S T A T E O F N E W Y O R K
________________________________________________________________________
3034
2013-2014 Regular Sessions
I N S E N A T E
January 28, 2013
___________
Introduced by Sen. NOZZOLIO -- read twice and ordered printed, and when
printed to be committed 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-
ney, committing him or her to the custody of the commissioner for care
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04891-01-3
S. 3034 2
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;
S. 3034 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,
S. 3034 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.
