LAWS OF NEW YORK, 1998
CHAPTER 1
Jenna's Law


EXPLANATION—Matter in italics is new; matter in brackets [ ] is old law to be omitted.


LAWS OF NEW YORK, 1998
CHAPTER 1

(See REPEAL NOTE at end of Chapter.)

AN ACT to amend the penal law, the executive law and the criminal procedure law, in relation to eliminating parole for first-time violent felony offenders; establishing periods of post-release supervision for violent felony offenders; and providing for victim notification of certain inmate releases, and to repeal subdivision 4 of section 70.02 of the penal law and section 149-a of the correction law relating thereto

Became a law August 6, 1998, with the approval of the Governor. Passed on message of necessity pursuant to Article III, section 14 of the Constitution by a majority vote, three-fifths being present.


The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:

Section 1. The penal law is amended by adding a new section 60.12 to
read as follows:
§ 60.12 Authorized disposition; alternative indeterminate sentence of
imprisonment; domestic violence cases.
1. Notwithstanding any other provision of law, where a court is impos-
ing sentence pursuant to section 70.02 upon a conviction for an offense
enumerated in subdivision one of such section, other than an offense
defined in article one hundred thirty of this chapter, and is authorized
or required pursuant to such section to impose a determinate sentence of
imprisonment for such offense, the court, upon a determination following
a hearing that (a) the defendant was the victim of physical, sexual or
psychological abuse by the victim or intended victim of such offense,
(b) such abuse was a factor in causing the defendant to commit such
offense and (c) the victim or intended victim of such offense was a
member of the same family or household as the defendant as such term is
defined in subdivision one of section 530.11 of the criminal procedure
law, may, in lieu of imposing such determinate sentence of imprisonment,
impose an indeterminate sentence of imprisonment in accordance with
subdivisions two and three of this section.
2. The maximum term of an indeterminate sentence imposed pursuant to
subdivision one of this section must be fixed by the court as follows:
(a) For a class B felony, the term must be at least six years and must
not exceed twenty-five years;
(b) For a class C felony, the term must be at least four and one-half
years and must not exceed fifteen years;
(c) For a class D felony, the term must be at least three years and
must not exceed seven years; and
(d) For a class E felony, the term must be at least three years and
must not exceed four years.
3. The minimum period of imprisonment under an indeterminate sentence
imposed pursuant to subdivision one of this section must be fixed by the

court at one-half of the maximum term imposed and must be specified in
the sentence.
§ 2. Paragraph (b) of subdivision 3 of section 70.00 of the penal
law, as amended by chapter 3 of the laws of 1995, is amended to read as
follows:
(b) [Where the sentence is for a violent felony offense as defined in
subdivision one of section 70.02, the minimum period shall be fixed by
the court pursuant to subdivision four of section 70.02. ] Where the
sentence is for a class B felony offense specified in subdivision two of
section 220.44, the minimum period must be fixed by the court at one-
third of the maximum term imposed and must be specified in the sentence.
Where the sentence is for any other felony, the minimum period shall be
fixed by the court and specified in the sentence and shall be not less
than one year nor more than one-third of the maximum term imposed.
§ 3. Subdivision 4 of section 70.00 of the penal law, as amended by
chapter 238 of the laws of 1983, is amended to read as follows:
4. Alternative definite sentence for class D, E, and certain class C
felonies. When a person, other than a second or persistent felony
offender, is sentenced for a class D or class E felony, or to a class C
felony specified in article two hundred twenty or article two hundred
twenty-one, and the court, having regard to the nature and circumstances
of the crime and to the history and character of the defendant, is of
the opinion that a sentence of imprisonment is necessary but that it
would be unduly harsh to impose an indeterminate or determinate
sentence, the court may impose a definite sentence of imprisonment and
fix a term of one year or less.
§ 4. Subdivision 6 of section 70.00 of the penal law, as added by
chapter 3 of the laws of 1995, is amended to read as follows:
6. Determinate sentence. [When ] Except as provided in subdivision four
of this section and subdivisions two and four of section 70.02, when a
person is sentenced as a violent felony offender pursuant to section
70.02 or as a second violent felony offender pursuant to section 70.04
or as a second felony offender on a conviction for a violent felony
offense pursuant to section 70.06, the court must impose a determinate
sentence of imprisonment in accordance with the provisions of such
sections and such sentence shall include, as a part thereof, a period of
post-release supervision in accordance with section 70.45.
§ 5. Paragraph (a) of subdivision 2 of section 70.02 of the penal law,
as amended by chapter 3 of the laws of 1995, is amended to read as
follows:
(a) Except as provided in subdivision six of section [70.00 ] 60.05,
the sentence imposed upon a person who stands convicted of a class B or
class C violent felony offense must be [an indeterminate ] a determinate
sentence of imprisonment which shall be in whole or half years. [Except
as provided in subdivision six of section 60.05, the maximum ] The term
of such sentence must be in accordance with the provisions of subdivi-
sion three of this section [and the minimum period of imprisonment under
such sentence must be in accordance with subdivision four of this
section ].
§ 6. Paragraphs (b) and (c) of subdivision 2 of section 70.02 of the
penal law, as amended by chapter 291 of the laws of 1993, are amended to
read as follows:
(b) Except as provided in subdivision [five ] six of section 60.05 and
subdivision four of this section, the sentence imposed upon a person who
stands convicted of a class D violent felony offense, other than the
offenses of criminal possession of a weapon in the third degree as
defined in subdivisions four and five of section 265.02 and criminal
sale of a firearm in the second degree as defined in section 265.12,
must be in accordance with the applicable provisions of this chapter
relating to sentencing for class D felonies provided, however, that
where a sentence of imprisonment is imposed which requires a commitment
to the state department of correctional services, such sentence shall be
a determinate sentence in accordance with paragraph (c) of subdivision
three of this section.
(c) Except as provided in subdivision six of section 60.05, the
sentence imposed upon a person who stands convicted of the class D
violent felony offenses of criminal possession of a weapon in the third
degree as defined in subdivisions four and five of section 265.02, or
criminal sale of a firearm in the second degree as defined in section
265.12 or the class E violent felonies of attempted criminal possession
of a weapon in the third degree as defined in subdivisions four and five
of section 265.02 must be a sentence to [an indeterminate ] a determinate
period of imprisonment, or, in the alternative, a definite sentence of
imprisonment for a period of no less than one year, except that:
(i) the court may impose any other sentence authorized by law upon a
person who has not been previously convicted in the five years imme-
diately preceding the commission of the offense for a class A misdemea-
nor defined in this chapter, if the court having regard to the nature
and circumstances of the crime and to the history and character of the
defendant, finds on the record that such sentence would be unduly harsh
and that the alternative sentence would be consistent with public safety
and does not deprecate the seriousness of the crime; and
(ii) the court may apply the provisions of paragraphs (b) and (c) of
subdivision [five ] four of this section when imposing a sentence upon a
person who has previously been convicted of a class A misdemeanor
defined in this chapter in the five years immediately preceding the
commission of the offense.
§ 7. Subdivision 3 of section 70.02 of the penal law, as amended by
chapter 233 of the laws of 1980, is amended to read as follows:
3. [Maximum term ] Term of sentence. The [maximum ] term of [an indeter-
minate ] a determinate sentence for a violent felony offense must be
fixed by the court as follows:
(a) For a class B felony, the term must be at least [six ] five years
and must not exceed twenty-five years; [and ]
(b) For a class C felony, the term must be at least [four ] three and
one-half years and must not exceed fifteen years[. ];
(c) For a class D felony, the term must be at least two years and must
not exceed seven years; and
(d) For a class E felony, the term must be at least one and one-half
years and must not exceed four years.
§ 8. Subdivision 4 of section 70.02 of the penal law is REPEALED.
§ 9. Subdivision 5 of section 70.02 of the penal law, as amended by
chapter 233 of the laws of 1980, paragraph (b) as amended by chapter 291
of the laws of 1993, is amended to read as follows:
[5. ] 4. (a) Except as provided in paragraph (b) of this [section ]
subdivision, where a plea of guilty to a class D violent felony offense
is entered pursuant to section 220.10 or 220.30 of the criminal proce-
dure law in satisfaction of an indictment charging the defendant with an
armed felony, as defined in subdivision forty-one of section 1.20 of the
criminal procedure law, the court must impose [an indeterminate ] a
determinate sentence of imprisonment [pursuant to section 70.00 ].
(b) In any case in which the provisions of paragraph (a) [hereof ] of
this subdivision or the provisions of subparagraph (ii) of paragraph (c)
of subdivision two of this section apply, the court may impose a
sentence other than [an indeterminate ] a determinate sentence of impri-
sonment, or a definite sentence of imprisonment for a period of no less
than one year, if it finds that the alternate sentence is consistent
with public safety and does not deprecate the seriousness of the crime
and that one or more of the following factors exist:
(i) mitigating circumstances that bear directly upon the manner in
which the crime was committed; or
(ii) where the defendant was not the sole participant in the crime,
the defendant's participation was relatively minor although not so minor
as to constitute a defense to the prosecution; or
(iii) possible deficiencies in proof of the defendant's commission of
an armed felony.
(c) The defendant and the district attorney shall have an opportunity
to present relevant information to assist the court in making a determi-
nation pursuant to paragraph (b) [hereof ] of this subdivision, and the
court may, in its discretion, conduct a hearing with respect to any
issue bearing upon such determination. If the court determines that [an
indeterminate ] a determinate sentence of imprisonment should not be
imposed pursuant to the provisions of such paragraph (b), it shall make
a statement on the record of the facts and circumstances upon which such
determination is based. A transcript of the court's statement, which
shall set forth the recommendation of the district attorney, shall be
forwarded to the state division of criminal justice services along with
a copy of the accusatory instrument.
§ 10. The opening paragraph of subdivision 3 of section 70.30 of the
penal law, as amended by chapter 3 of the laws of 1995, is amended to
read as follows:
The term of a definite sentence, a determinate sentence, or the maxi-
mum term of an indeterminate sentence imposed on a person shall be cred-
ited with and diminished by the amount of time the person spent in
custody prior to the commencement of such sentence as a result of the
charge that culminated in the sentence. In the case of an indeterminate
sentence, if the minimum period of imprisonment has been fixed by the
court or by the board of parole, the credit shall also be applied
against the minimum period. The credit herein provided shall be calcu-
lated from the date custody under the charge commenced to the date the
sentence commences and shall not include any time that is credited
against the term or maximum term of any previously imposed sentence or
period of post-release supervision to which the person is subject. Where
the charge or charges culminate in more than one sentence, the credit
shall be applied as follows:
§ 11. Subdivision 5 of section 70.30 of the penal law is amended to
read as follows:
5. Time served under vacated sentence. When a sentence of imprisonment
that has been imposed on a person is vacated and a new sentence is
imposed on such person for the same offense, or for an offense based
upon the same act, the new sentence shall be calculated as if it had
commenced at the time the vacated sentence commenced, and all time cred-
ited against the vacated sentence shall be credited against the new
sentence. In any case where a vacated sentence also includes a period
of post-release supervision, all time credited against the period of
post-release supervision shall be credited against the period of post-
release supervision included with the new sentence. In the event a peri-
od of post-release supervision is not included with the new sentence,
such period shall be credited against the new sentence.
§ 12. Paragraph (b) of subdivision 1 of section 70.40 of the penal
law, as amended by chapter 3 of the laws of 1995, is amended to read as
follows:
(b) A person who is serving one or more than one indeterminate or
determinate sentence of imprisonment shall, if he so requests, be condi-
tionally released from the institution in which he is confined when the
total good behavior time allowed to him, pursuant to the provisions of
the correction law, is equal to the unserved portion of his term, maxi-
mum term or aggregate maximum term; provided, however, that (i) in no
event shall a person serving one or more indeterminate sentence of
imprisonment and one or more determinate sentence of imprisonment which
run concurrently be conditionally released until serving at least six-
sevenths of the determinate term of imprisonment which has the longest
unexpired time to run and (ii) in no event shall a person be condi-
tionally released prior to the date on which such person is first eligi-
ble for discretionary parole release. The conditions of release, includ-
ing those governing post-release supervision, shall be such as may be
imposed by the state board of parole in accordance with the provisions
of the executive law.
Every person so released shall be under the supervision of the state
board of parole for a period equal to the unserved portion of the term,
maximum term, [or ] aggregate maximum term, or period of post-release
supervision.
§ 13. Paragraph (a) of subdivision 3 of section 70.40 of the penal law
is amended to read as follows:
(a) When a person [has ] is alleged to have violated the terms of [his ]
parole and the state board of parole has declared such person to be
delinquent, the declaration of delinquency shall interrupt the person's
sentence as of the date of the delinquency and such interruption shall
continue until the return of the person to an institution under the
jurisdiction of the state department of [correction ] correctional
services.
§ 14. Paragraph (b) of subdivision 3 of section 70.40 of the penal
law, as amended by chapter 79 of the laws of 1989, is amended to read as
follows:
(b) When a person [has ] is alleged to have violated the terms of his
conditional release or post-release supervision and has been declared
delinquent by the board having supervision over such person or the local
conditional release commission, the declaration of delinquency shall
interrupt the period of supervision or post-release supervision as of
the date of the delinquency [and ]. For a conditional releasee, such
interruption shall continue until the return of the person to the local
correctional facility located in the jurisdiction of the commission
having custody of such person or, if he was released from an institution
under the jurisdiction of the state department of correctional services,
to an institution under the jurisdiction of that department. Upon such
return, the person shall resume service of his sentence. For a person
released to post-release supervision, the provisions of section 70.45
shall apply.
§ 15. The penal law is amended by adding a new section 70.45 to read
as follows:
§ 70.45 Determinate sentence; post-release supervision.
1. In general. Each determinate sentence also includes, as a part
thereof, an additional period of post-release supervision. Such period
shall commence as provided in subdivision five of this section and a
violation of any condition of supervision occurring at any time during
such period of post-release supervision shall subject the defendant to a
further period of imprisonment of at least six months and up to the
balance of the remaining period of post-release supervision, not to
exceed five years. Such maximum limits shall not preclude a longer peri-
od of further imprisonment for a violation where the defendant is
subject to indeterminate and determinate sentences.
2. Period of post-release supervision. The period of post-release
supervision for a determinate sentence shall be five years, except that
such period shall be three years whenever a determinate sentence of
imprisonment is imposed pursuant to section 70.02 of this article upon a
conviction for a class D or class E violent felony offense; provided,
however, that when a determinate sentence is imposed pursuant to section
70.02 of this article, the court, at the time of sentence, may specify a
shorter period of post-release supervision of not less than two and
one-half years upon a conviction for a class B or class C violent felony
offense and a shorter period of post-release supervision of not less
than one and one-half years upon a conviction for a class D or class E
violent felony offense.
3. Conditions of post-release supervision. The board of parole shall
establish and impose conditions of post-release supervision in the same
manner and to the same extent as it may establish and impose conditions
in accordance with the executive law upon persons who are granted parole
or conditional release; provided that, notwithstanding any other
provision of law, the board of parole may impose as a condition of post-
release supervision that for a period not exceeding six months imme-
diately following release from the underlying term of imprisonment the
person be transferred to and participate in the programs of a residen-
tial treatment facility as that term is defined in subdivision six of
section two of the correction law. Upon release from the underlying term
of imprisonment, the person shall be furnished with a written statement
setting forth the conditions of post-release supervision in sufficient
detail to provide for the person's conduct and supervision.
4. Revocation of post-release supervision. An alleged violation of any
condition of post-release supervision shall be initiated, heard and
determined in accordance with the provisions of subdivisions three and
four of section two hundred fifty-nine-i of the executive law.
5. Calculation of service of period of post-release supervision. A
period or periods of post-release supervision shall be calculated and
served as follows:
(a) A period of post-release supervision shall commence upon the
person's release from imprisonment to supervision by the division of
parole and shall interrupt the running of the determinate sentence or
sentences of imprisonment and the indeterminate sentence or sentences of
imprisonment, if any. The remaining portion of any maximum or aggregate
maximum term shall then be held in abeyance until the successful
completion of the period of post-release supervision or the person's
return to the custody of the department of correctional services, which-
ever occurs first.
(b) Upon the completion of the period of post-release supervision, the
running of such sentence or sentences of imprisonment shall resume and
only then shall the remaining portion of any maximum or aggregate maxi-
mum term previously held in abeyance be credited with and diminished by
such period of post-release supervision. The person shall then be under
the jurisdiction of the division of parole for the remaining portion of
such maximum or aggregate maximum term.
(c) When a person is subject to two or more periods of post-release
supervision, such periods shall merge with and be satisfied by discharge
of the period of post-release supervision having the longest unexpired
time to run; provided, however, any time served upon one period of post-
release supervision shall not be credited to any other period of post-
release supervision except as provided in subdivision five of section
70.30 of this article.
(d) When a person is alleged to have violated a condition of post-re-
lease supervision and the division of parole has declared such person to
be delinquent: (i) the declaration of delinquency shall interrupt the
period of post-release supervision; (ii) such interruption shall contin-
ue until the person is restored to post-release supervision; (iii) if
the person is restored to post-release supervision without being
returned to the department of correctional services, any time spent in
custody from the date of delinquency until restoration to post-release
supervision shall first be credited to the maximum or aggregate maximum
term of the sentence or sentences of imprisonment, but only to the
extent authorized by subdivision three of section 70.40 of this article.
Any time spent in custody solely pursuant to such delinquency after
completion of the maximum or aggregate maximum term of the sentence or
sentences of imprisonment shall be credited to the period of post-re-
lease supervision, if any; and (iv) if the person is ordered returned to
the department of correctional services, the person shall be required to
serve a time assessment of at least six months before being re-released
to post-release supervision. In the event the balance of the remaining
period of post-release supervision is six months or less, such time
assessment shall be six months unless a longer period is authorized
pursuant to subdivision one of this section. The time assessment shall
commence upon the issuance of a determination after a final hearing that
the person has violated one or more conditions of supervision. While
serving such assessment, the person shall not receive any good behavior
allowance pursuant to section eight hundred three of the correction law.
Any time spent in custody from the date of delinquency until return to
the department of correctional services shall first be credited to the
maximum or aggregate maximum term of the sentence or sentences of impri-
sonment, but only to the extent authorized by subdivision three of
section 70.40 of this article. The maximum or aggregate maximum term of
the sentence or sentences of imprisonment shall run while the person is
serving such time assessment in the custody of the department of correc-
tional services. Any time spent in custody solely pursuant to such
delinquency after completion of the maximum or aggregate maximum term of
the sentence or sentences of imprisonment shall be credited to the peri-
od of post-release supervision, if any.
(e) Notwithstanding paragraph (d) of this subdivision, in the event a
person is sentenced to one or more additional indeterminate or determi-
nate term or terms of imprisonment prior to the completion of the period
of post-release supervision, such period of post-release supervision
shall be held in abeyance and the person shall be committed to the
custody of the department of correctional services in accordance with
the requirements of the prior and additional terms of imprisonment.
(f) When a person serving a period of post-release supervision is
returned to the department of correctional services pursuant to an addi-
tional consecutive sentence of imprisonment and without a declaration of
delinquency, such period of post-release supervision shall be held in
abeyance while the person is in the custody of the department of correc-
tional services. Such period of post-release supervision shall resume
running upon the person's re-release.
§ 16. Subdivision 2 of section 259-a of the executive law, as added by
chapter 904 of the laws of 1977, is amended to read as follows:
2. The division shall cause complete records to be kept of every
person on parole [or ], conditional release or post-release supervision.
Such records shall contain the aliases and photograph of each such
person, and the other information referred to in subdivision one of this
section, as well as all reports of parole officers in relation to such
persons. Such records shall be maintained by the division and may be
made available as deemed appropriate by the chairman for use by the
department of correctional services, the division, and the board of
parole. Such records shall be organized in accordance with methods of
filing and indexing designed to insure the immediate availability of
complete information about such persons.
§ 17. Subdivision 4 of section 259-a of the executive law, as amended
by chapter 79 of the laws of 1989, is amended to read as follows:
4. In accordance with the provisions of this chapter, the division
shall supervise inmates released on parole or conditional release, or to
post-release supervision, except that the division may consent to the
supervision of a released inmate by the United States parole commission
pursuant to the witness security act of nineteen hundred eighty-four.
§ 18. Subdivision 5 of section 259-a of the executive law, as added by
chapter 904 of the laws of 1977, is amended to read as follows:
5. The division shall conduct such investigations as may be necessary
in connection with alleged violations of parole [or ], conditional
release or post-release supervision.
§ 19. Subdivision 6 of section 259-a of the executive law, as added by
chapter 904 of the laws of 1977, is amended to read as follows:
6. The division shall assist inmates eligible for parole or condi-
tional release and inmates who are on parole [or ], conditional release
or post-release supervision to secure employment, educational or voca-
tional training.
§ 20. Subdivision 8 of section 259-a of the executive law, as amended
by chapter 451 of the laws of 1984, is amended to read as follows:
8. The division may establish a parole transition program which is
hereby defined as community-based residential facilities designed to aid
parole [and ], conditional release or post-release supervision violators
develop an increased capacity for adjustment to community living. Paro-
lees [and ], conditional releasees and those under post-release super-
vision who have either (i) been found pursuant to section two hundred
fifty-nine-i of this article to have violated one or more conditions of
release in an important respect, or (ii) who have allegedly violated one
or more of such conditions upon a finding of probable cause at a prelim-
inary hearing or upon the waiver thereof may be placed in a parole tran-
sition facility. Placement in a parole transition facility upon a find-
ing of probable cause or the waiver thereof shall not preclude the
conduct of a revocation hearing, nor, absent a waiver, operate to deny
the releasee's right to such revocation hearing.
§ 21. Paragraph (a) of subdivision 9 of section 259-a of the execu-
tive law, as added by chapter 55 of the laws of 1992, is amended to read
as follows:
(a) The division shall collect a fee of thirty dollars per month,
from all persons over the age of eighteen who after the effective date
of this subdivision are supervised on parole [or ], conditional release
or post-release supervision by the division. The division shall waive
all or part of such fee where, because of the indigence of the offender,
the payment of said fee would work an unreasonable hardship on the
person convicted, his or her immediate family, or any other person who
is dependent on such person for financial support.
§ 22. Subdivision 2 of section 259-c of the executive law, as amended
by chapter 3 of the laws of 1995, is amended to read as follows:
2. have the power and duty of determining the conditions of release
of the person who may be conditionally released or subject to a period
of post-release supervision under an indeterminate or determinate
sentence of imprisonment;
§ 23. Subdivision 6 of section 259-c of the executive law, as added
by chapter 904 of the laws of 1977, is amended to read as follows:
6. have the power to revoke the parole [or ], conditional release or
post-release supervision status of any person and to authorize the issu-
ance of a warrant for the re-taking of such persons;
§ 24. Section 259-e of the executive law, as amended by chapter 34 of
the laws of 1985, is amended to read as follows:
§ 259-e. Institutional parole services. The division shall provide
institutional parole services. Subject to the authority of the chair-
man, these shall include preparation of reports and other data required
by the state board of parole in the exercise of its functions with
respect to release on parole [and ], conditional release or post-release
supervision of inmates. Employees of the division who collect data,
interview inmates and prepare reports for the state board of parole in
institutions under the jurisdiction of the department of correctional
services shall not work under the direct or indirect supervision of the
head of the institution.
§ 25. Subdivision 1 of section 259-f of the executive law, as amended
by chapter 34 of the laws of 1985, is amended to read as follows:
1. Employees in the division who perform the duties of supervising
inmates released on parole [or ], conditional release or post-release
supervision, and employees who perform professional duties in insti-
tutions and who are assigned to provide institutional parole services
pursuant to section two hundred fifty-nine-e of this article, shall be
parole officers.
§ 26. Paragraph (b) of subdivision 2 of section 259-i of the execu-
tive law, as amended by chapter 230 of the laws of 1986, is amended to
read as follows:
(b) Persons paroled [and ], conditionally released or released to
post-release supervision from an institution under the jurisdiction of
the department of correctional services or the department of mental
hygiene shall, while on parole [or ], conditional release or post-release
supervision, be in the legal custody of the division of parole until
expiration of the maximum term or period of sentence, or expiration of
the period of supervision, including any period of post-release super-
vision, or return to the custody of the department of correctional
services, as the case may be.
§ 27. The subdivision heading of subdivision 3 of section 259-i of
the executive law, as added by chapter 904 of the laws of 1977, is
amended to read as follows:
Revocation of parole [and ], conditional release and post-release
supervision.
§ 28. Subparagraphs (i), (ii) and (iii) of paragraph (a) of subdivi-
sion 3 of section 259-i of the executive law, subparagraph (i) as
amended by chapter 3 of the laws of 1995, subparagraph (ii) as amended
by chapter 262 of the laws of 1987 and subparagraph (iii) as amended by
chapter 843 of the laws of 1980, are amended to read as follows:
(i) If the parole officer having charge of a 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 super-
vision shall have reasonable cause to believe that such person has
lapsed into criminal ways or company, or has violated one or more condi-
tions of his parole, conditional release or post-release supervision,
such parole officer shall report such fact to a member of the board of
parole, or to any officer of the division 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.
The retaking and detention of any such person may be further regulated
by rules and regulations of the division not inconsistent with this
article. A warrant issued pursuant to this section shall constitute
sufficient authority to the superintendent or other person in 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 place-
ment of the parolee only into the custody of the department of correc-
tional services to hold in temporary detention. A warrant issued pursu-
ant to this section shall also constitute sufficient authority 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 intensive drug
treatment program mandated by the board of parole as an alternative to
parole or conditional release revocation, or the revocation of post-re-
lease supervision, and shall also constitute sufficient 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.
(ii) Whenever a paroled or conditionally released person or a person
under post-release supervision or a prisoner received under the uniform
act for out-of-state parolee supervision has, pursuant to this para-
graph, been placed in any county jail or penitentiary, or a city prison
operated by a city having a population of one million or more inhabit-
ants, the state shall pay to the city or county operating such facility
the actual per day per capita cost as certified to the state commission-
er of correctional services by the appropriate local official for the
care of such person and as approved by the director of the budget. The
reimbursement rate shall not, however, exceed thirty dollars per day per
capita and forty dollars per day per capita on and after the first day
of April, nineteen hundred eighty-eight.
(iii) A warrant issued for a parole [or ], a conditional release or a
post-release supervision violator may be executed by any parole officer
or any officer authorized to serve criminal process or any peace offi-
cer, who is acting pursuant to his special duties, or police officer.
Any such officer to whom such warrant shall be delivered is authorized
and required to execute such warrant by taking such person and having
him detained as provided in this paragraph.
§ 29. Paragraph (b) of subdivision 3 of section 259-i of the execu-
tive law, as added by chapter 904 of the laws of 1977, is amended to
read as follows:
(b) A person who shall have been taken into custody pursuant to this
subdivision for violation of one or more conditions of parole [or ],
conditional release or post-release supervision shall, insofar as prac-
ticable, be incarcerated in the county or city in which the arrest
occurred.
§ 30. Subparagraphs (i), (ii), (iii) and (iv) of paragraph (c) of
subdivision 3 of section 259-i of the executive law, subparagraph (i) as
amended by chapter 413 of the laws of 1984, subparagraphs (ii) and (iv)
as added by chapter 904 of the laws of 1977 and subparagraph (iii) as
amended by chapter 432 of the laws of 1989, are amended to read as
follows:
(i) Within fifteen days after the warrant for retaking and temporary
detention has been executed, unless the releasee has been convicted of a
new crime committed while under [his present ] parole [or ], conditional
release or post-release supervision, the board of parole shall afford
the alleged parole [or ], conditional release or post-release supervision
violator a preliminary revocation hearing before a hearing officer
designated by the board of parole. Such hearing officer shall not have
had any prior supervisory involvement over the alleged violator.
(ii) The preliminary parole [or ], conditional release or post-release
supervision revocation hearing shall be conducted at an appropriate
correctional facility, or such other place reasonably close to the area
in which the alleged violation occurred as the board may designate.
(iii) The alleged violator shall, within three days of the execution
of the warrant, be given written notice of the time, place and purpose
of the hearing unless he is detained pursuant to the provisions of
subparagraph (iv) of paragraph (a) of this subdivision. In those
instances, the alleged violator will be given written notice of the
time, place and purpose of the hearing within five days of the execution
of the warrant. The notice shall state what conditions of parole [or ],
conditional release or post-release supervision are alleged to have been
violated, and in what manner; that such person shall have the right to
appear and speak in his own behalf; that he shall have the right to
introduce letters and documents; that he may present witnesses who can
give relevant information to the hearing officer; that he has the right
to confront the witnesses against him. Adverse witnesses may be
compelled to attend the preliminary hearing unless the prisoner has been
convicted of a new crime while on supervision or unless the hearing
officer finds good cause for their non-attendance.
(iv) The preliminary hearing shall be scheduled to take place no
later than fifteen days from the date of execution of the warrant. The
standard of proof at the preliminary hearing shall be probable cause to
believe that the parolee [or ], conditional releasee or person under
post-release supervision has violated one or more conditions of his
parole [or ], conditional release or post-release supervision in an
important respect. Proof of conviction of a crime committed [subsequent
to release on parole or conditional release ] while under supervision
shall constitute probable cause for the purposes of this section.
§ 31. Subparagraph (vi) of paragraph (c) of subdivision 3 of section
259-i of the executive law, as added by chapter 904 of the laws of 1977,
is amended to read as follows:
(vi) At the conclusion of the preliminary hearing, the hearing offi-
cer shall inform the alleged violator of his decision as to whether
there is probable cause to believe that the parolee [or ], conditional
releasee or person on post-release supervision has violated one or more
conditions of his release in an important respect. Based solely on the
evidence adduced at the hearing, the hearing officer shall determine
whether there is probable cause to believe that such person has violated
his parole [or ], conditional release or post-release supervision in an
important respect. The hearing officer shall in writing state the
reasons for his determination and the evidence relied on. A copy of the
written findings shall be sent to both the alleged violator and his
counsel.
§ 32. Paragraph (d) of subdivision 3 of section 259-i of the execu-
tive law, as amended by chapter 3 of the laws of 1995, is amended to
read as follows:
(d) If a finding of probable cause is made pursuant to this subdivi-
sion either by a determination at a preliminary hearing or by the waiver
thereof, or if the releasee has been convicted of a new crime while
under [his present ] parole [or ], conditional release or post-release
supervision, the board's rules shall provide for (i) declaring such
person to be delinquent as soon as practicable and shall require reason-
able and appropriate action to make a final determination with respect
to the alleged violation or (ii) ordering such person to be restored to
parole, conditional release or post-release supervision under such
circumstances as it may deem appropriate or (iii) when a parolee [or ],
conditional releasee or person on post-release supervision has been
convicted of a new felony committed while under [his present parole or
conditional release ] such supervision and a new indeterminate or deter-
minate sentence has been imposed, the board's rules shall provide for a
final declaration of delinquency. The inmate shall then be notified in
writing that his release has been revoked on the basis of the new
conviction and a copy of the commitment shall accompany said notifica-
tion. The inmate's next appearance before the board shall be governed by
the legal requirements of said new indeterminate or determinate
sentence, or shall occur as soon after a final reversal of the
conviction as is practicable.
§ 33. Subparagraph (iv) of paragraph (f) of subdivision 3 of section
259-i of the executive law, as added by chapter 904 of the laws of 1977,
is amended to read as follows:
(iv) The alleged violator shall be given written notice of the rights
enumerated in subparagraph (iii) of paragraph (c) of this subdivision as
well as of his right to present mitigating evidence relevant to restora-
tion to parole, conditional release or post-release supervision and his
right to counsel.
§ 34. Subparagraph (vi) of paragraph (f) of subdivision 3 of section
259-i of the executive law, as added by chapter 904 of the laws of 1977,
is amended to read as follows:
(vi) At the revocation hearing, the charges shall be read and the
alleged violator shall be permitted to plead not guilty, guilty, guilty
with explanation or to stand mute. As to each charge, evidence shall be
introduced through witnesses and documents, if any, in support of that
charge. At the conclusion of each witness's direct testimony, he shall
be made available for cross-examination. If the alleged violator
intends to present a defense to the charges or to present evidence of
mitigating circumstances, the alleged violator shall do so after presen-
tation of all the evidence in support of a violation of parole, condi-
tional release or post-release supervision.
§ 35. Subparagraph (ix) of paragraph (f) of subdivision 3 of section
259-i of the executive law, as added by chapter 904 of the laws of 1977,
is amended to read as follows:
(ix) If the presiding officer is not satisfied that there is a prepon-
derance of evidence in support of the violation, he shall dismiss the
violation, cancel the delinquency and restore the [parolee or condi-
tional releasee ] person to parole, conditional release or post-release
to supervision.
§ 36. Subparagraphs (x) and (xi) of paragraph (f) of subdivision 3 of
section 259-i of the executive law, as amended by chapter 166 of the
laws of 1991, are amended to read as follows:
(x) If the presiding officer is satisfied that there is a preponder-
ance of evidence that the alleged violator violated one or more condi-
tions of release in an important respect, he or she shall so find.
[The ] For each violation so found, the presiding officer may (A) direct
[the violator's reincarceration and fix a date for consideration by the
board for re-release on parole or conditional release, as the case may
be; (B) as an alternative to reincarceration, direct the violator's
placement in a parole transition facility for a period not to exceed one
hundred eighty days and subsequent restoration to supervision; or (C)
direct that the parolee or conditional releasee be restored to super-
vision ] that the parolee, conditional releasee or person serving a peri-
od of post-release supervision be restored to supervision; (B) as an
alternative to reincarceration, direct the parolee, conditional releasee
or person serving a period of post-release supervision be placed in a
parole transition facility for a period not to exceed one hundred eighty
days and subsequent restoration to supervision; (C) in the case of paro-
lees or conditional releasees, direct the violator's reincarceration and
fix a date for consideration by the board for re-release on parole or
conditional release, as the case may be; or (D) in the case of persons
released to a period of post-release supervision, direct the violator's
reincarceration for a period of at least six months and up to the
balance of the remaining period of post-release supervision, not to
exceed five years. Where a date has been fixed for the violator's
re-release on parole or conditional release, as the case may be, the
board or board member may waive the personal interview between a member
or members of the board and the violator to determine the suitability
for re-release; provided, however, that the board shall retain the
authority to suspend the date fixed for re-release and to require a
personal interview based on the violator's institutional record or on
such other basis as is authorized by the rules and regulations of the
board. If an interview is required, the board shall notify the violator
of the time of such interview in accordance with the rules and regu-
lations of the board. If the violator is placed in a parole transition
facility or restored to supervision, the presiding officer may impose
such other conditions of parole [or ], conditional release, or post-re-
lease supervision as he may deem appropriate, as authorized by rules of
the board.
(xi) If the presiding officer sustains any violations, he must prepare
a written statement, to be made available to the alleged violator and
his counsel, indicating the evidence relied upon and the reasons for
revoking parole, conditional release or post-release supervision, and
for the disposition made.
§ 37. Paragraph (g) of subdivision 3 of section 259-i of the executive
law, as added by chapter 904 of the laws of 1977, is amended to read as
follows:
(g) Revocation of parole [or ], conditional release or post-release
supervision shall not prevent re-parole or re-release provided such
re-parole or re-release is not inconsistent with any other provisions of
law.
§ 38. Paragraph (i) of subdivision 3 of section 259-i of the executive
law, as added by chapter 412 of the laws of 1980, is amended to read as
follows:
(i) Where there is reasonable cause to believe that a parolee [or ],
conditional releasee or person under post-release supervision has
absconded from supervision the board may declare such person to be
delinquent. This paragraph shall not be construed to deny such person a
preliminary revocation hearing upon his retaking, nor to relieve the
division of parole of any obligation it may have to exercise due dili-
gence to retake the alleged absconder, nor to relieve the parolee or
releasee of any obligation he may have to comply with the conditions of
his release.
§ 39. Paragraph (a) of subdivision 4 of section 259-i of the executive
law, as added by chapter 904 of the laws of 1977, is amended to read as
follows:
(a) Except for determinations made upon preliminary hearings upon
allegations of violation of parole [or ], conditional release or post-re-
lease supervision, all determinations made pursuant to this section may
be appealed in accordance with rules promulgated by the board. Any
board member who participated in the decision from which the appeal is
taken may not participate in the resolution of that appeal. The rules
of the board may specify a time within which any appeal shall be taken
and resolved.
§ 40. Section 259-j of the executive law, as amended by chapter 3 of
the laws of 1995, is amended to read as follows:
§ 259-j. Discharge from parole and conditional release. [If ] Except
where a determinate sentence or a sentence with a maximum term of life
imprisonment was imposed for a felony other than a felony defined in
article two hundred twenty of the penal law, if the board of parole is
satisfied that an absolute discharge from parole or from conditional
release is in the best interests of society, the board may grant such a
discharge prior to the expiration of the full term or maximum term to
any person who has been on unrevoked parole or conditional release for
at least three consecutive years. A discharge granted under this
section shall constitute a termination of the sentence with respect to
which it was granted. No such discharge shall be granted unless the
board of parole is satisfied that the parolee, otherwise financially
able to comply with an order of restitution and the payment of any
mandatory surcharge previously imposed by a court of competent jurisdic-
tion, has made a good faith effort to comply therewith.
§ 41. Section 380.50 of the criminal procedure law is amended by
adding two new subdivisions 4 and 5 to read as follows:
4. Regardless of whether the victim requests to make a statement with
regard to the defendant's sentence, where the defendant is committed to
the custody of the department of correctional services upon a sentence
of imprisonment for conviction of a violent felony offense as defined in
section 70.02 of the penal law or a felony defined in article one
hundred twenty-five of such law, within sixty days of the imposition of
sentence the prosecutor shall provide the victim with a form, prepared
and distributed by the commissioner of the department of correctional
services, on which the victim may indicate a demand to be informed of
the escape, absconding, discharge, parole, conditional release or
release to post-release supervision of the person so imprisoned. If the
victim submits a completed form to the prosecutor, it shall be the duty
of the prosecutor to mail promptly such form to the department of
correctional services.
5. Following the receipt of such form from the prosecutor, it shall
be the duty of the department of correctional services, at the time such
person is discharged, paroled, conditionally released or released to
post-release supervision, to notify the victim of such occurrence by
certified mail directed to the address provided by the victim. In the
event such person escapes or absconds from a facility under the juris-
diction of the department of correctional services, it shall be the duty
of such department to notify immediately the victim of such occurrence
at the most current address or telephone number provided by the victim
in the most reasonable and expedient possible manner. In the event such
escapee or absconder is subsequently taken into custody by the depart-
ment of correctional services, it shall be the duty of such department
to notify the victim of such occurrence by certified mail directed to
the address provided by the victim within forty-eight hours of regaining
such custody. In no case shall the state be held liable for failure to
provide any notice required by this subdivision.
§ 42. Notwithstanding any other provision of law, by January 1, 1999,
the department of correctional services shall establish an automated
telephone system that a victim, family member of a victim, a witness or
any member of the general public may call to obtain information relating
to the crime and sentence of an inmate who is serving a determinate or
indeterminate sentence of imprisonment. The department of correctional
services, in consultation with the department of motor vehicles, shall
also develop a public awareness campaign and disseminate information
regarding the availability of the automated telephone system in conjunc-
tion with licensing and motor vehicle registration, application and
renewal procedures of the department of motor vehicles. In addition, by
April 1, 1999, the division of parole, in cooperation with the depart-
ment of correctional services, shall implement a program to provide a
victim, family member of a victim, a witness, or any member of the
general public with access to information concerning the community of
residence of a person who has been paroled, conditionally released or
released to post-release supervision and the address and telephone
number of the regional parole office to which such person has been
assigned.
§ 43. Section 149-a of the correction law is REPEALED.
§ 44. This act shall take effect immediately; provided, however that
sections one through thirty-nine of this act shall apply to offenses
committed on or after September 1, 1998, offenses committed prior to
such date shall be governed by the provisions of law in effect at the
time the offense was committed; provided, however, that nothing
contained herein shall be deemed to affect the application, qualifica-
tion, expiration, reversion or repeal of any provision of law amended by
any section of this act and the provisions of this act shall be applied
or qualified or shall expire or revert or be deemed repealed in the same
manner, to the same extent and on the same date as the case may be as
otherwise provided by law.
————————————————————————————————————

REPEAL NOTE.—Section eight of this act repeals subdivision 4 of
section 70.02 of the penal law, relating to indeterminate sentencing of
violent felony offenders. Section forty-three of this act repeals
section 149-a of the correction law, relating to victim notification of
certain inmate releases.

The Legislature of the STATE OF NEW YORK ss:
Pursuant to the authority vested in us by section 70-b of the Public
Officers Law, we hereby jointly certify that this slip copy of this
session law was printed under our direction and, in accordance with such
section, is entitled to be read into evidence.

JOSEPH L. BRUNO SHELDON SILVER
Temporary President of the Senate Speaker of the Assembly

Page last updated July 14, 2003