N.Y. Comp. Codes R. & Regs. tit. 9 § 8004.11

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

Section 8004.11 - Discretionary Cancellation of Revocation Process

(a) At any time after the completion and approval for prosecution of a notice of violation, or after the issuance of a notice of violation or a warrant for retaking and temporary detention, and before the preliminary hearing or waiver thereof, an officer of the Department assigned to field service and holding a title above senior parole officer, after consultation with the designated officer issuing the notice of violation or warrant, may report in writing such circumstances concerning the notice of violation or warrant as are relevant to a Board member who may then vacate the notice of violation or warrant, and cancel the revocation case.

(b) Actions pursuant to subdivision (a) of this section may be without prejudice to the recommencement of the revocation case or issuance of a new notice of violation and/or warrant based upon the same charges, as the Board member directs.

(c) Following a waiver by the releasee of a preliminary parole revocation hearing or a finding of a preponderance of the evidence at a preliminary hearing, upon application of the Department submitted to the Board and prior to any appearance at a final hearing, upon agreement of three Board members, the notice of violation or warrant may be vacated with the releasee restored to supervision under such circumstances as are deemed appropriate.

(d) Where a final revocation hearing has not yet commenced by the swearing of witnesses and the taking of testimony or evidence, the revocation case, notice of violation, and delinquency, if any, may be cancelled by three members of the Board of Parole or the administrative law judge, who shall state their reasons in writing for the cancellation at or before the time of the final hearing but prior to the swearing of witnesses and the taking of testimony or evidence. In cases where the alleged violator is serving a sentence for a felony offense under articles 120, 125, 130, 135, 160, 230, 235, 255, 263, 265, 485 or 490 of the Penal Law, or where the releasee has been granted early conditional parole for deportation only or conditional parole for deportation only pursuant to section 259-i (2) (d) of the Executive Law, such cancellation can only be effectuated by the three members of the Board. Cancellation under this subdivision shall not preclude a subsequent notice of violation or warrant based on the same charges.

(e) Where a final revocation hearing has commenced by the swearing of witnesses and the taking of testimony or evidence, a revocation case may no longer be cancelled except following dismissal of all violation charges at the conclusion of a final revocation hearing. A cancellation under this subdivision shall preclude a subsequent notice of violation or warrant based upon the same violation charges.

(f) A warrant may be withdrawn or cancelled without a cancellation of the revocation case.

(g) Cancellation of the revocation case pursuant to this section shall also cancel the delinquency that may have been declared pursuant to subdivision (a) of section 8004.10 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 8004.11

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