Bill Text: NY S06548 | 2011-2012 | General Assembly | Introduced

---

Bill Title: Relates to orders of observation for the purpose of determining incapacitation.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2012-06-21 - SUBSTITUTED BY A10664 [S06548 Detail]

Download: New_York-2011-S06548-Introduced.html

---

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         6548
                                   I N  S E N A T E
                                   February 24, 2012
                                      ___________
       Introduced  by  Sen.  SALAND -- 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  orders  of
         observation for the purpose of determining incapacitation
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1.  Subdivision 2 of section 730.40 of the criminal  procedure
    2  law is amended to read as follows:
    3    2.  When  a  local criminal court has issued a final order of observa-
    4  tion, it must dismiss the accusatory  instrument  filed  in  such  court
    5  against the defendant [and such dismissal constitutes], EXCEPT THAT UPON
    6  MOTION  OF THE DISTRICT ATTORNEY THE DISMISSAL DATE CAN BE ADJOURNED FOR
    7  UP TO ONE YEAR FOR THE PURPOSE OF ISSUANCE OF  AN  ORDER  OF  PROTECTION
    8  PURSUANT  TO SECTION 530.11 OR 530.12 OF THIS PART FOR THE PROTECTION OF
    9  THE COMPLAINANT. UPON SUCH DISMISSAL IT SHALL CONSTITUTE a  bar  to  any
   10  further prosecution of the charge or charges contained in such accusato-
   11  ry  instrument. WHEN THE DEFENDANT IS IN THE CUSTODY OF THE COMMISSIONER
   12  AT THE EXPIRATION OF THE PERIOD PRESCRIBED IN A FINAL ORDER OF  OBSERVA-
   13  TION  THE  COMMISSIONER  MUST  PROMPTLY CERTIFY TO SUCH COURT AND TO THE
   14  APPROPRIATE DISTRICT ATTORNEY THAT THE  DEFENDANT  WAS  IN  HIS  OR  HER
   15  CUSTODY ON SUCH EXPIRATION DATE. When the defendant is in the custody of
   16  the  commissioner at the expiration of the period prescribed in a tempo-
   17  rary order of observation, the proceedings in the local  criminal  court
   18  that  issued such order shall terminate for all purposes and the commis-
   19  sioner must promptly certify  to  such  court  and  to  the  appropriate
   20  district  attorney that the defendant was in his custody on such expira-
   21  tion date. Upon receipt of such certification, the  court  must  dismiss
   22  the  felony  complaint  filed  against  the  defendant, EXCEPT THAT UPON
   23  MOTION OF THE DISTRICT ATTORNEY THE DISMISSAL DATE CAN BE ADJOURNED  FOR
   24  UP  TO  ONE  YEAR  FOR THE PURPOSE OF ISSUANCE OF AN ORDER OF PROTECTION
   25  PURSUANT TO SECTION 530.11 OR 530.12 OF THIS PART FOR THE PROTECTION  OF
   26  THE COMPLAINANT.
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD14006-01-2
       S. 6548                             2
    1    S 2. Subdivision 1 of section 730.50 of the criminal procedure law, as
    2  amended  by  chapter  231  of  the  laws  of 2008, is amended to read as
    3  follows:
    4    1.  When  a  superior court, following a hearing conducted pursuant to
    5  subdivision three or four of section 730.30 OF THIS ARTICLE,  is  satis-
    6  fied  that  the  defendant  is not an incapacitated person, the criminal
    7  action against him must proceed. If it is satisfied that  the  defendant
    8  is  an incapacitated person, or if no motion for such a hearing is made,
    9  it must adjudicate him an incapacitated person, and must issue  a  final
   10  order of observation or an order of commitment. When the indictment does
   11  not  charge  a  felony  or  when  the defendant has been convicted of an
   12  offense other than a felony, such court (a) must issue a final order  of
   13  observation  committing the defendant to the custody of the commissioner
   14  for care and treatment in an appropriate institution for a period not to
   15  exceed ninety days from the date of such order, provided, however,  that
   16  the  commissioner may designate an appropriate hospital for placement of
   17  a defendant for whom a final order of observation has been issued, where
   18  such hospital is licensed by the office of mental health and has  agreed
   19  to  accept,  upon  referral  by  the commissioner, defendants subject to
   20  final orders of observation issued under this subdivision, and (b)  must
   21  dismiss the indictment filed in such court against the defendant, EXCEPT
   22  THAT  UPON  MOTION  OF  THE  DISTRICT ATTORNEY THE DISMISSAL DATE CAN BE
   23  ADJOURNED FOR UP TO ONE YEAR FOR THE PURPOSE OF ISSUANCE OF AN ORDER  OF
   24  PROTECTION  PURSUANT  TO  SECTION  530.11 OR 530.12 OF THIS PART FOR THE
   25  PROTECTION OF THE COMPLAINANT, and UPON such dismissal [constitutes]  IT
   26  SHALL  CONSTITUTE  a  bar  to  any  further prosecution of the charge or
   27  charges contained in such indictment.  When  the  indictment  charges  a
   28  felony  or  when  the  defendant has been convicted of a felony, it must
   29  issue an order of commitment committing the defendant to the custody  of
   30  the  commissioner  for  care and treatment in an appropriate institution
   31  for a period not to exceed one year from the date of  such  order.  Upon
   32  the  issuance  of  an  order of commitment, the court must exonerate the
   33  defendant's bail if he was previously at liberty on bail.
   34    S 3. This act shall take effect immediately.