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New York Legislation: Part SS of New York Chapter Law 56 of 2009

By David Badertscher, PLL

Part SS of Chapter 56 2009 of the State of New York relates to the organization, function, powers, and duties of Local Conditional Release Commission.  Chapter 56 of 2009 was signed by the Governor on December 7, 2009.

PART SS

     Section 1. The correction law is amended by adding a new article 12 to
   read as follows:
                                  ARTICLE 12
                     LOCAL CONDITIONAL RELEASE COMMISSION

   Section 270. Definitions.
           271. Local conditional release commission; organization.
           272. Local  conditional release commission; function, powers and
                  duties.
           273. Conditional release; procedures for application and  deter-
                  minations.
           274. Conditional release; procedures for violation, delinquency,
                  warrants and revocation.
           275. Transfer  of custody and supervision of conditional releas-
                  ee.
           276. Regulations and report.
     § 270. Definitions. As used in this article, the following terms  have
   the following meanings:
     1. "Commission" means the local conditional release commission.
     2. "County" means each county in the state, except a county within the
   city of New York.
     3.  "County  executive" means the county commissioner, county manager,
   county director or county president.
     4. "Division" means the division of probation and correctional  alter-
   natives.
     §  271.  Local conditional release commission; organization. 1.  Every
   county, and the city of New York, may adopt a local law  establishing  a
   local conditional release commission. Such commission shall be appointed
   by  the  county  executive,  upon  the  advice and consent of the county
   legislature, or in the case of the city of  New  York,  such  commission
   shall be appointed by the mayor, upon the advice and consent of the city
   council.  Each  such  commission shall consist of at least five members.
   Each member of the commission shall have graduated  from  an  accredited
   four  year  college or university and shall have had at least five years
   of experience in the field of criminology,  administration  of  criminal

                                      97                           CHAP. 56
 
   justice,  law  enforcement,  probation, parole, law, social work, social
science, psychology, psychiatry or corrections.
2.  The  term of office of each member of such commission shall be for
four years; provided, however, that any member chosen to fill a  vacancy
occurring  otherwise  than  by expiration of term shall be appointed for
the remainder of the unexpired term of the member whom the person is  to
succeed.  Vacancies  caused  by expiration of term or otherwise shall be
filled in the same manner as original appointments.
3. No member of the commission shall serve as a representative of  any
political party on an executive committee or other governing body there-
of,  as  an  executive  officer  or employee of any political committee,
organization or association, nor be a judge or  justice,  a  sheriff  or
district attorney.
4.  Any member may be removed by the county executive, or the mayor in
the case of the city of New York, for cause, after notice and an  oppor-
tunity to be heard.
5.  The director of the local probation department, or such director's
designee, shall serve as an ex-officio, non-voting member of the commis-
sion.
6. The local probation department shall assign staff  support  to  the
commission.
§  272.  Local  conditional  release  commission; function, powers and
duties. The commission shall:
1. have the power and duty  of  determining  which  persons  sentenced
within  the  county,  or  the  city  of New York, and serving a definite
sentence of imprisonment and eligible for conditional  release  pursuant
to  subdivision two of section 70.40 of the penal law may be released on
conditional release and when and under  what  conditions  in  accordance
with section two hundred seventy-three of this article;
2. have the power to determine, as each inmate applies for conditional
release,  the  need  for supplemental investigation of the background of
such inmate and cause such investigation as may be necessary to be  made
as  soon  as  practicable. The commission may require that the probation
department located in the jurisdiction of the  commission  conduct  such
supplemental  investigation.  The results of such investigation together
with all other information compiled by the local  correctional  facility
and  the complete criminal record and family court record of such inmate
shall be readily available when the conditional release of  such  inmate
is being considered. Such information shall include a complete statement
of  the crime for which the inmate has been sentenced, the circumstances
of such crime, all presentence memoranda, the nature  of  the  sentence,
the  court in which such inmate was sentenced, the name of the judge and
district attorney and copies of such probation reports as may have  been
made  as well as reports as to the inmate's social, physical, mental and
psychiatric condition and history;
3. have the legal custody of persons conditionally released and placed
under the supervision of the local probation department for a period  of
one  year,  or  until  returned to the custody of the local correctional
facility located in the jurisdiction of the commission, as the case  may
be;
4.  have  the power to revoke the conditional release of any person in
the legal custody of the commission and to issue declarations of  delin-
quency  and authorize the issuance of a warrant for the retaking of such
person, as provided for in section  two  hundred  seventy-four  of  this
article;

   CHAP. 56                           98
 
     5.  for  the purpose of any investigation necessary in the performance
of its duties, have the power to issue subpoenas, to compel the  attend-
ance  of  witnesses and the production of books, papers, and other docu-
ments pertinent to the subject  of  its  inquiry.  The  minutes  of  all
commission  meetings must be recorded and such records shall be retained
according to applicable standards;
6. have the power to authorize any members thereof to administer oaths
and take the testimony of persons under oath;
7. notify, in writing, the  initial  sentencing  court,  the  district
attorney  and defense counsel within five business days of receipt of an
application for a local conditional release filed under this article and
provide a fifteen day period for comment on such  application.  Comments
submitted under this subdivision shall be provided to the commission and
all parties;
8.  notify in writing the appropriate local probation department prior
to release of a  conditionally  released  person  of  such  department's
responsibilities to supervise such person;
Such  notice  shall  include the name and residence of the person, the
date of release, the conditions of release, and  all  necessary  records
maintained  on  such person to aid the local probation department in the
performance of its  responsibilities  pursuant  to  subdivision  six  of
section two hundred fifty-six of the executive law;
9.  have  the  power  to  transfer the legal custody of persons condi-
tionally released in accordance  with  the  provisions  of  section  two
hundred seventy-five of this article;
10. present an annual report to the county legislature, or in the case
of  the  city  of  New  York,  to  the city council, of its findings and
actions on submitted applications.
§ 273. Conditional release; procedures for  application  and  determi-
nations.  1.  Any  inmate  who  is eligible for conditional release by a
commission pursuant to subdivision two of section 70.40 of the penal law
and who has served a minimum period of sixty days in a local correction-
al facility may apply for conditional  release.    Eligibility  criteria
shall be limited to inmates:
(a)  who  have  not  been  previously  convicted  and who do not stand
convicted of any crime which would make such inmate ineligible  for  the
receipt  of  merit  time pursuant to section eight hundred three of this
chapter, any crime pursuant to article two hundred  thirty-five  of  the
penal  law when the victim of such offense was under the age of eighteen
at the time of the offense, or any crime which the commission determines
constituted a crime of domestic violence;
(b) having jail records which make them eligible for  a  reduction  of
sentence under section eight hundred four of this chapter;
(c)  having  verified  community  ties  in one of the following areas:
employment, permanent residence and family.
Application shall be made in writing, on forms prescribed by the divi-
sion, to the commission in the county where the sentence was imposed.
2. The commission shall review and make a determination on each appli-
cation within thirty days of receipt of such  application.  No  determi-
nation  granting  or denying such application shall be valid unless made
by a majority vote of at least three commission  members  present.    No
release  shall be granted unless there is a reasonable probability that,
if such inmate is released, he or she shall live and remain  at  liberty
without  violating the law, and that his or her release is not incompat-
ible with the welfare of society and shall not so deprecate the serious-
ness of his or her crime as to undermine respect for law.

                                      99                           CHAP. 56
 
     3. If conditional release is granted, the  commission  shall  set  the
conditions  for release of the person in accordance with rules and regu-
lations promulgated by the division. Such person shall be given  a  copy
of  the conditions of release. Such conditions shall, where appropriate,
include  a requirement that the person comply with any restitution order
previously imposed by a court of competent jurisdiction that applies  to
the person.
4.  No  person  who  has  been  granted  conditional  release shall be
released until such person has served a minimum period of  incarceration
of  ninety  days, in accordance with subdivision two of section 70.40 of
the penal law, and unless such person  has  agreed  in  writing  to  the
conditions  set  by the commission. Such agreement shall state in plain,
easily understandable language the consequences of a violation of one or
more of the conditions of release.
5. Persons who have been granted conditional release by the commission
established  pursuant  to  this  article  shall,  while  on  conditional
release,  be  in the legal custody of the commission for a period of one
year, or until returned to the custody of the local correctional facili-
ty located in the jurisdiction of the commission, as the  case  may  be.
The  probation  department located in the jurisdiction of the commission
has the duty of supervising the person during the period of such  condi-
tional  release.    The commission shall impose a minimum of four super-
vision contacts per month while the person is  on  conditional  release,
unless  the commission determines that fewer contacts are appropriate in
any individual case.
6. If conditional release is not granted, the commission shall  inform
the  person  in  writing  of  the factors and reasons for such denial of
conditional release within fifteen days of the  decision.  Such  reasons
shall  be  given  in  detail and not in conclusory terms. Inmates denied
conditional release are eligible to reapply sixty days after the date of
the denial.
§ 274. Conditional release;  procedures  for  violation,  delinquency,
warrants  and  revocation. 1. If at any time during the period of condi-
tional release, the commission, or any member  thereof,  has  reasonable
cause  to  believe that a person who has been conditionally released has
lapsed into criminal ways or company, or has violated one or more condi-
tions of conditional release, the commission or such member may  declare
such  person  delinquent and issue a written declaration of delinquency.
Upon such declaration, such  commission  or  such  member  may  issue  a
warrant for the retaking and temporary detention of such person.
2.  A  warrant issued pursuant to this section shall constitute suffi-
cient authority to the chief administrative officer of any local correc-
tional facility to whom it is delivered to hold in  temporary  detention
the person named therein.
3.  A  warrant  issued pursuant to this section may be executed by any
probation officer or any officer authorized to serve criminal process or
any peace officer, who is acting pursuant to his or her special  duties,
or  any  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  or  her detained as provided for in this
section.
4. The alleged violator shall, within five days of  the  execution  of
the  warrant,  be given written notice of the time, place and purpose of
the hearing. The notice  shall  state  what  conditions  of  conditional
release  are  alleged to have been violated and in what manner and shall

   CHAP. 56                          100
 
   inform the alleged violator of his or her right to counsel  as  provided
for in subdivision seven of this section.
5.  The  alleged  conditional release violator shall appear before the
commission within twenty days of the execution of the  warrant.  At  the
time  of  such  appearance the commission shall ask the alleged violator
whether he or she wishes to make  any  statement  with  respect  to  the
violation. If the alleged violator makes a statement, the commission may
accept it and base a decision thereon. If the commission does not accept
it, or if the alleged violator does not make a statement, the commission
shall proceed with the hearing.
6.  The  commission  may  receive  any  relevant evidence. The alleged
violator may cross examine witnesses and may present evidence on his  or
her own behalf.
7.  The  alleged  violator is entitled to counsel at all stages of any
proceeding under this section and the commission shall advise him or her
of such right upon delivering to the alleged  violator  written  notice,
required pursuant to subdivision four of this section.
8.  At  the  conclusion  of  the hearing, the commission shall issue a
finding. If the commission is not satisfied that there is  a  preponder-
ance  of  evidence  in  support  of  the violation, the commission shall
dismiss the violation, cancel delinquency  and  restore  the  person  to
supervision.  If  the commission is satisfied that there is a preponder-
ance of evidence that the alleged violator violated one or  more  condi-
tions  of  conditional  release  in an important respect, the commission
shall so find.
9. Upon a finding in support of  the  violation,  the  commission  may
revoke  the conditional release, or continue or modify the conditions of
such conditional release. Where the commission revokes a person's condi-
tional release, such person shall be committed to  the  custody  of  the
chief administrative officer of the local correctional facility to serve
the  time  remaining on his or her sentence, in accordance with subdivi-
sion three of section 70.40 of the penal law. Where the commission modi-
fies the conditions of the conditional  release,  the  commission  shall
inform the person, in writing, of such modified conditions.
10.  Any  actions  by the commission pursuant to this article shall be
deemed a judicial function and  shall  not  be  reviewable  if  done  in
accordance with law.
§ 275. Transfer of custody and supervision of conditional releasee. 1.
If  a  person  who has been granted conditional release pursuant to this
article resides or desires to reside in  a  place  other  than  the  one
located within the jurisdiction of the commission which has legal custo-
dy of such person, such commission, or any member thereof, may designate
any other commission established pursuant to this article, or the parole
board, to assume custody of such person and may so transfer custody upon
the consent of such other commission or the parole board.
2.  Where custody of a person who has been granted conditional release
pursuant to this article is transferred pursuant to subdivision  one  of
this  section,  upon  designation  and prior to transfer, the commission
making the designation shall notify the commission which has been desig-
nated to receive custody of such transfer or  the  parole  board.    The
commission  making  the designation shall immediately forward its entire
case record regarding such person to the  receiving  commission  or  the
parole  board.    The  commission to which legal custody has been trans-
ferred, or the parole board, shall assume the  same  powers  and  duties
exercised  by the designating commission and shall have the sole custody
of such person.

                                     101                           CHAP. 56
 
     3. The commission making the designation shall, upon  designation  and
prior  to transfer, notify the local probation department located in the
jurisdiction of the receiving commission of the  duties  of  supervision
and  conditions  of release of such person. Upon such notification, such
probation  department  shall assume responsibilities of supervision. The
commission making the designation shall immediately forward  its  entire
case record regarding such person to such probation department.
§  276.  Regulations  and  report. The division shall promulgate regu-
lations in conformance with the provisions of this article which  ensure
that  local  conditional  release commissions operate in accordance with
the requirements provided in this article.  The  division  shall  report
annually  to  the speaker of the assembly and to the temporary president
of the senate concerning the operations  of  local  conditional  release
commissions.
     §  2.  The  executive  law is amended by adding a new section 257-b to
   read as follows:
     § 257-b. Conditional releasees; duties of supervision. 1. It shall  be
the  duty of every probation officer to furnish each person who has been
ordered to his or her supervision pursuant to subdivision two of section
70.40 of the penal law, with a statement of the  conditions  of  release
and  to  instruct  such  person  with  regard  thereto; to keep informed
concerning  such  person's  conduct,  habits,  associates,  employments,
recreation and whereabouts; to contact such person pursuant to rules and
regulations  promulgated  by  the  division;  to  aid and encourage such
person by friendly advice and admonition and, by such other measures  as
may  seem  most  suitable,  to  bring about improvement in such person's
conduct, condition and general attitude toward society.
2. Probation officers shall report to the head of the local  probation
department  who shall in turn report in writing to the local conditional
release commission having  custody  of  such  person  at  least  monthly
concerning  the  conduct and condition of persons conditionally released
pursuant to subdivision two of section 70.40  of  the  penal  law;  keep
records  of their work as probation officers; keep accurate and complete
accounts of all money collected from such persons; give receipts  there-
for  and  make  prompt returns thereof at least monthly; aid in securing
employment; perform such other duties in connection with the supervision
of such persons as may be required by rules and regulations  promulgated
by  the  division;  and make any other reports to the division as it may
require.
3. If at any time during the period of supervision, a probation  offi-
cer  has  reasonable  cause  to  believe a person conditionally released
pursuant to subdivision two of section 70.40 of the penal law has lapsed
into criminal ways or company, or has violated one or more conditions of
his or her release, such probation officer shall report such fact  to  a
member  of  the  local  conditional release commission having custody of
such person.
     § 3. Subdivision 4 of section 259-a of the executive law, as separate-
   ly amended by chapter 635 of the laws of 1985 and chapter 1 of the  laws
   of 1998, is amended to read as follows:
     4.  [The] In accordance with the provisions of this chapter, the divi-
   sion shall supervise [all] 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.

   CHAP. 56                          102
 
     § 4. Subdivision 2 of section 70.40 of the penal law,  as  amended  by
   chapter 467 of the laws of 1979, is amended to read as follows:
     2.  Definite  sentence.  A  person who is serving one or more than one
   definite sentence of imprisonment with  a  term  or  aggregate  term  in
   excess  of  ninety  days,  and  is eligible for release according to the
criteria set forth in paragraphs (a), (b) and (c) of subdivision one  of
section  two  hundred seventy-three of the correction law, may, if he or
she so requests, be conditionally released from the institution in which
   he or she is confined at any time after service of sixty  days  of  that
   term,  exclusive  of  credits allowed under subdivisions four and six of
   section 70.30. In computing service of sixty days,  the  credit  allowed
   for  jail  time under subdivision three of section 70.30 shall be calcu-
   lated as time served. Conditional release from such institution shall be
   in the discretion of the parole board,  [and]  or  a  local  conditional
release  commission  established  pursuant  to  article  twelve  of  the
correction law, provided, however that where such release is by a  local
conditional  release  commission,  the person must be serving a definite
sentence with a term in excess of one hundred twenty days and  may  only
be  released  after  service  of  ninety days of such term. In computing
service of ninety days, the credit allowed for jail time under  subdivi-
sion  three of section 70.30 of this article shall be calculated as time
served. A conditional release granted under this  subdivision  shall  be
   upon  such  conditions  as may be imposed by [that] the parole board, in
   accordance with the provisions of the executive law, or a  local  condi-
tional  release  commission  in  accordance  with  the provisions of the
correction law.
     Conditional  release  shall  interrupt  service  of  the  sentence  or
   sentences  and the remaining portion of the term or aggregate term shall
   be held in abeyance. Every person so released shall be under the  super-
   vision  of  the  parole  board  [for  a  period  of one year] or a local
probation department and in the custody of the local conditional release
commission in accordance with article twelve of the correction law,  for
a  period  of  one  year.  The  local  probation  department shall cause
complete records to be kept of every person released to its  supervision
pursuant  to  this  subdivision.  The division of parole may supply to a
local probation department and the local conditional release  commission
custody  information  and records maintained on persons under the super-
vision of such local probation department to aid in the  performance  of
its  supervision  responsibilities.    Compliance with the conditions of
   release during the period of supervision shall satisfy  the  portion  of
   the term or aggregate term that has been held in abeyance.
     § 5. Paragraph (b) of subdivision 3 of section 70.40 of the penal law,
   as  separately  amended  by chapter 1 of the laws of 1998, is amended to
   read as follows:
     (b) When a person is alleged to have violated the terms of his  condi-
   tional  release or post-release supervision and has been declared delin-
   quent by the parole board or the local  conditional  release  commission
   having supervision over [him] such person, the declaration of delinquen-
   cy shall interrupt the period of supervision or post-release supervision
   as  of  the  date  of  the  delinquency. For a conditional release, such
   interruption shall continue until the return of the person to the insti-
   tution from which he was released or, if he was released from an  insti-
   tution  under  the  jurisdiction of the state department of [correction]
   correctional services, to an institution under the jurisdiction of  that
   department.  Upon  such  return,  the person shall resume service of his

                                     103                           CHAP. 56
 
   sentence.  For  a  person  released  to  post-release  supervision,  the
   provisions of section 70.45 shall apply.
     § 6. This act shall take effect immediately.
 

Full post as published by New York Supreme Court Criminal Term Library on April 14, 2009 (boomark / email).