N.Y. Comp. Codes R. & Regs. tit. 9 § 8005.17

Current through Register Vol. 46, No. 43, October 23, 2024

Section 8005.17 - Scheduling of the Final Revocation Hearing

(a) The final revocation hearing shall be scheduled to take place according to the rules provided in this section, and other sections of this Part and Part 8004 of this Title as may be relevant to reasonably ensure substantial compliance with the Executive Law. Generally:

(1) Where a notice of violation has been issued but no parole warrant was issued, the final hearing shall be scheduled to occur within 45 days of issuance of the notice. Issuance of the notice of violation within the meaning of this paragraph occurs when the releasee has been served with such notice and:

(i) has appeared as directed in response to a notice of violation; or

(ii) has appeared in response to a notice of violation within forty-eight hours of the directed time, but otherwise as directed. In a case that has been properly identified as a technical violation case in which no period of reincarceration may be imposed, if the releasee did not appear as described in paragraph (2) of subdivision (d) of section 8004.6 of this Title, no final hearing is to be scheduled.

(2) Where a parole warrant was issued and the releasee ordered released by a court at the conclusion of a recognizance hearing pursuant to the Executive Law, the final hearing shall be scheduled to occur within 45 days of issuance of the court's release order. Should release on recognizance be ordered but a court thereafter again consider the releasee's detention, the final hearing may be scheduled or rescheduled to occur within 45 days of the court's conclusion upon such new consideration if the court again orders release, or if the court now orders detention, within the later of 30 days of either the issuance of the court's order directing that the releasee be detained, or issuance of the determination following a preliminary hearing that there exists a preponderance of evidence that the releasee violated one or more conditions of release in an important respect or the waiver of the preliminary hearing. Nothing within this paragraph shall be interpreted to require a rescheduling of the final hearing, or to require the scheduling of a new final hearing where a final hearing had commenced.

(3) Where a parole warrant was issued and the releasee was ordered detained by a court at the conclusion of a recognizance hearing pursuant to the Executive Law and where no such hearing relative to same revocation case had previously occurred, the final hearing shall be scheduled to occur within 30 days of either issuance of the determination following a preliminary hearing that there exists a preponderance of evidence that the releasee violated one or more conditions of release in an important respect, or the waiver of the preliminary hearing.

(4) There shall be good cause to extend the time in which the final hearing is scheduled to occur where reasonably necessary to allow for its conduct at the appropriate location and facility as set forth in subdivision (b) of this section.

(5) The scheduling or conduct of a final hearing for a releasee who has absconded from supervision and remains in such status or who is otherwise not within the convenience and practical control of the Department is not required during such period.

(b) Location of the hearing.

(1) The final hearing shall be scheduled and held in a courthouse, in cooperation with the chief administrator of the courts and the chief administrator's designees, provided, however, that if such a courthouse is not reasonably available for such hearing, the Department may designate a suitable office or other similar facility that is not a correctional facility, detention center or local correctional facility for such hearing.

(2) Notwithstanding paragraph (1) of this subdivision, in the department's discretion and as appropriate, where the releasee is in custody or residence within a medical, correctional or similar facility, and will not be produced for a revocation proceeding at another location or courthouse, the final hearing may be scheduled and held in a location deemed necessary under the circumstances for purposes of the timely processing of the case. Subsequent changes in a releasee's custodial or residential status shall permit the department reasonable extension of time for scheduling or rescheduling at another appropriate location.

(c) The alleged violator and an attorney who has filed a notice of appearance in accordance with rules of the Board shall be given written notice of the date, place and time of the hearing in accordance with section 8005.18 of this Part.

(d) Adjournments.

(1) Where an adjournment is granted at the request of or agreed to by an alleged violator or their counsel, or where an alleged violator or their attorney, by their actions, preclude the prompt conduct of a final revocation hearing, the time in which to hold the hearing shall be extended to the next available date.

(2) A request for an adjournment may be granted, or the presiding officer on their own motion may direct an adjournment, upon good cause shown, having due regard for the interests of the parties and the obligations of the Board to hear the case.

(3) A request for a continuance of a final revocation hearing already commenced and in progress may be granted in the discretion of the presiding officer, having due regard for the interests of the parties. Such requests shall be for good cause and must be noted on the hearing record.

(4) Nothing in this section shall preclude a presiding officer from adjourning a case with chargeable time allocated between parties. Adjournments and continuances may be further managed, not inconsistent with the rights of the parties, pursuant to guidance or policy of the Board.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 8005.17

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

Amended New York State Register October 25, 2023/Volume XLV, Issue 43, eff. 10/25/2023