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

                                   196

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  M.  of  A.  WEINSTEIN  --  read once and referred to the
  Committee on Codes

AN ACT to amend the criminal procedure law and the mental  hygiene  law,
  in  relation  to  orders of observation for the purpose of determining
  incapacitation

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision 1 of section 730.40 of the criminal procedure
law, as amended by section 2 of part Q of chapter  56  of  the  laws  of
2012, is amended to read as follows:
  1. When a local criminal court, following a hearing conducted pursuant
to  subdivision  three  or  four  of  section 730.30 OF THIS ARTICLE, is
satisfied that the defendant is not an incapacitated person, the  crimi-
nal  action against him or her must proceed. If it is satisfied that the
defendant is an incapacitated person, or if no motion for such a hearing
is made, such court must issue a final or temporary order of observation
committing him or her to the custody of the commissioner  for  care  and
treatment in an appropriate institution for a period not to exceed nine-
ty  days from the date of the order, provided, however, that the commis-
sioner may designate an appropriate hospital for placement of a  defend-
ant  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. When a local crimi-
nal court accusatory instrument other than a felony complaint  has  been
filed  against  the  defendant,  such  court must issue a final order of
observation. When a felony complaint has been filed against the  defend-
ant,  such  court must issue a temporary order of observation committing
him or her to the custody of the commissioner for care and treatment  in
an  appropriate  institution or, upon the consent of the district attor-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD04891-01-3

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ney, committing him or her to the custody of the commissioner  for  care
and treatment on an out-patient basis, for a period not to exceed ninety
days  from  the date of such order, except that, with the consent of the
district  attorney,  it may issue a final order of observation. UPON THE
ISSUANCE OF A FINAL ORDER OF OBSERVATION, THE  DISTRICT  ATTORNEY  SHALL
IMMEDIATELY  TRANSMIT  TO  THE  COMMISSIONER,  IN  A  MANNER INTENDED TO
PROTECT THE CONFIDENTIALITY OF THE INFORMATION,  A  LIST  OF  NAMES  AND
CONTACT  INFORMATION OF PERSONS 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 CHAPTER 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.
  S 2. Subdivision 2 of section 730.40 of the criminal procedure law, as
amended  by  chapter  476  of  the  laws  of 2012, is amended to read as
follows:
  2. When a local criminal court has issued a final  order  of  observa-
tion,  it  must  dismiss  the  accusatory instrument filed in such court
against the defendant and  such  dismissal  constitutes  a  bar  to  any
further prosecution of the charge or charges contained in such accusato-
ry instrument.  When the defendant is in the custody of the commissioner
pursuant to a final order of observation, the commissioner [must] OR HIS
OR HER DESIGNEE, WHICH MAY INCLUDE THE DIRECTOR OF AN APPROPRIATE INSTI-
TUTION, immediately upon the discharge of the defendant, MUST certify to
such  court  that  he or she has complied with the notice provisions set
forth in PARAGRAPH (A) OF subdivision six  of  section  730.60  of  this
article.    When  the defendant is in the custody of the commissioner at
the expiration of the period prescribed in a temporary order of observa-
tion, the proceedings in the local criminal court that issued such order
shall terminate for all purposes  and  the  commissioner  must  promptly
certify  to such court and to the appropriate 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 felony
complaint filed against the defendant.
  S 3. Paragraphs (a) and (b) of subdivision 6 of section 730.60 of  the
criminal  procedure  law, paragraph (a) as amended by chapter 476 of the
laws of 2012, and paragraph (b) as added by chapter 549 of the  laws  of
1980, are amended to read as follows:
  (a) Notwithstanding any other provision of law, no person committed to
the custody of the commissioner pursuant to this article, or continuous-
ly thereafter retained in such custody, shall be discharged, released on
condition  or placed in any less secure facility or on any less restric-
tive 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 pursuant 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;
  (4) The police department having jurisdiction of the  area  where  the
facility is located;

A. 196                              3

  (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  [commis-
sioner's]  actual custody OF THE COMMISSIONER OR AN APPROPRIATE INSTITU-
TION, without proper 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.
  S 4. Subdivision 1 of section 730.50 of the criminal procedure law, as
amended  by  section  3  of part Q of chapter 56 of the laws of 2012, is
amended to read as follows:
  1. When a superior court, following a hearing  conducted  pursuant  to
subdivision  three  or four of section 730.30 of this article, is satis-
fied that the defendant is not an  incapacitated  person,  the  criminal
action  against  him  or  her  must proceed. If it is satisfied that the
defendant is an incapacitated person, or if no motion for such a hearing
is made, it must adjudicate him or her an incapacitated person, and must
issue a final order of observation or an order of commitment.  When  the
indictment  does  not  charge  a  felony  or when the defendant has been
convicted of an offense other than a felony, such court (a) must issue a
final order of observation committing the defendant to  the  custody  of
the  commissioner  for  care and treatment in an appropriate institution
for a period not to exceed ninety days from  the  date  of  such  order,
provided,  however,  that  the commissioner may designate an appropriate
hospital for placement of a defendant for whom a final order of observa-
tion has been issued, where such hospital is licensed by the  office  of
mental health and has agreed to accept, upon referral by the commission-
er,  defendants subject to final orders of observation issued under this
subdivision, and (b) must dismiss the indictment  filed  in  such  court
against  the  defendant,  and  such  dismissal  constitutes a bar to any
further prosecution of the charge or charges contained in  such  indict-
ment.  UPON  THE  ISSUANCE OF A FINAL ORDER OF OBSERVATION, THE DISTRICT
ATTORNEY SHALL IMMEDIATELY TRANSMIT TO THE  COMMISSIONER,  IN  A  MANNER
INTENDED  TO  PROTECT  THE CONFIDENTIALITY OF THE INFORMATION, A LIST OF
NAMES AND CONTACT INFORMATION OF PERSONS 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  CHAPTER  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. When the indictment  charges  a  felony  or  when  the
defendant  has  been  convicted  of  a felony, it must issue an order of
commitment committing the defendant to the custody of  the  commissioner
for  care  and  treatment  in  an  appropriate  institution or, upon the
consent of the district attorney, committing him or her to  the  custody
of  the commissioner for care and treatment on an out-patient basis, for
a period not to exceed one year from the date of such  order.  Upon  the
issuance of an order of commitment, the court must exonerate the defend-
ant's  bail  if  he  or she was previously at liberty on bail; provided,

A. 196                              4

however, that exoneration of bail is not required when  a  defendant  is
committed  to  the custody of the commissioner for care and treatment on
an out-patient basis. WHEN THE  DEFENDANT  IS  IN  THE  CUSTODY  OF  THE
COMMISSIONER  PURSUANT TO A FINAL ORDER OF OBSERVATION, THE COMMISSIONER
OR HIS OR HER DESIGNEE, WHICH MAY INCLUDE THE DIRECTOR OF AN APPROPRIATE
INSTITUTION, IMMEDIATELY UPON  THE  DISCHARGE  OF  THE  DEFENDANT,  MUST
CERTIFY  TO  SUCH  COURT  THAT  HE  OR  SHE HAS COMPLIED WITH THE NOTICE
PROVISIONS SET FORTH IN PARAGRAPH (A)  OF  SUBDIVISION  SIX  OF  SECTION
730.60 OF THIS ARTICLE.
  S  5.  Subdivision  (h) of section 29.11 of the mental hygiene law, as
added by chapter 549 of the laws of 1980, is amended to read as follows:
  (h) Notwithstanding any other provision of law, no person committed to
the custody of the commissioner of mental hygiene  pursuant  to  article
seven  hundred  thirty  of  the  criminal procedure law, or continuously
thereafter retained in such custody, shall be  discharged,  released  on
condition  or placed in any less secure facility or on any less restric-
tive 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  AS  DEFINED  IN
SECTION  730.10  OF  THE  CRIMINAL  PROCEDURE LAW, 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 PURSUANT TO A FINAL ORDER OF OBSER-
VATION 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;
  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 THE CRIMINAL PROCEDURE LAW 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;
  6. the attorney for the committed person, where the attorney shall  so
request; and
  7. any other person the court may designate.
  Said  notice  may  be given by any means reasonably calculated to give
prompt actual notice. The notice required by this subdivision shall also
be given immediately upon the departure of such  committed  person  from
the  [commissioner's] actual custody OF THE COMMISSIONER OR AN APPROPRI-
ATE INSTITUTION, without proper authorization. Nothing in this  subdivi-
sion  shall be construed to impair any other right or duty regarding any
notice or hearing contained in any other provision of law.
  S 6. This act shall take effect immediately.