N.Y. Comp. Codes R. & Regs. tit. 9 § 8002.5

Current through Register Vol. 46, No. 51, December 18, 2024

Section 8002.5 - Rescission

(a) After an inmate has received a parole release date, situations may arise which would cause the board to reconsider its decision to grant parole release. The process for reconsideration of a parole release date shall be governed by the procedure outlined in this section.

(b) Rescission procedure.

(1) Whenever it shall come to the attention of the senior parole officer or the parole officer in charge of an institutional parole office that there may be a basis for board reconsideration of a parole release date, said officer may temporarily suspend the inmate's release date.

(2) Events which may cause the temporary suspension and rescission of a parole release date shall include, but not be limited to:

(i) significant information which existed, or significant misbehavior which occurred prior to the rendition of the parole release decision, where such information was not known by the board; or

(ii) case developments which occur subsequent to the board's rendition of its decision to grant release:

(a) significant misbehavior or a major violation of facility rules;

(b) escape or absconding or removal from temporary release;

(c) substantial change in the inmate's mental and/or emotional condition which results in commitment to a psychiatric center;

(d) imposition of an additional definite sentence;

(e) imposition of an additional indeterminate sentence or the resentence of the inmate on the underlying indictment or superior court information to an indeterminate term where the minimum period of imprisonment of such term exceeds that of the pre-existing minimum term; and

(f) substantial change in the inmate's status in relation to any of the factors for consideration denoted in Executive Law, section 259-i(2)(c).

(3) Subsequent to the temporary suspension of the inmate's release date, the parole officer shall, as soon as practicable, notify the inmate in writing of the suspension. The parole officer having charge of the inmate shall thereafter commence an investigation into the circumstances surrounding the basis for the temporary suspension, and shall prepare a rescission report delineating the results of said investigation. Said report shall be submitted to a member of the board as soon as practicable.

(4) Upon review of the rescission report, a member of the board shall order:

(i) that the inmate be held for a rescission hearing; or

(ii) that the inmate's release date be reinstated, except that where the board's reinstatement occurs subsequent to the date originally established for release, the board shall order that release occur as soon after reinstatement as practicable; or

(iii) for any case involving the imposition of an additional indeterminate sentence or a resentence pursuant to clause (2)(ii)(e) of this subdivision, that the release date be rescinded and the inmate scheduled to appear before a panel of the Board of Parole at least one month prior to the expiration of the new or aggregated minimum period of imprisonment as calculated by the inmate records coordinator. Written notice of a rescission decision rendered pursuant to this paragraph shall be sent to the inmate, and shall state the reason for rescission.

(5) When a rescission hearing is ordered by the board, the inmate shall be presented with a copy of the rescission report and a notice of rescission hearing. The notice of rescission hearing shall be presented to the inmate not less than seven days prior to the scheduled date of the rescission hearing and shall inform the inmate of the following:

(i) the date and place of hearing;

(ii) the specific allegations which will be considered at the hearing;

(iii) the inmate's rights at the final hearing, which include:

(a) the right to be represented by counsel;

(b) the right to appear and speak on his own behalf; to present witnesses and introduce documentary evidence; and

(c) the right to confront and cross-examine adverse witnesses, unless he has been convicted of a crime for which an additional sentence has been imposed or unless a majority of the members of the Board of Parole conducting the hearing find good cause in the record for the nonattendance of a witness.

(6) An attorney who represents an inmate at a rescission hearing shall file a notice of appearance with the parole officer in charge of the institutional parole office where the inmate is incarcerated.

(c) Rescission hearing schedules.

(1) A rescission hearing shall be scheduled to take place within a reasonable time after the board orders a hearing. The hearing shall be convened at the inmate's state facility of incarceration, and shall be conducted by members of the Board of Parole.

(2) An attorney who has filed a notice of appearance with the parole officer in charge of the institutional parole office shall be given reasonable notice of the date, time and place of the hearing.

(3) Adjournments will not normally be granted. Applications for an adjournment by either party shall be made to the board member conducting the hearing. However, an adjournment may be granted by the parole officer in charge of the institutional parole office in which the hearing is scheduled to be conducted in the following instances:

(i) the inmate cannot appear due to unavoidable circumstances, including incarceration outside the facility in which the hearing is scheduled or physical incapacitation;

(ii) not less than five days before the scheduled hearing, the inmate and/or attorney makes a written request for a postponement due to unavailability of witnesses;

(iii) not less than five days before the hearing, the attorney makes a written request based on his recent assignment to the case; or

(iv) witnesses to support the allegation are unavailable. No more than one adjournment shall be permitted for this reason.

A written notice of the time and date of an adjourned hearing shall be provided to the inmate and his attorney.

(d) Disposition.

(1) If a majority of the members of the Board of Parole conducting the rescission hearing are satisfied that substantial evidence was presented at the hearing to form a basis for rescinding the grant of release, they shall so find. In such cases, the majority of the members may:

(i) rescind the inmate's release date and set a new date for further release consideration not more than 24 months from the date of the original release interview; or

(ii) rescind the inmate's original release date and set a new release date.

(2) If a majority of the members of the board conducting the hearing are not satisfied that substantial evidence exists to form a basis for rescinding the grant of release, the board shall cancel the suspension and reinstate the inmate's original release date or, if that date has past, release shall occur as soon thereafter as is practicable.

(3) Within 14 days after the rescission hearing, a written statement shall be prepared and sent to the inmate and his attorney, indicating the disposition of the proceeding and the reasons therefor.

(e) Appeals. A determination rescinding parole may be administratively appealed in accordance with the provisions of Part 8006 of this Title.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 8002.5