N.Y. Comp. Codes R. & Regs. tit. 9 § 8004.10

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

Section 8004.10 - Declaration of Delinquency

(a) A declaration of delinquency may be issued by a Board member or by a designated officer holding the title of supervising parole officer or higher after receiving the report of violation charges, and after either:

(1) a waiver by the releasee of the preliminary hearing;

(2) a finding of a preponderance of the evidence at a preliminary hearing;

(3) a conclusion by a Board member or a designated officer holding the title of supervising parole officer or higher that there is probable cause to believe the releasee has absconded from supervision; or

(4) a finding that the releasee has been convicted of a new crime while under their present parole, conditional release or period of post-release supervision.

(b) The date of delinquency is the earliest date that a violation of parole is alleged to have occurred.

(c) Where the releasee is alleged to have absconded from supervision, the declaration of delinquency, when issued, shall interrupt the releasee's sentence(s) as of the date of the delinquency.

(d) If at the conclusion of a final parole revocation hearing a presiding officer dismisses all violation charges, any delinquency corresponding to such revocation case shall be deemed thereby cancelled. If at the conclusion of such hearing the presiding officer sustains any violation charge or charges, the official delinquency date for such matter shall be the earliest date that a violation of parole is found to have occurred.

(e) A declaration of delinquency shall not be a necessary part of or prerequisite to the formal parole revocation process or any proceeding or decision therein, and the lack of any such declaration shall not be a basis for the vacating of a notice of violation or warrant, or for any other form of cancellation or dismissal of the case.

(f) Final declaration of delinquency and revocation by new felony conviction and sentence. Whenever a releasee has been:

(1) convicted of a new felony committed while under their present parole, conditional release or period of post release supervision, and

(2) sentenced to an indeterminate or determinate term upon such conviction, the Board may issue a final declaration of delinquency, in lieu of directing that a final revocation hearing be held, which will have the effect of revoking such person's parole, conditional release or period of post release supervision. Any final declaration of delinquency that may be issued shall be so issued upon such person's reception at an institution under the jurisdiction of the Department of Corrections and Community Supervision pursuant to said new indeterminate or determinate sentence. The date of delinquency for the final declaration of delinquency by the Board may be either the date of the commission of the new felony offense or the date of sentencing for such offense. Subsequent to the issuance of the final declaration of delinquency, the incarcerated individual's next appearance before the Board, if any, will be governed by the calculation of the minimum sentence, or the calculation of the aggregate minimum sentences, in accordance with applicable law.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 8004.10

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