senate Bill S3884

2011-2012 Legislative Session

Increases the availability of professionals to perform evaluations regarding a defendant's fitness to proceed to trial in a criminal proceeding

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Archive: Last Bill Status - In Committee


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

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 04, 2012 referred to codes
Mar 08, 2011 referred to codes

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S3884 - Bill Details

See Assembly Version of this Bill:
A6149
Current Committee:
Law Section:
Criminal Procedure Law
Laws Affected:
Amd ยงยง730.10, 730.20, 730.30, 730.40, 730.50, 730.60 & 730.70, CP L

S3884 - Bill Texts

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Increases the availability of professionals to perform evaluations regarding a defendant's fitness to proceed to trial in a criminal proceeding to include licensed clinical social workers and qualified nurse practitioners.

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BILL NUMBER:S3884

TITLE OF BILL:
An act
to amend the criminal procedure law, in relation to increasing the
availability of professionals to perform evaluations regarding a
defendant's fitness to proceed to trial in a criminal proceeding

PURPOSE OR GENERAL IDEA OF BILL:
To increase the availability of
professionals operating within their scope of practice to perform
evaluations regarding a defendant's fitness to proceed to trial in a
criminal proceeding.

SUMMARY OF SPECIFIC PROVISIONS:
This bill would amend the Criminal
Procedure Law section 730.10-730.70 regarding the determination of a
defendant's mental fitness to understand the proceedings against him
or to assist in his or her own defense in a criminal proceeding. It
adds the professions of licensed clinical social workers and licensed
nurse practitioners in psychiatry to the definition of "psychiatric
examiner", the professionals who may conduct such examinations. This
bill would update all other references to psychiatric examinations
under CPL 730 include licensed clinical social workers and licensed
nurse practitioners in psychiatry as examiners.

JUSTIFICATION:
The ability to identify and secure a psychiatrist or
psychologist able and willing to perform mental fitness examinations
is very limited in many areas across New York State. This has caused
a backlog in CPL 730 examinations thus further impacting the criminal
Justice system in addressing persons whose fitness to proceed is in
question. By adding licensed clinical social workers and nurse
practitioners in psychiatry as acceptable psychiatric examiners, the
ability for Directors to identify and secure examiners pursuant to
CPL 730 will be greatly increased.

Furthermore, by freeing unlicensed professionals to provide CPL 730
exams, the overall strain on the mental health system will be
mitigated by freeing up scarce psychiatrist services for patients
requiring medical services.
There is a particular shortage of psychiatrists, who are often in more
demand to oversee local clinical services and cannot afford the time
necessary for travel, examination and testimony required to carry out
the CPL 730 process. Recent changes in the statute licensing scopes
of practice for social workers and nurse practitioners insure that
they are equally qualified to make the determinations required of a
psychiatric examiner under this statute.
Localities and clinics have many more licensed clinical social workers
and nurse practitioners to provide these examinations in a more
timely and cost effective manner.

Licensed clinical social workers (LCWS) and nurse practitioners in
psychiatry (NPPs) are both licensed under Title VIII of the New York
State Education Law, requiring extensive training in mental health
assessment and treatment.


As licensed professionals, LCSWs and NPPs are required to operate only
within their training and competency, and therefore only those
licensees qualified to perform a psychiatric examination would be
eligible do so in accordance with statue governing unprofessional
conduct and the rules of the NYS Board of Regents. Such protections
in general Education Law will preclude any concerns over any
individual professional's ability to perform an examination under
this section of law. Moreover. at least one court in New York State
has already determined, as a matter of law, that "in terms of
clinical functions, the scope of practice of psychology and the scope
of practice of licensed clinical social work, although described
using some different words at times, do not vary in substance and are
wholly equal and the same."

PRIOR LEGISLATIVE HISTORY:
New Legislation.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
This legislation
would have no cost to the state and would reduce costs for counties
which could use more readily available staff professionals to perform
such examinations.

EFFECTIVE DATE:
This act would take effect immediately.

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

    S. 3884                                                  A. 6149

                       2011-2012 Regular Sessions

                      S E N A T E - A S S E M B L Y

                              March 8, 2011
                               ___________

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

IN ASSEMBLY -- Introduced by M. of A. ORTIZ -- read once and referred to
  the Committee on Codes

AN ACT to amend the criminal procedure law, in  relation  to  increasing
  the  availability  of professionals to perform evaluations regarding a
  defendant's fitness to proceed to trial in a criminal proceeding

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

  Section 1. Section 730.10 of the criminal procedure law, subdivision 2
as  amended  by chapter 566 of the laws of 1994, subdivisions 3 and 4 as
amended by chapter 440 of the laws of 1987, subdivision 5 as amended  by
chapter  435  of the laws of 1976, subdivisions 6, 7 and 8 as renumbered
by chapter 629 of the laws of 1974,  and  subdivision  8  as  separately
amended  by chapters 615 and 629 of the laws of 1974, is amended to read
as follows:
S 730.10 Fitness to proceed; definitions.
  As used in this article, the following terms have the following  mean-
ings:
  1.  "Incapacitated person" means a defendant who as a result of mental
[disease] ILLNESS or [defect] DEVELOPMENTAL DISABILITY lacks capacity to
understand the proceedings against him OR HER or to assist in his OR HER
own defense.
  2. "Order of examination" means an  order  issued  to  an  appropriate
director  by  a  criminal  court  wherein  a  criminal action is pending
against a defendant, or by a family court pursuant to section  322.1  of
the  family court act wherein a juvenile delinquency proceeding is pend-
ing against a juvenile, directing that such person be examined  for  the
purpose of determining if he OR SHE is an incapacitated person.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09670-02-1

S. 3884                             2                            A. 6149

  3. "Commissioner" means the state commissioner of THE OFFICE OF mental
health  or  the  state commissioner of [mental retardation and] develop-
mental disabilities.
  4.  "Director"  means (a) the director of a state hospital operated by
the office of mental health or the director of  a  developmental  center
operated  by  the  office  [of  mental  retardation and] FOR PEOPLE WITH
developmental disabilities, or (b) the director of a  hospital  operated
by  any  local  government  of  the state that has been certified by the
commissioner as having adequate facilities to  examine  a  defendant  to
determine  if  he OR SHE is an incapacitated person, or (c) the director
of community [mental health] services UNDER  ARTICLE  FORTY-ONE  OF  THE
MENTAL HYGIENE LAW.
  5.  "Qualified  psychiatrist" means a physician LICENSED UNDER ARTICLE
ONE HUNDRED THIRTY-ONE OF THE EDUCATION LAW who:
  (a) is a diplomate of the American board of psychiatry  and  neurology
or is eligible to be certified by that board; or,
  (b)  is  certified  by the American osteopathic board of neurology and
psychiatry or is eligible to be certified by that board.
  6. "[Certified psychologist]  PSYCHOLOGIST"  means  a  person  who  is
[registered]  LICENSED  as  a [certified] psychologist under article one
hundred fifty-three of the education law.
  7. "LICENSED CLINICAL SOCIAL WORKER" MEANS A PERSON WHO IS LICENSED AS
A LICENSED CLINICAL SOCIAL WORKER UNDER ARTICLE ONE  HUNDRED  FIFTY-FOUR
OF THE EDUCATION LAW.
  8. "QUALIFIED NURSE PRACTITIONER" MEANS A PERSON WHO IS CERTIFIED AS A
NURSE  PRACTITIONER  UNDER ARTICLE ONE HUNDRED THIRTY-NINE OF THE EDUCA-
TION LAW WITHIN THE SPECIALTY AREA OF PSYCHIATRY.
  9. "Psychiatric examiner" means a qualified psychiatrist [or a  certi-
fied]  A  psychologist, A LICENSED CLINICAL SOCIAL WORKER OR A QUALIFIED
NURSE PRACTITIONER who has been designated by a director  to  examine  a
defendant pursuant to an order of examination.
  [8.]  10.  "Examination  report"  means a report made by a psychiatric
examiner wherein he OR SHE sets forth [his] SUCH EXAMINER'S  opinion  as
to  whether  the  defendant  is  or  is not an incapacitated person, the
nature and extent of [his] THE examination and,  if  [he]  THE  EXAMINER
finds  that the defendant is an incapacitated person, [his] SUCH EXAMIN-
ER'S diagnosis and prognosis and a detailed statement of the reasons for
[his] SUCH opinion by making particular reference to  those  aspects  of
the proceedings wherein the defendant lacks capacity to understand or to
assist  in  his  OR  HER  own  defense.  The state administrator and the
commissioner must jointly adopt the form of the examination report;  and
the  state  administrator  shall  prescribe the number of copies thereof
that must be submitted to the court by the director.
  S 2. Section 730.20 of the criminal procedure law, subdivisions 1  and
5  as  amended  by  chapter 693 of the laws of 1989 and subdivision 7 as
amended by chapter 692 of the laws  of  1972,  is  amended  to  read  as
follows:
S 730.20  Fitness to proceed; generally.
  1.   The appropriate director to whom a criminal court issues an order
of examination must be  determined  in  accordance  with  rules  jointly
adopted  by  the judicial conference and the commissioner.  Upon receipt
of an examination order,  the  director  must  designate  two  qualified
psychiatric  examiners,  of  whom  he  OR SHE may be one, to examine the
defendant to determine if he OR  SHE  is  an  incapacitated  person.  In
conducting  their  examination, the psychiatric examiners may employ any
method which is accepted by the medical profession for  the  examination

S. 3884                             3                            A. 6149

of  persons  alleged to be mentally ill or [mentally defective] DEVELOP-
MENTALLY DISABLED.    The  court  may  authorize  a  psychiatrist  [or],
psychologist, LICENSED CLINICAL SOCIAL WORKER OR QUALIFIED NURSE PRACTI-
TIONER retained by the defendant to be present at such examination.
  2.  When the defendant is not in custody at the time a court issues an
order of examination, because he OR SHE was theretofore released on bail
or  on  his OR HER own recognizance, the court may direct that the exam-
ination be conducted on an out-patient basis, and at such time and place
as the director shall designate.  If, however, the director informs  the
court  that  hospital  confinement  of the defendant is necessary for an
effective examination, the  court  may  direct  that  the  defendant  be
confined  in a hospital designated by the director until the examination
is completed.
  3.  When the defendant is in custody at the time  a  court  issues  an
order  of  examination,  the  examination must be conducted at the place
where the defendant is being held in custody.  If, however, the director
determines that hospital confinement of the defendant is  necessary  for
an  effective  examination,  the sheriff must deliver the defendant to a
hospital designated by the director and  hold  [him]  THE  DEFENDANT  in
custody  therein,  under  sufficient  guard,  until  the  examination is
completed.
  4.  Hospital confinement under subdivisions two and three shall be for
a period not exceeding thirty days, except that, upon application of the
director, the court may authorize confinement for an  additional  period
not  exceeding  thirty  days  if it is satisfied that a longer period is
necessary to complete the examination.   During the period  of  hospital
confinement,  the  physician in charge of the hospital may administer or
cause to be administered to the defendant  such  emergency  psychiatric,
medical  or other therapeutic treatment as in his OR HER judgment should
be administered.
  5.  Each psychiatric examiner, after he OR SHE has  completed  his  OR
HER  examination  of the defendant, must promptly prepare an examination
report and submit it to the director.  If the psychiatric examiners  are
not  unanimous in their opinion as to whether the defendant is or is not
an incapacitated person, the director must designate  another  qualified
psychiatric  examiner to examine the defendant to determine if he OR SHE
is an incapacitated person.  Upon receipt of  the  examination  reports,
the  director  must  submit  them  to the court that issued the order of
examination.  The court must furnish a copy of the  reports  to  counsel
for the defendant and to the district attorney.
  6.   When a defendant is subjected to examination pursuant to an order
issued by a criminal court in accordance with this article,  any  state-
ment  made by [him] SUCH DEFENDANT for the purpose of the examination or
treatment shall be inadmissible in evidence against [him] SUCH DEFENDANT
in any criminal action on any issue other than that of his OR HER mental
condition, but such statement is admissible upon that issue  whether  or
not it would otherwise be deemed a privileged communication.
  7.   A psychiatric examiner is entitled to his OR HER reasonable trav-
eling expenses, a fee of fifty dollars for each examination of a defend-
ant and a fee of fifty dollars for each appearance at a court hearing or
trial but not exceeding two hundred dollars in fees for examination  and
testimony  in  any one case; except that if such psychiatric examiner be
an employee of the state of New York he OR SHE shall be entitled only to
reasonable traveling expenses, unless such  psychiatric  examiner  makes
the  examination  or  appears at a court hearing or trial outside his OR
HER hours of state employment in a  county  in  which  the  director  of

S. 3884                             4                            A. 6149

community [mental health] services certifies to the fiscal officer ther-
eof  that  there  is a shortage of qualified [psychiatrists] PSYCHIATRIC
EXAMINERS available to conduct examinations under the criminal procedure
law  in  such  county, in which event he OR SHE shall be entitled to the
foregoing fees and reasonable traveling expenses.  Such fees and travel-
ing expenses and the costs of sending a defendant to  another  place  of
detention  or  to  a hospital for examination, of his OR HER maintenance
therein and of returning [him] SUCH DEFENDANT shall,  when  approved  by
the  court,  be  a  charge of the county in which the defendant is being
tried.
  S 3. Subdivision 1 of section 730.30 of the criminal procedure law  is
amended to read as follows:
  1.    At  any  time  after a defendant is arraigned upon an accusatory
instrument other than a felony complaint and before  the  imposition  of
sentence,  or  at  any time after a defendant is arraigned upon a felony
complaint and before he OR SHE is held for the action of the grand jury,
the court wherein the criminal action is pending must issue an order  of
examination when it is of the opinion that the defendant may be an inca-
pacitated person.
  S  4. Subdivisions 2 and 5 of section 730.40 of the criminal procedure
law are 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  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  temporary  order  of
observation,  the  proceedings  in  the local criminal court that issued
such order shall terminate for all purposes and  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.
Upon  receipt  of  such certification, the court must dismiss the felony
complaint filed against the defendant.
  5. When an indictment is timely filed against the defendant after  the
issuance  of a temporary order of observation or after the expiration of
the period prescribed in such order, the superior court  in  which  such
indictment  is  filed  must  direct  the  sheriff to take custody of the
defendant at the institution in which he OR SHE is  confined  and  bring
him  OR  HER before the court for arraignment upon the indictment. After
the defendant is arraigned upon the indictment, such temporary order  of
observation or any order issued pursuant to the mental hygiene law after
the expiration of the period prescribed in the temporary order of obser-
vation shall be deemed nullified. Notwithstanding any other provision of
law,  an  indictment filed in a superior court against a defendant for a
crime charged in the felony complaint is not timely for the  purpose  of
this  subdivision  if it is filed more than six months after the expira-
tion of the period prescribed in a temporary order of observation issued
by a local criminal court wherein such felony complaint was pending.  An
untimely  indictment must be dismissed by the superior court unless such
court is satisfied that there was good cause for  the  delay  in  filing
such indictment.
  S  5.  Section  730.50 of the criminal procedure law, subdivision 1 as
amended by chapter 231 of the laws of 2008, subdivision 2 as amended  by
chapter  789 of the laws of 1985 and subdivision 5 as amended by chapter
629 of the laws of 1974, is amended to read as follows:
S 730.50 Fitness to proceed; indictment.

S. 3884                             5                            A. 6149

  1. When a superior court, following a hearing  conducted  pursuant  to
subdivision  three  or  four  of  section  730.30, is satisfied that the
defendant is not an incapacitated person, the  criminal  action  against
him  OR  HER  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 OR HER an incapacitated person,  and  must  issue  a
final  order  of observation or an order of commitment. When the indict-
ment 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, and such dismissal constitutes a bar to  any  further  prose-
cution  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  appro-
priate  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 OR SHE was previously at liberty on
bail.
  2.  When a defendant is in the custody of the commissioner immediately
prior to the expiration of the period prescribed in a temporary order of
commitment and the superintendent of the institution wherein the defend-
ant is confined is of the opinion that the defendant continues to be  an
incapacitated  person,  such superintendent must apply to the court that
issued such order for an order of retention. Such  application  must  be
made  within  sixty days prior to the expiration of such period on forms
that have been jointly  adopted  by  the  judicial  conference  and  the
commissioner.  The superintendent must give written notice of the appli-
cation to the defendant and to the mental hygiene legal service.    Upon
receipt of such application, the court may, on its own motion, conduct a
hearing  to  determine  the  issue of capacity, and it must conduct such
hearing if a demand therefor is made by  the  defendant  or  the  mental
hygiene  legal  service within ten days from the date that notice of the
application was given them. If, at the conclusion of a hearing conducted
pursuant to this subdivision, the court is satisfied that the  defendant
is  no  longer  an incapacitated person, the criminal action against him
must proceed. If it is satisfied that the defendant continues to  be  an
incapacitated  person,  or if no demand for a hearing is made, the court
must adjudicate him OR HER AS an incapacitated person and must issue  an
order  of  retention  which  shall  authorize  continued  custody of the
defendant by the commissioner for a period not to exceed one year.
  3. When a defendant is in the custody of the commissioner  immediately
prior  to  the expiration of the period prescribed in the first order of
retention, the procedure set forth in subdivision two shall  govern  the
application  for  and the issuance of any subsequent order of retention,
except that any subsequent orders of retention must be for  periods  not
to  exceed  two years each; provided, however, that the aggregate of the
periods prescribed in the temporary order of commitment, the first order

S. 3884                             6                            A. 6149

of retention and all subsequent orders  of  retention  must  not  exceed
two-thirds  of the authorized maximum term of imprisonment for the high-
est class felony charged in the indictment  or  for  the  highest  class
felony of which he OR SHE was convicted.
  4. When a defendant is in the custody of the commissioner at the expi-
ration  of  the  authorized  period  prescribed  in  the  last  order of
retention, the criminal action pending against him OR HER in the superi-
or court that issued such order shall terminate for  all  purposes,  and
the  commissioner  must promptly certify to such court and to the appro-
priate district attorney that the defendant was in his OR HER custody on
such expiration date. Upon receipt of such certification, the court must
dismiss the indictment, and such dismissal  constitutes  a  bar  to  any
further  prosecution  of the charge or charges contained in such indict-
ment.
  5. When, on the effective date  of  this  subdivision,  any  defendant
remains  in  the custody of the commissioner pursuant to an order issued
under former code of criminal procedure section six hundred sixty-two-b,
the superintendent or director of the institution where  such  defendant
is confined shall, if he OR SHE believes that the defendant continues to
be  an incapacitated person, apply forthwith to a court of record in the
county where the institution is located for an order of  retention.  The
procedures for obtaining any order pursuant to this subdivision shall be
in accordance with the provisions of subdivisions two, three and four of
this  section, except that the period of retention pursuant to the first
order obtained under this subdivision shall be for  not  more  than  one
year  and  any subsequent orders of retention must be for periods not to
exceed two years each; provided, however, that the aggregate of the time
spent in the custody of the commissioner pursuant to any order issued in
accordance with the provisions of  former  code  of  criminal  procedure
section  six hundred sixty-two-b and the periods prescribed by the first
order obtained under this  subdivision  and  all  subsequent  orders  of
retention  must  not exceed two-thirds of the authorized maximum term of
imprisonment for the highest class felony charged in the  indictment  or
the highest class felony of which he OR SHE was convicted.
  S  6. Section 730.60 of the criminal procedure law, subdivisions 1 and
3 as amended by chapter 231 of  the  laws  of  2008,  subdivision  2  as
amended  by  chapter  57  of  the  laws of 1984, subdivisions 4 and 5 as
renumbered by chapter 629 of the laws of 1974, subdivision 6 as added by
chapter 549 of the laws of 1980 and the opening paragraph  of  paragraph
(a)  of  subdivision 6 as amended by chapter 440 of the laws of 1987, is
amended to read as follows:
S 730.60 Fitness to proceed; procedure following custody by  commission-
            er.
  1.  When  a  local criminal court issues a final or temporary order of
observation or an order of commitment, it must forward such order and  a
copy  of  the  examination  reports and the accusatory instrument to the
commissioner, and, if available, a copy of the pre-sentence report. Upon
receipt thereof, the commissioner must designate an appropriate institu-
tion operated by the department of mental hygiene in which the defendant
is to be placed, 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. The sheriff must hold  the  defendant  in
custody  pending such designation by the commissioner, and when notified

S. 3884                             7                            A. 6149

of the designation, the sheriff must deliver the defendant to the super-
intendent of such institution. The superintendent must  promptly  inform
the  appropriate  director  of  the  mental hygiene legal service of the
defendant's  admission  to such institution. If a defendant escapes from
the custody of the commissioner, the escape shall interrupt  the  period
prescribed  in  any  order  of observation, commitment or retention, and
such interruption shall continue until the defendant is returned to  the
custody of the commissioner.
  2.  Except as otherwise provided in subdivisions four and five, when a
defendant is in the custody of the commissioner pursuant to a  temporary
order of observation or an order of commitment or an order of retention,
the  criminal  action  pending  against  the defendant in the court that
issued such order is suspended until the superintendent of the  institu-
tion  in which the defendant is confined determines that he OR SHE is no
longer an incapacitated person. In that event,  the  court  that  issued
such  order  and  the appropriate district attorney must be notified, in
writing, by the superintendent of his OR HER  determination.  The  court
must  thereupon proceed in accordance with the provisions of subdivision
two of section 730.30 of this chapter; provided, however, if  the  court
is  satisfied  that  the  defendant remains an incapacitated person, and
upon consent of all parties, the court  may  order  the  return  of  the
defendant  to  the  institution in which he OR SHE had been confined for
such period of time as was authorized by the prior order  of  commitment
or  order  of  retention. Upon such return, the defendant shall have all
rights and privileges accorded by the provisions of this article.
  3. When a defendant is in the custody of the commissioner pursuant  to
an  order  issued  in accordance with this article, the commissioner may
transfer him OR HER to  any  appropriate  institution  operated  by  the
department  of  mental hygiene, 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 section. The commissioner may discharge a
defendant in his OR HER custody under a final order  of  observation  at
any  time prior to the expiration date of such order, or otherwise treat
or transfer such defendant in the same manner as if he  OR  SHE  were  a
patient not in confinement under a criminal court order.
  4.  When a defendant is in the custody of the commissioner pursuant to
an order of commitment or an order of retention, he OR SHE may make  any
motion  authorized by this chapter which is susceptible of fair determi-
nation without his OR HER personal participation. If  the  court  denies
any  such motion it must be without prejudice to a renewal thereof after
the criminal action against the defendant has been ordered  to  proceed.
If  the  court  enters  an  order dismissing the indictment and does not
direct that the charge or charges be resubmitted to a  grand  jury,  the
court  must  direct  that  such  order  of  dismissal be served upon the
commissioner.
  5. When a defendant is in the custody of the commissioner pursuant  to
an order of commitment or an order of retention, the superior court that
issued  such  order  may,  upon  motion  of  the defendant, and with the
consent of the district attorney, dismiss the indictment when the  court
is  satisfied that (a) the defendant is a resident or citizen of another
state or country and that  he  OR  SHE  will  be  removed  thereto  upon
dismissal  of the indictment, or (b) the defendant has been continuously
confined in the custody of the commissioner for a period  of  more  than

S. 3884                             8                            A. 6149

two  years.   Before granting a motion under this subdivision, the court
must be further satisfied that dismissal of the indictment is consistent
with the ends of justice and  that  custody  of  the  defendant  by  the
commissioner pursuant to an order of commitment or an order of retention
is  not  necessary  for  the  protection of the public and that care and
treatment can be effectively administered to the defendant  without  the
necessity of such order. If the court enters an order of dismissal under
this  subdivision,  it must set forth in the record the reasons for such
action, and must direct that such order of dismissal be served upon  the
commissioner.  The  dismissal of an indictment pursuant to this subdivi-
sion constitutes a bar to any  further  prosecution  of  the  charge  or
charges contained in such indictment.
  6. (a) Notwithstanding any other provision of law, no person committed
to  the custody of the commissioner pursuant to this article, or contin-
uously  thereafter  retained  in  such  custody,  shall  be  discharged,
released  on  condition  or placed in any less secure facility or on any
less restrictive  status,  including,  but  not  limited  to  vacations,
furloughs  and  temporary  passes, unless the commissioner shall deliver
written notice, at least four days,  excluding  Saturdays,  Sundays  and
holidays,  in  advance of the change of such committed person's facility
or status, to all of the following:
  (1) The district attorney of the county from  which  such  person  was
committed;
  (2) The superintendent of state police;
  (3) The sheriff of the county where the facility is located;
  (4)  The  police  department having jurisdiction of the area where the
facility is located;
  (5) Any person who may reasonably be expected to be the victim of  any
assault  or  any  violent  felony  offense, as defined in the penal law,
which would be carried out by the committed person; and
  (6) Any other person the court may designate.
  Said notice may be given by any means reasonably  calculated  to  give
prompt actual notice.
  (b)  The notice required by this subdivision shall also be given imme-
diately upon the departure of such committed person from the commission-
er's actual custody,  without  proper  authorization.  Nothing  in  this
subdivision shall be construed to impair any other right or duty regard-
ing any notice or hearing contained in any other provision of law.
  (c)  Whenever a district attorney has received the notice described in
this subdivision, and the defendant is in the custody of the commission-
er pursuant to a final order of observation or an order  of  commitment,
he  OR  SHE  may  apply within three days of receipt of such notice to a
superior court, for an order directing a hearing to be held to determine
whether such committed person is a danger to himself, HERSELF or others.
Such hearing shall be held within ten days  following  the  issuance  of
such order. Such order may provide that there shall be no further change
in  the  committed person's facility or status until the hearing. Upon a
finding that the committed person is a danger  to  himself,  HERSELF  or
others,  the  court shall issue an order to the commissioner authorizing
retention of the committed person in the status  existing  at  the  time
notice  was  given  hereunder, for a specified period, not to exceed six
months. The district attorney and the committed person's attorney  shall
be  entitled  to  the committed person's clinical records in the commis-
sioner's custody, upon the issuance of an order directing a  hearing  to
be held.

S. 3884                             9                            A. 6149

  (d) Nothing in this subdivision shall be construed to impair any other
right  or  duty  regarding  any notice or hearing contained in any other
provision of law.
  S 7. Section 730.70 of the criminal procedure law, as amended by chap-
ter 629 of the laws of 1974, is amended to read as follows:
S 730.70  Fitness to proceed; procedure following termination of custody
             by commissioner.
  When  a defendant is in the custody of the commissioner on the expira-
tion date of a final or temporary order of observation or  an  order  of
commitment, or on the expiration date of the last order of retention, or
on the date an order dismissing an indictment is served upon the commis-
sioner,  the superintendent of the institution in which the defendant is
confined may retain him OR HER for care and treatment for  a  period  of
thirty days from such date.
  If the superintendent determines that the defendant is so mentally ill
or  mentally  defective as to require continued care and treatment in an
institution, he OR SHE may, before the expiration  of  such  thirty  day
period,  apply for an order of certification in the manner prescribed in
section 31.33 of the mental hygiene law.
  S 8. This act shall take effect immediately.

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