N.Y. Comp. Codes R. & Regs. tit. 9 § 8004.7

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

Section 8004.7 - Technical Violations - Reincarceration

(a) Technical violations for which reincarceration may be imposed include:

(1) a violation of any standard condition of release set forth in section 8003.2 of this Title to the extent such constitutes a technical violation, except for the following:

(i) use of a controlled substance, provided however, that such violation is a technical violation for which reincarceration may be imposed where the releasee is subject to community supervision due to a conviction for driving under the influence of drugs;

(ii) failure to notify the parole officer of a change in employment or program status;

(iii) failure to notify the parole officer of contact with law enforcement, provided however, that such violation is a technical violation for which reincarceration may be imposed where the releasee intended to hide illegal behavior;

(2) a violation of any special condition other than that which may be specifically identified in subdivision (a) of section 8004.6 of this Title, where the failure cannot be safely addressed in the community and all reasonable community-based means to address the failure have been exhausted. The Department shall not charge such a violation, as a violation for which reincarceration may be imposed, unless it has concluded that the failure cannot be safely addressed in the community and that all reasonable community-based means to address the failure have been exhausted.

(3) absconding from supervision;

(4) a violation of any direction that the releasee appear at any recognizance hearing or parole revocation process appearance, including the appearance directed in response to a notice of violation, and any preliminary and/or final revocation hearing and any adjourned or continuation appearances therefrom; and

(5) the failure to notify the parole officer of an arrest or the service of a criminal summons upon the releasee.

(b) With respect to those violations as set forth in subdivision (a) of this section, the case shall not be considered a technical violation case where reincarceration may be imposed unless there are at least three such violations charged within the current case, or at least one such charge in the current case which may be combined with such qualifying sustained prior violations on the instant term(s) as to reach a threshold of three sustained such violations should the current qualifying charge also be sustained. A qualifying prior violation means a violation set forth in subdivision (a) of this section.

(c) Notwithstanding subdivision (b) of this section, any technical violation case wherein the releasee is charged with absconding from supervision shall be considered one where reincarceration may be imposed, without regard to the number of current charges and irrespective of whether violations have been sustained in a prior revocation case involving the releasee.

(d) If the technical violation case has been identified by the Department as one in which reincarceration may be imposed, a notice of violation may be approved for prosecution and:

(1) If the releasee appears as directed in response to the notice of violation, the parole revocation process shall continue and the releasee afforded the right to a preliminary revocation hearing if such right is not waived; or

(2) If the releasee has failed to appear as directed in response to the notice of violation and has failed to appear voluntarily within forty-eight hours after such time, a parole warrant may be issued for the retaking of the person and for their detention pending a recognizance hearing in accordance with section 8004.5 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 8004.7

Adopted New York State Register May 3, 2023/Volume XLV, Issue 18, eff. 5/3/2023