PRO-37-09-00004-A Graduated Sanctions and Violations of Probation

1/6/10 N.Y. St. Reg. PRO-37-09-00004-A

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 1

January 06, 2010

RULE MAKING ACTIVITIES

DIVISION OF PROBATION AND CORRECTIONAL ALTERNATIVES

NOTICE OF ADOPTION

 

I.D No. PRO-37-09-00004-A

Filing No. 1443

Filing Date. Dec. 22, 2009

Effective Date. Mar. 01, 2010

Graduated Sanctions and Violations of Probation

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Repeal of Part 352 and addition of new Part 352 to Title 9 NYCRR.

Statutory authority:

Executive Law, art. 12, section 243

Subject:

Graduated Sanctions and Violations of Probation.

Purpose:

Ensure a more swift, certain and timely response to violative behavior to promote greater accountability and public safety.

Substance of final rule:

This proposed rule revision which repeals 9 NYCRR Part 352 and adds a new Part 352, is the primary work of the Division of Probation and Correctional Alternatives (DPCA) Violations of Probation Rule Revision Workgroup. It integrates current best supervision practices with respect to the handling of violations of probation involving criminal or family court probationers who are not in compliance with their court-ordered conditions of probation. DPCA's recommended regulatory changes revive many principles and procedures contained in a prior violation rule, in effect from 1982 to 1998, because the Workgroup believed numerous features were reflective of good probation practice and ensure greater consistency throughout the state. Other changes better clarify certain points and provide greater detail as to regulatory expectations to safeguard the public and/or victims, ensure offender accountability, and promote greater utilization of graduated sanctions where appropriate. Below is a summary highlighting noteworthy changes.

Section 352.1 Definitions

A new definitions section has been added to foster better understanding as to key operational concepts: absconder; court notification report; declaration of delinquency; graduated sanctions; reasonable cause (with relative to a person has violated a condition of probation; revocation; violation of probation; violation of probation petition and report, and warrant.

Section 352.2 Objective

A new objective section has been added to clarify that the overall intent of the revised rule is multifaceted. Its aim is 1) to promote public safety and offender accountability through prompt and decisive action on the part of probation departments; 2) adopt uniform procedures to direct probation response to non-compliant behavior, and facilitate uniform decision-making, and 3) prioritize the use of graduated sanctions as appropriate and where available.

Section 352.3 Applicability

A new section clarifies the rule's applicability to probation violations in both family and criminal courts.

Section 352.4 Graduated and alternative sanctions

Although this is a new section, many of its provisions exist in the current rule (Section 352.1), albeit, with less specificity.

(a) Similar to the current rule Section 352.1(a), this section requires local directors to establish written policies and procedures for determining the appropriate actions to take with respect to non-compliance with probation conditions. However, these local policies must provide for:

1. newly articulated considerations such as the probationer's history of compliance, gravity of the non-compliant behaviors, dangerousness to self/others, and the presence of victims;

2. newly articulated consideration as to which sanctions might achieve compliance without the need for formal court intervention;

3. similar in concept to current rule Section 352.1(d), the new rule requires the consideration of graduated sanctions with respect to violative behavior;

4. continuation of the current rule Section 352.1(e) requirement that, when a formal Violation Proceeding is being commenced, consideration be given to the viability of continuing the probation sentence with or without modification or extending the probation term. When revocation is being recommended, the department must consider proposing, where applicable, a split sentence.

Section 352.5 Procedures for non-compliant behaviors and/or technical violations in criminal courts and for all violations of probation in family courts

This is a significant new regulatory section that provides defined procedures for responding to non-compliant probationer behaviors while at the same time affording considerable local flexibility.

(a) Procedures for responding to such non-compliant behaviors are as follows:

1. Investigating the alleged non-compliance

i. when a probation officer has reasonable cause to believe a probationer has not complied with the conditions, s/he must commence an investigation;

ii. the investigation shall determine the facts and seriousness of the non-compliance.

2. The facts of the investigation shall be presented to the immediate supervisor;

3. With supervisory approval and pursuant to local policy, one of the following actions is to be taken:

i. Administrative Review. When local policy indicates that court involvement is not necessary, a meeting is held with the probation officer, the offender, and the supervisor/director to discuss the non-compliant behaviors and the probationer's progress in achieving the goals of the case plan;

ii. Judicial Reprimand and/or Modification of conditions. After an Administrative Review, the department may request a court hearing for the purposes of modifying the conditions of probation or judicial reprimand;

iii. If a conclusion is reached that a formal Violation of Probation hearing is appropriate, the Violation of Probation Petition and Report is to be prepared by the Probation Officer, approved by the supervisor and forwarded to the court with a request for a Declaration of Delinquency. The report shall be accompanied by a request for a Notice to Appear or a warrant for arrest of the probationer.

(b) Procedures for technical violations in cases of absconders are as follows:

1. A Violation of Probation Petition and Report with requests that a Declaration of Delinquency and warrant for arrest be filed to ensure greater offender accountability.

2. The probation department shall make reasonable efforts, consistent with local resources, to work with law enforcement agencies to address probation violations and warrants.

Section 352.6 Procedures for new offense violations for criminal supervision cases

This is a new regulatory section which incorporates appropriate steps to undertake and amplify procedures with respect to violations involving new criminal offenses.

(a) Procedures upon a probationer's arrest for a new offense prior to conviction are as follows:

1. Investigating the alleged non-compliance

i. when a probation officer has knowledge of a probationer's arrest, s/he must commence an investigation;

ii. The investigation shall determine the facts and seriousness of the alleged offense

2. The results of the investigation shall be presented to the immediate supervisor.

3. With supervisory approval, one of the following actions is to be taken based upon the nature of the alleged offense and the potential threat of probationer to self or community:

i. Arrest for a violation-level offense. Where any such alleged offense(s) occurred, no action shall be required, unless provided for in local policy, until such time as there is a conviction in which event, other provisions apply.

ii. Arrest for a crime. Where any alleged crime(s) occurred, the probation officer must notify the proper court(s) and provide a brief description of the alleged crimes(s) and the status of the case, no later than seven business days upon learning of an arrest from any source. Information shall be recorded in either a Court Notification Report or Violation of Probation Petition and Report. Either report may request issuance of a Notice to Appear to secure the probationer's appearance before the court. However, where the latter report is filed, it shall be accompanied by a request for a Declaration of Delinquency and either a request for a Notice to Appear or a request for a warrant.

iii. Clarified is the department's responsibility to continue to notify the court of relevant changes in the status of the case.

(b) Procedures upon conviction of a new offense are as follows:

1. Investigating the alleged non-compliance

i. when a probation officer has knowledge of a probationer's conviction of an offense(s) which occurred during the period of probation supervision, he/she must commence an investigation;

ii. the investigation shall determine all relevant facts concerning the new conviction unless this information has been obtained in a prior investigation.

2. The facts of the investigation shall be presented to the immediate supervisor or other probation official;

3. Upon conclusion of the investigation and notification, the probation officer shall file either a Court Notification Report or a Violation of Probation Petition and Report within seven business days of the probation department's knowledge of the conviction.

i. Where the conviction is for a violation-level offense, a Court Notification Report may be filed. A copy of this report shall be retained in the official case record.

ii. Where a Violation of Probation Petition and Report is filed, it shall satisfy the requirement for court notification. Such a report shall be accompanied by a request for a Declaration of Delinquency, if not already granted and either a request for a Notice to Appear or a request for a warrant.

4. In lieu of a recommendation for formal court action, the probation officer, with supervisory approval, may initiate departmental administrative procedures. If issues presented by the conviction can be administratively resolved, the court shall be apprised of the action taken, with a recommendation to the court to allow the probation department to adjust the case administratively.

Section 352.7 Issuance and management of probation warrants and notices to appear

This new regulatory section requires local written policies and procedures which provide greater specificity governing issuance and management of probation warrants than contained in existing DPCA peace officer regulatory provisions (9 NYCRR Section 355.3(d)) and requires that such policies and procedures address notices to appear. Specifically, it requires that such policies and procedures govern the following:

1. circumstances to be considered relative to recommendations of Notices to Appear and warrants,

2. timely preparation and delivery to the appropriate court and where necessary, follow-up communication and documentation of the court's response to such requests,

3. Where the probation department is the holder of warrants involving probationer rearrests:

i. a process that ensures chronological tracking of all warrants from the request, through issuance, receipt at the department, entry into the State's Wanted/Missing Persons file system, intradepartmental chain of responsibility, execution, and as appropriate cancellation. Clarified is that such procedures comply with electronic posting of warrants required by the Division of Criminal Justice Services and issued by the National Crime Information Center;

ii. a process that ensures timely entry of warrants and removal of warrants in compliance with electronic posting requirements and updating of information in DPCA's Integrated Probation Registrant System.

4. Where other law enforcement agencies enter and hold warrants for arrest of probationers, the written policy must clearly delineate the department's responsibility as to issuance, tracking, execution, and cancellation of warrants for arrest. Such policy shall not inhibit the entering/holding agency's ability to comply with aforementioned electronic posting regulations

Section 352.8 Supervision during a violation proceeding

This new regulatory section clarifies existing law that requires probation supervision to be continued while a Violation of Probation proceeding is pending before the sentencing/dispositional court, as there has been confusion regarding the role of probation during these proceedings, especially when a Declaration of Delinquency has been issued by the court.

Section 352.9 Notification of court upon probationer's failure to complete alcohol or substance abuse treatment program

Although a new separate regulatory section, it reflects existing regulatory language (Section 352.1(c)) which is based upon statutory language found in Executive Law Section 257(4-a). To optimize compliance, DPCA has retained regulatory language in this area which requires prompt probation officer notification to the director of probation where a probationer ceases participation or is terminated from an alcohol or substance abuse program and subsequent probation director notification to the court within ninety days where such probationer does not resume participation in a program approved by the director.

Final rule as compared with last published rule:

Nonsubstantive changes were made in sections 352.1(a), (i), 352.4(a), (3), (4), 352.6(3)(ii), (b) and 352.7(a)(1).

Text of rule and any required statements and analyses may be obtained from:

Linda J. Valenti, NYS Division of Probation and Correctional Alternatives, 80 Wolf Road - Suite 501, Albany, New York 12205, [phone], email: [e-mail]

Summary of Revised Regulatory Impact Statement

In the Statutory authority section, the Division of Probation and Correctional Alternatives (DPCA) cites Executive Law Section 243 as the statutory authority behind our agency promulgating a regulation in the area of violations of probation and graduated sanctions.

The Legislative objectives section expresses that these amendments are consistent with legislative intent that the State Director of Probation and Correctional Alternatives adopt regulations relating to critical probation functions and promote professional standards governing administration of probation services to ensure offender accountability and advance public/victim safety. Further detail is provided as to the rationale behind these regulatory changes.

The Needs and benefits section summarizes the needs served and benefits achieved by the proposed regulatory changes including but not limited to clarifying departmental responsibilities, implementing more standardized practices, incorporating model probation practices, and ensuring greater efficiency and consistency through specific requirements and general guidance. It highlights certain procedural requirements. Its aim is 1) to promote public safety and offender accountability through prompt and decisive action on the part of probation departments; 2) adopt uniform procedures to control probation response to non-compliant behavior, and facilitate uniform decision-making, and 3) prioritize the use of graduated sanctions as appropriate and where available.

In the Costs section, DPCA conveys that we do not foresee these reforms will lead to significant additional costs to local probation departments or DPCA. The reasoning behind our agency position is set forth.

Under the Local government mandates section, DPCA discusses certain aspects of the existing violation rule and the proposed rule in terms of any additional requirements and explains our justification as to particular new requirements. Additionally, this section explains that proposed changes provide local departments some flexibility and allow departments to create specific procedures that are narrowly tailored to their needs.

The Paperwork section explains that no additional State forms will be required by the proposed regulatory amendments. It further points out that the particular violation reports that the rule refers to are used currently by probation departments. This section also observes that existing DPCA rules require written policies and procedures in the area governing graduated sanctions and warrants, and the proposed changes will require probation departments to review and update such written procedures.

The Duplication section reiterates that the proposed rule does not conflict with any State or federal statute/regulation.

The Alternatives section sets forth why no rule in this area is not a viable option and the reasoning behind strengthening the existing violation of probation rule. Additionally, this section provides details as to DPCA's formation of a workgroup of state and local probation professionals, that the agency circulated two drafts to all probation departments to maximize professional input, and our efforts and responses to issues raised by the New York City Department of Probation (NYCDOP) and the Council of Probation Administrators (COPA) throughout the rule making process. Such efforts included satisfactorily working out certain regulatory language to address issues with respect to absconders, providing greater flexibility where appropriate, and more recent communication and discussion with both during and after the public comment period, which led to some additional technical changes, non-substantive in nature, to clarify and address mutual concerns.

The Federal standards section states that there are no federal standards governing the probation violation process.

Lastly, the Compliance schedule section concludes that DPCA believes that these regulatory changes will not prove difficult to achieve and that the regulatory amendments will be effective on March 1, 2010.

Revised Regulatory Flexibility Analysis

1. Effect of the Rule: No small business record keeping requirements, needed professional services, or compliance requirements will be imposed on small businesses, but the proposed rule does have a direct impact on local governments. There are 58 local probation departments in New York State and this rule applies to all of them.

2. Compliance Requirements: The proposed rule strengthens procedural requirements and improves probation practices. It should not impose significant additional requirements for local probation departments because many of these requirements already exist in law and regulations. For example, Executive Law Section 257 (4-a) requires probation to notify the court under specific circumstances when a probationer ceases to participate or is unsuccessfully terminated from an alcohol or substance abuse program. Criminal Procedure Law Section 410.50 requires probation to supervise a defendant throughout the period of supervision. Current DPCA peace officer regulations require probation directors to have peace officer policies as to entry and cancellation of warrants and reciprocal notification. DPCA's existing violation rule requires, unless the court directs otherwise, court notification of conviction of a crime, significant violation, or absconder status within seven (7) business days of knowledge of such information. This rule additionally requires probation to have local written procedures as to the handling of new offense and technical violations and court notification of alleged violations and these procedures must include graduated sanctions. Further, prior to recommending a revocation of probation, such sanctions must be considered.

Also, many of the proposals are best practices and most local departments are currently implementing these practices. For example, many routinely investigate non-compliant behavior and/or any arrest to determine whether there is an alleged violation of probation, timely request declaration of delinquencies and warrants, and have implemented a graduated sanctions approach to the department's handling of non-compliant behavior prior to recommending formal court response to violations of probation. There are no current reporting requirements to the Division of Probation and Correctional Alternatives (DPCA) associated with this new rule. While the proposed rule specifies certain circumstances under which a Court Notification Report or Violation of Probation Petition and Report shall be issued and when a request for a Declaration of Delinquency, Notice to Appear, or a warrant for arrest shall be made, it also provides local departments some flexibility in this area.

Although one already existing form (Declaration of Delinquency) is expected to be completed more frequently, over 50 of the 58 local probation departments use software assisted caseload management systems that automatically create and fill-in the form using information from the case database. While this new rule requires that written local policies and procedures be adopted in the area of graduated sanctions and the issuance and management of warrants for the arrest of probationers and notices to appear, all departments already have written policies pursuant to existing DPCA regulatory requirements. New language in the area of probation supervision and the response to probationers' failure to abide by court-ordered conditions of probation are normal business activities.

3. Professional Services: No professional services are required to comply with the rule.

4. Compliance Costs: DPCA does not foresee these reforms leading to significant additional costs. The majority of local probation departments have institutionalized most of the features of our prior rule (repealed in 1998) in their local violation policies and procedures. Many of our proposed changes restore these practices to regulation. As to any anticipated costs of in-service training of staff, DPCA believes that orientation can be readily accomplished through written memoranda and supervisory oversight. Other procedural changes where necessary may require internal re-examination of probation professional job responsibilities and revision of existing violation and peace officer policies. This should be able to be accomplished without additional staff resources and through reassignment of certain staff to ensure rule compliance.

DPCA does not foresee that these regulatory reforms will lead to staffing increases or additional costs to local probation departments. Any minimal costs including staff time to revise any local procedures in this area are outweighed by the significant benefits of greater offender accountability and increased public/victim safety interests.

5. Economic and Technological Feasibility: Caseload management technology, while not required, would enhance data collection and tracking. As part of DPCA's efforts to streamline recordkeeping, avoid duplication and achieve cost savings, DPCA has supported the deployment of web-based case management software known as Caseload Explorer. Approximately 44 of the 58 local probation departments utilize or intend to utilize this software in the near future. Additionally, 13 other probation departments use similar software to achieve record-keeping cost efficiencies. These computer software systems facilitate timely generation of forms and reports, improve access to probationer specific case information and status, and assist in the department's management of warrants. The one remaining probation department is rural and its caseloads are extremely small. It uses a manual case management system and should not incur costs in connection with these regulatory revisions. This rule can be implemented using existing technology that all 58 local probation departments already have as all probation departments have access to and are required to input certain probationer specific information, including information regarding violations, into a statewide database referred to as the Integrated Probation Registrant System (I-PRS). This system is hosted by the New York State Division of Criminal Justice Services. Although the localities incur an expense for maintaining internet connectivity with this service there is no other usage costs and the proposed rule will have no impact on connectivity costs. All but one department have elected to purchase software assisted case management systems (such as Caseload Explorer) which assists with day-to-day department operations. Approximately 47 departments will have the capacity for their local case management system to electronically interface with the statewide I-PRS and automatically update I-PRS with probationer specific information. This will eliminate the double entry of data currently performed by these departments. Non-Caseload Explorer departments may elect, at local costs, to revise their software to take advantage of this DPCA supported interface or they may elect to purchase Caseload Explorer which will have that data exchange capability.

6. Minimizing Adverse Impact: DPCA prepared this new rule with the participation of local probation professionals throughout the state and circulated two drafts with opportunity for comment. Some of the recommended changes approved to minimize adverse impact were replacement of "48-hour" language regarding warrant issuance or cancellation to "comply with NCIC requirements" and elimination of the requirement for local directors to establish written procedural agreements with law enforcement agencies and courts regarding the handling of warrants. Additionally to address earlier NYC concerns, DPCA eliminated certain language with respect to follow up action as to absconders that its department found problematic and at that time reached agreement with NYC and COPA on replacement language that now establishes that each probation department shall make reasonable efforts, consistent with local resources, to work with law enforcement agencies to address probation violations and warrants. It is recognized that this new language takes into consideration the availability of local resources and provides sufficient flexibility in this area for departments so as not to prove burdensome. Due to subsequent change in leadership with both entities, further comments were received by both. A December 2009 meeting with their representatives led to DPCA making non-substantive technical amendments which addressed all of COPA's issues and several of NYC. However, DPCA finds the remaining NYC issues are not in the best interest of the field of probation, not consistent with law or good probation practice, and/or do not advance public/victim safety or offender accountability.

7. Small Business and Local Government Participation: DPCA created a workgroup to initially draft a revised violation rule. This workgroup was comprised of representatives from departments across the state and various levels of staffing including: director, deputy director, supervisor, and senior probation officer and specifically representation from various size probation departments, including NYC. DPCA circulated two refined drafts to the members of the State Probation Commission, all probation directors/commissioners, the Council of Probation Administrators (COPA)--the statewide professional association of probation administrators which in turn, assigned it to a specific committee for review. DPCA incorporated numerous suggestions and sought to clarify several additional issues raised, providing flexibility in certain instances. DPCA communicated verbally and in writing with both entities and shared recent communication with NYC with all probation departments. Recently, DPCA met with both COPA and NYC representatives to discuss further issues raised. Throughout the process additional refinements were made to address certain COPA and NYC concerns. Consensus has been reached by COPA on content. Further, the State Probation Commission previously met and endorsed proposed regulatory changes.

Revised Rural Area Flexibility Analysis

1. Types and estimated number of rural areas:

Forty of the 57 local probation departments outside of New York City are located in rural areas and will be affected by the rule amendments.

2. Reporting, recordkeeping, and other compliance requirements, and professional services:

The proposed rule strengthens procedural requirements and improves probation practice, yet should not impose significant additional local probation costs. There are no current reporting requirements to the Division of Probation and Correctional Alternatives (DPCA) associated with this new rule. While the new rule specifies certain circumstances under which a Court Notification Report or Violation of Probation Petition and Report shall be issued and when a request for a Declaration of Delinquency, Notice to Appear, or a warrant for arrest shall be made, it also provides some flexibility in this area. Our proposed revisions are consistent with good professional practice and have been widely accepted by probation departments across the state, including rural areas.

Although one already existing form (Declaration of Delinquency) is expected to be completed more frequently, over 50 departments use software assisted caseload management systems that automatically create and fill-in the form using information from the case database. While this new rule requires more specific written local policies and procedures be adopted in the area of graduated sanctions and the issuance and management of warrants for the arrest of probationers and notices to appear, DPCA's existing rule already requires language as to graduated sanctions be included in local procedures. Further, DPCA's existing Peace Officer Rule, 9 NYCRR Part 355, already contains language as to local peace officer policies and procedures and requires among other provisions, reciprocal notification and cancellation of violation of probation warrants. The peace officer rule provides the more general framework in the area of warrants and the proposed rule addresses this with more specificity to ensure uniform practice as to the violation and warrant process. New language in the area of probation supervision and the response to probationers' failure to abide by court-ordered conditions of probation are normal business activities.

3. Costs:

As part of DPCA's efforts to streamline recordkeeping, avoid duplication and achieve cost savings, DPCA has supported the deployment of web-based case management software known as Caseload Explorer. Approximately forty-four probation departments utilize or intend to utilize this software in the near future and many rural counties benefit from this software. Additionally, thirteen other probation departments use similar software to achieve record-keeping cost efficiencies. The one remaining probation department is rural and caseloads are extremely small. It uses a manual case management system and should not incur costs in connection with these regulatory revisions.

All probation departments have access to and are required to input certain probationer specific information, including information regarding violations, into a statewide database referred to as the Integrated Probation Registrant System (I-PRS). This system is hosted by the New York State Division of Criminal Justice Services. Although the localities incur an expense for maintaining internet connectivity with this service there are no other usage costs and the proposed rule will have no impact on connectivity costs. All but one department have elected to purchase a software assisted case management system (such as Caseload Explorer) which assists with day-to-day department operations. Approximately 47 departments will have the capacity for their local case management system to electronically interface with the statewide I-PRS and automatically update I-PRS with probationer specific information. This will eliminate the double entry of data currently performed by these departments. Non-Caseload Explorer departments may elect, at local costs, to revise their software to take advantage of this DPCA supported interface or they may elect to purchase Caseload Explorer which will have that data exchange capability.

These changes denote specific requirements of effective probation supervision and the response to probationer failure to abide by court-ordered conditions. Any anticipated costs of training staff can be readily accomplished through memoranda, in-service training sessions, and supervision. Other procedural changes may require internal re-examination of probation professional job responsibilities and revision of existing violation and peace officer policies. This should be able to be accomplished without additional staff resources and through reassignment of certain staff to ensure rule compliance. DPCA does not foresee that these regulatory reforms will lead to staffing increases or additional costs to rural probation departments. Clearly, any minimal costs incurred, including staff time to revise any local procedures in this area, will be strongly outweighed by the significant benefits of increased public safety interests and offender accountability measures in rural communities.

4. Minimizing adverse impact:

DPCA does not anticipate that these regulatory amendments will have any adverse impact on rural areas.

5. Rural area participation:

These revisions were developed by a DPCA working committee comprised of agency staff and representatives from eight local probation departments including all geographic regions of the state. Rural departments and officers involving various levels of probation staff, including directors, deputy directors, probation supervisors, and senior probation officers were part of this committee. Several of the rural probation departments that were part of DPCA's Warrant and Violation Workgroup provided positive feedback on prior drafts. DPCA circulated drafts to all probation directors/commissioners, the members of the State Probation Commission, and the Council of Probation Administrators (COPA)--the statewide professional association of probation administrators. COPA also referred our proposed rule to its Program and Research Committee (PARC), which includes representatives from rural communities for review. DPCA has discussed earlier proposed regulatory changes with COPA's Executive Committee, which includes a cross-section of urban, rural, and suburban jurisdictions and COPA twice assigned this proposed rule to an internal committee for review comprised of a cross-section of urban, rural and suburban jurisdictions. DPCA recently met with COPA to discuss remaining issues of a technical nature and the final version incorporates their suggestions.

The proposed regulatory amendments incorporate many verbal and written suggestions from probation professionals, including rural entities, across the state to address problems and situations which probation departments encounter when responding to non-compliant behaviors. The proposed rule has been embraced by the overwhelming majority of probation departments, which welcome the return of procedural specificity that existed in prior rule. DPCA heard from many probation professionals that this rule is not a significant departure from what departments have instituted in their practices In general, DPCA did not find significant differences between urban, rural, and suburban jurisdictions as to issues raised or suggestions for change.

Revised Job Impact Statement

A job impact statement is not being submitted with these proposed regulations because it will have no adverse effect on private or public jobs or employment opportunities. The revisions are procedural in nature. They update violation of probation procedures to ensure appropriate investigative activities as well as supervisory and/or court notification occurs where there is probationer noncompliance.

Assessment of Public Comment

The Division of Probation and Correctional Alternatives (DPCA) received an original and a revised written comment relative to the proposed regulatory revision to Part 352 governing graduated sanctions and violations of probation during the official public comment period from the New York City Department of Probation (NYCDOP). Subsequently, DPCA received another revised comment from NYCDOP and a written request by the Council of Probation Administrators (COPA) to extend the time period to provide their organization additional time to respond. NYCDOP also sought to extend the comment period. This was unanticipated as DPCA had formed a Rule Workgroup comprised of a cross section of probation departments which included COPA and NYCDOP representatives, conducted 60 and 45-day informal reviews with directors and because DPCA previously reached agreement with NYCDOP and COPA on the proposed rule which was submitted. However, a recent leadership change with respect to both had occurred. The State Director of Probation and Correctional Alternatives responded in writing to NYCDOP in detail as to their issues and shared our comments with all probation departments. Thereafter, DPCA received a COPA written response as to some remaining issues that were technical in nature. DPCA held a December 1, 2009 meeting with COPA and NYCDOP representatives to openly discuss the proposed rule and rationale and more fully hear and consider their respective views. Prior to this meeting, the State Director verbally communicated with approximately forty (40) probation directors and received unanimous positive feedback and as DPCA Counsel, I separately spoke to Albany County and St. Lawrence County Probation Directors to gain insight as to their professional views on proposed rule content and any suggested recommendations. Additionally, DPCA received favorable written communication from the Tioga County Probation Department, Onondaga County Probation Department, and Rockland County Probation Department that our proposed rule was reasonable with only one technical suggestion sought by Rockland to clarify particular absconder language. All comments were carefully weighed and the December meeting proved beneficial in mutually working out minor amendments which would clarify and/or address certain COPA and NYCDOP issues. A summary of issues by Rule sections and agreed upon amendments made follow:

In Rule Section 352.1 DPCA agreed to modify the "absconder" definition as there was concern as it being overbroad. DPCA incorporated COPA language "with the intent to evade supervision" to better clarify our original regulatory intent. DPCA further added a new "warrant" definition to avoid any uncertainty on NYCDOP's part that this regulatory term refers to a violation of probation or probation warrant heretofore reflected in law and that both terms are synonymous with one another. In Rule Section 352.4 DPCA agreed to remove the word "any" with respect to probation director's establishing a written policy and procedure with respect to non-compliance with probation because of concern raised that a local probation director would have to create a policy and procedure for every contingency. Clearly, that was neither DPCA's nor the Rule's Workgroup's intent. DPCA also agreed to remove the sentence that "[T]he use of these graduated sanctions shall be prescribed in local policy in such a manner as to ensure they are applied fairly, and consistently, soon after the non-compliant behaviors, proportionately to the severity of the non-compliant behavior and in a predictable manner" after more fully hearing their concerns as to potential difficulty in quantifying performance measures in this area. Moreover, as written local policy and procedures with respect to graduated sanctions are continued and specific regulatory criteria and procedures are delineated in more detail, DPCA believes that such will facilitate uniform decision-making without the need of this sentence. Additionally, DPCA did agree to re-examine reference to violations of probation with respect to graduated sanctions and streamlined language in this area to be more consistent with our intent and avoid redundancy in other provisions.

In Rule Section 352.6 DPCA modified language as to what triggers notifying the court with respect to an arrest involving a crime, due to some expressing concern with the language "upon learning of an arrest from any source" being too problematic. Substituted language now requires notification "upon learning and confirming that an arrest has been made". Additionally for similar reasons, DPCA removed the word "any" relative to probation providing court notification of relevant changes in the status of the case. Lastly, in Rule Section 352.7 DPCA simplified language as to local policies with respect to warrants and notices to appear to be clearer as to our intent and avoid potential confusion.

A productive dialogue as to these and other issues raised by COPA, and DPCA's position and agreement as to interpretation with respect to Declaration of Delinquency (DOD), warrants, significant violation, reasonable efforts, has resulted in COPA being satisfied with final rule content. As Albany and St. Lawrence County Probation Departments verbally raised similar issues, their issues likewise appear addressed.

There were certain additional objections raised by NYCDOP which DPCA discounts as being unnecessary, unreasonable, and not in the best interest of public/victim safety nor reflective of good probation practice or pertinent law. It should be noted that in months preceding the proposed rule submission, the Workgroup weighed NYC issues and DPCA twice responded in writing in March and October 2008 to their same objections and subsequently NYCDOP verbally withdrew its objections. DPCA again responded in November 2009 after receiving their last written communication to these and additional comments from their new Acting Director. However, the following is a brief synopsis of other remaining issues raised and DPCA's response:

DPCA disagrees with NYCDOP's rationale which led to its request to eliminate establishment of written policies and procedures in this area including those addressing when other law enforcement agencies hold or enter warrants for the arrest of probationers, and those delineating the department's responsibility as to the issuance, tracking, execution, and cancellation of warrants. DPCA does not view such policies as “unnecessary”, “burdensome” or “impractical”. Their stance also ignores its supervisory responsibility over NYC probationers until expiration or termination of their sentence/disposition and other statutory and regulatory provisions. Our regulatory language is consistent with DPCA's existing Peace Officer regulatory provisions, 9 NYCRR § 355.3(d) , which require that departments have written policies and procedures with respect to warrants which include reciprocal notification of issuance, execution and cancellation of violation of probation warrants to and from the department and the local law enforcement agency. Regulatory language which requires departments to have written policies describing how warrants are processed and which parties are responsible for certain actions is appropriate and necessary to clarify professional responsibilities, avoid confusion among staff, ensure reciprocal notification occurs on a timely basis, probation staff adherence to regulatory requirements and any other local decision-making in this area and to avoid potential allegations as to inconsistency and arbitrary and/or discriminatory treatment of similar cases. DPCA has provided considerable flexibility to probation departments in terms of their respective policies and significantly has not heard objection from any other probation department as to its content. Written policies and procedures promote a professional response and help better coordinate service delivery and avoid unintended results caused by omissions. NYCDOP's specific request that certain other regulatory language be eliminated as to issuance, tracking of and DCJS notification of warrants is misplaced as it solely refers to when probation departments are the "holder of warrants for the arrest of probationers". As NYCDOP does not hold such warrants, it is not applicable to them. However, their claim that NYCDOP absconders are the responsibility of the NYC Police Department are inconsistent with law and their supervisory responsibility and does not absolve them of having critical policies and procedures. Notably, DPCA's aforementioned existing Peace Officer regulatory provisions require that departments have written peace officer policies and procedures with respect to arrests and warrants and sets forth specific parameters, including among other things “when and under what conditions such officers may carry out arrest, search and seizure functions and execute warrants” , with respect to “reciprocal notification of issuance, execution and cancellation of violation of probation warrants to and from the department and the local law enforcement agency involved in the execution of the warrant; and (2) the entrance and cancellation of all violation of probation warrants into the Division of Probation and Correctional Alternatives registrant system computer file and the Division of Criminal Justice Services wanted/missing person file”, and "documentation from the probation officer regarding the circumstances surrounding the execution of an arrest, a warrant …“ (see Rule § 355.3(a) (3), (d), and (e)). Criminal Procedure Law § 410.40(2) also clearly recognizes the court ”may issue a warrant to a police officer or to an appropriate peace officer” and later in the same statutory section, it twice refers to where "the warrant is addressed to a police officer or appropriate probation officer certified as a peace officer…“ DPCA recognizes that many probation departments have arrangements with other law enforcement agencies to execute or assist probation officers execute probation warrants, but probation departments may not refuse to execute a probation warrant addressed to their probation department. Significantly, DPCA has a warrant enforcement activity which is required in order for any jurisdiction to receive payment under our agency Enhanced Supervision of Sex Offender (ESSO) contracts. Probation directors have a legal responsibility to ensure that peace officer policies are in conformity with state law and DPCA regulations. Overall, the proposed rule revision with respect to tracking of warrants expands upon this peace officer policy regulatory requirement in order to ensure greater accountability and promote safety, thereby avoiding tragic consequences which have occurred in the recent past. Probation departments as the supervisory agency still must maintain proper procedures with respect to warrants and cannot absolve themselves of responsibility in this area.

NYCDOP's objection as to DPCA's regulatory language recognizing that a violation of probation can be prepared for the purpose of recommending that a court impose graduated sanctions is unfounded. DPCA's current rule in this area, specifically Rule § 352.1(d), requires that a probation department have violation of probation procedures which provide for graduated sanctions. DPCA has maintained the flexibility of probation departments to utilize certain graduated sanctions; however, we are constrained by state law to empower probation directors to impose all graduated sanctions, such as a split sentence of probation or modification of probation conditions. NYCDOP also commented that "corresponding time frames, should be left to the discretion of the local probation agencies". Our regulatory provision in this area makes no specific reference to timeframes. However, as swift and certain response to violative behavior is a critical monitoring strategy which is supported by research and probation professionals throughout the nation, DPCA has reinforced in other provisions of this proposed rule specific necessary timeframes with respect to handling of particular alleged non-compliant behavior, and there is flexibility for probation departments in their respective policies to impose certain other timeframes relative to other actions.

NYDOP also continues to raise past objections with court notification claiming that it is both duplicative and impractical and that most judges do not want such information, despite the fact the department admitted in writing that it “hand-delivers arrest notifications to the judges in New York City...” and it has never provided documentation to DPCA of judicial support of their position. Requiring probation departments notify Judges of misdemeanor and felony re-arrests of probationers is an important and reasonable expectation and one that directly impacts offender accountability. Our Workgroup recommended and DPCA concurred that such notification can greatly assist probation in scheduling future court appearances as appropriate and facilitating a prompt judicial response to modify conditions, and issue a DOD and/or warrant. Further, DPCA acknowledges that judicial interest in learning of the rearrests of persons they sentence to probation supervision was often repeated by the representative Judges participating on the recent Office of Court Administration Task Force on the Future of Probation. DPCA believes that the reported and unsubstantiated desires of some members of the judiciary as represented by the NYCDOP, should not determine a statewide probation practice, especially because the overwhelming majority of probation directors recognize judicial notification of particular probationer non-compliance and such re-arrests are essential to offender accountability and in the larger sense, community safety.

DPCA is troubled with NYCDOP's renewal of a past objection that requires the probation officer to investigate any arrest and provide supervisory notification as being “not practical on administrative caseloads which account for 65% of New York City probationers” and their claim that it would be an “unfunded mandate”. Our Rule Workgroup had NYCDOP executive and legal representation and it was openly discussed the importance of such actions are critical to the responsibility of probation departments. NYCDOP's stance was viewed inconsistent with the probation department's supervisory responsibility to monitor the terms and conditions of individuals released to probation supervision. Probation departments cannot absolve themselves of any responsibility to investigate the arrests of any probationers in an administrative caseload. To take no action upon knowledge of arrests would expose a department to potential liability especially with respect to negligence. DPCA has retained considerable discretion within probation as to ultimate handling of new arrests, yet views it as essential that a probation officer investigate any arrest and bring it to the attention to his/her supervisor or other probation official so that appropriate follow-up action occurs consistent with state law, regulation, and local policies and procedures. Further, DPCA believes there is an inconsistency, as NYCDOP reportedly does provide some notification to the court of arrests of a probationer, but claims it does not notify supervisory staff.

NYCDOP also renews a past objection to notifying the court within 7 business days of the department receiving knowledge of a probationer's conviction for a new offense and requests elimination of this requirement because of its belief that “[N]either probation departments nor the courts need to be unduly burdened by this needless requirement” and that it “undermines the purposes and efficacy of graduated sanctions and the utility of Administrative hearings.”. Notably, DPCA's existing Violations of Probation rule for ten years has required that, in the absence of court direction, that court notification occur upon a probation department's knowledge of conviction of a crime within such time period. NYC has never requested a DPCA waiver claiming that this requirement was burdensome and has admitted that electronic notification occurs. Further, not all graduated sanctions can occur without judicial intervention (see Criminal Procedure Law § § 410.20 and 410.70(5). DPCA does provide considerable flexibility as to whether a violation of probation will be instituted when a conviction occurs and recognizes the utilization of graduated sanctions. DPCA has previously relayed that ”…. The proposed rule does not exclude use of Administrative Hearings; in fact, it embraces and encourages their use. However, acts leading to criminal convictions while under probation supervision are clearly actions that violate a basic condition of probation. DPCA and the Workgroup have taken the position that, ultimately, the sentencing court decides if a behavior violates the intent of the court order. However, the court cannot make such a determination if it is not given the information." Court notification is appropriate to protect the interests of the public and victims, hold offenders accountable and safeguard the interests of probation departments. Court notification can greatly assist probation in scheduling future court appearances with the court as appropriate and facilitating a prompt judicial response to modify conditions, and issue a DOD and/or warrant. DPCA surmised that “failure to notify the sentencing court of actions the department has taken to sanction a repeat offender would seem to denigrate the authority and responsibility of the court”. Remarkably, NYCDOP also now contends that our proposed rule relative to absconders does not define “reasonable efforts” or “consistent with local resources”, despite the fact that DPCA previously received agreement from NYCDOP and COPA that this language was preferable and would provide greater flexibility in this area and acknowledges resource limitations. In our December meeting and discussion on this point, COPA appeared satisfied with this terminology and with our stance not to define such language. As this language has overwhelming support from probation departments and the field of probation and in light of DPCA's concerted effort to reach general consensus, our agency does not believe it is necessary to make further modification in this area.

NYCDOP's latest written request which recommends that DPCA withdraw this proposed rule would negate the work of numerous probation professionals who have tirelessly sought to improve the rule to better safeguard the public, victims, and achieve greater offender accountability and achieve greater consistency so as to minimize disparate practices. As to NYCDOP's concerns as to whether this proposed rule comports with Governor David A. Paterson's Executive Order No. 17, DPCA has complied with its provisions. Executive Order 17 is intended to address and prevent the furtherance of unfunded mandates being placed on localities, particularly in view of the current fiscal situation. This executive order is not intended to prevent the State and localities from implementing public health or public safety initiatives which serve to protect the lives and welfare of New Yorkers. Accordingly, DPCA has worked closely over the last six months with the Deputy Secretary for Public Safety, the Governor's Counsel, the Governor's Office of Regulatory Reform and the Office of Taxpayer Accountability in fully meeting the requirements of this order.

In summary, there was overwhelming support to strengthen the current rule in this area and provide for more consistency in practice across the state. Significantly, the proposed rule revisions has updated DPCA's current rule to carefully balance probation management flexibility with the overarching need for greater offender and service accountability and promoting public and victim safety. DPCA has received resounding favorable support from the field of probation in New York State that this revised rule was manageable and consistent with good professional practice. DPCA and the Workgroup which helped develop this proposed rule carefully reviewed comments received and made numerous revisions to provide greater local flexibility and reflect sound management operations in this area. DPCA further collaborated in incorporating minor technical amendments, non-substantive in nature, recently suggested by COPA and some probation departments, including NYCDOP to improve the rule's content and facilitate compliance. As to NYCDOP concerns with certain regulatory content, there remains some fundamental differences which DPCA as the state oversight agency of probation services differs with, and which we have not endorsed as it would be antithetical to the objectives of the rule and would undermine community corrections. A well-reasoned waiver request to DPCA is a regulatory avenue that can be explored and would be available for any probation department to pursue should greater flexibility be sought and justified and DPCA ultimately determines that the interests of public safety are not compromised. Lastly, Chapter 652 of the Laws of 2008 was a departmental legislative proposal of DPCA which received support from probation departments, including NYCDOP because of its emphasis on a swift and certain response to violative behavior and ensuring that court's take a more expedient and proactive role in addressing violations of probation. This new law took effect November 1, 2009 and was designed to increase offender accountability and judicial responsivity by establishing statutory timeframes for Judges to respond to Probation Declarations of Delinquency and where appropriate, issue warrants (72 hours) and in convening Probation Violation Hearings (10 business days). Probation Departments throughout New York State, including the NYCDOP supported this landmark new law. It is consistent with this new law to have sound and reasonable state probation regulatory provisions which promote minimum standards as to violations of probation throughout the state. This proposed rule is a critical component to this Chapter and will positively strengthen probation and change how many probationers and the public perceive probation supervision.