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S05516 Summary:

S05516 Actions:

S05516 Committee Votes:

S05516 Floor Votes:

S05516 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         5516--B
            Cal. No. 766
 
                               2019-2020 Regular Sessions
 
                    IN SENATE
 
                                       May 3, 2019
                                       ___________
 
        Introduced  by  Sen.  MONTGOMERY  --  (at request of the Office of Court
          Administration) -- read twice and ordered printed, and when printed to
          be committed to the Committee on Children  and  Families  --  reported
          favorably  from  said  committee,  ordered to first and second report,
          amended on second report, ordered  to  a  third  reading,  and  to  be
          reprinted  as amended, retaining its place in the order of third read-
          ing --   amended and ordered reprinted, retaining  its  place  in  the
          order of third reading
 
        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.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09846-04-9
        S. 5516--B                          2
 
     1    §  2.  Subdivision 4, paragraphs (a), (c) and (d) of subdivision 5 and
     2  subdivisions 6 and 7 of section 322.2 of the family court act,  subdivi-
     3  sions  4, 6 and 7 and paragraph (c) of subdivision 5 as added by chapter
     4  920 of the laws of 1982, paragraph (a) of subdivision 5  as  amended  by
     5  section  69 of part WWW of chapter 59 of the laws of 2017, and paragraph
     6  (d) of subdivision 5 as amended by chapter 41 of the laws of  2010,  are
     7  amended to read as follows:
     8    4. If the court finds that there is probable cause to believe that the
     9  respondent committed a misdemeanor, the respondent shall be committed to
    10  the  custody of the appropriate commissioner for a reasonable period not
    11  to exceed ninety days. Unless the court specifies that  such  commitment
    12  shall be in a residential facility, such commissioner having custody may
    13  arrange  for  treatment in an appropriate facility or program, including
    14  an outpatient program, in accordance with  subdivision  (e)  of  section
    15  7.09  or  subdivision (c-1) of section 13.09 respectively, of the mental
    16  hygiene law. The court shall dismiss the petition on the issuance of the
    17  order of commitment and such dismissal shall constitute a bar to further
    18  prosecution of the charge or charges contained in the petition.
    19    (a) If the court finds that there is probable cause  to  believe  that
    20  the respondent committed a felony, it shall order the respondent commit-
    21  ted  to  the custody of the commissioner of mental health or the commis-
    22  sioner of the office for people with developmental disabilities  for  an
    23  initial  period  not  to  exceed  one  year from the date of such order.
    24  Unless the court specifies that such commitment shall be in  a  residen-
    25  tial  facility,  such commissioner having custody may arrange for treat-
    26  ment in an appropriate facility  or  program,  including  an  outpatient
    27  program,  in accordance with subdivision (e) of section 7.09 or subdivi-
    28  sion (c-1) of section 13.09 respectively, of  the  mental  hygiene  law.
    29  Such  period  may  be  extended annually upon further application to the
    30  court by the commissioner having custody or his or her designee.    Such
    31  application  must  be made not more than sixty days prior to the expira-
    32  tion of such period on forms that have  been  prescribed  by  the  chief
    33  administrator  of  the  courts. At that time, the commissioner must give
    34  written notice of the application to the respondent, the counsel repres-
    35  enting the respondent and  the  mental  hygiene  legal  service  if  the
    36  respondent  is  at a residential facility. Upon receipt of such applica-
    37  tion, the court must conduct a hearing to determine the issue of capaci-
    38  ty. If, at the conclusion of a hearing conducted pursuant to this subdi-
    39  vision, the court finds that the respondent is no longer  incapacitated,
    40  he  or she shall be returned to the family court for further proceedings
    41  pursuant to this article. If the court is satisfied that the  respondent
    42  continues  to  be  incapacitated,  the  court  shall authorize continued
    43  custody of the respondent by the commissioner in a facility  or  program
    44  for  a period not to exceed one year. Such extensions shall not continue
    45  beyond a reasonable period of time necessary to  determine  whether  the
    46  respondent will attain the capacity to proceed to a fact finding hearing
    47  in  the  foreseeable  future  but  in no event shall continue beyond the
    48  respondent's eighteenth birthday or, if  the  respondent  was  at  least
    49  sixteen years of age when the act was committed, beyond the respondent's
    50  twenty-first birthday.
    51    (c)  If  the  court finds that there is probable cause to believe that
    52  the respondent has committed a designated felony act,  the  court  shall
    53  require  that treatment be provided in a residential facility within the
    54  appropriate office of the department of mental hygiene or in  an  outpa-
    55  tient facility if the commissioner having custody of the child petitions
        S. 5516--B                          3
 
     1  the  court  pursuant to subdivision seven of this section and such court
     2  approves.
     3    (d)  The  commissioner  shall  review  the condition of the respondent
     4  within forty-five days after the respondent is committed to the  custody
     5  of  the commissioner. He or she shall make a second review within ninety
     6  days after the respondent is committed to his or her custody.  Thereaft-
     7  er,  he or she shall review the condition of the respondent every ninety
     8  days.  The respondent and the counsel for the respondent, shall be noti-
     9  fied of any such review and afforded an opportunity  to  be  heard.  The
    10  commissioner  having  custody  shall  apply  to  the  court for an order
    11  dismissing the petition whenever he or she determines that  there  is  a
    12  substantial probability that the respondent will continue to be incapac-
    13  itated  for  the foreseeable future. At the time of such application the
    14  commissioner must give written notice of the application to the respond-
    15  ent, the presentment agency and the mental hygiene legal service if  the
    16  respondent  is  at a residential facility. Upon receipt of such applica-
    17  tion, the court may on its own motion conduct  a  hearing  to  determine
    18  whether  there  is  substantial  probability  that  the  respondent will
    19  continue to be incapacitated for the foreseeable  future,  and  it  must
    20  conduct  such  hearing if a demand therefor is made by the respondent or
    21  the mental hygiene legal service within ten  days  from  the  date  that
    22  notice of the application was given to them. The respondent may apply to
    23  the court for an order of dismissal on the same ground.
    24    6.  Any order pursuant to this section dismissing a petition shall not
    25  preclude an application for voluntary or involuntary care and  treatment
    26  in  a facility or program of the appropriate office of the department of
    27  mental hygiene pursuant to the provisions of  the  mental  hygiene  law.
    28  Unless  the respondent is admitted pursuant to such an application he or
    29  she shall be released.
    30    7. If the commissioner having custody of a child committed to a  resi-
    31  dential facility pursuant to subdivision four or paragraph (a) of subdi-
    32  vision  five  of this section determines at any time that such child may
    33  be more appropriately treated in a non-residential  facility  or  on  an
    34  outpatient  basis,  he  or  she  may  arrange for such treatment. If the
    35  commissioner having custody of a child committed to a residential facil-
    36  ity pursuant to paragraph (c) of subdivision five of this section deter-
    37  mines at any time that such child may be more appropriately treated in a
    38  non-residential facility or on an outpatient basis, he or she may  peti-
    39  tion  the family court for a hearing. If the court finds after a hearing
    40  that treatment in a non-residential facility or on an  outpatient  basis
    41  would  be  more  appropriate  for such child, the court shall modify its
    42  order of commitment to [authorize] direct the commissioner  to  transfer
    43  [of  such] the child to a non-residential facility or arrange outpatient
    44  treatment. Application for [such] a hearing  to  determine  whether  any
    45  child  committed  to  a  residential facility under subdivisions four or
    46  five of this section may be more appropriately treated in a non-residen-
    47  tial facility or on an outpatient basis may be made by the respondent.
    48    § 3. Subdivision (e) of section 7.09 of the  mental  hygiene  law,  as
    49  amended  by chapter 920 of the laws of 1982 and as relettered by chapter
    50  509 of the laws of 1988, is amended to read as follows:
    51    (e) The commissioner shall accept custody of a juvenile under an order
    52  issued by the family court pursuant to the provisions of  section  322.2
    53  of  the family court act. He or she may place the juvenile in any appro-
    54  priate facility or program under his or her jurisdiction, but he or  she
    55  shall comply with any order requiring treatment in a residential facili-
    56  ty  made  pursuant to paragraph (c) of subdivision five of section 322.2
        S. 5516--B                          4
 
     1  of the family court act, unless, after a hearing held in accordance with
     2  subdivision seven of section 322.2 of the family court  act,  the  court
     3  modifies  the  order.    In  determining  the appropriate placement, the
     4  commissioner shall be furnished with a copy of the findings of the court
     5  pursuant  to  subdivision  four  or  five of section 322.2 of the family
     6  court act and shall consider the nature of the act alleged in such find-
     7  ings and the level of the juvenile's mental disability. The commissioner
     8  shall review the condition  of  the  juvenile  in  accordance  with  the
     9  requirements  of section 322.2 of the family court act and he or she may
    10  petition the family court at any time for any relief authorized by  such
    11  section.
    12    §  4.  Subdivision  (c) of section 13.09 of the mental hygiene law, as
    13  amended by chapter 920 of the laws  of  1982,  is  amended  to  read  as
    14  follows:
    15    [(c)]  (c-1) The commissioner shall accept custody of a juvenile under
    16  an order issued by the  family  court  pursuant  to  the  provisions  of
    17  section  322.2 of the family court act. He or she may place the juvenile
    18  in any appropriate facility or program under his  or  her  jurisdiction,
    19  but he or she shall comply with any order requiring treatment in a resi-
    20  dential  facility  made pursuant to paragraph (c) of subdivision five of
    21  section 322.2 of the family court act, unless, after a hearing  held  in
    22  accordance  with  subdivision seven of section 322.2 of the family court
    23  act, the court modifies the order. In determining the appropriate place-
    24  ment, the commissioner shall be furnished with a copy of the findings of
    25  the court pursuant to subdivision four or five of section 322.2  of  the
    26  family  court  act  and  shall consider the nature of the act alleged in
    27  such findings and the level of the  juvenile's  mental  disability.  The
    28  commissioner  shall  review  the condition of the juvenile in accordance
    29  with the requirements of section 322.2 of the family court act and he or
    30  she may petition the family court at any time for any relief  authorized
    31  by such section.
    32    §  5.  This  act shall take effect on the ninetieth day after it shall
    33  have become a law; provided, however, that the amendments made to  para-
    34  graph (a) of subdivision 5 of section 322.2 of the family court act made
    35  by section two of this act shall take effect on the same date and in the
    36  same manner as section 69 of part WWW of chapter 59 of the laws of 2017,
    37  takes effect.