S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5063
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               March 2, 2023
                                ___________
 
 Introduced  by  M.  of  A.  GUNTHER,  ZINERMAN,  KELLES -- 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 determining the capacity of a defendant to stand trial
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision 1 of section 730.10 of the  criminal  procedure
 law is amended to read as follows:
   1.  "Incapacitated person" means a defendant who as a result of mental
 disease or defect lacks capacity to understand the  proceedings  against
 [him] SUCH DEFENDANT or to assist in his OR HER own defense.
   § 2. Subdivision 8 of section 730.10 of the criminal procedure law, as
 separately  amended  by  chapters  615  and  629 of the laws of 1974, is
 amended to read as follows:
   8. "Examination report" means a report made by a psychiatric  examiner
 wherein  he  OR  SHE  sets  forth  his  OR HER opinion as to whether the
 defendant is or is not an incapacitated person, the nature and extent of
 his OR HER examination and, if he OR SHE finds that the defendant is  an
 incapacitated  person, his OR HER diagnosis and prognosis and a detailed
 statement of the reasons for his OR HER  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  REPORT  MUST  ALSO  STATE THE EXAMINER'S PROFESSIONAL OPINION AS TO
 WHETHER OR NOT THERE IS AT LEAST A REASONABLE EXPECTATION THAT  RESTORA-
 TION  SERVICES  COULD  HAVE  A  SUBSTANTIAL PROBABILITY OF RESTORING THE
 DEFENDANT TO COMPETENCE WITHIN A REASONABLE PERIOD OF  TIME.  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.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD04547-01-3
 A. 5063                             2
              

 
   § 3. Section 730.10 of the criminal procedure law is amended by adding
 a new subdivision 10 to read as follows:
   10.  "RESTORATION  SERVICES"  MEANS  THOSE  SERVICES INCLUDING BUT NOT
 LIMITED TO MEDICATION SUPPORT, CLASSROOM-BASED  COMPETENCY  INSTRUCTION,
 MOCK TRIALS, SYMPTOM MANAGEMENT, AND REHABILITATIVE SERVICES PROVIDED TO
 AN  INCAPACITATED PERSON WHICH ARE DESIGNED TO IMPROVE HIS OR HER MENTAL
 STATE OR DEVELOPMENTAL STATUS TO THE EXTENT THAT THEY CAN UNDERSTAND THE
 CHARGES AGAINST THEM AND PARTICIPATE IN THEIR OWN  DEFENSE.  RESTORATION
 SERVICES  ARE NOT INTENDED TO BE MENTAL HEALTH TREATMENT AIMED AT RECOV-
 ERY FROM MENTAL ILLNESS OR SERVICES AIMED AT IMPROVING A DEVELOPMENTALLY
 DISABLED PERSON'S ABILITY TO FUNCTION ON A DAY-TO-DAY BASIS.
   § 4. Section 730.20 of the criminal procedure law, subdivisions 1  and
 5  as  amended  by  chapter  693  of  the laws of 1989, subdivision 7 as
 amended by chapter 692 of the laws  of  1972,  is  amended  to  read  as
 follows:
 § 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 TO WHOM THE COURT HAS ISSUED AN
 ORDER must designate two qualified psychiatric examiners, of whom he  OR
 SHE  may  be  one,  to  examine  the  defendant to determine if [he] THE
 DEFENDANT is an incapacitated person. In conducting  their  examination,
 the  psychiatric  examiners  [may] SHALL employ [any] A method [which is
 accepted by the  medical  profession  for  the  examination  of  persons
 alleged to be mentally ill or mentally defective] AS SET FORTH IN STAND-
 ARDS  SET  BY THE COMMISSIONER TO DETERMINE IF THE DEFENDANT IS AN INCA-
 PACITATED PERSON.  The court may authorize a  psychiatrist  or  psychol-
 ogist 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]  THE  DEFENDANT  was  theretofore
 released on bail or on [his] THE DEFENDANT'S own recognizance, the court
 [may] SHALL direct that the examination be conducted on  an  out-patient
 basis,  and  at  such time and place as the director shall designate AND
 THE COURT SHALL ORDER THE DEFENDANT TO APPEAR FOR SUCH EXAMINATION.  If,
 however, the director informs the court that hospital confinement of the
 defendant is necessary for an effective examination, OR IF THE DEFENDANT
 REFUSES TO APPEAR AS ORDERED FOR THE EXAMINATION, the court  may  direct
 that  the  defendant be confined in a hospital [designated by the direc-
 tor] OPERATED OR APPROVED BY THE COMMISSIONER ONLY until the examination
 is completed. IN NO EVENT SHALL THE NEED FOR SUCH EXAMINATION BE A BASIS
 FOR INCARCERATING A DEFENDANT WHO HAS BEEN RELEASED ON BAIL  OR  HIS  OR
 HER OWN RECOGNIZANCE.
   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] COMMISSIONER and hold [him] THE
 DEFENDANT in custody therein, under sufficient guard, until the examina-
 tion is completed.
   4.  Hospital confinement under subdivisions two and three shall be for
 a period not exceeding [thirty] TEN days, except that, upon  application
 of  the  director, the court may authorize confinement for an additional
 period not exceeding [thirty] TEN days if it is satisfied that a  longer
 period  is necessary to complete the examination.  [During the period of
 A. 5063                             3

 hospital confinement, the physician in charge of the hospital may admin-
 ister or cause to  be  administered  to  the  defendant  such  emergency
 psychiatric,  medical  or other therapeutic treatment as in his judgment
 should be administered.]
   5.  Each psychiatric examiner, after [he has completed his] COMPLETING
 THE  examination  of  the defendant, must promptly prepare AND SUBMIT TO
 THE DIRECTOR an examination report  [and  submit  it  to  the  director]
 SETTING  FORTH  THE  EXAMINER'S OPINION AS TO WHETHER OR NOT THERE IS AT
 LEAST A REASONABLE EXPECTATION THAT RESTORATION SERVICES  COULD  HAVE  A
 SUBSTANTIAL  PROBABILITY OF RESTORING THE DEFENDANT TO COMPETENCE WITHIN
 A REASONABLE PERIOD OF TIME. If the psychiatric examiners are not unani-
 mous in their opinion as to whether the defendant is or is not an  inca-
 pacitated  person, the director must designate another qualified psychi-
 atric examiner to  examine  the  defendant  to  determine  if  [he]  THE
 DEFENDANT is an incapacitated person AND, IF SO, WHETHER OR NOT THERE IS
 AT LEAST A REASONABLE EXPECTATION THAT RESTORATION SERVICES COULD HAVE A
 SUBSTANTIAL  PROBABILITY OF RESTORING THE DEFENDANT TO COMPETENCE WITHIN
 A REASONABLE PERIOD OF TIME.  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]  SUCH
 DEFENDANT'S  mental  condition[,  but  such statement is admissible upon
 that issue whether or not it would  otherwise  be  deemed  a  privileged
 communication].
   7. A psychiatric examiner, WHO IS NOT REGULARLY EMPLOYED BY THE COUNTY
 OR THE STATE OF NEW YORK, is entitled to his OR HER reasonable traveling
 expenses[,  a]  AND TO A REASONABLE fee [of fifty dollars] TO BE NEGOTI-
 ATED WITH THE EXAMINER BY THE DIRECTOR OR THE COUNTY OR, IF NO SUCH  FEE
 IS AGREED UPON, TO BE SET BY THE COURT 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 COUNTY OR OF THE state of New York he OR SHE shall
 be entitled only to reasonable traveling expenses, unless such psychiat-
 ric  examiner  makes  the  examination  or appears at a court hearing or
 trial outside his OR HER hours of state OR COUNTY employment in a county
 in which the director of community [mental health] services certifies to
 the fiscal officer  thereof  that  there  is  a  shortage  of  qualified
 [psychiatrists]  EXAMINERS  available to conduct examinations under [the
 criminal procedure law] THIS CHAPTER in such county, in which event [he]
 SUCH EXAMINER shall be entitled to [the foregoing] SUCH fees and reason-
 able traveling expenses AS APPROVED BY THE COURT. 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 maintenance therein]
 and THE COST of returning [him] THE DEFENDANT shall, when  approved  AND
 SO  ORDERED by the court, be a charge of the county in which the defend-
 ant is being tried, AND THE COST OF THE MAINTENANCE  OF  SUCH  DEFENDANT
 THEREIN SHALL BE A COST TO THE STATE.
   §  5.  Section  730.30 of the criminal procedure law, subdivision 3 as
 amended by chapter 629 of the laws  of  1974,  is  amended  to  read  as
 follows:
 A. 5063                             4
 
 § 730.30 Fitness to proceed; order of examination.
   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,
 OR UPON ARRAIGNMENT ON AN INDICTMENT BY A GRAND JURY, the court  wherein
 the  criminal action is pending [must] MAY issue an order of examination
 when it [is of the opinion] HAS A REASONABLE BASIS TO BELIEVE  that  the
 defendant may be an incapacitated person.
   2.  When the examination reports submitted to the court show that each
 psychiatric  examiner  is  of  the  opinion that the defendant is not an
 incapacitated person, the court may, on its own motion, conduct a  hear-
 ing  to  determine  the issue of capacity, and it must conduct a hearing
 upon motion therefor by the defendant or by the  district  attorney.  If
 THE  COURT  DOES  NOT  DECIDE TO HOLD A HEARING ON ITS OWN MOTION AND no
 motion for a hearing is made, OR IF, FOLLOWING A HEARING  THE  COURT  IS
 SATISFIED  THAT THE DEFENDANT IS NOT AN INCAPACITATED PERSON, the crimi-
 nal action against the defendant must proceed. [If, following a hearing,
 the court is satisfied  that  the  defendant  is  not  an  incapacitated
 person,  the  criminal  action against him must proceed; if the court is
 not so satisfied, it must issue a further order of examination directing
 that the defendant be examined by different psychiatric examiners desig-
 nated by the director.]
   3. When the examination reports submitted to the court show that  each
 psychiatric examiner is of the opinion that the defendant is an incapac-
 itated  person  AND THAT THERE IS AT LEAST A REASONABLE EXPECTATION THAT
 RESTORATION SERVICES COULD HAVE A SUBSTANTIAL PROBABILITY  OF  RESTORING
 THE  DEFENDANT  TO  COMPETENCE  WITHIN  A REASONABLE PERIOD OF TIME, the
 court [may, on its own motion,] SHALL conduct a hearing to determine the
 issue of capacity [and it must conduct such hearing upon motion therefor
 by the defendant or by the district attorney].
   4. When the examination reports submitted to the court show  that  the
 psychiatric  examiners  are not unanimous in their opinion as to whether
 the defendant is or is not an incapacitated person[, or when  the  exam-
 ination  reports submitted to the superior court show that the psychiat-
 ric examiners are not unanimous in  their  opinion  as  to  whether  the
 defendant  is or is not a dangerous incapacitated person] AND THAT THERE
 IS AT LEAST A REASONABLE EXPECTATION  THAT  RESTORATION  SERVICES  COULD
 HAVE  A SUBSTANTIAL PROBABILITY OF RESTORING THE DEFENDANT TO COMPETENCE
 WITHIN A REASONABLE PERIOD OF TIME, the court must conduct a hearing  to
 determine  the  issue  of capacity [or dangerousness] AND EXPECTATION OF
 RESTORATION WITHIN A REASONABLE TIME.
   § 6. Subdivision 1 of section 730.40 of the criminal procedure law, as
 amended by chapter 7 of the laws of 2013, is amended to read as follows:
   1. When a local criminal court, following a hearing conducted pursuant
 to subdivision TWO, 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]  A  LOCAL  CRIMINAL
 COURT ACCUSATORY INSTRUMENT OTHER THAN A FELONY COMPLAINT HAS BEEN FILED
 AGAINST  THE  DEFENDANT AND THE COURT 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 commit-
 ting him or her to the custody of the commissioner for care  and  treat-
 ment  in  an  appropriate  institution for a period not to exceed ninety
 days from the date of the order, provided, however, that the commission-
 er may designate an appropriate hospital for placement  of  a  defendant
 A. 5063                             5

 for whom a final order of observation has been issued, where such hospi-
 tal 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 criminal court
 accusatory instrument other than  a  felony  complaint  has  been  filed
 against  the defendant,] such court must issue a final order of observa-
 tion. When a felony complaint has been filed against the defendant, such
 court must issue a temporary order of observation committing him or  her
 to  the custody of the commissioner for [care and treatment] RESTORATION
 SERVICES in an appropriate institution or,  [upon  the  consent  of  the
 district attorney] IN THE DISCRETION OF THE COURT, committing him or her
 to  the custody of the commissioner for care and treatment on an out-pa-
 tient basis, for a period not to exceed ninety days  from  the  date  of
 such order[, except that, with the consent of the district attorney,] OR
 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.
   §  7.  Section  730.50 of the criminal procedure law, subdivision 1 as
 amended by chapter 7 of the laws of 2013, subdivision 2  as  amended  by
 chapter 789 of the laws of 1985, subdivision 5 as amended by chapter 629
 of the laws of 1974, is amended to read as follows:
 § 730.50 Fitness to proceed; indictment.
   1.  When  a  superior court, following a hearing conducted pursuant to
 subdivision TWO, 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] AFTER A
 HEARING, THE COURT MAKES A FINDING that the defendant  is  an  incapaci-
 tated  person,  [or  if  no  motion for such a hearing is made] AND THAT
 THERE IS AT LEAST A REASONABLE  EXPECTATION  THAT  RESTORATION  SERVICES
 COULD  HAVE  A  SUBSTANTIAL  PROBABILITY  OF  RESTORING THE DEFENDANT TO
 COMPETENCE WITHIN A REASONABLE PERIOD OF TIME, it must adjudicate him or
 her an incapacitated person[, and must issue a final order  of  observa-
 tion  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 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], 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 indictment. 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 confi-
 dentiality of the information, a list of names and  contact  information
 A. 5063                             6
 
 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] AND THE COURT HAS DETERMINED THAT  THERE IS AT LEAST A REASON-
 ABLE EXPECTATION THAT RESTORATION  SERVICES  COULD  HAVE  A  SUBSTANTIAL
 PROBABILITY OF RESTORING THE DEFENDANT TO COMPETENCE WITHIN A REASONABLE
 PERIOD  OF  TIME,  it  must  issue an order of commitment committing the
 defendant to the custody of the commissioner [for care and treatment] TO
 RECEIVE RESTORATION SERVICES 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] NINETY DAYS  from  the  date  of  such
 order. Upon the issuance of an order of commitment, the court must exon-
 erate  the  defendant's  bail  if he or she was previously at liberty on
 bail; provided, 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] IN THE EVENT THAT THE  COURT  DETERMINES
 THERE  IS  NOT  A REASONABLE EXPECTATION THAT RESTORATION SERVICES COULD
 HAVE A SUBSTANTIAL PROBABILITY OF RESTORING THE DEFENDANT TO  COMPETENCE
 WITHIN  A  REASONABLE  PERIOD  OF  TIME  THE MATTER SHALL BE REFERRED TO
 SUPREME COURT FOR A HEARING  CONDUCTED  IN ACCORDANCE WITH SECTION  9.33
 OR 15.31 OF THE MENTAL HYGIENE LAW.
   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
 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 FOR AN ADDITIONAL PERIOD  OF
 NINETY  DAYS.    THE  COURT  MUST  HOLD A HEARING ON THIS APPLICATION TO
 DETERMINE IF THERE IS A SUBSTANTIAL PROBABILITY OF RECOVERY IN THE FORE-
 SEEABLE FUTURE. IF THE COURT DETERMINES THAT THERE  IS  SUCH  REASONABLE
 EXPECTATION  OF RESTORATION, IT SHALL ISSUE AN ORDER OF RETENTION FOR AN
 ADDITIONAL NINETY DAYS. IF THE COURT FINDS THAT THE DEFENDANT  IS  STILL
 INCAPACITATED  AND THERE IS NOT A SUBSTANTIAL PROBABILITY OF RESTORATION
 IN THE FORESEEABLE FUTURE, IT  SHALL  REFER  THE  MATTER  TO  THE  CIVIL
 SECTION OF THE SUPREME COURT IN THE COUNTY WHERE THE DEFENDANT'S CASE IS
 PENDING, FOR A HEARING PURSUANT TO ARTICLE NINE OR FIFTEEN OF THE MENTAL
 HYGIENE  LAW  TO  DETERMINE  IF  THE  DEFENDANT SHALL BE HOSPITALIZED OR
 OTHERWISE RETAINED ON AN INVOLUNTARY BASIS.  [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  FOR  SUCH ORDER to the defendant and to the mental hygiene legal
 service.  Upon receipt of such application, the court [may, on  its  own
 motion,]  SHALL  conduct  a hearing [to determine the issue of capacity,
 and it must conduct such hearing if a demand therefor  is  made  by  the
 A. 5063                             7

 defendant  or  the mental hygiene legal service within ten days from the
 date that notice of the application was given them. If, at  the  conclu-
 sion  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 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] PURSUANT TO THE PROVISIONS OF ARTICLE NINE OR FIFTEEN  OF  THE
 MENTAL HYGIENE LAW AND THE COURT SHALL ORDER THAT THE DEFENDANT SHALL BE
 MAINTAINED  IN  THE  CUSTODY  OF  THE  COMMISSIONER BUT TRANSFERRED TO A
 HOSPITAL OR OTHER APPROPRIATE INSTITUTION TO BE  INVOLUNTARILY  ADMITTED
 PURSUANT  TO  ARTICLE NINE  OR FIFTEEN OF THE MENTAL HYGIENE LAW SUBJECT
 TO THE RETENTION PROVISIONS OF SECTION  9.33  OR  15.31  OF  THE  MENTAL
 HYGIENE  LAW  EXCEPT  AS SPECIFICALLY PROVIDED HEREIN.  SUCH ORDER SHALL
 NOT BE DEEMED IN ANY WAY TO BE THE ORDER OF A CRIMINAL COURT.
   3. [When] BEFORE a defendant is [in] RELEASED FROM 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 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,] EITHER PURSUANT TO THIS SECTION OR PURSUANT TO ARTICLE NINE OR
 FIFTEEN  OF  THE  MENTAL  HYGIENE LAW, THE COURT SHALL HOLD A HEARING TO
 DETERMINE WHETHER OR NOT THE DEFENDANT CONTINUES TO BE AN  INCAPACITATED
 PERSON.  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 OR HER MUST
 PROCEED EXCEPT THAT THE COURT SHALL HAVE THE DISCRETION TO  DISMISS  THE
 CASE  IN  THE  INTERESTS  OF JUSTICE. IF, AT THE CONCLUSION OF A HEARING
 CONDUCTED PURSUANT TO THIS SUBDIVISION, THE COURT FINDS THAT THE DEFEND-
 ANT CONTINUES TO BE AN INCAPACITATED PERSON THEN THE COURT SHALL MAKE AN
 ORDER IN ACCORDANCE WITH SECTION 9.33 OR 15.31  OF  THE  MENTAL  HYGIENE
 LAW.  IN ANY CASE that the aggregate of periods prescribed in the tempo-
 rary order of commitment[, the first order of retention and  all  subse-
 quent  orders  of retention] AND ANY ORDER OF RETENTION PURSUANT TO THIS
 ARTICLE OR ARTICLE NINE OR FIFTEEN OF THE MENTAL HYGIENE  LAW  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 was convicted].
   4.  When  a  defendant is in the custody of the commissioner EITHER at
 the expiration of the authorized period prescribed in the last order  of
 retention  OR  ANY ORDER OF RETENTION ISSUED PURSUANT TO ARTICLE NINE OR
 FIFTEEN OF THE MENTAL HYGIENE LAW, the criminal action  pending  against
 him  OR HER in the superior 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 certif-
 ication,  the  court  must  dismiss  the  indictment, and such dismissal
 constitutes a bar to any further prosecution of the  charge  or  charges
 contained in such indictment.
   [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
 A. 5063                             8

 is confined shall, if he 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 proce-
 dures  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
 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 was convicted.]
   §  8. 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, paragraphs (a) and (b) of subdivision 6
 as amended by chapter 7 of the laws of  2013,  is  amended  to  read  as
 follows:
 § 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
 institution  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 defend-
 ant to the superintendent 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]  PENDING  FURTHER
 ORDER  OF  THE  COURT. IF 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
 A. 5063                             9
 
 proceed  in accordance with the provisions of subdivision two of section
 730.30 of this [chapter] ARTICLE; 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 commitment 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
 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, EITHER PURSUANT TO THIS
 ARTICLE OR PURSUANT TO ARTICLE NINE OR FIFTEEN  OF  THE  MENTAL  HYGIENE
 LAW,  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 subdivision 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 commit-
 ted to the custody of the commissioner  pursuant  to  this  article,  or
 continuously  thereafter  retained in such custody, shall be discharged,
 A. 5063                            10

 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;
   (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 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  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 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 commissioner's custody, upon the  issu-
 ance 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.]
   § 9. 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:
 § 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
 A. 5063                            11
 
 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 NO
 MORE  THAN  thirty  days  from  such date. If [the] DURING SUCH TIME TWO
 PSYCHIATRIC EXAMINERS ENGAGED BY THE superintendent [determines]  DETER-
 MINE  that  the defendant is so mentally ill or mentally defective as to
 require continued care and treatment in an institution, he OR  SHE  may,
 before  the  expiration of such thirty day period, apply for an order of
 [certification] RETENTION in the manner prescribed  in  section  [31.33]
 9.33 OR 15.33 of the mental hygiene law.
   §  10.  Subdivision  (a) of section 9.33 of the mental hygiene law, as
 amended by chapter 789 of the laws  of  1985,  is  amended  to  read  as
 follows:
   (a)  If  the  director shall determine that a patient admitted upon an
 application supported by medical certification, for  whom  there  is  no
 court  order authorizing retention for a specified period, is in need of
 retention and if such patient does not agree to remain in such  hospital
 as a voluntary patient, the director shall apply to the supreme court or
 the  county  court  in  the  county where the hospital is located for an
 order authorizing continued retention. A COURT ORDER ISSUED PURSUANT  TO
 ARTICLE  SEVEN  HUNDRED  THIRTY  OF  THE CRIMINAL PROCEDURE LAW SHALL BE
 DEEMED AN ORDER OF RETENTION UNDER THIS SECTION. Such application  shall
 be  made no later than sixty days from the date of involuntary admission
 on application supported by medical certification or  thirty  days  from
 the date of an order denying an application for patient's release pursu-
 ant  to section 9.31, whichever is later; and the hospital is authorized
 to retain the patient for such further period during which the  hospital
 is  authorized  to make such application or during which the application
 may be pending. The director shall cause written notice of such applica-
 tion to be  given  the  patient  and  a  copy  thereof  shall  be  given
 personally  or  by  mail  to  the persons required by this article to be
 served with notice of such patient's initial admission and to the mental
 hygiene legal service. Such notice shall state that  a  hearing  may  be
 requested  and  that  failure  to  make such a request within five days,
 excluding Sunday and holidays, from the date that the notice  was  given
 to  the  patient  will  permit  the  entry without a hearing of an order
 authorizing retention.
   § 11. Subdivision (a) of section 15.33 of the mental hygiene  law,  as
 amended  by  chapter  789  of  the  laws  of 1985, is amended to read as
 follows:
   (a) If the director shall determine that a resident admitted  upon  an
 application  supported  by  medical  certification, for whom there is no
 court order authorizing retention for a specified period, is in need  of
 retention  and  if such resident does not agree to remain in such school
 as a voluntary resident, the director shall apply to the  supreme  court
 or  the  county  court  in the county where the school is located for an
 order authorizing continued retention.  A COURT ORDER ISSUED PURSUANT TO
 ARTICLE SEVEN HUNDRED THIRTY OF THE  CRIMINAL  PROCEDURE  LAW  SHALL  BE
 DEEMED  AN ORDER OF RETENTION UNDER THIS SECTION. Such application shall
 be made no later than sixty days from the date of involuntary  admission
 on  application  supported  by medical certification or thirty days from
 the date of an order  denying  an  application  for  resident's  release
 pursuant to section 15.31, whichever is later; and the school is author-
 ized  to  retain  the  resident for such further period during which the
 school is authorized to make such application or during which the appli-
 cation may be pending. The director shall cause written notice  of  such
 A. 5063                            12
 
 application  to  be given the resident and a copy thereof shall be given
 personally or by mail to the persons required  by  this  article  to  be
 served  with  notice  of  such  resident's  initial admission and to the
 mental hygiene legal service. Such notice shall state that a hearing may
 be  requested  and that failure to make such a request within five days,
 excluding Sunday and holidays, from the date that the notice  was  given
 to  the  resident  will  permit  the entry without a hearing of an order
 authorizing retention.
   § 12. Subdivision (c) of section 43.03 of the mental hygiene  law,  as
 amended by chapter 7 of the laws of 2007, is amended to read as follows:
   (c) Patients receiving services while being held IN THE CUSTODY OF THE
 COMMISSIONER  pursuant to order of a criminal court, other than patients
 committed to the department pursuant to section 330.20 of  the  criminal
 procedure  law,  or  for  examination pursuant to an order of the family
 court shall not be liable to the department for such services. Fees  due
 the  department  for  such services shall be paid by the county in which
 such court is located UNLESS SUCH SERVICES ARE OR COULD BE ELIGIBLE  FOR
 PAYMENT  PURSUANT  TO  THE  FEDERAL  MEDICAL CARE ASSISTANCE PROGRAM AND
 except that counties shall not be responsible for the cost  of  services
 rendered patients committed to the department pursuant to section 330.20
 of  the  criminal  procedure  law,  SECTION  FIVE  HUNDRED  EIGHT OF THE
 CORRECTION LAW or patients committed to the department pursuant to arti-
 cle NINE, ten OR FIFTEEN of this chapter.
   § 13. In the event that any county or any city with  a  population  of
 one  million  or more in any one year reduces payments made to the state
 for restoration services pursuant to article 730 of the criminal  proce-
 dure  law  by  an amount which is less than the average of such expendi-
 tures for the previous three years, then such county or such city  shall
 utilize  such savings for needed services which are identified as needed
 in the local services plan, as defined in section 41.03  of  the  mental
 hygiene law, of such county or such city.
   §  14.  This act shall take effect on the ninetieth day after it shall
 have become a law.