NY State Senate Bill 2011-S6548

Senate Bill S6548

Signed By Governor

2011-2012 Legislative Session

Relates to orders of observation for the purpose of determining incapacitation

download bill text pdf

Archive: Last Bill Status Via A10664 - Signed by Governor

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Oct 03, 2012	approval memo.18 signed chap.476
Sep 21, 2012	delivered to governor
Jun 21, 2012	returned to assembly passed senate 3rd reading cal.343 substituted for s6548a
Jun 21, 2012	substituted by a10664
Jun 12, 2012	amended on third reading 6548a
Mar 15, 2012	advanced to third reading
Mar 14, 2012	2nd report cal.
Mar 13, 2012	1st report cal.343
Feb 24, 2012	referred to codes

Votes

- Jun 21, 2012 - Floor Vote
  A10664
  
  60
  
  Aye
  
  0
  
  Nay
  
  0
  
  Absent
  
  2
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Jun 21, 2012
      
      aye (60)
      
      Adams
      
      Addabbo Jr.
      
      Alesi
      
      Avella
      
      Ball
      
      Bonacic
      
      Breslin
      
      Carlucci
      
      DeFrancisco
      
      Diaz
      
      Dilan
      
      Duane
      
      Farley
      
      Flanagan
      
      Fuschillo
      
      Gallivan
      
      Gianaris
      
      Golden
      
      Griffo
      
      Grisanti
      
      Hannon
      
      Hassell-Thompson
      
      Johnson
      
      Kennedy
      
      Klein
      
      Krueger
      
      LaValle
      
      Lanza
      
      Larkin
      
      Libous
      
      Little
      
      Marcellino
      
      Martins
      
      Maziarz
      
      McDonald
      
      Montgomery
      
      Nozzolio
      
      O'Mara
      
      Oppenheimer
      
      Parker
      
      Peralta
      
      Perkins
      
      Ranzenhofer
      
      Ritchie
      
      Rivera
      
      Robach
      
      Saland
      
      Sampson
      
      Savino
      
      Serrano
      
      Seward
      
      Skelos
      
      Smith
      
      Squadron
      
      Stavisky
      
      Stewart-Cousins
      
      Storobin
      
      Valesky
      
      Young
      
      Zeldin
      
      excused (2)
      
      Espaillat
      
      Huntley
  Mar 13, 2012 - Codes Committee Vote
  S6548
  
  12
  
  Aye
  
  1
  
  Nay
  
  3
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Codes Committee Vote: Mar 13, 2012
      
      aye (12)
      
      DeFrancisco
      
      Duane
      
      Espaillat
      
      Flanagan
      
      Fuschillo
      
      Gallivan
      
      Golden
      
      Lanza
      
      Nozzolio
      
      O'Mara
      
      Saland
      
      Squadron
      
      nay (1)
      
      Parker
      
      aye wr (3)
      
      Gianaris
      
      Huntley
      
      Perkins

Bill Amendments

Original

A (Active)

2011-S6548 - Details

Law Section:: Criminal Procedure Law
Laws Affected:: Amd §§730.40 & 730.50, CP L

2011-S6548 - Summary

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

2011-S6548 - 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.

2011-S6548 - Bill Text download pdf

                            
                    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.

2011-S6548A (ACTIVE) - Details

Law Section:: Criminal Procedure Law
Laws Affected:: Amd §§730.40 & 730.50, CP L

2011-S6548A (ACTIVE) - Summary

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

2011-S6548A (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S6548A              REVISED 06/13/12

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
incapacitation

SUMMARY OF PROVISIONS:

Section 1. Amends section 730.40 of the criminal procedure law to
provide that when a criminal court has issued a final order of
observation it must dismiss the accusatory instrument filed in the
court against the defendant and when the defendant is in the custody
of the commissioner pursuant to a final order of observation the
commissioner must, immediately upon the discharge of the defendant,
certify to such court that he or she has complied with the notice
provisions set forth in subdivision (6) of section 730.60 of this
article.

Section 2. Amends section 730.60 of the criminal procedure law to
provide that when a defendant is committed pursuant to a final order

of observation the commissioner of mental hygiene must provide written
notice upon discharge of such committed person and requires anyone
that may reasonably be expected to be a victim of an offense
enumerated in section 530.11 of the CPL to the list of persons to be
notified by the commissioner under this section.  For purposes of
notice under this provision, a victim of the enumerated offenses need
not be a member of the same.

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 and the status of such
persons custody is not reported back to the court, district attorney's
office or the victim. In contrast, when a defendant is charged with a
felony, the commissioner is required to notify the court, the district
attorney's office and victims of assaults or violent felony offenses
that that the individual is in his custody at the expiration of the
period of his temporary order of observation before such persons
release.  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 require notification when a person is committed
to the custody of the commissioner pursuant to a final order of
observation. Some of the misdemeanors at issue in a final order of
observation can include stalking and harassment and domestic violence
crimes-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 information about
the defendant's whereabouts. This bill provides all victims of family
offense crimes, regardless of the victim's relationship to the
perpetrator, and domestic violence survivors an opportunity to obtain
information about an incapacitated person's release so they may plan
for their safety.

LEGISLATIVE HISTORY:
New bill.

FISCAL IMPLICATIONS:
None.

LOCAL FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect immediately.

2011-S6548A (ACTIVE) - Bill Text download pdf

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

                                 6548--A
    Cal. No. 343

                            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 -- reported  favora-
  bly  from  said committee, ordered to first and second report, ordered
  to a third reading, amended and ordered reprinted, retaining its place
  in the order of third reading

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  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
PURSUANT TO A FINAL ORDER OF OBSERVATION THE  COMMISSIONER  MUST,  IMME-
DIATELY  UPON THE DISCHARGE OF THE DEFENDANT, CERTIFY TO SUCH COURT THAT
HE OR SHE HAS COMPLIED WITH THE NOTICE PROVISIONS SET FORTH IN  SUBDIVI-
SION SIX OF SECTION 730.60 OF THIS ARTICLE. 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 crimi-
nal 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 felony complaint filed against the defendant.
  S 2. Paragraph (a) of subdivision 6 of section 730.60 of the  criminal
procedure  law,  as  added  by  chapter 549 of the laws of 1980, and the
opening paragraph as amended by chapter 440 of  the  laws  of  1987,  is
amended to read as follows:
  (a) Notwithstanding any other provision of law, no person committed to
the custody of the commissioner pursuant to this article, or continuous-
ly thereafter retained in such custody, shall be discharged, released on

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                      [ ] is old law to be omitted.
                                                           LBD14006-02-2

S. 6548--A                          2

condition  or placed in any less secure facility or on any less restric-
tive 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,  OR
IN  THE CASE OF A PERSON COMMITTED PURSUANT TO A FINAL ORDER OF OBSERVA-
TION WRITTEN NOTICE UPON DISCHARGE OF SUCH COMMITTED PERSON, 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,  OR
ANY OFFENSE LISTED IN SECTION 530.11 OF THIS PART which would be carried
out  by  the  committed person;  PROVIDED THAT THE PERSON WHO REASONABLY
MAY BE EXPECTED TO BE A VICTIM DOES NOT NEED TO BE A MEMBER OF THE  SAME
FAMILY OR HOUSEHOLD AS 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.
  S 3. This act shall take effect immediately.

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