S T A T E O F N E W Y O R K
________________________________________________________________________
8092
2019-2020 Regular Sessions
I N A S S E M B L Y
May 31, 2019
___________
Introduced by M. of A. JAFFEE -- (at request of the Office of Court
Administration) -- read once and referred to the Committee on Children
and Families
AN ACT to amend the family court act and the mental hygiene law, in
relation to the determination of capacity to stand trial in juvenile
delinquency proceedings in family court
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 1 of section 322.1 of the family court act, as
amended by chapter 566 of the laws of 1994, is amended to read as
follows:
1. At any proceeding under this article, the court must issue an order
that the respondent be examined as provided herein when it is of the
opinion that the respondent may be an incapacitated person. Notwith-
standing the provisions of this or any other law, the court may direct
that the examination be conducted on an outpatient basis [when]. IF the
respondent is [not] in custody at the time the court issues an order of
examination, THE EXAMINATION MAY BE CONDUCTED AT THE PLACE WHERE THE
RESPONDENT IS BEING HELD IN CUSTODY SO LONG AS NO REASONABLE ALTERNATIVE
OUTPATIENT SETTING IS AVAILABLE. The court shall order that two quali-
fied psychiatric examiners as defined in subdivision seven of section
730.10 of the criminal procedure law examine the respondent to determine
if he [is mentally ill, mentally retarded or developmentally disabled]
OR SHE MAY BE DIAGNOSED AS A PERSON WITH MENTAL ILLNESS OR AN INTELLEC-
TUAL OR DEVELOPMENTAL DISABILITY.
§ 2. Subdivision 4, paragraphs (a), (c) and (d) of subdivision 5 and
subdivisions 6 and 7 of section 322.2 of the family court act, subdivi-
sions 4, 6 and 7 and paragraph (c) of subdivision 5 as added by chapter
920 of the laws of 1982, paragraph (a) of subdivision 5 as amended by
section 69 of part WWW of chapter 59 of the laws of 2017, and paragraph
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09846-05-9
A. 8092 2
(d) of subdivision 5 as amended by chapter 41 of the laws of 2010, are
amended to read as follows:
4. If the court finds that there is probable cause to believe that the
respondent committed a misdemeanor, the respondent shall be committed to
the custody of the appropriate commissioner for a reasonable period not
to exceed ninety days. UNLESS THE COURT SPECIFIES THAT SUCH COMMITMENT
SHALL BE IN A RESIDENTIAL FACILITY, SUCH COMMISSIONER HAVING CUSTODY MAY
ARRANGE FOR TREATMENT IN AN APPROPRIATE FACILITY OR PROGRAM, INCLUDING
AN OUTPATIENT PROGRAM, IN ACCORDANCE WITH SUBDIVISION (E) OF SECTION
7.09 OR SUBDIVISION (C-1) OF SECTION 13.09 RESPECTIVELY, OF THE MENTAL
HYGIENE LAW. The court shall dismiss the petition on the issuance of the
order of commitment AND SUCH DISMISSAL SHALL CONSTITUTE A BAR TO FURTHER
PROSECUTION OF THE CHARGE OR CHARGES CONTAINED IN THE PETITION.
(a) If the court finds that there is probable cause to believe that
the respondent committed a felony, it shall order the respondent commit-
ted to the custody of the commissioner of mental health or the commis-
sioner of the office for people with developmental disabilities for an
initial period not to exceed one year from the date of such order.
UNLESS THE COURT SPECIFIES THAT SUCH COMMITMENT SHALL BE IN A RESIDEN-
TIAL FACILITY, SUCH COMMISSIONER HAVING CUSTODY MAY ARRANGE FOR TREAT-
MENT IN AN APPROPRIATE FACILITY OR PROGRAM, INCLUDING AN OUTPATIENT
PROGRAM, IN ACCORDANCE WITH SUBDIVISION (E) OF SECTION 7.09 OR SUBDIVI-
SION (C-1) OF SECTION 13.09 RESPECTIVELY, OF THE MENTAL HYGIENE LAW.
Such period may be extended annually upon further application to the
court by the commissioner having custody or his or her designee. Such
application must be made not more than sixty days prior to the expira-
tion of such period on forms that have been prescribed by the chief
administrator of the courts. At that time, the commissioner must give
written notice of the application to the respondent, the counsel repres-
enting the respondent and the mental hygiene legal service if the
respondent is at a residential facility. Upon receipt of such applica-
tion, the court must conduct a hearing to determine the issue of capaci-
ty. If, at the conclusion of a hearing conducted pursuant to this subdi-
vision, the court finds that the respondent is no longer incapacitated,
he or she shall be returned to the family court for further proceedings
pursuant to this article. If the court is satisfied that the respondent
continues to be incapacitated, the court shall authorize continued
custody of the respondent by the commissioner IN A FACILITY OR PROGRAM
for a period not to exceed one year. Such extensions shall not continue
beyond a reasonable period of time necessary to determine whether the
respondent will attain the capacity to proceed to a fact finding hearing
in the foreseeable future but in no event shall continue beyond the
respondent's eighteenth birthday or, if the respondent was at least
sixteen years of age when the act was committed, beyond the respondent's
twenty-first birthday.
(c) If the court finds that there is probable cause to believe that
the respondent has committed a designated felony act, the court shall
require that treatment be provided in a residential facility within the
appropriate office of the department of mental hygiene OR IN AN OUTPA-
TIENT FACILITY IF THE COMMISSIONER HAVING CUSTODY OF THE CHILD PETITIONS
THE COURT PURSUANT TO SUBDIVISION SEVEN OF THIS SECTION AND SUCH COURT
APPROVES.
(d) The commissioner shall review the condition of the respondent
within forty-five days after the respondent is committed to the custody
of the commissioner. He or she shall make a second review within ninety
days after the respondent is committed to his or her custody. Thereaft-
A. 8092 3
er, he or she shall review the condition of the respondent every ninety
days. The respondent and the counsel for the respondent, shall be noti-
fied of any such review and afforded an opportunity to be heard. The
commissioner having custody shall apply to the court for an order
dismissing the petition whenever he or she determines that there is a
substantial probability that the respondent will continue to be incapac-
itated for the foreseeable future. At the time of such application the
commissioner must give written notice of the application to the respond-
ent, the presentment agency and the mental hygiene legal service if the
respondent is at a residential facility. Upon receipt of such applica-
tion, the court may on its own motion conduct a hearing to determine
whether there is substantial probability that the respondent will
continue to be incapacitated for the foreseeable future, and it must
conduct such hearing if a demand therefor is made by the respondent or
the mental hygiene legal service within ten days from the date that
notice of the application was given to them. The respondent may apply to
the court for an order of dismissal on the same ground.
6. Any order pursuant to this section dismissing a petition shall not
preclude an application for voluntary or involuntary care and treatment
in a facility OR PROGRAM of the appropriate office of the department of
mental hygiene pursuant to the provisions of the mental hygiene law.
Unless the respondent is admitted pursuant to such an application he OR
SHE shall be released.
7. If the commissioner having custody of a child committed to a resi-
dential facility PURSUANT TO SUBDIVISION FOUR OR PARAGRAPH (A) OF SUBDI-
VISION FIVE OF THIS SECTION determines at any time that such child may
be more appropriately treated in a non-residential facility OR ON AN
OUTPATIENT BASIS, he OR SHE MAY ARRANGE FOR SUCH TREATMENT. IF THE
COMMISSIONER HAVING CUSTODY OF A CHILD COMMITTED TO A RESIDENTIAL FACIL-
ITY PURSUANT TO PARAGRAPH (C) OF SUBDIVISION FIVE OF THIS SECTION DETER-
MINES AT ANY TIME THAT SUCH CHILD MAY BE MORE APPROPRIATELY TREATED IN A
NON-RESIDENTIAL FACILITY OR ON AN OUTPATIENT BASIS, HE OR SHE may peti-
tion the family court for a hearing. If the court finds after a hearing
that treatment in a non-residential facility OR ON AN OUTPATIENT BASIS
would be more appropriate for such child, the court shall modify its
order of commitment to [authorize] DIRECT THE COMMISSIONER TO transfer
[of such] THE child to a non-residential facility OR ARRANGE OUTPATIENT
TREATMENT. Application for [such] a hearing TO DETERMINE WHETHER ANY
CHILD COMMITTED TO A RESIDENTIAL FACILITY UNDER SUBDIVISIONS FOUR OR
FIVE OF THIS SECTION MAY BE MORE APPROPRIATELY TREATED IN A NON-RESIDEN-
TIAL FACILITY OR ON AN OUTPATIENT BASIS may be made by the respondent.
§ 3. Subdivision (e) of section 7.09 of the mental hygiene law, as
amended by chapter 920 of the laws of 1982 and as relettered by chapter
509 of the laws of 1988, is amended to read as follows:
(e) The commissioner shall accept custody of a juvenile under an order
issued by the family court pursuant to the provisions of section 322.2
of the family court act. He OR SHE may place the juvenile in any appro-
priate facility or program under his OR HER jurisdiction, but he OR SHE
shall comply with any order requiring treatment in a residential facili-
ty made pursuant to paragraph (c) of subdivision five of section 322.2
of the family court act, UNLESS, AFTER A HEARING HELD IN ACCORDANCE WITH
SUBDIVISION SEVEN OF SECTION 322.2 OF THE FAMILY COURT ACT, THE COURT
MODIFIES THE ORDER. In determining the appropriate placement, the
commissioner shall be furnished with a copy of the findings of the court
pursuant to subdivision four or five of section 322.2 of the family
court act and shall consider the nature of the act alleged in such find-
A. 8092 4
ings and the level of the juvenile's mental disability. The commissioner
shall review the condition of the juvenile in accordance with the
requirements of section 322.2 of the family court act and he OR SHE may
petition the family court at any time for any relief authorized by such
section.
§ 4. Subdivision (c) of section 13.09 of the mental hygiene law, as
amended by chapter 920 of the laws of 1982, is amended to read as
follows:
[(c)] (C-1) The commissioner shall accept custody of a juvenile under
an order issued by the family court pursuant to the provisions of
section 322.2 of the family court act. He OR SHE may place the juvenile
in any appropriate facility or program under his OR HER jurisdiction,
but he OR SHE shall comply with any order requiring treatment in a resi-
dential facility made pursuant to paragraph (c) of subdivision five of
section 322.2 of the family court act, UNLESS, AFTER A HEARING HELD IN
ACCORDANCE WITH SUBDIVISION SEVEN OF SECTION 322.2 OF THE FAMILY COURT
ACT, THE COURT MODIFIES THE ORDER. In determining the appropriate place-
ment, the commissioner shall be furnished with a copy of the findings of
the court pursuant to subdivision four or five of section 322.2 of the
family court act and shall consider the nature of the act alleged in
such findings and the level of the juvenile's mental disability. The
commissioner shall review the condition of the juvenile in accordance
with the requirements of section 322.2 of the family court act and he OR
SHE may petition the family court at any time for any relief authorized
by such section.
§ 5. This act shall take effect on the ninetieth day after it shall
have become a law; provided, however, that the amendments made to para-
graph (a) of subdivision 5 of section 322.2 of the family court act made
by section two of this act shall take effect on the same date and in the
same manner as section 69 of part WWW of chapter 59 of the laws of 2017,
takes effect.