N.Y. Comp. Codes R. & Regs. tit. 9 § 8004.9

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

Section 8004.9 - Recognizance Hearing

(a) Following execution of a parole warrant, for any releasee remaining in custody pursuant to such warrant, a recognizance hearing will be held. The recognizance hearing shall be presided over by a court of law as set forth in subdivision (b) of this section and the conduct of such hearing is the responsibility of that court. Except as provided in paragraph (3) of subdivision (b) of this section, the recognizance hearing may not be combined with any other proceeding nor shall the court decide any subject other than the issue of release on recognizance in regard to the parole warrant.

(b) The releasee for whom a recognizance hearing must be held will be presented for such hearing as follows:

(1) For any releasee alleged to have committed a violation of a condition of release in an important respect in the city of New York, the authorized officer shall present the releasee to the criminal court of the city of New York or the supreme court criminal term in the county where the violation is alleged to have been committed for a recognizance hearing within twenty-four hours of the execution of the warrant. If no such court of record is available to conduct any business of any type within twenty-four hours of the execution of the warrant, the recognizance hearing shall commence on the next day such a court in the jurisdiction is available to conduct any business of any type.

(2) For any releasee alleged to have committed a violation of a condition of release in an important respect outside of the city of New York, the authorized officer shall present the releasee to a county court, district court or city court in the county or city where the violation is alleged to have been committed for a recognizance hearing. If no such court of record is available to conduct any business of any type within twenty-four hours of the execution of the warrant, the recognizance hearing shall commence on the next day such court is available to conduct any business of any type.

(3) If the violation charge or charges involve conduct that would constitute a new felony or misdemeanor offense, such recognizance hearing may be held at the same time as a proceeding pursuant to Article 530 of the Criminal Procedure Law for any warrant issued by the Department prior to such proceeding. If at the proceeding pursuant to Article 530 of the Criminal Procedure Law the court imposes bail on the new alleged criminal offense or commits the releasee to the custody of the sheriff pursuant to such article and the releasee secures release by paying bail or under non-monetary conditions or by operation of law, then the releasee shall not be detained further based solely on the warrant issued by the Department. If the Department issues a warrant for a non-technical violation for alleged criminal conduct that has already been the subject of a court's order pursuant to Article 530 of the Criminal Procedure Law, then within twenty-four hours of execution of the warrant the releasee shall be provided a recognizance hearing, provided, however, that if no court as provided in this section is available to conduct any business of any type within twenty-four hours of the execution of the warrant, then the recognizance hearing shall commence on the next day such court is available to conduct any business of any type.

(4) Authorized officer shall mean the superintendent or other person in charge of the jail, penitentiary, lockup or detention pen in which the releasee was detained under the authority of the parole warrant, or their authorized staff. In its discretion, however, the Department may permit other peace officers to function as authorized officers for this purpose.

(5) The time within which the authorized officer is to present the releasee for purposes of a recognizance hearing and in which to commence such hearing shall be extended where reasonable to ensure that such releasee is presented to the appropriate court as identified in paragraphs (1) and (2) of this subdivision.

(6) Where the releasee's custody is pursuant to the parole warrant and they are not detained in the county within which the violations are alleged to have occurred, except as may otherwise be deemed appropriate by the Board or Department due to case specific circumstances, execution of the warrant shall not be deemed completed within the meaning of this section until their known reception in the appropriate county, provided however, that for releasees detained pursuant to a parole warrant within the city of New York, the warrant may be deemed executed upon their exclusive and known custody pursuant to such warrant within any county therein.

(7) The failure of the authorized officer to present the releasee within the periods set forth in this paragraph shall have no effect on the validity of the parole warrant or the parole violation charges and shall not in itself require release, but may provide basis for an application to a court of law, on notice to the Department and Board of Parole, for an order compelling the appropriate production.

(c) The purpose of the recognizance hearing is to determine whether the releasee is to be detained pending a preliminary or final revocation hearing, and if not, what non-monetary conditions in the community shall be imposed which will reasonably assure the releasee's appearance at the preliminary or final revocation hearing.

(d) At the hearing there is a presumption of release on recognizance, which release is to be ordered by the court unless it finds that:

(1) the releasee currently presents a substantial risk of willfully failing to appear at preliminary or final revocation hearings; and

(2) that no non-monetary condition or combination of conditions in the community will reasonably assure the releasee's appearance at the preliminary or final revocation hearings.

(e) If the court makes the findings in subdivision (d) of this section the releasee is to be ordered detained until the conclusion of all parole revocation proceedings and the issuance of the final decision therefrom, and as may be consistent with any decision revoking release and directing the releasee's reincarceration.

(f) If the court finds that the standards identified in subdivision (d) of this section for an order directing the releasee's continued detention are not met, the releasee is to be ordered released and such order must include the least restrictive non-monetary conditions that will reasonably assure the releasee's appearance at subsequent preliminary and final revocation hearings, provided, however:

(1) The releasee shall not be required to pay for any part of the cost of such conditions imposed by the court.

(2) The Board and Department retain independent authority to impose conditions of release, including, but not limited to, conditions intended to support a likelihood that the releasee will appear at the preliminary and final revocation hearings and appearances, and any other conditions related to community supervision, whether applicable to the period following the recognizance hearing or thereafter. Violation of these conditions for any such releasee may be considered and charged as violations of the conditions of release.

(g) The releasee has the right to representation by counsel at the recognizance hearing.

(h) The Department shall be a party to any recognizance hearing relevant, in whole or in part, to a parole warrant.

(1) The Department should demonstrate to the recognizance court that the executed warrant had been properly issued, and should inform the court of the following:

(i) that there is probable cause to believe the releasee violated one or more of the conditions of their release in an important respect;

(ii) that such fact was reported to a member of the Board or a designated officer identified in section 8004.2;

(iii) that upon such report, a Board member or designated officer issued the parole warrant; and

(iv) the violative behavior the releasee is believed to have engaged in.

(2) The Department shall present information to the court regarding the alleged violations, and the releasee's community supervision record to the extent practicable and where such information is relevant to the purpose of the recognizance hearing.

(3) Inasmuch as the court may consider such factors as evidence of the releasee's employment, family and community ties including length of residency in the community, history of reporting in a timely fashion to their parole officer, and any other evidence relevant to their stability, the Department should be prepared to offer such available information to the court.

(4) Where practicable and if an alleged violation is the subject of a pending criminal prosecution, the Department shall coordinate with the office of the district attorney to ensure that relevant information regarding such alleged violation is presented to the court.

(i) At the time of the hearing the Department shall serve the releasee with the notice of violation if they were not previously served with such notice, and:

(1) The Department may also provide a copy of the notice to releasee's counsel at such hearing.

(2) The notice, amendment thereto or some other document must be served on the releasee at such time apprising them of the time and place of the preliminary revocation hearing, or if a preliminary hearing is not required, the time and place of the final revocation hearing, to any extent such information had not previously been provided to the releasee. Such information shall be in accord with relevant provisions in Part 8005 of this Title and must account for the court's order stemming from the recognizance hearing.

(3) The notice, amendment thereto or some other document should be served on the releasee at such time stating what conditions of release are alleged to have been violated and in what manner, to any extent such information had not previously been provided to the releasee.

(j) In all cases the Department should request that a written order regarding recognizance be issued and promptly served on the Department following such issuance. The court is required to explain its decision on recognizance on the record or in writing.

(k) In the event a recognizance hearing is held without the participation of responsible Department staff, such fact should be reported as soon as practicable to Counsels for the Department and for the Board of Parole, but the failure to so report shall neither affect the court's recognizance order nor prevent further legal proceedings regarding such.

(l) Nothing within this section shall be construed as expanding the purpose of, and appropriate scope of inquiry at, a recognizance hearing as set forth in in subdivisions (c) and (d) of this section, and the recognizance court remains without authority to rule on the validity of a notice of violation, parole warrant, or any other aspect of the parole revocation case and its continuation. The evidence presented at the recognizance hearing shall not constrain the Department to any position or representation in the parole revocation process, nor may the court's order or findings on recognizance affect the preliminary or final parole revocation decisions, including the determinations by the presiding officer regarding time assessments that may be imposed upon any sustained violations.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 8004.9

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