§ 730.40 Fitness to proceed; local criminal court accusatory instrument.

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
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, 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 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 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 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.

2. When a local criminal court has issued a final order of
observation, 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
accusatory instrument. 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. 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.

3. When a local criminal court has issued an order of examination or a
temporary order of observation, and when the charge or charges contained
in the accusatory instrument are subsequently presented to a grand jury,
such grand jury need not hear the defendant pursuant to section 190.50
unless, upon application by defendant to the superior court that
impaneled such grand jury, the superior court determines that the
defendant is not an incapacitated person.

4. When an indictment is filed against a defendant after a local
criminal court has issued an order of examination and before it has
issued a final or temporary order of observation, the defendant must be
promptly arraigned upon the indictment, and the proceedings in the local
criminal court shall thereupon terminate for all purposes. The district
attorney must notify the local criminal court of such arraignment, and
such court must thereupon dismiss the accusatory instrument filed in
such court against the defendant. If the director has submitted the
examination reports to the local criminal court, such court must forward
them to the superior court in which the indictment was filed. If the
director has not submitted such reports to the local criminal court, he
must submit them to the superior court in which the indictment was
filed.

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 is confined and bring him
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
observation 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 expiration 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.