senate Bill S3034

Signed By Governor
2013-2014 Legislative Session

Relates to orders of observation for the purpose of determining incapacitation

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Archive: Last Bill Status Via A196 - Signed by Governor


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

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Mar 15, 2013 signed chap.7
Mar 12, 2013 delivered to governor
Mar 11, 2013 returned to assembly
passed senate
3rd reading cal.131
substituted for s3034
Mar 11, 2013 substituted by a196
Mar 05, 2013 advanced to third reading
Mar 04, 2013 2nd report cal.
Feb 28, 2013 1st report cal.131
Jan 28, 2013 referred to codes

Votes

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S3034 - Bill Details

See Assembly Version of this Bill:
A196
Law Section:
Criminal Procedure Law
Laws Affected:
Amd §§730.40, 730.60 & 730.50, CP L; amd §29.11, Ment Hyg L

S3034 - Bill Texts

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

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BILL NUMBER:S3034

TITLE OF BILL: An act to amend the criminal procedure law and the
mental hygiene law, in relation to orders of observation for the
purpose of determining incapacitation

PURPOSE OF BILL: Relates to notice of discharge of persons confined
pursuant to an order of observation for the purpose of determining
incapacitation.

SUMMARY OF PROVISIONS OF BILL:

Section 1 amends section 730.40 of the criminal procedure law to
require the district attorney to provide information to the
commissioner of mental health about persons who may reasonably be
expected to be a victim of an assault or violent felony offense.

Sections 2, 3 and 4 make conforming changes to relevant provisions of
the criminal procedure law.

Section 5 makes conforming changes to the mental hygiene law. Section
6 is the effective date.

JUSTIFICATION: Legislation enacted in 2012 (Chapter 476 of 2012)
expanded the duty of the Commissioner of Mental Health and the
Commissioner of the Office for People with Developmental Disabilities
to notify victims upon the discharge from custody of persons found
incapacitated to stand trial. Specifically, the new law requires the
Commissioner to certify to the court that he or she has complied with
the notice provisions and also expands the list of victims that must
be notified.

The Executive raised concerns that the agencies required to provide
the notice do not always have access to all relevant victim
information. Therefore, this bill further strengthens the new law by
requiring the district attorney to transmit the names and contact
information of victims to the Commissioners to help ensure access to
relevant information regarding the identity of victims.

LEGISLATIVE HISTORY: New bill, 2013.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.

EFFECTIVE DATE: Immediately,

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

                                  3034

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 28, 2013
                               ___________

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

AN ACT to amend the criminal procedure law and the mental  hygiene  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 1 of section 730.40 of the criminal procedure
law, as amended by section 2 of part Q of chapter  56  of  the  laws  of
2012, is amended to read as follows:
  1. When a local criminal court, following a hearing conducted pursuant
to  subdivision  three  or  four  of  section 730.30 OF THIS ARTICLE, is
satisfied that the defendant is not an incapacitated person, the  crimi-
nal  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, such court must issue a final or temporary order of observation
committing him or her to the custody of the commissioner  for  care  and
treatment in an appropriate institution for a period not to exceed nine-
ty  days from the date of the order, provided, however, that the commis-
sioner may designate an appropriate hospital for placement of a  defend-
ant  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. When a local crimi-
nal court accusatory instrument other than a felony complaint  has  been
filed  against  the  defendant,  such  court must issue a final order of
observation. When a felony complaint has been filed against the  defend-
ant,  such  court must issue a temporary order of observation committing
him or her to the custody of the commissioner for care and treatment  in
an  appropriate  institution or, upon the consent of the district attor-
ney, committing him or her to the custody of the commissioner  for  care

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04891-01-3

S. 3034                             2

and treatment on an out-patient basis, for a period not to exceed ninety
days  from  the date of such order, except that, with the consent of the
district attorney, it may issue a final order of observation.  UPON  THE
ISSUANCE  OF  A  FINAL ORDER OF OBSERVATION, THE DISTRICT ATTORNEY SHALL
IMMEDIATELY TRANSMIT TO  THE  COMMISSIONER,  IN  A  MANNER  INTENDED  TO
PROTECT  THE  CONFIDENTIALITY  OF  THE  INFORMATION, A LIST OF NAMES AND
CONTACT INFORMATION OF PERSONS 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 CHAPTER 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.
  S 2. Subdivision 2 of section 730.40 of the criminal procedure law, as
amended by chapter 476 of the laws  of  2012,  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] OR HIS
OR HER DESIGNEE, WHICH MAY INCLUDE THE DIRECTOR OF AN APPROPRIATE INSTI-
TUTION, immediately upon the discharge of the defendant, MUST certify to
such court that he or she has complied with the  notice  provisions  set
forth  in  PARAGRAPH  (A)  OF  subdivision 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 observa-
tion, 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.
  S  3. Paragraphs (a) and (b) of subdivision 6 of section 730.60 of the
criminal procedure law, paragraph (a) as amended by chapter 476  of  the
laws  of  2012, and paragraph (b) as added by chapter 549 of the laws of
1980, are 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
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 OR HIS OR HER DESIGNEE,  WHICH
MAY  INCLUDE  THE  DIRECTOR OF AN APPROPRIATE INSTITUTION, 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  observation  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;

S. 3034                             3

  (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.
  (b)  The notice required by this subdivision shall also be given imme-
diately upon the departure of such committed person  from  the  [commis-
sioner's]  actual custody OF THE COMMISSIONER OR AN APPROPRIATE INSTITU-
TION, without proper authorization. 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 4. Subdivision 1 of section 730.50 of the criminal procedure law, as
amended  by  section  3  of part Q of chapter 56 of the laws of 2012, 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  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
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 observa-
tion has been issued, where such hospital is licensed by the  office  of
mental health and has agreed to accept, upon referral by the commission-
er,  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 prosecution of the charge or charges contained in  such  indict-
ment.  UPON  THE  ISSUANCE OF A FINAL ORDER OF OBSERVATION, THE DISTRICT
ATTORNEY SHALL IMMEDIATELY TRANSMIT TO THE  COMMISSIONER,  IN  A  MANNER
INTENDED  TO  PROTECT  THE CONFIDENTIALITY OF THE INFORMATION, A LIST OF
NAMES AND CONTACT INFORMATION OF PERSONS 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  CHAPTER  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. 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 or, upon the
consent of the district attorney, committing him or her to  the  custody
of  the commissioner for care and treatment on an out-patient basis, 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 defend-
ant's  bail  if  he  or she was previously at liberty on bail; provided,

S. 3034                             4

however, that exoneration of bail is not required when  a  defendant  is
committed  to  the custody of the commissioner for care and treatment on
an out-patient basis. WHEN THE  DEFENDANT  IS  IN  THE  CUSTODY  OF  THE
COMMISSIONER  PURSUANT TO A FINAL ORDER OF OBSERVATION, THE COMMISSIONER
OR HIS OR HER DESIGNEE, WHICH MAY INCLUDE THE DIRECTOR OF AN APPROPRIATE
INSTITUTION, IMMEDIATELY UPON  THE  DISCHARGE  OF  THE  DEFENDANT,  MUST
CERTIFY  TO  SUCH  COURT  THAT  HE  OR  SHE HAS COMPLIED WITH THE NOTICE
PROVISIONS SET FORTH IN PARAGRAPH (A)  OF  SUBDIVISION  SIX  OF  SECTION
730.60 OF THIS ARTICLE.
  S  5.  Subdivision  (h) of section 29.11 of the mental hygiene law, as
added by chapter 549 of the laws of 1980, is amended to read as follows:
  (h) Notwithstanding any other provision of law, no person committed to
the custody of the commissioner of mental hygiene  pursuant  to  article
seven  hundred  thirty  of  the  criminal procedure law, or continuously
thereafter retained in such custody, shall be  discharged,  released  on
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 OR HIS OR HER DESIGNEE, WHICH
MAY INCLUDE THE DIRECTOR OF AN APPROPRIATE  INSTITUTION  AS  DEFINED  IN
SECTION  730.10  OF  THE  CRIMINAL  PROCEDURE LAW, 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 OBSER-
VATION 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 THE CRIMINAL PROCEDURE LAW 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;
  6. the attorney for the committed person, where the attorney shall  so
request; and
  7. any other person the court may designate.
  Said  notice  may  be given by any means reasonably calculated to give
prompt actual notice. The notice required by this subdivision shall also
be given immediately upon the departure of such  committed  person  from
the  [commissioner's] actual custody OF THE COMMISSIONER OR AN APPROPRI-
ATE INSTITUTION, without proper authorization. Nothing in this  subdivi-
sion  shall be construed to impair any other right or duty regarding any
notice or hearing contained in any other provision of law.
  S 6. This act shall take effect immediately.

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