Release and return.
(2) Supervision of furlough, leave of absence
and short-term community services leave.
(i)
Section
852(5) of the Correction
Law requires that all inmates participating in temporary release programs be
supervised by parole officers.
(ii)
Inmates who are already under the supervision of a parole officer in a work
release, educational release, long-term community services leave, or other
continuous temporary release programs are deemed to be also under the
continuous supervision of this same parole officer for furlough supervision
purposes and are not subject to the furlough supervision guidelines described
in this paragraph. Instead, these inmates are the subject to a special
supervision category described in Part 1903 of this Title.
(iii) Inmates who are not in any type of
continuous temporary release program and are not already under the supervision
of a parole officer shall be subject to the furlough supervision guidelines
described in this paragraph.
(iv)
Each inmate shall be explicitly instructed by the temporary release committee
chairperson or his designee of his or her reporting obligations prior to
leaving the facility.
(v) Failure
to comply with these requirements shall subject an inmate to disciplinary
penalties and shall be seriously considered upon any subsequent temporary
release application.
(vi) The
facility is to include on the inmate's release papers the address and telephone
number of the area parole office which the inmate is to contact.
(vii) The inmate is to be informed that he or
she is to call the reception desk at that area office the first weekday he is
at home and shall follow any directions given him by the area parole office
personnel.
(viii) No inmate may be
released unless provision is made as stated in this paragraph, or in a
commensurate manner for the inmate to contact an area parole office.
(ix) The staff person at the reception desk
in the area office will verify the inmate's arrival and residence.
(x) Special arrangements or waiver of the
requirements of this paragraph may have to be made by the area office, if the
inmate is living in a rural area or is in the area for a very short period of
time and is unable to get to either the area office or the nearest reporting
station.
(xi) In New York City, all
reports and telephone calls are to be made to the Division of Parole, 314 West
40th Street, and not to the Bronx substation.
(xii) Within one week of the termination of
the temporary release, the area office will submit a report to the facility
detailing its contacts with the inmate.
(xiii) In the event that an inmate on whom
the area office has received a form 4186 (TRP-8) fails to contact the area
office, or fails to keep his or her appointment for reporting to the area
office, the area office shall notify the facility of such failure as soon as
practicable; when necessary, delinquency action will be taken.
(xiv) In the event the parole officer becomes
aware of an inmate's arrest or behavior which has caused concern in the
community, the parole office will advise the facility of the inmate's
delinquency through a memorandum outlining the facts of the case, with a copy
sent to the director of temporary release programs as soon as
possible.
(xv) Any further reports
will be requested through the institutional parole office, which will issue a
form IS-2 to the parole field office.
(3) Evaluation on return. After the inmate's
release and subsequent return to the facility, his participation in temporary
release shall be evaluated. Late returns or returns under the influence of
drugs and alcohol and other program violations shall be noted on the inmate's
temporary release record and referred for disciplinary action where
appropriate. In the event of a failure, form 4132 will be used, with copies
appropriately distributed.
(i) Lateness. The
rules governing late returns to the facility are as follows:
(a) An inmate is late if he or she has not
returned to the facility by the time he or she was due.
(b) Inmates who are late:
(1) lose 2 points pursuant to section
1900.4(e)(2)(v)
of this Title; and
(2) shall be
subject to disciplinary action and penalties, including loss of privileges,
keeplock and special housing, and the temporary release committee may take time
from the next furlough at the rate of three hours for every hour or part of an
hour they are late.
(c)
Inmates who are late with an excuse shall be subject to disciplinary action and
penalties, including loss of privileges, keeplock and special housing, and the
temporary release committee may take time from the next furlough at the rate of
three hours for every hour or part of an hour they are late.
(d) If an inmate does not return to the
facility by the time he is due because of delays in public transportation
beyond his control, he should not be considered late if the temporary release
committee chairperson can verify the delay through the bus company, train
station or other transportation provider.
(e) If an inmate is late for a reason other
than proven delays in public transportation, he will be considered late. If he
is able to show that his reason for being late is a good one, he shall be
considered late with an excuse. Any inmate who wishes to be considered late
with an excuse must be able to provide proof of the reason for his lateness. A
note of receipt for services from the filling station, tow truck or State
Police would be acceptable proof for documenting a breakdown. A note from a
doctor would be sufficient to show that return to the facility was delayed by
tending to a sick child. The temporary release committee chairperson should
decide what kind of documentation is required in each case.
(ii) Drug use and alcohol abuse.
(a) If an inmate returns to the facility with
evidence of drug use or alcohol use/abuse (see clause [e] of this subparagraph
for alcohol clarification), he will lose 2 points on the point system and be
subject to losing more points for disciplinary action. If he returns to the
facility both late and under the influence of drugs or alcohol, he will lose 4
points, with the possibility of losing more points for any disciplinary
action.
(b) During the review of a
temporary release application, careful attention must be given to the
possibility that the inmate/applicant has had alcohol-related problems in the
past. If the case file reveals that the inmate has ever experienced problems
related to the use of alcohol, then the memorandum of agreement that the inmate
signs before leaving on any form of temporary release must be amended to
indicate that he or she must completely abstain from the use of alcohol while
on temporary release.
(c) For those
who have been directed to completely abstain, failure to abide by this rule
will mean that disciplinary action will be taken against the inmate and
violation of this rule could mean revocation of temporary release
privileges.
(d) For inmates whose
case files do not indicate any alcohol-related problems, their memorandum of
agreement must contain a prohibition against the abuse of alcohol while on
temporary release.
(e) Abuse is
defined as the concentration of alcohol in the system of more than 0.10 as
determined through the use of a breathalyzer, urinalysis or blood sample
analysis.
(f) For those who have
been directed to refrain from the abuse of alcohol, failure to abide by this
rule will mean that disciplinary action will be taken against the inmate and
violation of this rule could mean revocation of temporary release
privileges.
(g) Any facility
employee who observes that an inmate, who has recently returned from temporary
release, appears to be under the influence of alcohol, or has the odor of
liquor on his breath or clothes or is staggering or slurring his speech, must
notify the temporary release committee chairperson or watch commander so that
appropriate testing can be accomplished which will verify the presence and
indicate the level of alcohol in the inmate's system.
(iii) Other program rule violations.
(a) Any other program rule violations known
to have existed or occurred during the course of the furlough or leave of
absence and the inmate's return to the facility must be reported on an inmate
misbehavior report to the superintendent.
(b) The inmate misbehavior report must be
written by the institutional employee who becomes aware of the violation. If a
violation is noted during processing in procedures, but not reported on a
misbehavior report, the temporary release committee chairperson will write the
report and submit it for disciplinary hearing review. The same will be true of
any violation of the rules realized by the temporary release committee
chairperson subsequent to completion of the furlough.
(c) All violations of temporary release rules
and regulations will be reported to the superintendent through the existing
disciplinary procedures as with all other disciplinary cases. Any documentation
relevant to the misbehavior should be reviewed by the disciplinary process to
assist in a determination.
(d) The
hearing officer should adjudicate the case according to Chapter V of this
Title. The temporary release committee, however, has sole discretion to make
temporary release decisions.
(iv) Absconding.
(a) Failure to return on time.
(1) Should an inmate be unable to return to
the correctional facility where he is confined by the time that he is scheduled
to return, the inmate must do one of the following:
(i) contact the facility temporary release
committee chairperson (at night or on weekends, the watch commander) in advance
of the time that he is due to return, and try to arrange for an extension of
his return time; or
(ii) contact
the facility temporary release committee chairperson (at night or on weekends,
the watch commander) to let the facility know that he is returning late for
reasons beyond his control, and state the reason why.
(2) The temporary release committee
chairperson, or someone designated by the superintendent, must make the
decision whether the inmate should be granted an extension of time on temporary
release or is to be considered late. He should also make arrangements for the
late return of inmates who telephone the facility after the time that they are
due back.
(3) An inmate is to be
considered a temporary release absconder if he fails to return to the
correctional facility where he is confined by the time that he is scheduled to
return as specified in the memo of agreement which he signed. If an inmate has
not returned to the correctional institution within five hours after the time
that he was due to return, or fails to follow the procedures set forth in this
subparagraph, the facility will assume the inmate does not intend to return, a
warrant for detention and return of temporary release inmate, form 4116
(TRP-6), is to be issued, and the inmate is to be dropped from the official
facility count.
(4) Unusual
incident report will be made in accordance with existing departmental
policy.
(5) Section
856(2) of the Correction
Law states that "The failure of an inmate to voluntarily return to the
institution of his confinement more than 10 hours after his prescribed time of
return shall create a rebuttable presumption that the failure to return was
intentional. Any inmate pursuant to this subdivision shall be an absconder in
violation of his temporary release program and will not be an eligible inmate
as defined in this Chapter."
(6)
Therefore, in the event that any participant returns to a correctional facility
more than 10 hours late, the facility shall conduct a superintendent's hearing,
during which the inmate will be given the opportunity to rebut the presumption
that his failure to return on time was intentional. However, in the absence of
such a rebuttal, the inmate is to be found guilty of the disciplinary charge,
and removed from all temporary release programs. Further, the inmate is to be
considered ineligible to take part in any kind of temporary release program at
any time in the future.
(7) The
temporary release committee chairperson shall see to it that a copy of such
superintendent's hearing shall be made part of the inmate's case file at the
facility and at central office as well as the institution's Division of Parole
folder so that this information will be available to the Board of Parole at the
inmate's next scheduled appearance before the board.
(b) When a program participant
absconds--procedures to be followed. The following procedures shall be followed
when any temporary release participant absconds from his temporary release
program:
(1) A warrant for detention and
return of temporarily released inmate, form 4116 (TRP-6), signed by the
facility superintendent, acting superintendent, or an employee of the Inspector
General's office, shall be issued for the absconder's arrest. Each warrant
issued shall be numbered consecutively, and the number shall be prefixed by the
abbreviated letters which correspond to the facility name. Line two of the
warrant shall contain the inmate's full name and line three shall contain his
New York State IIS identification number.
(2) The employee who caused the
superintendent or acting superintendent to authorize the issuing of a warrant
shall immediately notify the Department of Correctional Services command
control center in central office that the inmate has absconded and that a
warrant has been issued in accordance with departmental policy. This same
employee shall also notify the facility's head correctional clerk and temporary
release committee chairperson about the absconder.
(3) The employee who causes the warrant to be
issued shall notify the local New York State Police and local police station
houses about the absconded inmate according to the facility's local
procedure.
(4) The chairperson of
the facility's temporary release committee shall, at his earliest opportunity,
telephone the office of the director of temporary release programs in central
office and alert the director of temporary release programs that the inmate has
absconded. It will then be the responsibility of the director of temporary
release programs to immediately contact the Department of Correctional
Services' inspector general's office to alert them to the absconder. It will
then be the responsibility of the department's inspector general's office, in
coordination with the various New York State Police violent felony warrant
squads, to search for and apprehend the temporary release absconder.
(5) The chairperson of the facility's
temporary release committee will then have the responsibility, within one
working day of the inmate's absconding, to prepare and place in the mail five
copies of an absconder packet which shall contain each of the following items:
(i) a certified copy of the warrant for the
absconder's arrest. The notary certification should be on the back of the
warrant itself, and should not be on a separate sheet of paper attached to the
warrant;
(ii) a completed copy of
the temporary release program absconder notification form 4190;
(iii) a set of the most recent photographs of
the absconder;
(iv) a set of very
clear copies of the absconder's fingerprints;
(v) a copy of the absconder's receiving
blotter sheet. This must also comply with confidentiality requirements (see
subparagraph [vi] of this paragraph);
(vi) a copy of the absconder's
superintendent's card showing disciplinary violations. All references on that
card to drug or alcohol use must be eliminated to comply with confidentiality
requirements;
(vii) a copy of the
absconder's correspondence sheet, a copy of the record of the absconder's
visitors received with their names and addresses and a copy of the record of
the absconder's telephone calls from the facility; and
(viii) a photostatic copy of the memo of
agreement form which the absconder signed prior to leaving the
facility.
(6) The
chairperson of the temporary release committee shall afterwards forward one of
each of these five absconder packets along with a letter requesting assistance
in apprehending the absconder to:
(i)
Absconder Search Unit
Inspector General's Office
New York State Department of Correctional Services
10-06 35th Avenue
Long Island City, NY 11106
(ii) The New York State Police barracks which
covers the geographical area where the absconder went on his program of
temporary release. In New York City this address is:
New York State Police
Violent Felony Warrant Squad
Inwood Station
Bronx, NY 10034
(iii) The Division of Parole area office
which covers the geographical area where the absconder had been on temporary
release. This absconder packet to the Division of Parole is for informational
purposes only in the event that the staff of the area parole office
unexpectedly learns of the absconder's whereabouts during the course of their
investigations of parolees, and is not to be interpreted as an indication that
the Division of Parole has any responsibility whatsoever to seek out the
absconder. In New York City these packets should be mailed to:
Senior Warrant Officer
Warrant Unit
New York State Division of Parole
314 West 40th Street
New York, NY 10018
(iv) Two copies to:
Director of Temporary Release Programs
Room 308
New York State Department of Correctional Services
State Office Building Campus, Bldg. 2
Albany, NY 12226
(7) The director of temporary release
programs, upon receipt of the absconder packet from the facility's temporary
release committee chairperson, will have the responsibility to immediately post
a form DCJS-20, wanted person form, with the New York State Division of
Criminal Justice Services alerting both the Division of Criminal Justice
Services (DCJS) and National Crime Information Center (NCIC) systems that the
inmate is wanted for the crime of absconding from temporary release. Under no
circumstances are correctional facilities to forward form DCJS-20 directly to
the Division of Criminal Justice Services.
(c) Absconder's arrest. Procedures to be
followed. The following procedures shall be followed when any temporary release
absconder has a form 4116, warrant for detention and return of temporarily
released inmate, lodged against him:
(1) The
inspector general agent, parole officer, or other State employee who lodges the
warrant against the absconder shall immediately telephone the director of
temporary release programs to alert him where and when the warrant was
lodged.
(2) That same employee
shall afterwards telephone the correctional facility from which the inmate
absconded from temporary release and request that both the facility's head
correctional clerk and temporary release committee chairperson be alerted where
and when the warrant was lodged.
(3) The director of temporary release
programs, upon being advised that a warrant has been lodged, will alert the
Department of Correctional Services command control center in central office
about the warrant being lodged against the absconder and shall afterwards file
a form DCJS-20, cancel notice, with the New York State Division of Criminal
Justice Services alerting both the Division of Criminal Justice Services and
National Crime Information Center systems that the inmate is no longer
wanted.
(4) The chairperson of the
temporary release committee at the facility from which the inmate absconded,
upon being alerted that the inmate has had a warrant lodged against him, shall
afterwards telephone the director of temporary release programs, to make
absolutely certain that a warrant has, in fact, been lodged.
(5) Once the temporary release committee
chairperson verifies with the director of temporary release programs that a
warrant has actually been lodged against the absconder, the temporary release
committee chairperson shall prepare five short memos stating that the absconder
is back in custody, giving the date and location where the warrant was lodged,
and requesting that the agency in question discontinue its efforts to search
for the absconder. Most importantly, this memo should request that the agency
in question immediately return the form 4116, warrant for detention and return
of temporarily released inmate, to the temporary release committee chairperson.
Copies of this memo should then be forwarded to:
(i) Absconder Search Unit
Inspector General's Office
New York State Department of Correctional Services
10-06 35th Avenue
Long Island City, NY 11106
(ii) The New York State Police barracks which
was first notified when the inmate absconded from temporary release. In New
York City this address is:
New York State Police
Violent Felony Warrant Squad
Box 61
Inwood Station
Bronx, NY 10034
(iii) The Division of Parole area office
which was first notified when the inmate absconded from temporary release. In
New York City this address is:
Senior Warrant Officer
Warrant Unit
New York State Division of Parole
314 West 40th Street
New York, NY 10018
(iv) Two copies to:
Director of Temporary Release Programs
Room 308
New York State Department of Correctional Services
State Office Building Campus, Bldg. 2
Albany, NY 12226
(v) Any local police jurisdiction notified of
an absconder shall be notified when that absconder is back in
custody.
(6) The
temporary release committee chairperson shall follow-up to make certain that
all temporary release absconder warrants which were mailed out when the inmate
absconded are returned to the facility file (except, of course, the warrant
which is filed against the inmate as a detainer). It is important that the
temporary release committee chairperson assure that all other warrants are
actually returned to the facility, as these nonreturned warrants could possibly
result in the inmate being mistakenly and illegally arrested when he is
released from custody in the future. Besides creating unnecessary work for the
arresting law enforcement agency and inconvenience and hardship for the inmate,
an illegal arrest under such circumstances could result in an inmate bringing a
legal suit for damages against the Department of Correctional Services in the
courts.
(7) In those cases where an
inmate has been confined in other custody within New York State awaiting trial
for new criminal charges or to serve a new local sentence, the temporary
release committee chairperson shall maintain regular contact with the inmate's
new place of custody to follow the progress of the pending criminal charges and
to make certain that the department's form 4116, warrant, continues to be on
file as further detainer. When the inmate is due to be released from local
custody, the temporary release committee chairperson, in coordination with the
director of temporary release programs, shall arrange for the inmate's return
to Department of Correctional Services custody.
(8) In those cases where an inmate has been
confined in other custody outside of the State of New York, the director of
temporary release programs shall contact the appropriate officials in the other
state to follow-up on the progress of any new criminal charges and to make
certain the department's form 4116, warrant, continues to be on file as further
detainer. The director of temporary release programs shall also be responsible
to determine whether or not the inmate is willing to waive extradition from the
other state and shall initiate extradition proceedings in the event that the
inmate indicates a refusal to waive extradition back to New York. Once the
inmate is scheduled to be released from out-of-state custody, the director of
temporary release programs, in coordination with the department's
absconder/escape extradition and return unit, shall arrange for the absconder's
return to Department of Correctional Services custody.
(d) Receiving a returned
absconder--procedures to be followed. The following procedures shall be
followed when any temporary release absconder is returned to a Department of
Correctional Services facility.
(1) The head
correctional clerk at the receiving facility shall notify both the head
correctional clerk at the facility from which the inmate absconded and the
director of temporary release programs that the absconded inmate has been
returned to his facility.
(2) The
head correctional clerk at the receiving facility shall then contact the
director of classification and movement for a transfer order to have the inmate
returned to the facility from which he absconded, provided, the original
facility is a maximum security facility. However, if it is not a maximum
security facility, the head correctional clerk at the facility where the
absconder is received shall secure from the director of classification and
movement a T.O. to an appropriate maximum security facility as close to the
facility from which the inmate absconded as possible so that the original
facility may more easily conduct a superintendent's hearing on the absconded
inmate.
(3) The head correctional
clerk at the facility where the absconder is received shall prepare form 2054,
notice of returned violator, and forward copies of this form to central office.
He shall also make certain that the facility's temporary release committee
chairperson at the original facility is aware of the absconded inmate's
return.
(4) An employee having
knowledge of the absconding offense should complete a misbehavior report and
prepare charges for a superintendent's hearing.
(5) In all cases, the temporary release
committee chairperson at the facility from which the inmate absconded shall
follow-up to make certain that a superintendent's hearing is completed on the
absconding charge.
(6) Absconding
from temporary release is a felony crime. Therefore, once the temporary release
committee chairperson at the facility from which the inmate absconded becomes
aware that a superintendent's hearing has affirmed an absconding charge, the
temporary release committee chairperson should, as soon as possible, forward a
written statement to the prosecuting attorney or district attorney in the
county where the facility is located, alerting the district attorney about the
inmate's abscondence, return, and present status, and request that the district
attorney bring new criminal charges of violation of Penal Law 205.17,
absconding from temporary release, 1st degree against the inmate. A copy of
this letter to the district attorney is to be forwarded to the director of
temporary release programs so that it may be included in the inmate's central
office case file.
(v) New arrest procedures of short-term
temporary release participants.
(a) If an
inmate is arrested while participating in a short-term temporary release
program, the Department of Correctional Services employee who first becomes
aware of the arrest shall immediately report this information to the facility's
temporary release committee chairperson, head correctional clerk and
superintendent.
(b) The temporary
release committee chairperson, or in his absence whoever is designated by the
superintendent, shall have the responsibility of contacting the arresting
agency in order to secure the details of the new arrest (date, place, charge,
arresting officer, precinct of arrest in New York City, arrest number in New
York City, and court disposition to date). This will be followed up by a short
memo to the case folder, Division of Parole folder and director of temporary
release programs.
(c) If the
temporary release committee chairperson learns that criminal charges are
pending as a result of an inmate's new arrest while on temporary release, a
form 4116, warrant of detention and return of temporarily released inmate,
shall immediately be issued and shall be lodged against the inmate at his place
of confinement.
(d) If the new
arrest charge was dismissed when the inmate appeared in court on the charge,
the facility superintendent or acting superintendent shall make a decision
whether or not a form 4116, warrant, shall be issued.
(e) Whether or not a form 4116, warrant, is
issued, the superintendent or acting superintendent, shall see to it that the
department's command control center is advised of the arrest, and given the
details of the arrest if they are available.
(f) The temporary release committee
chairperson at his earliest opportunity shall telephone the director of
temporary release programs and provide him with the details of the new arrest.
He shall also make certain that the facility's head correctional clerk has been
advised of the arrest.
(g) In the
event that a temporary release participant is held in other custody following
his new arrest and is unable to return to the facility, the head correctional
clerk is to drop him from the official facility count as an absconder. This
action is to be taken in spite of the fact that the inmate's whereabouts is
very well known to all concerned, and in spite of the fact that he is not to be
considered a temporary release absconder for legal or other administrative
purposes, and is not to have criminal or departmental charges filed against him
for absconding from temporary release. However, the facility remains free, and
is encouraged, to bring departmental charges against the inmate for other
reasons connected with the new arrest (i.e., new convictions, abuse of alcohol,
use of illegal drugs, out-of-bounds of confinement, etc.).
(h) In those cases where a temporary release
participant is arrested in New York State and is held in other custody to
either await trial or to serve a new local sentence, the temporary release
committee chairperson shall monitor all stages of the court process in regards
to the inmate's pending criminal charges until there has been a court
disposition. The temporary release committee chairperson shall then maintain
regular contact with the inmate's new place of custody to make certain that he
is still confined there and that the department's form 4116, warrant, continues
to be on file as further detainer. When the inmate is due to be released from
local custody, the temporary release committee chairperson, in coordination
with the director of temporary release programs, shall arrange for the inmate's
return to Department of Correctional Services custody.
(i) In those cases where a temporary release
participant is arrested out-of-state and is being held in out-of-state custody
to either await trial or to serve a new sentence, the director of temporary
release programs shall monitor all stages of the court process in regards to
the inmate's pending criminal charges until there has been a court disposition.
The director of temporary release programs shall then maintain regular contact
with the inmate's new place of custody to make certain that he is still
confined there and that the department's form 4116, warrant, continues to be on
file as further detainer. The director of temporary release programs shall also
determine whether or not the inmate is willing to waive extradition from the
other state, and shall initiate extradition proceedings in the event that the
inmate indicates a refusal to waive extradition back to New York.
(4) Reports to central
office.
(i) A temporary release furlough/leave
of absence result document will be completed and sent to the director of
temporary release programs upon the completion of all actions regarding the
immediately completed temporary release activity. Nonpoint scoring facilities
will generate their own form or report. Contained in that locally developed
report will be:
(a) the inmate's name, DIN,
and facility;
(b) the type of
temporary release participation;
(c) inclusive dates of the
participation;
(d) whether or not
the activity has been deemed successful; and
(e) if not, any disciplinary
proceedings/dispositions.
(ii) The yellow copy of the memo of agreement
will be sent to central office for each participation.
(iii) Temporary release program monthly
reports (forms 4114, 4115, 4115.1 and 4115.2) are due in the office of the
director of temporary release programs no later than the fifth working day of
the succeeding month.