3. "Commissioner" means the state commissioner of THE OFFICE OF mental
health or the state commissioner of [mental retardation and] develop-
mental disabilities.
4. "Director" means (a) the director of a state hospital operated by
the office of mental health or the director of a developmental center
operated by the office [of mental retardation and] FOR PEOPLE WITH
developmental disabilities, or (b) the director of a hospital operated
by any local government of the state that has been certified by the
commissioner as having adequate facilities to examine a defendant to
determine if he OR SHE is an incapacitated person, or (c) the director
of community [mental health] services UNDER ARTICLE FORTY-ONE OF THE
MENTAL HYGIENE LAW.
5. "Qualified psychiatrist" means a physician LICENSED UNDER ARTICLE
ONE HUNDRED THIRTY-ONE OF THE EDUCATION LAW who:
(a) is a diplomate of the American board of psychiatry and neurology
or is eligible to be certified by that board; or,
(b) is certified by the American osteopathic board of neurology and
psychiatry or is eligible to be certified by that board.
6. "[Certified psychologist] PSYCHOLOGIST" means a person who is
[registered] LICENSED as a [certified] psychologist under article one
hundred fifty-three of the education law.
7. "LICENSED CLINICAL SOCIAL WORKER" MEANS A PERSON WHO IS LICENSED AS
A LICENSED CLINICAL SOCIAL WORKER UNDER ARTICLE ONE HUNDRED FIFTY-FOUR
OF THE EDUCATION LAW.
8. "QUALIFIED NURSE PRACTITIONER" MEANS A PERSON WHO IS CERTIFIED AS A
NURSE PRACTITIONER UNDER ARTICLE ONE HUNDRED THIRTY-NINE OF THE EDUCA-
TION LAW WITHIN THE SPECIALTY AREA OF PSYCHIATRY.
9. "Psychiatric examiner" means a qualified psychiatrist [or a certi-
fied], A psychologist, A LICENSED CLINICAL SOCIAL WORKER OR A QUALIFIED
NURSE PRACTITIONER who has been designated by a director to examine a
defendant pursuant to an order of examination.
[8.] 10. "Examination report" means a report made by a psychiatric
examiner wherein he OR SHE sets forth [his] SUCH EXAMINER'S opinion as
to whether the defendant is or is not an incapacitated person, the
nature and extent of [his] THE examination and, if [he] THE EXAMINER
finds that the defendant is an incapacitated person, [his] SUCH EXAMIN-
ER'S diagnosis and prognosis and a detailed statement of the reasons for
[his] SUCH opinion by making particular reference to those aspects of
the proceedings wherein the defendant lacks capacity to understand or to
assist in his OR HER own defense. The state administrator and the
commissioner must jointly adopt the form of the examination report; and
the state administrator shall prescribe the number of copies thereof
that must be submitted to the court by the director.
[9.] 11. "Appropriate institution" means: (a) a hospital operated by
the office of mental health or a developmental center operated by the
office for people with developmental disabilities; or (b) a hospital
licensed by the department of health which operates a psychiatric unit
licensed by the office of mental health, as determined by the commis-
sioner provided, however, that any such hospital that is not operated by
the state shall qualify as an "appropriate institution" only pursuant to
the terms of an agreement between the commissioner and the hospital.
Nothing in this article shall be construed as requiring a hospital to
consent to providing care and treatment to an incapacitated person at
such hospital.
S 2. Section 730.20 of the criminal procedure law, subdivisions 1 and
5 as amended by chapter 693 of the laws of 1989 and subdivision 7 as
A. 6563 3
amended by chapter 692 of the laws of 1972, is amended to read as
follows:
S 730.20 Fitness to proceed; generally.
1. The appropriate director to whom a criminal court issues an order
of examination must be determined in accordance with rules jointly
adopted by the judicial conference and the commissioner. Upon receipt
of an examination order, the director must designate two qualified
psychiatric examiners, of whom he OR SHE may be one, to examine the
defendant to determine if he OR SHE is an incapacitated person. In
conducting their examination, the psychiatric examiners may employ any
method which is accepted by the medical profession for the examination
of persons alleged to be mentally ill or [mentally defective] DEVELOP-
MENTALLY DISABLED. The court may authorize a psychiatrist [or],
psychologist, LICENSED CLINICAL SOCIAL WORKER OR QUALIFIED NURSE PRACTI-
TIONER retained by the defendant to be present at such examination.
2. When the defendant is not in custody at the time a court issues an
order of examination, because he OR SHE was theretofore released on bail
or on his OR HER own recognizance, the court may direct that the exam-
ination be conducted on an out-patient basis, and at such time and place
as the director shall designate. If, however, the director informs the
court that hospital confinement of the defendant is necessary for an
effective examination, the court may direct that the defendant be
confined in a hospital designated by the director until the examination
is completed.
3. When the defendant is in custody at the time a court issues an
order of examination, the examination must be conducted at the place
where the defendant is being held in custody. If, however, the director
determines that hospital confinement of the defendant is necessary for
an effective examination, the sheriff must deliver the defendant to a
hospital designated by the director and hold [him] THE DEFENDANT in
custody therein, under sufficient guard, until the examination is
completed.
4. Hospital confinement under subdivisions two and three shall be for
a period not exceeding thirty days, except that, upon application of the
director, the court may authorize confinement for an additional period
not exceeding thirty days if it is satisfied that a longer period is
necessary to complete the examination. During the period of hospital
confinement, the physician in charge of the hospital may administer 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.
5. Each psychiatric examiner, after he OR SHE has completed his OR
HER examination of the defendant, must promptly prepare an examination
report and submit it to the director. If the psychiatric examiners are
not unanimous in their opinion as to whether the defendant is or is not
an incapacitated person, the director must designate another qualified
psychiatric examiner to examine the defendant to determine if he OR SHE
is an incapacitated person. Upon receipt of the examination reports,
the director must submit them to the court that issued the order of
examination. The court must furnish a copy of the reports to counsel
for the defendant and to the district attorney.
6. When a defendant is subjected to examination pursuant to an order
issued by a criminal court in accordance with this article, any state-
ment made by [him] SUCH DEFENDANT for the purpose of the examination or
treatment shall be inadmissible in evidence against [him] SUCH DEFENDANT
in any criminal action on any issue other than that of his OR HER mental
A. 6563 4
condition, but such statement is admissible upon that issue whether or
not it would otherwise be deemed a privileged communication.
7. A psychiatric examiner is entitled to his OR HER reasonable trav-
eling expenses, a fee of fifty dollars for each examination of a defend-
ant and a fee of fifty dollars for each appearance at a court hearing or
trial but not exceeding two hundred dollars in fees for examination and
testimony in any one case; except that if such psychiatric examiner be
an employee of the state of New York he OR SHE shall be entitled only to
reasonable traveling expenses, unless such psychiatric examiner makes
the examination or appears at a court hearing or trial outside his OR
HER hours of state employment in a county in which the director of
community [mental health] services certifies to the fiscal officer ther-
eof that there is a shortage of qualified [psychiatrists] PSYCHIATRIC
EXAMINERS available to conduct examinations under the criminal procedure
law in such county, in which event he OR SHE shall be entitled to the
foregoing fees and reasonable traveling expenses. Such fees and travel-
ing expenses and the costs of sending a defendant to another place of
detention or to a hospital for examination, of his OR HER maintenance
therein and of returning [him] SUCH DEFENDANT shall, when approved by
the court, be a charge of the county in which the defendant is being
tried.
S 3. Subdivision 1 of section 730.30 of the criminal procedure law is
amended to read as follows:
1. At any time after a defendant is arraigned upon an accusatory
instrument other than a felony complaint and before the imposition of
sentence, or at any time after a defendant is arraigned upon a felony
complaint and before he OR SHE is held for the action of the grand jury,
the court wherein the criminal action is pending must issue an order of
examination when it is of the opinion that the defendant may be an inca-
pacitated person.
S 4. Subdivision 5 of section 730.40 of the criminal procedure law is
amended to read as follows:
5. When an indictment is timely filed against the defendant after the
issuance of a temporary order of observation or after the expiration of
the period prescribed in such order, the superior court in which such
indictment is filed must direct the sheriff to take custody of the
defendant at the institution in which he OR SHE is confined and bring
him OR HER before the court for arraignment upon the indictment. After
the defendant is arraigned upon the indictment, such temporary order of
observation or any order issued pursuant to the mental hygiene law after
the expiration of the period prescribed in the temporary order of obser-
vation shall be deemed nullified. Notwithstanding any other provision of
law, an indictment filed in a superior court against a defendant for a
crime charged in the felony complaint is not timely for the purpose of
this subdivision if it is filed more than six months after the expira-
tion of the period prescribed in a temporary order of observation issued
by a local criminal court wherein such felony complaint was pending. An
untimely indictment must be dismissed by the superior court unless such
court is satisfied that there was good cause for the delay in filing
such indictment.
S 5. Subdivisions 2, 3, 4 and 5 of section 730.50 of the criminal
procedure law, subdivision 2 as amended by chapter 789 of the laws of
1985 and subdivision 5 as amended by chapter 629 of the laws of 1974,
are amended to read as follows:
2. When a defendant is in the custody of the commissioner immediately
prior to the expiration of the period prescribed in a temporary order of
A. 6563 5
commitment and the superintendent of the institution wherein the defend-
ant is confined is of the opinion that the defendant continues to be an
incapacitated person, such superintendent must apply to the court that
issued such order for an order of retention. Such application must be
made within sixty days prior to the expiration of such period on forms
that have been jointly adopted by the judicial conference and the
commissioner. The superintendent must give written notice of the appli-
cation to the defendant and to the mental hygiene legal service. Upon
receipt of such application, the court may, on its own motion, conduct a
hearing to determine the issue of capacity, and it must conduct such
hearing if a demand therefor is made by the defendant or the mental
hygiene legal service within ten days from the date that notice of the
application was given them. If, at the conclusion of a hearing conducted
pursuant to this subdivision, the court is satisfied that the defendant
is no longer an incapacitated person, the criminal action against him
must proceed. If it is satisfied that the defendant continues to be an
incapacitated person, or if no demand for a hearing is made, the court
must adjudicate him OR HER AS an incapacitated person and must issue an
order of retention which shall authorize continued custody of the
defendant by the commissioner for a period not to exceed one year.
3. When a defendant is in the custody of the commissioner immediately
prior to the expiration of the period prescribed in the first order of
retention, the procedure set forth in subdivision two OF THIS SECTION
shall govern the application for and the issuance of any subsequent
order of retention, except that any subsequent orders of retention must
be for periods not to exceed two years each; provided, however, that the
aggregate of the periods prescribed in the temporary order of commit-
ment, the first order of retention and all subsequent orders of
retention must not exceed two-thirds of the authorized maximum term of
imprisonment for the highest class felony charged in the indictment or
for the highest class felony of which he OR SHE was convicted.
4. When a defendant is in the custody of the commissioner at the expi-
ration of the authorized period prescribed in the last order of
retention, the criminal action pending against him OR HER in the superi-
or court that issued such order shall terminate for all purposes, and
the commissioner must promptly certify to such court and to the appro-
priate district attorney that the defendant was in his OR HER custody on
such expiration date. Upon receipt of such certification, the court must
dismiss the indictment, and such dismissal constitutes a bar to any
further prosecution of the charge or charges contained in such indict-
ment.
5. When, on the effective date of this subdivision, any defendant
remains in the custody of the commissioner pursuant to an order issued
under former code of criminal procedure section six hundred sixty-two-b,
the superintendent or director of the institution where such defendant
is confined shall, if he OR SHE believes that the defendant continues to
be an incapacitated person, apply forthwith to a court of record in the
county where the institution is located for an order of retention. The
procedures for obtaining any order pursuant to this subdivision shall be
in accordance with the provisions of subdivisions two, three and four of
this section, except that the period of retention pursuant to the first
order obtained under this subdivision shall be for not more than one
year and any subsequent orders of retention must be for periods not to
exceed two years each; provided, however, that the aggregate of the time
spent in the custody of the commissioner pursuant to any order issued in
accordance with the provisions of former code of criminal procedure
A. 6563 6
section six hundred sixty-two-b and the periods prescribed by the first
order obtained under this subdivision and all subsequent orders of
retention must not exceed two-thirds of the authorized maximum term of
imprisonment for the highest class felony charged in the indictment or
the highest class felony of which he OR SHE was convicted.
S 6. Section 730.60 of the criminal procedure law, subdivisions 1 and
3 as amended by chapter 231 of the laws of 2008, subdivision 2 as
amended by chapter 57 of the laws of 1984, subdivisions 4 and 5 as
renumbered by chapter 629 of the laws of 1974, subdivision 6 as added by
chapter 549 of the laws of 1980 and paragraphs (a) and (b) of subdivi-
sion 6 as amended by chapter 7 of the laws of 2013, is amended to read
as follows:
S 730.60 Fitness to proceed; procedure following custody by commission-
er.
1. When a local criminal court issues a final or temporary order of
observation or an order of commitment, it must forward such order and a
copy of the examination reports and the accusatory instrument to the
commissioner, and, if available, a copy of the pre-sentence report. Upon
receipt thereof, the commissioner must designate an appropriate institu-
tion operated by the department of mental hygiene in which the defendant
is to be placed, provided, however, that the commissioner may designate
an appropriate hospital for placement of a defendant for whom a final
order of observation has been issued, where such hospital is licensed by
the office of mental health and has agreed to accept, upon referral by
the commissioner, defendants subject to final orders of observation
issued under this subdivision. The sheriff must hold the defendant in
custody pending such designation by the commissioner, and when notified
of the designation, the sheriff must deliver the defendant to the super-
intendent of such institution. The superintendent must promptly inform
the appropriate director of the mental hygiene legal service of the
defendant's admission to such institution. If a defendant escapes from
the custody of the commissioner, the escape shall interrupt the period
prescribed in any order of observation, commitment or retention, and
such interruption shall continue until the defendant is returned to the
custody of the commissioner.
2. Except as otherwise provided in subdivisions four and five OF THIS
SECTION, when a defendant is in the custody of the commissioner pursuant
to a temporary order of observation or an order of commitment or an
order of retention, the criminal action pending against the defendant in
the court that issued such order is suspended until the superintendent
of the institution in which the defendant is confined determines that he
OR SHE is no longer an incapacitated person. In that event, the court
that issued such order and the appropriate district attorney must be
notified, in writing, by the superintendent of his OR HER determination.
The court must thereupon proceed in accordance with the provisions of
subdivision two of section 730.30 of this chapter; provided, however, if
the court is satisfied that the defendant remains an incapacitated
person, and upon consent of all parties, the court may order the return
of the defendant to the institution in which he OR SHE had been confined
for such period of time as was authorized by the prior order of commit-
ment or order of retention. Upon such return, the defendant shall have
all rights and privileges accorded by the provisions of this article.
3. When a defendant is in the custody of the commissioner pursuant to
an order issued in accordance with this article, the commissioner may
transfer him OR HER to any appropriate institution operated by the
department of mental hygiene, provided, however, that the commissioner
A. 6563 7
may designate an appropriate hospital for placement of a defendant for
whom a final order of observation has been issued, where such hospital
is licensed by the office of mental health and has agreed to accept,
upon referral by the commissioner, defendants subject to final orders of
observation issued under this section. The commissioner may discharge a
defendant in his OR HER custody under a final order of observation at
any time prior to the expiration date of such order, or otherwise treat
or transfer such defendant in the same manner as if he OR SHE were a
patient not in confinement under a criminal court order.
4. When a defendant is in the custody of the commissioner pursuant to
an order of commitment or an order of retention, he OR SHE may make any
motion authorized by this chapter which is susceptible of fair determi-
nation without his OR HER personal participation. If the court denies
any such motion it must be without prejudice to a renewal thereof after
the criminal action against the defendant has been ordered to proceed.
If the court enters an order dismissing the indictment and does not
direct that the charge or charges be resubmitted to a grand jury, the
court must direct that such order of dismissal be served upon the
commissioner.
5. When a defendant is in the custody of the commissioner pursuant to
an order of commitment or an order of retention, the superior court that
issued such order may, upon motion of the defendant, and with the
consent of the district attorney, dismiss the indictment when the court
is satisfied that (a) the defendant is a resident or citizen of another
state or country and that he OR SHE will be removed thereto upon
dismissal of the indictment, or (b) the defendant has been continuously
confined in the custody of the commissioner for a period of more than
two years. Before granting a motion under this subdivision, the court
must be further satisfied that dismissal of the indictment is consistent
with the ends of justice and that custody of the defendant by the
commissioner pursuant to an order of commitment or an order of retention
is not necessary for the protection of the public and that care and
treatment can be effectively administered to the defendant without the
necessity of such order. If the court enters an order of dismissal under
this subdivision, it must set forth in the record the reasons for such
action, and must direct that such order of dismissal be served upon the
commissioner. The dismissal of an indictment pursuant to this subdivi-
sion constitutes a bar to any further prosecution of the charge or
charges contained in such indictment.
6. (a) Notwithstanding any other provision of law, no person committed
to the custody of the commissioner pursuant to this article, or contin-
uously thereafter retained in such custody, shall be discharged,
released on condition or placed in any less secure facility or on any
less restrictive status, including, but not limited to vacations,
furloughs and temporary passes, unless the commissioner or his or her
designee, which may include the director of an appropriate institution,
shall deliver written notice, at least four days, excluding Saturdays,
Sundays and holidays, in advance of the change of such committed
person's facility or status, or in the case of a person committed pursu-
ant to a final order of observation written notice upon discharge of
such committed person, to all of the following:
(1) The district attorney of the county from which such person was
committed;
(2) The superintendent of state police;
(3) The sheriff of the county where the facility is located;
A. 6563 8
(4) The police department having jurisdiction of the area where the
facility is located;
(5) Any person who may reasonably be expected to be the victim of any
assault or any violent felony offense, as defined in the penal law, or
any offense listed in section 530.11 of this part which would be carried
out by the committed person; provided that the person who reasonably may
be expected to be a victim does not need to be a member of the same
family or household as the committed person; and
(6) Any other person the court may designate.
Said notice may be given by any means reasonably calculated to give
prompt actual notice.
(b) The notice required by this subdivision shall also be given imme-
diately upon the departure of such committed person from the actual
custody of the commissioner or an appropriate institution, without prop-
er authorization. Nothing in this subdivision shall be construed to
impair any other right or duty regarding any notice or hearing contained
in any other provision of law.
(c) Whenever a district attorney has received the notice described in
this subdivision, and the defendant is in the custody of the commission-
er pursuant to a final order of observation or an order of commitment,
he OR SHE may apply within three days of receipt of such notice to a
superior court, for an order directing a hearing to be held to determine
whether such committed person is a danger to himself, HERSELF or others.
Such hearing shall be held within ten days following the issuance of
such order. Such order may provide that there shall be no further change
in the committed person's facility or status until the hearing. Upon a
finding that the committed person is a danger to himself, HERSELF or
others, the court shall issue an order to the commissioner authorizing
retention of the committed person in the status existing at the time
notice was given hereunder, for a specified period, not to exceed six
months. The district attorney and the committed person's attorney shall
be entitled to the committed person's clinical records in the commis-
sioner's custody, upon the issuance of an order directing a hearing to
be held.
(d) Nothing in this subdivision shall be construed to impair any other
right or duty regarding any notice or hearing contained in any other
provision of law.
S 7. Section 730.70 of the criminal procedure law, as amended by chap-
ter 629 of the laws of 1974, is amended to read as follows:
S 730.70 Fitness to proceed; procedure following termination of custody
by commissioner.
When a defendant is in the custody of the commissioner on the expira-
tion date of a final or temporary order of observation or an order of
commitment, or on the expiration date of the last order of retention, or
on the date an order dismissing an indictment is served upon the commis-
sioner, the superintendent of the institution in which the defendant is
confined may retain him OR HER for care and treatment for a period of
thirty days from such date.
If the superintendent determines that the defendant is so mentally ill
or [mentally defective] DEVELOPMENTALLY DISABLED as to require continued
care and treatment in an institution, he OR SHE may, before the expira-
tion of such thirty day period, apply for an order of certification in
the manner prescribed in section 31.33 of the mental hygiene law.
S 8. This act shall take effect immediately.