New York Laws
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Article 410 - NY Criminal Procedure Law
SENTENCES OF PROBATION, CONDITIONAL DISCHARGE AND PAROLE SUPERVISION * NB Effective until September 1, 2015 SENTENCES OF PROBATION AND OF CONDITIONAL DISCHARGE * NB Effective September 1, 2015 410.10 Specification of conditions of the sentence. 410.20 Modification or enlargement of conditions. 410.30 Declaration of delinquency. 410.40 Notice to appear, warrant. 410.50 Custody and supervision of probationers. 410.60 Appearance before court. 410.70 Hearing on violation. 410.80 Transfer of supervision of probationers. 410.90 Termination of sentence. 410.91 Sentence of parole supervision. S 410.10 Specification of conditions of the sentence. 1. When the court pronounces a sentence of probation or of conditional discharge it must specify as part of the sentence the conditions to be complied with. Where the sentence is one of probation, the defendant must be given a written copy of the conditions at the time sentence is imposed. In any case where the defendant is given a written copy of the conditions, a copy thereof must be filed with and become part of the record of the case, and it is not necessary to specify the conditions orally. 2. Commission of an additional offense, other than a traffic infraction, after imposition of a sentence of probation or of conditional discharge, and prior to expiration or termination of the period of the sentence, constitutes a ground for revocation of such sentence irrespective of whether such fact is specified as a condition of the sentence. 3. When the court pronounces a sentence of probation or conditional discharge for a specified crime defined in paragraph (e) of subdivision one of section six hundred thirty-two-a of the executive law, in addition to specifying the conditions of the sentence, the court shall provide written notice to such defendant concerning any requirement to report to the crime victims board funds of a convicted person as defined in section six hundred thirty-two-a of the executive law, the procedures for such reporting and any potential penalty for a failure to comply. S 410.20 Modification or enlargement of conditions. 1. The court may modify or enlarge the conditions of a sentence of probation or of conditional discharge at any time prior to the expiration or termination of the period of the sentence. Such action may not, however, be taken unless the defendant is personally present, except that the defendant need not be present if the modification consists solely of the elimination or relaxation of one or more conditions. Whenever the defendant has not been present, the court shall notify the defendant in writing within twenty days of such modification specifying the nature of the elimination or relaxation of such condition or conditions and the effective date thereof. In any such case the modification or enlargement may be specified in the same manner as the conditions originally imposed and becomes part of the sentence. 2. The procedure set forth in this section applies to the imposition of an additional period of conditional discharge as authorized by subdivision three of section 65.05 of the penal law. S 410.30 Declaration of delinquency. If at any time during the period of a sentence of probation or of conditional discharge the court has reasonable cause to believe that the defendant has violated a condition of the sentence, it may declare the defendant delinquent and file a written declaration of delinquency. Upon such filing, the court must promptly take reasonable and appropriate action to cause the defendant to appear before it for the purpose of enabling the court to make a final determination with respect to the alleged delinquency. S 410.40 Notice to appear, warrant. 1. Notice to appear. The court may at any time order that a person who is under a sentence of probation or of conditional discharge appear before it. Such order may be in the form of a written notice, specifying the time and place of appearance, mailed to or served personally upon the defendant as the court may direct. When the order is in the form of such a notice, failure to appear as ordered without reasonable cause therefor constitutes a violation of the conditions of the sentence irrespective of whether such requirement is specified as a condition thereof. 2. Warrant. If at any time during the period of a sentence of probation or of conditional discharge the court has reasonable grounds to believe that the defendant has violated a condition of the sentence, the court may issue a warrant to a police officer or to an appropriate peace officer directing him or her to take the defendant into custody and bring the defendant before the court without unnecessary delay; provided, however, if the court in which the warrant is returnable is a superior court, and such court is not available, and the warrant is addressed to a police officer or appropriate probation officer certified as a peace officer, such executing officer may bring the defendant to the local correctional facility of the county in which such court sits, to be detained there until not later than the commencement of the next session of such court occurring on the next business day; or if the court in which the warrant is returnable is a local criminal court, and such court is not available, and the warrant is addressed to a police officer or appropriate probation officer certified as a peace officer, such executing officer must without unnecessary delay bring the defendant before an alternate local criminal court, as provided in subdivision five of section 120.90. A court which issues such a warrant may attach thereto a summary of the basis for the warrant. In any case where a defendant arrested upon the warrant is brought before a local criminal court other than the court in which the warrant is returnable, such local criminal court shall consider such summary before issuing a securing order with respect to the defendant. S 410.50 Custody and supervision of probationers. 1. Custody. A person who is under a sentence of probation is in the legal custody of the court that imposed it pending expiration or termination of the period of the sentence. 2. Supervision. The probation department serving the court that imposed a sentence of probation has the duty of supervising the defendant during the period of such legal custody. 3. Search order. If at any time during the period of probation the court has reasonable cause to believe that the defendant has violated a condition of the sentence, it may issue a search order. Such order must be directed to a probation officer and may authorize such officer to search the person of the defendant and/or any premises in which he resides or any real or personal property which he owns or which is in his possession. 4. Taking custody without warrant. When a probation officer has reasonable cause to believe that a person under his supervision pursuant to a sentence of probation has violated a condition of the sentence, such officer may, without a warrant, take the probationer into custody and search his person. 5. Assistance by police officer. In executing a search order, or in taking a person into custody, pursuant to this section, a probation officer may be assisted by a police officer. S 410.60 Appearance before court. A person who has been taken into custody pursuant to section 410.40 or section 410.50 for violation of a condition of a sentence of probation or a sentence of conditional discharge must forthwith be brought before the court that imposed the sentence. If the court has reasonable cause to believe that such person has violated a condition of the sentence, it may commit him to the custody of the sheriff or fix bail or release such person on his own recognizance for future appearance at a hearing to be held in accordance with section 410.70. If the court does not have reasonable cause to believe that such person has violated a condition of the sentence, it must direct that he be released. S 410.70 Hearing on violation. 1. In general. The court may not revoke a sentence of probation or a sentence of conditional discharge unless (a) the court has found that the defendant has violated a condition of the sentence and (b) the defendant has had an opportunity to be heard. The defendant is entitled to a hearing in accordance with this section promptly after the court has filed a declaration of delinquency or has committed him or has fixed bail pursuant to this article. 2. Statement; preliminary examination. The court must file or cause to be filed with the clerk of the court a statement setting forth the condition or conditions of the sentence violated and a reasonable description of the time, place and manner in which the violation occurred. The defendant must appear before the court and the court must advise him of the contents of the statement and furnish him with a copy thereof. At the time of such appearance the court must ask the defendant whether he wishes to make any statement with respect to the violation. If the defendant makes a statement, the court may accept it and base its decision thereon. If the court does not accept it, or if the defendant does not make a statement, the court must proceed with the hearing. Provided, however, that upon request, the court must grant a reasonable adjournment to the defendant to enable him to prepare for the hearing. 3. Manner of conducting hearing. The hearing must be a summary one by the court without a jury and the court may receive any relevant evidence not legally privileged. The defendant may cross-examine witnesses and may present evidence on his own behalf. A finding that the defendant has violated a condition of his sentence must be based upon a preponderance of the evidence. 4. Counsel. The defendant is entitled to counsel at all stages of any proceeding under this section and the court must advise him of such right at the outset of the proceeding. 5. Revocation; modification; continuation. At the conclusion of the hearing the court may revoke, continue or modify the sentence of probation or conditional discharge. Where the court revokes the sentence, it must impose sentence as specified in subdivisions three and four of section 60.01 of the penal law. Where the court continues or modifies the sentence, it must vacate the declaration of delinquency and direct that the defendant be released. If the alleged violation is sustained and the court continues or modifies the sentence, it may extend the sentence up to the period of interruption specified in subdivision two of section 65.15 of the penal law, but any time spent in custody in any correctional institution pursuant to section 410.60 of this article shall be credited against the term of the sentence. S 410.80 Transfer of supervision of probationers. 1. Authority to transfer supervision. Where a probationer at the time of sentencing resides in another jurisdiction within the state, the sentencing court shall transfer supervision to the appropriate probation department in such other jurisdiction. Where, after a probation sentence is pronounced, a probationer desires to reside in another jurisdiction within the state that is not served by the sentencing court, such court, in its discretion, may approve a change in residency and, upon approval, shall transfer supervision to the appropriate probation department serving the county of the probationer's proposed new residence. Any transfer under this subdivision must be in accordance with rules adopted by the commissioner of the division of criminal justice services. 2. Transfer of powers. Upon completion of transfer as authorized pursuant to subdivision one, the probation department in the receiving jurisdiction shall assume all powers and duties of the probation department in the jurisdiction of the sentencing court. Upon completion of transfer, the appropriate court within the jurisdiction of the receiving probation department shall assume all powers and duties of the sentencing court and shall have sole jurisdiction in the case including jurisdiction over matters specified in article twenty-three of the correction law. Further, the sentencing court shall immediately forward its entire case record to the receiving court. In transfers involving a defendant sentenced to probation upon conviction of a felony, the court served by the probation department to which supervision is transferred shall be the superior court within the jurisdiction of the probation department. In transfers involving a defendant sentenced to probation upon conviction of a misdemeanor, the receiving court served by the probation department to which supervision is transferred shall be the appropriate criminal court within the jurisdiction of the probation department. The sending probation department shall consult with the probation department to which supervision will be transferred to determine the appropriate criminal court to receive the case. 3. Interstate compact. Nothing contained in this section affects or limits the provisions of section two hundred fifty-nine-mm of the executive law relating to out-of-state probation supervision. 4. Federal transfer of custody and supervision. Notwithstanding the provisions of any other law, the court served by the probation department may consent to the transfer of custody and supervision of a probationer to the United States Department of Justice pursuant to the Witness Security Act of nineteen hundred eighty-four S 410.90 Termination of sentence. 1. The court may at any time terminate either a period of probation, other than a period of lifetime probation, for conviction to a crime or a period of conditional discharge for an offense. 2. The court may terminate a period of probation for a person who is subject to lifetime probation and who has been on unrevoked probation for at least five consecutive years. 3. (a) The court shall grant a request for termination of a sentence of probation under this section when, having regard to the conduct and condition of the probationer, the court is of the opinion that: (i) the probationer is no longer in need of such guidance, training or other assistance which would otherwise be administered through probation supervision; (ii) the probationer has diligently complied with the terms and conditions of the sentence of probation; and (iii) the termination of the sentence of probation is not adverse to the protection of the public. No such termination shall be granted unless the court is satisfied that the probationer, who is otherwise financially able to comply with an order of restitution or reparation, has made a good faith effort to comply therewith. (b) The court shall grant a request for termination of a sentence of conditional discharge under this section when, having regard to the conduct and condition of the defendant, the court is of the opinion that: (i) the defendant has diligently complied with the terms and conditions of the sentence of conditional discharge; and (ii) termination of the sentence of conditional discharge is not adverse to protection of the public. * S 410.91 Sentence of parole supervision. 1. A sentence of parole supervision is an indeterminate sentence of imprisonment which may be imposed upon an eligible defendant, as defined in subdivision two of this section. Such sentence shall have a minimum term and a maximum term within the ranges specified by subdivisions three and four of section 70.06 of the penal law. Provided, however, if the court directs that the sentence be executed as a sentence of parole supervision, it shall remand the defendant for immediate delivery to a reception center operated by the state department of correctional services, in accordance with section 430.20 of this chapter and six hundred one of the correction law, for a period not to exceed ten days. An individual who receives such a sentence shall be placed under the immediate supervision of the state division of parole and must comply with the conditions of parole, which shall include an initial placement in a drug treatment campus for a period of ninety days at which time the defendant shall be released therefrom. 2. A defendant is an "eligible defendant" for purposes of a sentence of parole supervision when such defendant is a second felony offender convicted of a specified offense or offenses as defined in subdivision five of this section, who stands convicted of no other felony offense, who has not previously been convicted of either a violent felony offense as defined in section 70.02 of the penal law, a class A felony offense or a class B felony offense, and is not subject to an undischarged term of imprisonment. 3. When an indeterminate sentence of imprisonment is imposed upon an eligible defendant for a specified offense, as defined in subdivision five of this section, the court may direct that such sentence be executed as a sentence of parole supervision if the court finds (i) that the defendant has a history of controlled substance dependence that is a significant contributing factor to such defendant's criminal conduct; (ii) that such defendant's controlled substance dependence could be appropriately addressed by a sentence of parole supervision; and (iii) that imposition of such a sentence would not have an adverse effect on public safety or public confidence in the integrity of the criminal justice system. 4. If the sentence is for a specified offense that is a class D felony, the court may not impose a sentence of parole supervision without the consent of the people. If the conviction is as a result of a plea of guilty, the people must communicate their consent, or lack thereof, at the time of the plea. If the conviction is not as a result of a plea of guilty, the people must communicate their consent, or lack thereof, at least ten days before sentencing. In either case, if the people do not consent, they must state on the record or in writing the reason or reasons for their opposition. 5. For the purposes of this section, a "specified offense" is an offense defined by any of the following provisions of the penal law: criminal mischief in the third degree as defined in section 145.05, criminal mischief in the second degree as defined in section 145.10, grand larceny in the fourth degree as defined in subdivision one, two, three, four, five, six, eight, nine or ten of section 155.30, grand larceny in the third degree as defined in section 155.35 (except where the property consists of one or more firearms, rifles or shotguns), unauthorized use of a vehicle in the second degree as defined in section 165.06, criminal possession of stolen property in the fourth degree as defined in subdivision one, two, three, five or six of section 165.45, criminal possession of stolen property in the third degree as defined in section 165.50 (except where the property consists of one or more firearms, rifles or shotguns), forgery in the second degree as defined in section 170.10, criminal possession of a forged instrument in the second degree as defined in section 170.25, unlawfully using slugs in the first degree as defined in section 170.60, or an attempt to commit any of the aforementioned offenses if such attempt constitutes a felony offense; or any class D or class E controlled substance or marihuana felony offense as defined in article two hundred twenty or two hundred twenty-one. 6. Upon delivery of the defendant to the reception center, he or she shall be given a copy of the conditions of parole by a representative of the division of parole and shall acknowledge receipt of a copy of the conditions in writing. The conditions shall be established in accordance with article twelve-B of the executive law and the rules and regulations of the division of parole. Thereafter and while the parolee is participating in the intensive drug treatment program provided at the drug treatment campus, the division of parole shall assess the parolee's special needs and shall develop an intensive program of parole supervision that will address the parolee's substance abuse history and which shall include periodic urinalysis testing. Unless inappropriate, such program shall include the provision of treatment services by a community-based substance abuse service provider which has a contract with the division of parole. 7. Upon completion of the drug treatment program at the drug treatment campus, a parolee will be furnished with money, clothing and transportation in a manner consistent with section one hundred twenty-five of the correction law to permit the parolee's travel from the drug treatment campus to the county in which the parolee's supervision will continue. 8. If the parole officer having charge of a person sentenced to parole supervision pursuant to this section has reasonable cause to believe that such person has violated the conditions of his or her parole, the procedures of subdivision three of section two hundred fifty-nine-i of the executive law shall apply to the issuance of a warrant and the conduct of further proceedings; provided, however, that a parole violation warrant issued for a violation committed while the parolee is being supervised at a drug treatment campus shall constitute authority for the immediate placement of the parolee into a correctional facility operated by the department of correctional services, which to the extent practicable shall be reasonably proximate to the place at which the violation occurred, to hold in temporary detention pending completion of the procedures required by subdivision three of section two hundred fifty-nine-i of the executive law. * NB Repealed September 1, 2015 Top of Page
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