N.Y. Comp. Codes R. & Regs. tit. 9 § 8004.4

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

Section 8004.4 - Notice of Violation, Violation of Release Report

(a) A notice of violation shall be in writing and may consist of one or more documents and their attachments. Except as otherwise specified, the notice of violation includes a report of the violations of the conditions of release.

(b) The notice shall inform a releasee who is an alleged violator of the conditions of their release, of the purpose of the preliminary revocation hearing or if a preliminary hearing is not required, the purpose of the final revocation hearing, and shall state what conditions of release are alleged to have been violated and in what manner. The notice may inform the releasee of the purpose of a final hearing in any event. The releasee shall also be provided written notice of the time and place of the preliminary hearing or of the final hearing if no preliminary hearing is required, which information may be included in the notice of violation or another document provided not less than twenty-four hours in advance of such hearing.

(c) The notice shall state that at a preliminary and a final hearing the releasee:

(1) has the right to appear and speak in their own behalf;

(2) has the right to introduce letters and documents;

(3) may present witnesses who can give relevant information to the presiding officer;

(4) has the right to confront and cross-examine the witnesses against them, unless the releasee has been convicted of a new crime while on supervision or unless the presiding officer finds good cause for their nonattendance;

(5) has the right to representation by counsel; and

(6) has, at a final revocation hearing only, the right to present mitigating evidence relevant to the restoration to supervision.

(d) A releasee who is the subject of a notice of violation shall also be provided, in writing, the name and contact details for institutional defenders or assigned private counsel, as applicable. This information may be included in the notice of violation or another document. Where such information was not previously provided and a recognizance hearing is held, it shall be given at such time. Nothing shall require duplicate or revised notification of this information.

(e) Following approval of prosecution of violation charges and except where a parole warrant is issued, the notice of violation, or the Board or Department by other means, shall direct the releasee to appear in response to the notice at a specified date and time, and location or manner, which may be the preliminary hearing, or final hearing if a preliminary hearing is not required, or earlier.

(1) The direction that the releasee appear in initial response to the notice may be a condition of release and/or instruction from the parole officer. Notwithstanding section 8004.7 of this Part, the discretionary inclusion of any charge alleging a violation of the direction shall not provide basis for the issuance of a parole warrant for retaking and temporary detention in any case that, without such charge, would not have been eligible for the issuance of a warrant or eligible for the issuance of a warrant if the releasee failed to appear within forty-eight hours of the time designated for response, nor shall such inclusion otherwise result in the releasee being subject to reincarceration as set forth in the Executive Law should that violation be sustained at a final hearing within such case. No charge alleging a violation of this direction may be sustained where service of the notice of violation was pursuant to subdivision (g) of this section unless the relevant charge(s) alleging the releasee to have absconded from supervision are not sustained.

(2) The notice of violation, or the Board or Department by other means, may also direct, as a condition of release, that the releasee appear at all or any preliminary and final revocation proceedings and any adjourned or continuation appearances therefrom. Where such proceedings follow or are scheduled for after the date for initial response to the notice of violation and the releasee has appeared in response to such notice, any violation of such direction may be included as a charge in the matter and may provide basis, in whole or in part and in accordance with section 8004.7 of this Part, for the issuance of a parole warrant for retaking and temporary detention of the releasee, or for the retaking of the releasee into custody under a warrant already issued.

(3) Direction to appear in response to a notice of violation shall not occur until such notice or the charges of violation are produced, provided, however, that such direction may occur prior to the production of the notice where the Department reasonably believes that its formal completion will be imminent absent mitigating circumstances.

(f) The notice of violation shall be properly and promptly served upon the releasee following its completion and approval for prosecution. A notice may be approved for prosecution within the meaning of this subdivision upon approval for prosecution of the violation charges, and with or without the date, time and place of the preliminary and final hearings being specified at such time. Proper and prompt service of the notice of violation occurs when the releasee is served with the notice within a reasonable amount of time under the totality of the circumstances at the discretion of the Board or Department, or at the time of a recognizance hearing pursuant to the Executive Law. The notice shall be served in reasonable advance of the date of a preliminary hearing, and not less than twenty-four hours prior to such hearing.

(g) Where the Department believes the releasee has absconded from supervision and that the releasee remains in such status, service of the notice of violation may be properly and promptly effectuated by delivering such notice to the releasee's approved address, or last known address if different than the approved address, and this delivery shall be reflected in Department records. If the releasee is thereafter understood to have returned to or be retained in custody within and under the jurisdiction of New York State and is accessible to the Department, service in accordance with subdivision (f) of this section will then be attempted but such efforts shall not be construed as meaning that appropriate service had not already occurred.

(h) A releasee in federal custody, or who is out of state whether or not in custody and whether or not such custody, if any, may be pursuant to the uniform act for out-of-state parolee supervision, shall not be considered within the convenience and practical control of the Department so as to require prompt service of a notice of violation. The Department may effectuate service in accordance with subdivision (f) of this section following the releasee's known return to the convenience and practical control of the Department. Nothing within this subdivision shall preclude the Department from sending a notice of violation or its attachments, to authorities in another jurisdiction or to a releasee who is not within its convenience and practical control, nor shall sending any such material imply that further proceedings are required prior to the individual's known return to the Department's convenience and practical control. Furthermore, for any such releasee, nothing within this subdivision precludes the Department, in its discretion, from commencing the revocation process or otherwise directing a releasee's return to New York State for further action relative to alleged violations of the conditions of release.

(i) On or after service of a notice of violation, as far as practicable or feasible, any additional documents having been collected or prepared that are relevant to the violation charges shall be delivered to the releasee. (j) The Department may amend, add or otherwise supplement violation charges at any time within a case, and must provide notice of the added or amended charges to the releasee in reasonable advance of any preliminary or final hearing where such charges will be prosecuted, unless such notice is waived or the lack of such notice is not prejudicial.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 8004.4

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