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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

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