Revocation

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.

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.

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.