§ 322.2. Proceedings to determine capacity. 1. Upon the receipt of
examination reports ordered under section 322.1 of this act, the court
shall conduct a hearing to determine whether the respondent is an
incapacitated person. The respondent, the counsel for the respondent,
the presentment agency and the commissioner of mental health or the
commissioner of developmental disabilities, as appropriate, shall be
notified of such hearing at least five days prior to the date thereof
and afforded an opportunity to be heard.

2. If the court finds that the respondent is not an incapacitated
person, it shall continue the delinquency proceedings.

3. If the court finds that the respondent is an incapacitated person,
the court shall schedule a hearing to determine whether there is
probable cause to believe that the respondent committed a crime. The
order of proceeding at such hearing shall conform to section 325.2.

4. If the court finds that there is probable cause to believe that the
respondent committed a misdemeanor, the respondent shall be committed to
the custody of the appropriate commissioner for a reasonable period not
to exceed ninety days. Unless the court specifies that such commitment
shall be in a residential facility, such commissioner having custody may
arrange for treatment in an appropriate facility or program, including
an outpatient program, in accordance with subdivision (e) of section
7.09 or subdivision (c-1) of section 13.09 respectively, of the mental
hygiene law. The court shall dismiss the petition on the issuance of the
order of commitment and such dismissal shall constitute a bar to further
prosecution of the charge or charges contained in the petition.

5. (a) If the court finds that there is probable cause to believe that
the respondent committed a felony, it shall order the respondent
committed to the custody of the commissioner of mental health or the
commissioner of the office for people with developmental disabilities
for an initial period not to exceed one year from the date of such
order. Unless the court specifies that such commitment shall be in a
residential facility, such commissioner having custody may arrange for
treatment in an appropriate facility or program, including an outpatient
program, in accordance with subdivision (e) of section 7.09 or
subdivision (c-1) of section 13.09 respectively, of the mental hygiene
law. Such period may be extended annually upon further application to
the court by the commissioner having custody or his or her designee.
Such application must be made not more than sixty days prior to the
expiration of such period on forms that have been prescribed by the
chief administrator of the courts. At that time, the commissioner must
give written notice of the application to the respondent, the counsel
representing the respondent and the mental hygiene legal service if the
respondent is at a residential facility. Upon receipt of such
application, the court must conduct a hearing to determine the issue of
capacity. If, at the conclusion of a hearing conducted pursuant to this
subdivision, the court finds that the respondent is no longer
incapacitated, he or she shall be returned to the family court for
further proceedings pursuant to this article. If the court is satisfied
that the respondent continues to be incapacitated, the court shall
authorize continued custody of the respondent by the commissioner in a
facility or program for a period not to exceed one year. Such extensions
shall not continue beyond a reasonable period of time necessary to
determine whether the respondent will attain the capacity to proceed to
a fact finding hearing in the foreseeable future but in no event shall
continue beyond the respondent's eighteenth birthday or, if the
respondent was at least sixteen years of age when the act was committed,
beyond the respondent's twenty-first birthday.

(b) If a respondent is in the custody of the commissioner upon the
respondent's eighteenth birthday, or if the respondent was at least
sixteen years of age when the act resulting in the respondent's
placement was committed, beyond the respondent's twenty-first birthday,
the commissioner shall notify the clerk of the court that the respondent
was in his custody on such date and the court shall dismiss the
petition.

(c) If the court finds that there is probable cause to believe that
the respondent has committed a designated felony act, the court shall
require that treatment be provided in a residential facility within the
appropriate office of the department of mental hygiene or in an
outpatient facility if the commissioner having custody of the child
petitions the court pursuant to subdivision seven of this section and
such court approves.

(d) The commissioner shall review the condition of the respondent
within forty-five days after the respondent is committed to the custody
of the commissioner. He or she shall make a second review within ninety
days after the respondent is committed to his or her custody.
Thereafter, he or she shall review the condition of the respondent every
ninety days. The respondent and the counsel for the respondent, shall be
notified of any such review and afforded an opportunity to be heard. The
commissioner having custody shall apply to the court for an order
dismissing the petition whenever he or she determines that there is a
substantial probability that the respondent will continue to be
incapacitated for the foreseeable future. At the time of such
application the commissioner must give written notice of the application
to the respondent, the presentment agency and the mental hygiene legal
service if the respondent is at a residential facility. Upon receipt of
such application, the court may on its own motion conduct a hearing to
determine whether there is substantial probability that the respondent
will continue to be incapacitated for the foreseeable future, and it
must conduct such hearing if a demand therefor is made by the respondent
or the mental hygiene legal service within ten days from the date that
notice of the application was given to them. The respondent may apply to
the court for an order of dismissal on the same ground.

6. Any order pursuant to this section dismissing a petition shall not
preclude an application for voluntary or involuntary care and treatment
in a facility or program of the appropriate office of the department of
mental hygiene pursuant to the provisions of the mental hygiene law.
Unless the respondent is admitted pursuant to such an application he or
she shall be released.

7. If the commissioner having custody of a child committed to a
residential facility pursuant to subdivision four or paragraph (a) of
subdivision five of this section determines at any time that such child
may be more appropriately treated in a non-residential facility or on an
outpatient basis, he or she may arrange for such treatment. If the
commissioner having custody of a child committed to a residential
facility pursuant to paragraph (c) of subdivision five of this section
determines at any time that such child may be more appropriately treated
in a non-residential facility or on an outpatient basis, he or she may
petition the family court for a hearing. If the court finds after a
hearing that treatment in a non-residential facility or on an outpatient
basis would be more appropriate for such child, the court shall modify
its order of commitment to direct the commissioner to transfer the child
to a non-residential facility or arrange outpatient treatment.
Application for a hearing to determine whether any child committed to a
residential facility under subdivisions four or five of this section may
be more appropriately treated in a non-residential facility or on an
outpatient basis may be made by the respondent.

8. If the commissioner having custody of the child determines at any
time that such child is not an incapacitated person, he shall petition
the court for a hearing. The respondent and the presentment agency shall
be notified of such hearing within twenty-four hours of the scheduling
of such hearing and afforded an opportunity to be heard. Application for
such a hearing may be made by the respondent. If the court finds after
the hearing that the child is no longer incapacitated, he shall be
returned to the family court for further proceedings pursuant to this
article.

9. Time spent by the respondent in the custody of a commissioner of an
office within the department of mental hygiene or in a local hospital or
detention facility pending transfer to the custody of the commissioner
after a finding of incapacity, shall be credited and applied towards the
period of placement specified in a dispositional order on the original
petition.