methods and is so equipped as to minimize the risk or danger of escapes,
and which has been so specifically designated by the commissioner.
(c) "Dangerous mental disorder" means: (i) that a defendant currently
suffers from a "mental illness" as that term is defined in subdivision
twenty of section 1.03 of the mental hygiene law, and (ii) that because
of such condition he OR SHE currently constitutes a physical danger to
himself OR HERSELF or others.
(d) "Mentally ill" means that a defendant currently suffers from a
mental illness for which care and treatment as a patient, in the in-pa-
tient services of a psychiatric center under the jurisdiction of the
[state] office of mental health, is essential to such defendant's
welfare and that his or her judgment is so impaired that he OR SHE is
unable to understand the need for such care and treatment; and, where a
defendant has a developmental disability, the term "mentally ill" shall
also mean, for purposes of this section, that the defendant is in need
of care and treatment as a resident in the in-patient services of a
developmental center or other residential facility for individuals with
developmental disabilities under the jurisdiction of the [state] office
for people with developmental disabilities.
(e) "Examination order" means an order directed to the commissioner
requiring that a defendant submit to a psychiatric examination to deter-
mine whether the defendant has a dangerous mental disorder, or if he OR
SHE does not have A dangerous mental disorder, whether he OR SHE is
mentally ill.
(f) "Commitment order" [or "recommitment order"] means an order
committing a defendant to the custody of the commissioner for confine-
ment in a secure facility for care and treatment [for six months from
the date of the order].
(g) "First retention order" means an order which is effective at the
expiration of the period prescribed in a commitment order [for] OR a
recommitment order, authorizing continued custody of a defendant by the
commissioner for a period not to exceed one year.
(h) "Second retention order" means an order which is effective at the
expiration of the period prescribed in a first retention order, author-
izing continued custody of a defendant by the commissioner for a period
not to exceed two years.
(i) "Subsequent retention order" means an order which is effective at
the expiration of the period prescribed in a second retention order or a
prior subsequent retention order authorizing continued custody of a
defendant by the commissioner for a period not to exceed two years.
(j) "Retention order" means a first retention order, a second
retention order or a subsequent retention order.
(k) "Furlough order" means an order directing the commissioner to
allow a defendant in confinement pursuant to a commitment order, recom-
mitment order or retention order to temporarily leave the facility for a
period not exceeding fourteen days, [either] with [or without] the
constant supervision of one or more employees of the facility.
(l) "Transfer order" means an order directing the commissioner to
transfer a defendant from a secure facility to a non-secure facility
under the jurisdiction of the commissioner or to any non-secure facility
designated by the commissioner.
(m) "Release order" means an order directing the commissioner to
terminate a defendant's in-patient status without terminating the
commissioner's responsibility for the defendant.
S. 1927 3
(n) "Discharge order" means an order terminating an order of condi-
tions or unconditionally discharging a defendant from supervision under
the provisions of this section.
(o) "Order of conditions" means an order directing a defendant to
comply with this prescribed treatment plan, or any other condition which
the court determines to be reasonably necessary or appropriate, and, in
addition, where a defendant is in custody of the commissioner, not to
leave the facility without authorization. In addition to such condi-
tions, when determined to be reasonably necessary or appropriate, an
order of conditions may be accompanied by a special order of conditions
set forth in a separate document requiring that the defendant: (i) stay
away from the home, school, business or place of employment of the
victim or victims, or of any witness designated by the court, of such
offense; or (ii) refrain from harassing, intimidating, threatening or
otherwise interfering with the victim or victims of the offense and such
members of the family or household of such victim or victims as shall be
specifically named by the court in such special order. An order of
conditions or special order of conditions shall be valid for five years
from the date of its issuance, except that, for good cause shown, the
court may extend the period for an additional five years.
(p) "District attorney" means the office which prosecuted the criminal
action resulting in the verdict or plea of not responsible by reason of
mental disease or defect.
(q) "Qualified psychiatrist" means a physician who (i) is a diplomate
of the American board of psychiatry and neurology or is eligible to be
certified by that board; or (ii) is certified by the American osteopath-
ic board of neurology and psychiatry or is eligible to be certified by
that board.
(r) "Licensed psychologist" means a person who is registered as a
psychologist under article one hundred fifty-three of the education law.
(s) "Psychiatric examiner" means a qualified psychiatrist or a
licensed psychologist who has been designated by the commissioner to
examine a defendant pursuant to this section, and such designee need not
be an employee of the department of mental hygiene.
2. [Examination] SENTENCE; EXAMINATION order; psychiatric examiners.
Upon entry of a verdict of not responsible by reason of mental disease
or defect, or upon the acceptance of a plea of not responsible by reason
of mental disease or defect, the court must immediately (A) IMPOSE A
PERIOD OF CONFINEMENT IN THE CUSTODY OF THE COMMISSIONER WHICH IS EQUAL
TO THE SENTENCE OF IMPRISONMENT SUCH DEFENDANT WOULD HAVE RECEIVED
PURSUANT TO ARTICLE SEVENTY OF THE PENAL LAW, UPON CONVICTION OF THE
CRIME WITH WHICH HE OR SHE WAS CHARGED; AND (B) issue an examination
order. Upon receipt of such order, the commissioner must designate two
qualified psychiatric examiners to conduct the examination to examine
the defendant. In conducting their examination, the psychiatric examin-
ers may employ any method which is accepted by the medical profession
for the examination of persons alleged to be suffering from a dangerous
mental disorder or to be mentally ill or having a developmental disabil-
ity. The court may authorize a psychiatrist or psychologist retained by
a defendant to be present at such examination. The clerk of the court
must promptly forward a copy of the examination order to the mental
hygiene legal service and such service may thereafter participate in all
subsequent proceedings under this section.
In all subsequent proceedings under this section, [prior to the issu-
ance of a special order of conditions,] the court shall consider whether
any order of protection had been issued prior to a verdict of not
S. 1927 4
responsible by reason of mental disease or defect in the case, or prior
to the acceptance of a plea of not responsible by reason of mental
disease or defect in the case.
2-a. Firearm, rifle or shotgun surrender order. Upon entry of a
verdict of not responsible by reason of mental disease or defect, or
upon the acceptance of a plea of not responsible by reason of mental
disease or defect, or upon a finding that the defendant is an incapaci-
tated person pursuant to article seven hundred thirty of this chapter,
the court shall revoke the defendant's firearm license, if any, inquire
of the defendant as to the existence and location of any firearm, rifle
or shotgun owned or possessed by such defendant and direct the surrender
of such firearm, rifle or shotgun pursuant to subparagraph (f) of para-
graph one of subdivision a of section 265.20 and subdivision six of
section 400.05 of the penal law.
3. Examination order; place of examination. Upon issuing an examina-
tion order, the court must, except as otherwise provided in this subdi-
vision, direct that the defendant be committed to a secure facility
designated by the commissioner as the place for such psychiatric exam-
ination. The sheriff must hold the defendant in custody pending such
designation by the commissioner, and when notified of the designation,
the sheriff must promptly deliver the defendant to such secure facility.
[When the defendant is not in custody at the time of such verdict or
plea, because he was previously released on bail or on his own recogni-
zance, the court, in its discretion, may direct that such examination be
conducted on an out-patient basis, and at such time and place as the
commissioner shall designate. If, however, the commissioner informs the
court that confinement of the defendant is necessary for an effective
examination, the court must direct that the defendant be confined in a
facility designated by the commissioner until the examination is
completed.]
4. Examination order, duration. Confinement in a secure facility
pursuant to an examination order shall be for a period not exceeding
thirty days, except that, upon application of the commissioner, the
court may authorize confinement for an additional period not exceeding
thirty days when a longer period is necessary to complete the examina-
tion. [If the initial hearing required by subdivision six of this
section has not commenced prior to the termination of such examination
period, the commissioner shall retain custody of the defendant in such
secure facility until custody is transferred to the sheriff in the
manner prescribed in subdivision six of this section.] During the period
of such confinement, the physician in charge of the facility may admin-
ister 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. [If the court has directed that the
examination be conducted on an out-patient basis, the examination shall
be completed within thirty days after the defendant has first reported
to the place designated by the commissioner, except that, upon applica-
tion of the commissioner, the court may extend such period for a reason-
able time if a longer period is necessary to complete the examination.]
5. Examination order; reports. After he OR SHE has completed his OR
HER examination of the defendant, each psychiatric examiner must prompt-
ly prepare a report of his OR HER findings and evaluation concerning the
defendant's mental condition, and submit such report to the commission-
er. If the psychiatric examiners differ in their opinion as to whether
the defendant is mentally ill or is suffering from a dangerous mental
disorder, the commissioner must designate another psychiatric examiner
S. 1927 5
to examine the defendant. Upon receipt of the examination reports, the
commissioner must submit them to the court that issued the examination
order. If the court is not satisfied with the findings of these psychi-
atric examiners, the court may designate one or more additional psychi-
atric examiners pursuant to subdivision [fifteen] FOURTEEN of this
section. [The court must furnish a copy of the reports to the district
attorney, counsel for the defendant and the mental hygiene legal
service.]
6. [Initial hearing; commitment] COMMITMENT order. After the examina-
tion reports are submitted, the court must[, within ten days of the
receipt of such reports, conduct an initial hearing to determine the
defendant's present mental condition. If the defendant is in the custody
of the commissioner pursuant to an examination order, the court must
direct the sheriff to obtain custody of the defendant from the commis-
sioner and to confine the defendant pending further order of the court,
except that the court may direct the sheriff to confine the defendant in
an institution located near the place where the court sits if that
institution has been designated by the commissioner as suitable for the
temporary and secure detention of mentally disabled persons. At such
initial hearing, the district attorney must establish to the satisfac-
tion of the court that the defendant has a dangerous mental disorder or
is mentally ill. If the court finds that the defendant has a dangerous
mental disorder, it must] issue a commitment order FOR THE TERM OF THE
PERIOD OF CONFINEMENT IMPOSED, PURSUANT TO PARAGRAPH (A) OF SUBDIVISION
TWO OF THIS SECTION, AND TO SUCH A SECURE FACILITY AS SHALL BE SUITABLE
FOR A MENTALLY ILL PERSON OR A PERSON WITH A DANGEROUS MENTAL DISORDER,
AS THE CASE MAY BE, BASED UPON THE EXAMINATION REPORTS. [If the court
finds that the defendant does not have a dangerous mental disorder but
is mentally ill, the provisions of subdivision seven of this section
shall apply.]
7. [Initial hearing civil commitment and order of conditions. If, at
the conclusion of the initial hearing conducted pursuant to subdivision
six of this section, the court finds that the defendant is mentally ill
but does not have a dangerous mental disorder, the provisions of arti-
cles nine or fifteen of the mental hygiene law shall apply at that stage
of the proceedings and at all subsequent proceedings. Having found that
the defendant is mentally ill, the court must issue an order of condi-
tions and an order committing the defendant to the custody of the
commissioner. The latter order shall be deemed an order made pursuant to
the mental hygiene law and not pursuant to this section, and further
retention, conditional release or discharge of such defendant shall be
in accordance with the provisions of the mental hygiene law. If, at the
conclusion of the initial hearing, the court finds that the defendant
does not have a dangerous mental disorder and is not mentally ill, the
court must discharge the defendant either unconditionally or subject to
an order of conditions.
7-a. Whenever the court issues a special order of conditions pursuant
to this section, the commissioner shall make reasonable efforts to noti-
fy the victim or victims or the designated witness or witnesses that a
special order of conditions containing such provisions has been issued,
unless such victim or witness has requested that such notice should not
be provided.
8.] First retention order. When a defendant is in the custody of the
commissioner pursuant to a commitment order, the commissioner must, at
least thirty days prior to the expiration of the period prescribed in
the order, apply to the court that issued the order, or to a superior
S. 1927 6
court in the county where the secure facility is located, for a first
retention order or a release order. The commissioner must give written
notice of the application to the district attorney, the defendant, coun-
sel for the defendant, and the mental hygiene legal service. Upon
receipt of such application, the court may, on its own motion, conduct a
hearing to determine whether the defendant has a dangerous mental disor-
der, and it must conduct such hearing if a demand therefor is made by
the district attorney, the defendant, counsel for the defendant, or the
mental hygiene legal service within ten days from the date that notice
of the application was given to them. If such a hearing is held on an
application for retention, the commissioner must establish to the satis-
faction of the court that the defendant has a dangerous mental disorder
or is mentally ill. The district attorney shall be entitled to appear
and present evidence at such hearing. If such a hearing is held on an
application for release, the district attorney must establish to the
satisfaction of the court that the defendant has a dangerous mental
disorder or is mentally ill. If the court finds that the defendant has a
dangerous mental disorder it must issue a first retention order. If the
court finds that the defendant is mentally ill but does not have a
dangerous mental disorder, it must issue a first retention order and,
pursuant to subdivision [eleven] TEN of this section, a transfer order
and an order of conditions. If the court finds that the defendant does
not have a dangerous mental disorder and is not mentally ill, it must
issue a release order and an order of conditions pursuant to subdivision
[twelve] ELEVEN of this section.
[9.] 8. Second and subsequent retention orders. When a defendant is in
the custody of the commissioner pursuant to a first retention order, the
commissioner must, at least thirty days prior to the expiration of the
period prescribed in the order, apply to the court that issued the
order, or to a superior court in the county where the facility is
located, for a second retention order or a release order. The commis-
sioner must give written notice of the application to the district
attorney, the defendant, counsel for the defendant, and the mental
hygiene legal service. Upon receipt of such application, the court may,
on its own motion, conduct a hearing to determine whether the defendant
has a dangerous mental disorder, and it must conduct such hearing if a
demand therefor is made by the district attorney, the defendant, counsel
for the defendant, or the mental hygiene legal service within ten days
from the date that notice of the application was given to them. If such
a hearing is held on an application for retention, the commissioner must
establish to the satisfaction of the court that the defendant has a
dangerous mental disorder or is mentally ill. The district attorney
shall be entitled to appear and present evidence at such hearing. If
such a hearing is held on an application for release, the district
attorney must establish to the satisfaction of the court that the
defendant has a dangerous mental disorder or is mentally ill. If the
court finds that the defendant has a dangerous mental disorder it must
issue a second retention order. If the court finds that the defendant is
mentally ill but does not have a dangerous mental disorder, it must
issue a second retention order and, pursuant to subdivision [eleven] TEN
of this section, a transfer order and an order of conditions. If the
court finds that the defendant does not have a dangerous mental disorder
and is not mentally ill, it must issue a release order and an order of
conditions pursuant to subdivision [twelve] ELEVEN of this section. When
a defendant is in the custody of the commissioner prior to the expira-
tion of the period prescribed in a second retention order, the proce-
S. 1927 7
dures set forth in this subdivision for the issuance of a second
retention order shall govern the application for and the issuance of any
subsequent retention order.
[10.] 9. Furlough order. The commissioner may apply for a furlough
order, pursuant to this subdivision, when a defendant is in his OR HER
custody pursuant to a [commitment order,] recommitment order[,] or
retention order and the commissioner is of the view that, consistent
with the public safety and welfare of the community and the defendant,
the clinical condition of the defendant warrants a granting of the priv-
ileges authorized by a furlough order. The application for a furlough
order may be made to the court that issued the commitment order, or to a
superior court in the county where the secure facility is located. The
commissioner must give ten days written notice to the district attorney,
the defendant, counsel for the defendant, and the mental hygiene legal
service. Upon receipt of such application, the court may, on its own
motion, conduct a hearing to determine whether the application should be
granted, and must conduct such hearing if a demand therefor is made by
the district attorney. If the court finds that the issuance of a
furlough order is consistent with the public safety and welfare of the
community and the defendant, and that the clinical condition of the
defendant warrants a granting of the privileges authorized by a furlough
order, the court must grant the application and issue a furlough order
containing any terms and conditions that the court deems necessary or
appropriate. If the defendant fails to return to the secure facility at
the time specified in the furlough order, then, for purposes of subdivi-
sion [nineteen] EIGHTEEN of this section, he OR SHE shall be deemed to
have escaped.
[11.] 10. Transfer order and order of conditions. The commissioner may
apply for a transfer order, pursuant to this subdivision, when a defend-
ant is in his OR HER custody pursuant to a retention order or a recom-
mitment order, and the commissioner is of the view that the defendant
does not have a dangerous mental disorder or that, consistent with the
public safety and welfare of the community and the defendant, the clin-
ical condition of the defendant warrants his OR HER transfer from a
secure facility to a non-secure facility under the jurisdiction of the
commissioner or to any non-secure facility designated by the commission-
er. The application for a transfer order may be made to the court that
issued the order under which the defendant is then in custody, or to a
superior court in the county where the secure facility is located. The
commissioner must give ten days written notice to the district attorney,
the defendant, counsel for the defendant, and the mental hygiene legal
service. Upon receipt of such application, the court may, on its own
motion, conduct a hearing to determine whether the application should be
granted, and must conduct such hearing if the demand therefor is made by
the district attorney. At such hearing, the district attorney must
establish to the satisfaction of the court that the defendant has a
dangerous mental disorder or that the issuance of a transfer order is
inconsistent with the public safety and welfare of the community. The
court must grant the application and issue a transfer order if the court
finds that the defendant does not have a dangerous mental disorder, or
if the court finds that the issuance of a transfer order is consistent
with the public safety and welfare of the community and the defendant
and that the clinical condition of the defendant, warrants his OR HER
transfer from a secure facility to a non-secure facility. A court must
also issue a transfer order when, in connection with an application for
a first retention order pursuant to subdivision [eight] SEVEN of this
S. 1927 8
section or a second or subsequent retention order pursuant to subdivi-
sion [nine] EIGHT of this section, it finds that a defendant is mentally
ill but does not have a dangerous mental disorder. Whenever a court
issues a transfer order it must also issue an order of conditions.
[12.] 11. Release order and order of conditions. The commissioner may
apply for a release order, pursuant to this subdivision, when a defend-
ant is in his OR HER custody pursuant to a retention order or recommit-
ment order, and the commissioner is of the view that the defendant no
longer has a dangerous mental disorder and is no longer mentally ill.
The application for a release order may be made to the court that issued
the order under which the defendant is then in custody, or to a superior
court in the county where the facility is located. The application must
contain a description of the defendant's current mental condition, the
past course of treatment, a history of the defendant's conduct subse-
quent to his OR HER commitment, a written service plan for continued
treatment which shall include the information specified in subdivision
(g) of section 29.15 of the mental hygiene law, and a detailed statement
of the extent to which supervision of the defendant after release is
proposed. The commissioner must give ten days written notice to the
district attorney, the defendant, counsel for the defendant, and the
mental hygiene legal service. Upon receipt of such application, the
court must promptly conduct a hearing to determine the defendant's pres-
ent mental condition. At such hearing, the district attorney must
establish to the satisfaction of the court that the defendant has a
dangerous mental disorder or is mentally ill. If the court finds that
the defendant has a dangerous mental disorder, it must deny the applica-
tion for a release order. If the court finds that the defendant does not
have a dangerous mental disorder but is mentally ill, it must issue a
transfer order pursuant to subdivision [eleven] TEN of this section if
the defendant is then confined in a secure facility. If the court finds
that the defendant does not have a dangerous mental disorder and is not
mentally ill, it must grant the application and issue a release order. A
court must also issue a release order when, in connection with an appli-
cation for a first retention order pursuant to subdivision [eight] SEVEN
of this section or a second or subsequent retention order pursuant to
subdivision [nine] EIGHT of this section, it finds that the defendant
does not have a dangerous mental disorder and is not mentally ill. When-
ever a court issues a release order it must also issue an order of
conditions. If the court has previously issued a transfer order and an
order of conditions, it must issue a new order of conditions upon issu-
ing a release order. The order of conditions issued in conjunction with
a release order shall incorporate a written service plan prepared by a
psychiatrist familiar with the defendant's case history and approved by
the court, and shall contain any conditions that the court determines to
be reasonably necessary or appropriate. It shall be the responsibility
of the commissioner to determine that such defendant is receiving the
services specified in the written service plan and is complying with any
conditions specified in such plan and the order of conditions.
[13.] 12. Discharge order. The commissioner may apply for a discharge
order, pursuant to this subdivision, when a defendant has been contin-
uously on an out-patient status for three years or more pursuant to a
release order, and the commissioner is of the view that the defendant no
longer has a dangerous mental disorder and is no longer mentally ill and
that the issuance of a discharge order is consistent with the public
safety and welfare of the community and the defendant. The application
for a discharge order may be made to the court that issued the release
S. 1927 9
order, or to a superior court in the county where the defendant is then
residing. The commissioner must give ten days written notice to the
district attorney, the defendant, counsel for the defendant, and the
mental hygiene legal service. Upon receipt of such application, the
court may, on its own motion, conduct a hearing to determine whether the
application should be granted, and must conduct such hearing if a demand
therefor is made by the district attorney. The court must grant the
application and issue a discharge order if the court finds that the
defendant has been continuously on an out-patient status for three years
or more, that he OR SHE does not have a dangerous mental disorder and is
not mentally ill, and that the issuance of the discharge order is
consistent with the public safety and welfare of the community and the
defendant.
[14.] 13. Recommitment order. At any time during the period covered by
an order of conditions an application may be made by the commissioner or
the district attorney to the court that issued such order, or to a supe-
rior court in the county where the defendant is then residing, for a
recommitment order when the applicant is of the view that the defendant
has a dangerous mental disorder. The applicant must give written notice
of the application to the defendant, counsel for the defendant, and the
mental hygiene legal service, and if the applicant is the commissioner
he OR SHE must give such notice to the district attorney or if the
applicant is the district attorney he OR SHE must give such notice to
the commissioner. Upon receipt of such application the court must order
the defendant to appear before it for a hearing to determine if the
defendant has a dangerous mental disorder. Such order may be in the form
of a written notice, specifying the time and place of appearance, served
personally upon the defendant, or mailed to his OR HER last known
address, as the court may direct. If the defendant fails to appear in
court as directed, the court [may] SHALL issue a warrant to an appropri-
ate peace officer directing him OR HER to take the defendant into custo-
dy and bring him OR HER before the court. In such circumstance, the
court [may] SHALL direct that the defendant be confined in an appropri-
ate institution located near the place where the court sits. The court
must conduct a hearing to determine whether the defendant has a danger-
ous mental disorder. At such hearing, the applicant, whether he OR SHE
be the commissioner or the district attorney must establish to the
satisfaction of the court that the defendant has a dangerous mental
disorder. If the applicant is the commissioner, the district attorney
shall be entitled to appear and present evidence at such hearing; if the
applicant is the district attorney, the commissioner shall be entitled
to appear and present evidence at such hearing. If the court finds that
the defendant has a dangerous mental disorder, it must issue a recommit-
ment order. When a defendant is in the custody of the commissioner
pursuant to a recommitment order, the procedures set forth in subdivi-
sions SEVEN AND eight [and nine] of this section for the issuance of
retention orders shall govern the application for and the issuance of a
first retention order, a second retention order, and subsequent
retention orders.
[15.] 14. Designation of psychiatric examiners. If, at any hearing
conducted under this section to determine the defendant's present mental
condition, the court is not satisfied with the findings of the psychiat-
ric examiners, the court may direct the commissioner to designate one or
more additional psychiatric examiners to conduct an examination of the
defendant and submit a report of their findings. In addition, the court
may on its own motion, or upon request of a party, may designate one or
S. 1927 10
more psychiatric examiners to examine the defendant and submit a report
of their findings. The district attorney may apply to the court for an
order directing that the defendant submit to an examination by a psychi-
atric examiner designated by the district attorney, and such psychiatric
examiner may testify at the hearing.
[16.] 15. Rehearing and review. Any defendant who is in the custody of
the commissioner pursuant to [a commitment order,] a retention order, or
a recommitment order, if dissatisfied with such order, may, within thir-
ty days after the making of such order, obtain a rehearing and review of
the proceedings and of such order in accordance with the provisions of
section 9.35 or 15.35 of the mental hygiene law.
[17.] 16. Rights of defendants. Subject to the limitations and
provisions of this section, a defendant committed to the custody of the
commissioner pursuant to this section shall have the rights granted to
patients under the mental hygiene law.
[18.] 17. Notwithstanding any other provision of law, no person
confined by reason of a [commitment order,] recommitment order or
retention order to a secure facility may be discharged or released
unless the commissioner shall deliver written notice, at least four days
excluding Saturdays, Sundays and holidays, in advance of such discharge
or release to all of the following:
(a) the district attorney.
(b) the police department having jurisdiction of the area to which the
defendant is to be discharged or released.
(c) any other person the court may designate.
The notices required by this subdivision shall be given by the facili-
ty staff physician who was treating the defendant or, if unavailable, by
the defendant's treatment team leader, but if neither is immediately
available, notice must be given by some other member of the clinical
staff of the facility. Such notice must be given by any means reasonably
calculated to give prompt actual notice.
[19.] 18. Escape from custody; notice requirements. If a defendant is
in the custody of the commissioner pursuant to an order issued under
this section, and such defendant escapes from custody, immediate notice
of such escape shall be given by the department facility staff to: (a)
the district attorney, (b) the superintendent of state police, (c) the
sheriff of the county where the escape occurred, (d) the police depart-
ment having jurisdiction of the area where the escape occurred, (e) any
person the facility staff believes to be in danger, and (f) any law
enforcement agency and any person the facility staff believes would be
able to apprise such endangered person that the defendant has escaped
from the facility. Such notice shall be given as soon as the facility
staff know that the defendant has escaped from the facility and shall
include such information as will adequately identify the defendant and
the person or persons believed to be in danger and the nature of the
danger. The notices required by this subdivision shall be given by the
facility staff physician who was treating the defendant or, if unavail-
able, by the defendant's treatment team leader, but if neither is imme-
diately available, notice must be given by some other member of the
clinical staff of the facility. Such notice must be given by any means
reasonably calculated to give prompt actual notice. The defendant may be
apprehended, restrained, transported to, and returned to the facility
from which he escaped by any peace officer, and it shall be the duty of
the officer to assist any representative of the commissioner to take the
defendant into custody upon the request of such representative.
S. 1927 11
[20.] 19. Required affidavit. No application may be made by the
commissioner under this section without an accompanying affidavit from
at least one psychiatric examiner supportive of relief requested in the
application, which affidavit shall be served on all parties entitled to
receive the notice of application. Such affidavit shall set forth the
defendant's clinical diagnosis, a detailed analysis of his or her mental
condition which caused the psychiatric examiner to formulate an opinion,
and the opinion of the psychiatric examiner with respect to the defend-
ant. Any application submitted without the required affidavit shall be
dismissed by the court.
[21.] 20. Appeals. (a) A party to proceedings conducted in accordance
with the provisions of this section may take an appeal to an intermedi-
ate appellate court by permission of the intermediate appellate court as
follows:
(i) the commissioner may appeal from any release order, retention
order, transfer order, discharge order, order of conditions, or recom-
mitment order, for which he OR SHE has not applied;
(ii) a defendant, or the mental hygiene legal service on his or her
behalf, may appeal from any [commitment order,] retention order, recom-
mitment order, or, if the defendant has obtained a rehearing and review
of any such order pursuant to subdivision [sixteen] FIFTEEN of this
section, from an order, not otherwise appealable as of right, issued in
accordance with the provisions of section 9.35 or 15.35 of the mental
hygiene law authorizing continued retention under the original order,
provided, however, that a defendant who takes an appeal from a [commit-
ment order,] retention order, or recommitment order may not subsequently
obtain a rehearing and review of such order pursuant to subdivision
[sixteen] FIFTEEN of this section;
(iii) the district attorney may appeal from any release order, trans-
fer order, discharge order, order of conditions, furlough order, or
order denying an application for a recommitment order which he OR SHE
opposed.
(b) An aggrieved party may appeal from a final order of the intermedi-
ate appellate court to the court of appeals by permission of the inter-
mediate appellate court granted before application to the court of
appeals, or by permission of the court of appeals upon refusal by the
intermediate appellate court or upon direct application.
(c) An appeal taken under this subdivision shall be deemed civil in
nature, and shall be governed by the laws and rules applicable to civil
appeals; provided, however, that a stay of the order appealed from must
be obtained in accordance with the provisions of paragraph (d) [hereof]
OF THIS SUBDIVISION.
(d) The court from or to which an appeal is taken may stay all
proceedings to enforce the order appealed from pending an appeal or
determination on a motion for permission to appeal, or may grant a
limited stay, except that only the court to which an appeal is taken may
vacate, limit, or modify a stay previously granted. If the order
appealed from is affirmed or modified, the stay shall continue for five
days after service upon the appellant of the order of affirmance or
modification with notice of its entry in the court to which the appeal
was taken. If a motion is made for permission to appeal from such an
order, before the expiration of the five days, the stay, or any other
stay granted pending determination of the motion for permission to
appeal, shall:
(i) if the motion is granted, continue until five days after the
appeal is determined; or
S. 1927 12
(ii) if the motion is denied, continue until five days after the
movant is served with the order of denial with notice of its entry.
[22.] 21. Any special order of conditions issued pursuant to subpara-
graph (i) or (ii) of paragraph (o) of subdivision one of this section
shall bear in a conspicuous manner the term "special order of condi-
tions" and a copy shall be filed by the clerk of the court with the
sheriff's office in the county in which anyone intended to be protected
by such special order resides, or, if anyone intended to be protected by
such special order resides within a city, with the police department of
such city. The absence of language specifying that the order is a
"special order of conditions" shall not affect the validity of such
order. A copy of such special order of conditions may from time to time
be filed by the clerk of the court with any other police department or
sheriff's office having jurisdiction of the residence, work place, or
school of anyone intended to be protected by such special order. A copy
of such special order may also be filed by anyone intended to be
protected by such provisions at the appropriate police department or
sheriff's office having jurisdiction. Any subsequent amendment or revo-
cation of such special order may be filed in the same manner as provided
in this subdivision. Such special order of conditions shall plainly
state the date that the order expires.
§ 2. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law and shall apply to
criminal offenses committed on or after such date.
