N.Y. Comp. Codes R. & Regs. Tit. 9 § 8004.11 - Discretionary Cancellation of Revocation Process
(a) At any time
after the completion and approval for prosecution of a notice of violation, or
after the issuance of a notice of violation or a warrant for retaking and
temporary detention, and before the preliminary hearing or waiver thereof, an
officer of the Department assigned to field service and holding a title above
senior parole officer, after consultation with the designated officer issuing
the notice of violation or warrant, may report in writing such circumstances
concerning the notice of violation or warrant as are relevant to a Board member
who may then vacate the notice of violation or warrant, and cancel the
revocation case.
(b) Actions
pursuant to subdivision (a) of this section may be without prejudice to the
recommencement of the revocation case or issuance of a new notice of violation
and/or warrant based upon the same charges, as the Board member
directs.
(c) Following a waiver by
the releasee of a preliminary parole revocation hearing or a finding of a
preponderance of the evidence at a preliminary hearing, upon application of the
Department submitted to the Board and prior to any appearance at a final
hearing, upon agreement of three Board members, the notice of violation or
warrant may be vacated with the releasee restored to supervision under such
circumstances as are deemed appropriate.
(d) Where a final revocation hearing has not
yet commenced by the swearing of witnesses and the taking of testimony or
evidence, the revocation case, notice of violation, and delinquency, if any,
may be cancelled by three members of the Board of Parole or the administrative
law judge, who shall state their reasons in writing for the cancellation at or
before the time of the final hearing but prior to the swearing of witnesses and
the taking of testimony or evidence. In cases where the alleged violator is
serving a sentence for a felony offense under articles 120, 125, 130, 135, 160,
230, 235, 255, 263, 265, 485 or 490 of the Penal Law, or where the releasee has
been granted early conditional parole for deportation only or conditional
parole for deportation only pursuant to section
259-i(2)
(d) of the Executive Law, such cancellation
can only be effectuated by the three members of the Board. Cancellation under
this subdivision shall not preclude a subsequent notice of violation or warrant
based on the same charges.
(e)
Where a final revocation hearing has commenced by the swearing of witnesses and
the taking of testimony or evidence, a revocation case may no longer be
cancelled except following dismissal of all violation charges at the conclusion
of a final revocation hearing. A cancellation under this subdivision shall
preclude a subsequent notice of violation or warrant based upon the same
violation charges.
(f) A warrant
may be withdrawn or cancelled without a cancellation of the revocation
case.
(g) Cancellation of the
revocation case pursuant to this section shall also cancel the delinquency that
may have been declared pursuant to subdivision (a) of section
8004.10 of this Part.
Notes
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