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Article 410 - NY Criminal Procedure Law

SENTENCES OF PROBATION, CONDITIONAL DISCHARGE AND 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 office of victim services 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. When
  the  court  receives  a  request  for  a declaration of delinquency by a
  probation officer, it shall make  a  decision  on  such  request  within
  seventy-two  hours  of its receipt of the request. Upon filing a written
  declaration of delinquency, 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 in accordance with  section  410.70  of  this
  article.

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. In the absence of a warrant
  issued pursuant to subdivision two of this section,  where  a  probation
  officer  has  submitted a violation petition and report, the court shall
  promptly consider such petition and, where the court issues a notice  to
  appear,  the  court  shall  direct  that the defendant appear within ten
  business days of the court's order. 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. Where the probation officer has requested that a probation
  warrant be issued, the court shall,  within  seventy-two  hours  of  its
  receipt  of  the  request,  issue  or deny the warrant or take any other
  lawful action including issuance of  a  notice  to  appear  pursuant  to
  subdivision  one  of this section. 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  of  this chapter. 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  of  this  article  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. Where a
  violation of probation petition and report has been filed and the person
  has  not  been  taken  into  custody  nor  has a warrant been issued, an
  initial court appearance shall occur within ten  business  days  of  the
  court's  issuance  of  a  notice  to appear. 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 of this article. 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, or  extend  a  period  of  probation,
  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  pursuant  to this section. 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 within ten business
  days  of the court's issuance of the notice to appear 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.
  Provided further, where the alleged violation is sustained and the court
  continues  or  modifies  the  sentence,  the  court  may also extend the
  remaining period of probation up  to  the  maximum  term  authorized  by
  section  65.00  of  the  penal law. Provided, however, a defendant shall
  receive credit for the time during which he or she was supervised  under
  the  original probation sentence prior to any declaration of delinquency
  and for any time spent in  custody  pursuant  to  this  article  for  an
  alleged violation of probation.

S 410.80 Transfer of supervision of probationers.
   1.  Authority to transfer supervision. Where a probationer at the time
  of sentencing or an interim probationer at the time of the imposition of
  the  period  of  interim  probation  supervision  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 or interim probation
  supervision is pronounced, a probationer or interim 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. (a) Upon completion of transfer of probation 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.
    (i) In transfers involving a defendant  sentenced  to  probation  upon
  conviction  of  a  felony,  the  receiving court served by the probation
  department to which supervision is transferred  shall  be  the  superior
  court within the jurisdiction of the probation department.
    (ii)  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.
    (b)  Where  a  transfer  is  authorized  for  a  defendant  on interim
  probation supervision pursuant to subdivision one of this  section,  the
  sentencing  court shall retain jurisdiction during the period of interim
  probation.  The probation department in the receiving jurisdiction shall
  assume all powers and duties of the original probation department in the
  jurisdiction of the sentencing court.
    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, or a determinate sentence of imprisonment imposed pursuant
  to paragraphs (b) and (d) of subdivision three of section 70.70  of  the
  penal  law,  which may be imposed upon an eligible defendant, as defined
  in subdivision two of this section. If an indeterminate  sentence,  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.  If  a determinate sentence, such sentence shall have a term within
  the ranges specified by subparagraphs (iii) and (iv) of paragraph (b) of
  subdivision three of section 70.70 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  corrections
  and  community  supervision,  in  accordance with section 430.20 of this
  chapter and section 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  department  of
  corrections  and  community  supervision  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 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 other than a class B felony offense defined in
  article two hundred twenty of the penal law, and is not  subject  to  an
  undischarged term of imprisonment.
    3.  When  an  indeterminate or determinate 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.
    ** 5. For the purposes of this section, a "specified  offense"  is  an
  offense  defined  by  any  of the following provisions of the penal law:
  burglary in the third degree as  defined  in  section  140.20,  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, criminal diversion of medical marihuana in
  the first degree as defined in section 179.10 or an  attempt  to  commit
  any  of the aforementioned offenses if such attempt constitutes a felony
  offense; or a class B felony offense  defined  in  article  two  hundred
  twenty  where  a  sentence  is  imposed  pursuant  to  paragraph  (a) of
  subdivision two of section 70.70 of the penal law; or any class C, class
  D or class E controlled substance or marihuana felony offense as defined
  in article two hundred twenty or two hundred twenty-one.
    * NB Effective until July 5, 2021
    ** 5. For the purposes of this section, a "specified  offense"  is  an
  offense  defined  by  any  of the following provisions of the penal law:
  burglary in the third degree as  defined  in  section  140.20,  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
  a  class  B felony offense defined in article two hundred twenty where a
  sentence is imposed pursuant to paragraph  (a)  of  subdivision  two  of
  section  70.70  of  the  penal  law;  or any class C, class D or class E
  controlled substance or marihuana felony offense as defined  in  article
  two hundred twenty or two hundred twenty-one.
    ** NB Effective July 5, 2021
    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 department  of  corrections  and  community  supervision  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 board of parole.
  Thereafter and while the parolee is participating in the intensive  drug
  treatment  program provided at the drug treatment campus, the department
  of corrections and community  supervision  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 department of corrections and community supervision.
    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 corrections and community supervision,
  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, 2017

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