Bill Text: NY S01004 | 2025-2026 | General Assembly | Introduced

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Bill Title: Provides for the use of restoration services when determining the capacity of a defendant to stand trial.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2025-01-08 - REFERRED TO CODES [S01004 Detail]

Download: New_York-2025-S01004-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          1004

                               2025-2026 Regular Sessions

                    IN SENATE

                                       (Prefiled)

                                     January 8, 2025
                                       ___________

        Introduced  by  Sen.  BROUK  -- 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 determining the capacity of a defendant to stand trial

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Subdivision 1 of section 730.10 of the  criminal  procedure
     2  law is amended to read as follows:
     3    1.  "Incapacitated person" means a defendant who as a result of mental
     4  disease or defect lacks capacity to understand the  proceedings  against
     5  [him] such defendant or to assist in [his] their own defense.
     6    § 2. Subdivision 8 of section 730.10 of the criminal procedure law, as
     7  separately  amended  by  chapters  615  and  629 of the laws of 1974, is
     8  amended to read as follows:
     9    8. "Examination report" means a report made by a psychiatric  examiner
    10  wherein  [he] such examiner sets forth [his] their opinion as to whether
    11  the defendant is or is not  an  incapacitated  person,  the  nature  and
    12  extent  of  [his]  their examination and, if [he or she finds] they find
    13  that the defendant is an incapacitated person, [his] their diagnosis and
    14  prognosis and a detailed statement of the reasons for [his] their  opin-
    15  ion  by  making particular reference to those aspects of the proceedings
    16  wherein the defendant lacks capacity to understand or to assist in [his]
    17  their own defense.  The report must also state  the  examiner's  profes-
    18  sional  opinion  as  to  whether  or  not there is at least a reasonable
    19  expectation that restoration services could have a substantial probabil-
    20  ity of restoring the defendant to competence within a reasonable  period
    21  of time. The state administrator and the commissioner must jointly adopt
    22  the  form  of  the examination report; and the state administrator shall
    23  prescribe the number of copies thereof that must  be  submitted  to  the
    24  court by the director.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01866-01-5
        S. 1004                             2

     1    § 3. Section 730.10 of the criminal procedure law is amended by adding
     2  a new subdivision 10 to read as follows:
     3    10.  "Restoration  services"  means  those  services including but not
     4  limited to medication support, classroom-based  competency  instruction,
     5  mock trials, symptom management, and rehabilitative services provided to
     6  an incapacitated person which are designed to improve their mental state
     7  or  developmental  status  to  the  extent  that they can understand the
     8  charges against them and participate in their own  defense.  Restoration
     9  services  are not intended to be mental health treatment aimed at recov-
    10  ery from mental illness or services aimed at improving a developmentally
    11  disabled person's ability to function on a day-to-day basis.
    12    § 4. Section 730.20 of the criminal procedure law, subdivisions 1  and
    13  5  as  amended  by  chapter 693 of the laws of 1989 and subdivision 7 as
    14  amended by chapter 692 of the laws  of  1972,  is  amended  to  read  as
    15  follows:
    16  § 730.20  Fitness to proceed; generally.
    17    1.  [The appropriate director to whom a criminal court issues an order
    18  of  examination  must  be  determined  in  accordance with rules jointly
    19  adopted by the judicial conference and the commissioner.]  Upon  receipt
    20  of  an  examination  order, the director to whom the court has issued an
    21  order must designate two qualified psychiatric examiners, of  whom  [he]
    22  such  director may be one, to examine the defendant to determine if [he]
    23  the defendant is an incapacitated person. In conducting  their  examina-
    24  tion, the psychiatric examiners [may] shall employ [any] a method [which
    25  is  accepted  by  the  medical profession for the examination of persons
    26  alleged to be mentally ill or mentally defective] as set forth in stand-
    27  ards set by the commissioner to determine if the defendant is  an  inca-
    28  pacitated  person.    The court may authorize a psychiatrist or psychol-
    29  ogist retained by the defendant to be present at such examination.
    30    2.  When the defendant is not in custody at the time a court issues an
    31  order  of  examination,  because  [he]  the  defendant  was  theretofore
    32  released on bail or on [his] the defendant's own recognizance, the court
    33  [may]  shall  direct that the examination be conducted on an out-patient
    34  basis, and at such time and place as the director  shall  designate  and
    35  the court shall order the defendant to appear for such examination.  If,
    36  however, the director informs the court that hospital confinement of the
    37  defendant is necessary for an effective examination, or if the defendant
    38  refuses  to  appear as ordered for the examination, the court may direct
    39  that the defendant be confined in a hospital [designated by  the  direc-
    40  tor] operated or approved by the commissioner only until the examination
    41  is completed. In no event shall the need for such examination be a basis
    42  for incarcerating a defendant who has been released on bail or their own
    43  recognizance.
    44    3.    When  the  defendant is in custody at the time a court issues an
    45  order of examination, the examination must be  conducted  at  the  place
    46  where the defendant is being held in custody.  If, however, the director
    47  determines  that  hospital confinement of the defendant is necessary for
    48  an effective examination, the sheriff must deliver the  defendant  to  a
    49  hospital  designated  by  the [director] commissioner and hold [him] the
    50  defendant in custody therein, under sufficient guard, until the examina-
    51  tion is completed.
    52    4.  Hospital confinement under subdivisions two and three shall be for
    53  a period not exceeding [thirty] ten days, except that, upon  application
    54  of  the  director, the court may authorize confinement for an additional
    55  period not exceeding [thirty] ten days if it is satisfied that a  longer
    56  period  is necessary to complete the examination.  [During the period of
        S. 1004                             3

     1  hospital confinement, the physician in charge of the hospital may admin-
     2  ister or cause to  be  administered  to  the  defendant  such  emergency
     3  psychiatric,  medical  or other therapeutic treatment as in his judgment
     4  should be administered.]
     5    5.  Each psychiatric examiner, after [he has completed his] completing
     6  the  examination  of  the defendant, must promptly prepare and submit to
     7  the director an examination report  [and  submit  it  to  the  director]
     8  setting  forth  the  examiner's opinion as to whether or not there is at
     9  least a reasonable expectation that restoration services  could  have  a
    10  substantial  probability of restoring the defendant to competence within
    11  a reasonable period of time. If the psychiatric examiners are not unani-
    12  mous in their opinion as to whether the defendant is or is not an  inca-
    13  pacitated  person, the director must designate another qualified psychi-
    14  atric examiner to  examine  the  defendant  to  determine  if  [he]  the
    15  defendant is an incapacitated person and, if so, whether or not there is
    16  at least a reasonable expectation that restoration services could have a
    17  substantial  probability of restoring the defendant to competence within
    18  a reasonable period of time.  Upon receipt of the  examination  reports,
    19  the  director  must  submit  them  to the court that issued the order of
    20  examination.  The court must furnish a copy of the  reports  to  counsel
    21  for the defendant and to the district attorney.
    22    6.  When  a defendant is subjected to examination pursuant to an order
    23  issued by a criminal court in accordance with this article,  any  state-
    24  ment  made by [him] such defendant for the purpose of the examination or
    25  treatment shall be inadmissible in evidence against [him] such defendant
    26  in any criminal action on any  issue  other  than  that  of  [his]  such
    27  defendant's  mental  condition[,  but  such statement is admissible upon
    28  that issue whether or not it would  otherwise  be  deemed  a  privileged
    29  communication].
    30    7. A psychiatric examiner, who is not regularly employed by the county
    31  or  the state of New York, is entitled to [his] their reasonable travel-
    32  ing expenses[, a] and to a reasonable fee [of fifty dollars] to be nego-
    33  tiated with the examiner by the director or the county or,  if  no  such
    34  fee  is  agreed  upon,  to be set by the court for each examination of a
    35  defendant and [a fee of fifty dollars] for each appearance  at  a  court
    36  hearing  or  trial  [but  not  exceeding two hundred dollars in fees for
    37  examination and testimony in any one case]; except that if such  psychi-
    38  atric  examiner be an employee of the county or of the state of New York
    39  [he] they shall be  entitled  only  to  reasonable  traveling  expenses,
    40  unless  such  psychiatric examiner makes the examination or appears at a
    41  court hearing or trial outside [his] their  hours  of  state  or  county
    42  employment  in  a  county  in  which  the  director of community [mental
    43  health] services certifies to the fiscal officer thereof that there is a
    44  shortage of qualified [psychiatrists]  examiners  available  to  conduct
    45  examinations  under  [the  criminal  procedure law] this chapter in such
    46  county, in which event [he] such examiner  shall  be  entitled  to  [the
    47  foregoing]  such  fees  and reasonable traveling expenses as approved by
    48  the court. Such fees and traveling expenses and the costs of  sending  a
    49  defendant  to  another  place of detention or to a hospital for examina-
    50  tion[, of his maintenance therein] and the cost of returning  [him]  the
    51  defendant  shall, when approved and so ordered by the court, be a charge
    52  of the county in which the defendant is being tried, and the cost of the
    53  maintenance of such defendant therein shall be a cost to the state.
    54    § 5. Section 730.30 of the criminal procedure law,  subdivision  3  as
    55  amended  by  chapter  629  of  the  laws  of 1974, is amended to read as
    56  follows:
        S. 1004                             4

     1  § 730.30 Fitness to proceed; order of examination.
     2    1.    At  any  time  after a defendant is arraigned upon an accusatory
     3  instrument other than a felony complaint and before  the  imposition  of
     4  sentence,  or  at  any time after a defendant is arraigned upon a felony
     5  complaint and before [he] such defendant is held for the action  of  the
     6  grand  jury,  or  upon arraignment on an indictment by a grand jury, the
     7  court wherein the criminal action is pending [must] may issue  an  order
     8  of  examination  when  it  [is of the opinion] has a reasonable basis to
     9  believe that the defendant may be an incapacitated person.
    10    2.  When the examination reports submitted to the court show that each
    11  psychiatric examiner is of the opinion that  the  defendant  is  not  an
    12  incapacitated  person, the court may, on its own motion, conduct a hear-
    13  ing to determine the issue of capacity, and it must  conduct  a  hearing
    14  upon  motion  therefor  by the defendant or by the district attorney. If
    15  the court does not decide to hold a hearing on its  own  motion  and  no
    16  motion  for  a  hearing is made, or if, following a hearing the court is
    17  satisfied that the defendant is not an incapacitated person, the  crimi-
    18  nal action against the defendant must proceed. [If, following a hearing,
    19  the  court  is  satisfied  that  the  defendant  is not an incapacitated
    20  person, the criminal action against him must proceed; if  the  court  is
    21  not so satisfied, it must issue a further order of examination directing
    22  that the defendant be examined by different psychiatric examiners desig-
    23  nated by the director.]
    24    3.  When the examination reports submitted to the court show that each
    25  psychiatric examiner is of the opinion that the defendant is an incapac-
    26  itated person and that there is at least a reasonable  expectation  that
    27  restoration  services  could have a substantial probability of restoring
    28  the defendant to competence within a  reasonable  period  of  time,  the
    29  court [may, on its own motion,] shall conduct a hearing to determine the
    30  issue of capacity [and it must conduct such hearing upon motion therefor
    31  by the defendant or by the district attorney].
    32    4.  When  the examination reports submitted to the court show that the
    33  psychiatric examiners are not unanimous in their opinion as  to  whether
    34  the  defendant  is or is not an incapacitated person[, or when the exam-
    35  ination reports submitted to the superior court show that the  psychiat-
    36  ric  examiners  are  not  unanimous  in  their opinion as to whether the
    37  defendant is or is not a dangerous incapacitated person] and that  there
    38  is  at  least  a  reasonable expectation that restoration services could
    39  have a substantial probability of restoring the defendant to  competence
    40  within  a reasonable period of time, the court must conduct a hearing to
    41  determine the issue of capacity [or dangerousness]  and  expectation  of
    42  restoration within a reasonable time.
    43    § 6. Subdivision 1 of section 730.40 of the criminal procedure law, as
    44  amended by chapter 7 of the laws of 2013, is amended to read as follows:
    45    1. When a local criminal court, following a hearing conducted pursuant
    46  to  subdivision two, three or four of section 730.30 of this article, is
    47  satisfied that the defendant is not an incapacitated person, the  crimi-
    48  nal  action  against [him or her] such defendant must proceed. If [it] a
    49  local criminal court accusatory instrument other than a felony complaint
    50  has been filed against the defendant and the court is satisfied that the
    51  defendant is an incapacitated person, [or if no motion for such a  hear-
    52  ing  is made, such court must issue a final or temporary order of obser-
    53  vation committing him or her to the custody of the commissioner for care
    54  and treatment in an appropriate institution for a period not  to  exceed
    55  ninety  days  from  the  date  of the order, provided, however, that the
    56  commissioner may designate an appropriate hospital for  placement  of  a
        S. 1004                             5

     1  defendant  for  whom a final order of observation has been issued, where
     2  such hospital is licensed by the office of mental health and has  agreed
     3  to  accept,  upon  referral  by  the commissioner, defendants subject to
     4  final  orders of observation issued under this subdivision. When a local
     5  criminal court accusatory instrument other than a felony  complaint  has
     6  been  filed  against the defendant,] such court must issue a final order
     7  of observation. When a felony  complaint  has  been  filed  against  the
     8  defendant,  such  court  must  issue  a  temporary  order of observation
     9  committing [him or her] such defendant to the custody of the commission-
    10  er for [care and  treatment]  restoration  services  in  an  appropriate
    11  institution  or,  [upon  the  consent  of  the district attorney] in the
    12  discretion of the court, committing [him or her] such defendant  to  the
    13  custody  of  the  commissioner  for care and treatment on an out-patient
    14  basis, for a period not to exceed ninety days  from  the  date  of  such
    15  order[,  except  that, with the consent of the district attorney,] or it
    16  may issue a final order of observation. Upon the  issuance  of  a  final
    17  order  of  observation, the district attorney shall immediately transmit
    18  to the commissioner, in a manner intended to protect the confidentiality
    19  of the information, a list of names and contact information  of  persons
    20  who  may  reasonably  be expected to be the victim of any assault or any
    21  violent felony offense, as defined in the  penal  law,  or  any  offense
    22  listed  in  section 530.11 of this [chapter] part which would be carried
    23  out by the committed person; provided that the person who reasonably may
    24  be expected to be a victim does not need to be  a  member  of  the  same
    25  family or household as the committed person.
    26    §  7.  Section  730.50 of the criminal procedure law, subdivision 1 as
    27  amended by chapter 7 of the laws of 2013, subdivision 2  as  amended  by
    28  chapter 789 of the laws of 1985, subdivision 5 as amended by chapter 629
    29  of the laws of 1974, is amended to read as follows:
    30  § 730.50 Fitness to proceed; indictment.
    31    1.  When  a  superior court, following a hearing conducted pursuant to
    32  subdivision two, three or four of section 730.30  of  this  article,  is
    33  satisfied  that the defendant is not an incapacitated person, the crimi-
    34  nal action against [him or her] such defendant must proceed. If  [it  is
    35  satisfied] after a hearing, the court makes a finding that the defendant
    36  is an incapacitated person, [or if no motion for such a hearing is made]
    37  and  that  there  is  at least a reasonable expectation that restoration
    38  services could have a substantial probability of restoring the defendant
    39  to competence within a reasonable period of  time,  it  must  adjudicate
    40  [him or her] them an incapacitated person[, and must issue a final order
    41  of  observation or an order of commitment]. When the indictment does not
    42  charge a felony or when the defendant has been convicted of  an  offense
    43  other than a felony, such court (a) must issue a final order of observa-
    44  tion  [committing  the  defendant to the custody of the commissioner for
    45  care and treatment in an appropriate institution for  a  period  not  to
    46  exceed  ninety days from the date of such order, provided, however, that
    47  the commissioner may designate an appropriate hospital for placement  of
    48  a defendant for whom a final order of observation has been issued, where
    49  such  hospital is licensed by the office of mental health and has agreed
    50  to accept, upon referral by  the  commissioner,  defendants  subject  to
    51  final orders of observation issued under this subdivision], and (b) must
    52  dismiss  the  indictment  filed in such court against the defendant, and
    53  such dismissal constitutes a bar  to  any  further  prosecution  of  the
    54  charge  or  charges contained in such indictment. Upon the issuance of a
    55  final order of observation,  the  district  attorney  shall  immediately
    56  transmit to the commissioner, in a manner intended to protect the confi-
        S. 1004                             6

     1  dentiality  of  the information, a list of names and contact information
     2  of persons who may reasonably be  expected  to  be  the  victim  of  any
     3  assault  or  any violent felony offense, as defined in the penal law, or
     4  any  offense listed in section 530.11 of this [chapter] part which would
     5  be carried out by the committed person; provided  that  the  person  who
     6  reasonably  may  be expected to be a victim does not need to be a member
     7  of the same family or  household  as  the  committed  person.  When  the
     8  indictment charges a felony [or when the defendant has been convicted of
     9  a felony] and the court has determined that  there is at least a reason-
    10  able  expectation  that  restoration  services  could have a substantial
    11  probability of restoring the defendant to competence within a reasonable
    12  period of time, it must issue an  order  of  commitment  committing  the
    13  defendant to the custody of the commissioner [for care and treatment] to
    14  receive restoration services in an appropriate institution or[, upon the
    15  consent  of the district attorney,] committing [him or her] such defend-
    16  ant to the custody of the commissioner for  care  and  treatment  on  an
    17  out-patient  basis,  for  a  period not to exceed [one year] ninety days
    18  from the date of such order. Upon the issuance of an  order  of  commit-
    19  ment,  the  court must exonerate the defendant's bail if [he or she was]
    20  they were previously at liberty on bail; provided, however, that exoner-
    21  ation of bail is not required when  a  defendant  is  committed  to  the
    22  custody  of  the  commissioner  for care and treatment on an out-patient
    23  basis. [When the defendant is in the custody of the commissioner  pursu-
    24  ant  to  a  final  order  of observation, the commissioner or his or her
    25  designee, which may include the director of an appropriate  institution,
    26  immediately  upon  the  discharge of the defendant, must certify to such
    27  court that he or she has complied with the notice provisions  set  forth
    28  in  paragraph  (a) of subdivision six of section 730.60 of this article]
    29  In the event that the court determines there is not a reasonable  expec-
    30  tation that restoration services could have a substantial probability of
    31  restoring the defendant to competence within a reasonable period of time
    32  the  matter  shall  be  referred  to  the  supreme  court  for a hearing
    33  conducted   in accordance with section  9.33  or  15.31  of  the  mental
    34  hygiene law.
    35    2.  When a defendant is in the custody of the commissioner immediately
    36  prior to the expiration of the period prescribed in a temporary order of
    37  commitment and the superintendent of the institution wherein the defend-
    38  ant is confined is of the opinion that the defendant continues to be  an
    39  incapacitated  person,  such superintendent must apply to the court that
    40  issued such order for an order of retention for an additional period  of
    41  ninety  days.    The  court  must  hold a hearing on this application to
    42  determine if there is a substantial probability of recovery in the fore-
    43  seeable future. If the court determines that there  is  such  reasonable
    44  expectation  of restoration, it shall issue an order of retention for an
    45  additional ninety days. If the court finds that the defendant  is  still
    46  incapacitated  and there is not a substantial probability of restoration
    47  in the foreseeable future, it  shall  refer  the  matter  to  the  civil
    48  section of the supreme court in the county where the defendant's case is
    49  pending, for a hearing pursuant to article nine or fifteen of the mental
    50  hygiene  law  to  determine  if  the  defendant shall be hospitalized or
    51  otherwise retained on an involuntary basis.  [Such application  must  be
    52  made  within  sixty days prior to the expiration of such period on forms
    53  that have been jointly  adopted  by  the  judicial  conference  and  the
    54  commissioner.] The superintendent must give written notice of the appli-
    55  cation  for  such order to the defendant and to the mental hygiene legal
    56  service.  Upon receipt of such application, the court [may, on  its  own
        S. 1004                             7

     1  motion,]  shall  conduct  a hearing [to determine the issue of capacity,
     2  and it must conduct such hearing if a demand therefor  is  made  by  the
     3  defendant  or  the mental hygiene legal service within ten days from the
     4  date  that  notice of the application was given them. If, at the conclu-
     5  sion of a hearing conducted pursuant to this subdivision, the  court  is
     6  satisfied  that  the defendant is no longer an incapacitated person, the
     7  criminal action against him must proceed. If it is  satisfied  that  the
     8  defendant continues to be an incapacitated person, or if no demand for a
     9  hearing  is  made, the court must adjudicate him an incapacitated person
    10  and must issue an order of retention  which  shall  authorize  continued
    11  custody  of the defendant by the commissioner for a period not to exceed
    12  one year] pursuant to the provisions of article nine or fifteen  of  the
    13  mental hygiene law and the court shall order that the defendant shall be
    14  maintained  in  the  custody  of  the  commissioner but transferred to a
    15  hospital or other appropriate institution to be  involuntarily  admitted
    16  pursuant  to  article nine  or fifteen of the mental hygiene law subject
    17  to the retention provisions of section  9.33  or  15.31  of  the  mental
    18  hygiene  law  except  as specifically provided herein.  Such order shall
    19  not be deemed in any way to be the order of a criminal court.
    20    3. [When] Before a defendant is [in] released from the custody of  the
    21  commissioner   [immediately  prior  to  the  expiration  of  the  period
    22  prescribed in the first order of retention, the procedure set  forth  in
    23  subdivision two shall govern the application for and the issuance of any
    24  subsequent  order  of  retention,  except  that any subsequent orders of
    25  retention must be for periods not to exceed two  years  each;  provided,
    26  however,] either pursuant to this section or pursuant to article nine or
    27  fifteen  of  the  mental  hygiene law, the court shall hold a hearing to
    28  determine whether or not the defendant continues to be an  incapacitated
    29  person.  If,  at  the conclusion of a hearing conducted pursuant to this
    30  subdivision, the court is satisfied that the defendant is no  longer  an
    31  incapacitated    person,  the criminal action  against them must proceed
    32  except that the court shall have the discretion to dismiss the  case  in
    33  the  interests  of justice. If, at the conclusion of a hearing conducted
    34  pursuant to this subdivision, the court finds that the defendant contin-
    35  ues to be an incapacitated person then the court shall make an order  in
    36  accordance  with section 9.33 or 15.31 of the mental hygiene law. In any
    37  case that the aggregate of periods prescribed in the temporary order  of
    38  commitment[,  the  first order of retention and all subsequent orders of
    39  retention] and any order of retention pursuant to this article or  arti-
    40  cle nine or fifteen of the mental hygiene law must not exceed two-thirds
    41  of  the  authorized  maximum  term of imprisonment for the highest class
    42  felony charged in the indictment [or for the  highest  class  felony  of
    43  which he was convicted].
    44    4.  When  a  defendant is in the custody of the commissioner either at
    45  the expiration of the authorized period prescribed in the last order  of
    46  retention  or  any order of retention issued pursuant to article nine or
    47  fifteen of the mental hygiene law, the criminal action  pending  against
    48  [him]  such defendant in the superior court that issued such order shall
    49  terminate for all purposes, and the commissioner must  promptly  certify
    50  to  such court and to the appropriate district attorney that the defend-
    51  ant was in [his] their custody on such expiration date. Upon receipt  of
    52  such  certification,  the  court  must  dismiss the indictment, and such
    53  dismissal constitutes a bar to any further prosecution of the charge  or
    54  charges contained in such indictment.
    55    [5.  When,  on  the  effective date of this subdivision, any defendant
    56  remains in the custody of the commissioner pursuant to an  order  issued
        S. 1004                             8

     1  under former code of criminal procedure section six hundred sixty-two-b,
     2  the  superintendent  or director of the institution where such defendant
     3  is confined shall, if he believes that the defendant continues to be  an
     4  incapacitated person, apply forthwith to a court of record in the county
     5  where  the  institution is located for an order of retention. The proce-
     6  dures for obtaining any order pursuant to this subdivision shall  be  in
     7  accordance  with  the  provisions of subdivisions two, three and four of
     8  this section, except that the period of retention pursuant to the  first
     9  order  obtained  under  this  subdivision shall be for not more than one
    10  year and any subsequent orders of retention must be for periods  not  to
    11  exceed two years each; provided, however, that the aggregate of the time
    12  spent in the custody of the commissioner pursuant to any order issued in
    13  accordance  with  the  provisions  of  former code of criminal procedure
    14  section six hundred sixty-two-b and the periods prescribed by the  first
    15  order  obtained  under  this  subdivision  and  all subsequent orders of
    16  retention must not exceed two-thirds of the authorized maximum  term  of
    17  imprisonment  for  the highest class felony charged in the indictment or
    18  the highest class felony of which he was convicted.]
    19    § 8. Section 730.60 of the criminal procedure law, subdivisions 1  and
    20  3  as  amended  by  chapter  231  of  the laws of 2008, subdivision 2 as
    21  amended by chapter 57 of the laws of  1984,  subdivisions  4  and  5  as
    22  renumbered by chapter 629 of the laws of 1974, subdivision 6 as added by
    23  chapter  549  of the laws of 1980 and paragraphs (a) and (b) of subdivi-
    24  sion 6 as amended by chapter 7 of the laws of 2013, is amended  to  read
    25  as follows:
    26  § 730.60 Fitness  to proceed; procedure following custody by commission-
    27             er.
    28    1. When a local criminal court issues a [final or] temporary order  of
    29  observation  or an order of commitment, it must forward such order and a
    30  copy of the examination reports and the  accusatory  instrument  to  the
    31  commissioner[,  and,  if  available, a copy of the pre-sentence report].
    32  Upon receipt thereof, the commissioner  must  designate  an  appropriate
    33  institution  operated  by  the department of mental hygiene in which the
    34  defendant is to be placed[, provided, however, that the commissioner may
    35  designate an appropriate hospital for placement of a defendant for  whom
    36  a  final  order  of  observation has been issued, where such hospital is
    37  licensed by the office of mental health and has agreed to  accept,  upon
    38  referral  by  the  commissioner,  defendants  subject to final orders of
    39  observation issued under this subdivision]. The sheriff [must  hold  the
    40  defendant  in custody pending such designation by the commissioner, and]
    41  when notified of the designation, [the sheriff] must deliver the defend-
    42  ant to the superintendent of such institution. The  superintendent  must
    43  promptly  inform  the  appropriate  director of the mental hygiene legal
    44  service of the defendant's admission to such institution. If a defendant
    45  escapes from the custody of the commissioner, the escape shall interrupt
    46  the period  prescribed  in  any  order  of  observation,  commitment  or
    47  retention,  and  such interruption shall continue until the defendant is
    48  returned to the custody of the commissioner.
    49    2. Except as otherwise provided in subdivisions four and five of  this
    50  section, when a defendant is in the custody of the commissioner pursuant
    51  to  a  temporary  order  of  observation or an order of commitment or an
    52  order of retention, the criminal action pending against the defendant in
    53  the court that issued such order is suspended  [until]  pending  further
    54  order  of  the  court. If the superintendent of the institution in which
    55  the defendant is confined determines that  [he]  such  defendant  is  no
    56  longer  an  incapacitated person[. In that event], the court that issued
        S. 1004                             9

     1  such order and the appropriate district attorney must  be  notified,  in
     2  writing,  by  the superintendent of [his] their determination. The court
     3  must thereupon proceed in accordance with the provisions of  subdivision
     4  two  of  section 730.30 of this [chapter] article; provided, however, if
     5  the court is satisfied  that  the  defendant  remains  an  incapacitated
     6  person,  and upon consent of all parties, the court may order the return
     7  of the defendant to the institution in which [he] they had been confined
     8  for such period of time as was authorized by the prior order of  commit-
     9  ment  or  order of retention. Upon such return, the defendant shall have
    10  all rights and privileges accorded by the provisions of this article.
    11    3. When a defendant is in the custody of the commissioner pursuant  to
    12  an  order  issued  in accordance with this article, the commissioner may
    13  transfer [him] such defendant to any appropriate institution operated by
    14  the department of mental hygiene, provided, however,  that  the  commis-
    15  sioner  may designate an appropriate hospital for placement of a defend-
    16  ant for whom a final order of observation has been  issued,  where  such
    17  hospital  is  licensed  by the office of mental health and has agreed to
    18  accept, upon referral by the commissioner, defendants subject  to  final
    19  orders  of  observation  issued under this section. The commissioner may
    20  discharge a defendant in [his] their custody  under  a  final  order  of
    21  observation  at  any time prior to the expiration date of such order, or
    22  otherwise treat or transfer such defendant in the same manner as if [he]
    23  such defendant were a patient not in confinement under a criminal  court
    24  order.
    25    4.  When a defendant is in the custody of the commissioner pursuant to
    26  an order of commitment or an order of retention, [he] they may make  any
    27  motion  authorized by this chapter which is susceptible of fair determi-
    28  nation without [his] their personal participation. If the  court  denies
    29  any  such motion it must be without prejudice to a renewal thereof after
    30  the criminal action against the defendant has been ordered  to  proceed.
    31  If  the  court  enters  an  order dismissing the indictment and does not
    32  direct that the charge or charges be resubmitted to a  grand  jury,  the
    33  court  must  direct  that  such  order  of  dismissal be served upon the
    34  commissioner.
    35    5. When a defendant is in the custody of the commissioner pursuant  to
    36  an order of commitment or an order of retention, the superior court that
    37  issued  such  order  may,  upon  motion  of  the defendant, and with the
    38  consent of the district attorney, dismiss the indictment when the  court
    39  is  satisfied that (a) the defendant is a resident or citizen of another
    40  state or country and  that  [he]  they  will  be  removed  thereto  upon
    41  dismissal  of the indictment, or (b) the defendant has been continuously
    42  confined in the custody of the commissioner,  either  pursuant  to  this
    43  article  or  pursuant  to  article nine or fifteen of the mental hygiene
    44  law, for a period of more than two years.    Before  granting  a  motion
    45  under  this  subdivision,  the  court  must  be  further  satisfied that
    46  dismissal of the indictment is consistent with the ends of  justice  and
    47  that  custody  of the defendant by the commissioner pursuant to an order
    48  of commitment or  an  order  of  retention  is  not  necessary  for  the
    49  protection  of the public and that care and treatment can be effectively
    50  administered to the defendant without the necessity of  such  order.  If
    51  the  court  enters an order of dismissal under this subdivision, it must
    52  set forth in the record the reasons for such  action,  and  must  direct
    53  that  such  order  of  dismissal  be  served  upon the commissioner. The
    54  dismissal of an indictment pursuant to this  subdivision  constitutes  a
    55  bar  to  any  further  prosecution of the charge or charges contained in
    56  such indictment.
        S. 1004                            10

     1    [6. (a) Notwithstanding any other provision of law, no person  commit-
     2  ted  to  the  custody  of  the commissioner pursuant to this article, or
     3  continuously thereafter retained in such custody, shall  be  discharged,
     4  released  on  condition  or placed in any less secure facility or on any
     5  less  restrictive  status,  including,  but  not  limited  to vacations,
     6  furloughs and temporary passes, unless the commissioner or  his  or  her
     7  designee,  which may include the director of an appropriate institution,
     8  shall deliver written notice, at least four days,  excluding  Saturdays,
     9  Sundays  and  holidays,  in  advance  of  the  change  of such committed
    10  person's facility or status, or in the case of a person committed pursu-
    11  ant to a final order of observation written  notice  upon  discharge  of
    12  such committed person, to all of the following:
    13    (1)  The  district  attorney  of the county from which such person was
    14  committed;
    15    (2) The superintendent of state police;
    16    (3) The sheriff of the county where the facility is located;
    17    (4) The police department having jurisdiction of the  area  where  the
    18  facility is located;
    19    (5)  Any person who may reasonably be expected to be the victim of any
    20  assault or any violent felony offense, as defined in the penal  law,  or
    21  any offense listed in section 530.11 of this part which would be carried
    22  out by the committed person; provided that the person who reasonably may
    23  be  expected  to  be  a  victim does not need to be a member of the same
    24  family or household as the committed person; and
    25    (6) Any other person the court may designate.
    26    Said notice may be given by any means reasonably  calculated  to  give
    27  prompt actual notice.
    28    (b)  The notice required by this subdivision shall also be given imme-
    29  diately upon the departure of such  committed  person  from  the  actual
    30  custody of the commissioner or an appropriate institution, without prop-
    31  er  authorization.  Nothing  in  this  subdivision shall be construed to
    32  impair any other right or duty regarding any notice or hearing contained
    33  in any other provision of law.
    34    (c) Whenever a district attorney has received the notice described  in
    35  this subdivision, and the defendant is in the custody of the commission-
    36  er  pursuant  to a final order of observation or an order of commitment,
    37  he may apply within three days of receipt of such notice to  a  superior
    38  court,  for an order directing a hearing to be held to determine whether
    39  such committed person is a danger to himself  or  others.  Such  hearing
    40  shall be held within ten days following the issuance of such order. Such
    41  order may provide that there shall be no further change in the committed
    42  person's  facility  or status until the hearing. Upon a finding that the
    43  committed person is a danger to himself or others, the court shall issue
    44  an order to the commissioner  authorizing  retention  of  the  committed
    45  person  in  the  status existing at the time notice was given hereunder,
    46  for a specified period, not to exceed six months. The district  attorney
    47  and  the  committed person's attorney shall be entitled to the committed
    48  person's clinical records in the commissioner's custody, upon the  issu-
    49  ance of an order directing a hearing to be held.
    50    (d) Nothing in this subdivision shall be construed to impair any other
    51  right  or  duty  regarding  any notice or hearing contained in any other
    52  provision of law.]
    53    § 9. Section 730.70 of the criminal procedure law, as amended by chap-
    54  ter 629 of the laws of 1974, is amended to read as follows:
    55  § 730.70 Fitness to proceed; procedure following termination of  custody
    56               by commissioner.
        S. 1004                            11

     1    When  a defendant is in the custody of the commissioner on the expira-
     2  tion date of a final or temporary order of observation or  an  order  of
     3  commitment, or on the expiration date of the last order of retention, or
     4  on the date an order dismissing an indictment is served upon the commis-
     5  sioner,  the superintendent of the institution in which the defendant is
     6  confined may retain [him] such defendant for care and  treatment  for  a
     7  period  of no more than thirty days from such date. If [the] during such
     8  time two psychiatric examiners engaged  by  the  superintendent  [deter-
     9  mines]  determine  that  the  defendant  is  so mentally ill or mentally
    10  defective as to require continued care and treatment in an  institution,
    11  [he]  the  superintendent  may, before the expiration of such thirty day
    12  period, apply for an order of [certification] retention  in  the  manner
    13  prescribed in section [31.33] 9.33 or 15.33 of the mental hygiene law.
    14    §  10.  Subdivision  (a) of section 9.33 of the mental hygiene law, as
    15  amended by chapter 789 of the laws  of  1985,  is  amended  to  read  as
    16  follows:
    17    (a)  If  the  director shall determine that a patient admitted upon an
    18  application supported by medical certification, for  whom  there  is  no
    19  court  order authorizing retention for a specified period, is in need of
    20  retention and if such patient does not agree to remain in such  hospital
    21  as a voluntary patient, the director shall apply to the supreme court or
    22  the  county  court  in  the  county where the hospital is located for an
    23  order authorizing continued retention. A court order issued pursuant  to
    24  article  seven  hundred  thirty  of  the criminal procedure law shall be
    25  deemed an order of retention under this section. Such application  shall
    26  be  made no later than sixty days from the date of involuntary admission
    27  on application supported by medical certification or  thirty  days  from
    28  the date of an order denying an application for patient's release pursu-
    29  ant  to section 9.31, whichever is later; and the hospital is authorized
    30  to retain the patient for such further period during which the  hospital
    31  is  authorized  to make such application or during which the application
    32  may be pending. The director shall cause written notice of such applica-
    33  tion to be  given  the  patient  and  a  copy  thereof  shall  be  given
    34  personally  or  by  mail  to  the persons required by this article to be
    35  served with notice of such patient's initial admission and to the mental
    36  hygiene legal service. Such notice shall state that  a  hearing  may  be
    37  requested  and  that  failure  to  make such a request within five days,
    38  excluding Sunday and holidays, from the date that the notice  was  given
    39  to  the  patient  will  permit  the  entry without a hearing of an order
    40  authorizing retention.
    41    § 11. Subdivision (a) of section 15.33 of the mental hygiene  law,  as
    42  amended  by  chapter  789  of  the  laws  of 1985, is amended to read as
    43  follows:
    44    (a) If the director shall determine that a resident admitted  upon  an
    45  application  supported  by  medical  certification, for whom there is no
    46  court order authorizing retention for a specified period, is in need  of
    47  retention  and  if such resident does not agree to remain in such school
    48  as a voluntary resident, the director shall apply to the  supreme  court
    49  or  the  county  court  in the county where the school is located for an
    50  order authorizing continued retention.  A court order issued pursuant to
    51  article seven hundred thirty of the  criminal  procedure  law  shall  be
    52  deemed  an order of retention under this section. Such application shall
    53  be made no later than sixty days from the date of involuntary  admission
    54  on  application  supported  by medical certification or thirty days from
    55  the date of an order  denying  an  application  for  resident's  release
    56  pursuant to section 15.31, whichever is later; and the school is author-
        S. 1004                            12

     1  ized  to  retain  the  resident for such further period during which the
     2  school is authorized to make such application or during which the appli-
     3  cation may be pending. The director shall cause written notice  of  such
     4  application  to  be given the resident and a copy thereof shall be given
     5  personally or by mail to the persons required  by  this  article  to  be
     6  served  with  notice  of  such  resident's  initial admission and to the
     7  mental hygiene legal service. Such notice shall state that a hearing may
     8  be requested and that failure to make such a request within  five  days,
     9  excluding  Sunday  and holidays, from the date that the notice was given
    10  to the resident will permit the entry without  a  hearing  of  an  order
    11  authorizing retention.
    12    §  12.  Subdivision (c) of section 43.03 of the mental hygiene law, as
    13  amended by chapter 7 of the laws of 2007, is amended to read as follows:
    14    (c) Patients receiving services while being held in the custody of the
    15  commissioner pursuant to order of a criminal court, other than  patients
    16  committed  to  the department pursuant to section 330.20 of the criminal
    17  procedure law, or for examination pursuant to an  order  of  the  family
    18  court  shall not be liable to the department for such services. Fees due
    19  the department for such services shall be paid by the  county  in  which
    20  such  court is located unless such services are or could be eligible for
    21  payment pursuant to the federal  medical  care  assistance  program  and
    22  except  that  counties shall not be responsible for the cost of services
    23  rendered patients committed to the department pursuant to section 330.20
    24  of the criminal  procedure  law,  section  five  hundred  eight  of  the
    25  correction law or patients committed to the department pursuant to arti-
    26  cle nine, ten or fifteen of this chapter.
    27    §  13.  In  the event that any county or any city with a population of
    28  one million or more in any one year reduces payments made to  the  state
    29  for  restoration services pursuant to article 730 of the criminal proce-
    30  dure law by an amount which is less than the average  of  such  expendi-
    31  tures  for the previous three years, then such county or such city shall
    32  utilize such savings for needed services which are identified as  needed
    33  in  the  local  services plan, as defined in section 41.03 of the mental
    34  hygiene law, of such county or such city.
    35    § 14. This act shall take effect on the ninetieth day after  it  shall
    36  have become a law.