S T A T E   O F   N E W   Y O R K
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                                 4780--A
    Cal. No. 424

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                             April 15, 2015
                               ___________

Introduced  by Sen. GALLIVAN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Crime Victims,  Crime  and
  Correction -- reported favorably from said committee, ordered to first
  and  second  report,  ordered  to a third reading, amended and ordered
  reprinted, retaining its place in the order of third reading

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:

  Section 1. Subparagraph (i) of  paragraph  (a)  of  subdivision  3  of
section  259-i  of  the  executive law, as amended by section 38-f-l  of
subpart A of part C of chapter 62 of the laws of  2011,  is  amended  to
read as follows:
  (i)  If  the parole officer having charge of a presumptively released,
paroled or conditionally released person or a person released  to  post-
release  supervision or a person received under the uniform act for out-
of-state parolee supervision shall have reasonable cause to believe that
such person has lapsed into criminal ways or company,  or  has  violated
one  or  more conditions of his presumptive release, parole, conditional
release or post-release supervision, such parole  officer  shall  report
such  fact to a member of the board, or to any officer of the department
designated by the board, and thereupon a warrant may be issued  for  the
retaking  of  such  person and for his temporary detention in accordance
with the rules of the board UNLESS SUCH PERSON HAS BEEN DETERMINED TO BE
CURRENTLY UNFIT TO PROCEED TO TRIAL OR IS CURRENTLY SUBJECT TO A  TEMPO-
RARY  OR  FINAL  ORDER  OF OBSERVATION PURSUANT TO ARTICLE SEVEN HUNDRED
THIRTY OF THE CRIMINAL PROCEDURE LAW, IN WHICH CASE NO WARRANT SHALL  BE
ISSUED.    The  retaking and detention of any such person may be further
regulated by rules and regulations of the  department  not  inconsistent
with  this  article.  A  warrant  issued  pursuant to this section shall
constitute sufficient authority to the superintendent or other person in

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD10451-03-5

S. 4780--A                          2

charge of any jail, penitentiary, lockup or detention pen to whom it  is
delivered  to  hold  in  temporary  detention  the person named therein;
except that a warrant issued with respect  to  a  person  who  has  been
released  on medical parole pursuant to section two hundred fifty-nine-r
of this article and whose parole is being revoked pursuant to  paragraph
(h)  of  subdivision four of such section shall constitute authority for
the immediate placement of the parolee only  into  imprisonment  in  the
custody  of  the  department  to  hold in temporary detention. A warrant
issued pursuant to this section shall also constitute sufficient author-
ity to the person in charge of a drug treatment campus,  as  defined  in
subdivision  twenty  of  section  two of the correction law, to hold the
person named therein, in accordance with the procedural requirements  of
this section, for a period of at least ninety days to complete an inten-
sive  drug  treatment program mandated by the board as an alternative to
presumptive release or parole or conditional release revocation, or  the
revocation of post-release supervision, and shall also constitute suffi-
cient  authority for return of the person named therein to local custody
to hold in temporary detention for further revocation proceedings in the
event said person does not  successfully  complete  the  intensive  drug
treatment  program.  The board's rules shall provide for cancellation of
delinquency  and  restoration  to  supervision   upon   the   successful
completion of the program.
  S  2. Paragraph (f) of subdivision 3 of section 259-i of the executive
law is amended by adding a new subparagraph (xii) to read as follows:
  (XII) IF AT ANY TIME DURING A REVOCATION PROCEEDING THE ALLEGED VIOLA-
TOR, HIS OR HER COUNSEL, OR AN EMPLOYEE OF THE DEPARTMENT  CONTENDS,  OR
IF IT REASONABLY APPEARS TO THE HEARING OFFICER, THAT THE ALLEGED VIOLA-
TOR  IS  AN  INCAPACITATED PERSON AS THAT TERM IS DEFINED IN SUBDIVISION
ONE OF SECTION 730.10 OF THE CRIMINAL  PROCEDURE  LAW  AND  NO  JUDICIAL
DETERMINATION  HAS  BEEN  MADE THAT THE ALLEGED VIOLATOR IS AN INCAPACI-
TATED PERSON, THE REVOCATION  PROCEEDING  SHALL  BE  TEMPORARILY  STAYED
UNTIL  THE SUPERIOR COURT DETERMINES WHETHER OR NOT THE PERSON IS FIT TO
PROCEED. THE MATTER SHALL BE PROMPTLY REFERRED TO THE SUPERIOR COURT FOR
DETERMINATION OF THE ALLEGED VIOLATOR'S FITNESS TO PROCEED IN  A  MANNER
CONSISTENT  WITH  THE  PROVISIONS OF ARTICLE SEVEN HUNDRED THIRTY OF THE
CRIMINAL PROCEDURE LAW, PROVIDED HOWEVER THAT THE SUPERIOR  COURT  SHALL
IMMEDIATELY  APPOINT  COUNSEL  FOR  ANY  UNREPRESENTED  ALLEGED VIOLATOR
ELIGIBLE FOR APPOINTED COUNSEL UNDER SUBPARAGRAPH (V) OF  PARAGRAPH  (F)
OF  SUBDIVISION  THREE OF SECTION TWO HUNDRED FIFTY-NINE-I OF THIS CHAP-
TER. THE COURT SHALL DECIDE WHETHER OR NOT THE ALLEGED VIOLATOR IS INCA-
PACITATED WITHIN THIRTY DAYS OF THE REFERRAL FROM THE  HEARING  OFFICER.
IF  THE  COURT  DETERMINES THAT THE ALLEGED VIOLATOR IS NOT AN INCAPACI-
TATED PERSON, THE COURT SHALL ORDER THAT THE MATTER BE RETURNED  TO  THE
BOARD  OF  PAROLE  FOR  CONTINUATION  AND  DISPOSITION OF THE REVOCATION
PROCEEDING. IF THE COURT DETERMINES THAT  THE  ALLEGED  VIOLATOR  IS  AN
INCAPACITATED  PERSON  AND  IF NO FELONY CHARGES ARE PENDING AGAINST THE
ALLEGED VIOLATOR, THE COURT SHALL ISSUE A  FINAL  ORDER  OF  OBSERVATION
COMMITTING  SUCH  PERSON  TO  THE  CUSTODY OF THE COMMISSIONER OF MENTAL
HEALTH OR THE COMMISSIONER OF DEVELOPMENTAL DISABILITIES  FOR  CARE  AND
TREATMENT  IN  AN  APPROPRIATE  INSTITUTION  IN A MANNER CONSISTENT WITH
SUBDIVISION ONE OF SECTION 730.40 OF THE CRIMINAL PROCEDURE  LAW.  IF  A
FINAL ORDER OF OBSERVATION HAS BEEN ISSUED PURSUANT TO THIS SECTION, THE
HEARING  OFFICER  SHALL DISMISS THE VIOLATION CHARGES AND SUCH DISMISSAL
SHALL ACT AS A BAR TO ANY FURTHER PROCEEDING UNDER THIS SECTION  AGAINST
THE ALLEGED VIOLATOR FOR SUCH VIOLATIONS. IF FELONY CRIMINAL CHARGES ARE
PENDING AT ANY TIME AGAINST AN ALLEGED VIOLATOR WHO HAS BEEN REFERRED TO

S. 4780--A                          3

SUPERIOR  COURT  FOR  A FITNESS EVALUATION BUT BEFORE A DETERMINATION OF
FITNESS HAS BEEN MADE PURSUANT TO THIS SECTION, THE COURT  SHALL  DECIDE
WHETHER OR NOT THE ALLEGED VIOLATOR IS INCAPACITATED PURSUANT TO ARTICLE
SEVEN  HUNDRED  THIRTY  OF THE CRIMINAL PROCEDURE LAW AND THE REVOCATION
PROCEEDING SHALL BE HELD  IN  ABEYANCE  UNTIL  SUCH  DECISION  HAS  BEEN
REACHED.  THE  HEARING  OFFICER  SHALL ADOPT THE CAPACITY FINDING OF THE
COURT AND EITHER TERMINATE THE REVOCATION PROCESS IF AN ORDER OF  OBSER-
VATION HAS BEEN MADE BY THE COURT OR PROCEED WITH THE REVOCATION HEARING
IF  THE  ALLEGED  VIOLATOR  HAS  BEEN  FOUND  NOT TO BE AN INCAPACITATED
PERSON.
  S 3. Subdivision 2 of section 730.10 of the criminal procedure law, as
amended by chapter 566 of the laws  of  1994,  is  amended  to  read  as
follows:
  2.  "Order  of  examination"  means  an order issued to an appropriate
director by a criminal  court  wherein  a  criminal  action  is  pending
against  a  defendant[,]  or  BY  A  COURT EVALUATING THE CAPACITY OF AN
ALLEGED VIOLATOR IN A PAROLE REVOCATION PROCEEDING PURSUANT TO  SUBPARA-
GRAPH (XII) OF PARAGRAPH (F) OF SUBDIVISION THREE OF SECTION TWO HUNDRED
FIFTY-NINE-I  OF  THE  EXECUTIVE  LAW,  OR by a family court pursuant to
section 322.1 of the family court act  wherein  a  juvenile  delinquency
proceeding  is pending against a juvenile, directing that such person be
examined for the purpose  of  determining  if  he  is  an  incapacitated
person.
  S  4.  Subparagraph  (v)  of paragraph (f) of subdivision 3 of section
259-i of the executive law, as amended by section 11 of part E of  chap-
ter 62 of the laws of 2003, is amended to read as follows:
  (v)  The alleged violator shall be permitted representation by counsel
at the revocation hearing. In any case, INCLUDING WHEN A SUPERIOR  COURT
IS  CALLED  UPON  TO  EVALUATE  THE CAPACITY OF AN ALLEGED VIOLATOR IN A
PAROLE REVOCATION PROCEEDING, where such person is financially unable to
retain counsel, the criminal court of the city of New York,  the  county
court  or district court in the county where the violation is alleged to
have occurred or where the hearing is  held,  shall  assign  counsel  in
accordance  with  the  county  or city plan for representation placed in
operation pursuant to article eighteen-B of the county law.  He  OR  SHE
shall  have  the  right to confront and cross-examine adverse witnesses,
unless there is good cause for their non-attendance as determined by the
presiding officer; present witnesses and documentary evidence in defense
of the charges; and present witnesses and documentary evidence  relevant
to  the  question  whether  reincarceration  of  the alleged violator is
appropriate.
  S 5. This act shall take effect on the one hundred eightieth day after
it shall have become a law.