S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         7685
                              2015-2016 Regular Sessions
                                 I N  A S S E M B L Y
                                     May 22, 2015
                                      ___________
       Introduced  by  M.  of  A.  O'DONNELL  --  read once and referred to the
         Committee on Correction
       AN ACT to amend the executive law and the  criminal  procedure  law,  in
         relation to incapacitated parole violators
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Subparagraph (i) of  paragraph  (a)  of  subdivision  3  of
    2  section  259-i  of  the  executive law, as amended by section 38-f-l  of
    3  subpart A of part C of chapter 62 of the laws of  2011,  is  amended  to
    4  read as follows:
    5    (i)  If  the parole officer having charge of a presumptively released,
    6  paroled or conditionally released person or a person released  to  post-
    7  release  supervision or a person received under the uniform act for out-
    8  of-state parolee supervision shall have reasonable cause to believe that
    9  such person has lapsed into criminal ways or company,  or  has  violated
   10  one  or  more conditions of his presumptive release, parole, conditional
   11  release or post-release supervision, such parole  officer  shall  report
   12  such  fact to a member of the board, or to any officer of the department
   13  designated by the board, and thereupon a warrant may be issued  for  the
   14  retaking  of  such  person and for his temporary detention in accordance
   15  with the rules of the board UNLESS SUCH PERSON HAS BEEN DETERMINED TO BE
   16  CURRENTLY UNFIT TO PROCEED TO TRIAL OR IS CURRENTLY SUBJECT TO A  TEMPO-
   17  RARY  OR  FINAL  ORDER  OF OBSERVATION PURSUANT TO ARTICLE SEVEN HUNDRED
   18  THIRTY OF THE CRIMINAL PROCEDURE LAW, IN WHICH CASE NO WARRANT SHALL  BE
   19  ISSUED.    The  retaking and detention of any such person may be further
   20  regulated by rules and regulations of the  department  not  inconsistent
   21  with  this  article.  A  warrant  issued  pursuant to this section shall
   22  constitute sufficient authority to the superintendent or other person in
   23  charge of any jail, penitentiary, lockup or detention pen to whom it  is
   24  delivered  to  hold  in  temporary  detention  the person named therein;
   25  except that a warrant issued with respect  to  a  person  who  has  been
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD11153-02-5
       A. 7685                             2
    1  released  on medical parole pursuant to section two hundred fifty-nine-r
    2  of this article and whose parole is being revoked pursuant to  paragraph
    3  (h)  of  subdivision four of such section shall constitute authority for
    4  the  immediate  placement  of  the parolee only into imprisonment in the
    5  custody of the department to hold  in  temporary  detention.  A  warrant
    6  issued pursuant to this section shall also constitute sufficient author-
    7  ity  to  the  person in charge of a drug treatment campus, as defined in
    8  subdivision twenty of section two of the correction  law,  to  hold  the
    9  person  named therein, in accordance with the procedural requirements of
   10  this section, for a period of at least ninety days to complete an inten-
   11  sive drug treatment program mandated by the board as an  alternative  to
   12  presumptive  release or parole or conditional release revocation, or the
   13  revocation of post-release supervision, and shall also constitute suffi-
   14  cient authority for return of the person named therein to local  custody
   15  to hold in temporary detention for further revocation proceedings in the
   16  event  said  person  does  not  successfully complete the intensive drug
   17  treatment program. The board's rules shall provide for  cancellation  of
   18  delinquency   and   restoration   to  supervision  upon  the  successful
   19  completion of the program.
   20    S 2. Paragraph (f) of subdivision 3 of section 259-i of the  executive
   21  law is amended by adding a new subparagraph (xii) to read as follows:
   22    (XII) IF AT ANY TIME DURING A REVOCATION PROCEEDING THE ALLEGED VIOLA-
   23  TOR,  HIS  OR HER COUNSEL, OR AN EMPLOYEE OF THE DEPARTMENT CONTENDS, OR
   24  IF IT REASONABLY APPEARS TO THE HEARING OFFICER, THAT THE ALLEGED VIOLA-
   25  TOR IS AN INCAPACITATED PERSON AS THAT TERM IS  DEFINED  IN  SUBDIVISION
   26  ONE  OF  SECTION  730.10  OF  THE CRIMINAL PROCEDURE LAW AND NO JUDICIAL
   27  DETERMINATION HAS BEEN MADE THAT THE ALLEGED VIOLATOR  IS  AN  INCAPACI-
   28  TATED  PERSON,  THE  REVOCATION  PROCEEDING  SHALL BE TEMPORARILY STAYED
   29  UNTIL THE SUPERIOR COURT DETERMINES WHETHER OR NOT THE PERSON IS FIT  TO
   30  PROCEED. THE MATTER SHALL BE PROMPTLY REFERRED TO THE SUPERIOR COURT FOR
   31  DETERMINATION  OF  THE ALLEGED VIOLATOR'S FITNESS TO PROCEED IN A MANNER
   32  CONSISTENT WITH THE PROVISIONS OF ARTICLE SEVEN HUNDRED  THIRTY  OF  THE
   33  CRIMINAL  PROCEDURE  LAW, PROVIDED HOWEVER THAT THE SUPERIOR COURT SHALL
   34  IMMEDIATELY APPOINT  COUNSEL  FOR  ANY  UNREPRESENTED  ALLEGED  VIOLATOR
   35  ELIGIBLE  FOR  APPOINTED COUNSEL UNDER SUBPARAGRAPH (V) OF PARAGRAPH (F)
   36  OF SUBDIVISION THREE OF SECTION TWO HUNDRED FIFTY-NINE-I OF  THIS  CHAP-
   37  TER. THE COURT SHALL DECIDE WHETHER OR NOT THE ALLEGED VIOLATOR IS INCA-
   38  PACITATED  WITHIN  THIRTY DAYS OF THE REFERRAL FROM THE HEARING OFFICER.
   39  IF THE COURT DETERMINES THAT THE ALLEGED VIOLATOR IS  NOT  AN  INCAPACI-
   40  TATED  PERSON,  THE COURT SHALL ORDER THAT THE MATTER BE RETURNED TO THE
   41  BOARD OF PAROLE FOR  CONTINUATION  AND  DISPOSITION  OF  THE  REVOCATION
   42  PROCEEDING.  IF  THE  COURT  DETERMINES  THAT THE ALLEGED VIOLATOR IS AN
   43  INCAPACITATED PERSON AND IF NO FELONY CHARGES ARE  PENDING  AGAINST  THE
   44  ALLEGED  VIOLATOR,  THE  COURT  SHALL ISSUE A FINAL ORDER OF OBSERVATION
   45  COMMITTING SUCH PERSON TO THE CUSTODY  OF  THE  COMMISSIONER  OF  MENTAL
   46  HEALTH  OR  THE  COMMISSIONER OF DEVELOPMENTAL DISABILITIES FOR CARE AND
   47  TREATMENT IN AN APPROPRIATE INSTITUTION  IN  A  MANNER  CONSISTENT  WITH
   48  SUBDIVISION  ONE  OF  SECTION 730.40 OF THE CRIMINAL PROCEDURE LAW. IF A
   49  FINAL ORDER OF OBSERVATION HAS BEEN ISSUED PURSUANT TO THIS SECTION, THE
   50  HEARING OFFICER SHALL DISMISS THE VIOLATION CHARGES AND  SUCH  DISMISSAL
   51  SHALL  ACT AS A BAR TO ANY FURTHER PROCEEDING UNDER THIS SECTION AGAINST
   52  THE ALLEGED VIOLATOR FOR SUCH VIOLATIONS. IF FELONY CRIMINAL CHARGES ARE
   53  PENDING AT ANY TIME AGAINST AN ALLEGED VIOLATOR WHO HAS BEEN REFERRED TO
   54  SUPERIOR COURT FOR A FITNESS EVALUATION BUT BEFORE  A  DETERMINATION  OF
   55  FITNESS  HAS  BEEN MADE PURSUANT TO THIS SECTION, THE COURT SHALL DECIDE
   56  WHETHER OR NOT THE ALLEGED VIOLATOR IS INCAPACITATED PURSUANT TO ARTICLE
       A. 7685                             3
    1  SEVEN HUNDRED THIRTY OF THE CRIMINAL PROCEDURE LAW  AND  THE  REVOCATION
    2  PROCEEDING  SHALL  BE  HELD  IN  ABEYANCE  UNTIL  SUCH DECISION HAS BEEN
    3  REACHED. THE HEARING OFFICER SHALL ADOPT THE  CAPACITY  FINDING  OF  THE
    4  COURT  AND EITHER TERMINATE THE REVOCATION PROCESS IF AN ORDER OF OBSER-
    5  VATION HAS BEEN MADE BY THE COURT OR PROCEED WITH THE REVOCATION HEARING
    6  IF THE ALLEGED VIOLATOR HAS  BEEN  FOUND  NOT  TO  BE  AN  INCAPACITATED
    7  PERSON.
    8    S 3. Subdivision 2 of section 730.10 of the criminal procedure law, as
    9  amended  by  chapter  566  of  the  laws  of 1994, is amended to read as
   10  follows:
   11    2. "Order of examination" means an  order  issued  to  an  appropriate
   12  director  by  a  criminal  court  wherein  a  criminal action is pending
   13  against a defendant[,] or BY A  COURT  EVALUATING  THE  CAPACITY  OF  AN
   14  ALLEGED  VIOLATOR IN A PAROLE REVOCATION PROCEEDING PURSUANT TO SUBPARA-
   15  GRAPH (XII) OF PARAGRAPH (F) OF SUBDIVISION THREE OF SECTION TWO HUNDRED
   16  FIFTY-NINE-I OF THE EXECUTIVE LAW, OR by  a  family  court  pursuant  to
   17  section  322.1  of  the  family court act wherein a juvenile delinquency
   18  proceeding is pending against a juvenile, directing that such person  be
   19  examined  for  the  purpose  of  determining  if  he is an incapacitated
   20  person.
   21    S 4. Subparagraph (v) of paragraph (f) of  subdivision  3  of  section
   22  259-i  of the executive law, as amended by section 11 of part E of chap-
   23  ter 62 of the laws of 2003, is amended to read as follows:
   24    (v) The alleged violator shall be permitted representation by  counsel
   25  at  the revocation hearing. In any case, INCLUDING WHEN A SUPERIOR COURT
   26  IS CALLED UPON TO EVALUATE THE CAPACITY OF  AN  ALLEGED  VIOLATOR  IN  A
   27  PAROLE REVOCATION PROCEEDING, where such person is financially unable to
   28  retain  counsel,  the criminal court of the city of New York, the county
   29  court or district court in the county where the violation is alleged  to
   30  have  occurred  or  where  the  hearing is held, shall assign counsel in
   31  accordance with the county or city plan  for  representation  placed  in
   32  operation  pursuant  to  article eighteen-B of the county law. He OR SHE
   33  shall have the right to confront and  cross-examine  adverse  witnesses,
   34  unless there is good cause for their non-attendance as determined by the
   35  presiding officer; present witnesses and documentary evidence in defense
   36  of  the charges; and present witnesses and documentary evidence relevant
   37  to the question whether  reincarceration  of  the  alleged  violator  is
   38  appropriate.
   39    S 5. This act shall take effect on the one hundred eightieth day after
   40  it shall have become a law.