senate Bill S6548

Amended

Relates to orders of observation for the purpose of determining incapacitation

download pdf

Sponsor

Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
view actions

actions

  • 24 / Feb / 2012
    • REFERRED TO CODES
  • 13 / Mar / 2012
    • 1ST REPORT CAL.343
  • 14 / Mar / 2012
    • 2ND REPORT CAL.
  • 15 / Mar / 2012
    • ADVANCED TO THIRD READING
  • 12 / Jun / 2012
    • AMENDED ON THIRD READING 6548A
  • 21 / Jun / 2012
    • SUBSTITUTED BY A10664

Summary

Relates to orders of observation for the purpose of determining incapacitation.

do you support this bill?

Bill Details

Versions:
S6548
S6548A
Legislative Cycle:
2011-2012
Law Section:
Criminal Procedure Law
Laws Affected:
Amd ยงยง730.40 & 730.50, CP L

Votes

12
1
12
Aye
1
Nay
3
aye with reservations
0
absent
0
excused
0
abstained
show Codes committee vote details

Sponsor Memo

BILL NUMBER:S6548

TITLE OF BILL:

An act to amend the criminal procedure law, in relation to orders of
observation for the purpose of determining incapacitation

PURPOSE:

Relates to orders of observation for the purpose of determining incapac-
itation

SUMMARY OF PROVISIONS:

Section 1. Amends section 730.40 of the criminal procedure law to
provide that when a local criminal court has issued a final order of
observation it must dismiss the accusatory instrument filed in the court
except that upon the motion of the district attorney, the dismissal date
can be adjourned for up to one year for the purpose of issuance of an
order of protection for the protection of the complainant. When the
defendant is in the custody of the commissioner at the expiration of the
period prescribed in a final order of observation the commissioner must
promptly certify to such court and to the appropriate district attorney
that the defendant was in his or her custody on such expiration date.

Section 2. Amends section 730.50 of the criminal procedure law to
provide that when it is satisfied that the defendant is an incapacitated
person, and when the defendant has not been charged with a felony or
when the defendant has been convicted of an offense other than a felony
such court, among other things, must dismiss the indictment filed in
such court against the defendant except that upon motion of the district
attorney the dismissal date can be adjourned for up to one year for the
purpose of issuance of an order of protection for the protection of the
complainant.

Section 3. Effective Date.

JUSTIFICATION:

Under current law, when a defendant is determined to be an incapacitated
person and has been charged with a misdemeanor, the charges are
dismissed in a final order of observation, and that individual is
referred for medical treatment. In contrast, when a defendant is charged
with a felony, the commissioner is required to notify the court and the
district attorney's office that that the individual is in his custody at
the expiration of the period of his temporary order of observation. This
notification principle in felony cases, has proven to be a useful tool
to ensure that patients are compliant with their medical treatment, the
district attorney's office has adequate notification regarding the
whereabouts of the individual, and the court can address the needs of
the parties before them in an appropriate fashion.

This legislation would allow the court, upon motion of the district
attorney, to adjourn the dismissal date of a final order of observation
for lip to one year for the purposes of securing an order of protection
for the complainant. Some of the misdemeanors at issue in a final order
of observation can include stalking and harassment - crimes that have an
underlying current of violence, and often result in a significant amount
of fear and anxiety for the victim. Today, these victims would find that
a case would be dismissed upon a finding of incapacity, and would be
left without any assurances that the defendant could not be released in
the very near future. By affording the victim an opportunity to obtain
an order of protection, this bill will close this existing loophole.

LEGISLATIVE HISTORY:

New bill.

FISCAL IMPLICATIONS:

None.

LOCAL FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

This act shall take effect immediately.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  6548

                            I N  S E N A T E

                            February 24, 2012
                               ___________

Introduced  by  Sen.  SALAND -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes

AN ACT to amend the criminal procedure law, in  relation  to  orders  of
  observation for the purpose of determining incapacitation

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1.  Subdivision 2 of section 730.40 of the criminal  procedure
law is amended to read as follows:
  2.  When  a  local criminal court has issued a final order of observa-
tion, it must dismiss the accusatory  instrument  filed  in  such  court
against the defendant [and such dismissal constitutes], EXCEPT THAT UPON
MOTION  OF THE DISTRICT ATTORNEY THE DISMISSAL DATE CAN BE ADJOURNED FOR
UP TO ONE YEAR FOR THE PURPOSE OF ISSUANCE OF  AN  ORDER  OF  PROTECTION
PURSUANT  TO SECTION 530.11 OR 530.12 OF THIS PART FOR THE PROTECTION OF
THE COMPLAINANT. UPON SUCH DISMISSAL IT SHALL CONSTITUTE a  bar  to  any
further prosecution of the charge or charges contained in such accusato-
ry  instrument. WHEN THE DEFENDANT IS IN THE CUSTODY OF THE COMMISSIONER
AT THE EXPIRATION OF THE PERIOD PRESCRIBED IN A FINAL ORDER OF  OBSERVA-
TION  THE  COMMISSIONER  MUST  PROMPTLY CERTIFY TO SUCH COURT AND TO THE
APPROPRIATE DISTRICT ATTORNEY THAT THE  DEFENDANT  WAS  IN  HIS  OR  HER
CUSTODY ON SUCH EXPIRATION DATE. When the defendant is in the custody of
the  commissioner at the expiration of the period prescribed in a tempo-
rary order of observation, the proceedings in the local  criminal  court
that  issued such order shall terminate for all purposes and the commis-
sioner must promptly certify  to  such  court  and  to  the  appropriate
district  attorney that the defendant was in his custody on such expira-
tion date. Upon receipt of such certification, the  court  must  dismiss
the  felony  complaint  filed  against  the  defendant, EXCEPT THAT UPON
MOTION OF THE DISTRICT ATTORNEY THE DISMISSAL DATE CAN BE ADJOURNED  FOR
UP  TO  ONE  YEAR  FOR THE PURPOSE OF ISSUANCE OF AN ORDER OF PROTECTION
PURSUANT TO SECTION 530.11 OR 530.12 OF THIS PART FOR THE PROTECTION  OF
THE COMPLAINANT.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD14006-01-2

S. 6548                             2

  S 2. Subdivision 1 of section 730.50 of the criminal procedure law, as
amended  by  chapter  231  of  the  laws  of 2008, is amended to read as
follows:
  1.  When  a  superior court, following a hearing conducted pursuant to
subdivision three or four of section 730.30 OF THIS ARTICLE,  is  satis-
fied  that  the  defendant  is not an incapacitated person, the criminal
action against him must proceed. If it is satisfied that  the  defendant
is  an incapacitated person, or if no motion for such a hearing is made,
it must adjudicate him an incapacitated person, and must issue  a  final
order of observation or an order of commitment. When the indictment does
not  charge  a  felony  or  when  the defendant has been convicted of an
offense other than a felony, such court (a) must issue a final order  of
observation  committing the defendant to the custody of the commissioner
for care and treatment in an appropriate institution for a period not to
exceed ninety days from the date of such order, provided, however,  that
the  commissioner may designate an appropriate hospital for placement of
a defendant for whom a final order of observation has been issued, where
such hospital is licensed by the office of mental health and has  agreed
to  accept,  upon  referral  by  the commissioner, defendants subject to
final orders of observation issued under this subdivision, and (b)  must
dismiss the indictment filed in such court against the defendant, EXCEPT
THAT  UPON  MOTION  OF  THE  DISTRICT ATTORNEY THE DISMISSAL DATE CAN BE
ADJOURNED FOR UP TO ONE YEAR FOR THE PURPOSE OF ISSUANCE OF AN ORDER  OF
PROTECTION  PURSUANT  TO  SECTION  530.11 OR 530.12 OF THIS PART FOR THE
PROTECTION OF THE COMPLAINANT, and UPON such dismissal [constitutes]  IT
SHALL  CONSTITUTE  a  bar  to  any  further prosecution of the charge or
charges contained in such indictment.  When  the  indictment  charges  a
felony  or  when  the  defendant has been convicted of a felony, it must
issue an order of commitment committing the defendant to the custody  of
the  commissioner  for  care and treatment in an appropriate institution
for a period not to exceed one year from the date of  such  order.  Upon
the  issuance  of  an  order of commitment, the court must exonerate the
defendant's bail if he was previously at liberty on bail.
  S 3. This act shall take effect immediately.

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.