N.Y. Comp. Codes R. & Regs. Tit. 9 § 8005.7 - Conduct of the Preliminary Revocation Hearing
(a) At the
preliminary revocation hearing, the preliminary hearing officer shall read each
violation charge and the alleged violator shall plead not guilty, guilty,
guilty with an explanation, or stand mute with respect to each charge. The
Department may, for purposes of the preliminary hearing, elect to proceed on
only one of the, or certain additional, existing charges.
(b) If the alleged violator at a preliminary
hearing pleads guilty to the substance of any charge or an acceptable variation
thereof, or admits charged conduct which is a violation of the conditions of
release in an important respect, the preliminary hearing officer shall conclude
the hearing.
(c) If the alleged
violator pleads not guilty to the charges, or elects to stand mute, the
preliminary hearing officer shall proceed to direct the presentation of
evidence concerning a violation charge, receive statements of witnesses and
documentary evidence on behalf of the alleged violator and allow
cross-examination of those witnesses in attendance with respect to that
charge.
(d) The standard of proof
at the preliminary hearing shall be a preponderance of evidence to believe that
the releasee has violated one or more of the conditions of their release in an
important respect. Proof of conviction of a crime committed subsequent to
release on parole or conditional release shall constitute prima facie evidence
of a violation of a condition of community supervision.
(e) The hearing shall conclude at such time
as the preliminary hearing officer finds that there is a preponderance of
evidence to believe that the alleged violator has violated a condition or
conditions of their release in an important respect, or when all charges have
been heard and no preponderance of evidence has been found.
(f) If the preliminary hearing officer finds
that there is a preponderance of evidence to believe that the alleged violator
has violated one or more of the conditions of parole in an important respect,
the matter shall proceed to a final revocation hearing except as may be
otherwise directed pursuant to section
8004.11 of this Title. When the
matter proceeds to a final hearing the Department may prosecute all charges and
any additional charges upon sufficient notice, whether or not a preponderance
of evidence had been found on such charges at the preliminary
hearing.
(g) If the preliminary
hearing officer finds that there is no preponderance of evidence to believe
that the alleged violator has violated one or more of the conditions of their
release in an important respect, they shall dismiss the notice of violation and
direct such person be restored to supervision.
Notes
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