The Board proposes repeal and replacement of 9 N.Y.C.R.R. sections 8004.2 and 8004.3, and new 9 N.Y.C.R.R. sections 8004.4, 8004.5, 8004.6, 8004.7, 8004.8, 8004.10 and 8004.11, which changes will collectively detail various aspects of the parole revocation process including such matters as when a report of violative conduct to the Board is required, requirements related to a notice of violation, delineation of technical violations for which reincarceration is possible versus those for which it is not, and parole warrant issuance. Some of the sections addressed in these proposals have content in existing regulations but which has been reorganized for continuity of presentation. New 9 N.Y.C.R.R. section 8004.9 is proposed to address the subject of recognizance hearings, which will now be required when a releasee is arrested on a parole violation warrant and are to be conducted in a court of law.

The Board proposes changes to 9 N.Y.C.R.R. Part 8005, which addresses parole revocation hearings and the dispositions therefrom. Amendments to 9 N.Y.C.R.R. sections 8005.7 and 8005.19 are included to reflect a change in the burdens of proof to preponderance of the evidence and clear and convincing evidence at the preliminary and final revocation hearings, respectively. The Board is also proposing changes to 9 N.Y.C.R.R. sections 8005.6 and 8005.17, which concern the scheduling of preliminary and final hearings respectively. These revisions accommodate the changes made by the legislation to the parole revocation process timeline including the timeframe in which these hearings are to be arranged, and they also address the location of such hearings which in cases where the alleged violator is not in custody is presumptively to be a courthouse, except that where a courthouse is not reasonably available, then another location, such as an office that is not a correctional facility, may serve as the hearing site. The Board proposes the repeal and replacement of 9 N.Y.C.R.R. section 8005.3, to have new content addressing revocation hearings generally, whereas more ministerial and miscellaneous amendments are proposed for 9 N.Y.C.R.R. sections 8005.2, 8005.4, 8005.5, 8005.15, and 8005.16. Amendment to 9 N.Y.C.R.R. section 8005.18 is proposed to fully complement the notice requirements concerning the final revocation hearings.

The Board proposes that 9 N.Y.C.R.R. section 8005.20 be repealed and replaced to account for the new burdens of proof and to provide for the corresponding dispositions available in the new classifications of cases as “technical” and “non-technical”. The available dispositions reflect those detailed in the amended Executive Law, including the limitations placed on technical violations. For example, the available time assessments for absconding from supervision violations are now reflected as up to seven days for a releasee’s first act of absconding, up to fifteen days for their second absconding violation, and no more than thirty days reincarceration for their third or any subsequent absconding from supervision. Restoration to supervision remains an available disposition for a case of any type.

It is proposed that 9 N.Y.C.R.R. section 8005.21 be repealed and replaced to formalize the allowance for certain nonprofit service providers to be present at revocation hearings, while contents of the existing section 8005.21 would, with slight modification, be shifted to a new section 8005.22.

Furthermore, the Board proposes changes to 9 N.Y.C.R.R. Part 8006, which contains those sections addressing the administrative appeal process. While there are relatively minor amendments proposed for 9 N.Y.C.R.R. sections 8006.2, 8006.3 and 8006.4, amendments to 8006.1 are proposed that would additionally account for a newly created Executive Law section that permits a direct appeal to a court of law from a sustained charge alleging a non-technical violation based upon conduct that would constitute the commission of a misdemeanor or felony.

1. Statutory Authority: Section 259-c(11) of the New York Executive Law authorizes the New York State Board of Parole to “make rules for the conduct of its work, a copy of such rules and of any amendments thereto to be filed by the chairman with the secretary of state”. Executive Law § 259-c(1) and (2) empower the Board to determine the conditions of release of those individuals released to community supervision under the jurisdiction of the Department of Corrections and Community Supervision. Pursuant to sections 259-c(6) and 259-i(3) of the Executive Law, the Legislature has conferred upon the Board the exclusive authority to revoke the parole, conditional release or post-release supervision status of any such person, to authorize the issuance of warrants to retake and detain such individuals and to determine their re-release to supervision, based upon violations of the conditions of release. Pursuant to section 259-i(4) of the Executive Law, the Board provides for a process for the administrative appeal of revocation determinations. The Board is further authorized to promulgate any rules necessary for the implementation of the amendments made to the Executive and Penal Laws by the Less is More Act (“LIMA”) (Chapter 427 of the Laws of 2021) prior to its effective date pursuant to Section 10 of that act.

2. Legislative Objectives: Executive Law §§ 259-c(6) and 259-i(3) confer upon the Board the exclusive authority over determinations of whether to revoke the release status of individuals subject to community supervision under the jurisdiction of the Department of Corrections and Community Supervision and provide for a range of authorized dispositions. Executive Law § 259-i(3) establishes the basic parameters of the parole revocation process. LIMA materially alters the provisions governing the authorized dispositions for parole revocation cases. The emergency rulemaking, consistent with the Board’s rulemaking authority under Executive Law § 259-c(11), will amend the relevant rules and add new provisions to ensure that they are consistent with the provisions of LIMA.

3. Needs and Benefits: Executive Law § 259-i(3) establishes the basic parameters and due process rights associated with the parole revocation process, including the range of available dispositions. The Board has implemented these statutory provisions in Parts 8002, 8004 and 8005 of Title 9 of the NYCRR. The administrative appeal of the resulting adjudications is governed by section 259-i(4) of the Executive Law and implemented in Part 8006 of Title 9 of the NYCRR. The purpose of these rules is to provide for the substantive procedure applicable to a releasee accused of a violation of the conditions of release and to provide notice to such releasee of such procedure and its consequences. To the extent certain provisions of LIMA will take effect upon a date which will not afford time to comply with the proposal process, these rules will ensure the State of New York affords a legally authorized adjudication process to litigants and provides notice of such process and the possible dispositions resulting from such process to litigants and other interested parties.

The amendments to 9 NYCRR §§ 8002.6 and 8004.1 provide for the computation of time assessments, which determines when an individual reincarcerated as a result of an adjudicated violation of release disposition is eligible for re-release, consistent with the provisions of LIMA. Section 8004.1 further introduces definitions for terms describing categories of violation created by LIMA which have a material effect on the character and scope of legally authorized dispositions while new sections 8004.6, 8004.7 and 8004.8 provide further detail on these categories of violation and amendments to section 8003.2 revise the standard conditions of release in light of these changes. The addition of 9 NYCRR §§ 8004.6, 8004.7, 8004.8 and the repeal and replacement of 9 NYCRR § 8005.20 provide for a sanction scheme and a process for the imposition of such sanctions which is consistent with the provisions of LIMA. Amendments to sections 8004.2, the repeal and replacement of section 8004.3, and new sections 8004.4, 8004.5, 8004.9, 8004.10 and 8004.11 address changes to the process by which a violation proceeding is commenced and the new recognizance hearing required by LIMA. The amendments to Part 8005 alter the revocation hearing process and the penalties which may result in a manner consistent with LIMA. The amendments to Part 8006 revise the process for the administrative appeal of revocation determinations to harmonize current practice with the new appeal entitlements provided by LIMA.

4. Costs: These rules will not impose any costs beyond those already experienced.

5. Paperwork: These regulatory changes do not impose any new or additional paperwork requirements on regulated parties.

6. Local Government Mandates: These regulatory changes do not impose any obligations on local governments.

7. Duplication: These regulatory changes will not duplicate any existing state or federal rule.

8. Alternatives: Because this rulemaking governs the procedures and guidelines applied by the Board and its hearing officers and employees in a quasi-adjudicatory function, there are no alternatives other than to amend the regulations.

9. Federal Standards: There are no federal standards.

10. Compliance Schedule: This rulemaking will be effective upon publication of the notice of emergency adoption.

A Regulatory Flexibility Analysis for Small Business and Local Government is not being submitted with this notice, for the proposed rule changes will have no adverse impact upon small businesses and local governments, nor do the rule changes impose any reporting, record keeping or other compliance requirements upon small businesses and local governments. The proposed rules only affect the practices of the Board of Parole and its officers and employees in setting conditions of release to community supervision and adjudicating violations thereof.

A Rural Area Flexibility Analysis is not being submitted with this notice, for the proposed rules will have no adverse impact upon rural areas, nor do the proposed rules impose any reporting, record keeping or other compliance requirements upon rural areas. The proposed rules only affect the practices of the Board of Parole and its officers and employees in setting conditions of release to community supervision and adjudicating violations thereof.

A Job Impact Statement is not being submitted with this notice, for the proposed rules will have no adverse impact upon jobs or employment opportunities, nor do the proposed rules impose any reporting, record keeping or other compliance requirements upon employers. The proposed rules only affect the practices of the Board of Parole and its officers and employees in setting conditions of release to community supervision and adjudicating violations thereof.