§ 730.60 Fitness to proceed; procedure following custody by

commissioner.

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
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 defendant
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, 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
institution in which the defendant is confined determines that he 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 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 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 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 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 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 may make any motion
authorized by this chapter which is susceptible of fair determination
without his 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 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 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 committed
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
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;

(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
immediately upon the departure of such committed person from the actual
custody of the commissioner or an appropriate institution, 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.

(c) Whenever a district attorney has received the notice described in
this subdivision, and the defendant is in the custody of the
commissioner 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 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 issuance 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.