believe the parolee has violated one or more of the conditions of release in a significant respect. In most cases, the preliminary hearing is held in a county jail near the community where the alleged violative behavior occurred or where the parolee was taken into custody.
Although a violator may obtain their own attorney, there is no absolute right to counsel at the Preliminary Hearing. If the parolee does not plead guilty to one of the charges, it is incumbent upon DOCCS to present its case through the presentation of evidence and testimony.
Upon completion of the hearing, the Preliminary Hearing Officer (PHO) will either find probable cause or will not find probable cause. Parole violators will receive a copy of their decision following the hearing.
If there is a finding of probable cause, the violation will proceed to a Final Hearing. If there is a finding of No Probable Cause, the hearing officer will order that the warrant be lifted and the parolee will be restored to supervision.
If a parolee is arrested and convicted of a new misdemeanor, there will be no preliminary hearing. Upon conviction for a misdemeanor offense, the matter will proceed to the Final Hearing phase.
If convicted of a felony in New York State and sentenced to an indeterminate or determinate term, supervision is revoked by operation of law without the need for either a Preliminary or Final Hearing, and the parole violator will be returned as a Parole Violator With a New Term (PVNT).
If the new felony conviction results in a sentence other than a new state term of incarceration, DOCCS will proceed with the Final Hearing.
A parolee may be declared delinquent in any of the following situations:
- Having reasonable cause to believe a parolee has absconded from supervision;
- Finding of probable cause at a Preliminary Hearing;
- Waiving of a Preliminary Hearing; or
- Convicting a parolee of a new crime while under supervision.
The date of delinquency is the earliest date that a violation of release is alleged to have occurred. A declaration of delinquency interrupts the sentence as of the established date of delinquency.
Final Revocation Hearings
Final Revocation Hearings shall take place within 90 days of the determination of probable cause or waiver of the preliminary hearing. A parole violator is entitled to be represented by an attorney who shall file a notice of appearance with the Parole Violation Unit in the bureau located in the jurisdiction where the parolee 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 a preponderance of the 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 of release report. Alleged parole violators may secure their own attorneys 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 by clear and convincing evidence, the ALJ will dismiss the charges and order the warrant lifted. 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 parolee and the PRS representing the Department will make recommendations regarding the disposition, and such final dispositions may involve a time assessment, admission to the DOCCS DTC or other programs, or a decision to revoke release and restore to supervision in the community. Parolees will receive copies of the final decision after the ALJ considers the recommendations and makes a final determination.
Parole violators with pending felony charges may request to be put on the “K Calendar” for an indefinite period and until such time as the pending felony charges are disposed of or the parole violator wishes to proceed with the Final Hearing.
Parole Revocation Guidelines
In January 1997, the Board of Parole adopted guidelines governing the revocation process. Under the amended regulations, revocation outcomes reflect a guideline structure that considers criminal history, crime of conviction, number of prior violations, and current violative behavior. The guidelines are structured to ensure that violators with a history of violent behavior receive the most severe penalties and those with substance abuse problems receive the necessary treatment.
Under the guidelines, most violators fall into one of following three categories, resulting in a certain sanction or range of sanctions, including Category 1, Category 2, or Category 3.
Conditionally released on a violent felony offense as defined under Penal Law Section 70.02.
Paroled or conditionally released on an A-1 felony offense.
Paroled or conditionally released on any felony offense under Article 125, 130, 135, 263 or Section 255.25 of the Penal Law.
Paroled on any violent felony offense or youthful offender adjudication involving the use, or threatened use, of a deadly weapon or dangerous instrument, or the infliction of physical injury.
Current violative behavior involving the use, or threatened use, of a deadly weapon or a dangerous instrument, or the infliction or attempted infliction of physical injury, or the possession of a firearm, or threats against DOCCS staff or peace officers.
A criminal record that includes either a violent felony conviction, or youthful offender adjudication that occurred within the 10-year period preceding the commission of the felony on which the current sentence is based and that involved the use or threatened use of a deadly weapon or dangerous instrument, or the infliction of physical injury. Any period of time during which the person was incarcerated shall be excluded in calculating the 10-year period preceding the act.
The time assessment imposed on sustained Category 1 cases can be no less than 15 months. However, the presiding officer may grant a mitigating reduction of up to three months.
The current conviction is for a felony, other than A-1 defined by Article 220 or 221 of the Penal Law, and the sustained violation is for other than a felony committed while under supervision.
The current sentence is based on a conviction other than Penal Law Article 220 or 221 offense which is neither a violent felony offense or a Class A felony and the current violation charge is sustained on Rule 8 drug or marijuana charge, Rule 11 charge or special condition prohibiting the use of alcohol.
All Category 2 violators are revoked and restored to DOCCS DTC. However, a violator may be exempted from mandatory participation in DOCCS DTC and moved to Category 3 when one of the following circumstances applies:
- Time remaining on sentence as of warrant lodge date is less than nine months;
- Felony charges are pending as of Final Hearing date; or
- Individual is medically or psychiatrically ineligible.
These cases include violators that do not fall under Categories 1 or 2.
The time assessment imposed on a Category 3 violator whose crime of conviction is a violent felony offense as defined in Penal Law Section 70.02 is the time spent in custody (at the time of the Final Hearing) plus six months. For a violator with a non-violent felony offense as a crime of conviction, the time assessment is time spent in custody plus three months.
Persistent violators are Category 2 or 3 cases with two prior sustained violations, who upon receiving a third violation or more, may receive a time assessment not to exceed 12 months.
Certain types of parole violators do not fall into Category 1, 2, or 3, and do not receive an established sanction. In these cases, a time assessment is imposed or the violator may be restored to supervision. These cases include:
- Those sentenced to DOCCS DTC under Section 410.91 of the Criminal Procedure Law (judicially sanctioned);
- Those restored to DOCCS DTC who fail to successfully complete the 90-day program; or
Under the guidelines, graduates of the Shock Incarceration Program may be revoked and restored to DOCCS DTC. However, if shock graduates receive a time assessment, the time assessment shall be, at the least, for a period of time equal to the minimum period of imprisonment imposed by the court.
Mitigating Circumstances Under the Regulations
There are five sets of mitigating circumstances which, if demonstrated, allow for a departure from the mandatory penalties imposed on Category 1, 2, and 3 violators. These include:
- The violator is the custodial parent of a minor child, and has been the actual primary caregiver for at least 12 months or since birth or adoption prior to incarceration on the warrant. If restored, violators have a stable residence and means of support so that they would continue to care for the child.
- The violator's parole supervision prior to the conduct for which the warrant was issued is deemed acceptable by DOCCS, and the violator has a stable residence and prior employment.
- The violator has voluntarily returned to supervision after absconding.
- The violator has a new pending criminal charge and the new charge is being disposed of by referral to any alternatives to incarceration program (ATI); restoration to supervision is conditioned only upon the successful completion of the ATI program.
- The violator who would otherwise be a Category 2 violator, but whose medical or psychiatric needs cannot be met at DOCCS DTC.
If one or more mitigating circumstances apply, violators can be revoked and restored to supervision if:
- The violator's program needs could be adequately addressed in the community with supervision.
- Restoration to supervision would not have an adverse effect on public safety.
After serving a mandated period of re-imprisonment following a final hearing (for example, time assessment), the parolee is eligible for re-release from state prison. Depending on the nature of the sentence they are serving, this release may occur following Parole Board review or by operation of law.
The DOCCS DTC is a 90-day residential drug and alcohol treatment program operated by DOCCS.
Parolees with substance abuse history or whose violation involves substance abuse may be revoked and restored to DOCCS DTC through the revocation process. Once they have completed the DOCCS DTC program, they will be released to their assigned bureau to resume supervision.
Violators serving indeterminate sentences who are returned to a state correctional facility owing more than one year may earn good time equaling up to one-third of the remaining sentence. In other words, if they return owing 15 months of supervision on an indeterminate sentence, they may receive five months of good time and be eligible for conditional release 10 months after being returned.
Violators returned to incarceration from a period of post-release supervision are not eligible for good time or a new conditional release date.