§ 656. Proceeding when person under sentence of death may be
incompetent. 1. The state may not execute an inmate who is incompetent.
An inmate is "incompetent" when, as a result of mental disease or
defect, he lacks the mental capacity to understand the nature and effect
of the death penalty and why it is to be carried out.

2. Upon the filing of a petition in the supreme court in either the
county in which an inmate sentenced to death is confined or in the
county in which the inmate was prosecuted alleging that the inmate is
incompetent, the court shall issue an order staying the execution if and
to the extent a stay is necessary to permit determination of the
petition. Upon application of either the inmate's counsel or the
district attorney the petition may be transferred to the court in which
the inmate was convicted unless such transfer would be unduly burdensome
or impracticable. Promptly upon filing the petition, the court shall
appoint a commission of three psychiatric examiners, hereinafter
referred to as "the psychiatric commissioners," to inquire into the
inmate's competence and report to the court as to the inmate's
competence. The psychiatric commissioners shall be impartial and must be
qualified psychiatrists or certified psychologists. Before commencing an
inquiry, the psychiatric commissioners must take the oath prescribed in
rule forty-three hundred fifteen of the civil practice law and rules to
be taken by referees. The petition may be filed by the inmate, the
inmate's counsel, an employee of the department, the inmate's legal
guardian, a member of such inmate's immediate family or, in the event
that the inmate does not have regular contact with a member of his or
her immediate family, a bona fide friend who has maintained regular
contact with the inmate. The petition must be accompanied by an
affidavit of at least one qualified psychiatrist or certified
psychologist who, based at least in part on personal examination,
attests that in the psychiatrist's or psychologist's professional
opinion the inmate is incompetent and lists the pertinent facts
therefor. For purposes of this section the terms "qualified
psychiatrist" and "certified psychologist" have the meaning set forth in
section 730.10 of the criminal procedure law.

3. The petition shall be served upon either the district attorney who
prosecuted the inmate or upon the district attorney for the county in
which the inmate is confined. If the petition is served upon the
district attorney for the county in which the inmate is confined, the
court shall promptly notify the district attorney who prosecuted the
inmate. Immediately upon appointing the psychiatric commissioners, the
court shall direct that an examination of the convicted person promptly
take place with all three of the psychiatric commissioners present at
the same time. The court shall also direct, upon application of the
inmate or the district attorney, that the inmate be examined by a
qualified psychiatrist or certified psychologist designated by the
inmate or the district attorney. Counsel for the inmate and the district
attorney shall have the right to be present at each such examination.
Upon the filing of a petition pursuant to subdivision two of this
section, if the inmate does not have counsel and is financially unable
to obtain counsel the court shall appoint competent counsel experienced
in the trial of criminal matters to represent the inmate.

4. The psychiatric commissioners must receive and consider evidence
offered by the inmate's counsel and the district attorney, including
written submissions, testimony and expert psychiatric evidence. The
proceeding before the psychiatric commissioners shall be conducted on
the record but need not be conducted in accordance with the rules
governing the admission of evidence at trial, but counsel for the people
and the inmate shall have the right to cross-examine witnesses.

5. When the proceeding before the psychiatric commissioners has been
concluded, they must forthwith provide a transcript of the proceeding,
together with their findings of fact, to the court with their opinion
thereon. Unless impracticable, the psychiatric commissioners shall so
act within sixty days from the filing of the petition. When an inmate
shall be found incompetent by a majority of the psychiatric
commissioners, the court shall accept such finding unless clearly
erroneous, and promptly enter an order finding the inmate to be
incompetent, staying the execution of the inmate and directing that the
inmate be committed to a secure facility under the jurisdiction of the
office of mental health if the inmate's incompetency is the result of
mental illness. In all other cases, the inmate shall remain in the
custody of the department. When an inmate is found competent by a
majority of the psychiatric commissioners, the court shall accept such
finding unless clearly erroneous, promptly enter an order finding the
inmate to be competent and vacating any stay previously issued, and the
court shall promptly inform the judge or justice who issued the warrant
for the execution of the inmate of the court's finding. Upon being so
informed, the judge or justice shall promptly issue a new warrant in
accordance with subdivision two of section six hundred fifty of this
article. Any other provision of law notwithstanding, no other review,
judicial or otherwise, shall be available with respect to an order
finding the inmate to be incompetent or competent. If the court rejects
the finding of a majority of the psychiatric commissioners on the ground
that it is clearly erroneous, the court shall appoint another commission
to proceed as provided in this section.

6. When an inmate has been committed to a secure facility pursuant to
this section, the inmate shall remain there until the facility
administrator determines that the inmate may be competent. Upon so
determining, the facility administrator shall promptly notify the court
that entered the order finding the inmate to be incompetent, and the
court shall promptly notify counsel and the district attorneys and
appoint another commission to proceed as provided in this section.

7. The court shall allow reasonable fees to the psychiatric
commissioners. The court shall allow reasonable fees for time spent in
court and for time reasonably expended out of court to counsel appointed
pursuant to this section. The court shall allow all reasonably necessary
costs, including without limitation the costs attendant to fees for the
examination of the inmate by a qualified psychiatrist or certified
psychologist, incurred by the inmate and the district attorney in
connection with a petition pursuant to this section. Each claim for
compensation and reimbursement shall be supported by a sworn statement
specifying the time expended, services rendered, expenses incurred and
reimbursement or compensation applied for or received in the same case
from any other source. All such fees and costs shall be a state charge
payable on vouchers approved by the court after audit by and on the
warrant of the comptroller.

8. When a petition has previously been filed and determined pursuant
to this section, the court in which a subsequent petition is filed or to
which a subsequent petition is transferred, shall not issue an order
staying the execution of the inmate unless the court finds, after notice
to the district attorney who prosecuted the inmate and after affording
the district attorney a reasonable opportunity to be heard in writing,
that there is reasonable cause to believe that the inmate is
incompetent; provided, however, that the court may issue an order
staying the execution of the inmate, to the extent a stay is necessary
to afford the district attorney an opportunity to be heard and such
reasonable cause determination to be made.