§ 402. Commitment of incarcerated individuals with a mental illness.
1. Whenever the physician of any correctional facility, any county
penitentiary, county jail or workhouse, any reformatory for women, or of
any other correctional institution, shall report in writing to the
superintendent that any person undergoing a sentence of imprisonment or
adjudicated to be a youthful offender or juvenile delinquent confined
therein has, in his or her opinion, a mental illness, such
superintendent shall apply to a judge of the county court or justice of
the supreme court in the county to cause an examination to be made of
such person by two examining physicians. Such physicians shall be
designated by the judge to whom the application is made. Each such
physician, if satisfied, after a personal examination, that such
incarcerated individual has a mental illness and in need of care and
treatment, shall make a certificate to such effect. Before making such
certificate, however, he or she shall consider alternative forms of care
and treatment available during confinement in such correctional
facility, penitentiary, jail, reformatory or correctional institution
that might be adequate to provide for such incarcerated individual's
needs without requiring hospitalization. If the examining physician
knows that the person he or she is examining has been under prior
treatment, he or she shall, insofar as possible, consult with the
physician or psychologist furnishing such prior treatment prior to
making his or her certificate.

2. In the city of New York, if the physician of a workhouse, city
prison, jail, penitentiary or reformatory reports in writing to the
superintendent of such institution that a prisoner confined therein,
serving a sentence of imprisonment, in his or her opinion has a mental
illness, the superintendent of said institution shall either transfer
said prisoner to Bellevue or Kings county hospital for observation as to
his or her mental condition by two examining physicians or shall secure
two examining physicians to make such examination in his institution.
Each such physician, if satisfied after a personal examination and
observation that the prisoner has a mental illness and in need of care
and treatment, shall make a certificate to such effect. Before making
such certificate, however, he or she shall consider alternative forms of
care and treatment available during confinement in such correctional
facility, penitentiary, jail, reformatory or correctional institution
that might be adequate to provide for such incarcerated individual's
needs without requiring hospitalization. If the examining physician
knows that the person he or she is examining has been under prior
treatment, he or she shall, insofar as possible, consult with the
physician or psychologist furnishing such prior treatment prior to
making his or her certificate.

3. Upon such certificates of the examining physicians being so made,
it shall be delivered to the superintendent who shall thereupon apply by
petition forthwith to a judge of the county court or justice of the
supreme court in the county, annexing such certificate to his or her
petition, for an order committing such incarcerated individual to a
hospital for persons with a mental illness. Upon every such application
for such an order of commitment, notice thereof in writing, of at least
five days, together with a copy of the petition, shall be served
personally upon the alleged person with a mental illness, and in
addition thereto such notice and a copy of the petition shall be served
upon either the wife, the husband, the father or mother or other nearest
relative of such alleged person with a mental illness, if there be any
such known relative within the state; and if not, such notice shall be
served upon any known friend of such alleged person with a mental
illness within the state. If there be no such known relative or friend
within the state, the giving of such notice shall be dispensed with, but
in such case the petition for the commitment shall recite the reasons
why service of such notice on a relative or friend of the alleged person
with a mental illness was dispensed with and, in such case, the order
for commitment shall recite why service of such a notice on a relative
or friend of the alleged person with a mental illness was dispensed
with. Copies of the notice, the petition and the certificates of the
examining physicians shall also be given the mental hygiene legal
service. The mental hygiene legal service shall inform the incarcerated
individual and, in proper cases, others interested in the incarcerated
individual's welfare, of the procedures for placement in a hospital and
of the incarcerated individual's right to have a hearing, to have
judicial review with a right to a jury trial, to be represented by
counsel and to seek an independent medical opinion. The mental hygiene
legal service shall have personal access to such incarcerated individual
for such purposes.

4. The judge to whom such application for the commitment of the
alleged person with a mental illness is made may, if no demand is made
for a hearing on behalf of the alleged person with a mental illness,
proceed forthwith on the return day of such notice to determine the
question of mental illness and, if satisfied that the alleged person
with a mental illness has a mental illness and in need of care and
treatment, may immediately issue an order for the commitment of such
alleged person with a mental illness to a hospital for a period not to
exceed six months from the date of the order.

5. Upon the demand for a hearing by any relative or near friend on
behalf of such alleged person with a mental illness, the judge shall, or
he may upon his own motion where there is no demand for a hearing, issue
an order directing the hearing of such application before him at a time
not more than five days from the date of such order, which shall be
served upon the parties interested in the application and upon such
other persons as the judge, in his discretion, may name. Upon such day
or upon such other day to which the proceedings shall be regularly
adjourned, he shall hear the testimony introduced by the parties and
shall examine the alleged person with a mental illness, if deemed
advisable in or out of court, and render a decision in writing as to
such person's mental illness and need for care and treatment. If such
judge cannot hear the application, he may, in his order directing the
hearing, name some referee who shall hear the testimony and report the
same forthwith, with his opinion thereon, to such judge, who shall, if
satisfied with such report, render his decision accordingly. If it be
determined that such person has a mental illness and in need of care and
treatment, the judge shall forthwith issue his order committing him to a
hospital for a period not to exceed six months from the date of the
order. Such superintendent shall thereupon cause such person with a
mental illness to be delivered to the director of the appropriate
hospital as designated by the commissioner of mental hygiene and such
person with a mental illness shall be received into such hospital and
retained there until he is determined to be no longer in need of care
and treatment by the director of such hospital or legally discharged or
for the period specified in the order of commitment or in any subsequent
order authorizing continued retention of such person in said hospital.
Such superintendent, before delivering said person with a mental
illness, shall see that he is bodily clean. If such judge shall refuse
to issue an order of commitment, he shall certify in writing his reasons
for such refusal.

6. When an order of commitment is made, such order and all papers in
the proceeding shall be presented to the director of the appropriate
hospital at the time when the person with a mental illness is delivered
to such institution and a copy of the order and of each such paper shall
be filed with the department of mental hygiene and also in the office of
the county clerk of the county wherein the court is located which made
the order of commitment. The judge shall order all such papers so filed
in the county clerk's office to be sealed and exhibited only to parties
to the proceedings, or someone properly interested, upon order of the
court.

7. The costs necessarily incurred in determining the question of
mental illness, including the fees of the medical examiners, shall be a
charge upon the state or the municipality, as the case may be, at whose
expense the institution is maintained, which has custody of the alleged
person with a mental illness at the time of the application for his
commitment to the hospital under the provisions of this section.

8. During the pendency of such proceeding the judge may forthwith
commit such alleged person with a mental illness to a hospital for
persons with a mental illness upon petition and the affidavit of two
examining physicians that the superintendent is not able to properly
care for such person at the institution where he is confined and that
such person is in immediate need of care and treatment. Any person so
committed shall be delivered to the director of the appropriate hospital
as designated in the rules and regulations of the department of mental
hygiene.

9. Except as provided in subdivision two of this section pertaining to
prisoners confined in the city of New York, an incarcerated individual
of a correctional facility or a county jail may be admitted on an
emergency basis to the Central New York Psychiatric Center upon the
certification by two examining physicians, including physicians employed
by the office of mental health and associated with the correctional
facility in which such incarcerated individual is confined, that the
incarcerated individual suffers from a mental illness which is likely to
result in serious harm to himself, herself or others as defined in
subdivision (a) of section 9.39 of the mental hygiene law. Any person so
committed shall be delivered by the superintendent within a twenty-four
hour period, to the director of the appropriate hospital as designated
in the rules and regulations of the office of mental health. Upon
delivery of such person to a hospital operated by the office of mental
health, a proceeding under this section shall immediately be commenced.

10. If the director of a hospital for persons with a mental illness
shall deem that the condition of such person with a mental illness
requires his further retention in a hospital he shall, during the period
of retention authorized by the last order of the court, apply to the
supreme court or county court in the county where such hospital is
located, for an order authorizing continued retention of such person
with a mental illness. The procedures for obtaining any order pursuant
to this subdivision shall be in accordance with the provisions of the
mental hygiene law for the retention of involuntary patients.

11. If a person with a mental illness whose commitment, retention or
continued retention has been authorized pursuant to this section, or any
relative or friend in his behalf, be dissatisfied with any such order,
he may, within thirty days after the making of any such order, obtain a
rehearing and a review of the proceedings already had and of such order,
upon a petition to a justice of the supreme court other than the judge
or justice presiding over the court making such order. Such justice
shall cause a jury to be summoned and shall try the question of the
mental illness and the need for care and treatment of the person so
committed or so authorized to be retained. Any such person with a mental
illness or the person applying on his behalf for such review may waive
the trial of the fact by a jury and consent in writing to trial of such
fact by the court. No such petition for the hearing and review shall be
made by anyone other than the person so committed or authorized to be
retained or the father, mother, husband, wife or child of such person,
unless the petitioner shall have first obtained the leave of the court
upon good cause shown. If the verdict of the jury, or the decision of
the court when jury trial has been waived, be that such person does not
have a mental illness, the justice shall order the removal of such
person from the hospital and such person shall forthwith be transferred
to a state correctional facility, or returned to the superintendent of
the institution from which he was received if such institution was not a
state correctional facility. Where the verdict of the jury, or the
decision of the court where a jury trial has been waived, be that such
person has a mental illness, the justice shall certify that fact and
make an order authorizing continued retention under the original order.
Proceedings under the order shall not be stayed pending an appeal
therefrom, except upon an order of a justice of the supreme court, and
made upon notice and after hearing, with provision made therein for such
temporary care and confinement of the alleged person with a mental
illness as may be deemed necessary.

12. The notice provided for herein shall be served by the sheriff of
the counties of the state of New York, in which case the charges of such
sheriff shall be a disbursement in such proceeding, or by registered
mail on all persons required to be served, except that the
superintendent of a correctional facility or the director of a hospital
for persons with a mental illness, or their designees, shall be
authorized to personally serve notice upon an alleged person with a
mental illness or a person with a mental illness, as provided in this
section.

13. Notwithstanding any provision of law to the contrary, when an
incarcerated individual is being examined in anticipation of his or her
conditional release, release to parole supervision, or when his or her
sentence to a term of imprisonment expires, the provisions of
subdivision one of section four hundred four of this article shall be
applicable and such commitment shall be effectuated in accordance with
the provisions of article nine or ten of the mental hygiene law, as
appropriate.