STATE OF NEW YORK
________________________________________________________________________
5063
2023-2024 Regular Sessions
IN ASSEMBLY
March 2, 2023
___________
Introduced by M. of A. GUNTHER, ZINERMAN, KELLES -- read once and
referred to the Committee on Codes
AN ACT to amend the criminal procedure law and the mental hygiene law,
in relation to determining the capacity of a defendant to stand trial
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 1 of section 730.10 of the criminal procedure
2 law is amended to read as follows:
3 1. "Incapacitated person" means a defendant who as a result of mental
4 disease or defect lacks capacity to understand the proceedings against
5 [him] such defendant or to assist in his or her own defense.
6 § 2. Subdivision 8 of section 730.10 of the criminal procedure law, as
7 separately amended by chapters 615 and 629 of the laws of 1974, is
8 amended to read as follows:
9 8. "Examination report" means a report made by a psychiatric examiner
10 wherein he or she sets forth his or her opinion as to whether the
11 defendant is or is not an incapacitated person, the nature and extent of
12 his or her examination and, if he or she finds that the defendant is an
13 incapacitated person, his or her diagnosis and prognosis and a detailed
14 statement of the reasons for his or her opinion by making particular
15 reference to those aspects of the proceedings wherein the defendant
16 lacks capacity to understand or to assist in his or her own defense.
17 The report must also state the examiner's professional opinion as to
18 whether or not there is at least a reasonable expectation that restora-
19 tion services could have a substantial probability of restoring the
20 defendant to competence within a reasonable period of time. The state
21 administrator and the commissioner must jointly adopt the form of the
22 examination report; and the state administrator shall prescribe the
23 number of copies thereof that must be submitted to the court by the
24 director.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04547-01-3
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1 § 3. Section 730.10 of the criminal procedure law is amended by adding
2 a new subdivision 10 to read as follows:
3 10. "Restoration services" means those services including but not
4 limited to medication support, classroom-based competency instruction,
5 mock trials, symptom management, and rehabilitative services provided to
6 an incapacitated person which are designed to improve his or her mental
7 state or developmental status to the extent that they can understand the
8 charges against them and participate in their own defense. Restoration
9 services are not intended to be mental health treatment aimed at recov-
10 ery from mental illness or services aimed at improving a developmentally
11 disabled person's ability to function on a day-to-day basis.
12 § 4. Section 730.20 of the criminal procedure law, subdivisions 1 and
13 5 as amended by chapter 693 of the laws of 1989, subdivision 7 as
14 amended by chapter 692 of the laws of 1972, is amended to read as
15 follows:
16 § 730.20 Fitness to proceed; generally.
17 1. [The appropriate director to whom a criminal court issues an order
18 of examination must be determined in accordance with rules jointly
19 adopted by the judicial conference and the commissioner.] Upon receipt
20 of an examination order, the director to whom the court has issued an
21 order must designate two qualified psychiatric examiners, of whom he or
22 she may be one, to examine the defendant to determine if [he] the
23 defendant is an incapacitated person. In conducting their examination,
24 the psychiatric examiners [may] shall employ [any] a method [which is
25 accepted by the medical profession for the examination of persons
26 alleged to be mentally ill or mentally defective] as set forth in stand-
27 ards set by the commissioner to determine if the defendant is an inca-
28 pacitated person. The court may authorize a psychiatrist or psychol-
29 ogist retained by the defendant to be present at such examination.
30 2. When the defendant is not in custody at the time a court issues an
31 order of examination, because [he] the defendant was theretofore
32 released on bail or on [his] the defendant's own recognizance, the court
33 [may] shall direct that the examination be conducted on an out-patient
34 basis, and at such time and place as the director shall designate and
35 the court shall order the defendant to appear for such examination. If,
36 however, the director informs the court that hospital confinement of the
37 defendant is necessary for an effective examination, or if the defendant
38 refuses to appear as ordered for the examination, the court may direct
39 that the defendant be confined in a hospital [designated by the direc-
40 tor] operated or approved by the commissioner only until the examination
41 is completed. In no event shall the need for such examination be a basis
42 for incarcerating a defendant who has been released on bail or his or
43 her own recognizance.
44 3. When the defendant is in custody at the time a court issues an
45 order of examination, the examination must be conducted at the place
46 where the defendant is being held in custody. If, however, the director
47 determines that hospital confinement of the defendant is necessary for
48 an effective examination, the sheriff must deliver the defendant to a
49 hospital designated by the [director] commissioner and hold [him] the
50 defendant in custody therein, under sufficient guard, until the examina-
51 tion is completed.
52 4. Hospital confinement under subdivisions two and three shall be for
53 a period not exceeding [thirty] ten days, except that, upon application
54 of the director, the court may authorize confinement for an additional
55 period not exceeding [thirty] ten days if it is satisfied that a longer
56 period is necessary to complete the examination. [During the period of
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1 hospital confinement, the physician in charge of the hospital may admin-
2 ister or cause to be administered to the defendant such emergency
3 psychiatric, medical or other therapeutic treatment as in his judgment
4 should be administered.]
5 5. Each psychiatric examiner, after [he has completed his] completing
6 the examination of the defendant, must promptly prepare and submit to
7 the director an examination report [and submit it to the director]
8 setting forth the examiner's opinion as to whether or not there is at
9 least a reasonable expectation that restoration services could have a
10 substantial probability of restoring the defendant to competence within
11 a reasonable period of time. If the psychiatric examiners are not unani-
12 mous in their opinion as to whether the defendant is or is not an inca-
13 pacitated person, the director must designate another qualified psychi-
14 atric examiner to examine the defendant to determine if [he] the
15 defendant is an incapacitated person and, if so, whether or not there is
16 at least a reasonable expectation that restoration services could have a
17 substantial probability of restoring the defendant to competence within
18 a reasonable period of time. Upon receipt of the examination reports,
19 the director must submit them to the court that issued the order of
20 examination. The court must furnish a copy of the reports to counsel
21 for the defendant and to the district attorney.
22 6. When a defendant is subjected to examination pursuant to an order
23 issued by a criminal court in accordance with this article, any state-
24 ment made by [him] such defendant for the purpose of the examination or
25 treatment shall be inadmissible in evidence against [him] such defendant
26 in any criminal action on any issue other than that of [his] such
27 defendant's mental condition[, but such statement is admissible upon
28 that issue whether or not it would otherwise be deemed a privileged
29 communication].
30 7. A psychiatric examiner, who is not regularly employed by the county
31 or the state of New York, is entitled to his or her reasonable traveling
32 expenses[, a] and to a reasonable fee [of fifty dollars] to be negoti-
33 ated with the examiner by the director or the county or, if no such fee
34 is agreed upon, to be set by the court for each examination of a defend-
35 ant and [a fee of fifty dollars] for each appearance at a court hearing
36 or trial [but not exceeding two hundred dollars in fees for examination
37 and testimony in any one case]; except that if such psychiatric examiner
38 be an employee of the county or of the state of New York he or she shall
39 be entitled only to reasonable traveling expenses, unless such psychiat-
40 ric examiner makes the examination or appears at a court hearing or
41 trial outside his or her hours of state or county employment in a county
42 in which the director of community [mental health] services certifies to
43 the fiscal officer thereof that there is a shortage of qualified
44 [psychiatrists] examiners available to conduct examinations under [the
45 criminal procedure law] this chapter in such county, in which event [he]
46 such examiner shall be entitled to [the foregoing] such fees and reason-
47 able traveling expenses as approved by the court. Such fees and travel-
48 ing expenses and the costs of sending a defendant to another place of
49 detention or to a hospital for examination[, of his maintenance therein]
50 and the cost of returning [him] the defendant shall, when approved and
51 so ordered by the court, be a charge of the county in which the defend-
52 ant is being tried, and the cost of the maintenance of such defendant
53 therein shall be a cost to the state.
54 § 5. Section 730.30 of the criminal procedure law, subdivision 3 as
55 amended by chapter 629 of the laws of 1974, is amended to read as
56 follows:
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1 § 730.30 Fitness to proceed; order of examination.
2 1. At any time after a defendant is arraigned upon an accusatory
3 instrument other than a felony complaint and before the imposition of
4 sentence, or at any time after a defendant is arraigned upon a felony
5 complaint and before he or she is held for the action of the grand jury,
6 or upon arraignment on an indictment by a grand jury, the court wherein
7 the criminal action is pending [must] may issue an order of examination
8 when it [is of the opinion] has a reasonable basis to believe that the
9 defendant may be an incapacitated person.
10 2. When the examination reports submitted to the court show that each
11 psychiatric examiner is of the opinion that the defendant is not an
12 incapacitated person, the court may, on its own motion, conduct a hear-
13 ing to determine the issue of capacity, and it must conduct a hearing
14 upon motion therefor by the defendant or by the district attorney. If
15 the court does not decide to hold a hearing on its own motion and no
16 motion for a hearing is made, or if, following a hearing the court is
17 satisfied that the defendant is not an incapacitated person, the crimi-
18 nal action against the defendant must proceed. [If, following a hearing,
19 the court is satisfied that the defendant is not an incapacitated
20 person, the criminal action against him must proceed; if the court is
21 not so satisfied, it must issue a further order of examination directing
22 that the defendant be examined by different psychiatric examiners desig-
23 nated by the director.]
24 3. When the examination reports submitted to the court show that each
25 psychiatric examiner is of the opinion that the defendant is an incapac-
26 itated person and that there is at least a reasonable expectation that
27 restoration services could have a substantial probability of restoring
28 the defendant to competence within a reasonable period of time, the
29 court [may, on its own motion,] shall conduct a hearing to determine the
30 issue of capacity [and it must conduct such hearing upon motion therefor
31 by the defendant or by the district attorney].
32 4. When the examination reports submitted to the court show that the
33 psychiatric examiners are not unanimous in their opinion as to whether
34 the defendant is or is not an incapacitated person[, or when the exam-
35 ination reports submitted to the superior court show that the psychiat-
36 ric examiners are not unanimous in their opinion as to whether the
37 defendant is or is not a dangerous incapacitated person] and that there
38 is at least a reasonable expectation that restoration services could
39 have a substantial probability of restoring the defendant to competence
40 within a reasonable period of time, the court must conduct a hearing to
41 determine the issue of capacity [or dangerousness] and expectation of
42 restoration within a reasonable time.
43 § 6. Subdivision 1 of section 730.40 of the criminal procedure law, as
44 amended by chapter 7 of the laws of 2013, is amended to read as follows:
45 1. When a local criminal court, following a hearing conducted pursuant
46 to subdivision two, three or four of section 730.30 of this article, is
47 satisfied that the defendant is not an incapacitated person, the crimi-
48 nal action against him or her must proceed. If [it] a local criminal
49 court accusatory instrument other than a felony complaint has been filed
50 against the defendant and the court is satisfied that the defendant is
51 an incapacitated person, [or if no motion for such a hearing is made,
52 such court must issue a final or temporary order of observation commit-
53 ting him or her to the custody of the commissioner for care and treat-
54 ment in an appropriate institution for a period not to exceed ninety
55 days from the date of the order, provided, however, that the commission-
56 er may designate an appropriate hospital for placement of a defendant
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1 for whom a final order of observation has been issued, where such hospi-
2 tal is licensed by the office of mental health and has agreed to accept,
3 upon referral by the commissioner, defendants subject to final orders of
4 observation issued under this subdivision. When a local criminal court
5 accusatory instrument other than a felony complaint has been filed
6 against the defendant,] such court must issue a final order of observa-
7 tion. When a felony complaint has been filed against the defendant, such
8 court must issue a temporary order of observation committing him or her
9 to the custody of the commissioner for [care and treatment] restoration
10 services in an appropriate institution or, [upon the consent of the
11 district attorney] in the discretion of the court, committing him or her
12 to the custody of the commissioner for care and treatment on an out-pa-
13 tient basis, for a period not to exceed ninety days from the date of
14 such order[, except that, with the consent of the district attorney,] or
15 it may issue a final order of observation. Upon the issuance of a final
16 order of observation, the district attorney shall immediately transmit
17 to the commissioner, in a manner intended to protect the confidentiality
18 of the information, a list of names and contact information of persons
19 who may reasonably be expected to be the victim of any assault or any
20 violent felony offense, as defined in the penal law, or any offense
21 listed in section 530.11 of this chapter which would be carried out by
22 the committed person; provided that the person who reasonably may be
23 expected to be a victim does not need to be a member of the same family
24 or household as the committed person.
25 § 7. Section 730.50 of the criminal procedure law, subdivision 1 as
26 amended by chapter 7 of the laws of 2013, subdivision 2 as amended by
27 chapter 789 of the laws of 1985, subdivision 5 as amended by chapter 629
28 of the laws of 1974, is amended to read as follows:
29 § 730.50 Fitness to proceed; indictment.
30 1. When a superior court, following a hearing conducted pursuant to
31 subdivision two, three or four of section 730.30 of this article, is
32 satisfied that the defendant is not an incapacitated person, the crimi-
33 nal action against him or her must proceed. If [it is satisfied] after a
34 hearing, the court makes a finding that the defendant is an incapaci-
35 tated person, [or if no motion for such a hearing is made] and that
36 there is at least a reasonable expectation that restoration services
37 could have a substantial probability of restoring the defendant to
38 competence within a reasonable period of time, it must adjudicate him or
39 her an incapacitated person[, and must issue a final order of observa-
40 tion or an order of commitment]. When the indictment does not charge a
41 felony or when the defendant has been convicted of an offense other than
42 a felony, such court (a) must issue a final order of observation
43 [committing the defendant to the custody of the commissioner for care
44 and treatment in an appropriate institution for a period not to exceed
45 ninety days from the date of such order, provided, however, that the
46 commissioner may designate an appropriate hospital for placement of a
47 defendant for whom a final order of observation has been issued, where
48 such hospital is licensed by the office of mental health and has agreed
49 to accept, upon referral by the commissioner, defendants subject to
50 final orders of observation issued under this subdivision], and (b) must
51 dismiss the indictment filed in such court against the defendant, and
52 such dismissal constitutes a bar to any further prosecution of the
53 charge or charges contained in such indictment. Upon the issuance of a
54 final order of observation, the district attorney shall immediately
55 transmit to the commissioner, in a manner intended to protect the confi-
56 dentiality of the information, a list of names and contact information
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1 of persons who may reasonably be expected to be the victim of any
2 assault or any violent felony offense, as defined in the penal law, or
3 any offense listed in section 530.11 of this chapter which would be
4 carried out by the committed person; provided that the person who
5 reasonably may be expected to be a victim does not need to be a member
6 of the same family or household as the committed person. When the
7 indictment charges a felony [or when the defendant has been convicted of
8 a felony] and the court has determined that there is at least a reason-
9 able expectation that restoration services could have a substantial
10 probability of restoring the defendant to competence within a reasonable
11 period of time, it must issue an order of commitment committing the
12 defendant to the custody of the commissioner [for care and treatment] to
13 receive restoration services in an appropriate institution or[, upon the
14 consent of the district attorney,] committing him or her to the custody
15 of the commissioner for care and treatment on an out-patient basis, for
16 a period not to exceed [one year] ninety days from the date of such
17 order. Upon the issuance of an order of commitment, the court must exon-
18 erate the defendant's bail if he or she was previously at liberty on
19 bail; provided, however, that exoneration of bail is not required when a
20 defendant is committed to the custody of the commissioner for care and
21 treatment on an out-patient basis. [When the defendant is in the custody
22 of the commissioner pursuant to a final order of observation, the
23 commissioner or his or her designee, which may include the director of
24 an appropriate institution, immediately upon the discharge of the
25 defendant, must certify to such court that he or she has complied with
26 the notice provisions set forth in paragraph (a) of subdivision six of
27 section 730.60 of this article] In the event that the court determines
28 there is not a reasonable expectation that restoration services could
29 have a substantial probability of restoring the defendant to competence
30 within a reasonable period of time the matter shall be referred to
31 supreme court for a hearing conducted in accordance with section 9.33
32 or 15.31 of the mental hygiene law.
33 2. When a defendant is in the custody of the commissioner immediately
34 prior to the expiration of the period prescribed in a temporary order of
35 commitment and the superintendent of the institution wherein the defend-
36 ant is confined is of the opinion that the defendant continues to be an
37 incapacitated person, such superintendent must apply to the court that
38 issued such order for an order of retention for an additional period of
39 ninety days. The court must hold a hearing on this application to
40 determine if there is a substantial probability of recovery in the fore-
41 seeable future. If the court determines that there is such reasonable
42 expectation of restoration, it shall issue an order of retention for an
43 additional ninety days. If the court finds that the defendant is still
44 incapacitated and there is not a substantial probability of restoration
45 in the foreseeable future, it shall refer the matter to the civil
46 section of the supreme court in the county where the defendant's case is
47 pending, for a hearing pursuant to article nine or fifteen of the mental
48 hygiene law to determine if the defendant shall be hospitalized or
49 otherwise retained on an involuntary basis. [Such application must be
50 made within sixty days prior to the expiration of such period on forms
51 that have been jointly adopted by the judicial conference and the
52 commissioner.] The superintendent must give written notice of the appli-
53 cation for such order to the defendant and to the mental hygiene legal
54 service. Upon receipt of such application, the court [may, on its own
55 motion,] shall conduct a hearing [to determine the issue of capacity,
56 and it must conduct such hearing if a demand therefor is made by the
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1 defendant or the mental hygiene legal service within ten days from the
2 date that notice of the application was given them. If, at the conclu-
3 sion of a hearing conducted pursuant to this subdivision, the court is
4 satisfied that the defendant is no longer an incapacitated person, the
5 criminal action against him must proceed. If it is satisfied that the
6 defendant continues to be an incapacitated person, or if no demand for a
7 hearing is made, the court must adjudicate him an incapacitated person
8 and must issue an order of retention which shall authorize continued
9 custody of the defendant by the commissioner for a period not to exceed
10 one year] pursuant to the provisions of article nine or fifteen of the
11 mental hygiene law and the court shall order that the defendant shall be
12 maintained in the custody of the commissioner but transferred to a
13 hospital or other appropriate institution to be involuntarily admitted
14 pursuant to article nine or fifteen of the mental hygiene law subject
15 to the retention provisions of section 9.33 or 15.31 of the mental
16 hygiene law except as specifically provided herein. Such order shall
17 not be deemed in any way to be the order of a criminal court.
18 3. [When] Before a defendant is [in] released from the custody of the
19 commissioner [immediately prior to the expiration of the period
20 prescribed in the first order of retention, the procedure set forth in
21 subdivision two shall govern the application for and the issuance of any
22 subsequent order of retention, except that any subsequent orders of
23 retention must be for periods not to exceed two years each; provided,
24 however,] either pursuant to this section or pursuant to article nine or
25 fifteen of the mental hygiene law, the court shall hold a hearing to
26 determine whether or not the defendant continues to be an incapacitated
27 person. If, at the conclusion of a hearing conducted pursuant to this
28 subdivision, the court is satisfied that the defendant is no longer an
29 incapacitated person, the criminal action against him or her must
30 proceed except that the court shall have the discretion to dismiss the
31 case in the interests of justice. If, at the conclusion of a hearing
32 conducted pursuant to this subdivision, the court finds that the defend-
33 ant continues to be an incapacitated person then the court shall make an
34 order in accordance with section 9.33 or 15.31 of the mental hygiene
35 law. In any case that the aggregate of periods prescribed in the tempo-
36 rary order of commitment[, the first order of retention and all subse-
37 quent orders of retention] and any order of retention pursuant to this
38 article or article nine or fifteen of the mental hygiene law must not
39 exceed two-thirds of the authorized maximum term of imprisonment for the
40 highest class felony charged in the indictment [or for the highest class
41 felony of which he was convicted].
42 4. When a defendant is in the custody of the commissioner either at
43 the expiration of the authorized period prescribed in the last order of
44 retention or any order of retention issued pursuant to article nine or
45 fifteen of the mental hygiene law, the criminal action pending against
46 him or her in the superior court that issued such order shall terminate
47 for all purposes, and the commissioner must promptly certify to such
48 court and to the appropriate district attorney that the defendant was in
49 his or her custody on such expiration date. Upon receipt of such certif-
50 ication, the court must dismiss the indictment, and such dismissal
51 constitutes a bar to any further prosecution of the charge or charges
52 contained in such indictment.
53 [5. When, on the effective date of this subdivision, any defendant
54 remains in the custody of the commissioner pursuant to an order issued
55 under former code of criminal procedure section six hundred sixty-two-b,
56 the superintendent or director of the institution where such defendant
A. 5063 8
1 is confined shall, if he believes that the defendant continues to be an
2 incapacitated person, apply forthwith to a court of record in the county
3 where the institution is located for an order of retention. The proce-
4 dures for obtaining any order pursuant to this subdivision shall be in
5 accordance with the provisions of subdivisions two, three and four of
6 this section, except that the period of retention pursuant to the first
7 order obtained under this subdivision shall be for not more than one
8 year and any subsequent orders of retention must be for periods not to
9 exceed two years each; provided, however, that the aggregate of the time
10 spent in the custody of the commissioner pursuant to any order issued in
11 accordance with the provisions of former code of criminal procedure
12 section six hundred sixty-two-b and the periods prescribed by the first
13 order obtained under this subdivision and all subsequent orders of
14 retention must not exceed two-thirds of the authorized maximum term of
15 imprisonment for the highest class felony charged in the indictment or
16 the highest class felony of which he was convicted.]
17 § 8. Section 730.60 of the criminal procedure law, subdivisions 1 and
18 3 as amended by chapter 231 of the laws of 2008, subdivision 2 as
19 amended by chapter 57 of the laws of 1984, subdivisions 4 and 5 as
20 renumbered by chapter 629 of the laws of 1974, subdivision 6 as added by
21 chapter 549 of the laws of 1980, paragraphs (a) and (b) of subdivision 6
22 as amended by chapter 7 of the laws of 2013, is amended to read as
23 follows:
24 § 730.60 Fitness to proceed; procedure following custody by commission-
25 er.
26 1. When a local criminal court issues a [final or] temporary order of
27 observation or an order of commitment, it must forward such order and a
28 copy of the examination reports and the accusatory instrument to the
29 commissioner[, and, if available, a copy of the pre-sentence report].
30 Upon receipt thereof, the commissioner must designate an appropriate
31 institution operated by the department of mental hygiene in which the
32 defendant is to be placed[, provided, however, that the commissioner may
33 designate an appropriate hospital for placement of a defendant for whom
34 a final order of observation has been issued, where such hospital is
35 licensed by the office of mental health and has agreed to accept, upon
36 referral by the commissioner, defendants subject to final orders of
37 observation issued under this subdivision]. The sheriff [must hold the
38 defendant in custody pending such designation by the commissioner, and]
39 when notified of the designation, [the sheriff] must deliver the defend-
40 ant to the superintendent of such institution. The superintendent must
41 promptly inform the appropriate director of the mental hygiene legal
42 service of the defendant's admission to such institution. If a defendant
43 escapes from the custody of the commissioner, the escape shall interrupt
44 the period prescribed in any order of observation, commitment or
45 retention, and such interruption shall continue until the defendant is
46 returned to the custody of the commissioner.
47 2. Except as otherwise provided in subdivisions four and five of this
48 section, when a defendant is in the custody of the commissioner pursuant
49 to a temporary order of observation or an order of commitment or an
50 order of retention, the criminal action pending against the defendant in
51 the court that issued such order is suspended [until] pending further
52 order of the court. If the superintendent of the institution in which
53 the defendant is confined determines that he or she is no longer an
54 incapacitated person[. In that event], the court that issued such order
55 and the appropriate district attorney must be notified, in writing, by
56 the superintendent of his or her determination. The court must thereupon
A. 5063 9
1 proceed in accordance with the provisions of subdivision two of section
2 730.30 of this [chapter] article; provided, however, if the court is
3 satisfied that the defendant remains an incapacitated person, and upon
4 consent of all parties, the court may order the return of the defendant
5 to the institution in which he or she had been confined for such period
6 of time as was authorized by the prior order of commitment or order of
7 retention. Upon such return, the defendant shall have all rights and
8 privileges accorded by the provisions of this article.
9 3. When a defendant is in the custody of the commissioner pursuant to
10 an order issued in accordance with this article, the commissioner may
11 transfer him or her to any appropriate institution operated by the
12 department of mental hygiene, provided, however, that the commissioner
13 may designate an appropriate hospital for placement of a defendant for
14 whom a final order of observation has been issued, where such hospital
15 is licensed by the office of mental health and has agreed to accept,
16 upon referral by the commissioner, defendants subject to final orders of
17 observation issued under this section. The commissioner may discharge a
18 defendant in his or her custody under a final order of observation at
19 any time prior to the expiration date of such order, or otherwise treat
20 or transfer such defendant in the same manner as if he or she were a
21 patient not in confinement under a criminal court order.
22 4. When a defendant is in the custody of the commissioner pursuant to
23 an order of commitment or an order of retention, he or she may make any
24 motion authorized by this chapter which is susceptible of fair determi-
25 nation without his or her personal participation. If the court denies
26 any such motion it must be without prejudice to a renewal thereof after
27 the criminal action against the defendant has been ordered to proceed.
28 If the court enters an order dismissing the indictment and does not
29 direct that the charge or charges be resubmitted to a grand jury, the
30 court must direct that such order of dismissal be served upon the
31 commissioner.
32 5. When a defendant is in the custody of the commissioner pursuant to
33 an order of commitment or an order of retention, the superior court that
34 issued such order may, upon motion of the defendant, and with the
35 consent of the district attorney, dismiss the indictment when the court
36 is satisfied that (a) the defendant is a resident or citizen of another
37 state or country and that he or she will be removed thereto upon
38 dismissal of the indictment, or (b) the defendant has been continuously
39 confined in the custody of the commissioner, either pursuant to this
40 article or pursuant to article nine or fifteen of the mental hygiene
41 law, for a period of more than two years. Before granting a motion
42 under this subdivision, the court must be further satisfied that
43 dismissal of the indictment is consistent with the ends of justice and
44 that custody of the defendant by the commissioner pursuant to an order
45 of commitment or an order of retention is not necessary for the
46 protection of the public and that care and treatment can be effectively
47 administered to the defendant without the necessity of such order. If
48 the court enters an order of dismissal under this subdivision, it must
49 set forth in the record the reasons for such action, and must direct
50 that such order of dismissal be served upon the commissioner. The
51 dismissal of an indictment pursuant to this subdivision constitutes a
52 bar to any further prosecution of the charge or charges contained in
53 such indictment.
54 [6. (a) Notwithstanding any other provision of law, no person commit-
55 ted to the custody of the commissioner pursuant to this article, or
56 continuously thereafter retained in such custody, shall be discharged,
A. 5063 10
1 released on condition or placed in any less secure facility or on any
2 less restrictive status, including, but not limited to vacations,
3 furloughs and temporary passes, unless the commissioner or his or her
4 designee, which may include the director of an appropriate institution,
5 shall deliver written notice, at least four days, excluding Saturdays,
6 Sundays and holidays, in advance of the change of such committed
7 person's facility or status, or in the case of a person committed pursu-
8 ant to a final order of observation written notice upon discharge of
9 such committed person, to all of the following:
10 (1) The district attorney of the county from which such person was
11 committed;
12 (2) The superintendent of state police;
13 (3) The sheriff of the county where the facility is located;
14 (4) The police department having jurisdiction of the area where the
15 facility is located;
16 (5) Any person who may reasonably be expected to be the victim of any
17 assault or any violent felony offense, as defined in the penal law, or
18 any offense listed in section 530.11 of this part which would be carried
19 out by the committed person; provided that the person who reasonably may
20 be expected to be a victim does not need to be a member of the same
21 family or household as the committed person; and
22 (6) Any other person the court may designate.
23 Said notice may be given by any means reasonably calculated to give
24 prompt actual notice.
25 (b) The notice required by this subdivision shall also be given imme-
26 diately upon the departure of such committed person from the actual
27 custody of the commissioner or an appropriate institution, without prop-
28 er authorization. Nothing in this subdivision shall be construed to
29 impair any other right or duty regarding any notice or hearing contained
30 in any other provision of law.
31 (c) Whenever a district attorney has received the notice described in
32 this subdivision, and the defendant is in the custody of the commission-
33 er pursuant to a final order of observation or an order of commitment,
34 he may apply within three days of receipt of such notice to a superior
35 court, for an order directing a hearing to be held to determine whether
36 such committed person is a danger to himself or others. Such hearing
37 shall be held within ten days following the issuance of such order. Such
38 order may provide that there shall be no further change in the committed
39 person's facility or status until the hearing. Upon a finding that the
40 committed person is a danger to himself or others, the court shall issue
41 an order to the commissioner authorizing retention of the committed
42 person in the status existing at the time notice was given hereunder,
43 for a specified period, not to exceed six months. The district attorney
44 and the committed person's attorney shall be entitled to the committed
45 person's clinical records in the commissioner's custody, upon the issu-
46 ance of an order directing a hearing to be held.
47 (d) Nothing in this subdivision shall be construed to impair any other
48 right or duty regarding any notice or hearing contained in any other
49 provision of law.]
50 § 9. Section 730.70 of the criminal procedure law, as amended by chap-
51 ter 629 of the laws of 1974, is amended to read as follows:
52 § 730.70 Fitness to proceed; procedure following termination of custody
53 by commissioner.
54 When a defendant is in the custody of the commissioner on the expira-
55 tion date of a final or temporary order of observation or an order of
56 commitment, or on the expiration date of the last order of retention, or
A. 5063 11
1 on the date an order dismissing an indictment is served upon the commis-
2 sioner, the superintendent of the institution in which the defendant is
3 confined may retain him or her for care and treatment for a period of no
4 more than thirty days from such date. If [the] during such time two
5 psychiatric examiners engaged by the superintendent [determines] deter-
6 mine that the defendant is so mentally ill or mentally defective as to
7 require continued care and treatment in an institution, he or she may,
8 before the expiration of such thirty day period, apply for an order of
9 [certification] retention in the manner prescribed in section [31.33]
10 9.33 or 15.33 of the mental hygiene law.
11 § 10. Subdivision (a) of section 9.33 of the mental hygiene law, as
12 amended by chapter 789 of the laws of 1985, is amended to read as
13 follows:
14 (a) If the director shall determine that a patient admitted upon an
15 application supported by medical certification, for whom there is no
16 court order authorizing retention for a specified period, is in need of
17 retention and if such patient does not agree to remain in such hospital
18 as a voluntary patient, the director shall apply to the supreme court or
19 the county court in the county where the hospital is located for an
20 order authorizing continued retention. A court order issued pursuant to
21 article seven hundred thirty of the criminal procedure law shall be
22 deemed an order of retention under this section. Such application shall
23 be made no later than sixty days from the date of involuntary admission
24 on application supported by medical certification or thirty days from
25 the date of an order denying an application for patient's release pursu-
26 ant to section 9.31, whichever is later; and the hospital is authorized
27 to retain the patient for such further period during which the hospital
28 is authorized to make such application or during which the application
29 may be pending. The director shall cause written notice of such applica-
30 tion to be given the patient and a copy thereof shall be given
31 personally or by mail to the persons required by this article to be
32 served with notice of such patient's initial admission and to the mental
33 hygiene legal service. Such notice shall state that a hearing may be
34 requested and that failure to make such a request within five days,
35 excluding Sunday and holidays, from the date that the notice was given
36 to the patient will permit the entry without a hearing of an order
37 authorizing retention.
38 § 11. Subdivision (a) of section 15.33 of the mental hygiene law, as
39 amended by chapter 789 of the laws of 1985, is amended to read as
40 follows:
41 (a) If the director shall determine that a resident admitted upon an
42 application supported by medical certification, for whom there is no
43 court order authorizing retention for a specified period, is in need of
44 retention and if such resident does not agree to remain in such school
45 as a voluntary resident, the director shall apply to the supreme court
46 or the county court in the county where the school is located for an
47 order authorizing continued retention. A court order issued pursuant to
48 article seven hundred thirty of the criminal procedure law shall be
49 deemed an order of retention under this section. Such application shall
50 be made no later than sixty days from the date of involuntary admission
51 on application supported by medical certification or thirty days from
52 the date of an order denying an application for resident's release
53 pursuant to section 15.31, whichever is later; and the school is author-
54 ized to retain the resident for such further period during which the
55 school is authorized to make such application or during which the appli-
56 cation may be pending. The director shall cause written notice of such
A. 5063 12
1 application to be given the resident and a copy thereof shall be given
2 personally or by mail to the persons required by this article to be
3 served with notice of such resident's initial admission and to the
4 mental hygiene legal service. Such notice shall state that a hearing may
5 be requested and that failure to make such a request within five days,
6 excluding Sunday and holidays, from the date that the notice was given
7 to the resident will permit the entry without a hearing of an order
8 authorizing retention.
9 § 12. Subdivision (c) of section 43.03 of the mental hygiene law, as
10 amended by chapter 7 of the laws of 2007, is amended to read as follows:
11 (c) Patients receiving services while being held in the custody of the
12 commissioner pursuant to order of a criminal court, other than patients
13 committed to the department pursuant to section 330.20 of the criminal
14 procedure law, or for examination pursuant to an order of the family
15 court shall not be liable to the department for such services. Fees due
16 the department for such services shall be paid by the county in which
17 such court is located unless such services are or could be eligible for
18 payment pursuant to the federal medical care assistance program and
19 except that counties shall not be responsible for the cost of services
20 rendered patients committed to the department pursuant to section 330.20
21 of the criminal procedure law, section five hundred eight of the
22 correction law or patients committed to the department pursuant to arti-
23 cle nine, ten or fifteen of this chapter.
24 § 13. In the event that any county or any city with a population of
25 one million or more in any one year reduces payments made to the state
26 for restoration services pursuant to article 730 of the criminal proce-
27 dure law by an amount which is less than the average of such expendi-
28 tures for the previous three years, then such county or such city shall
29 utilize such savings for needed services which are identified as needed
30 in the local services plan, as defined in section 41.03 of the mental
31 hygiene law, of such county or such city.
32 § 14. This act shall take effect on the ninetieth day after it shall
33 have become a law.
