Bill Text: NY S08310 | 2025-2026 | General Assembly | Introduced

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Bill Title: Enacts the "forensic rehabilitation act" relating to the custody of individuals following a verdict or plea of not responsible by reason of mental disease or defect.

Sponsorship: Partisan Bill (Democrat 6)

Status: (Introduced - Dead) 2026-01-07 - REFERRED TO CODES [S08310 Detail]

Download: New_York-2025-S08310-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          8310

                               2025-2026 Regular Sessions

                    IN SENATE

                                      May 30, 2025
                                       ___________

        Introduced  by  Sen.  BROUK  -- read twice and ordered printed, and when
          printed to be committed to the Committee on Codes

        AN ACT to amend the criminal procedure law, in relation to enacting  the
          "forensic rehabilitation act"; and to repeal subdivision 14 of section
          330.20 of such law, relating to recommitment orders

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

     1    Section 1. This act shall be known and may be cited as  the  "forensic
     2  rehabilitation act".
     3    §  2.   Paragraphs (c), (d), (e), (g), (h) and (i) of subdivision 1 of
     4  section 330.20 of the criminal procedure law, paragraphs (c), (e),  (g),
     5  (h)  and  (i)  as added by chapter 548 of the laws of 1980 and paragraph
     6  (d) as amended by chapter 479 of the laws of 2022, is amended to read as
     7  follows:
     8    (c) ["Dangerous mental disorder"] "Qualifying condition and  level  of
     9  imminent  serious risk" means at the time of any examination or determi-
    10  nation as to whether or not a defendant has a qualifying  condition  and
    11  level  of imminent serious risk or mental illness or should be granted a
    12  furlough or any other privilege: (i) that a [defendant currently suffers
    13  from] person at the time of examination or determination has  a  "mental
    14  illness"  as  that term is defined in subdivision twenty of section 1.03
    15  of the mental hygiene law, and (ii) that because of such condition  [he]
    16  such  person  currently  constitutes a risk of imminent serious physical
    17  danger to [himself] themself or others based on the individual's actions
    18  at that time. All assessments of the risk of imminent  serious  physical
    19  danger  shall take into account any and all evidence indicating that the
    20  individual at that time does not currently pose such a danger, including
    21  assessments made by psychologists and psychiatrists and the individual's
    22  current behaviors,  participation  in  treatment  and  programming,  and
    23  growth and development.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13182-01-5
        S. 8310                             2

     1    (d) ["Mentally ill"] "Person with mental health, developmental, cogni-
     2  tive,  or  intellectual  challenges"  means  that a [defendant currently
     3  suffers from] person at the time of any examination or determination  as
     4  to whether or not a person has a qualifying condition and level of immi-
     5  nent  serious  risk or mental illness or should be granted a furlough or
     6  any other privilege has a mental illness for which care and treatment as
     7  a patient, in the in-patient services of a psychiatric center under  the
     8  jurisdiction  of the state office of mental health, is essential to such
     9  [defendant's] person's welfare and that [his or her] such person's judg-
    10  ment is so impaired that [he] such person is unable  to  understand  the
    11  need  for such care and treatment; and, where a defendant has [a] devel-
    12  opmental [disability], cognitive or intellectual  challenges,  the  term
    13  ["mentally  ill"]  "person with mental health, developmental, cognitive,
    14  or intellectual challenges"  shall  also  mean,  for  purposes  of  this
    15  section,  that the defendant is in need of care and treatment as a resi-
    16  dent in the in-patient services of a developmental center or other resi-
    17  dential facility for [individuals] people with developmental  [disabili-
    18  ties],  cognitive  or  intellectual challenges under the jurisdiction of
    19  the state office for people with developmental disabilities.
    20    (e) "Examination order" means an order directed  to  the  commissioner
    21  requiring that a defendant submit to a psychiatric examination to deter-
    22  mine  whether the defendant has a [dangerous mental disorder] qualifying
    23  condition and level of imminent serious risk, or if [he] such  defendant
    24  does  not  have  [dangerous  mental disorder] a qualifying condition and
    25  level of imminent serious risk, whether [he] such defendant is [mentally
    26  ill] a person with mental health, developmental, cognitive, or intellec-
    27  tual challenges.
    28    (g) "First retention order" means an order which is effective  at  the
    29  expiration  of  the  period  prescribed in a commitment order [for] or a
    30  recommitment order, authorizing continued custody of a defendant by  the
    31  commissioner for a period not to exceed [one year] ninety days.
    32    (h)  "Second retention order" means an order which is effective at the
    33  expiration of the period prescribed in a first retention order,  author-
    34  izing  continued custody of a defendant by the commissioner for a period
    35  not to exceed [two years] ninety days.
    36    (i) "Subsequent retention order" means an order which is effective  at
    37  the expiration of the period prescribed in a second retention order or a
    38  prior  subsequent  retention  order  authorizing  continued custody of a
    39  defendant by the commissioner for a period not to exceed [two years] six
    40  months.
    41    § 3. Subdivisions 2, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 15  of  section
    42  330.20  of the criminal procedure law, subdivision 2 as amended by chap-
    43  ter 693 of the laws of 1989, the opening paragraph of subdivision  2  as
    44  amended  by  chapter  479  of the laws of 2022, the closing paragraph of
    45  subdivision 2 as amended by chapter 107 of the laws  of  2004,  subdivi-
    46  sions  5,  8, 9, 10, 11, 12 and 13 as amended by chapter 789 of the laws
    47  of 1985 and subdivisions 6, 7 and 15 as added by chapter 548 of the laws
    48  of 1980, are amended to read as follows:
    49    2. Examination order; psychiatric examiners.  Upon entry of a  verdict
    50  of  not  responsible  by reason of mental disease or defect, or upon the
    51  acceptance of a plea of not responsible by reason of mental  disease  or
    52  defect,  the  court  must  immediately  issue an examination order. Upon
    53  receipt of such order, the commissioner  must  designate  two  qualified
    54  psychiatric  examiners to conduct the examination to examine the defend-
    55  ant within fifteen days of such receipt.  In conducting  their  examina-
    56  tion,  the psychiatric examiners may employ any method which is accepted
        S. 8310                             3

     1  by the medical profession for the examination of persons alleged to  [be
     2  suffering  from] have a [dangerous mental disorder] qualifying condition
     3  and level of imminent serious risk or to be [mentally ill or  having]  a
     4  person  with  mental  health,  developmental [disability], cognitive, or
     5  intellectual challenges.   The court may  authorize  a  psychiatrist  or
     6  psychologist  retained by a defendant to be present at such examination.
     7  The clerk of the court must promptly forward a copy of  the  examination
     8  order to the mental hygiene legal service and such service may thereaft-
     9  er participate in all subsequent proceedings under this section.
    10    In  all  subsequent proceedings under this section, prior to the issu-
    11  ance of a special order of conditions, the court shall consider  whether
    12  any  order  of  protection  had  been  issued  prior to a verdict of not
    13  responsible by reason of mental disease or defect in the case, or  prior
    14  to  the  acceptance  of  a  plea  of not responsible by reason of mental
    15  disease or defect in the case.
    16    5. Examination order; reports. After [he has completed his] completion
    17  of the examination of the  defendant,  each  psychiatric  examiner  must
    18  promptly  prepare  a  report  of  [his]  their  findings  and evaluation
    19  concerning the defendant's mental condition, and submit such  report  to
    20  the  commissioner no later than seven days after conducting the examina-
    21  tion.  If the psychiatric examiners differ in their opinion as to wheth-
    22  er the defendant is [mentally ill] a person with mental health, develop-
    23  mental, cognitive, or intellectual challenges or [is  suffering  from  a
    24  dangerous mental disorder] has a qualifying condition and level of immi-
    25  nent  serious  risk, the commissioner must designate another psychiatric
    26  examiner to examine the  defendant.  Upon  receipt  of  the  examination
    27  reports,  the commissioner must submit them to the court that issued the
    28  examination order. If the court is not satisfied with  the  findings  of
    29  these  psychiatric  examiners, the court may designate one or more addi-
    30  tional psychiatric examiners pursuant to  subdivision  fifteen  of  this
    31  section.    The court must furnish a copy of the reports to the district
    32  attorney, counsel  for  the  defendant  and  the  mental  hygiene  legal
    33  service.
    34    6.  Initial  hearing;  commitment order. After the examination reports
    35  are submitted, the court must, within ten days of the  receipt  of  such
    36  reports, conduct an initial hearing to determine the defendant's present
    37  mental condition. If the defendant is in the custody of the commissioner
    38  pursuant  to  an examination order, the court must direct the sheriff to
    39  obtain custody of the defendant from the commissioner and to confine the
    40  defendant pending further order of the court, except that the court  may
    41  direct  the  sheriff  to confine the defendant in an institution located
    42  near the place where the court sits if that institution has been  desig-
    43  nated  by  the  commissioner  as  suitable  for the temporary and secure
    44  detention of mentally disabled persons. At  such  initial  hearing,  the
    45  district  attorney  must establish to the satisfaction of the court that
    46  the defendant has a [dangerous mental disorder] qualifying condition and
    47  level of imminent serious risk or is [mentally ill] a person with mental
    48  health, developmental, cognitive, or intellectual challenges.    If  the
    49  court  finds that the defendant has a [dangerous mental disorder] quali-
    50  fying condition and level of imminent serious risk, [it] the court  must
    51  issue a commitment order. If the court finds that the defendant does not
    52  have  a  [dangerous  mental  disorder] qualifying condition and level of
    53  imminent serious risk but is [mentally ill] a person with mental health,
    54  developmental, cognitive, or intellectual challenges, the provisions  of
    55  subdivision seven of this section shall apply.
        S. 8310                             4

     1    7.  Initial  hearing  civil commitment and order of conditions. If, at
     2  the conclusion of the initial hearing conducted pursuant to  subdivision
     3  six  of  this  section,  the court finds that the defendant is [mentally
     4  ill] a person with mental health, developmental, cognitive, or intellec-
     5  tual challenges but does not have a [dangerous mental disorder] qualify-
     6  ing  condition  and  level  of  imminent serious risk, the provisions of
     7  articles nine or fifteen of the mental hygiene law shall apply  at  that
     8  stage of the proceedings and at all subsequent proceedings. Having found
     9  that the defendant is [mentally ill] a person with mental health, devel-
    10  opmental, cognitive, or intellectual challenges, the court must issue an
    11  order of conditions and an order committing the defendant to the custody
    12  of  the  commissioner.  The  latter  order shall be deemed an order made
    13  pursuant to the mental hygiene law and not pursuant to this section, and
    14  further retention, conditional release or discharge  of  such  defendant
    15  shall  be  in  accordance with the provisions of the mental hygiene law.
    16  If, at the conclusion of the initial hearing, the court finds  that  the
    17  defendant  does not have a [dangerous mental disorder] qualifying condi-
    18  tion and level of imminent serious risk and  is  not  [mentally  ill]  a
    19  person  with  mental  health,  developmental, cognitive, or intellectual
    20  challenges, the court  must  discharge  the  defendant  either  uncondi-
    21  tionally or subject to an order of conditions.
    22    8.  First  retention  order. When a defendant is in the custody of the
    23  commissioner pursuant to a commitment order, the commissioner  must,  at
    24  least  thirty  days  prior to the expiration of the period prescribed in
    25  the order, apply to the court that issued the order, or  to  a  superior
    26  court  in  the  county where the secure facility is located, for a first
    27  retention order or a release order. The commissioner must  give  written
    28  notice of the application to the district attorney, the defendant, coun-
    29  sel  for  the  defendant,  and  the  mental  hygiene legal service. Upon
    30  receipt of such application, the court may, on its own motion, conduct a
    31  hearing to determine whether  the  defendant  has  a  [dangerous  mental
    32  disorder]  qualifying  condition and level of imminent serious risk, and
    33  it must conduct such hearing if  a  demand  therefor  is  made  by  [the
    34  district  attorney,]  the  defendant,  counsel for the defendant, or the
    35  mental hygiene legal service within ten days from the date  that  notice
    36  of  the  application  was given to them. If such a hearing is held on an
    37  application for retention, the commissioner must establish to the satis-
    38  faction of the court that the defendant has a [dangerous  mental  disor-
    39  der]  qualifying  condition  and  level  of  imminent serious risk or is
    40  [mentally ill] a person with mental health, developmental, cognitive, or
    41  intellectual challenges. [The district attorney  shall  be  entitled  to
    42  appear  and  present evidence at such hearing. If such a hearing is held
    43  on an application for release, the district attorney must  establish  to
    44  the  satisfaction of the court that the defendant has a dangerous mental
    45  disorder or is mentally ill.] If the court finds that the defendant  has
    46  a [dangerous mental disorder] qualifying condition and level of imminent
    47  serious  risk  it must issue a first retention order. If the court finds
    48  that the defendant is [mentally ill] a person with mental health, devel-
    49  opmental, cognitive, or intellectual challenges  but  does  not  have  a
    50  [dangerous  mental  disorder] qualifying condition and level of imminent
    51  serious risk, it must issue a first retention  order  and,  pursuant  to
    52  subdivision  eleven  of  this  section, a transfer order and an order of
    53  conditions. If the commissioner makes an application for release  or  if
    54  the  court  finds  that  the defendant does not have a [dangerous mental
    55  disorder] qualifying condition and level of imminent serious risk and is
    56  not [mentally ill] a person with mental  health,  developmental,  cogni-
        S. 8310                             5

     1  tive,  or  intellectual  challenges, [it] the court must issue a release
     2  order and an order of conditions pursuant to subdivision twelve of  this
     3  section.
     4    9.  Second and subsequent retention orders. When a defendant is in the
     5  custody of the commissioner pursuant to a  first  retention  order,  the
     6  commissioner  must,  at least thirty days prior to the expiration of the
     7  period prescribed in the order, apply  to  the  court  that  issued  the
     8  order,  or  to  a  superior  court  in  the county where the facility is
     9  located, for a second retention order or a release  order.  The  commis-
    10  sioner  must  give  written  notice  of  the application to the district
    11  attorney, the defendant, counsel  for  the  defendant,  and  the  mental
    12  hygiene  legal service. Upon receipt of such application for a retention
    13  order, the court may, on its own motion, conduct a hearing to  determine
    14  whether  the  defendant  has  a  [dangerous  mental disorder] qualifying
    15  condition and level of imminent serious risk, and it must  conduct  such
    16  hearing  if  a  demand  therefor is made by [the district attorney,] the
    17  defendant, counsel for  the  defendant,  or  the  mental  hygiene  legal
    18  service within ten days from the date that notice of the application was
    19  given  to  them.  If  such  a  hearing  is  held  on  an application for
    20  retention, the commissioner must establish to the  satisfaction  of  the
    21  court  that  the  defendant has a [dangerous mental disorder] qualifying
    22  condition and level of imminent serious risk  or  is  [mentally  ill]  a
    23  person  with  mental  health,  developmental, cognitive, or intellectual
    24  challenges. [The district attorney shall be entitled to appear and pres-
    25  ent evidence at such hearing. If such a hearing is held on  an  applica-
    26  tion  for release, the district attorney must establish to the satisfac-
    27  tion of the court that the defendant has a dangerous mental disorder  or
    28  is mentally ill.] If the court finds that the defendant has a [dangerous
    29  mental disorder] qualifying condition and level of imminent serious risk
    30  it  must  issue  a  second  retention order. If the court finds that the
    31  defendant is [mentally ill] a person with mental health,  developmental,
    32  cognitive,  or  intellectual  challenges  but does not have a [dangerous
    33  mental disorder] qualifying condition  and  level  of  imminent  serious
    34  risk,  it  must issue a second retention order and, pursuant to subdivi-
    35  sion eleven of this section, a transfer order and  an  order  of  condi-
    36  tions.  If  the  commissioner makes an application for release or if the
    37  court finds that the defendant does not have a [dangerous mental  disor-
    38  der]  qualifying condition and level of imminent serious risk and is not
    39  [mentally ill] a person with mental health, developmental, cognitive, or
    40  intellectual challenges, it must issue a release order and an  order  of
    41  conditions  pursuant  to  subdivision  twelve  of  this  section. When a
    42  defendant is in the custody of the commissioner prior to the  expiration
    43  of the period prescribed in a second retention order, the procedures set
    44  forth  in  this subdivision for the issuance of a second retention order
    45  shall govern the application for and  the  issuance  of  any  subsequent
    46  retention order. Any time a commitment or retention order is issued, the
    47  commissioner  or their designee shall work with the person in custody to
    48  develop a detailed and  extensive  treatment  plan  that  includes  what
    49  services, treatment, programs, and/or corrective action the person needs
    50  to  take  to  obtain release, a transfer order, and/or a furlough order.
    51  The commissioner or designee shall then provide access to such services,
    52  treatment, and programs, and the individual shall be released, issued  a
    53  transfer  order,  and/or  issued  a furlough order if they substantially
    54  complete what was required for the particular outcome.
    55    10. Furlough order. The commissioner may apply for a  furlough  order,
    56  pursuant  to  this subdivision, when a defendant is in [his] the commis-
        S. 8310                             6

     1  sioner's custody pursuant to a commitment order, recommitment order,  or
     2  retention  order  and  the  commissioner is of the view that, consistent
     3  with the public safety and welfare of the community and  the  defendant,
     4  the clinical condition of the defendant warrants a granting of the priv-
     5  ileges  authorized  by  a furlough order. The application for a furlough
     6  order may be made to the court that issued the commitment order, or to a
     7  superior court in the county where the secure facility is  located.  The
     8  commissioner must give ten days written notice to the district attorney,
     9  the  defendant,  counsel for the defendant, and the mental hygiene legal
    10  service. Upon receipt of such application, the court  may,  on  its  own
    11  motion, conduct a hearing to determine whether the application should be
    12  granted[,  and must conduct such hearing if a demand therefor is made by
    13  the district attorney]. If the [court finds] commissioner has found that
    14  the issuance of a furlough order is consistent with  the  public  safety
    15  and  welfare  of  the community and the defendant, and that the clinical
    16  condition of the defendant warrants a granting of the privileges author-
    17  ized by a furlough order, the court must grant the application and issue
    18  a furlough order containing any terms  and  conditions  that  the  court
    19  deems necessary or appropriate. [If the defendant fails to return to the
    20  secure  facility  at the time specified in the furlough order, then, for
    21  purposes of subdivision nineteen of this section, he shall be deemed  to
    22  have  escaped]  A  person in custody shall be provided an opportunity to
    23  earn progressively more permissive furloughs, including  being  escorted
    24  within  a facility, unescorted within a facility, escorted in the commu-
    25  nity outside a facility, unescorted community furloughs, and  unescorted
    26  community  furloughs  with community integration, where an individual is
    27  able to spend time with their family, work, pursue education, and pursue
    28  community-based treatment. Each person in custody shall have the  oppor-
    29  tunity  to  move to a more permissive furlough at least every six months
    30  unless they have engaged in specific behavior within  the  previous  six
    31  months  demonstrating that they pose a risk of imminent serious physical
    32  danger to themselves or others. If an  individual  has  participated  in
    33  unescorted community furloughs for six months, they shall be released or
    34  receive  an  order  of  transfer.  If  they  are transferred, they shall
    35  continue on the same furlough progression level.
    36    11. (a) Transfer order and order of conditions. The  commissioner  may
    37  apply for a transfer order, pursuant to this subdivision, when a defend-
    38  ant is in [his] the commissioner's custody pursuant to a retention order
    39  or  a  recommitment  order, and the commissioner is of the view that the
    40  defendant does not have a [dangerous mental disorder] qualifying  condi-
    41  tion  and  level  of  imminent serious risk or that, consistent with the
    42  public safety and welfare of the community and the defendant, the  clin-
    43  ical condition of the defendant warrants [his] such defendant's transfer
    44  from  a  secure facility to a non-secure facility under the jurisdiction
    45  of the commissioner or to any  non-secure  facility  designated  by  the
    46  commissioner.  The  application  for a transfer order may be made to the
    47  court that issued the order under which the defendant is then in  custo-
    48  dy,  or  to  a superior court in the county where the secure facility is
    49  located. The commissioner must give  ten  days  written  notice  to  the
    50  district  attorney,  the  defendant,  counsel for the defendant, and the
    51  mental hygiene legal service. Upon  receipt  of  such  application,  the
    52  court  [may,  on  its own motion, conduct a hearing to determine whether
    53  the application should be granted, and must conduct such hearing if  the
    54  demand  therefor  is made by the district attorney. At such hearing, the
    55  district attorney must establish to the satisfaction of the  court  that
    56  the  defendant has a dangerous mental disorder or that the issuance of a
        S. 8310                             7

     1  transfer order is inconsistent with the public safety and welfare of the
     2  community. The court] must grant the application and  issue  a  transfer
     3  order if the [court finds] commissioner has concluded that the defendant
     4  does  not  have  a  [dangerous mental disorder] qualifying condition and
     5  level of imminent serious risk, or [if the court finds] that  the  issu-
     6  ance  of  a  transfer  order  is  consistent  with the public safety and
     7  welfare of the community and the defendant and that the clinical  condi-
     8  tion  of  the defendant, warrants [his] such defendant's transfer from a
     9  secure facility to a non-secure facility. A  court  must  also  issue  a
    10  transfer  order  when,  in  connection  with  an application for a first
    11  retention order pursuant to subdivision  eight  of  this  section  or  a
    12  second  or  subsequent  retention  order pursuant to subdivision nine of
    13  this section, it finds that a defendant is [mentally ill] a person  with
    14  mental  health, developmental, cognitive, or intellectual challenges but
    15  does not have a [dangerous mental  disorder]  qualifying  condition  and
    16  level of imminent serious risk. Whenever a court issues a transfer order
    17  it  must  also issue an order of conditions. A person who is transferred
    18  must begin their new placement with at least the same level of all priv-
    19  ileges, conditions, and furlough progression level as they  had  at  the
    20  time of their transfer.
    21    (b) Notwithstanding any other section of law, and regardless of wheth-
    22  er any application is filed, a court shall automatically issue a release
    23  order or a transfer order from a secure facility to a non-secure facili-
    24  ty  to  any  person  in  the  custody  of the commissioner pursuant to a
    25  commitment order or a retention order who has spent  a  total  of  three
    26  years  in a secure facility and/or a state or local correctional facili-
    27  ty, or who has spent a total period of time in a secure facility  and/or
    28  a  state  or  local  correctional facility equal to the minimum sentence
    29  they could have received for  the  charge  for  which  they  received  a
    30  verdict  of,  or accepted a plea of, not responsible by reason of mental
    31  disease or defect, whichever period of time expires first. For a  person
    32  who  has  spent a total period of time in a secure facility equal to the
    33  minimum sentence they could have received for the charge for which  they
    34  received  a verdict of, or accepted a plea of, not responsible by reason
    35  of mental disease or defect, a court shall issue a  release  order.  For
    36  any  release  order  or  transfer order, the person shall be released or
    37  transferred on or before the day the time period expires.
    38    (c) Time spent in a secure facility and/or state or local correctional
    39  facility prior to a verdict, plea, and/or a sentence, shall be  included
    40  as part of the total time periods set forth in this section.
    41    12.  (a)  Release  order and order of conditions. The commissioner may
    42  apply for a release order, pursuant to this subdivision, when a  defend-
    43  ant is in [his] the commissioner's custody pursuant to a retention order
    44  or  recommitment  order,  and  the  commissioner is of the view that the
    45  defendant no longer has a [dangerous mental disorder]  qualifying condi-
    46  tion and level of imminent serious risk and is no longer [mentally  ill]
    47  a  person  with mental health, developmental, cognitive, or intellectual
    48  challenges. The application for a release order may be made to the court
    49  that issued the order under which the defendant is then in  custody,  or
    50  to  a  superior  court  in the county where the facility is located. The
    51  application must contain a description of the defendant's current mental
    52  condition, the past course of treatment, a history  of  the  defendant's
    53  conduct  subsequent  to  [his]  such  defendant's  commitment, a written
    54  service plan for continued treatment which shall include the information
    55  specified in subdivision (g) of section 29.15 of the mental hygiene law,
    56  and a detailed statement of the  extent  to  which  supervision  of  the
        S. 8310                             8

     1  defendant after release is proposed. The commissioner must give ten days
     2  written  notice to the district attorney, the defendant, counsel for the
     3  defendant, and the mental hygiene legal service. Upon  receipt  of  such
     4  application, the court must promptly [conduct a hearing to determine the
     5  defendant's  present  mental  condition.   At such hearing, the district
     6  attorney must establish to  the  satisfaction  of  the  court  that  the
     7  defendant  has  a  dangerous  mental disorder or is mentally ill. If the
     8  court finds that the defendant has a dangerous mental disorder, it  must
     9  deny  the  application  for a release order. If the court finds that the
    10  defendant does not have a dangerous mental disorder but is mentally ill,
    11  it must issue a transfer order pursuant to subdivision  eleven  of  this
    12  section  if  the defendant is then confined in a secure facility. If the
    13  court finds that the defendant does not have a dangerous mental disorder
    14  and is not mentally ill, it must] grant  the  application  and  issue  a
    15  release  order.  A  court  must  also  issue  a  release  order when, in
    16  connection with an application for a first retention order  pursuant  to
    17  subdivision  eight  of  this section or a second or subsequent retention
    18  order pursuant to subdivision nine of this section, it  finds  that  the
    19  defendant  does not have a [dangerous mental disorder] qualifying condi-
    20  tion and level of imminent serious risk and  is  not  [mentally  ill]  a
    21  person  with  mental  health,  developmental, cognitive, or intellectual
    22  challenges. Whenever a court issues a release order it must  also  issue
    23  an  order  of  conditions. If the court has previously issued a transfer
    24  order and an order of conditions, it must issue a new  order  of  condi-
    25  tions  upon  issuing  a release order. The order of conditions issued in
    26  conjunction with a release order shall  incorporate  a  written  service
    27  plan  prepared  by  a  psychiatrist  familiar  with the defendant's case
    28  history and approved by the court, and shall contain any conditions that
    29  the court determines to be reasonably necessary or appropriate. It shall
    30  be the responsibility of the commissioner to determine that such defend-
    31  ant is receiving the services specified in the written service plan  and
    32  is complying with any conditions specified in such plan and the order of
    33  conditions.
    34    (b)  (i)  Notwithstanding  any other section of law, and regardless of
    35  whether any application is filed, a court shall  automatically  issue  a
    36  release  order to any person in the custody of the commissioner pursuant
    37  to a commitment order or a retention order who has spent a total of  six
    38  years  in such custody in a secure facility, non-secure facility, and/or
    39  a state or local correctional facility, or who has spent a total  period
    40  of time in such custody in a secure facility, non-secure facility and/or
    41  a  state  or  local  correctional facility equal to the minimum sentence
    42  they could have received for  the  charge  for  which  they  received  a
    43  verdict  of,  or accepted a plea of, not responsible by reason of mental
    44  disease or defect, whichever period of time expires  first.  The  person
    45  shall be released on or before the day the time period expires.
    46    (ii)  Time  spent  in  a  secure facility, non-secure facility, and/or
    47  state or local correctional facility prior to a verdict, a plea,  and/or
    48  a  sentence,  shall  be  included  as part of the total time periods set
    49  forth in this section.
    50    (c) All facilities under this section  shall  all  operate  the  same,
    51  consistent   policies,   including  with  respect  to  treatment  plans,
    52  furloughs, retention orders, transfer orders, and release orders.
    53    13. Discharge order. The commissioner may apply for a discharge order,
    54  pursuant to this subdivision, when a defendant has been continuously  on
    55  an  out-patient  status  for  three  years or more pursuant to a release
    56  order, and the commissioner is of the view that the defendant no  longer
        S. 8310                             9

     1  has  a  [dangerous  mental  disorder]  qualifying condition and level of
     2  imminent serious risk and is no longer  [mentally  ill]  a  person  with
     3  mental  health, developmental, cognitive, or intellectual challenges and
     4  that  the  issuance  of  a discharge order is consistent with the public
     5  safety and welfare of the community and the defendant.  The  application
     6  for  a  discharge order may be made to the court that issued the release
     7  order, or to a superior court in the county where the defendant is  then
     8  residing.  The  commissioner  must  give  ten days written notice to the
     9  district attorney, the defendant, counsel for  the  defendant,  and  the
    10  mental  hygiene  legal  service.  Upon  receipt of such application, the
    11  court [may, on its own motion, conduct a hearing  to  determine  whether
    12  the  application  should  be granted, and must conduct such hearing if a
    13  demand therefor is made by the district attorney. The court] must  grant
    14  the application and issue a discharge order if the [court finds] commis-
    15  sioner  has found that the defendant has been continuously on an out-pa-
    16  tient status for three years or more, that [he] such defendant does  not
    17  have  a  [dangerous  mental  disorder] qualifying condition and level of
    18  imminent serious risk and is not [mentally ill]  a  person  with  mental
    19  health,  developmental,  cognitive, or intellectual challenges, and that
    20  the issuance of the discharge order is consistent with the public safety
    21  and welfare of the community and the defendant.
    22    15. Designation of psychiatric examiners. If, at any hearing conducted
    23  under this section to determine the defendant's  present  mental  condi-
    24  tion,  the  court  is not satisfied with the findings of the psychiatric
    25  examiners, the court may direct the commissioner  to  designate  one  or
    26  more  additional  psychiatric examiners to conduct an examination of the
    27  defendant and submit a report of their findings. In addition, the  court
    28  may  on its own motion, or upon request of a party, may designate one or
    29  more psychiatric examiners to examine the defendant and submit a  report
    30  of  their findings. The district attorney may not apply to the court for
    31  an order directing that the defendant submit  to  an  examination  by  a
    32  psychiatric  examiner  designated  by  the  district attorney[, and such
    33  psychiatric examiner may testify at the hearing].
    34    § 4. Subdivision 14 of section 330.20 of the criminal procedure law is
    35  REPEALED.
    36    § 5. Paragraphs (a) and (c) of subdivision 21 of section 330.20 of the
    37  criminal procedure law, as added by chapter 976 of  the  laws  of  1983,
    38  subparagraph (ii) of paragraph (a) as amended by chapter 330 of the laws
    39  of 1993, are amended to read as follows:
    40    (a) A party to proceedings conducted in accordance with the provisions
    41  of  this  section  may take an appeal to an intermediate appellate court
    42  [by permission of the intermediate appellate court] as follows:
    43    (i) the commissioner may appeal from any  [release  order,]  retention
    44  order[,  transfer  order,  discharge order,] or order of conditions[, or
    45  recommitment order,] for which [he] such commissioner has not applied;
    46    (ii) a defendant, or the mental hygiene legal service on [his or  her]
    47  a  defendant's  behalf,  may appeal from any commitment order, retention
    48  order, [recommitment order,] or, if the defendant has obtained a rehear-
    49  ing and review of any such order pursuant to subdivision sixteen of this
    50  section, from an order, not otherwise appealable as of right, issued  in
    51  accordance  with  the  provisions of section 9.35 or 15.35 of the mental
    52  hygiene law authorizing continued retention under the  original  order[,
    53  provided,  however,  that a defendant who takes an appeal from a commit-
    54  ment order, retention order, or recommitment order may not  subsequently
    55  obtain  a  rehearing  and  review  of such order pursuant to subdivision
    56  sixteen of this section;
        S. 8310                            10

     1    (iii) the district attorney may appeal from any release order,  trans-
     2  fer  order,  discharge  order,  order  of conditions, furlough order, or
     3  order denying an application for a recommitment order which he opposed].
     4    (c)  An  appeal  taken under this subdivision shall be deemed civil in
     5  nature, and shall be governed by the laws and rules applicable to  civil
     6  appeals; provided, however, that any such appeal shall be decided within
     7  six  months  of  being  filed and that a stay of the order appealed from
     8  must be obtained in accordance with  the  provisions  of  paragraph  (d)
     9  [hereof]  of  this  subdivision.    If an appeal of a retention order or
    10  commitment order is not decided within six months after  the  date  such
    11  appeal  is filed, the individual held in a secure or non-secure facility
    12  under such retention order or commitment order shall be released from  a
    13  non-secure facility or released or transferred from a secure facility to
    14  a  non-secure  facility,  unless the commissioner seeks and obtains from
    15  the court a stay of such release or transfer by demonstrating  beyond  a
    16  reasonable  doubt  that  the person currently has a qualifying condition
    17  and level of imminent serious risk.
    18    § 6. Section 330.20 of the criminal procedure law is amended by adding
    19  two new subdivisions 23 and 24 to read as follows:
    20    23. The office of mental health shall publish monthly reports  on  its
    21  website,  along  with  semi-annual and annual cumulative reports, of the
    22  total number of people held  in  each  secure  and  non-secure  forensic
    23  facility in the state.
    24    (a) The number of people in each secure and non-secure forensic facil-
    25  ity  shall  be  separately listed, including: (i) those that hold people
    26  pursuant to this section and section 730.50 of this chapter or 14  NYCRR
    27  Part  57,  and  including  but  not  limited  to the Mid-Hudson Forensic
    28  Psychiatric  Center,  Kirby  Forensic  Psychiatric   Center,   Rochester
    29  Regional  Forensic  Unit, and Northeast Regional Forensic Unit; (ii) all
    30  secure treatment facilities, as defined in subdivision  (o)  of  section
    31  10.03  of  the  mental  hygiene  law,  including  but not limited to the
    32  Central New York Psychiatric Center and St. Lawrence Psychiatric Center;
    33  and (iii) all secure mental health facilities holding people pursuant to
    34  section four hundred two or five hundred eight of the correction law.
    35    (b) The number of people held in each secure and  non-secure  forensic
    36  facility shall be broken down by: (i) race, (ii) age, (iii) gender iden-
    37  tity,  (iv)  documented  mental  health  status and diagnoses, (v) other
    38  documented disability, (vi) pregnancy or postpartum status, (vii)  iden-
    39  tification  as  lesbian, gay, bisexual, transgender, intersex, or gender
    40  nonconforming, (viii) length of stay at  their  present  facility,  (ix)
    41  length  of  stay  in  a secure or non-secure facility, and (x) length of
    42  stay since their initial confinement.
    43    24. (a) Not later than ninety days after the effective  date  of  this
    44  subdivision,  the senate shall establish a community advisory committee,
    45  with no less than five members. Each member of  the  community  advisory
    46  committee  shall  be a person who has been confined in a secure forensic
    47  facility, has or has had a loved  one  confined  in  a  secure  forensic
    48  facility,  or  is a faith leader, medical or mental health professional,
    49  or civil rights or human rights advocate. All  members  shall  have  had
    50  some  experience  engaging in advocacy aimed at enhancing the rights and
    51  treatment of people with mental health needs. No less than half  of  all
    52  members  shall  be  people  who  have been confined in a secure forensic
    53  facility or have had a loved one confined in a secure forensic facility.
    54    (b) Members of such community advisory committee  shall  be  appointed
    55  for  a  term  of five years, with the possibility of reappointments. The
        S. 8310                            11

     1  community advisory committee shall have the  ability  to  designate  any
     2  person to assist the work of the community advisory committee.
     3    (c) Notwithstanding any other provision of law, the community advisory
     4  committee  and  its designees shall have the ability to make unannounced
     5  visits to, and have access to every  area  of  and  all  non-classified,
     6  non-privileged data from, all secure and non-secure forensic facilities,
     7  including  (i)  those  that  hold  people  pursuant  to this section and
     8  section 730.50 of this chapter or 14 NYCRR Part 57,  and  including  but
     9  not  limited to the Mid-Hudson Forensic Psychiatric Center, Kirby Foren-
    10  sic Psychiatric Center, Rochester Regional Forensic Unit, and  Northeast
    11  Regional Forensic Unit; (ii) all secure treatment facilities, as defined
    12  in subdivision (o) of section 10.03 of the mental hygiene law, including
    13  but  not  limited  to  the  Central  New York Psychiatric Center and St.
    14  Lawrence Psychiatric Center; and (iii) all secure mental health  facili-
    15  ties holding people pursuant to section four hundred two or five hundred
    16  eight of the correction law.
    17    (d)  The community advisory committee and its designees shall have the
    18  ability to conduct in-person interviews and correspond  and  communicate
    19  with people held in secure and non-secure forensic facilities and facil-
    20  ity  staff  freely,  privately,  and confidentially, upon consent of the
    21  confined person or facility staff. Administrators of each facility shall
    22  meet privately with the community advisory committee  or  its  designees
    23  upon request.
    24    (e)  (i) All people held in a secure facility shall have the right and
    25  access to confidentially communicate with the community advisory commit-
    26  tee and its designees, including while the community advisory  committee
    27  or  its designees are at the facility and through free phone calls, free
    28  mail correspondence, and free email correspondence. Such  communications
    29  shall  be  afforded  the same levels of protection, confidentiality, and
    30  privilege as attorney-client correspondence.
    31    (ii) No person shall face any form of retaliation  or  adverse  impact
    32  for  having  contact  with, or being perceived to have had contact with,
    33  the community advisory committee.
    34    (f) The community advisory committee and its designees shall have  the
    35  right  to  bring  and use electronic equipment in any forensic facility,
    36  including video cameras, photographic cameras, audio recording  devices,
    37  mobile  telephones,  computers, and tablets, for the purposes of record-
    38  ing,  documentation,  administration  of  surveys,  and  other   related
    39  purposes.
    40    (g)  (i) The community advisory committee and its designees shall have
    41  the right to receive, access, inspect, and copy all relevant non-classi-
    42  fied,  non-privileged  information,  records,  and  documents   in   the
    43  possession  or  control  of  any forensic facility, any administrator or
    44  employee of any forensic facility, and any administrator or employee  of
    45  the office of mental health.
    46    (ii)  The community advisory committee and its designees shall receive
    47  any such records within seven days  of  a  request.  Where  the  records
    48  requested  by  the community advisory committee or its designees pertain
    49  to a death of an incarcerated individual, threats of bodily harm includ-
    50  ing sexual or physical assaults, or  the  denial  of  necessary  medical
    51  treatment, the records shall be provided within forty-eight hours unless
    52  members  of  the community advisory committee or their designees consent
    53  to an extension of the deadline.
    54    (h) The community advisory committee may make periodic recommendations
    55  to the governor, temporary president  of  the  senate,  speaker  of  the
    56  assembly,  any forensic facility or the office of mental health. For any
        S. 8310                            12

     1  recommendations made by the community advisory committee to  a  facility
     2  or  the  office  of mental health, the facility and the office of mental
     3  health shall report to the community advisory  committee  within  ninety
     4  days  whether  it has designed and implemented a remedial action plan to
     5  address the recommendations, and transmit any such remedial action  plan
     6  to  the  community  advisory committee. The community advisory committee
     7  may publish its findings and recommendations on  the  office  of  mental
     8  health's website.
     9    §  7. Subdivisions 3 and 5 of section 730.50 of the criminal procedure
    10  law, subdivision 5 as amended by chapter 629 of the laws  of  1974,  are
    11  amended to read as follows:
    12    3.  When a defendant is in the custody of the commissioner immediately
    13  prior to the expiration of the period prescribed in the first  order  of
    14  retention,  the  procedure  set forth in subdivision two of this section
    15  shall govern the application for and  the  issuance  of  any  subsequent
    16  order  of retention, except that any subsequent orders of retention must
    17  be for periods not to exceed two years each; provided, however, that the
    18  aggregate of the periods prescribed in the temporary  order  of  commit-
    19  ment,  the  first  order  of  retention  and  all  subsequent  orders of
    20  retention must not exceed the authorized minimum term  of  imprisonment,
    21  or  two-thirds  of  the  authorized maximum term of imprisonment for the
    22  highest class felony charged in the indictment or for the highest  class
    23  felony  of  which [he] the defendant was convicted, or a total period of
    24  six years, whichever period of time expires first.
    25    5. When, on the effective date  of  this  subdivision,  any  defendant
    26  remains  in  the custody of the commissioner pursuant to an order issued
    27  under former code of criminal procedure section six hundred sixty-two-b,
    28  the superintendent or director of the institution where  such  defendant
    29  is  confined  shall,  if  [he  believes] they believe that the defendant
    30  continues to be an incapacitated person, apply forthwith to a  court  of
    31  record  in  the  county where the institution is located for an order of
    32  retention. The procedures for  obtaining  any  order  pursuant  to  this
    33  subdivision  shall  be in accordance with the provisions of subdivisions
    34  two, three and four of this section, except that the period of retention
    35  pursuant to the first order obtained under this subdivision shall be for
    36  not more than one year and any subsequent orders of  retention  must  be
    37  for  periods  not  to exceed two years each; provided, however, that the
    38  aggregate of the time spent in the custody of the commissioner  pursuant
    39  to  any order issued in accordance with the provisions of former code of
    40  criminal procedure section  six  hundred  sixty-two-b  and  the  periods
    41  prescribed  by  the  first order obtained under this subdivision and all
    42  subsequent orders of retention must not exceed two-thirds of the author-
    43  ized [maximum] minimum term of imprisonment for the highest class felony
    44  charged in the indictment or the highest class felony of which [he]  the
    45  defendant was convicted, or a total period of six years, whichever peri-
    46  od of time expires first.
    47    §  8.  All  provisions  of  this  act shall apply retroactively to all
    48  people in the custody of  the  commissioner  of  mental  health  or  the
    49  commissioner of the office for people with developmental disabilities at
    50  the  time  this act takes effect, and all time periods set forth in this
    51  act shall apply to each such person beginning when the person was  first
    52  in  the custody of the commissioner of mental health or the commissioner
    53  of the office for people with developmental disabilities.
    54    § 9. This act shall take effect on the thirtieth day  after  it  shall
    55  have become a law.