LBD01866-03-5
S. 1004--A 2
prescribe the number of copies thereof that must be submitted to the
court by the director.
§ 3. Subdivision 9 of section 730.10 of the criminal procedure law, as
added by section 1 of part Q of chapter 56 of the laws of 2012, is
amended and a new subdivision 10 is added to read as follows:
9. "Appropriate institution" means: (a) a hospital operated by the
office of mental health or a developmental center operated by the office
for people with developmental disabilities; [or] (b) a hospital licensed
by the department of health which operates a psychiatric unit licensed
by the office of mental health, as determined by the commissioner
provided, however, that any such hospital that is not operated by the
state shall qualify as an "appropriate institution" only pursuant to the
terms of an agreement between the commissioner and the hospital; OR (C)
A MENTAL HEALTH UNIT OPERATING WITHIN A LOCAL CORRECTIONAL FACILITY,
PROVIDED, HOWEVER, THAT ANY SUCH MENTAL HEALTH UNIT OPERATING WITHIN A
LOCAL CORRECTIONAL FACILITY SHALL QUALIFY AS AN "APPROPRIATE INSTITU-
TION" ONLY PURSUANT TO THE TERMS OF AN AGREEMENT BETWEEN THE COMMISSION-
ER OF MENTAL HEALTH AND THE MENTAL HEALTH UNIT. Nothing in this article
shall be construed as requiring a hospital to consent to providing care
and treatment to an incapacitated person at such hospital.
10. "RESTORATION SERVICES" MEANS THOSE SERVICES WHICH MAY INCLUDE
MEDICATION SUPPORT, CLASSROOM-BASED COMPETENCY INSTRUCTION, MOCK TRIALS,
SYMPTOM MANAGEMENT, AND REHABILITATIVE SERVICES PROVIDED TO AN INCAPACI-
TATED PERSON WHICH ARE DESIGNED TO IMPROVE THEIR MENTAL STATE OR DEVEL-
OPMENTAL STATUS TO THE EXTENT THAT THEY CAN UNDERSTAND THE CHARGES
AGAINST THEM AND PARTICIPATE IN THEIR OWN DEFENSE. RESTORATION SERVICES
MAY SUPPLEMENT MENTAL HEALTH TREATMENT AIMED AT RECOVERY FROM MENTAL
ILLNESS OR SERVICES AIMED AT IMPROVING A DEVELOPMENTALLY DISABLED
PERSON'S ABILITY TO FUNCTION ON A DAY-TO-DAY BASIS.
§ 4. 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:
§ 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 TO WHOM THE COURT HAS ISSUED AN
ORDER must designate two qualified psychiatric examiners, of whom [he]
SUCH DIRECTOR may be one, to examine the defendant to determine if [he]
THE DEFENDANT is an incapacitated person. In conducting their examina-
tion, the psychiatric examiners [may] SHALL employ [any] A method [which
is accepted by the medical profession for the examination of persons
alleged to be mentally ill or mentally defective] AS SET FORTH IN STAND-
ARDS SET BY AGREEMENT BETWEEN THE DIRECTOR AND THE COMMISSIONER TO
DETERMINE IF THE DEFENDANT IS AN INCAPACITATED PERSON. The court may
authorize a psychiatrist or psychologist 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] THE DEFENDANT was theretofore
released on bail or on [his] THE DEFENDANT'S own recognizance, the court
[may] SHALL direct that the examination be conducted on an out-patient
basis, and at such time and place as the director shall designate AND
THE COURT SHALL ORDER THE DEFENDANT TO APPEAR FOR SUCH EXAMINATION. If,
however, the director informs the court that hospital confinement of the
defendant is necessary for an effective examination, the court may
S. 1004--A 3
direct that the defendant be confined in a hospital [designated by the
director] OPERATED OR APPROVED BY THE COMMISSIONER ONLY until the exam-
ination is completed. IN NO EVENT SHALL THE NEED FOR SUCH EXAMINATION BE
A BASIS FOR INCARCERATING A DEFENDANT WHO HAS BEEN RELEASED ON BAIL OR
THEIR OWN RECOGNIZANCE.
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] COMMISSIONER and hold [him] THE
DEFENDANT in custody therein, under sufficient guard, until the examina-
tion is completed.
4. Hospital confinement under subdivisions two and three shall be for
a period not exceeding [thirty] TEN days, except that, upon application
of the director, the court may authorize confinement for an additional
period not exceeding [thirty] TEN 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 admin-
ister or cause to be administered to the defendant such emergency
psychiatric, medical or other therapeutic treatment as in [his] SUCH
PHYSICIAN'S judgment should be administered.
5. Each psychiatric examiner, after [he has completed his] COMPLETING
THE examination of the defendant, must promptly prepare AND SUBMIT TO
THE DIRECTOR an examination report [and submit it to the director]
SETTING FORTH THE EXAMINER'S OPINION AS TO WHETHER OR NOT THERE IS AT
LEAST A REASONABLE EXPECTATION THAT RESTORATION SERVICES COULD HAVE A
SUBSTANTIAL PROBABILITY OF RESTORING THE DEFENDANT TO COMPETENCE WITHIN
A REASONABLE PERIOD OF TIME. If the psychiatric examiners are not unani-
mous in their opinion as to whether the defendant is or is not an inca-
pacitated person, the director must designate another qualified psychi-
atric examiner to examine the defendant to determine if [he] THE
DEFENDANT is an incapacitated person AND, IF SO, WHETHER OR NOT THERE IS
AT LEAST A REASONABLE EXPECTATION THAT RESTORATION SERVICES COULD HAVE A
SUBSTANTIAL PROBABILITY OF RESTORING THE DEFENDANT TO COMPETENCE WITHIN
A REASONABLE PERIOD OF TIME. 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] SUCH
DEFENDANT'S 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, WHO IS NOT REGULARLY EMPLOYED BY THE COUN-
TY, STATE, OR CITY OF NEW YORK, is entitled to [his] THEIR reasonable
traveling expenses[, a] AND TO A REASONABLE fee [of fifty dollars] TO BE
NEGOTIATED WITH THE EXAMINER BY THE DIRECTOR OR THE COUNTY OR, IF NO
SUCH FEE IS AGREED UPON, TO BE SET BY THE COURT for each examination of
a defendant 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 psychi-
atric examiner be an employee of the COUNTY OR OF THE state of New York
S. 1004--A 4
[he] THEY 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] THEIR hours of state OR COUNTY
employment in a county in which the director of community [mental
health] services certifies to the fiscal officer thereof that there is a
shortage of qualified [psychiatrists] EXAMINERS available to conduct
examinations under [the criminal procedure law] THIS CHAPTER in such
county, in which event [he] SUCH EXAMINER shall be entitled to [the
foregoing] SUCH fees and reasonable traveling expenses AS APPROVED BY
THE COURT. Such fees and traveling expenses and the costs of sending a
defendant to another place of detention or to a hospital for examina-
tion[, of his maintenance therein] and THE COST of returning [him] THE
DEFENDANT shall, when approved AND SO ORDERED by the court, be a charge
of the county in which the defendant is being tried, AND THE COST OF THE
MAINTENANCE OF SUCH DEFENDANT THEREIN SHALL BE A COST TO THE STATE.
§ 5. Section 730.30 of the criminal procedure law, subdivision 3 as
amended by chapter 629 of the laws of 1974, is amended to read as
follows:
§ 730.30 Fitness to proceed; order of examination.
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] SUCH DEFENDANT is held for the action of the
grand jury, OR UPON ARRAIGNMENT ON AN INDICTMENT BY A GRAND JURY, the
court wherein the criminal action is pending [must] MAY issue an order
of examination when it [is of the opinion] HAS A REASONABLE BASIS TO
BELIEVE that the defendant may be an incapacitated person.
2. When the examination reports submitted to the court show that each
psychiatric examiner is of the opinion that the defendant is not an
incapacitated person, the court may, on its own motion, conduct a hear-
ing to determine the issue of capacity, and it must conduct a hearing
upon motion therefor by the defendant or by the district attorney. If
THE COURT DOES NOT DECIDE TO HOLD A HEARING ON ITS OWN MOTION AND no
motion for a hearing is made, OR IF, FOLLOWING A HEARING THE COURT IS
SATISFIED THAT THE DEFENDANT IS NOT AN INCAPACITATED PERSON, the crimi-
nal action against the defendant must proceed. [If, following a hearing,
the court is satisfied that the defendant is not an incapacitated
person, the criminal action against him must proceed; if the court is
not so satisfied, it must issue a further order of examination directing
that the defendant be examined by different psychiatric examiners desig-
nated by the director.]
3. When the examination reports submitted to the court show that each
psychiatric examiner is of the opinion that the defendant is an incapac-
itated person AND THAT THERE IS AT LEAST A REASONABLE EXPECTATION THAT
RESTORATION SERVICES COULD HAVE A SUBSTANTIAL PROBABILITY OF RESTORING
THE DEFENDANT TO COMPETENCE WITHIN A REASONABLE PERIOD OF TIME, the
court [may, on its own motion,] MAY conduct a hearing to determine the
issue of capacity [and it must conduct such hearing upon motion therefor
by the defendant or by the district attorney].
4. When the examination reports submitted to the court show that the
psychiatric examiners are not unanimous in their opinion as to whether
the defendant is or is not an incapacitated person[, or when the exam-
ination reports submitted to the superior court show that the psychiat-
ric examiners are not unanimous in their opinion as to whether the
defendant is or is not a dangerous incapacitated person] AND THAT THERE
IS AT LEAST A REASONABLE EXPECTATION THAT RESTORATION SERVICES COULD
S. 1004--A 5
HAVE A SUBSTANTIAL PROBABILITY OF RESTORING THE DEFENDANT TO COMPETENCE
WITHIN A REASONABLE PERIOD OF TIME, the court must conduct a hearing to
determine the issue of capacity [or dangerousness] AND EXPECTATION OF
RESTORATION WITHIN A REASONABLE TIME.
§ 6. Subdivision 1 of section 730.40 of the criminal procedure law, as
amended by chapter 7 of the laws of 2013, is amended to read as follows:
1. When a local criminal court, following a hearing conducted pursuant
to subdivision TWO, 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] SUCH DEFENDANT must proceed. If [it] A
LOCAL CRIMINAL COURT ACCUSATORY INSTRUMENT OTHER THAN A FELONY COMPLAINT
HAS BEEN FILED AGAINST THE DEFENDANT AND THE COURT is satisfied that the
defendant is an incapacitated person, [or if no motion for such a hear-
ing is made, such court must issue a final or temporary order of obser-
vation committing him or her 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 the 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. When a local
criminal 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
defendant, such court must issue a temporary order of observation
committing [him or her] SUCH DEFENDANT to the custody of the commission-
er for [care and treatment] RESTORATION SERVICES in an appropriate
institution or, [upon the consent of the district attorney] IN THE
DISCRETION OF THE COURT, committing [him or her] SUCH DEFENDANT to the
custody of the commissioner for [care and treatment] RESTORATION
SERVICES 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,] OR 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]
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.
§ 7. Section 730.50 of the criminal procedure law, subdivision 1 as
amended by chapter 7 of the laws of 2013, subdivision 2 as amended by
chapter 789 of the laws of 1985, subdivision 5 as amended by chapter 629
of the laws of 1974, is amended to read as follows:
§ 730.50 Fitness to proceed; indictment.
1. When a superior court, following a hearing conducted pursuant to
subdivision TWO, 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] SUCH DEFENDANT must proceed. If [it is
satisfied] AFTER A HEARING, THE COURT MAKES A FINDING that the defendant
is an incapacitated person, [or if no motion for such a hearing is made]
AND THAT THERE IS AT LEAST A REASONABLE EXPECTATION THAT RESTORATION
SERVICES COULD HAVE A SUBSTANTIAL PROBABILITY OF RESTORING THE DEFENDANT
S. 1004--A 6
TO COMPETENCE WITHIN A REASONABLE PERIOD OF TIME, it must adjudicate
[him or her] THEM 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 observa-
tion [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 prosecution of the
charge or charges contained in such indictment. 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 confi-
dentiality 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] 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. When the
indictment charges a felony [or when the defendant has been convicted of
a felony] AND THE COURT HAS DETERMINED THAT THERE IS AT LEAST A REASON-
ABLE EXPECTATION THAT RESTORATION SERVICES COULD HAVE A SUBSTANTIAL
PROBABILITY OF RESTORING THE DEFENDANT TO COMPETENCE WITHIN A REASONABLE
PERIOD OF TIME, it must issue an order of commitment committing the
defendant to the custody of the commissioner [for care and treatment] TO
RECEIVE RESTORATION SERVICES in an appropriate institution or[, upon the
consent of the district attorney,] committing [him or her] SUCH DEFEND-
ANT to the custody of the commissioner for care and treatment on an
out-patient basis, for a period not to exceed [one year] NINETY DAYS
from the date of such order. Upon the issuance of an order of commit-
ment, the court must exonerate the defendant's bail if [he or she was]
THEY WERE previously at liberty on bail; provided, however, that exoner-
ation 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 pursu-
ant 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]
IN THE EVENT THAT THE COURT DETERMINES THERE IS NOT A REASONABLE EXPEC-
TATION THAT RESTORATION SERVICES COULD HAVE A SUBSTANTIAL PROBABILITY OF
RESTORING THE DEFENDANT TO COMPETENCE WITHIN A REASONABLE PERIOD OF TIME
THE MATTER SHALL BE REFERRED TO THE SUPREME COURT FOR A HEARING
CONDUCTED IN ACCORDANCE WITH SECTION 9.33 OR 15.31 OF THE MENTAL
HYGIENE LAW.
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
S. 1004--A 7
incapacitated person, such superintendent must apply to the court that
issued such order for an order of retention FOR AN ADDITIONAL PERIOD OF
NINETY DAYS. THE COURT MUST HOLD A HEARING ON THIS APPLICATION TO
DETERMINE IF THERE IS A SUBSTANTIAL PROBABILITY OF RECOVERY IN THE FORE-
SEEABLE FUTURE. IF THE COURT DETERMINES THAT THERE IS SUCH REASONABLE
EXPECTATION OF RESTORATION, IT SHALL ISSUE AN ORDER OF RETENTION FOR AN
ADDITIONAL NINETY DAYS. IF THE COURT FINDS THAT THE DEFENDANT IS STILL
INCAPACITATED AND THERE IS NOT A SUBSTANTIAL PROBABILITY OF RESTORATION
IN THE FORESEEABLE FUTURE, IT SHALL REFER THE MATTER TO THE CIVIL
SECTION OF THE SUPREME COURT IN THE COUNTY WHERE THE DEFENDANT'S CASE IS
PENDING, FOR A HEARING PURSUANT TO ARTICLE NINE OR FIFTEEN OF THE MENTAL
HYGIENE LAW TO DETERMINE IF THE DEFENDANT SHALL BE HOSPITALIZED OR
OTHERWISE RETAINED ON AN INVOLUNTARY BASIS. [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 FOR SUCH ORDER to the defendant and to the mental hygiene legal
service. Upon receipt of such application, the court [may, on its own
motion,] SHALL 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 conclu-
sion 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 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] PURSUANT TO THE PROVISIONS OF ARTICLE NINE OR FIFTEEN OF THE
MENTAL HYGIENE LAW AND THE COURT SHALL ORDER THAT THE DEFENDANT SHALL BE
MAINTAINED IN THE CUSTODY OF THE COMMISSIONER BUT TRANSFERRED TO A
HOSPITAL OR OTHER APPROPRIATE INSTITUTION TO BE INVOLUNTARILY ADMITTED
PURSUANT TO ARTICLE NINE OR FIFTEEN OF THE MENTAL HYGIENE LAW SUBJECT
TO THE RETENTION PROVISIONS OF SECTION 9.33 OR 15.31 OF THE MENTAL
HYGIENE LAW EXCEPT AS SPECIFICALLY PROVIDED HEREIN. SUCH ORDER SHALL
NOT BE DEEMED IN ANY WAY TO BE THE ORDER OF A CRIMINAL COURT.
3. [When] BEFORE a defendant is [in] RELEASED FROM 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,] EITHER PURSUANT TO THIS SECTION OR PURSUANT TO ARTICLE NINE OR
FIFTEEN OF THE MENTAL HYGIENE LAW, THE COURT SHALL HOLD A HEARING TO
DETERMINE WHETHER OR NOT THE DEFENDANT CONTINUES TO BE AN INCAPACITATED
PERSON. 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 THEM MUST PROCEED
EXCEPT THAT THE COURT SHALL HAVE THE DISCRETION TO DISMISS THE CASE IN
THE INTERESTS OF JUSTICE. IF, AT THE CONCLUSION OF A HEARING CONDUCTED
PURSUANT TO THIS SUBDIVISION, THE COURT FINDS THAT THE DEFENDANT CONTIN-
UES TO BE AN INCAPACITATED PERSON THEN THE COURT SHALL MAKE AN ORDER IN
ACCORDANCE WITH SECTION 9.33 OR 15.31 OF THE MENTAL HYGIENE LAW. IN ANY
CASE that the aggregate of periods prescribed in the temporary order of
commitment[, the first order of retention and all subsequent orders of
S. 1004--A 8
retention] AND ANY ORDER OF RETENTION PURSUANT TO THIS ARTICLE OR ARTI-
CLE NINE OR FIFTEEN OF THE MENTAL HYGIENE LAW must not exceed two-thirds
of the authorized maximum term of imprisonment for the highest class
felony charged in the indictment [or for the highest class felony of
which he was convicted].
4. When a defendant is in the custody of the commissioner EITHER at
the expiration of the authorized period prescribed in the last order of
retention OR ANY ORDER OF RETENTION ISSUED PURSUANT TO ARTICLE NINE OR
FIFTEEN OF THE MENTAL HYGIENE LAW, the criminal action pending against
[him] SUCH DEFENDANT in the superior 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 defend-
ant was in [his] THEIR 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 indictment.
[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 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 proce-
dures 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 was convicted.]
§ 8. 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 paragraphs (a) and (b) of subdivi-
sion 6 as amended by chapter 7 of the laws of 2013, is amended to read
as follows:
§ 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
institution 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
S. 1004--A 9
observation issued under this subdivision]. The sheriff [must hold the
defendant in custody pending such designation by the commissioner, and]
when notified of the designation, [the sheriff] must deliver the defend-
ant to the superintendent 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 OF THIS
SECTION, 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] PENDING FURTHER
ORDER OF THE COURT. IF the superintendent of the institution in which
the defendant is confined determines that [he] SUCH DEFENDANT 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] THEIR determination. The court
must thereupon proceed in accordance with the provisions of subdivision
two of section 730.30 of this [chapter] ARTICLE; 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] THEY had been confined
for such period of time as was authorized by the prior order of commit-
ment 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] SUCH DEFENDANT to any appropriate institution operated by
the department of mental hygiene, 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 section. The commissioner may
discharge a defendant in [his] THEIR 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]
SUCH DEFENDANT 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] THEY may make any
motion authorized by this chapter which is susceptible of fair determi-
nation without [his] THEIR 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
S. 1004--A 10
is satisfied that (a) the defendant is a resident or citizen of another
state or country and that [he] THEY will be removed thereto upon
dismissal of the indictment, or (b) the defendant has been continuously
confined in the custody of the commissioner, EITHER PURSUANT TO THIS
ARTICLE OR PURSUANT TO ARTICLE NINE OR FIFTEEN OF THE MENTAL HYGIENE
LAW, for a period of more than 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 subdivision 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 commit-
ted to the custody of the commissioner pursuant to this article, or
continuously 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 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 pursu-
ant 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;
(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 actual
custody of the commissioner or an appropriate institution, without prop-
er 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.
(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 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
S. 1004--A 11
such committed person is a danger to himself 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 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 commissioner's custody, upon the issu-
ance of an order directing a hearing to be held.
(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.]
§ 9. 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:
§ 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] SUCH DEFENDANT for care and treatment for a
period of NO MORE THAN thirty days from such date. If [the] DURING SUCH
TIME TWO PSYCHIATRIC EXAMINERS ENGAGED BY THE superintendent [deter-
mines] DETERMINE that the defendant is so mentally ill or mentally
defective as to require continued care and treatment in an institution,
[he] THE SUPERINTENDENT may, before the expiration of such thirty day
period, apply for an order of [certification] RETENTION in the manner
prescribed in section [31.33] 9.33 OR 15.33 of the mental hygiene law.
§ 10. Subdivision (a) of section 9.33 of the mental hygiene law, as
amended by chapter 789 of the laws of 1985, is amended to read as
follows:
(a) If the director shall determine that a patient admitted upon an
application supported by medical certification, for whom there is no
court order authorizing retention for a specified period, is in need of
retention and if such patient does not agree to remain in such hospital
as a voluntary patient, the director shall apply to the supreme court or
the county court in the county where the hospital is located for an
order authorizing continued retention. A COURT ORDER ISSUED PURSUANT TO
ARTICLE SEVEN HUNDRED THIRTY OF THE CRIMINAL PROCEDURE LAW SHALL BE
DEEMED AN ORDER OF RETENTION UNDER THIS SECTION. Such application shall
be made no later than sixty days from the date of involuntary admission
on application supported by medical certification or thirty days from
the date of an order denying an application for patient's release pursu-
ant to section 9.31, whichever is later; and the hospital is authorized
to retain the patient for such further period during which the hospital
is authorized to make such application or during which the application
may be pending. The director shall cause written notice of such applica-
tion to be given the patient and a copy thereof shall be given
personally or by mail to the persons required by this article to be
served with notice of such patient's initial admission and to the mental
hygiene legal service. Such notice shall state that a hearing may be
requested and that failure to make such a request within five days,
excluding Sunday and holidays, from the date that the notice was given
S. 1004--A 12
to the patient will permit the entry without a hearing of an order
authorizing retention.
§ 11. Subdivision (a) of section 15.33 of the mental hygiene law, as
amended by chapter 789 of the laws of 1985, is amended to read as
follows:
(a) If the director shall determine that a resident admitted upon an
application supported by medical certification, for whom there is no
court order authorizing retention for a specified period, is in need of
retention and if such resident does not agree to remain in such school
as a voluntary resident, the director shall apply to the supreme court
or the county court in the county where the school is located for an
order authorizing continued retention. A COURT ORDER ISSUED PURSUANT TO
ARTICLE SEVEN HUNDRED THIRTY OF THE CRIMINAL PROCEDURE LAW SHALL BE
DEEMED AN ORDER OF RETENTION UNDER THIS SECTION. Such application shall
be made no later than sixty days from the date of involuntary admission
on application supported by medical certification or thirty days from
the date of an order denying an application for resident's release
pursuant to section 15.31, whichever is later; and the school is author-
ized to retain the resident for such further period during which the
school is authorized to make such application or during which the appli-
cation may be pending. The director shall cause written notice of such
application to be given the resident and a copy thereof shall be given
personally or by mail to the persons required by this article to be
served with notice of such resident's initial admission and to the
mental hygiene legal service. Such notice shall state that a hearing may
be requested and that failure to make such a request within five days,
excluding Sunday and holidays, from the date that the notice was given
to the resident will permit the entry without a hearing of an order
authorizing retention.
§ 12. Subdivision (c) of section 43.03 of the mental hygiene law, as
amended by chapter 7 of the laws of 2007, is amended to read as follows:
(c) Patients receiving services while being held IN THE CUSTODY OF THE
COMMISSIONER pursuant to order of a criminal court, other than patients
committed to the department pursuant to section 330.20 of the criminal
procedure law, or for examination pursuant to an order of the family
court shall not be liable to the department for such services. Fees due
the department for such services shall be paid by the county in which
such court is located UNLESS SUCH SERVICES ARE OR COULD BE ELIGIBLE FOR
PAYMENT PURSUANT TO THE FEDERAL MEDICAL CARE ASSISTANCE PROGRAM AND
except that counties shall not be responsible for the cost of services
rendered patients committed to the department pursuant to section 330.20
of the criminal procedure law, SECTION FIVE HUNDRED EIGHT OF THE
CORRECTION LAW or patients committed to the department pursuant to arti-
cle NINE, ten OR FIFTEEN of this chapter.
§ 13. In the event that any county or any city with a population of
one million or more in any one year reduces payments made to the state
for restoration services pursuant to article 730 of the criminal proce-
dure law by an amount which is less than the average of such expendi-
tures for the previous three years, then such county or such city shall
utilize such savings for needed services which are identified as needed
in the local services plan, as defined in section 41.03 of the mental
hygiene law, of such county or such city.
§ 14. This act shall take effect on the ninetieth day after it shall
have become a law.
