S T A T E   O F   N E W   Y O R K
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                                  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:

  Section  1.  Section 330.20 of the criminal procedure law, as added by
chapter 548 of the laws of 1980, paragraph (o)  of  subdivision  1,  the
closing  paragraph  of  subdivision  2  and  subdivisions  7-a and 22 as
amended by chapter 107 of the laws of 2004, subdivisions  2  and  20  as
amended  by  chapter  693 of the laws of 1989, subdivisions 5, 8, 9, 10,
11, 12, 13 and 14 as amended by chapter 789 of the laws of 1985,  subdi-
vision  21 as added by chapter 976 of the laws of 1983, and subparagraph
(ii) of paragraph (a) of subdivision 21 as amended by chapter 330 of the
laws of 1993, is amended to read as follows:
S 330.20 Procedure following verdict  or  plea  of  not  responsible  by
             reason of mental disease or defect.
  1.  Definition  of terms. As used in this section, the following terms
shall have the following meanings:
  (a) "Commissioner" means the [state] commissioner of mental health  or
the  [state]  commissioner  of  [mental  retardation  and] developmental
[disability] DISABILITIES.
  (b) "Secure facility" means a facility within the  [state]  office  of
mental  health  or  the  [state]  office [of mental retardation and] FOR
PEOPLE WITH developmental disabilities which is staffed  with  personnel
adequately trained in security methods and is so equipped as to minimize
the risk or danger of escapes, and which has been so specifically desig-
nated by the commissioner.
  (c)  "Dangerous mental disorder" means: (i) that a defendant currently
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

twenty  of section 1.03 of the mental hygiene law, and (ii) that because
of such condition he currently constitutes a physical danger to  himself
OR HERSELF or others.
  (d)  "Mentally  ill"  means  that a defendant currently suffers from a
mental illness for which care and treatment as a patient, in the  in-pa-
tient  services  of  a  psychiatric center under the jurisdiction of the
[state] office of  mental  health,  is  essential  to  such  defendant's
welfare  and  that  his OR HER judgment is so impaired that he OR SHE is
unable to understand the need for such care and treatment; and, where  a
defendant is mentally retarded, the term "mentally ill" shall also mean,
for  purposes of this section, that the defendant is in need of care and
treatment as a resident in the in-patient services  of  a  developmental
center  or  other  residential  facility  for  the mentally retarded and
developmentally disabled under the jurisdiction of  the  [state]  office
[of mental retardation and] FOR PEOPLE WITH developmental disabilities.
  (e)  "Examination  order"  means an order directed to the commissioner
requiring that a defendant submit to a psychiatric examination to deter-
mine whether the defendant has a dangerous mental disorder, or if he  OR
SHE  does  not  have  A  dangerous mental disorder, whether he OR SHE is
mentally ill.
  (f) "Commitment  order"  [or  "recommitment  order"]  means  an  order
committing  a  defendant to the custody of the commissioner for confine-
ment in a secure facility for care and treatment [for  six  months  from
the date of the order].
  (g)  "First  retention order" means an order which is effective at the
expiration of the period prescribed in a commitment  order  [for]  OR  a
recommitment  order, authorizing continued custody of a defendant by the
commissioner for a period not to exceed one year.
  (h) "Second retention order" means an order which is effective at  the
expiration  of the period prescribed in a first retention order, author-
izing continued custody of a defendant by the commissioner for a  period
not to exceed two years.
  (i)  "Subsequent retention order" means an order which is effective at
the expiration of the period prescribed in a second retention order or a
prior subsequent retention order  authorizing  continued  custody  of  a
defendant by the commissioner for a period not to exceed two years.
  (j)  "Retention  order"  means  a  first  retention  order,  a  second
retention order or a subsequent retention order.
  (k) "Furlough order" means an  order  directing  the  commissioner  to
allow  a defendant in confinement pursuant to a commitment order, recom-
mitment order or retention order to temporarily leave the facility for a
period not exceeding fourteen  days,  [either]  with  [or  without]  the
constant supervision of one or more employees of the facility.
  (l)  "Transfer  order"  means  an  order directing the commissioner to
transfer a defendant from a secure facility  to  a  non-secure  facility
under the jurisdiction of the commissioner or to any non-secure facility
designated by the commissioner.
  (m)  "Release  order"  means  an  order  directing the commissioner to
terminate  a  defendant's  in-patient  status  without  terminating  the
commissioner's responsibility for the defendant.
  (n)  "Discharge  order"  means an order terminating an order of condi-
tions or unconditionally discharging a defendant from supervision  under
the provisions of this section.
  (o)  "Order  of  conditions"  means  an order directing a defendant to
comply with this prescribed treatment plan, or any other condition which
the court determines to be reasonably necessary or appropriate, and,  in

S. 5589                             3

addition,  where  a  defendant is in custody of the commissioner, not to
leave the facility without authorization. In  addition  to  such  condi-
tions,  when  determined  to  be reasonably necessary or appropriate, an
order  of conditions may be accompanied by a special order of conditions
set forth in a separate document requiring that the defendant: (i)  stay
away  from  the  home,  school,  business  or place of employment of the
victim or victims, or of any witness designated by the  court,  of  such
offense;  or  (ii)  refrain from harassing, intimidating, threatening or
otherwise interfering with the victim or victims of the offense and such
members of the family or household of such victim or victims as shall be
specifically named by the court in  such  special  order.  An  order  of
conditions  or special order of conditions shall be valid for five years
from the date of its issuance, except that, for good  cause  shown,  the
court may extend the period for an additional five years.
  (p) "District attorney" means the office which prosecuted the criminal
action  resulting in the verdict or plea of not responsible by reason of
mental disease or defect.
  (q) "Qualified psychiatrist" means a physician who (i) is a  diplomate
of  the  American board of psychiatry and neurology or is eligible to be
certified by that board; or (ii) is certified by the American osteopath-
ic board of neurology and psychiatry or is eligible to be  certified  by
that board.
  (r)  "Licensed  psychologist"  means  a  person who is registered as a
psychologist under article one hundred fifty-three of the education law.
  (s)  "Psychiatric  examiner"  means  a  qualified  psychiatrist  or  a
licensed  psychologist  who  has  been designated by the commissioner to
examine a defendant pursuant to this section, and such designee need not
be an employee of the department of mental hygiene.
  2. [Examination] SENTENCE; EXAMINATION order;  psychiatric  examiners.
Upon  entry  of a verdict of not responsible by reason of mental disease
or defect, or upon the acceptance of a plea of not responsible by reason
of mental disease or defect, the court must  immediately  (A)  IMPOSE  A
PERIOD  OF CONFINEMENT IN THE CUSTODY OF THE COMMISSIONER WHICH IS EQUAL
TO THE SENTENCE OF  IMPRISONMENT  SUCH  DEFENDANT  WOULD  HAVE  RECEIVED
PURSUANT  TO  ARTICLE  SEVENTY  OF THE PENAL LAW, UPON CONVICTION OF THE
CRIME WITH WHICH HE OR SHE WAS CHARGED; AND  (B)  issue  an  examination
order.  Upon  receipt of such order, the commissioner must designate two
qualified psychiatric examiners to conduct the  examination  to  examine
the  defendant. In conducting their examination, the psychiatric examin-
ers may employ any method which is accepted by  the  medical  profession
for  the examination of persons alleged to be suffering from a dangerous
mental disorder or to be mentally ill or retarded. The court may author-
ize a psychiatrist or psychologist retained by a defendant to be present
at such examination. The clerk of the court must promptly forward a copy
of the examination order to the mental hygiene legal  service  and  such
service  may  thereafter participate in all subsequent proceedings under
this section.
  In all subsequent proceedings under this section, [prior to the  issu-
ance of a special order of conditions,] the court shall consider whether
any  order  of  protection  had  been  issued  prior to a verdict of not
responsible by reason of mental disease or defect in the case, or  prior
to  the  acceptance  of  a  plea  of not responsible by reason of mental
disease or defect in the case.
  3. Examination order; place of examination. Upon issuing  an  examina-
tion  order, the court must, except as otherwise provided in this subdi-
vision, direct that the defendant be  committed  to  a  secure  facility

S. 5589                             4

designated  by  the commissioner as the place for such psychiatric exam-
ination. The sheriff must hold the defendant  in  custody  pending  such
designation  by  the commissioner, and when notified of the designation,
the sheriff must promptly deliver the defendant to such secure facility.
[When  the  defendant  is  not in custody at the time of such verdict or
plea, because he was previously released on bail or on his own  recogni-
zance, the court, in its discretion, may direct that such examination be
conducted  on  an  out-patient  basis, and at such time and place as the
commissioner shall designate. If, however, the commissioner informs  the
court  that  confinement  of the defendant is necessary for an effective
examination, the court must direct that the defendant be confined  in  a
facility  designated  by  the  commissioner  until  the  examination  is
completed.]
  4. Examination order,  duration.  Confinement  in  a  secure  facility
pursuant  to  an  examination  order shall be for a period not exceeding
thirty days, except that, upon  application  of  the  commissioner,  the
court  may  authorize confinement for an additional period not exceeding
thirty days when a longer period is necessary to complete  the  examina-
tion.  [If  the  initial  hearing  required  by  subdivision six of this
section has not commenced prior to the termination of  such  examination
period,  the  commissioner shall retain custody of the defendant in such
secure facility until custody is  transferred  to  the  sheriff  in  the
manner prescribed in subdivision six of this section.] During the period
of  such confinement, the physician in charge of the facility may admin-
ister or cause to  be  administered  to  the  defendant  such  emergency
psychiatric,  medical  or  other  therapeutic treatment as in his OR HER
judgment should be administered. [If the court  has  directed  that  the
examination  be conducted on an out-patient basis, the examination shall
be completed within thirty days after the defendant has  first  reported
to  the place designated by the commissioner, except that, upon applica-
tion of the commissioner, the court may extend such period for a reason-
able time if a longer period is necessary to complete the examination.]
  5. Examination order; reports. After he OR SHE has  completed  his  OR
HER examination of the defendant, each psychiatric examiner must prompt-
ly prepare a report of his OR HER findings and evaluation concerning the
defendant's  mental condition, and submit such report to the commission-
er. If the psychiatric examiners differ in their opinion as  to  whether
the  defendant  is  mentally ill or is suffering from a dangerous mental
disorder, the commissioner must designate another  psychiatric  examiner
to  examine  the defendant. Upon receipt of the examination reports, the
commissioner must submit them to the court that issued  the  examination
order.  If the court is not satisfied with the findings of these psychi-
atric examiners, the court may designate one or more additional  psychi-
atric  examiners  pursuant to subdivision fifteen of this section.  [The
court must furnish a copy of the reports to the district attorney, coun-
sel for the defendant and the mental hygiene legal service.]
  6. [Initial hearing; commitment] COMMITMENT order. After the  examina-
tion  reports  are  submitted,  the  court must[, within ten days of the
receipt of such reports, conduct an initial  hearing  to  determine  the
defendant's present mental condition. If the defendant is in the custody
of  the  commissioner  pursuant  to an examination order, the court must
direct the sheriff to obtain custody of the defendant from  the  commis-
sioner  and to confine the defendant pending further order of the court,
except that the court may direct the sheriff to confine the defendant in
an institution located near the place  where  the  court  sits  if  that
institution  has been designated by the commissioner as suitable for the

S. 5589                             5

temporary and secure detention of mentally  disabled  persons.  At  such
initial  hearing,  the district attorney must establish to the satisfac-
tion of the court that the defendant has a dangerous mental disorder  or
is  mentally  ill. If the court finds that the defendant has a dangerous
mental disorder, it must] issue a commitment order FOR THE TERM  OF  THE
PERIOD  OF CONFINEMENT IMPOSED, PURSUANT TO PARAGRAPH (A) OF SUBDIVISION
TWO OF THIS SECTION, AND TO SUCH A SECURE FACILITY AS SHALL BE  SUITABLE
FOR  A MENTALLY ILL PERSON OR A PERSON WITH A DANGEROUS MENTAL DISORDER,
AS THE CASE MAY BE, BASED UPON THE EXAMINATION REPORTS.   [If the  court
finds  that  the defendant does not have a dangerous mental disorder but
is mentally ill, the provisions of subdivision  seven  of  this  section
shall apply.]
  7.  [Initial  hearing civil commitment and order of conditions. If, at
the conclusion of the initial hearing conducted pursuant to  subdivision
six  of this section, the court finds that the defendant is mentally ill
but does not have a dangerous mental disorder, the provisions  of  arti-
cles nine or fifteen of the mental hygiene law shall apply at that stage
of  the proceedings and at all subsequent proceedings. Having found that
the defendant is mentally ill, the court must issue an order  of  condi-
tions  and  an  order  committing  the  defendant  to the custody of the
commissioner. The latter order shall be deemed an order made pursuant to
the mental hygiene law and not pursuant to  this  section,  and  further
retention,  conditional  release or discharge of such defendant shall be
in accordance with the provisions of the mental hygiene law. If, at  the
conclusion  of  the  initial hearing, the court finds that the defendant
does not have a dangerous mental disorder and is not mentally  ill,  the
court  must discharge the defendant either unconditionally or subject to
an order of conditions.
  7-a. Whenever the court issues a special order of conditions  pursuant
to this section, the commissioner shall make reasonable efforts to noti-
fy  the  victim or victims or the designated witness or witnesses that a
special order of conditions containing such provisions has been  issued,
unless  such victim or witness has requested that such notice should not
be provided.
  8.] First retention order. When a defendant is in the custody  of  the
commissioner  pursuant  to a commitment order, the commissioner must, at
least thirty days prior to the expiration of the  period  prescribed  in
the  order,  apply  to the court that issued the order, or to a superior
court in the county where the secure facility is located,  for  a  first
retention  order  or a release order. The commissioner must give written
notice of the application to the district attorney, the defendant, coun-
sel for the defendant,  and  the  mental  hygiene  legal  service.  Upon
receipt of such application, the court may, on its own motion, conduct a
hearing to determine whether the defendant has a dangerous mental disor-
der,  and  it  must conduct such hearing if a demand therefor is made by
the district attorney, the defendant, counsel for the defendant, or  the
mental  hygiene  legal service within ten days from the date that notice
of the application was given to them. If such a hearing is  held  on  an
application for retention, the commissioner must establish to the satis-
faction  of the court that the defendant has a dangerous mental disorder
or is mentally ill. The district attorney shall be  entitled  to  appear
and  present  evidence  at such hearing. If such a hearing is held on an
application for release, the district attorney  must  establish  to  the
satisfaction  of  the  court  that  the defendant has a dangerous mental
disorder or is mentally ill. If the court finds that the defendant has a
dangerous mental disorder it must issue a first retention order. If  the

S. 5589                             6

court  finds  that  the  defendant  is  mentally ill but does not have a
dangerous mental disorder, it must issue a first  retention  order  and,
pursuant  to  subdivision [eleven] TEN of this section, a transfer order
and  an  order of conditions. If the court finds that the defendant does
not have a dangerous mental disorder and is not mentally  ill,  it  must
issue a release order and an order of conditions pursuant to subdivision
[twelve] ELEVEN of this section.
  [9.] 8. Second and subsequent retention orders. When a defendant is in
the custody of the commissioner pursuant to a first retention order, the
commissioner  must,  at least thirty days prior to the expiration of the
period prescribed in the order, apply  to  the  court  that  issued  the
order,  or  to  a  superior  court  in  the county where the facility is
located, for a second retention order or a release  order.  The  commis-
sioner  must  give  written  notice  of  the application to the district
attorney, the defendant, counsel  for  the  defendant,  and  the  mental
hygiene  legal service. Upon receipt of such application, the court may,
on its own motion, conduct a hearing to determine whether the  defendant
has  a  dangerous mental disorder, and it must conduct such hearing if a
demand therefor is made by the district attorney, the defendant, counsel
for the defendant, or the mental hygiene legal service within  ten  days
from  the date that notice of the application was given to them. If such
a hearing is held on an application for retention, the commissioner must
establish to the satisfaction of the court  that  the  defendant  has  a
dangerous  mental  disorder  or  is  mentally ill. The district attorney
shall be entitled to appear and present evidence  at  such  hearing.  If
such  a  hearing  is  held  on  an application for release, the district
attorney must establish to  the  satisfaction  of  the  court  that  the
defendant  has  a  dangerous  mental disorder or is mentally ill. If the
court finds that the defendant has a dangerous mental disorder  it  must
issue a second retention order. If the court finds that the defendant is
mentally  ill  but  does  not  have a dangerous mental disorder, it must
issue a second retention order and, pursuant to subdivision [eleven] TEN
of this section, a transfer order and an order  of  conditions.  If  the
court finds that the defendant does not have a dangerous mental disorder
and  is  not mentally ill, it must issue a release order and an order of
conditions pursuant to subdivision [twelve] ELEVEN of this section. When
a defendant is in the custody of the commissioner prior to  the  expira-
tion  of  the  period prescribed in a second retention order, the proce-
dures set forth in  this  subdivision  for  the  issuance  of  a  second
retention order shall govern the application for and the issuance of any
subsequent retention order.
  [10.]  9.  Furlough  order.  The commissioner may apply for a furlough
order, pursuant to this subdivision, when a defendant is in his  OR  HER
custody  pursuant  to  a  [commitment  order,]  recommitment order[,] or
retention order and the commissioner is of  the  view  that,  consistent
with  the  public safety and welfare of the community and the defendant,
the clinical condition of the defendant warrants a granting of the priv-
ileges authorized by a furlough order. The application  for  a  furlough
order may be made to the court that issued the commitment order, or to a
superior  court  in the county where the secure facility is located. The
commissioner must give ten days written notice to the district attorney,
the defendant, counsel for the defendant, and the mental  hygiene  legal
service.  Upon  receipt  of  such application, the court may, on its own
motion, conduct a hearing to determine whether the application should be
granted, and must conduct such hearing if a demand therefor is  made  by
the  district  attorney.  If  the  court  finds  that  the issuance of a

S. 5589                             7

furlough order is consistent with the public safety and welfare  of  the
community  and  the  defendant,  and  that the clinical condition of the
defendant warrants a granting of the privileges authorized by a furlough
order,  the  court must grant the application and issue a furlough order
containing any terms and conditions that the court  deems  necessary  or
appropriate.  If the defendant fails to return to the secure facility at
the time specified in the furlough order, then, for purposes of subdivi-
sion [nineteen] EIGHTEEN of this section, he OR SHE shall be  deemed  to
have escaped.
  [11.] 10. Transfer order and order of conditions. The commissioner may
apply for a transfer order, pursuant to this subdivision, when a defend-
ant  is  in his OR HER custody pursuant to a retention order or a recom-
mitment order, and the commissioner is of the view  that  the  defendant
does  not  have a dangerous mental disorder or that, consistent with the
public safety and welfare of the community and the defendant, the  clin-
ical  condition  of  the  defendant  warrants his OR HER transfer from a
secure facility to a non-secure facility under the jurisdiction  of  the
commissioner or to any non-secure facility designated by the commission-
er.  The  application for a transfer order may be made to the court that
issued the order under which the defendant is then in custody, or  to  a
superior  court  in the county where the secure facility is located. The
commissioner must give ten days written notice to the district attorney,
the defendant, counsel for the defendant, and the mental  hygiene  legal
service.  Upon  receipt  of  such application, the court may, on its own
motion, conduct a hearing to determine whether the application should be
granted, and must conduct such hearing if the demand therefor is made by
the district attorney. At  such  hearing,  the  district  attorney  must
establish  to  the  satisfaction  of  the court that the defendant has a
dangerous mental disorder or that the issuance of a  transfer  order  is
inconsistent  with  the  public safety and welfare of the community. The
court must grant the application and issue a transfer order if the court
finds that the defendant does not have a dangerous mental  disorder,  or
if  the  court finds that the issuance of a transfer order is consistent
with the public safety and welfare of the community  and  the  defendant
and  that  the  clinical condition of the defendant, warrants his OR HER
transfer from a secure facility to a non-secure facility. A  court  must
also  issue a transfer order when, in connection with an application for
a first retention order pursuant to subdivision [eight]  SEVEN  of  this
section  or  a second or subsequent retention order pursuant to subdivi-
sion [nine] EIGHT of this section, it finds that a defendant is mentally
ill but does not have a dangerous mental disorder.    Whenever  a  court
issues a transfer order it must also issue an order of conditions.
  [12.]  11. Release order and order of conditions. The commissioner may
apply for a release order, pursuant to this subdivision, when a  defend-
ant  is in his OR HER custody pursuant to a retention order or recommit-
ment order, and the commissioner is of the view that  the  defendant  no
longer  has  a  dangerous mental disorder and is no longer mentally ill.
The application for a release order may be made to the court that issued
the order under which the defendant is then in custody, or to a superior
court in the county where the facility is located. The application  must
contain  a  description of the defendant's current mental condition, the
past course of treatment, a history of the  defendant's  conduct  subse-
quent  to  his  OR  HER commitment, a written service plan for continued
treatment which shall include the information specified  in  subdivision
(g) of section 29.15 of the mental hygiene law, and a detailed statement
of  the  extent  to  which supervision of the defendant after release is

S. 5589                             8

proposed. The commissioner must give ten  days  written  notice  to  the
district  attorney,  the  defendant,  counsel for the defendant, and the
mental hygiene legal service. Upon  receipt  of  such  application,  the
court must promptly conduct a hearing to determine the defendant's pres-
ent  mental  condition.    At  such  hearing, the district attorney must
establish to the satisfaction of the court  that  the  defendant  has  a
dangerous  mental  disorder  or is mentally ill. If the court finds that
the defendant has a dangerous mental disorder, it must deny the applica-
tion for a release order. If the court finds that the defendant does not
have a dangerous mental disorder but is mentally ill, it  must  issue  a
transfer  order  pursuant to subdivision [eleven] TEN of this section if
the defendant is then confined in a secure facility. If the court  finds
that  the defendant does not have a dangerous mental disorder and is not
mentally ill, it must grant the application and issue a release order. A
court must also issue a release order when, in connection with an appli-
cation for a first retention order pursuant to subdivision [eight] SEVEN
of this section or a second or subsequent retention  order  pursuant  to
subdivision  [nine]  EIGHT  of this section, it finds that the defendant
does not have a dangerous mental disorder and is not mentally ill. When-
ever a court issues a release order it  must  also  issue  an  order  of
conditions.  If  the court has previously issued a transfer order and an
order of conditions, it must issue a new order of conditions upon  issu-
ing  a release order. The order of conditions issued in conjunction with
a release order shall incorporate a written service plan prepared  by  a
psychiatrist  familiar with the defendant's case history and approved by
the court, and shall contain any conditions that the court determines to
be reasonably necessary or appropriate. It shall be  the  responsibility
of  the  commissioner  to determine that such defendant is receiving the
services specified in the written service plan and is complying with any
conditions specified in such plan and the order of conditions.
  [13.] 12. Discharge order. The commissioner may apply for a  discharge
order,  pursuant  to this subdivision, when a defendant has been contin-
uously on an out-patient status for three years or more  pursuant  to  a
release order, and the commissioner is of the view that the defendant no
longer has a dangerous mental disorder and is no longer mentally ill and
that  the  issuance  of  a discharge order is consistent with the public
safety and welfare of the community and the defendant.  The  application
for  a  discharge order may be made to the court that issued the release
order, or to a superior court in the county where the defendant is  then
residing.  The  commissioner  must  give  ten days written notice to the
district attorney, the defendant, counsel for  the  defendant,  and  the
mental  hygiene  legal  service.  Upon  receipt of such application, the
court may, on its own motion, conduct a hearing to determine whether the
application should be granted, and must conduct such hearing if a demand
therefor is made by the district attorney.  The  court  must  grant  the
application  and  issue  a  discharge  order if the court finds that the
defendant has been continuously on an out-patient status for three years
or more, that he OR SHE does not have a dangerous mental disorder and is
not mentally ill, and that  the  issuance  of  the  discharge  order  is
consistent  with  the public safety and welfare of the community and the
defendant.
  [14] 13.  Recommitment order. At any time during the period covered by
an order of conditions an application may be made by the commissioner or
the district attorney to the court that issued such order, or to a supe-
rior court in the county where the defendant is  then  residing,  for  a
recommitment  order when the applicant is of the view that the defendant

S. 5589                             9

has a dangerous mental disorder. The applicant must give written  notice
of  the application to the defendant, counsel for the defendant, and the
mental hygiene legal service, and if the applicant is  the  commissioner
he  OR  SHE  must  give  such  notice to the district attorney or if the
applicant is the district attorney he OR SHE must give  such  notice  to
the  commissioner. Upon receipt of such application the court must order
the defendant to appear before it for a  hearing  to  determine  if  the
defendant has a dangerous mental disorder. Such order may be in the form
of a written notice, specifying the time and place of appearance, served
personally  upon  the  defendant,  or  mailed  to  his OR HER last known
address, as the court may direct.  If the defendant fails to  appear  in
court as directed, the court [may] SHALL issue a warrant to an appropri-
ate peace officer directing him OR HER to take the defendant into custo-
dy  and  bring  him  OR  HER before the court. In such circumstance, the
court [may] SHALL direct that the defendant be confined in an  appropri-
ate  institution  located near the place where the court sits. The court
must conduct a hearing to determine whether the defendant has a  danger-
ous  mental  disorder. At such hearing, the applicant, whether he OR SHE
be the commissioner or the  district  attorney  must  establish  to  the
satisfaction  of  the  court  that  the defendant has a dangerous mental
disorder. If the applicant is the commissioner,  the  district  attorney
shall be entitled to appear and present evidence at such hearing; if the
applicant  is  the district attorney, the commissioner shall be entitled
to appear and present evidence at such hearing. If the court finds  that
the defendant has a dangerous mental disorder, it must issue a recommit-
ment  order.  When  a  defendant  is  in the custody of the commissioner
pursuant to a recommitment order, the procedures set forth  in  subdivi-
sions  SEVEN  AND  eight  [and nine] of this section for the issuance of
retention orders shall govern the application for and the issuance of  a
first   retention  order,  a  second  retention  order,  and  subsequent
retention orders.
  [15] 14.  Designation of psychiatric examiners.  If,  at  any  hearing
conducted under this section to determine the defendant's present mental
condition, the court is not satisfied with the findings of the psychiat-
ric examiners, the court may direct the commissioner to designate one or
more  additional  psychiatric examiners to conduct an examination of the
defendant and submit a report of their findings. In addition, the  court
may  on its own motion, or upon request of a party, may designate one or
more psychiatric examiners to examine the defendant and submit a  report
of  their  findings. The district attorney may apply to the court for an
order directing that the defendant submit to an examination by a psychi-
atric examiner designated by the district attorney, and such psychiatric
examiner may testify at the hearing.
  [16] 15.  Rehearing and review. Any defendant who is in the custody of
the commissioner pursuant to a [commitment order,] a retention order, or
a recommitment order, if dissatisfied with such order, may, within thir-
ty days after the making of such order, obtain a rehearing and review of
the proceedings and of such order in accordance with the  provisions  of
section 9.35 or 15.35 of the mental hygiene law.
  [17]  16.    Rights  of  defendants.  Subject  to  the limitations and
provisions of this section, a defendant committed to the custody of  the
commissioner  pursuant  to this section shall have the rights granted to
patients under the mental hygiene law.
  [18] 17.   Notwithstanding any  other  provision  of  law,  no  person
confined  by  reason  of  a  [commitment  order,]  recommitment order or
retention order to a secure  facility  may  be  discharged  or  released

S. 5589                            10

unless the commissioner shall deliver written notice, at least four days
excluding  Saturdays, Sundays and holidays, in advance of such discharge
or release to all of the following:
  (a) the district attorney.
  (b) the police department having jurisdiction of the area to which the
defendant is to be discharged or released.
  (c) any other person the court may designate.
  The notices required by this subdivision shall be given by the facili-
ty staff physician who was treating the defendant or, if unavailable, by
the  defendant's  treatment  team  leader, but if neither is immediately
available, notice must be given by some other  member  of  the  clinical
staff of the facility. Such notice must be given by any means reasonably
calculated to give prompt actual notice.
  [19]  18.  Escape from custody; notice requirements. If a defendant is
in the custody of the commissioner pursuant to  an  order  issued  under
this  section, and such defendant escapes from custody, immediate notice
of such escape shall be given by the department facility staff  to:  (a)
the  district  attorney, (b) the superintendent of state police, (c) the
sheriff of the county where the escape occurred, (d) the police  depart-
ment  having jurisdiction of the area where the escape occurred, (e) any
person the facility staff believes to be in  danger,  and  (f)  any  law
enforcement  agency  and any person the facility staff believes would be
able to apprise such endangered person that the  defendant  has  escaped
from  the  facility.  Such notice shall be given as soon as the facility
staff know that the defendant has escaped from the  facility  and  shall
include  such  information as will adequately identify the defendant and
the person or persons believed to be in danger and  the  nature  of  the
danger.  The  notices required by this subdivision shall be given by the
facility staff physician who was treating the defendant or, if  unavail-
able,  by the defendant's treatment team leader, but if neither is imme-
diately available, notice must be given by  some  other  member  of  the
clinical  staff  of the facility. Such notice must be given by any means
reasonably calculated to give prompt actual notice. The defendant may be
apprehended, restrained, transported to, and returned  to  the  facility
from  which he escaped by any peace officer, and it shall be the duty of
the officer to assist any representative of the commissioner to take the
defendant into custody upon the request of such representative.
  [20] 19.   Required affidavit. No  application  may  be  made  by  the
commissioner  under  this section without an accompanying affidavit from
at least one psychiatric examiner supportive of relief requested in  the
application,  which affidavit shall be served on all parties entitled to
receive the notice of application. Such affidavit shall  set  forth  the
defendant's clinical diagnosis, a detailed analysis of his or her mental
condition which caused the psychiatric examiner to formulate an opinion,
and  the opinion of the psychiatric examiner with respect to the defend-
ant. Any application submitted without the required affidavit  shall  be
dismissed by the court.
  [21]  20.  Appeals. (a) A party to proceedings conducted in accordance
with the provisions of this section may take an appeal to an  intermedi-
ate appellate court by permission of the intermediate appellate court as
follows:
  (i)  the  commissioner  may  appeal  from any release order, retention
order, transfer order, discharge order, order of conditions,  or  recom-
mitment order, for which he OR SHE has not applied;
  (ii)  a  defendant,  or the mental hygiene legal service on his or her
behalf, may appeal from any [commitment order,] retention order,  recom-

S. 5589                            11

mitment  order, or, if the defendant has obtained a rehearing and review
of any such order pursuant to  subdivision  [sixteen]  FIFTEEN  of  this
section,  from an order, not otherwise appealable as of right, issued in
accordance  with  the  provisions of section 9.35 or 15.35 of the mental
hygiene law authorizing continued retention under  the  original  order,
provided,  however, that a defendant who takes an appeal from a [commit-
ment order,] retention order, or recommitment order may not subsequently
obtain a rehearing and review of  such  order  pursuant  to  subdivision
[sixteen] FIFTEEN of this section;
  (iii)  the district attorney may appeal from any release order, trans-
fer order, discharge order, order  of  conditions,  furlough  order,  or
order  denying  an  application for a recommitment order which he OR SHE
opposed.
  (b) An aggrieved party may appeal from a final order of the intermedi-
ate appellate court to the court of appeals by permission of the  inter-
mediate  appellate  court  granted  before  application  to the court of
appeals, or by permission of the court of appeals upon  refusal  by  the
intermediate appellate court or upon direct application.
  (c)  An  appeal  taken under this subdivision shall be deemed civil in
nature, and shall be governed by the laws and rules applicable to  civil
appeals;  provided, however, that a stay of the order appealed from must
be obtained in accordance with the provisions of paragraph (d)  [hereof]
OF THIS SUBDIVISION.
  (d)  The  court  from  or  to  which  an  appeal is taken may stay all
proceedings to enforce the order appealed  from  pending  an  appeal  or
determination  on  a  motion  for  permission  to appeal, or may grant a
limited stay, except that only the court to which an appeal is taken may
vacate, limit, or  modify  a  stay  previously  granted.  If  the  order
appealed  from is affirmed or modified, the stay shall continue for five
days after service upon the appellant of  the  order  of  affirmance  or
modification  with  notice of its entry in the court to which the appeal
was taken. If a motion is made for permission to  appeal  from  such  an
order,  before  the  expiration of the five days, the stay, or any other
stay granted pending determination  of  the  motion  for  permission  to
appeal, shall:
  (i)  if  the  motion  is  granted,  continue until five days after the
appeal is determined; or
  (ii) if the motion is denied,  continue  until  five  days  after  the
movant is served with the order of denial with notice of its entry.
  [22]  21.  Any special order of conditions issued pursuant to subpara-
graph (i) or (ii) of paragraph (o) of subdivision one  of  this  section
shall  bear  in  a  conspicuous manner the term "special order of condi-
tions" and a copy shall be filed by the clerk  of  the  court  with  the
sheriff's  office in the county in which anyone intended to be protected
by such special order resides, or, if anyone intended to be protected by
such special order resides within a city, with the police department  of
such  city.    The  absence  of  language specifying that the order is a
"special order of conditions" shall not  affect  the  validity  of  such
order.  A copy of such special order of conditions may from time to time
be filed by the clerk of the court with any other police  department  or
sheriff's  office  having  jurisdiction of the residence, work place, or
school of anyone intended to be protected by such special order. A  copy
of  such  special  order  may  also  be  filed  by anyone intended to be
protected by such provisions at the  appropriate  police  department  or
sheriff's  office having jurisdiction. Any subsequent amendment or revo-
cation of such special order may be filed in the same manner as provided

S. 5589                            12

in this subdivision.   Such special order of  conditions  shall  plainly
state the date that the order expires.
  S  2. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a  law  and  shall  apply  to
criminal offenses committed on or after such date.