Bill Text: NY S05589 | 2011-2012 | General Assembly | Introduced
Bill Title: Directs a criminal court to establish a period of commitment for persons found not responsible by reason of mental disease or defect; a person so committed shall not be eligible for release from the custody of the commissioner of mental health or the commissioner of developmental disabilities until completion of the period of commitment.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2012-01-04 - REFERRED TO CODES [S05589 Detail]
Download: New_York-2011-S05589-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 5589 2011-2012 Regular Sessions I N S E N A T E June 3, 2011 ___________ Introduced by Sen. GRIFFO -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the criminal procedure law, in relation to retention of custody of persons found not guilty by reason of mental disease or defect THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Section 330.20 of the criminal procedure law, as added by 2 chapter 548 of the laws of 1980, paragraph (o) of subdivision 1, the 3 closing paragraph of subdivision 2 and subdivisions 7-a and 22 as 4 amended by chapter 107 of the laws of 2004, subdivisions 2 and 20 as 5 amended by chapter 693 of the laws of 1989, subdivisions 5, 8, 9, 10, 6 11, 12, 13 and 14 as amended by chapter 789 of the laws of 1985, subdi- 7 vision 21 as added by chapter 976 of the laws of 1983, and subparagraph 8 (ii) of paragraph (a) of subdivision 21 as amended by chapter 330 of the 9 laws of 1993, is amended to read as follows: 10 S 330.20 Procedure following verdict or plea of not responsible by 11 reason of mental disease or defect. 12 1. Definition of terms. As used in this section, the following terms 13 shall have the following meanings: 14 (a) "Commissioner" means the [state] commissioner of mental health or 15 the [state] commissioner of [mental retardation and] developmental 16 [disability] DISABILITIES. 17 (b) "Secure facility" means a facility within the [state] office of 18 mental health or the [state] office [of mental retardation and] FOR 19 PEOPLE WITH developmental disabilities which is staffed with personnel 20 adequately trained in security methods and is so equipped as to minimize 21 the risk or danger of escapes, and which has been so specifically desig- 22 nated by the commissioner. 23 (c) "Dangerous mental disorder" means: (i) that a defendant currently 24 suffers from a "mental illness" as that term is defined in subdivision EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11734-01-1 S. 5589 2 1 twenty of section 1.03 of the mental hygiene law, and (ii) that because 2 of such condition he currently constitutes a physical danger to himself 3 OR HERSELF or others. 4 (d) "Mentally ill" means that a defendant currently suffers from a 5 mental illness for which care and treatment as a patient, in the in-pa- 6 tient services of a psychiatric center under the jurisdiction of the 7 [state] office of mental health, is essential to such defendant's 8 welfare and that his OR HER judgment is so impaired that he OR SHE is 9 unable to understand the need for such care and treatment; and, where a 10 defendant is mentally retarded, the term "mentally ill" shall also mean, 11 for purposes of this section, that the defendant is in need of care and 12 treatment as a resident in the in-patient services of a developmental 13 center or other residential facility for the mentally retarded and 14 developmentally disabled under the jurisdiction of the [state] office 15 [of mental retardation and] FOR PEOPLE WITH developmental disabilities. 16 (e) "Examination order" means an order directed to the commissioner 17 requiring that a defendant submit to a psychiatric examination to deter- 18 mine whether the defendant has a dangerous mental disorder, or if he OR 19 SHE does not have A dangerous mental disorder, whether he OR SHE is 20 mentally ill. 21 (f) "Commitment order" [or "recommitment order"] means an order 22 committing a defendant to the custody of the commissioner for confine- 23 ment in a secure facility for care and treatment [for six months from 24 the date of the order]. 25 (g) "First retention order" means an order which is effective at the 26 expiration of the period prescribed in a commitment order [for] OR a 27 recommitment order, authorizing continued custody of a defendant by the 28 commissioner for a period not to exceed one year. 29 (h) "Second retention order" means an order which is effective at the 30 expiration of the period prescribed in a first retention order, author- 31 izing continued custody of a defendant by the commissioner for a period 32 not to exceed two years. 33 (i) "Subsequent retention order" means an order which is effective at 34 the expiration of the period prescribed in a second retention order or a 35 prior subsequent retention order authorizing continued custody of a 36 defendant by the commissioner for a period not to exceed two years. 37 (j) "Retention order" means a first retention order, a second 38 retention order or a subsequent retention order. 39 (k) "Furlough order" means an order directing the commissioner to 40 allow a defendant in confinement pursuant to a commitment order, recom- 41 mitment order or retention order to temporarily leave the facility for a 42 period not exceeding fourteen days, [either] with [or without] the 43 constant supervision of one or more employees of the facility. 44 (l) "Transfer order" means an order directing the commissioner to 45 transfer a defendant from a secure facility to a non-secure facility 46 under the jurisdiction of the commissioner or to any non-secure facility 47 designated by the commissioner. 48 (m) "Release order" means an order directing the commissioner to 49 terminate a defendant's in-patient status without terminating the 50 commissioner's responsibility for the defendant. 51 (n) "Discharge order" means an order terminating an order of condi- 52 tions or unconditionally discharging a defendant from supervision under 53 the provisions of this section. 54 (o) "Order of conditions" means an order directing a defendant to 55 comply with this prescribed treatment plan, or any other condition which 56 the court determines to be reasonably necessary or appropriate, and, in S. 5589 3 1 addition, where a defendant is in custody of the commissioner, not to 2 leave the facility without authorization. In addition to such condi- 3 tions, when determined to be reasonably necessary or appropriate, an 4 order of conditions may be accompanied by a special order of conditions 5 set forth in a separate document requiring that the defendant: (i) stay 6 away from the home, school, business or place of employment of the 7 victim or victims, or of any witness designated by the court, of such 8 offense; or (ii) refrain from harassing, intimidating, threatening or 9 otherwise interfering with the victim or victims of the offense and such 10 members of the family or household of such victim or victims as shall be 11 specifically named by the court in such special order. An order of 12 conditions or special order of conditions shall be valid for five years 13 from the date of its issuance, except that, for good cause shown, the 14 court may extend the period for an additional five years. 15 (p) "District attorney" means the office which prosecuted the criminal 16 action resulting in the verdict or plea of not responsible by reason of 17 mental disease or defect. 18 (q) "Qualified psychiatrist" means a physician who (i) is a diplomate 19 of the American board of psychiatry and neurology or is eligible to be 20 certified by that board; or (ii) is certified by the American osteopath- 21 ic board of neurology and psychiatry or is eligible to be certified by 22 that board. 23 (r) "Licensed psychologist" means a person who is registered as a 24 psychologist under article one hundred fifty-three of the education law. 25 (s) "Psychiatric examiner" means a qualified psychiatrist or a 26 licensed psychologist who has been designated by the commissioner to 27 examine a defendant pursuant to this section, and such designee need not 28 be an employee of the department of mental hygiene. 29 2. [Examination] SENTENCE; EXAMINATION order; psychiatric examiners. 30 Upon entry of a verdict of not responsible by reason of mental disease 31 or defect, or upon the acceptance of a plea of not responsible by reason 32 of mental disease or defect, the court must immediately (A) IMPOSE A 33 PERIOD OF CONFINEMENT IN THE CUSTODY OF THE COMMISSIONER WHICH IS EQUAL 34 TO THE SENTENCE OF IMPRISONMENT SUCH DEFENDANT WOULD HAVE RECEIVED 35 PURSUANT TO ARTICLE SEVENTY OF THE PENAL LAW, UPON CONVICTION OF THE 36 CRIME WITH WHICH HE OR SHE WAS CHARGED; AND (B) issue an examination 37 order. Upon receipt of such order, the commissioner must designate two 38 qualified psychiatric examiners to conduct the examination to examine 39 the defendant. In conducting their examination, the psychiatric examin- 40 ers may employ any method which is accepted by the medical profession 41 for the examination of persons alleged to be suffering from a dangerous 42 mental disorder or to be mentally ill or retarded. The court may author- 43 ize a psychiatrist or psychologist retained by a defendant to be present 44 at such examination. The clerk of the court must promptly forward a copy 45 of the examination order to the mental hygiene legal service and such 46 service may thereafter participate in all subsequent proceedings under 47 this section. 48 In all subsequent proceedings under this section, [prior to the issu- 49 ance of a special order of conditions,] the court shall consider whether 50 any order of protection had been issued prior to a verdict of not 51 responsible by reason of mental disease or defect in the case, or prior 52 to the acceptance of a plea of not responsible by reason of mental 53 disease or defect in the case. 54 3. Examination order; place of examination. Upon issuing an examina- 55 tion order, the court must, except as otherwise provided in this subdi- 56 vision, direct that the defendant be committed to a secure facility S. 5589 4 1 designated by the commissioner as the place for such psychiatric exam- 2 ination. The sheriff must hold the defendant in custody pending such 3 designation by the commissioner, and when notified of the designation, 4 the sheriff must promptly deliver the defendant to such secure facility. 5 [When the defendant is not in custody at the time of such verdict or 6 plea, because he was previously released on bail or on his own recogni- 7 zance, the court, in its discretion, may direct that such examination be 8 conducted on an out-patient basis, and at such time and place as the 9 commissioner shall designate. If, however, the commissioner informs the 10 court that confinement of the defendant is necessary for an effective 11 examination, the court must direct that the defendant be confined in a 12 facility designated by the commissioner until the examination is 13 completed.] 14 4. Examination order, duration. Confinement in a secure facility 15 pursuant to an examination order shall be for a period not exceeding 16 thirty days, except that, upon application of the commissioner, the 17 court may authorize confinement for an additional period not exceeding 18 thirty days when a longer period is necessary to complete the examina- 19 tion. [If the initial hearing required by subdivision six of this 20 section has not commenced prior to the termination of such examination 21 period, the commissioner shall retain custody of the defendant in such 22 secure facility until custody is transferred to the sheriff in the 23 manner prescribed in subdivision six of this section.] During the period 24 of such confinement, the physician in charge of the facility may admin- 25 ister or cause to be administered to the defendant such emergency 26 psychiatric, medical or other therapeutic treatment as in his OR HER 27 judgment should be administered. [If the court has directed that the 28 examination be conducted on an out-patient basis, the examination shall 29 be completed within thirty days after the defendant has first reported 30 to the place designated by the commissioner, except that, upon applica- 31 tion of the commissioner, the court may extend such period for a reason- 32 able time if a longer period is necessary to complete the examination.] 33 5. Examination order; reports. After he OR SHE has completed his OR 34 HER examination of the defendant, each psychiatric examiner must prompt- 35 ly prepare a report of his OR HER findings and evaluation concerning the 36 defendant's mental condition, and submit such report to the commission- 37 er. If the psychiatric examiners differ in their opinion as to whether 38 the defendant is mentally ill or is suffering from a dangerous mental 39 disorder, the commissioner must designate another psychiatric examiner 40 to examine the defendant. Upon receipt of the examination reports, the 41 commissioner must submit them to the court that issued the examination 42 order. If the court is not satisfied with the findings of these psychi- 43 atric examiners, the court may designate one or more additional psychi- 44 atric examiners pursuant to subdivision fifteen of this section. [The 45 court must furnish a copy of the reports to the district attorney, coun- 46 sel for the defendant and the mental hygiene legal service.] 47 6. [Initial hearing; commitment] COMMITMENT order. After the examina- 48 tion reports are submitted, the court must[, within ten days of the 49 receipt of such reports, conduct an initial hearing to determine the 50 defendant's present mental condition. If the defendant is in the custody 51 of the commissioner pursuant to an examination order, the court must 52 direct the sheriff to obtain custody of the defendant from the commis- 53 sioner and to confine the defendant pending further order of the court, 54 except that the court may direct the sheriff to confine the defendant in 55 an institution located near the place where the court sits if that 56 institution has been designated by the commissioner as suitable for the S. 5589 5 1 temporary and secure detention of mentally disabled persons. At such 2 initial hearing, the district attorney must establish to the satisfac- 3 tion of the court that the defendant has a dangerous mental disorder or 4 is mentally ill. If the court finds that the defendant has a dangerous 5 mental disorder, it must] issue a commitment order FOR THE TERM OF THE 6 PERIOD OF CONFINEMENT IMPOSED, PURSUANT TO PARAGRAPH (A) OF SUBDIVISION 7 TWO OF THIS SECTION, AND TO SUCH A SECURE FACILITY AS SHALL BE SUITABLE 8 FOR A MENTALLY ILL PERSON OR A PERSON WITH A DANGEROUS MENTAL DISORDER, 9 AS THE CASE MAY BE, BASED UPON THE EXAMINATION REPORTS. [If the court 10 finds that the defendant does not have a dangerous mental disorder but 11 is mentally ill, the provisions of subdivision seven of this section 12 shall apply.] 13 7. [Initial hearing civil commitment and order of conditions. If, at 14 the conclusion of the initial hearing conducted pursuant to subdivision 15 six of this section, the court finds that the defendant is mentally ill 16 but does not have a dangerous mental disorder, the provisions of arti- 17 cles nine or fifteen of the mental hygiene law shall apply at that stage 18 of the proceedings and at all subsequent proceedings. Having found that 19 the defendant is mentally ill, the court must issue an order of condi- 20 tions and an order committing the defendant to the custody of the 21 commissioner. The latter order shall be deemed an order made pursuant to 22 the mental hygiene law and not pursuant to this section, and further 23 retention, conditional release or discharge of such defendant shall be 24 in accordance with the provisions of the mental hygiene law. If, at the 25 conclusion of the initial hearing, the court finds that the defendant 26 does not have a dangerous mental disorder and is not mentally ill, the 27 court must discharge the defendant either unconditionally or subject to 28 an order of conditions. 29 7-a. Whenever the court issues a special order of conditions pursuant 30 to this section, the commissioner shall make reasonable efforts to noti- 31 fy the victim or victims or the designated witness or witnesses that a 32 special order of conditions containing such provisions has been issued, 33 unless such victim or witness has requested that such notice should not 34 be provided. 35 8.] First retention order. When a defendant is in the custody of the 36 commissioner pursuant to a commitment order, the commissioner must, at 37 least thirty days prior to the expiration of the period prescribed in 38 the order, apply to the court that issued the order, or to a superior 39 court in the county where the secure facility is located, for a first 40 retention order or a release order. The commissioner must give written 41 notice of the application to the district attorney, the defendant, coun- 42 sel for the defendant, and the mental hygiene legal service. Upon 43 receipt of such application, the court may, on its own motion, conduct a 44 hearing to determine whether the defendant has a dangerous mental disor- 45 der, and it must conduct such hearing if a demand therefor is made by 46 the district attorney, the defendant, counsel for the defendant, or the 47 mental hygiene legal service within ten days from the date that notice 48 of the application was given to them. If such a hearing is held on an 49 application for retention, the commissioner must establish to the satis- 50 faction of the court that the defendant has a dangerous mental disorder 51 or is mentally ill. The district attorney shall be entitled to appear 52 and present evidence at such hearing. If such a hearing is held on an 53 application for release, the district attorney must establish to the 54 satisfaction of the court that the defendant has a dangerous mental 55 disorder or is mentally ill. If the court finds that the defendant has a 56 dangerous mental disorder it must issue a first retention order. If the S. 5589 6 1 court finds that the defendant is mentally ill but does not have a 2 dangerous mental disorder, it must issue a first retention order and, 3 pursuant to subdivision [eleven] TEN of this section, a transfer order 4 and an order of conditions. If the court finds that the defendant does 5 not have a dangerous mental disorder and is not mentally ill, it must 6 issue a release order and an order of conditions pursuant to subdivision 7 [twelve] ELEVEN of this section. 8 [9.] 8. Second and subsequent retention orders. When a defendant is in 9 the custody of the commissioner pursuant to a first retention order, the 10 commissioner must, at least thirty days prior to the expiration of the 11 period prescribed in the order, apply to the court that issued the 12 order, or to a superior court in the county where the facility is 13 located, for a second retention order or a release order. The commis- 14 sioner must give written notice of the application to the district 15 attorney, the defendant, counsel for the defendant, and the mental 16 hygiene legal service. Upon receipt of such application, the court may, 17 on its own motion, conduct a hearing to determine whether the defendant 18 has a dangerous mental disorder, and it must conduct such hearing if a 19 demand therefor is made by the district attorney, the defendant, counsel 20 for the defendant, or the mental hygiene legal service within ten days 21 from the date that notice of the application was given to them. If such 22 a hearing is held on an application for retention, the commissioner must 23 establish to the satisfaction of the court that the defendant has a 24 dangerous mental disorder or is mentally ill. The district attorney 25 shall be entitled to appear and present evidence at such hearing. If 26 such a hearing is held on an application for release, the district 27 attorney must establish to the satisfaction of the court that the 28 defendant has a dangerous mental disorder or is mentally ill. If the 29 court finds that the defendant has a dangerous mental disorder it must 30 issue a second retention order. If the court finds that the defendant is 31 mentally ill but does not have a dangerous mental disorder, it must 32 issue a second retention order and, pursuant to subdivision [eleven] TEN 33 of this section, a transfer order and an order of conditions. If the 34 court finds that the defendant does not have a dangerous mental disorder 35 and is not mentally ill, it must issue a release order and an order of 36 conditions pursuant to subdivision [twelve] ELEVEN of this section. When 37 a defendant is in the custody of the commissioner prior to the expira- 38 tion of the period prescribed in a second retention order, the proce- 39 dures set forth in this subdivision for the issuance of a second 40 retention order shall govern the application for and the issuance of any 41 subsequent retention order. 42 [10.] 9. Furlough order. The commissioner may apply for a furlough 43 order, pursuant to this subdivision, when a defendant is in his OR HER 44 custody pursuant to a [commitment order,] recommitment order[,] or 45 retention order and the commissioner is of the view that, consistent 46 with the public safety and welfare of the community and the defendant, 47 the clinical condition of the defendant warrants a granting of the priv- 48 ileges authorized by a furlough order. The application for a furlough 49 order may be made to the court that issued the commitment order, or to a 50 superior court in the county where the secure facility is located. The 51 commissioner must give ten days written notice to the district attorney, 52 the defendant, counsel for the defendant, and the mental hygiene legal 53 service. Upon receipt of such application, the court may, on its own 54 motion, conduct a hearing to determine whether the application should be 55 granted, and must conduct such hearing if a demand therefor is made by 56 the district attorney. If the court finds that the issuance of a S. 5589 7 1 furlough order is consistent with the public safety and welfare of the 2 community and the defendant, and that the clinical condition of the 3 defendant warrants a granting of the privileges authorized by a furlough 4 order, the court must grant the application and issue a furlough order 5 containing any terms and conditions that the court deems necessary or 6 appropriate. If the defendant fails to return to the secure facility at 7 the time specified in the furlough order, then, for purposes of subdivi- 8 sion [nineteen] EIGHTEEN of this section, he OR SHE shall be deemed to 9 have escaped. 10 [11.] 10. Transfer order and order of conditions. The commissioner may 11 apply for a transfer order, pursuant to this subdivision, when a defend- 12 ant is in his OR HER custody pursuant to a retention order or a recom- 13 mitment order, and the commissioner is of the view that the defendant 14 does not have a dangerous mental disorder or that, consistent with the 15 public safety and welfare of the community and the defendant, the clin- 16 ical condition of the defendant warrants his OR HER transfer from a 17 secure facility to a non-secure facility under the jurisdiction of the 18 commissioner or to any non-secure facility designated by the commission- 19 er. The application for a transfer order may be made to the court that 20 issued the order under which the defendant is then in custody, or to a 21 superior court in the county where the secure facility is located. The 22 commissioner must give ten days written notice to the district attorney, 23 the defendant, counsel for the defendant, and the mental hygiene legal 24 service. Upon receipt of such application, the court may, on its own 25 motion, conduct a hearing to determine whether the application should be 26 granted, and must conduct such hearing if the demand therefor is made by 27 the district attorney. At such hearing, the district attorney must 28 establish to the satisfaction of the court that the defendant has a 29 dangerous mental disorder or that the issuance of a transfer order is 30 inconsistent with the public safety and welfare of the community. The 31 court must grant the application and issue a transfer order if the court 32 finds that the defendant does not have a dangerous mental disorder, or 33 if the court finds that the issuance of a transfer order is consistent 34 with the public safety and welfare of the community and the defendant 35 and that the clinical condition of the defendant, warrants his OR HER 36 transfer from a secure facility to a non-secure facility. A court must 37 also issue a transfer order when, in connection with an application for 38 a first retention order pursuant to subdivision [eight] SEVEN of this 39 section or a second or subsequent retention order pursuant to subdivi- 40 sion [nine] EIGHT of this section, it finds that a defendant is mentally 41 ill but does not have a dangerous mental disorder. Whenever a court 42 issues a transfer order it must also issue an order of conditions. 43 [12.] 11. Release order and order of conditions. The commissioner may 44 apply for a release order, pursuant to this subdivision, when a defend- 45 ant is in his OR HER custody pursuant to a retention order or recommit- 46 ment order, and the commissioner is of the view that the defendant no 47 longer has a dangerous mental disorder and is no longer mentally ill. 48 The application for a release order may be made to the court that issued 49 the order under which the defendant is then in custody, or to a superior 50 court in the county where the facility is located. The application must 51 contain a description of the defendant's current mental condition, the 52 past course of treatment, a history of the defendant's conduct subse- 53 quent to his OR HER commitment, a written service plan for continued 54 treatment which shall include the information specified in subdivision 55 (g) of section 29.15 of the mental hygiene law, and a detailed statement 56 of the extent to which supervision of the defendant after release is S. 5589 8 1 proposed. The commissioner must give ten days written notice to the 2 district attorney, the defendant, counsel for the defendant, and the 3 mental hygiene legal service. Upon receipt of such application, the 4 court must promptly conduct a hearing to determine the defendant's pres- 5 ent mental condition. At such hearing, the district attorney must 6 establish to the satisfaction of the court that the defendant has a 7 dangerous mental disorder or is mentally ill. If the court finds that 8 the defendant has a dangerous mental disorder, it must deny the applica- 9 tion for a release order. If the court finds that the defendant does not 10 have a dangerous mental disorder but is mentally ill, it must issue a 11 transfer order pursuant to subdivision [eleven] TEN of this section if 12 the defendant is then confined in a secure facility. If the court finds 13 that the defendant does not have a dangerous mental disorder and is not 14 mentally ill, it must grant the application and issue a release order. A 15 court must also issue a release order when, in connection with an appli- 16 cation for a first retention order pursuant to subdivision [eight] SEVEN 17 of this section or a second or subsequent retention order pursuant to 18 subdivision [nine] EIGHT of this section, it finds that the defendant 19 does not have a dangerous mental disorder and is not mentally ill. When- 20 ever a court issues a release order it must also issue an order of 21 conditions. If the court has previously issued a transfer order and an 22 order of conditions, it must issue a new order of conditions upon issu- 23 ing a release order. The order of conditions issued in conjunction with 24 a release order shall incorporate a written service plan prepared by a 25 psychiatrist familiar with the defendant's case history and approved by 26 the court, and shall contain any conditions that the court determines to 27 be reasonably necessary or appropriate. It shall be the responsibility 28 of the commissioner to determine that such defendant is receiving the 29 services specified in the written service plan and is complying with any 30 conditions specified in such plan and the order of conditions. 31 [13.] 12. Discharge order. The commissioner may apply for a discharge 32 order, pursuant to this subdivision, when a defendant has been contin- 33 uously on an out-patient status for three years or more pursuant to a 34 release order, and the commissioner is of the view that the defendant no 35 longer has a dangerous mental disorder and is no longer mentally ill and 36 that the issuance of a discharge order is consistent with the public 37 safety and welfare of the community and the defendant. The application 38 for a discharge order may be made to the court that issued the release 39 order, or to a superior court in the county where the defendant is then 40 residing. The commissioner must give ten days written notice to the 41 district attorney, the defendant, counsel for the defendant, and the 42 mental hygiene legal service. Upon receipt of such application, the 43 court may, on its own motion, conduct a hearing to determine whether the 44 application should be granted, and must conduct such hearing if a demand 45 therefor is made by the district attorney. The court must grant the 46 application and issue a discharge order if the court finds that the 47 defendant has been continuously on an out-patient status for three years 48 or more, that he OR SHE does not have a dangerous mental disorder and is 49 not mentally ill, and that the issuance of the discharge order is 50 consistent with the public safety and welfare of the community and the 51 defendant. 52 [14] 13. Recommitment order. At any time during the period covered by 53 an order of conditions an application may be made by the commissioner or 54 the district attorney to the court that issued such order, or to a supe- 55 rior court in the county where the defendant is then residing, for a 56 recommitment order when the applicant is of the view that the defendant S. 5589 9 1 has a dangerous mental disorder. The applicant must give written notice 2 of the application to the defendant, counsel for the defendant, and the 3 mental hygiene legal service, and if the applicant is the commissioner 4 he OR SHE must give such notice to the district attorney or if the 5 applicant is the district attorney he OR SHE must give such notice to 6 the commissioner. Upon receipt of such application the court must order 7 the defendant to appear before it for a hearing to determine if the 8 defendant has a dangerous mental disorder. Such order may be in the form 9 of a written notice, specifying the time and place of appearance, served 10 personally upon the defendant, or mailed to his OR HER last known 11 address, as the court may direct. If the defendant fails to appear in 12 court as directed, the court [may] SHALL issue a warrant to an appropri- 13 ate peace officer directing him OR HER to take the defendant into custo- 14 dy and bring him OR HER before the court. In such circumstance, the 15 court [may] SHALL direct that the defendant be confined in an appropri- 16 ate institution located near the place where the court sits. The court 17 must conduct a hearing to determine whether the defendant has a danger- 18 ous mental disorder. At such hearing, the applicant, whether he OR SHE 19 be the commissioner or the district attorney must establish to the 20 satisfaction of the court that the defendant has a dangerous mental 21 disorder. If the applicant is the commissioner, the district attorney 22 shall be entitled to appear and present evidence at such hearing; if the 23 applicant is the district attorney, the commissioner shall be entitled 24 to appear and present evidence at such hearing. If the court finds that 25 the defendant has a dangerous mental disorder, it must issue a recommit- 26 ment order. When a defendant is in the custody of the commissioner 27 pursuant to a recommitment order, the procedures set forth in subdivi- 28 sions SEVEN AND eight [and nine] of this section for the issuance of 29 retention orders shall govern the application for and the issuance of a 30 first retention order, a second retention order, and subsequent 31 retention orders. 32 [15] 14. Designation of psychiatric examiners. If, at any hearing 33 conducted under this section to determine the defendant's present mental 34 condition, the court is not satisfied with the findings of the psychiat- 35 ric examiners, the court may direct the commissioner to designate one or 36 more additional psychiatric examiners to conduct an examination of the 37 defendant and submit a report of their findings. In addition, the court 38 may on its own motion, or upon request of a party, may designate one or 39 more psychiatric examiners to examine the defendant and submit a report 40 of their findings. The district attorney may apply to the court for an 41 order directing that the defendant submit to an examination by a psychi- 42 atric examiner designated by the district attorney, and such psychiatric 43 examiner may testify at the hearing. 44 [16] 15. Rehearing and review. Any defendant who is in the custody of 45 the commissioner pursuant to a [commitment order,] a retention order, or 46 a recommitment order, if dissatisfied with such order, may, within thir- 47 ty days after the making of such order, obtain a rehearing and review of 48 the proceedings and of such order in accordance with the provisions of 49 section 9.35 or 15.35 of the mental hygiene law. 50 [17] 16. Rights of defendants. Subject to the limitations and 51 provisions of this section, a defendant committed to the custody of the 52 commissioner pursuant to this section shall have the rights granted to 53 patients under the mental hygiene law. 54 [18] 17. Notwithstanding any other provision of law, no person 55 confined by reason of a [commitment order,] recommitment order or 56 retention order to a secure facility may be discharged or released S. 5589 10 1 unless the commissioner shall deliver written notice, at least four days 2 excluding Saturdays, Sundays and holidays, in advance of such discharge 3 or release to all of the following: 4 (a) the district attorney. 5 (b) the police department having jurisdiction of the area to which the 6 defendant is to be discharged or released. 7 (c) any other person the court may designate. 8 The notices required by this subdivision shall be given by the facili- 9 ty staff physician who was treating the defendant or, if unavailable, by 10 the defendant's treatment team leader, but if neither is immediately 11 available, notice must be given by some other member of the clinical 12 staff of the facility. Such notice must be given by any means reasonably 13 calculated to give prompt actual notice. 14 [19] 18. Escape from custody; notice requirements. If a defendant is 15 in the custody of the commissioner pursuant to an order issued under 16 this section, and such defendant escapes from custody, immediate notice 17 of such escape shall be given by the department facility staff to: (a) 18 the district attorney, (b) the superintendent of state police, (c) the 19 sheriff of the county where the escape occurred, (d) the police depart- 20 ment having jurisdiction of the area where the escape occurred, (e) any 21 person the facility staff believes to be in danger, and (f) any law 22 enforcement agency and any person the facility staff believes would be 23 able to apprise such endangered person that the defendant has escaped 24 from the facility. Such notice shall be given as soon as the facility 25 staff know that the defendant has escaped from the facility and shall 26 include such information as will adequately identify the defendant and 27 the person or persons believed to be in danger and the nature of the 28 danger. The notices required by this subdivision shall be given by the 29 facility staff physician who was treating the defendant or, if unavail- 30 able, by the defendant's treatment team leader, but if neither is imme- 31 diately available, notice must be given by some other member of the 32 clinical staff of the facility. Such notice must be given by any means 33 reasonably calculated to give prompt actual notice. The defendant may be 34 apprehended, restrained, transported to, and returned to the facility 35 from which he escaped by any peace officer, and it shall be the duty of 36 the officer to assist any representative of the commissioner to take the 37 defendant into custody upon the request of such representative. 38 [20] 19. Required affidavit. No application may be made by the 39 commissioner under this section without an accompanying affidavit from 40 at least one psychiatric examiner supportive of relief requested in the 41 application, which affidavit shall be served on all parties entitled to 42 receive the notice of application. Such affidavit shall set forth the 43 defendant's clinical diagnosis, a detailed analysis of his or her mental 44 condition which caused the psychiatric examiner to formulate an opinion, 45 and the opinion of the psychiatric examiner with respect to the defend- 46 ant. Any application submitted without the required affidavit shall be 47 dismissed by the court. 48 [21] 20. Appeals. (a) A party to proceedings conducted in accordance 49 with the provisions of this section may take an appeal to an intermedi- 50 ate appellate court by permission of the intermediate appellate court as 51 follows: 52 (i) the commissioner may appeal from any release order, retention 53 order, transfer order, discharge order, order of conditions, or recom- 54 mitment order, for which he OR SHE has not applied; 55 (ii) a defendant, or the mental hygiene legal service on his or her 56 behalf, may appeal from any [commitment order,] retention order, recom- S. 5589 11 1 mitment order, or, if the defendant has obtained a rehearing and review 2 of any such order pursuant to subdivision [sixteen] FIFTEEN of this 3 section, from an order, not otherwise appealable as of right, issued in 4 accordance with the provisions of section 9.35 or 15.35 of the mental 5 hygiene law authorizing continued retention under the original order, 6 provided, however, that a defendant who takes an appeal from a [commit- 7 ment order,] retention order, or recommitment order may not subsequently 8 obtain a rehearing and review of such order pursuant to subdivision 9 [sixteen] FIFTEEN of this section; 10 (iii) the district attorney may appeal from any release order, trans- 11 fer order, discharge order, order of conditions, furlough order, or 12 order denying an application for a recommitment order which he OR SHE 13 opposed. 14 (b) An aggrieved party may appeal from a final order of the intermedi- 15 ate appellate court to the court of appeals by permission of the inter- 16 mediate appellate court granted before application to the court of 17 appeals, or by permission of the court of appeals upon refusal by the 18 intermediate appellate court or upon direct application. 19 (c) An appeal taken under this subdivision shall be deemed civil in 20 nature, and shall be governed by the laws and rules applicable to civil 21 appeals; provided, however, that a stay of the order appealed from must 22 be obtained in accordance with the provisions of paragraph (d) [hereof] 23 OF THIS SUBDIVISION. 24 (d) The court from or to which an appeal is taken may stay all 25 proceedings to enforce the order appealed from pending an appeal or 26 determination on a motion for permission to appeal, or may grant a 27 limited stay, except that only the court to which an appeal is taken may 28 vacate, limit, or modify a stay previously granted. If the order 29 appealed from is affirmed or modified, the stay shall continue for five 30 days after service upon the appellant of the order of affirmance or 31 modification with notice of its entry in the court to which the appeal 32 was taken. If a motion is made for permission to appeal from such an 33 order, before the expiration of the five days, the stay, or any other 34 stay granted pending determination of the motion for permission to 35 appeal, shall: 36 (i) if the motion is granted, continue until five days after the 37 appeal is determined; or 38 (ii) if the motion is denied, continue until five days after the 39 movant is served with the order of denial with notice of its entry. 40 [22] 21. Any special order of conditions issued pursuant to subpara- 41 graph (i) or (ii) of paragraph (o) of subdivision one of this section 42 shall bear in a conspicuous manner the term "special order of condi- 43 tions" and a copy shall be filed by the clerk of the court with the 44 sheriff's office in the county in which anyone intended to be protected 45 by such special order resides, or, if anyone intended to be protected by 46 such special order resides within a city, with the police department of 47 such city. The absence of language specifying that the order is a 48 "special order of conditions" shall not affect the validity of such 49 order. A copy of such special order of conditions may from time to time 50 be filed by the clerk of the court with any other police department or 51 sheriff's office having jurisdiction of the residence, work place, or 52 school of anyone intended to be protected by such special order. A copy 53 of such special order may also be filed by anyone intended to be 54 protected by such provisions at the appropriate police department or 55 sheriff's office having jurisdiction. Any subsequent amendment or revo- 56 cation of such special order may be filed in the same manner as provided S. 5589 12 1 in this subdivision. Such special order of conditions shall plainly 2 state the date that the order expires. 3 S 2. This act shall take effect on the first of January next succeed- 4 ing the date on which it shall have become a law and shall apply to 5 criminal offenses committed on or after such date.