STATE OF NEW YORK
________________________________________________________________________
8092
2019-2020 Regular Sessions
IN ASSEMBLY
May 31, 2019
___________
Introduced by M. of A. JAFFEE -- (at request of the Office of Court
Administration) -- read once and referred to the Committee on Children
and Families
AN ACT to amend the family court act and the mental hygiene law, in
relation to the determination of capacity to stand trial in juvenile
delinquency proceedings in family court
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 322.1 of the family court act, as
2 amended by chapter 566 of the laws of 1994, is amended to read as
3 follows:
4 1. At any proceeding under this article, the court must issue an order
5 that the respondent be examined as provided herein when it is of the
6 opinion that the respondent may be an incapacitated person. Notwith-
7 standing the provisions of this or any other law, the court may direct
8 that the examination be conducted on an outpatient basis [when]. If the
9 respondent is [not] in custody at the time the court issues an order of
10 examination, the examination may be conducted at the place where the
11 respondent is being held in custody so long as no reasonable alternative
12 outpatient setting is available. The court shall order that two quali-
13 fied psychiatric examiners as defined in subdivision seven of section
14 730.10 of the criminal procedure law examine the respondent to determine
15 if he [is mentally ill, mentally retarded or developmentally disabled]
16 or she may be diagnosed as a person with mental illness or an intellec-
17 tual or developmental disability.
18 § 2. Subdivision 4, paragraphs (a), (c) and (d) of subdivision 5 and
19 subdivisions 6 and 7 of section 322.2 of the family court act, subdivi-
20 sions 4, 6 and 7 and paragraph (c) of subdivision 5 as added by chapter
21 920 of the laws of 1982, paragraph (a) of subdivision 5 as amended by
22 section 69 of part WWW of chapter 59 of the laws of 2017, and paragraph
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09846-05-9
A. 8092 2
1 (d) of subdivision 5 as amended by chapter 41 of the laws of 2010, are
2 amended to read as follows:
3 4. If the court finds that there is probable cause to believe that the
4 respondent committed a misdemeanor, the respondent shall be committed to
5 the custody of the appropriate commissioner for a reasonable period not
6 to exceed ninety days. Unless the court specifies that such commitment
7 shall be in a residential facility, such commissioner having custody may
8 arrange for treatment in an appropriate facility or program, including
9 an outpatient program, in accordance with subdivision (e) of section
10 7.09 or subdivision (c-1) of section 13.09 respectively, of the mental
11 hygiene law. The court shall dismiss the petition on the issuance of the
12 order of commitment and such dismissal shall constitute a bar to further
13 prosecution of the charge or charges contained in the petition.
14 (a) If the court finds that there is probable cause to believe that
15 the respondent committed a felony, it shall order the respondent commit-
16 ted to the custody of the commissioner of mental health or the commis-
17 sioner of the office for people with developmental disabilities for an
18 initial period not to exceed one year from the date of such order.
19 Unless the court specifies that such commitment shall be in a residen-
20 tial facility, such commissioner having custody may arrange for treat-
21 ment in an appropriate facility or program, including an outpatient
22 program, in accordance with subdivision (e) of section 7.09 or subdivi-
23 sion (c-1) of section 13.09 respectively, of the mental hygiene law.
24 Such period may be extended annually upon further application to the
25 court by the commissioner having custody or his or her designee. Such
26 application must be made not more than sixty days prior to the expira-
27 tion of such period on forms that have been prescribed by the chief
28 administrator of the courts. At that time, the commissioner must give
29 written notice of the application to the respondent, the counsel repres-
30 enting the respondent and the mental hygiene legal service if the
31 respondent is at a residential facility. Upon receipt of such applica-
32 tion, the court must conduct a hearing to determine the issue of capaci-
33 ty. If, at the conclusion of a hearing conducted pursuant to this subdi-
34 vision, the court finds that the respondent is no longer incapacitated,
35 he or she shall be returned to the family court for further proceedings
36 pursuant to this article. If the court is satisfied that the respondent
37 continues to be incapacitated, the court shall authorize continued
38 custody of the respondent by the commissioner in a facility or program
39 for a period not to exceed one year. Such extensions shall not continue
40 beyond a reasonable period of time necessary to determine whether the
41 respondent will attain the capacity to proceed to a fact finding hearing
42 in the foreseeable future but in no event shall continue beyond the
43 respondent's eighteenth birthday or, if the respondent was at least
44 sixteen years of age when the act was committed, beyond the respondent's
45 twenty-first birthday.
46 (c) If the court finds that there is probable cause to believe that
47 the respondent has committed a designated felony act, the court shall
48 require that treatment be provided in a residential facility within the
49 appropriate office of the department of mental hygiene or in an outpa-
50 tient facility if the commissioner having custody of the child petitions
51 the court pursuant to subdivision seven of this section and such court
52 approves.
53 (d) The commissioner shall review the condition of the respondent
54 within forty-five days after the respondent is committed to the custody
55 of the commissioner. He or she shall make a second review within ninety
56 days after the respondent is committed to his or her custody. Thereaft-
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1 er, he or she shall review the condition of the respondent every ninety
2 days. The respondent and the counsel for the respondent, shall be noti-
3 fied of any such review and afforded an opportunity to be heard. The
4 commissioner having custody shall apply to the court for an order
5 dismissing the petition whenever he or she determines that there is a
6 substantial probability that the respondent will continue to be incapac-
7 itated for the foreseeable future. At the time of such application the
8 commissioner must give written notice of the application to the respond-
9 ent, the presentment agency and the mental hygiene legal service if the
10 respondent is at a residential facility. Upon receipt of such applica-
11 tion, the court may on its own motion conduct a hearing to determine
12 whether there is substantial probability that the respondent will
13 continue to be incapacitated for the foreseeable future, and it must
14 conduct such hearing if a demand therefor is made by the respondent or
15 the mental hygiene legal service within ten days from the date that
16 notice of the application was given to them. The respondent may apply to
17 the court for an order of dismissal on the same ground.
18 6. Any order pursuant to this section dismissing a petition shall not
19 preclude an application for voluntary or involuntary care and treatment
20 in a facility or program of the appropriate office of the department of
21 mental hygiene pursuant to the provisions of the mental hygiene law.
22 Unless the respondent is admitted pursuant to such an application he or
23 she shall be released.
24 7. If the commissioner having custody of a child committed to a resi-
25 dential facility pursuant to subdivision four or paragraph (a) of subdi-
26 vision five of this section determines at any time that such child may
27 be more appropriately treated in a non-residential facility or on an
28 outpatient basis, he or she may arrange for such treatment. If the
29 commissioner having custody of a child committed to a residential facil-
30 ity pursuant to paragraph (c) of subdivision five of this section deter-
31 mines at any time that such child may be more appropriately treated in a
32 non-residential facility or on an outpatient basis, he or she may peti-
33 tion the family court for a hearing. If the court finds after a hearing
34 that treatment in a non-residential facility or on an outpatient basis
35 would be more appropriate for such child, the court shall modify its
36 order of commitment to [authorize] direct the commissioner to transfer
37 [of such] the child to a non-residential facility or arrange outpatient
38 treatment. Application for [such] a hearing to determine whether any
39 child committed to a residential facility under subdivisions four or
40 five of this section may be more appropriately treated in a non-residen-
41 tial facility or on an outpatient basis may be made by the respondent.
42 § 3. Subdivision (e) of section 7.09 of the mental hygiene law, as
43 amended by chapter 920 of the laws of 1982 and as relettered by chapter
44 509 of the laws of 1988, is amended to read as follows:
45 (e) The commissioner shall accept custody of a juvenile under an order
46 issued by the family court pursuant to the provisions of section 322.2
47 of the family court act. He or she may place the juvenile in any appro-
48 priate facility or program under his or her jurisdiction, but he or she
49 shall comply with any order requiring treatment in a residential facili-
50 ty made pursuant to paragraph (c) of subdivision five of section 322.2
51 of the family court act, unless, after a hearing held in accordance with
52 subdivision seven of section 322.2 of the family court act, the court
53 modifies the order. In determining the appropriate placement, the
54 commissioner shall be furnished with a copy of the findings of the court
55 pursuant to subdivision four or five of section 322.2 of the family
56 court act and shall consider the nature of the act alleged in such find-
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1 ings and the level of the juvenile's mental disability. The commissioner
2 shall review the condition of the juvenile in accordance with the
3 requirements of section 322.2 of the family court act and he or she may
4 petition the family court at any time for any relief authorized by such
5 section.
6 § 4. Subdivision (c) of section 13.09 of the mental hygiene law, as
7 amended by chapter 920 of the laws of 1982, is amended to read as
8 follows:
9 [(c)] (c-1) The commissioner shall accept custody of a juvenile under
10 an order issued by the family court pursuant to the provisions of
11 section 322.2 of the family court act. He or she may place the juvenile
12 in any appropriate facility or program under his or her jurisdiction,
13 but he or she shall comply with any order requiring treatment in a resi-
14 dential facility made pursuant to paragraph (c) of subdivision five of
15 section 322.2 of the family court act, unless, after a hearing held in
16 accordance with subdivision seven of section 322.2 of the family court
17 act, the court modifies the order. In determining the appropriate place-
18 ment, the commissioner shall be furnished with a copy of the findings of
19 the court pursuant to subdivision four or five of section 322.2 of the
20 family court act and shall consider the nature of the act alleged in
21 such findings and the level of the juvenile's mental disability. The
22 commissioner shall review the condition of the juvenile in accordance
23 with the requirements of section 322.2 of the family court act and he or
24 she may petition the family court at any time for any relief authorized
25 by such section.
26 § 5. This act shall take effect on the ninetieth day after it shall
27 have become a law; provided, however, that the amendments made to para-
28 graph (a) of subdivision 5 of section 322.2 of the family court act made
29 by section two of this act shall take effect on the same date and in the
30 same manner as section 69 of part WWW of chapter 59 of the laws of 2017,
31 takes effect.
