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PETITIONER SEX OFFENDER’S ABSCONDING FROM SUPERVISION IS A NON-TECHNICAL VIOLATION OF PAROLE AUTHORIZING REINCARCERATION FOR 30 MONTHS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined petitioner committed a non-technical violation of his parole (absconding from supervision) for which he could be incarcerated for 30 months. Supreme Court had determined petitioner had committed a technical violation for which he could be incarcerated for only 15 days:

… [P]etitioner was released to postrelease supervision on August 4, 2020. On August 11, 2020, petitioner was charged with violating various conditions of release, including that he not abscond from supervision, and a parole warrant was issued. In March 2021, the Department of Corrections and Community Supervision (hereinafter DOCCS) was advised that petitioner had been arrested and charged with assault. DOCCS then issued a supplemental parole violation notice that included various new violation charges, including that petitioner had committed an assault while on release. In April 2021, a final parole revocation hearing was held during which petitioner pleaded guilty to the charge of absconding from supervision in satisfaction of all the violations with which he was charged. Pursuant to the terms of the agreement, the Administrative Law Judge (hereinafter ALJ) ordered that petitioner be held for 30 months. * * *

… [P]etitioner’s condition of parole prohibiting him from absconding — that he admitted to violating, prescribing petitioner from “intentionally avoiding supervision by failing to maintain contact with my [p]arole [o]fficer and failing to reside at my approved residence” — is in line with the Legislature’s concerns regarding sex offenders released on parole and is also reasonably related to petitioner’s sex offense and efforts to protect the public from the commission of a repeat of that offense so as to warrant classifying him as a non-technical offender under Executive Law § 259 (7) (b). People ex rel. Marrero v Stanford, 2023 NY Slip Op 03964, Third Dept 7-27-23

Practice Point: Under the Less is More Act DOCCS must determine whether a parole violation is technical, allowing only minimal reincarceration, or non-technical, allowing reincarceration up to the balance of the period of post-release supervision. Here the sex offender’s absconding from supervision was deemed a non-technical violation allowing reincarceration for 30 months.

 

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