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S01004 Summary:

S01004 Actions:

S01004 Committee Votes:

S01004 Floor Votes:

S01004 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         1004--B
 
                               2025-2026 Regular Sessions
 
                    IN SENATE
 
                                       (Prefiled)
 
                                     January 8, 2025
                                       ___________
 
        Introduced  by  Sens.  BROUK,  BAILEY,  FAHY, FERNANDEZ, MURRAY, O'MARA,
          RIVERA, WALCZYK, WEBB -- read twice  and  ordered  printed,  and  when
          printed  to  be  committed  to  the  Committee  on  Codes -- committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee -- recommitted to the Committee on Codes in  accord-
          ance  with  Senate  Rule  6,  sec.  8  -- reported favorably from said
          committee and committed to  the  Committee  on  Finance  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee
 
        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] their 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] such examiner sets forth [his] their opinion as to  whether
    11  the  defendant  is  or  is  not  an incapacitated person, the nature and
    12  extent of [his] their examination and, if [he or she  finds]  they  find
    13  that the defendant is an incapacitated person, [his] their diagnosis and
    14  prognosis  and a detailed statement of the reasons for [his] their opin-
    15  ion by making particular reference to those aspects of  the  proceedings
    16  wherein the defendant lacks capacity to understand or to assist in [his]
    17  their  own  defense.   The report must also state the examiner's profes-
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01866-05-6
        S. 1004--B                          2
 
     1  sional opinion as to whether or not  there  is  at  least  a  reasonable
     2  expectation that restoration services could have a substantial probabil-
     3  ity  of restoring the defendant to competence within a reasonable period
     4  of time. The state administrator and the commissioner must jointly adopt
     5  the  form  of  the examination report; and the state administrator shall
     6  prescribe the number of copies thereof that must  be  submitted  to  the
     7  court by the director.
     8    § 3. Section 730.10 of the criminal procedure law is amended by adding
     9  a new subdivision 10 to read as follows:
    10    10.  "Restoration  services"  means  those  services which may include
    11  medication support, classroom-based competency instruction, mock trials,
    12  symptom management, and rehabilitative services provided to an incapaci-
    13  tated person which are designed to improve their mental state or  devel-
    14  opmental  status  to  the  extent  that  they can understand the charges
    15  against them and participate in their own defense. Restoration  services
    16  may  supplement  mental  health  treatment aimed at recovery from mental
    17  illness or  services  aimed  at  improving  a  developmentally  disabled
    18  person's ability to function on a day-to-day basis.
    19    §  4. Section 730.20 of the criminal procedure law, subdivisions 1 and
    20  5 as amended by chapter 693 of the laws of 1989  and  subdivision  7  as
    21  amended  by  chapter  692  of  the  laws  of 1972, is amended to read as
    22  follows:
    23  § 730.20  Fitness to proceed; generally.
    24    1.  [The appropriate director to whom a criminal court issues an order
    25  of examination must be  determined  in  accordance  with  rules  jointly
    26  adopted  by the judicial conference and the commissioner.]  Upon receipt
    27  of an examination order, the director to whom the court  has  issued  an
    28  order  must  designate two qualified psychiatric examiners, of whom [he]
    29  such director may be one, to examine the defendant to determine if  [he]
    30  the  defendant  is an incapacitated person. In conducting their examina-
    31  tion, the psychiatric examiners [may] shall employ [any] a method [which
    32  is accepted by the medical profession for  the  examination  of  persons
    33  alleged to be mentally ill or mentally defective] as set forth in stand-
    34  ards  set  by  agreement  between  the  director and the commissioner to
    35  determine if the defendant is an incapacitated person.   The  court  may
    36  authorize a psychiatrist or psychologist retained by the defendant to be
    37  present at such examination.
    38    2.  When the defendant is not in custody at the time a court issues an
    39  order  of  examination,  because  [he]  the  defendant  was  theretofore
    40  released on bail or on [his] the defendant's own recognizance, the court
    41  [may] shall direct that the examination be conducted on  an  out-patient
    42  basis,  and  at  such time and place as the director shall designate and
    43  the court shall order the defendant to appear for such examination.  If,
    44  however, the director informs the court that hospital confinement of the
    45  defendant is necessary for  an  effective  examination,  the  court  may
    46  direct  that  the defendant be confined in a hospital [designated by the
    47  director] operated or approved by the commissioner only until the  exam-
    48  ination is completed. In no event shall the need for such examination be
    49  a  basis  for incarcerating a defendant who has been released on bail or
    50  their own recognizance.
    51    3.  When the defendant is in custody at the time  a  court  issues  an
    52  order  of  examination,  the  examination must be conducted at the place
    53  where the defendant is being held in custody.  If, however, the director
    54  determines that hospital confinement of the defendant is  necessary  for
    55  an  effective  examination,  the sheriff must deliver the defendant to a
    56  hospital designated by the [director] commissioner and  hold  [him]  the
        S. 1004--B                          3
 
     1  defendant in custody therein, under sufficient guard, until the examina-
     2  tion is completed.
     3    4.  Hospital confinement under subdivisions two and three shall be for
     4  a  period not exceeding [thirty] ten days, except that, upon application
     5  of the director, the court may authorize confinement for  an  additional
     6  period  not exceeding [thirty] ten days if it is satisfied that a longer
     7  period is necessary to complete the examination. During  the  period  of
     8  hospital confinement, the physician in charge of the hospital may admin-
     9  ister  or  cause  to  be  administered  to  the defendant such emergency
    10  psychiatric, medical or other therapeutic treatment  as  in  [his]  such
    11  physician's judgment should be administered.
    12    5.  Each psychiatric examiner, after [he has completed his] completing
    13  the  examination  of  the defendant, must promptly prepare and submit to
    14  the director an examination report  [and  submit  it  to  the  director]
    15  setting  forth  the  examiner's opinion as to whether or not there is at
    16  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. If the psychiatric examiners are not unani-
    19  mous in their opinion as to whether the defendant is or is not an  inca-
    20  pacitated  person, the director must designate another qualified psychi-
    21  atric examiner to  examine  the  defendant  to  determine  if  [he]  the
    22  defendant is an incapacitated person and, if so, whether or not there is
    23  at least a reasonable expectation that restoration services could have a
    24  substantial  probability of restoring the defendant to competence within
    25  a reasonable period of time.  Upon receipt of the  examination  reports,
    26  the  director  must  submit  them  to the court that issued the order of
    27  examination.  The court must furnish a copy of the  reports  to  counsel
    28  for the defendant and to the district attorney.
    29    6.  When  a defendant is subjected to examination pursuant to an order
    30  issued by a criminal court in accordance with this article,  any  state-
    31  ment  made by [him] such defendant for the purpose of the examination or
    32  treatment shall be inadmissible in evidence against [him] such defendant
    33  in any criminal action on any  issue  other  than  that  of  [his]  such
    34  defendant's  mental  condition[,  but  such statement is admissible upon
    35  that issue whether or not it would  otherwise  be  deemed  a  privileged
    36  communication].
    37    7.  A psychiatric examiner, who is not regularly employed by the coun-
    38  ty, state, or city of New York, is entitled to  [his]  their  reasonable
    39  traveling expenses[, a] and to a reasonable fee [of fifty dollars] to be
    40  negotiated  with  the  examiner  by the director or the county or, if no
    41  such fee is agreed upon, to be set by the court for each examination  of
    42  a  defendant and [a fee of fifty dollars] for each appearance at a court
    43  hearing or trial [but not exceeding two  hundred  dollars  in  fees  for
    44  examination  and testimony in any one case]; except that if such psychi-
    45  atric examiner be an employee of the county or of the state of New  York
    46  [he]  they  shall  be  entitled  only  to reasonable traveling expenses,
    47  unless such psychiatric examiner makes the examination or appears  at  a
    48  court  hearing  or  trial  outside  [his] their hours of state or county
    49  employment in a county  in  which  the  director  of  community  [mental
    50  health] services certifies to the fiscal officer thereof that there is a
    51  shortage  of  qualified  [psychiatrists]  examiners available to conduct
    52  examinations under [the criminal procedure law]  this  chapter  in  such
    53  county,  in  which  event  [he]  such examiner shall be entitled to [the
    54  foregoing] such fees and reasonable traveling expenses  as  approved  by
    55  the  court.  Such fees and traveling expenses and the costs of sending a
    56  defendant to another place of detention or to a  hospital  for  examina-
        S. 1004--B                          4
 
     1  tion[,  of  his maintenance therein] and the cost of returning [him] the
     2  defendant shall, when approved and so ordered by the court, be a  charge
     3  of the county in which the defendant is being tried, and the cost of the
     4  maintenance of such defendant therein shall be a cost to the state.
     5    §  5.  Section  730.30 of the criminal procedure law, subdivision 3 as
     6  amended by chapter 629 of the laws  of  1974,  is  amended  to  read  as
     7  follows:
     8  § 730.30 Fitness to proceed; order of examination.
     9    1.    At  any  time  after a defendant is arraigned upon an accusatory
    10  instrument other than a felony complaint and before  the  imposition  of
    11  sentence,  or  at  any time after a defendant is arraigned upon a felony
    12  complaint and before [he] such defendant is held for the action  of  the
    13  grand  jury,  or  upon arraignment on an indictment by a grand jury, the
    14  court wherein the criminal action is pending [must] may issue  an  order
    15  of  examination  when  it  [is of the opinion] has a reasonable basis to
    16  believe that the defendant may be an incapacitated person.
    17    2.  When the examination reports submitted to the court show that each
    18  psychiatric examiner is of the opinion that  the  defendant  is  not  an
    19  incapacitated  person, the court may, on its own motion, conduct a hear-
    20  ing to determine the issue of capacity, and it must  conduct  a  hearing
    21  upon  motion  therefor  by the defendant or by the district attorney. If
    22  the court does not decide to hold a hearing on its  own  motion  and  no
    23  motion  for  a  hearing is made, or if, following a hearing the court is
    24  satisfied that the defendant is not an incapacitated person, the  crimi-
    25  nal action against the defendant must proceed. [If, following a hearing,
    26  the  court  is  satisfied  that  the  defendant  is not an incapacitated
    27  person, the criminal action against him must proceed; if  the  court  is
    28  not so satisfied, it must issue a further order of examination directing
    29  that the defendant be examined by different psychiatric examiners desig-
    30  nated by the director.]
    31    3.  When the examination reports submitted to the court show that each
    32  psychiatric examiner is of the opinion that the defendant is an incapac-
    33  itated person and that there is at least a reasonable  expectation  that
    34  restoration  services  could have a substantial probability of restoring
    35  the defendant to competence within a  reasonable  period  of  time,  the
    36  court  [may,  on its own motion,] may conduct a hearing to determine the
    37  issue of capacity [and it must conduct such hearing upon motion therefor
    38  by the defendant or by the district attorney].
    39    4. When the examination reports submitted to the court show  that  the
    40  psychiatric  examiners  are not unanimous in their opinion as to whether
    41  the defendant is or is not an incapacitated person[, or when  the  exam-
    42  ination  reports submitted to the superior court show that the psychiat-
    43  ric examiners are not unanimous in  their  opinion  as  to  whether  the
    44  defendant  is or is not a dangerous incapacitated person] and that there
    45  is at least a reasonable expectation  that  restoration  services  could
    46  have  a substantial probability of restoring the defendant to competence
    47  within a reasonable period of time, the court must conduct a hearing  to
    48  determine  the  issue  of capacity [or dangerousness] and expectation of
    49  restoration within a reasonable time.
    50    § 6. Subdivision 1 of section 730.40 of the criminal procedure law, as
    51  amended by chapter 7 of the laws of 2013, is amended to read as follows:
    52    1. When a local criminal court, following a hearing conducted pursuant
    53  to subdivision two, three or four of section 730.30 of this article,  is
    54  satisfied  that the defendant is not an incapacitated person, the crimi-
    55  nal action against [him or her] such defendant must proceed. If  [it]  a
    56  local criminal court accusatory instrument other than a felony complaint
        S. 1004--B                          5
 
     1  has been filed against the defendant and the court is satisfied that the
     2  defendant  is an incapacitated person, [or if no motion for such a hear-
     3  ing is made, such court must issue a final or temporary order of  obser-
     4  vation committing him or her to the custody of the commissioner for care
     5  and  treatment  in an appropriate institution for a period not to exceed
     6  ninety days from the date of the  order,  provided,  however,  that  the
     7  commissioner  may  designate  an appropriate hospital for placement of a
     8  defendant for whom a final order of observation has been  issued,  where
     9  such  hospital is licensed by the office of mental health and has agreed
    10  to accept, upon referral by  the  commissioner,  defendants  subject  to
    11  final  orders of observation issued under this subdivision. When a local
    12  criminal court accusatory instrument other than a felony  complaint  has
    13  been  filed  against the defendant,] such court must issue a final order
    14  of observation. When a felony  complaint  has  been  filed  against  the
    15  defendant,  such  court  must  issue  a  temporary  order of observation
    16  committing [him or her] such defendant to the custody of the commission-
    17  er for [care and  treatment]  restoration  services  in  an  appropriate
    18  institution  or,  [upon  the  consent  of  the district attorney] in the
    19  discretion of the court, committing [him or her] such defendant  to  the
    20  custody  of  the  commissioner  for  [care  and  treatment]  restoration
    21  services on an out-patient basis, for a period not to exceed ninety days
    22  from the date of such order[, except  that,  with  the  consent  of  the
    23  district  attorney,]  or it may issue a final order of observation. Upon
    24  the issuance of a final order  of  observation,  the  district  attorney
    25  shall  immediately transmit to the commissioner, in a manner intended to
    26  protect the confidentiality of the information,  a  list  of  names  and
    27  contact  information of persons who may reasonably be expected to be the
    28  victim of any assault or any violent felony offense, as defined  in  the
    29  penal  law,  or  any  offense listed in section 530.11 of this [chapter]
    30  part which would be carried out by the committed person;  provided  that
    31  the  person  who reasonably may be expected to be a victim does not need
    32  to be a member of the same family or household as the committed person.
    33    § 7. Section 730.50 of the criminal procedure law,  subdivision  1  as
    34  amended  by  chapter  7 of the laws of 2013, subdivision 2 as amended by
    35  chapter 789 of the laws of 1985, subdivision 5 as amended by chapter 629
    36  of the laws of 1974, is amended to read as follows:
    37  § 730.50 Fitness to proceed; indictment.
    38    1. When a superior court, following a hearing  conducted  pursuant  to
    39  subdivision  two,  three  or  four of section 730.30 of this article, is
    40  satisfied that the defendant is not an incapacitated person, the  crimi-
    41  nal  action  against [him or her] such defendant must proceed. If [it is
    42  satisfied] after a hearing, the court makes a finding that the defendant
    43  is an incapacitated person, [or if no motion for such a hearing is made]
    44  and that there is at least a  reasonable  expectation  that  restoration
    45  services could have a substantial probability of restoring the defendant
    46  to  competence  within  a  reasonable period of time, it must adjudicate
    47  [him or her] them an incapacitated person[, and must issue a final order
    48  of observation or an order of commitment]. When the indictment does  not
    49  charge  a  felony or when the defendant has been convicted of an offense
    50  other than a felony, such court (a) must issue a final order of observa-
    51  tion [committing the defendant to the custody of  the  commissioner  for
    52  care  and  treatment  in  an appropriate institution for a period not to
    53  exceed ninety days from the date of such order, provided, however,  that
    54  the  commissioner may designate an appropriate hospital for placement of
    55  a defendant for whom a final order of observation has been issued, where
    56  such hospital is licensed by the office of mental health and has  agreed
        S. 1004--B                          6

     1  to  accept,  upon  referral  by  the commissioner, defendants subject to
     2  final orders of observation issued under this subdivision], and (b) must
     3  dismiss the indictment filed in such court against  the  defendant,  and
     4  such  dismissal  constitutes  a  bar  to  any further prosecution of the
     5  charge or charges contained in such indictment. Upon the issuance  of  a
     6  final  order  of  observation,  the  district attorney shall immediately
     7  transmit to the commissioner, in a manner intended to protect the confi-
     8  dentiality of the information, a list of names and  contact  information
     9  of  persons  who  may  reasonably  be  expected  to be the victim of any
    10  assault or any violent felony offense, as defined in the penal  law,  or
    11  any  offense listed in section 530.11 of this [chapter] part which would
    12  be carried out by the committed person; provided  that  the  person  who
    13  reasonably  may  be expected to be a victim does not need to be a member
    14  of the same family or  household  as  the  committed  person.  When  the
    15  indictment charges a felony [or when the defendant has been convicted of
    16  a felony] and the court has determined that  there is at least a reason-
    17  able  expectation  that  restoration  services  could have a substantial
    18  probability of restoring the defendant to competence within a reasonable
    19  period of time, it must issue an  order  of  commitment  committing  the
    20  defendant to the custody of the commissioner [for care and treatment] to
    21  receive restoration services in an appropriate institution or[, upon the
    22  consent  of the district attorney,] committing [him or her] such defend-
    23  ant to the custody of the commissioner for  care  and  treatment  on  an
    24  out-patient  basis,  for  a  period not to exceed [one year] ninety days
    25  from the date of such order. Upon the issuance of an  order  of  commit-
    26  ment,  the  court must exonerate the defendant's bail if [he or she was]
    27  they were previously at liberty on bail; provided, however, that exoner-
    28  ation of bail is not required when  a  defendant  is  committed  to  the
    29  custody  of  the  commissioner  for care and treatment on an out-patient
    30  basis. [When the defendant is in the custody of the commissioner  pursu-
    31  ant  to  a  final  order  of observation, the commissioner or his or her
    32  designee, which may include the director of an appropriate  institution,
    33  immediately  upon  the  discharge of the defendant, must certify to such
    34  court that he or she has complied with the notice provisions  set  forth
    35  in  paragraph  (a) of subdivision six of section 730.60 of this article]
    36  In the event that the court determines there is not a reasonable  expec-
    37  tation that restoration services could have a substantial probability of
    38  restoring the defendant to competence within a reasonable period of time
    39  the  matter  shall  be  referred  to  the  supreme  court  for a hearing
    40  conducted   in accordance with section  9.33  or  15.31  of  the  mental
    41  hygiene law.
    42    2.  When a defendant is in the custody of the commissioner immediately
    43  prior to the expiration of the period prescribed in a temporary order of
    44  commitment and the superintendent of the institution wherein the defend-
    45  ant is confined is of the opinion that the defendant continues to be  an
    46  incapacitated  person,  such superintendent must apply to the court that
    47  issued such order for an order of retention for an additional period  of
    48  ninety  days.    The  court  must  hold a hearing on this application to
    49  determine if there is a substantial probability of recovery in the fore-
    50  seeable future. If the court determines that there  is  such  reasonable
    51  expectation  of restoration, it shall issue an order of retention for an
    52  additional ninety days. If the court finds that the defendant  is  still
    53  incapacitated  and there is not a substantial probability of restoration
    54  in the foreseeable future, it  shall  refer  the  matter  to  the  civil
    55  section of the supreme court in the county where the defendant's case is
    56  pending, for a hearing pursuant to article nine or fifteen of the mental
        S. 1004--B                          7
 
     1  hygiene  law  to  determine  if  the  defendant shall be hospitalized or
     2  otherwise retained on an involuntary basis.  [Such application  must  be
     3  made  within  sixty days prior to the expiration of such period on forms
     4  that  have  been  jointly  adopted  by  the  judicial conference and the
     5  commissioner.] The superintendent must give written notice of the appli-
     6  cation for such order to the defendant and to the mental  hygiene  legal
     7  service.    Upon receipt of such application, the court [may, on its own
     8  motion,] shall conduct a hearing [to determine the  issue  of  capacity,
     9  and  it  must  conduct  such hearing if a demand therefor is made by the
    10  defendant or the mental hygiene legal service within ten days  from  the
    11  date  that  notice of the application was given them. If, at the conclu-
    12  sion of a hearing conducted pursuant to this subdivision, the  court  is
    13  satisfied  that  the defendant is no longer an incapacitated person, the
    14  criminal action against him must proceed. If it is  satisfied  that  the
    15  defendant continues to be an incapacitated person, or if no demand for a
    16  hearing  is  made, the court must adjudicate him an incapacitated person
    17  and must issue an order of retention  which  shall  authorize  continued
    18  custody  of the defendant by the commissioner for a period not to exceed
    19  one year] pursuant to the provisions of article nine or fifteen  of  the
    20  mental hygiene law and the court shall order that the defendant shall be
    21  maintained  in  the  custody  of  the  commissioner but transferred to a
    22  hospital or other appropriate institution to be  involuntarily  admitted
    23  pursuant  to  article nine  or fifteen of the mental hygiene law subject
    24  to the retention provisions of section  9.33  or  15.31  of  the  mental
    25  hygiene  law  except  as specifically provided herein.  Such order shall
    26  not be deemed in any way to be the order of a criminal court.
    27    3. [When] Before a defendant is [in] released from the custody of  the
    28  commissioner   [immediately  prior  to  the  expiration  of  the  period
    29  prescribed in the first order of retention, the procedure set  forth  in
    30  subdivision two shall govern the application for and the issuance of any
    31  subsequent  order  of  retention,  except  that any subsequent orders of
    32  retention must be for periods not to exceed two  years  each;  provided,
    33  however,] either pursuant to this section or pursuant to article nine or
    34  fifteen  of  the  mental  hygiene law, the court shall hold a hearing to
    35  determine whether or not the defendant continues to be an  incapacitated
    36  person.  If,  at  the conclusion of a hearing conducted pursuant to this
    37  subdivision, the court is satisfied that the defendant is no  longer  an
    38  incapacitated    person,  the criminal action  against them must proceed
    39  except that the court shall have the discretion to dismiss the  case  in
    40  the  interests  of justice. If, at the conclusion of a hearing conducted
    41  pursuant to this subdivision, the court finds that the defendant contin-
    42  ues to be an incapacitated person then the court shall make an order  in
    43  accordance  with section 9.33 or 15.31 of the mental hygiene law. In any
    44  case that the aggregate of periods prescribed in the temporary order  of
    45  commitment[,  the  first order of retention and all subsequent orders of
    46  retention] and any order of retention pursuant to this article or  arti-
    47  cle nine or fifteen of the mental hygiene law must not exceed two-thirds
    48  of  the  authorized  maximum  term of imprisonment for the highest class
    49  felony charged in the indictment [or for the  highest  class  felony  of
    50  which he was convicted].
    51    4.  When  a  defendant is in the custody of the commissioner either at
    52  the expiration of the authorized period prescribed in the last order  of
    53  retention  or  any order of retention issued pursuant to article nine or
    54  fifteen of the mental hygiene law, the criminal action  pending  against
    55  [him]  such defendant in the superior court that issued such order shall
    56  terminate for all purposes, and the commissioner must  promptly  certify
        S. 1004--B                          8
 
     1  to  such court and to the appropriate district attorney that the defend-
     2  ant was in [his] their custody on such expiration date. Upon receipt  of
     3  such  certification,  the  court  must  dismiss the indictment, and such
     4  dismissal  constitutes a bar to any further prosecution of the charge or
     5  charges contained in such indictment.
     6    [5. When, on the effective date of  this  subdivision,  any  defendant
     7  remains  in  the custody of the commissioner pursuant to an order issued
     8  under former code of criminal procedure section six hundred sixty-two-b,
     9  the superintendent or director of the institution where  such  defendant
    10  is  confined shall, if he believes that the defendant continues to be an
    11  incapacitated person, apply forthwith to a court of record in the county
    12  where the institution is located for an order of retention.  The  proce-
    13  dures  for  obtaining any order pursuant to this subdivision shall be in
    14  accordance with the provisions of subdivisions two, three  and  four  of
    15  this  section, except that the period of retention pursuant to the first
    16  order obtained under this subdivision shall be for  not  more  than  one
    17  year  and  any subsequent orders of retention must be for periods not to
    18  exceed two years each; provided, however, that the aggregate of the time
    19  spent in the custody of the commissioner pursuant to any order issued in
    20  accordance with the provisions of  former  code  of  criminal  procedure
    21  section  six hundred sixty-two-b and the periods prescribed by the first
    22  order obtained under this  subdivision  and  all  subsequent  orders  of
    23  retention  must  not exceed two-thirds of the authorized maximum term of
    24  imprisonment for the highest class felony charged in the  indictment  or
    25  the highest class felony of which he was convicted.]
    26    §  8. Section 730.60 of the criminal procedure law, subdivisions 1 and
    27  3 as amended by chapter 231 of  the  laws  of  2008,  subdivision  2  as
    28  amended  by  chapter  57  of  the  laws of 1984, subdivisions 4 and 5 as
    29  renumbered by chapter 629 of the laws of 1974, subdivision 6 as added by
    30  chapter 549 of the laws of 1980 and paragraphs (a) and (b)  of  subdivi-
    31  sion  6  as amended by chapter 7 of the laws of 2013, is amended to read
    32  as follows:
    33  § 730.60 Fitness to proceed; procedure following custody by  commission-
    34             er.
    35    1.  When a local criminal court issues a [final or] temporary order of
    36  observation or an order of commitment, it must forward such order and  a
    37  copy  of  the  examination  reports and the accusatory instrument to the
    38  commissioner[, and, if available, a copy of  the  pre-sentence  report].
    39  Upon  receipt  thereof,  the  commissioner must designate an appropriate
    40  institution operated by the department of mental hygiene  in  which  the
    41  defendant is to be placed[, provided, however, that the commissioner may
    42  designate  an appropriate hospital for placement of a defendant for whom
    43  a final order of observation has been issued,  where  such  hospital  is
    44  licensed  by  the office of mental health and has agreed to accept, upon
    45  referral by the commissioner, defendants  subject  to  final  orders  of
    46  observation  issued  under this subdivision]. The sheriff [must hold the
    47  defendant in custody pending such designation by the commissioner,  and]
    48  when notified of the designation, [the sheriff] must deliver the defend-
    49  ant  to  the superintendent of such institution. The superintendent must
    50  promptly inform the appropriate director of  the  mental  hygiene  legal
    51  service of the defendant's admission to such institution. If a defendant
    52  escapes from the custody of the commissioner, the escape shall interrupt
    53  the  period  prescribed  in  any  order  of  observation,  commitment or
    54  retention, and such interruption shall continue until the  defendant  is
    55  returned to the custody of the commissioner.
        S. 1004--B                          9
 
     1    2.  Except as otherwise provided in subdivisions four and five of this
     2  section, when a defendant is in the custody of the commissioner pursuant
     3  to a temporary order of observation or an  order  of  commitment  or  an
     4  order of retention, the criminal action pending against the defendant in
     5  the  court  that  issued such order is suspended [until] pending further
     6  order of the court. If the superintendent of the  institution  in  which
     7  the  defendant  is  confined  determines  that [he] such defendant is no
     8  longer an incapacitated person[. In that event], the court  that  issued
     9  such  order  and  the appropriate district attorney must be notified, in
    10  writing, by the superintendent of [his] their determination.  The  court
    11  must  thereupon proceed in accordance with the provisions of subdivision
    12  two of section 730.30 of this [chapter] article; provided,  however,  if
    13  the  court  is  satisfied  that  the  defendant remains an incapacitated
    14  person, and upon consent of all parties, the court may order the  return
    15  of the defendant to the institution in which [he] they had been confined
    16  for  such period of time as was authorized by the prior order of commit-
    17  ment or order of retention. Upon such return, the defendant  shall  have
    18  all rights and privileges accorded by the provisions of this article.
    19    3.  When a defendant is in the custody of the commissioner pursuant to
    20  an order issued in accordance with this article,  the  commissioner  may
    21  transfer [him] such defendant to any appropriate institution operated by
    22  the  department  of  mental hygiene, provided, however, that the commis-
    23  sioner may designate an appropriate hospital for placement of a  defend-
    24  ant  for  whom  a final order of observation has been issued, where such
    25  hospital is licensed by the office of mental health and  has  agreed  to
    26  accept,  upon  referral by the commissioner, defendants subject to final
    27  orders of observation issued under this section.  The  commissioner  may
    28  discharge  a  defendant  in  [his]  their custody under a final order of
    29  observation at any time prior to the expiration date of such  order,  or
    30  otherwise treat or transfer such defendant in the same manner as if [he]
    31  such  defendant were a patient not in confinement under a criminal court
    32  order.
    33    4. When a defendant is in the custody of the commissioner pursuant  to
    34  an  order of commitment or an order of retention, [he] they may make any
    35  motion authorized by this chapter which is susceptible of fair  determi-
    36  nation  without  [his] their personal participation. If the court denies
    37  any such motion it must be without prejudice to a renewal thereof  after
    38  the  criminal  action against the defendant has been ordered to proceed.
    39  If the court enters an order dismissing  the  indictment  and  does  not
    40  direct  that  the  charge or charges be resubmitted to a grand jury, the
    41  court must direct that such  order  of  dismissal  be  served  upon  the
    42  commissioner.
    43    5.  When a defendant is in the custody of the commissioner pursuant to
    44  an order of commitment or an order of retention, the superior court that
    45  issued such order may, upon  motion  of  the  defendant,  and  with  the
    46  consent  of the district attorney, dismiss the indictment when the court
    47  is satisfied that (a) the defendant is a resident or citizen of  another
    48  state  or  country  and  that  [he]  they  will  be removed thereto upon
    49  dismissal of the indictment, or (b) the defendant has been  continuously
    50  confined  in  the  custody  of the commissioner, either pursuant to this
    51  article or pursuant to article nine or fifteen  of  the  mental  hygiene
    52  law,  for  a  period  of more than two years.   Before granting a motion
    53  under this  subdivision,  the  court  must  be  further  satisfied  that
    54  dismissal  of  the indictment is consistent with the ends of justice and
    55  that custody of the defendant by the commissioner pursuant to  an  order
    56  of  commitment  or  an  order  of  retention  is  not  necessary for the
        S. 1004--B                         10
 
     1  protection of the public and that care and treatment can be  effectively
     2  administered  to  the  defendant without the necessity of such order. If
     3  the court enters an order of dismissal under this subdivision,  it  must
     4  set  forth  in  the  record the reasons for such action, and must direct
     5  that such order of  dismissal  be  served  upon  the  commissioner.  The
     6  dismissal  of  an  indictment pursuant to this subdivision constitutes a
     7  bar to any further prosecution of the charge  or  charges  contained  in
     8  such indictment.
     9    [6.  (a) Notwithstanding any other provision of law, no person commit-
    10  ted to the custody of the commissioner  pursuant  to  this  article,  or
    11  continuously  thereafter  retained in such custody, shall be discharged,
    12  released on condition or placed in any less secure facility  or  on  any
    13  less  restrictive  status,  including,  but  not  limited  to vacations,
    14  furloughs and temporary passes, unless the commissioner or  his  or  her
    15  designee,  which may include the director of an appropriate institution,
    16  shall deliver written notice, at least four days,  excluding  Saturdays,
    17  Sundays  and  holidays,  in  advance  of  the  change  of such committed
    18  person's facility or status, or in the case of a person committed pursu-
    19  ant to a final order of observation written  notice  upon  discharge  of
    20  such committed person, to all of the following:
    21    (1)  The  district  attorney  of the county from which such person was
    22  committed;
    23    (2) The superintendent of state police;
    24    (3) The sheriff of the county where the facility is located;
    25    (4) The police department having jurisdiction of the  area  where  the
    26  facility is located;
    27    (5)  Any person who may reasonably be expected to be the victim of any
    28  assault or any violent felony offense, as defined in the penal  law,  or
    29  any offense listed in section 530.11 of this part which would be carried
    30  out by the committed person; provided that the person who reasonably may
    31  be  expected  to  be  a  victim does not need to be a member of the same
    32  family or household as the committed person; and
    33    (6) Any other person the court may designate.
    34    Said notice may be given by any means reasonably  calculated  to  give
    35  prompt actual notice.
    36    (b)  The notice required by this subdivision shall also be given imme-
    37  diately upon the departure of such  committed  person  from  the  actual
    38  custody of the commissioner or an appropriate institution, without prop-
    39  er  authorization.  Nothing  in  this  subdivision shall be construed to
    40  impair any other right or duty regarding any notice or hearing contained
    41  in any other provision of law.
    42    (c) Whenever a district attorney has received the notice described  in
    43  this subdivision, and the defendant is in the custody of the commission-
    44  er  pursuant  to a final order of observation or an order of commitment,
    45  he may apply within three days of receipt of such notice to  a  superior
    46  court,  for an order directing a hearing to be held to determine whether
    47  such committed person is a danger to himself  or  others.  Such  hearing
    48  shall be held within ten days following the issuance of such order. Such
    49  order may provide that there shall be no further change in the committed
    50  person's  facility  or status until the hearing. Upon a finding that the
    51  committed person is a danger to himself or others, the court shall issue
    52  an order to the commissioner  authorizing  retention  of  the  committed
    53  person  in  the  status existing at the time notice was given hereunder,
    54  for a specified period, not to exceed six months. The district  attorney
    55  and  the  committed person's attorney shall be entitled to the committed
        S. 1004--B                         11

     1  person's clinical records in the commissioner's custody, upon the  issu-
     2  ance of an order directing a hearing to be held.
     3    (d) Nothing in this subdivision shall be construed to impair any other
     4  right  or  duty  regarding  any notice or hearing contained in any other
     5  provision of law.]
     6    § 9. Section 730.70 of the criminal procedure law, as amended by chap-
     7  ter 629 of the laws of 1974, is amended to read as follows:
     8  § 730.70 Fitness to proceed; procedure following termination of  custody
     9               by commissioner.
    10    When  a defendant is in the custody of the commissioner on the expira-
    11  tion date of a final or temporary order of observation or  an  order  of
    12  commitment, or on the expiration date of the last order of retention, or
    13  on the date an order dismissing an indictment is served upon the commis-
    14  sioner,  the superintendent of the institution in which the defendant is
    15  confined may retain [him] such defendant for care and  treatment  for  a
    16  period  of no more than thirty days from such date. If [the] during such
    17  time two psychiatric examiners engaged  by  the  superintendent  [deter-
    18  mines]  determine  that  the  defendant  is  so mentally ill or mentally
    19  defective as to require continued care and treatment in an  institution,
    20  [he]  the  superintendent  may, before the expiration of such thirty day
    21  period, apply for an order of [certification] retention  in  the  manner
    22  prescribed in section [31.33] 9.33 or 15.33 of the mental hygiene law.
    23    §  10.  Subdivision  (a) of section 9.33 of the mental hygiene law, as
    24  amended by chapter 789 of the laws  of  1985,  is  amended  to  read  as
    25  follows:
    26    (a)  If  the  director shall determine that a patient admitted upon an
    27  application supported by medical certification, for  whom  there  is  no
    28  court  order authorizing retention for a specified period, is in need of
    29  retention and if such patient does not agree to remain in such  hospital
    30  as a voluntary patient, the director shall apply to the supreme court or
    31  the  county  court  in  the  county where the hospital is located for an
    32  order authorizing continued retention. A court order issued pursuant  to
    33  article  seven  hundred  thirty  of  the criminal procedure law shall be
    34  deemed an order of retention under this section. Such application  shall
    35  be  made no later than sixty days from the date of involuntary admission
    36  on application supported by medical certification or  thirty  days  from
    37  the date of an order denying an application for patient's release pursu-
    38  ant  to section 9.31, whichever is later; and the hospital is authorized
    39  to retain the patient for such further period during which the  hospital
    40  is  authorized  to make such application or during which the application
    41  may be pending. The director shall cause written notice of such applica-
    42  tion to be  given  the  patient  and  a  copy  thereof  shall  be  given
    43  personally  or  by  mail  to  the persons required by this article to be
    44  served with notice of such patient's initial admission and to the mental
    45  hygiene legal service. Such notice shall state that  a  hearing  may  be
    46  requested  and  that  failure  to  make such a request within five days,
    47  excluding Sunday and holidays, from the date that the notice  was  given
    48  to  the  patient  will  permit  the  entry without a hearing of an order
    49  authorizing retention.
    50    § 11. Subdivision (a) of section 15.33 of the mental hygiene  law,  as
    51  amended  by  chapter  789  of  the  laws  of 1985, is amended to read as
    52  follows:
    53    (a) If the director shall determine that a resident admitted  upon  an
    54  application  supported  by  medical  certification, for whom there is no
    55  court order authorizing retention for a specified period, is in need  of
    56  retention  and  if such resident does not agree to remain in such school
        S. 1004--B                         12
 
     1  as a voluntary resident, the director shall apply to the  supreme  court
     2  or  the  county  court  in the county where the school is located for an
     3  order authorizing continued retention.  A court order issued pursuant to
     4  article  seven  hundred  thirty  of  the criminal procedure law shall be
     5  deemed an order of retention under this section. Such application  shall
     6  be  made no later than sixty days from the date of involuntary admission
     7  on application supported by medical certification or  thirty  days  from
     8  the  date  of  an  order  denying  an application for resident's release
     9  pursuant to section 15.31, whichever is later; and the school is author-
    10  ized to retain the resident for such further  period  during  which  the
    11  school is authorized to make such application or during which the appli-
    12  cation  may  be pending. The director shall cause written notice of such
    13  application to be given the resident and a copy thereof shall  be  given
    14  personally  or  by  mail  to  the persons required by this article to be
    15  served with notice of such  resident's  initial  admission  and  to  the
    16  mental hygiene legal service. Such notice shall state that a hearing may
    17  be  requested  and that failure to make such a request within five days,
    18  excluding Sunday and holidays, from the date that the notice  was  given
    19  to  the  resident  will  permit  the entry without a hearing of an order
    20  authorizing retention.
    21    § 12. Subdivision (c) of section 43.03 of the mental hygiene  law,  as
    22  amended by chapter 7 of the laws of 2007, is amended to read as follows:
    23    (c) Patients receiving services while being held in the custody of the
    24  commissioner  pursuant to order of a criminal court, other than patients
    25  committed to the department pursuant to section 330.20 of  the  criminal
    26  procedure  law,  or  for  examination pursuant to an order of the family
    27  court shall not be liable to the department for such services. Fees  due
    28  the  department  for  such services shall be paid by the county in which
    29  such court is located unless such services are or could be eligible  for
    30  payment  pursuant  to  the  federal  medical care assistance program and
    31  except that counties shall not be responsible for the cost  of  services
    32  rendered patients committed to the department pursuant to section 330.20
    33  of  the  criminal  procedure  law,  section  five  hundred  eight of the
    34  correction law or patients committed to the department pursuant to arti-
    35  cle nine, ten or fifteen of this chapter.
    36    § 13. In the event that any county or any city with  a  population  of
    37  one  million  or more in any one year reduces payments made to the state
    38  for restoration services pursuant to article 730 of the criminal  proce-
    39  dure  law  by  an amount which is less than the average of such expendi-
    40  tures for the previous three years, then such county or such city  shall
    41  utilize  such savings for needed services which are identified as needed
    42  in the local services plan, as defined in section 41.03  of  the  mental
    43  hygiene law, of such county or such city.
    44    §  14.  This act shall take effect on the ninetieth day after it shall
    45  have become a law.