S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1004
 
                        2025-2026 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 8, 2025
                                ___________
 
 Introduced  by  Sen.  BROUK  -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the criminal procedure law and the mental  hygiene  law,
   in relation to 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] THEIR 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] SUCH EXAMINER sets forth [his] THEIR opinion as to whether
 the defendant is or is not  an  incapacitated  person,  the  nature  and
 extent  of  [his]  THEIR examination and, if [he or she finds] THEY FIND
 that the defendant is an incapacitated person, [his] THEIR diagnosis and
 prognosis and a detailed statement of the reasons for [his] THEIR  opin-
 ion  by  making particular reference to those aspects of the proceedings
 wherein the defendant lacks capacity to understand or to assist in [his]
 THEIR own defense.  THE REPORT MUST ALSO STATE  THE  EXAMINER'S  PROFES-
 SIONAL  OPINION  AS  TO  WHETHER  OR  NOT THERE IS AT LEAST A REASONABLE
 EXPECTATION THAT RESTORATION SERVICES COULD HAVE A SUBSTANTIAL PROBABIL-
 ITY 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.
              

                                                            LBD01866-01-5
 S. 1004                             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 THEIR 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 and 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]
 SUCH  DIRECTOR may be one, to examine the defendant to determine if [he]
 THE DEFENDANT is an incapacitated person. In conducting  their  examina-
 tion, 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 THEIR 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
 S. 1004                             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] THEIR reasonable travel-
 ing expenses[, a] AND TO A REASONABLE fee [of fifty dollars] TO BE NEGO-
 TIATED 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
 defendant 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  psychi-
 atric  examiner be an employee of the COUNTY OR OF THE state of New York
 [he] THEY shall be  entitled  only  to  reasonable  traveling  expenses,
 unless  such  psychiatric examiner makes the examination or appears at a
 court hearing or trial outside [his] THEIR  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 reasonable traveling expenses AS APPROVED BY
 THE COURT. Such fees and traveling expenses and the costs of  sending  a
 defendant  to  another  place of detention or to a hospital for examina-
 tion[, 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 defendant 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:
 S. 1004                             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] SUCH DEFENDANT 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] SUCH DEFENDANT 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  hear-
 ing  is made, such court must issue a final or temporary order of obser-
 vation committing him or her 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 the order, provided, however, that the
 commissioner may designate an appropriate hospital for  placement  of  a
 S. 1004                             5

 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. 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 observation. When a felony  complaint  has  been  filed  against  the
 defendant,  such  court  must  issue  a  temporary  order of observation
 committing [him or her] SUCH DEFENDANT to the custody of the commission-
 er 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] SUCH DEFENDANT  to  the
 custody  of  the  commissioner  for care and treatment on an out-patient
 basis, for a period not to exceed ninety days  from  the  date  of  such
 order[,  except  that, with the consent of the district attorney,] 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] 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.
   §  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] SUCH DEFENDANT must proceed. If  [it  is
 satisfied] AFTER A HEARING, THE COURT MAKES A FINDING that the defendant
 is an incapacitated 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] THEM an incapacitated person[, and must issue a final order
 of  observation or an order of commitment]. When the indictment does not
 charge a felony or when the defendant has been convicted of  an  offense
 other than a felony, such court (a) must issue a final order of observa-
 tion  [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-
 S. 1004                             6
 
 dentiality  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] 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.  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] SUCH DEFEND-
 ANT 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  commit-
 ment,  the  court must exonerate the defendant's bail if [he or she was]
 THEY WERE previously at liberty on bail; provided, however, that exoner-
 ation 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  pursu-
 ant  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  EXPEC-
 TATION 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  THE  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
 S. 1004                             7

 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
 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 THEM 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 DEFENDANT CONTIN-
 UES 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 temporary order  of
 commitment[,  the  first order of retention and all subsequent orders of
 retention] AND ANY ORDER OF RETENTION PURSUANT TO THIS ARTICLE OR  ARTI-
 CLE 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]  SUCH DEFENDANT 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 defend-
 ant was in [his] THEIR custody on such expiration date. Upon receipt  of
 such  certification,  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
 S. 1004                             8

 under former code of criminal procedure section six hundred sixty-two-b,
 the  superintendent  or director of the institution where such defendant
 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 and paragraphs (a) and (b) of subdivi-
 sion 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]  SUCH  DEFENDANT  is  no
 longer  an  incapacitated person[. In that event], the court that issued
 S. 1004                             9
 
 such order and the appropriate district attorney must  be  notified,  in
 writing,  by  the superintendent of [his] THEIR determination. The court
 must thereupon 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] THEY had been confined
 for such period of time as was authorized by the prior order of  commit-
 ment  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] SUCH DEFENDANT to any appropriate institution operated by
 the department of mental hygiene, provided, however,  that  the  commis-
 sioner  may designate an appropriate hospital for placement of a defend-
 ant for whom a final order of observation has been  issued,  where  such
 hospital  is  licensed  by the office of mental health and has agreed to
 accept, upon referral by the commissioner, defendants subject  to  final
 orders  of  observation  issued under this section. The commissioner may
 discharge a defendant in [his] THEIR 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]
 SUCH DEFENDANT 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] THEY may make  any
 motion  authorized by this chapter which is susceptible of fair determi-
 nation without [his] THEIR 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]  THEY  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.
 S. 1004                            10
 
   [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,
 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.
 S. 1004                            11

   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
 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] SUCH DEFENDANT 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  [deter-
 mines]  DETERMINE  that  the  defendant  is  so mentally ill or mentally
 defective as to require continued care and treatment in an  institution,
 [he]  THE  SUPERINTENDENT  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-
 S. 1004                            12

 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
 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.