Enacts the "forensic rehabilitation act" relating to the custody of individuals following a verdict or plea of not responsible by reason of mental disease or defect.
STATE OF NEW YORK
________________________________________________________________________
8310
2025-2026 Regular Sessions
IN SENATE
May 30, 2025
___________
Introduced by Sen. BROUK -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the criminal procedure law, in relation to enacting the
"forensic rehabilitation act"; and to repeal subdivision 14 of section
330.20 of such law, relating to recommitment orders
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as the "forensic
2 rehabilitation act".
3 § 2. Paragraphs (c), (d), (e), (g), (h) and (i) of subdivision 1 of
4 section 330.20 of the criminal procedure law, paragraphs (c), (e), (g),
5 (h) and (i) as added by chapter 548 of the laws of 1980 and paragraph
6 (d) as amended by chapter 479 of the laws of 2022, is amended to read as
7 follows:
8 (c) ["Dangerous mental disorder"] "Qualifying condition and level of
9 imminent serious risk" means at the time of any examination or determi-
10 nation as to whether or not a defendant has a qualifying condition and
11 level of imminent serious risk or mental illness or should be granted a
12 furlough or any other privilege: (i) that a [defendant currently suffers
13 from] person at the time of examination or determination has a "mental
14 illness" as that term is defined in subdivision twenty of section 1.03
15 of the mental hygiene law, and (ii) that because of such condition [he]
16 such person currently constitutes a risk of imminent serious physical
17 danger to [himself] themself or others based on the individual's actions
18 at that time. All assessments of the risk of imminent serious physical
19 danger shall take into account any and all evidence indicating that the
20 individual at that time does not currently pose such a danger, including
21 assessments made by psychologists and psychiatrists and the individual's
22 current behaviors, participation in treatment and programming, and
23 growth and development.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13182-01-5
S. 8310 2
1 (d) ["Mentally ill"] "Person with mental health, developmental, cogni-
2 tive, or intellectual challenges" means that a [defendant currently
3 suffers from] person at the time of any examination or determination as
4 to whether or not a person has a qualifying condition and level of immi-
5 nent serious risk or mental illness or should be granted a furlough or
6 any other privilege has a mental illness for which care and treatment as
7 a patient, in the in-patient services of a psychiatric center under the
8 jurisdiction of the state office of mental health, is essential to such
9 [defendant's] person's welfare and that [his or her] such person's judg-
10 ment is so impaired that [he] such person is unable to understand the
11 need for such care and treatment; and, where a defendant has [a] devel-
12 opmental [disability], cognitive or intellectual challenges, the term
13 ["mentally ill"] "person with mental health, developmental, cognitive,
14 or intellectual challenges" shall also mean, for purposes of this
15 section, that the defendant is in need of care and treatment as a resi-
16 dent in the in-patient services of a developmental center or other resi-
17 dential facility for [individuals] people with developmental [disabili-
18 ties], cognitive or intellectual challenges under the jurisdiction of
19 the state office for people with developmental disabilities.
20 (e) "Examination order" means an order directed to the commissioner
21 requiring that a defendant submit to a psychiatric examination to deter-
22 mine whether the defendant has a [dangerous mental disorder] qualifying
23 condition and level of imminent serious risk, or if [he] such defendant
24 does not have [dangerous mental disorder] a qualifying condition and
25 level of imminent serious risk, whether [he] such defendant is [mentally
26 ill] a person with mental health, developmental, cognitive, or intellec-
27 tual challenges.
28 (g) "First retention order" means an order which is effective at the
29 expiration of the period prescribed in a commitment order [for] or a
30 recommitment order, authorizing continued custody of a defendant by the
31 commissioner for a period not to exceed [one year] ninety days.
32 (h) "Second retention order" means an order which is effective at the
33 expiration of the period prescribed in a first retention order, author-
34 izing continued custody of a defendant by the commissioner for a period
35 not to exceed [two years] ninety days.
36 (i) "Subsequent retention order" means an order which is effective at
37 the expiration of the period prescribed in a second retention order or a
38 prior subsequent retention order authorizing continued custody of a
39 defendant by the commissioner for a period not to exceed [two years] six
40 months.
41 § 3. Subdivisions 2, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 15 of section
42 330.20 of the criminal procedure law, subdivision 2 as amended by chap-
43 ter 693 of the laws of 1989, the opening paragraph of subdivision 2 as
44 amended by chapter 479 of the laws of 2022, the closing paragraph of
45 subdivision 2 as amended by chapter 107 of the laws of 2004, subdivi-
46 sions 5, 8, 9, 10, 11, 12 and 13 as amended by chapter 789 of the laws
47 of 1985 and subdivisions 6, 7 and 15 as added by chapter 548 of the laws
48 of 1980, are amended to read as follows:
49 2. Examination order; psychiatric examiners. Upon entry of a verdict
50 of not responsible by reason of mental disease or defect, or upon the
51 acceptance of a plea of not responsible by reason of mental disease or
52 defect, the court must immediately issue an examination order. Upon
53 receipt of such order, the commissioner must designate two qualified
54 psychiatric examiners to conduct the examination to examine the defend-
55 ant within fifteen days of such receipt. In conducting their examina-
56 tion, the psychiatric examiners may employ any method which is accepted
S. 8310 3
1 by the medical profession for the examination of persons alleged to [be
2 suffering from] have a [dangerous mental disorder] qualifying condition
3 and level of imminent serious risk or to be [mentally ill or having] a
4 person with mental health, developmental [disability], cognitive, or
5 intellectual challenges. The court may authorize a psychiatrist or
6 psychologist retained by a defendant to be present at such examination.
7 The clerk of the court must promptly forward a copy of the examination
8 order to the mental hygiene legal service and such service may thereaft-
9 er participate in all subsequent proceedings under this section.
10 In all subsequent proceedings under this section, prior to the issu-
11 ance of a special order of conditions, the court shall consider whether
12 any order of protection had been issued prior to a verdict of not
13 responsible by reason of mental disease or defect in the case, or prior
14 to the acceptance of a plea of not responsible by reason of mental
15 disease or defect in the case.
16 5. Examination order; reports. After [he has completed his] completion
17 of the examination of the defendant, each psychiatric examiner must
18 promptly prepare a report of [his] their findings and evaluation
19 concerning the defendant's mental condition, and submit such report to
20 the commissioner no later than seven days after conducting the examina-
21 tion. If the psychiatric examiners differ in their opinion as to wheth-
22 er the defendant is [mentally ill] a person with mental health, develop-
23 mental, cognitive, or intellectual challenges or [is suffering from a
24 dangerous mental disorder] has a qualifying condition and level of immi-
25 nent serious risk, the commissioner must designate another psychiatric
26 examiner to examine the defendant. Upon receipt of the examination
27 reports, the commissioner must submit them to the court that issued the
28 examination order. If the court is not satisfied with the findings of
29 these psychiatric examiners, the court may designate one or more addi-
30 tional psychiatric examiners pursuant to subdivision fifteen of this
31 section. The court must furnish a copy of the reports to the district
32 attorney, counsel for the defendant and the mental hygiene legal
33 service.
34 6. Initial hearing; commitment order. After the examination reports
35 are submitted, the court must, within ten days of the receipt of such
36 reports, conduct an initial hearing to determine the defendant's present
37 mental condition. If the defendant is in the custody of the commissioner
38 pursuant to an examination order, the court must direct the sheriff to
39 obtain custody of the defendant from the commissioner and to confine the
40 defendant pending further order of the court, except that the court may
41 direct the sheriff to confine the defendant in an institution located
42 near the place where the court sits if that institution has been desig-
43 nated by the commissioner as suitable for the temporary and secure
44 detention of mentally disabled persons. At such initial hearing, the
45 district attorney must establish to the satisfaction of the court that
46 the defendant has a [dangerous mental disorder] qualifying condition and
47 level of imminent serious risk or is [mentally ill] a person with mental
48 health, developmental, cognitive, or intellectual challenges. If the
49 court finds that the defendant has a [dangerous mental disorder] quali-
50 fying condition and level of imminent serious risk, [it] the court must
51 issue a commitment order. If the court finds that the defendant does not
52 have a [dangerous mental disorder] qualifying condition and level of
53 imminent serious risk but is [mentally ill] a person with mental health,
54 developmental, cognitive, or intellectual challenges, the provisions of
55 subdivision seven of this section shall apply.
S. 8310 4
1 7. Initial hearing civil commitment and order of conditions. If, at
2 the conclusion of the initial hearing conducted pursuant to subdivision
3 six of this section, the court finds that the defendant is [mentally
4 ill] a person with mental health, developmental, cognitive, or intellec-
5 tual challenges but does not have a [dangerous mental disorder] qualify-
6 ing condition and level of imminent serious risk, the provisions of
7 articles nine or fifteen of the mental hygiene law shall apply at that
8 stage of the proceedings and at all subsequent proceedings. Having found
9 that the defendant is [mentally ill] a person with mental health, devel-
10 opmental, cognitive, or intellectual challenges, the court must issue an
11 order of conditions and an order committing the defendant to the custody
12 of the commissioner. The latter order shall be deemed an order made
13 pursuant to the mental hygiene law and not pursuant to this section, and
14 further retention, conditional release or discharge of such defendant
15 shall be in accordance with the provisions of the mental hygiene law.
16 If, at the conclusion of the initial hearing, the court finds that the
17 defendant does not have a [dangerous mental disorder] qualifying condi-
18 tion and level of imminent serious risk and is not [mentally ill] a
19 person with mental health, developmental, cognitive, or intellectual
20 challenges, the court must discharge the defendant either uncondi-
21 tionally or subject to an order of conditions.
22 8. First retention order. When a defendant is in the custody of the
23 commissioner pursuant to a commitment order, the commissioner must, at
24 least thirty days prior to the expiration of the period prescribed in
25 the order, apply to the court that issued the order, or to a superior
26 court in the county where the secure facility is located, for a first
27 retention order or a release order. The commissioner must give written
28 notice of the application to the district attorney, the defendant, coun-
29 sel for the defendant, and the mental hygiene legal service. Upon
30 receipt of such application, the court may, on its own motion, conduct a
31 hearing to determine whether the defendant has a [dangerous mental
32 disorder] qualifying condition and level of imminent serious risk, and
33 it must conduct such hearing if a demand therefor is made by [the
34 district attorney,] the defendant, counsel for the defendant, or the
35 mental hygiene legal service within ten days from the date that notice
36 of the application was given to them. If such a hearing is held on an
37 application for retention, the commissioner must establish to the satis-
38 faction of the court that the defendant has a [dangerous mental disor-
39 der] qualifying condition and level of imminent serious risk or is
40 [mentally ill] a person with mental health, developmental, cognitive, or
41 intellectual challenges. [The district attorney shall be entitled to
42 appear and present evidence at such hearing. If such a hearing is held
43 on an application for release, the district attorney must establish to
44 the satisfaction of the court that the defendant has a dangerous mental
45 disorder or is mentally ill.] If the court finds that the defendant has
46 a [dangerous mental disorder] qualifying condition and level of imminent
47 serious risk it must issue a first retention order. If the court finds
48 that the defendant is [mentally ill] a person with mental health, devel-
49 opmental, cognitive, or intellectual challenges but does not have a
50 [dangerous mental disorder] qualifying condition and level of imminent
51 serious risk, it must issue a first retention order and, pursuant to
52 subdivision eleven of this section, a transfer order and an order of
53 conditions. If the commissioner makes an application for release or if
54 the court finds that the defendant does not have a [dangerous mental
55 disorder] qualifying condition and level of imminent serious risk and is
56 not [mentally ill] a person with mental health, developmental, cogni-
S. 8310 5
1 tive, or intellectual challenges, [it] the court must issue a release
2 order and an order of conditions pursuant to subdivision twelve of this
3 section.
4 9. Second and subsequent retention orders. When a defendant is in the
5 custody of the commissioner pursuant to a first retention order, the
6 commissioner must, at least thirty days prior to the expiration of the
7 period prescribed in the order, apply to the court that issued the
8 order, or to a superior court in the county where the facility is
9 located, for a second retention order or a release order. The commis-
10 sioner must give written notice of the application to the district
11 attorney, the defendant, counsel for the defendant, and the mental
12 hygiene legal service. Upon receipt of such application for a retention
13 order, the court may, on its own motion, conduct a hearing to determine
14 whether the defendant has a [dangerous mental disorder] qualifying
15 condition and level of imminent serious risk, and it must conduct such
16 hearing if a demand therefor is made by [the district attorney,] the
17 defendant, counsel for the defendant, or the mental hygiene legal
18 service within ten days from the date that notice of the application was
19 given to them. If such a hearing is held on an application for
20 retention, the commissioner must establish to the satisfaction of the
21 court that the defendant has a [dangerous mental disorder] qualifying
22 condition and level of imminent serious risk or is [mentally ill] a
23 person with mental health, developmental, cognitive, or intellectual
24 challenges. [The district attorney shall be entitled to appear and pres-
25 ent evidence at such hearing. If such a hearing is held on an applica-
26 tion for release, the district attorney must establish to the satisfac-
27 tion of the court that the defendant has a dangerous mental disorder or
28 is mentally ill.] If the court finds that the defendant has a [dangerous
29 mental disorder] qualifying condition and level of imminent serious risk
30 it must issue a second retention order. If the court finds that the
31 defendant is [mentally ill] a person with mental health, developmental,
32 cognitive, or intellectual challenges but does not have a [dangerous
33 mental disorder] qualifying condition and level of imminent serious
34 risk, it must issue a second retention order and, pursuant to subdivi-
35 sion eleven of this section, a transfer order and an order of condi-
36 tions. If the commissioner makes an application for release or if the
37 court finds that the defendant does not have a [dangerous mental disor-
38 der] qualifying condition and level of imminent serious risk and is not
39 [mentally ill] a person with mental health, developmental, cognitive, or
40 intellectual challenges, it must issue a release order and an order of
41 conditions pursuant to subdivision twelve of this section. When a
42 defendant is in the custody of the commissioner prior to the expiration
43 of the period prescribed in a second retention order, the procedures set
44 forth in this subdivision for the issuance of a second retention order
45 shall govern the application for and the issuance of any subsequent
46 retention order. Any time a commitment or retention order is issued, the
47 commissioner or their designee shall work with the person in custody to
48 develop a detailed and extensive treatment plan that includes what
49 services, treatment, programs, and/or corrective action the person needs
50 to take to obtain release, a transfer order, and/or a furlough order.
51 The commissioner or designee shall then provide access to such services,
52 treatment, and programs, and the individual shall be released, issued a
53 transfer order, and/or issued a furlough order if they substantially
54 complete what was required for the particular outcome.
55 10. Furlough order. The commissioner may apply for a furlough order,
56 pursuant to this subdivision, when a defendant is in [his] the commis-
S. 8310 6
1 sioner's custody pursuant to a commitment order, recommitment order, or
2 retention order and the commissioner is of the view that, consistent
3 with the public safety and welfare of the community and the defendant,
4 the clinical condition of the defendant warrants a granting of the priv-
5 ileges authorized by a furlough order. The application for a furlough
6 order may be made to the court that issued the commitment order, or to a
7 superior court in the county where the secure facility is located. The
8 commissioner must give ten days written notice to the district attorney,
9 the defendant, counsel for the defendant, and the mental hygiene legal
10 service. Upon receipt of such application, the court may, on its own
11 motion, conduct a hearing to determine whether the application should be
12 granted[, and must conduct such hearing if a demand therefor is made by
13 the district attorney]. If the [court finds] commissioner has found that
14 the issuance of a furlough order is consistent with the public safety
15 and welfare of the community and the defendant, and that the clinical
16 condition of the defendant warrants a granting of the privileges author-
17 ized by a furlough order, the court must grant the application and issue
18 a furlough order containing any terms and conditions that the court
19 deems necessary or appropriate. [If the defendant fails to return to the
20 secure facility at the time specified in the furlough order, then, for
21 purposes of subdivision nineteen of this section, he shall be deemed to
22 have escaped] A person in custody shall be provided an opportunity to
23 earn progressively more permissive furloughs, including being escorted
24 within a facility, unescorted within a facility, escorted in the commu-
25 nity outside a facility, unescorted community furloughs, and unescorted
26 community furloughs with community integration, where an individual is
27 able to spend time with their family, work, pursue education, and pursue
28 community-based treatment. Each person in custody shall have the oppor-
29 tunity to move to a more permissive furlough at least every six months
30 unless they have engaged in specific behavior within the previous six
31 months demonstrating that they pose a risk of imminent serious physical
32 danger to themselves or others. If an individual has participated in
33 unescorted community furloughs for six months, they shall be released or
34 receive an order of transfer. If they are transferred, they shall
35 continue on the same furlough progression level.
36 11. (a) Transfer order and order of conditions. The commissioner may
37 apply for a transfer order, pursuant to this subdivision, when a defend-
38 ant is in [his] the commissioner's custody pursuant to a retention order
39 or a recommitment order, and the commissioner is of the view that the
40 defendant does not have a [dangerous mental disorder] qualifying condi-
41 tion and level of imminent serious risk or that, consistent with the
42 public safety and welfare of the community and the defendant, the clin-
43 ical condition of the defendant warrants [his] such defendant's transfer
44 from a secure facility to a non-secure facility under the jurisdiction
45 of the commissioner or to any non-secure facility designated by the
46 commissioner. The application for a transfer order may be made to the
47 court that issued the order under which the defendant is then in custo-
48 dy, or to a superior court in the county where the secure facility is
49 located. The commissioner must give ten days written notice to the
50 district attorney, the defendant, counsel for the defendant, and the
51 mental hygiene legal service. Upon receipt of such application, the
52 court [may, on its own motion, conduct a hearing to determine whether
53 the application should be granted, and must conduct such hearing if the
54 demand therefor is made by the district attorney. At such hearing, the
55 district attorney must establish to the satisfaction of the court that
56 the defendant has a dangerous mental disorder or that the issuance of a
S. 8310 7
1 transfer order is inconsistent with the public safety and welfare of the
2 community. The court] must grant the application and issue a transfer
3 order if the [court finds] commissioner has concluded that the defendant
4 does not have a [dangerous mental disorder] qualifying condition and
5 level of imminent serious risk, or [if the court finds] that the issu-
6 ance of a transfer order is consistent with the public safety and
7 welfare of the community and the defendant and that the clinical condi-
8 tion of the defendant, warrants [his] such defendant's transfer from a
9 secure facility to a non-secure facility. A court must also issue a
10 transfer order when, in connection with an application for a first
11 retention order pursuant to subdivision eight of this section or a
12 second or subsequent retention order pursuant to subdivision nine of
13 this section, it finds that a defendant is [mentally ill] a person with
14 mental health, developmental, cognitive, or intellectual challenges but
15 does not have a [dangerous mental disorder] qualifying condition and
16 level of imminent serious risk. Whenever a court issues a transfer order
17 it must also issue an order of conditions. A person who is transferred
18 must begin their new placement with at least the same level of all priv-
19 ileges, conditions, and furlough progression level as they had at the
20 time of their transfer.
21 (b) Notwithstanding any other section of law, and regardless of wheth-
22 er any application is filed, a court shall automatically issue a release
23 order or a transfer order from a secure facility to a non-secure facili-
24 ty to any person in the custody of the commissioner pursuant to a
25 commitment order or a retention order who has spent a total of three
26 years in a secure facility and/or a state or local correctional facili-
27 ty, or who has spent a total period of time in a secure facility and/or
28 a state or local correctional facility equal to the minimum sentence
29 they could have received for the charge for which they received a
30 verdict of, or accepted a plea of, not responsible by reason of mental
31 disease or defect, whichever period of time expires first. For a person
32 who has spent a total period of time in a secure facility equal to the
33 minimum sentence they could have received for the charge for which they
34 received a verdict of, or accepted a plea of, not responsible by reason
35 of mental disease or defect, a court shall issue a release order. For
36 any release order or transfer order, the person shall be released or
37 transferred on or before the day the time period expires.
38 (c) Time spent in a secure facility and/or state or local correctional
39 facility prior to a verdict, plea, and/or a sentence, shall be included
40 as part of the total time periods set forth in this section.
41 12. (a) Release order and order of conditions. The commissioner may
42 apply for a release order, pursuant to this subdivision, when a defend-
43 ant is in [his] the commissioner's custody pursuant to a retention order
44 or recommitment order, and the commissioner is of the view that the
45 defendant no longer has a [dangerous mental disorder] qualifying condi-
46 tion and level of imminent serious risk and is no longer [mentally ill]
47 a person with mental health, developmental, cognitive, or intellectual
48 challenges. The application for a release order may be made to the court
49 that issued the order under which the defendant is then in custody, or
50 to a superior court in the county where the facility is located. The
51 application must contain a description of the defendant's current mental
52 condition, the past course of treatment, a history of the defendant's
53 conduct subsequent to [his] such defendant's commitment, a written
54 service plan for continued treatment which shall include the information
55 specified in subdivision (g) of section 29.15 of the mental hygiene law,
56 and a detailed statement of the extent to which supervision of the
S. 8310 8
1 defendant after release is proposed. The commissioner must give ten days
2 written notice to the district attorney, the defendant, counsel for the
3 defendant, and the mental hygiene legal service. Upon receipt of such
4 application, the court must promptly [conduct a hearing to determine the
5 defendant's present mental condition. At such hearing, the district
6 attorney must establish to the satisfaction of the court that the
7 defendant has a dangerous mental disorder or is mentally ill. If the
8 court finds that the defendant has a dangerous mental disorder, it must
9 deny the application for a release order. If the court finds that the
10 defendant does not have a dangerous mental disorder but is mentally ill,
11 it must issue a transfer order pursuant to subdivision eleven of this
12 section if the defendant is then confined in a secure facility. If the
13 court finds that the defendant does not have a dangerous mental disorder
14 and is not mentally ill, it must] grant the application and issue a
15 release order. A court must also issue a release order when, in
16 connection with an application for a first retention order pursuant to
17 subdivision eight of this section or a second or subsequent retention
18 order pursuant to subdivision nine of this section, it finds that the
19 defendant does not have a [dangerous mental disorder] qualifying condi-
20 tion and level of imminent serious risk and is not [mentally ill] a
21 person with mental health, developmental, cognitive, or intellectual
22 challenges. Whenever a court issues a release order it must also issue
23 an order of conditions. If the court has previously issued a transfer
24 order and an order of conditions, it must issue a new order of condi-
25 tions upon issuing a release order. The order of conditions issued in
26 conjunction with a release order shall incorporate a written service
27 plan prepared by a psychiatrist familiar with the defendant's case
28 history and approved by the court, and shall contain any conditions that
29 the court determines to be reasonably necessary or appropriate. It shall
30 be the responsibility of the commissioner to determine that such defend-
31 ant is receiving the services specified in the written service plan and
32 is complying with any conditions specified in such plan and the order of
33 conditions.
34 (b) (i) Notwithstanding any other section of law, and regardless of
35 whether any application is filed, a court shall automatically issue a
36 release order to any person in the custody of the commissioner pursuant
37 to a commitment order or a retention order who has spent a total of six
38 years in such custody in a secure facility, non-secure facility, and/or
39 a state or local correctional facility, or who has spent a total period
40 of time in such custody in a secure facility, non-secure facility and/or
41 a state or local correctional facility equal to the minimum sentence
42 they could have received for the charge for which they received a
43 verdict of, or accepted a plea of, not responsible by reason of mental
44 disease or defect, whichever period of time expires first. The person
45 shall be released on or before the day the time period expires.
46 (ii) Time spent in a secure facility, non-secure facility, and/or
47 state or local correctional facility prior to a verdict, a plea, and/or
48 a sentence, shall be included as part of the total time periods set
49 forth in this section.
50 (c) All facilities under this section shall all operate the same,
51 consistent policies, including with respect to treatment plans,
52 furloughs, retention orders, transfer orders, and release orders.
53 13. Discharge order. The commissioner may apply for a discharge order,
54 pursuant to this subdivision, when a defendant has been continuously on
55 an out-patient status for three years or more pursuant to a release
56 order, and the commissioner is of the view that the defendant no longer
S. 8310 9
1 has a [dangerous mental disorder] qualifying condition and level of
2 imminent serious risk and is no longer [mentally ill] a person with
3 mental health, developmental, cognitive, or intellectual challenges and
4 that the issuance of a discharge order is consistent with the public
5 safety and welfare of the community and the defendant. The application
6 for a discharge order may be made to the court that issued the release
7 order, or to a superior court in the county where the defendant is then
8 residing. The commissioner must give ten days written notice to the
9 district attorney, the defendant, counsel for the defendant, and the
10 mental hygiene legal service. Upon receipt of such application, the
11 court [may, on its own motion, conduct a hearing to determine whether
12 the application should be granted, and must conduct such hearing if a
13 demand therefor is made by the district attorney. The court] must grant
14 the application and issue a discharge order if the [court finds] commis-
15 sioner has found that the defendant has been continuously on an out-pa-
16 tient status for three years or more, that [he] such defendant does not
17 have a [dangerous mental disorder] qualifying condition and level of
18 imminent serious risk and is not [mentally ill] a person with mental
19 health, developmental, cognitive, or intellectual challenges, and that
20 the issuance of the discharge order is consistent with the public safety
21 and welfare of the community and the defendant.
22 15. Designation of psychiatric examiners. If, at any hearing conducted
23 under this section to determine the defendant's present mental condi-
24 tion, the court is not satisfied with the findings of the psychiatric
25 examiners, the court may direct the commissioner to designate one or
26 more additional psychiatric examiners to conduct an examination of the
27 defendant and submit a report of their findings. In addition, the court
28 may on its own motion, or upon request of a party, may designate one or
29 more psychiatric examiners to examine the defendant and submit a report
30 of their findings. The district attorney may not apply to the court for
31 an order directing that the defendant submit to an examination by a
32 psychiatric examiner designated by the district attorney[, and such
33 psychiatric examiner may testify at the hearing].
34 § 4. Subdivision 14 of section 330.20 of the criminal procedure law is
35 REPEALED.
36 § 5. Paragraphs (a) and (c) of subdivision 21 of section 330.20 of the
37 criminal procedure law, as added by chapter 976 of the laws of 1983,
38 subparagraph (ii) of paragraph (a) as amended by chapter 330 of the laws
39 of 1993, are amended to read as follows:
40 (a) A party to proceedings conducted in accordance with the provisions
41 of this section may take an appeal to an intermediate appellate court
42 [by permission of the intermediate appellate court] as follows:
43 (i) the commissioner may appeal from any [release order,] retention
44 order[, transfer order, discharge order,] or order of conditions[, or
45 recommitment order,] for which [he] such commissioner has not applied;
46 (ii) a defendant, or the mental hygiene legal service on [his or her]
47 a defendant's behalf, may appeal from any commitment order, retention
48 order, [recommitment order,] or, if the defendant has obtained a rehear-
49 ing and review of any such order pursuant to subdivision sixteen of this
50 section, from an order, not otherwise appealable as of right, issued in
51 accordance with the provisions of section 9.35 or 15.35 of the mental
52 hygiene law authorizing continued retention under the original order[,
53 provided, however, that a defendant who takes an appeal from a commit-
54 ment order, retention order, or recommitment order may not subsequently
55 obtain a rehearing and review of such order pursuant to subdivision
56 sixteen of this section;
S. 8310 10
1 (iii) the district attorney may appeal from any release order, trans-
2 fer order, discharge order, order of conditions, furlough order, or
3 order denying an application for a recommitment order which he opposed].
4 (c) An appeal taken under this subdivision shall be deemed civil in
5 nature, and shall be governed by the laws and rules applicable to civil
6 appeals; provided, however, that any such appeal shall be decided within
7 six months of being filed and that a stay of the order appealed from
8 must be obtained in accordance with the provisions of paragraph (d)
9 [hereof] of this subdivision. If an appeal of a retention order or
10 commitment order is not decided within six months after the date such
11 appeal is filed, the individual held in a secure or non-secure facility
12 under such retention order or commitment order shall be released from a
13 non-secure facility or released or transferred from a secure facility to
14 a non-secure facility, unless the commissioner seeks and obtains from
15 the court a stay of such release or transfer by demonstrating beyond a
16 reasonable doubt that the person currently has a qualifying condition
17 and level of imminent serious risk.
18 § 6. Section 330.20 of the criminal procedure law is amended by adding
19 two new subdivisions 23 and 24 to read as follows:
20 23. The office of mental health shall publish monthly reports on its
21 website, along with semi-annual and annual cumulative reports, of the
22 total number of people held in each secure and non-secure forensic
23 facility in the state.
24 (a) The number of people in each secure and non-secure forensic facil-
25 ity shall be separately listed, including: (i) those that hold people
26 pursuant to this section and section 730.50 of this chapter or 14 NYCRR
27 Part 57, and including but not limited to the Mid-Hudson Forensic
28 Psychiatric Center, Kirby Forensic Psychiatric Center, Rochester
29 Regional Forensic Unit, and Northeast Regional Forensic Unit; (ii) all
30 secure treatment facilities, as defined in subdivision (o) of section
31 10.03 of the mental hygiene law, including but not limited to the
32 Central New York Psychiatric Center and St. Lawrence Psychiatric Center;
33 and (iii) all secure mental health facilities holding people pursuant to
34 section four hundred two or five hundred eight of the correction law.
35 (b) The number of people held in each secure and non-secure forensic
36 facility shall be broken down by: (i) race, (ii) age, (iii) gender iden-
37 tity, (iv) documented mental health status and diagnoses, (v) other
38 documented disability, (vi) pregnancy or postpartum status, (vii) iden-
39 tification as lesbian, gay, bisexual, transgender, intersex, or gender
40 nonconforming, (viii) length of stay at their present facility, (ix)
41 length of stay in a secure or non-secure facility, and (x) length of
42 stay since their initial confinement.
43 24. (a) Not later than ninety days after the effective date of this
44 subdivision, the senate shall establish a community advisory committee,
45 with no less than five members. Each member of the community advisory
46 committee shall be a person who has been confined in a secure forensic
47 facility, has or has had a loved one confined in a secure forensic
48 facility, or is a faith leader, medical or mental health professional,
49 or civil rights or human rights advocate. All members shall have had
50 some experience engaging in advocacy aimed at enhancing the rights and
51 treatment of people with mental health needs. No less than half of all
52 members shall be people who have been confined in a secure forensic
53 facility or have had a loved one confined in a secure forensic facility.
54 (b) Members of such community advisory committee shall be appointed
55 for a term of five years, with the possibility of reappointments. The
S. 8310 11
1 community advisory committee shall have the ability to designate any
2 person to assist the work of the community advisory committee.
3 (c) Notwithstanding any other provision of law, the community advisory
4 committee and its designees shall have the ability to make unannounced
5 visits to, and have access to every area of and all non-classified,
6 non-privileged data from, all secure and non-secure forensic facilities,
7 including (i) those that hold people pursuant to this section and
8 section 730.50 of this chapter or 14 NYCRR Part 57, and including but
9 not limited to the Mid-Hudson Forensic Psychiatric Center, Kirby Foren-
10 sic Psychiatric Center, Rochester Regional Forensic Unit, and Northeast
11 Regional Forensic Unit; (ii) all secure treatment facilities, as defined
12 in subdivision (o) of section 10.03 of the mental hygiene law, including
13 but not limited to the Central New York Psychiatric Center and St.
14 Lawrence Psychiatric Center; and (iii) all secure mental health facili-
15 ties holding people pursuant to section four hundred two or five hundred
16 eight of the correction law.
17 (d) The community advisory committee and its designees shall have the
18 ability to conduct in-person interviews and correspond and communicate
19 with people held in secure and non-secure forensic facilities and facil-
20 ity staff freely, privately, and confidentially, upon consent of the
21 confined person or facility staff. Administrators of each facility shall
22 meet privately with the community advisory committee or its designees
23 upon request.
24 (e) (i) All people held in a secure facility shall have the right and
25 access to confidentially communicate with the community advisory commit-
26 tee and its designees, including while the community advisory committee
27 or its designees are at the facility and through free phone calls, free
28 mail correspondence, and free email correspondence. Such communications
29 shall be afforded the same levels of protection, confidentiality, and
30 privilege as attorney-client correspondence.
31 (ii) No person shall face any form of retaliation or adverse impact
32 for having contact with, or being perceived to have had contact with,
33 the community advisory committee.
34 (f) The community advisory committee and its designees shall have the
35 right to bring and use electronic equipment in any forensic facility,
36 including video cameras, photographic cameras, audio recording devices,
37 mobile telephones, computers, and tablets, for the purposes of record-
38 ing, documentation, administration of surveys, and other related
39 purposes.
40 (g) (i) The community advisory committee and its designees shall have
41 the right to receive, access, inspect, and copy all relevant non-classi-
42 fied, non-privileged information, records, and documents in the
43 possession or control of any forensic facility, any administrator or
44 employee of any forensic facility, and any administrator or employee of
45 the office of mental health.
46 (ii) The community advisory committee and its designees shall receive
47 any such records within seven days of a request. Where the records
48 requested by the community advisory committee or its designees pertain
49 to a death of an incarcerated individual, threats of bodily harm includ-
50 ing sexual or physical assaults, or the denial of necessary medical
51 treatment, the records shall be provided within forty-eight hours unless
52 members of the community advisory committee or their designees consent
53 to an extension of the deadline.
54 (h) The community advisory committee may make periodic recommendations
55 to the governor, temporary president of the senate, speaker of the
56 assembly, any forensic facility or the office of mental health. For any
S. 8310 12
1 recommendations made by the community advisory committee to a facility
2 or the office of mental health, the facility and the office of mental
3 health shall report to the community advisory committee within ninety
4 days whether it has designed and implemented a remedial action plan to
5 address the recommendations, and transmit any such remedial action plan
6 to the community advisory committee. The community advisory committee
7 may publish its findings and recommendations on the office of mental
8 health's website.
9 § 7. Subdivisions 3 and 5 of section 730.50 of the criminal procedure
10 law, subdivision 5 as amended by chapter 629 of the laws of 1974, are
11 amended to read as follows:
12 3. When a defendant is in the custody of the commissioner immediately
13 prior to the expiration of the period prescribed in the first order of
14 retention, the procedure set forth in subdivision two of this section
15 shall govern the application for and the issuance of any subsequent
16 order of retention, except that any subsequent orders of retention must
17 be for periods not to exceed two years each; provided, however, that the
18 aggregate of the periods prescribed in the temporary order of commit-
19 ment, the first order of retention and all subsequent orders of
20 retention must not exceed the authorized minimum term of imprisonment,
21 or two-thirds of the authorized maximum term of imprisonment for the
22 highest class felony charged in the indictment or for the highest class
23 felony of which [he] the defendant was convicted, or a total period of
24 six years, whichever period of time expires first.
25 5. When, on the effective date of this subdivision, any defendant
26 remains in the custody of the commissioner pursuant to an order issued
27 under former code of criminal procedure section six hundred sixty-two-b,
28 the superintendent or director of the institution where such defendant
29 is confined shall, if [he believes] they believe that the defendant
30 continues to be an incapacitated person, apply forthwith to a court of
31 record in the county where the institution is located for an order of
32 retention. The procedures for obtaining any order pursuant to this
33 subdivision shall be in accordance with the provisions of subdivisions
34 two, three and four of this section, except that the period of retention
35 pursuant to the first order obtained under this subdivision shall be for
36 not more than one year and any subsequent orders of retention must be
37 for periods not to exceed two years each; provided, however, that the
38 aggregate of the time spent in the custody of the commissioner pursuant
39 to any order issued in accordance with the provisions of former code of
40 criminal procedure section six hundred sixty-two-b and the periods
41 prescribed by the first order obtained under this subdivision and all
42 subsequent orders of retention must not exceed two-thirds of the author-
43 ized [maximum] minimum term of imprisonment for the highest class felony
44 charged in the indictment or the highest class felony of which [he] the
45 defendant was convicted, or a total period of six years, whichever peri-
46 od of time expires first.
47 § 8. All provisions of this act shall apply retroactively to all
48 people in the custody of the commissioner of mental health or the
49 commissioner of the office for people with developmental disabilities at
50 the time this act takes effect, and all time periods set forth in this
51 act shall apply to each such person beginning when the person was first
52 in the custody of the commissioner of mental health or the commissioner
53 of the office for people with developmental disabilities.
54 § 9. This act shall take effect on the thirtieth day after it shall
55 have become a law.
