Bill Text: NY S01874 | 2023-2024 | 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) 2024-01-03 - REFERRED TO CODES [S01874 Detail]

Download: New_York-2023-S01874-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          1874

                               2023-2024 Regular Sessions

                    IN SENATE

                                    January 17, 2023
                                       ___________

        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 or her 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  or  she  sets  forth  his  or her opinion as to whether the
    11  defendant is or is not an incapacitated person, the nature and extent of
    12  his or her examination and, if he or she finds that the defendant is  an
    13  incapacitated  person, his or her diagnosis and prognosis and a detailed
    14  statement of the reasons for his or her  opinion  by  making  particular
    15  reference  to  those  aspects  of  the proceedings wherein the defendant
    16  lacks capacity to understand or to assist in his  or  her  own  defense.
    17  The  report  must  also  state the examiner's professional opinion as to
    18  whether or not there is at least a reasonable expectation that  restora-
    19  tion  services  could  have  a  substantial probability of restoring the
    20  defendant to competence within a reasonable period of  time.  The  state
    21  administrator  and  the  commissioner must jointly adopt the form of the
    22  examination report; and the  state  administrator  shall  prescribe  the
    23  number  of  copies  thereof  that  must be submitted to the court by the
    24  director.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04547-01-3
        S. 1874                             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 his or her mental
     7  state 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, 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  or
    22  she  may  be  one,  to  examine  the  defendant to determine if [he] the
    23  defendant is an incapacitated person. In conducting  their  examination,
    24  the  psychiatric  examiners  [may] shall employ [any] a method [which is
    25  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  his  or
    43  her own 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. 1874                             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 or her reasonable traveling
    32  expenses[,  a]  and to a reasonable fee [of fifty dollars] to be negoti-
    33  ated with the examiner by the director or the county or, if no such  fee
    34  is agreed upon, to be set by the court for each examination of a defend-
    35  ant  and [a fee of fifty dollars] for each appearance at a court hearing
    36  or trial [but not exceeding two hundred dollars in fees for  examination
    37  and testimony in any one case]; except that if such psychiatric examiner
    38  be an employee of the county or of the state of New York he or she shall
    39  be entitled only to reasonable traveling expenses, unless such psychiat-
    40  ric  examiner  makes  the  examination  or appears at a court hearing or
    41  trial outside his or her hours of state or county employment in a county
    42  in which the director of community [mental health] services certifies to
    43  the fiscal officer  thereof  that  there  is  a  shortage  of  qualified
    44  [psychiatrists]  examiners  available to conduct examinations under [the
    45  criminal procedure law] this chapter in such county, in which event [he]
    46  such examiner shall be entitled to [the foregoing] such fees and reason-
    47  able traveling expenses as approved by the court. Such fees and  travel-
    48  ing  expenses  and  the costs of sending a defendant to another place of
    49  detention or to a hospital for examination[, of his maintenance therein]
    50  and the cost of returning [him] the defendant shall, when  approved  and
    51  so  ordered by the court, be a charge of the county in which the defend-
    52  ant is being tried, and the cost of the maintenance  of  such  defendant
    53  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. 1874                             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 or she is held for the action of the grand jury,
     6  or upon arraignment on an indictment by a grand jury, the court  wherein
     7  the  criminal action is pending [must] may issue an order of examination
     8  when it [is of the opinion] has a reasonable basis to believe  that  the
     9  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 must proceed. If  [it]  a  local  criminal
    49  court accusatory instrument other than a felony complaint has been filed
    50  against  the  defendant and the court is satisfied that the defendant is
    51  an incapacitated person, [or if no motion for such a  hearing  is  made,
    52  such  court must issue a final or temporary order of observation commit-
    53  ting him or her to the custody of the commissioner for care  and  treat-
    54  ment  in  an  appropriate  institution for a period not to exceed ninety
    55  days from the date of the order, provided, however, that the commission-
    56  er may designate an appropriate hospital for placement  of  a  defendant
        S. 1874                             5

     1  for whom a final order of observation has been issued, where such hospi-
     2  tal is licensed by the office of mental health and has agreed to accept,
     3  upon referral by the commissioner, defendants subject to final orders of
     4  observation  issued  under this subdivision. When a local criminal court
     5  accusatory instrument other than  a  felony  complaint  has  been  filed
     6  against  the defendant,] such court must issue a final order of observa-
     7  tion. When a felony complaint has been filed against the defendant, such
     8  court must issue a temporary order of observation committing him or  her
     9  to  the custody of the commissioner for [care and treatment] restoration
    10  services in an appropriate institution or,  [upon  the  consent  of  the
    11  district attorney] in the discretion of the court, committing him or her
    12  to  the custody of the commissioner for care and treatment on an out-pa-
    13  tient basis, for a period not to exceed ninety days  from  the  date  of
    14  such order[, except that, with the consent of the district attorney,] or
    15  it  may issue a final order of observation. Upon the issuance of a final
    16  order of observation, the district attorney shall  immediately  transmit
    17  to the commissioner, in a manner intended to protect the confidentiality
    18  of  the  information, a list of names and contact information of persons
    19  who may reasonably be expected to be the victim of any  assault  or  any
    20  violent  felony  offense,  as  defined  in the penal law, or any offense
    21  listed in section 530.11 of this chapter which would be carried  out  by
    22  the  committed  person;  provided  that the person who reasonably may be
    23  expected to be a victim does not need to be a member of the same  family
    24  or household as the committed person.
    25    §  7.  Section  730.50 of the criminal procedure law, subdivision 1 as
    26  amended by chapter 7 of the laws of 2013, subdivision 2  as  amended  by
    27  chapter 789 of the laws of 1985, subdivision 5 as amended by chapter 629
    28  of the laws of 1974, is amended to read as follows:
    29  § 730.50 Fitness to proceed; indictment.
    30    1.  When  a  superior court, following a hearing conducted pursuant to
    31  subdivision two, three or four of section 730.30  of  this  article,  is
    32  satisfied  that the defendant is not an incapacitated person, the crimi-
    33  nal action against him or her must proceed. If [it is satisfied] after a
    34  hearing, the court makes a finding that the defendant  is  an  incapaci-
    35  tated  person,  [or  if  no  motion for such a hearing is made] and that
    36  there is at least a reasonable  expectation  that  restoration  services
    37  could  have  a  substantial  probability  of  restoring the defendant to
    38  competence within a reasonable period of time, it must adjudicate him or
    39  her an incapacitated person[, and must issue a final order  of  observa-
    40  tion  or  an order of commitment]. When the indictment does not charge a
    41  felony or when the defendant has been convicted of an offense other than
    42  a felony, such court  (a)  must  issue  a  final  order  of  observation
    43  [committing  the  defendant  to the custody of the commissioner for care
    44  and treatment in an appropriate institution for a period not  to  exceed
    45  ninety  days  from  the  date of such order, provided, however, that the
    46  commissioner may designate an appropriate hospital for  placement  of  a
    47  defendant  for  whom a final order of observation has been issued, where
    48  such hospital is licensed by the office of mental health and has  agreed
    49  to  accept,  upon  referral  by  the commissioner, defendants subject to
    50  final orders of observation issued under this subdivision], and (b) must
    51  dismiss the indictment filed in such court against  the  defendant,  and
    52  such  dismissal  constitutes  a  bar  to  any further prosecution of the
    53  charge or charges contained in such indictment. Upon the issuance  of  a
    54  final  order  of  observation,  the  district attorney shall immediately
    55  transmit to the commissioner, in a manner intended to protect the confi-
    56  dentiality of the information, a list of names and  contact  information
        S. 1874                             6

     1  of  persons  who  may  reasonably  be  expected  to be the victim of any
     2  assault or any violent felony offense, as defined in the penal  law,  or
     3  any  offense  listed  in  section  530.11 of this chapter which would be
     4  carried  out  by  the  committed  person;  provided  that the person who
     5  reasonably may be expected to be a victim does not need to be  a  member
     6  of  the  same  family  or  household  as  the committed person. When the
     7  indictment charges a felony [or when the defendant has been convicted of
     8  a felony] and the court has determined that  there is at least a reason-
     9  able expectation that restoration  services  could  have  a  substantial
    10  probability of restoring the defendant to competence within a reasonable
    11  period  of  time,  it  must  issue an order of commitment committing the
    12  defendant to the custody of the commissioner [for care and treatment] to
    13  receive restoration services in an appropriate institution or[, upon the
    14  consent of the district attorney,] committing him or her to the  custody
    15  of  the commissioner for care and treatment on an out-patient basis, for
    16  a period not to exceed [one year] ninety days  from  the  date  of  such
    17  order. Upon the issuance of an order of commitment, the court must exon-
    18  erate  the  defendant's  bail  if he or she was previously at liberty on
    19  bail; provided, however, that exoneration of bail is not required when a
    20  defendant is committed to the custody of the commissioner for  care  and
    21  treatment on an out-patient basis. [When the defendant is in the custody
    22  of  the  commissioner  pursuant  to  a  final  order of observation, the
    23  commissioner or his or her designee, which may include the  director  of
    24  an  appropriate  institution,  immediately  upon  the  discharge  of the
    25  defendant, must certify to such court that he or she has  complied  with
    26  the  notice  provisions set forth in paragraph (a) of subdivision six of
    27  section 730.60 of this article] In the event that the  court  determines
    28  there  is  not  a reasonable expectation that restoration services could
    29  have a substantial probability of restoring the defendant to  competence
    30  within  a  reasonable  period  of  time  the matter shall be referred to
    31  supreme court for a hearing  conducted  in accordance with section  9.33
    32  or 15.31 of the mental hygiene law.
    33    2.  When a defendant is in the custody of the commissioner immediately
    34  prior to the expiration of the period prescribed in a temporary order of
    35  commitment and the superintendent of the institution wherein the defend-
    36  ant is confined is of the opinion that the defendant continues to be  an
    37  incapacitated  person,  such superintendent must apply to the court that
    38  issued such order for an order of retention for an additional period  of
    39  ninety  days.    The  court  must  hold a hearing on this application to
    40  determine if there is a substantial probability of recovery in the fore-
    41  seeable future. If the court determines that there  is  such  reasonable
    42  expectation  of restoration, it shall issue an order of retention for an
    43  additional ninety days. If the court finds that the defendant  is  still
    44  incapacitated  and there is not a substantial probability of restoration
    45  in the foreseeable future, it  shall  refer  the  matter  to  the  civil
    46  section of the supreme court in the county where the defendant's case is
    47  pending, for a hearing pursuant to article nine or fifteen of the mental
    48  hygiene  law  to  determine  if  the  defendant shall be hospitalized or
    49  otherwise retained on an involuntary basis.  [Such application  must  be
    50  made  within  sixty days prior to the expiration of such period on forms
    51  that have been jointly  adopted  by  the  judicial  conference  and  the
    52  commissioner.] The superintendent must give written notice of the appli-
    53  cation  for  such order to the defendant and to the mental hygiene legal
    54  service.  Upon receipt of such application, the court [may, on  its  own
    55  motion,]  shall  conduct  a hearing [to determine the issue of capacity,
    56  and it must conduct such hearing if a demand therefor  is  made  by  the
        S. 1874                             7

     1  defendant  or  the mental hygiene legal service within ten days from the
     2  date that notice of the application was given them. If, at  the  conclu-
     3  sion  of  a hearing conducted pursuant to this subdivision, the court is
     4  satisfied  that  the defendant is no longer an incapacitated person, the
     5  criminal action against him must proceed. If it is  satisfied  that  the
     6  defendant continues to be an incapacitated person, or if no demand for a
     7  hearing  is  made, the court must adjudicate him an incapacitated person
     8  and must issue an order of retention  which  shall  authorize  continued
     9  custody  of the defendant by the commissioner for a period not to exceed
    10  one year] pursuant to the provisions of article nine or fifteen  of  the
    11  mental hygiene law and the court shall order that the defendant shall be
    12  maintained  in  the  custody  of  the  commissioner but transferred to a
    13  hospital or other appropriate institution to be  involuntarily  admitted
    14  pursuant  to  article nine  or fifteen of the mental hygiene law subject
    15  to the retention provisions of section  9.33  or  15.31  of  the  mental
    16  hygiene  law  except  as specifically provided herein.  Such order shall
    17  not be deemed in any way to be the order of a criminal court.
    18    3. [When] Before a defendant is [in] released from the custody of  the
    19  commissioner   [immediately  prior  to  the  expiration  of  the  period
    20  prescribed in the first order of retention, the procedure set  forth  in
    21  subdivision two shall govern the application for and the issuance of any
    22  subsequent  order  of  retention,  except  that any subsequent orders of
    23  retention must be for periods not to exceed two  years  each;  provided,
    24  however,] either pursuant to this section or pursuant to article nine or
    25  fifteen  of  the  mental  hygiene law, the court shall hold a hearing to
    26  determine whether or not the defendant continues to be an  incapacitated
    27  person.  If,  at  the conclusion of a hearing conducted pursuant to this
    28  subdivision, the court is satisfied that the defendant is no  longer  an
    29  incapacitated    person,  the  criminal action   against him or her must
    30  proceed except that the court shall have the discretion to  dismiss  the
    31  case  in  the  interests  of justice. If, at the conclusion of a hearing
    32  conducted pursuant to this subdivision, the court finds that the defend-
    33  ant continues to be an incapacitated person then the court shall make an
    34  order in accordance with section 9.33 or 15.31  of  the  mental  hygiene
    35  law.  In any case that the aggregate of periods prescribed in the tempo-
    36  rary order of commitment[, the first order of retention and  all  subse-
    37  quent  orders  of retention] and any order of retention pursuant to this
    38  article or article nine or fifteen of the mental hygiene  law  must  not
    39  exceed two-thirds of the authorized maximum term of imprisonment for the
    40  highest class felony charged in the indictment [or for the highest class
    41  felony of which he was convicted].
    42    4.  When  a  defendant is in the custody of the commissioner either at
    43  the expiration of the authorized period prescribed in the last order  of
    44  retention  or  any order of retention issued pursuant to article nine or
    45  fifteen of the mental hygiene law, the criminal action  pending  against
    46  him  or her in the superior court that issued such order shall terminate
    47  for all purposes, and the commissioner must  promptly  certify  to  such
    48  court and to the appropriate district attorney that the defendant was in
    49  his or her custody on such expiration date. Upon receipt of such certif-
    50  ication,  the  court  must  dismiss  the  indictment, and such dismissal
    51  constitutes a bar to any further prosecution of the  charge  or  charges
    52  contained in such indictment.
    53    [5.  When,  on  the  effective date of this subdivision, any defendant
    54  remains in the custody of the commissioner pursuant to an  order  issued
    55  under former code of criminal procedure section six hundred sixty-two-b,
    56  the  superintendent  or director of the institution where such defendant
        S. 1874                             8

     1  is confined shall, if he believes that the defendant continues to be  an
     2  incapacitated person, apply forthwith to a court of record in the county
     3  where  the  institution is located for an order of retention. The proce-
     4  dures  for  obtaining any order pursuant to this subdivision shall be in
     5  accordance with the provisions of subdivisions two, three  and  four  of
     6  this  section, except that the period of retention pursuant to the first
     7  order obtained under this subdivision shall be for  not  more  than  one
     8  year  and  any subsequent orders of retention must be for periods not to
     9  exceed two years each; provided, however, that the aggregate of the time
    10  spent in the custody of the commissioner pursuant to any order issued in
    11  accordance with the provisions of  former  code  of  criminal  procedure
    12  section  six hundred sixty-two-b and the periods prescribed by the first
    13  order obtained under this  subdivision  and  all  subsequent  orders  of
    14  retention  must  not exceed two-thirds of the authorized maximum term of
    15  imprisonment for the highest class felony charged in the  indictment  or
    16  the highest class felony of which he was convicted.]
    17    §  8. Section 730.60 of the criminal procedure law, subdivisions 1 and
    18  3 as amended by chapter 231 of  the  laws  of  2008,  subdivision  2  as
    19  amended  by  chapter  57  of  the  laws of 1984, subdivisions 4 and 5 as
    20  renumbered by chapter 629 of the laws of 1974, subdivision 6 as added by
    21  chapter 549 of the laws of 1980, paragraphs (a) and (b) of subdivision 6
    22  as amended by chapter 7 of the laws of  2013,  is  amended  to  read  as
    23  follows:
    24  § 730.60 Fitness  to proceed; procedure following custody by commission-
    25             er.
    26    1. When a local criminal court issues a [final or] temporary order  of
    27  observation  or an order of commitment, it must forward such order and a
    28  copy of the examination reports and the  accusatory  instrument  to  the
    29  commissioner[,  and,  if  available, a copy of the pre-sentence report].
    30  Upon receipt thereof, the commissioner  must  designate  an  appropriate
    31  institution  operated  by  the department of mental hygiene in which the
    32  defendant is to be placed[, provided, however, that the commissioner may
    33  designate an appropriate hospital for placement of a defendant for  whom
    34  a  final  order  of  observation has been issued, where such hospital is
    35  licensed by the office of mental health and has agreed to  accept,  upon
    36  referral  by  the  commissioner,  defendants  subject to final orders of
    37  observation issued under this subdivision]. The sheriff [must  hold  the
    38  defendant  in custody pending such designation by the commissioner, and]
    39  when notified of the designation, [the sheriff] must deliver the defend-
    40  ant to the superintendent of such institution. The  superintendent  must
    41  promptly  inform  the  appropriate  director of the mental hygiene legal
    42  service of the defendant's admission to such institution. If a defendant
    43  escapes from the custody of the commissioner, the escape shall interrupt
    44  the period  prescribed  in  any  order  of  observation,  commitment  or
    45  retention,  and  such interruption shall continue until the defendant is
    46  returned to the custody of the commissioner.
    47    2. Except as otherwise provided in subdivisions four and five of  this
    48  section, when a defendant is in the custody of the commissioner pursuant
    49  to  a  temporary  order  of  observation or an order of commitment or an
    50  order of retention, the criminal action pending against the defendant in
    51  the court that issued such order is suspended  [until]  pending  further
    52  order  of  the  court. If the superintendent of the institution in which
    53  the defendant is confined determines that he or  she  is  no  longer  an
    54  incapacitated  person[. In that event], the court that issued such order
    55  and the appropriate district attorney must be notified, in  writing,  by
    56  the superintendent of his or her determination. The court must thereupon
        S. 1874                             9

     1  proceed  in accordance with the provisions of subdivision two of section
     2  730.30 of this [chapter] article; provided, however,  if  the  court  is
     3  satisfied  that  the defendant remains an incapacitated person, and upon
     4  consent  of all parties, the court may order the return of the defendant
     5  to the institution in which he or she had been confined for such  period
     6  of  time  as was authorized by the prior order of commitment or order of
     7  retention. Upon such return, the defendant shall  have  all  rights  and
     8  privileges accorded by the provisions of this article.
     9    3.  When a defendant is in the custody of the commissioner pursuant to
    10  an order issued in accordance with this article,  the  commissioner  may
    11  transfer  him  or  her  to  any  appropriate institution operated by the
    12  department of mental hygiene, provided, however, that  the  commissioner
    13  may  designate  an appropriate hospital for placement of a defendant for
    14  whom a final order of observation has been issued, where  such  hospital
    15  is  licensed  by  the  office of mental health and has agreed to accept,
    16  upon referral by the commissioner, defendants subject to final orders of
    17  observation issued under this section. The commissioner may discharge  a
    18  defendant  in  his  or her custody under a final order of observation at
    19  any time prior to the expiration date of such order, or otherwise  treat
    20  or  transfer  such  defendant  in the same manner as if he or she were a
    21  patient not in confinement under a criminal court order.
    22    4. When a defendant is in the custody of the commissioner pursuant  to
    23  an  order of commitment or an order of retention, he or she may make any
    24  motion authorized by this chapter which is susceptible of fair  determi-
    25  nation  without  his  or her personal participation. If the court denies
    26  any such motion it must be without prejudice to a renewal thereof  after
    27  the  criminal  action against the defendant has been ordered to proceed.
    28  If the court enters an order dismissing  the  indictment  and  does  not
    29  direct  that  the  charge or charges be resubmitted to a grand jury, the
    30  court must direct that such  order  of  dismissal  be  served  upon  the
    31  commissioner.
    32    5.  When a defendant is in the custody of the commissioner pursuant to
    33  an order of commitment or an order of retention, the superior court that
    34  issued such order may, upon  motion  of  the  defendant,  and  with  the
    35  consent  of the district attorney, dismiss the indictment when the court
    36  is satisfied that (a) the defendant is a resident or citizen of  another
    37  state  or  country  and  that  he  or  she  will be removed thereto upon
    38  dismissal of the indictment, or (b) the defendant has been  continuously
    39  confined  in  the  custody  of the commissioner, either pursuant to this
    40  article or pursuant to article nine or fifteen  of  the  mental  hygiene
    41  law,  for  a  period  of more than two years.   Before granting a motion
    42  under this  subdivision,  the  court  must  be  further  satisfied  that
    43  dismissal  of  the indictment is consistent with the ends of justice and
    44  that custody of the defendant by the commissioner pursuant to  an  order
    45  of  commitment  or  an  order  of  retention  is  not  necessary for the
    46  protection of the public and that care and treatment can be  effectively
    47  administered  to  the  defendant without the necessity of such order. If
    48  the court enters an order of dismissal under this subdivision,  it  must
    49  set  forth  in  the  record the reasons for such action, and must direct
    50  that such order of  dismissal  be  served  upon  the  commissioner.  The
    51  dismissal  of  an  indictment pursuant to this subdivision constitutes a
    52  bar to any further prosecution of the charge  or  charges  contained  in
    53  such indictment.
    54    [6.  (a) Notwithstanding any other provision of law, no person commit-
    55  ted to the custody of the commissioner  pursuant  to  this  article,  or
    56  continuously  thereafter  retained in such custody, shall be discharged,
        S. 1874                            10

     1  released on condition or placed in any less secure facility  or  on  any
     2  less  restrictive  status,  including,  but  not  limited  to vacations,
     3  furloughs and temporary passes, unless the commissioner or  his  or  her
     4  designee,  which may include the director of an appropriate institution,
     5  shall deliver written notice, at least four days,  excluding  Saturdays,
     6  Sundays  and  holidays,  in  advance  of  the  change  of such committed
     7  person's facility or status, or in the case of a person committed pursu-
     8  ant to a final order of observation written  notice  upon  discharge  of
     9  such committed person, to all of the following:
    10    (1)  The  district  attorney  of the county from which such person was
    11  committed;
    12    (2) The superintendent of state police;
    13    (3) The sheriff of the county where the facility is located;
    14    (4) The police department having jurisdiction of the  area  where  the
    15  facility is located;
    16    (5)  Any person who may reasonably be expected to be the victim of any
    17  assault or any violent felony offense, as defined in the penal  law,  or
    18  any offense listed in section 530.11 of this part which would be carried
    19  out by the committed person; provided that the person who reasonably may
    20  be  expected  to  be  a  victim does not need to be a member of the same
    21  family or household as the committed person; and
    22    (6) Any other person the court may designate.
    23    Said notice may be given by any means reasonably  calculated  to  give
    24  prompt actual notice.
    25    (b)  The notice required by this subdivision shall also be given imme-
    26  diately upon the departure of such  committed  person  from  the  actual
    27  custody of the commissioner or an appropriate institution, without prop-
    28  er  authorization.  Nothing  in  this  subdivision shall be construed to
    29  impair any other right or duty regarding any notice or hearing contained
    30  in any other provision of law.
    31    (c) Whenever a district attorney has received the notice described  in
    32  this subdivision, and the defendant is in the custody of the commission-
    33  er  pursuant  to a final order of observation or an order of commitment,
    34  he may apply within three days of receipt of such notice to  a  superior
    35  court,  for an order directing a hearing to be held to determine whether
    36  such committed person is a danger to himself  or  others.  Such  hearing
    37  shall be held within ten days following the issuance of such order. Such
    38  order may provide that there shall be no further change in the committed
    39  person's  facility  or status until the hearing. Upon a finding that the
    40  committed person is a danger to himself or others, the court shall issue
    41  an order to the commissioner  authorizing  retention  of  the  committed
    42  person  in  the  status existing at the time notice was given hereunder,
    43  for a specified period, not to exceed six months. The district  attorney
    44  and  the  committed person's attorney shall be entitled to the committed
    45  person's clinical records in the commissioner's custody, upon the  issu-
    46  ance of an order directing a hearing to be held.
    47    (d) Nothing in this subdivision shall be construed to impair any other
    48  right  or  duty  regarding  any notice or hearing contained in any other
    49  provision of law.]
    50    § 9. Section 730.70 of the criminal procedure law, as amended by chap-
    51  ter 629 of the laws of 1974, is amended to read as follows:
    52  § 730.70 Fitness to proceed; procedure following termination of  custody
    53               by commissioner.
    54    When  a defendant is in the custody of the commissioner on the expira-
    55  tion date of a final or temporary order of observation or  an  order  of
    56  commitment, or on the expiration date of the last order of retention, or
        S. 1874                            11

     1  on the date an order dismissing an indictment is served upon the commis-
     2  sioner,  the superintendent of the institution in which the defendant is
     3  confined may retain him or her for care and treatment for a period of no
     4  more  than  thirty  days  from  such date. If [the] during such time two
     5  psychiatric examiners engaged by the superintendent [determines]  deter-
     6  mine  that  the defendant is so mentally ill or mentally defective as to
     7  require continued care and treatment in an institution, he or  she  may,
     8  before  the  expiration of such thirty day period, apply for an order of
     9  [certification] retention in the manner prescribed  in  section  [31.33]
    10  9.33 or 15.33 of the mental hygiene law.
    11    §  10.  Subdivision  (a) of section 9.33 of the mental hygiene law, as
    12  amended by chapter 789 of the laws  of  1985,  is  amended  to  read  as
    13  follows:
    14    (a)  If  the  director shall determine that a patient admitted upon an
    15  application supported by medical certification, for  whom  there  is  no
    16  court  order authorizing retention for a specified period, is in need of
    17  retention and if such patient does not agree to remain in such  hospital
    18  as a voluntary patient, the director shall apply to the supreme court or
    19  the  county  court  in  the  county where the hospital is located for an
    20  order authorizing continued retention. A court order issued pursuant  to
    21  article  seven  hundred  thirty  of  the criminal procedure law shall be
    22  deemed an order of retention under this section. Such application  shall
    23  be  made no later than sixty days from the date of involuntary admission
    24  on application supported by medical certification or  thirty  days  from
    25  the date of an order denying an application for patient's release pursu-
    26  ant  to section 9.31, whichever is later; and the hospital is authorized
    27  to retain the patient for such further period during which the  hospital
    28  is  authorized  to make such application or during which the application
    29  may be pending. The director shall cause written notice of such applica-
    30  tion to be  given  the  patient  and  a  copy  thereof  shall  be  given
    31  personally  or  by  mail  to  the persons required by this article to be
    32  served with notice of such patient's initial admission and to the mental
    33  hygiene legal service. Such notice shall state that  a  hearing  may  be
    34  requested  and  that  failure  to  make such a request within five days,
    35  excluding Sunday and holidays, from the date that the notice  was  given
    36  to  the  patient  will  permit  the  entry without a hearing of an order
    37  authorizing retention.
    38    § 11. Subdivision (a) of section 15.33 of the mental hygiene  law,  as
    39  amended  by  chapter  789  of  the  laws  of 1985, is amended to read as
    40  follows:
    41    (a) If the director shall determine that a resident admitted  upon  an
    42  application  supported  by  medical  certification, for whom there is no
    43  court order authorizing retention for a specified period, is in need  of
    44  retention  and  if such resident does not agree to remain in such school
    45  as a voluntary resident, the director shall apply to the  supreme  court
    46  or  the  county  court  in the county where the school is located for an
    47  order authorizing continued retention.  A court order issued pursuant to
    48  article seven hundred thirty of the  criminal  procedure  law  shall  be
    49  deemed  an order of retention under this section. Such application shall
    50  be made no later than sixty days from the date of involuntary  admission
    51  on  application  supported  by medical certification or thirty days from
    52  the date of an order  denying  an  application  for  resident's  release
    53  pursuant to section 15.31, whichever is later; and the school is author-
    54  ized  to  retain  the  resident for such further period during which the
    55  school is authorized to make such application or during which the appli-
    56  cation may be pending. The director shall cause written notice  of  such
        S. 1874                            12

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