STATE OF NEW YORK ________________________________________________________________________ 1927 2023-2024 Regular Sessions IN SENATE January 17, 2023 ___________ Introduced by Sen. GRIFFO -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the criminal procedure law, in relation to retention of custody of persons found not guilty by reason of mental disease or defect The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 330.20 of the criminal procedure law, as added by 2 chapter 548 of the laws of 1980, paragraphs (a) and (b) of subdivision 1 3 as amended by chapter 672 of the laws of 2019, paragraph (d) of subdivi- 4 sion 1 and the opening paragraph of subdivision 2 as amended by chapter 5 479 of the laws of 2022, paragraph (o) of subdivision 1, the closing 6 paragraph of subdivision 2 and subdivisions 7-a and 22 as amended by 7 chapter 107 of the laws of 2004, subdivisions 2 and 20 as amended by 8 chapter 693 of the laws of 1989, subdivision 2-a as added by chapter 1 9 of the laws of 2013, subdivisions 5, 8, 9, 10, 11, 12, 13 and 14 as 10 amended by chapter 789 of the laws of 1985, subdivision 21 as added by 11 chapter 976 of the laws of 1983, and subparagraph (ii) of paragraph (a) 12 of subdivision 21 as amended by chapter 330 of the laws of 1993, is 13 amended to read as follows: 14 § 330.20 Procedure following verdict or plea of not responsible by 15 reason of mental disease or defect. 16 1. Definition of terms. As used in this section, the following terms 17 shall have the following meanings: 18 (a) "Commissioner" means the [state] commissioner of mental health or 19 the [state] commissioner of the office for people with developmental 20 disabilities. 21 (b) "Secure facility" means a facility within the [state] office of 22 mental health or the [state] office for people with developmental disa- 23 bilities which is staffed with personnel adequately trained in security EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04502-01-3
S. 1927 2 1 methods and is so equipped as to minimize the risk or danger of escapes, 2 and which has been so specifically designated by the commissioner. 3 (c) "Dangerous mental disorder" means: (i) that a defendant currently 4 suffers from a "mental illness" as that term is defined in subdivision 5 twenty of section 1.03 of the mental hygiene law, and (ii) that because 6 of such condition he or she currently constitutes a physical danger to 7 himself or herself or others. 8 (d) "Mentally ill" means that a defendant currently suffers from a 9 mental illness for which care and treatment as a patient, in the in-pa- 10 tient services of a psychiatric center under the jurisdiction of the 11 [state] office of mental health, is essential to such defendant's 12 welfare and that his or her judgment is so impaired that he or she is 13 unable to understand the need for such care and treatment; and, where a 14 defendant has a developmental disability, the term "mentally ill" shall 15 also mean, for purposes of this section, that the defendant is in need 16 of care and treatment as a resident in the in-patient services of a 17 developmental center or other residential facility for individuals with 18 developmental disabilities under the jurisdiction of the [state] office 19 for people with developmental disabilities. 20 (e) "Examination order" means an order directed to the commissioner 21 requiring that a defendant submit to a psychiatric examination to deter- 22 mine whether the defendant has a dangerous mental disorder, or if he or 23 she does not have a dangerous mental disorder, whether he or she is 24 mentally ill. 25 (f) "Commitment order" [or "recommitment order"] means an order 26 committing a defendant to the custody of the commissioner for confine- 27 ment in a secure facility for care and treatment [for six months from 28 the date of the order]. 29 (g) "First retention order" means an order which is effective at the 30 expiration of the period prescribed in a commitment order [for] or a 31 recommitment order, authorizing continued custody of a defendant by the 32 commissioner for a period not to exceed one year. 33 (h) "Second retention order" means an order which is effective at the 34 expiration of the period prescribed in a first retention order, author- 35 izing continued custody of a defendant by the commissioner for a period 36 not to exceed two years. 37 (i) "Subsequent retention order" means an order which is effective at 38 the expiration of the period prescribed in a second retention order or a 39 prior subsequent retention order authorizing continued custody of a 40 defendant by the commissioner for a period not to exceed two years. 41 (j) "Retention order" means a first retention order, a second 42 retention order or a subsequent retention order. 43 (k) "Furlough order" means an order directing the commissioner to 44 allow a defendant in confinement pursuant to a commitment order, recom- 45 mitment order or retention order to temporarily leave the facility for a 46 period not exceeding fourteen days, [either] with [or without] the 47 constant supervision of one or more employees of the facility. 48 (l) "Transfer order" means an order directing the commissioner to 49 transfer a defendant from a secure facility to a non-secure facility 50 under the jurisdiction of the commissioner or to any non-secure facility 51 designated by the commissioner. 52 (m) "Release order" means an order directing the commissioner to 53 terminate a defendant's in-patient status without terminating the 54 commissioner's responsibility for the defendant.
S. 1927 3 1 (n) "Discharge order" means an order terminating an order of condi- 2 tions or unconditionally discharging a defendant from supervision under 3 the provisions of this section. 4 (o) "Order of conditions" means an order directing a defendant to 5 comply with this prescribed treatment plan, or any other condition which 6 the court determines to be reasonably necessary or appropriate, and, in 7 addition, where a defendant is in custody of the commissioner, not to 8 leave the facility without authorization. In addition to such condi- 9 tions, when determined to be reasonably necessary or appropriate, an 10 order of conditions may be accompanied by a special order of conditions 11 set forth in a separate document requiring that the defendant: (i) stay 12 away from the home, school, business or place of employment of the 13 victim or victims, or of any witness designated by the court, of such 14 offense; or (ii) refrain from harassing, intimidating, threatening or 15 otherwise interfering with the victim or victims of the offense and such 16 members of the family or household of such victim or victims as shall be 17 specifically named by the court in such special order. An order of 18 conditions or special order of conditions shall be valid for five years 19 from the date of its issuance, except that, for good cause shown, the 20 court may extend the period for an additional five years. 21 (p) "District attorney" means the office which prosecuted the criminal 22 action resulting in the verdict or plea of not responsible by reason of 23 mental disease or defect. 24 (q) "Qualified psychiatrist" means a physician who (i) is a diplomate 25 of the American board of psychiatry and neurology or is eligible to be 26 certified by that board; or (ii) is certified by the American osteopath- 27 ic board of neurology and psychiatry or is eligible to be certified by 28 that board. 29 (r) "Licensed psychologist" means a person who is registered as a 30 psychologist under article one hundred fifty-three of the education law. 31 (s) "Psychiatric examiner" means a qualified psychiatrist or a 32 licensed psychologist who has been designated by the commissioner to 33 examine a defendant pursuant to this section, and such designee need not 34 be an employee of the department of mental hygiene. 35 2. [Examination] Sentence; examination order; psychiatric examiners. 36 Upon entry of a verdict of not responsible by reason of mental disease 37 or defect, or upon the acceptance of a plea of not responsible by reason 38 of mental disease or defect, the court must immediately (a) impose a 39 period of confinement in the custody of the commissioner which is equal 40 to the sentence of imprisonment such defendant would have received 41 pursuant to article seventy of the penal law, upon conviction of the 42 crime with which he or she was charged; and (b) issue an examination 43 order. Upon receipt of such order, the commissioner must designate two 44 qualified psychiatric examiners to conduct the examination to examine 45 the defendant. In conducting their examination, the psychiatric examin- 46 ers may employ any method which is accepted by the medical profession 47 for the examination of persons alleged to be suffering from a dangerous 48 mental disorder or to be mentally ill or having a developmental disabil- 49 ity. The court may authorize a psychiatrist or psychologist retained by 50 a defendant to be present at such examination. The clerk of the court 51 must promptly forward a copy of the examination order to the mental 52 hygiene legal service and such service may thereafter participate in all 53 subsequent proceedings under this section. 54 In all subsequent proceedings under this section, [prior to the issu- 55 ance of a special order of conditions,] the court shall consider whether 56 any order of protection had been issued prior to a verdict of not
S. 1927 4 1 responsible by reason of mental disease or defect in the case, or prior 2 to the acceptance of a plea of not responsible by reason of mental 3 disease or defect in the case. 4 2-a. Firearm, rifle or shotgun surrender order. Upon entry of a 5 verdict of not responsible by reason of mental disease or defect, or 6 upon the acceptance of a plea of not responsible by reason of mental 7 disease or defect, or upon a finding that the defendant is an incapaci- 8 tated person pursuant to article seven hundred thirty of this chapter, 9 the court shall revoke the defendant's firearm license, if any, inquire 10 of the defendant as to the existence and location of any firearm, rifle 11 or shotgun owned or possessed by such defendant and direct the surrender 12 of such firearm, rifle or shotgun pursuant to subparagraph (f) of para- 13 graph one of subdivision a of section 265.20 and subdivision six of 14 section 400.05 of the penal law. 15 3. Examination order; place of examination. Upon issuing an examina- 16 tion order, the court must, except as otherwise provided in this subdi- 17 vision, direct that the defendant be committed to a secure facility 18 designated by the commissioner as the place for such psychiatric exam- 19 ination. The sheriff must hold the defendant in custody pending such 20 designation by the commissioner, and when notified of the designation, 21 the sheriff must promptly deliver the defendant to such secure facility. 22 [When the defendant is not in custody at the time of such verdict or 23 plea, because he was previously released on bail or on his own recogni- 24 zance, the court, in its discretion, may direct that such examination be 25 conducted on an out-patient basis, and at such time and place as the 26 commissioner shall designate. If, however, the commissioner informs the 27 court that confinement of the defendant is necessary for an effective 28 examination, the court must direct that the defendant be confined in a 29 facility designated by the commissioner until the examination is 30 completed.] 31 4. Examination order, duration. Confinement in a secure facility 32 pursuant to an examination order shall be for a period not exceeding 33 thirty days, except that, upon application of the commissioner, the 34 court may authorize confinement for an additional period not exceeding 35 thirty days when a longer period is necessary to complete the examina- 36 tion. [If the initial hearing required by subdivision six of this 37 section has not commenced prior to the termination of such examination 38 period, the commissioner shall retain custody of the defendant in such 39 secure facility until custody is transferred to the sheriff in the 40 manner prescribed in subdivision six of this section.] During the period 41 of such confinement, the physician in charge of the facility may admin- 42 ister or cause to be administered to the defendant such emergency 43 psychiatric, medical or other therapeutic treatment as in his or her 44 judgment should be administered. [If the court has directed that the 45 examination be conducted on an out-patient basis, the examination shall 46 be completed within thirty days after the defendant has first reported 47 to the place designated by the commissioner, except that, upon applica- 48 tion of the commissioner, the court may extend such period for a reason- 49 able time if a longer period is necessary to complete the examination.] 50 5. Examination order; reports. After he or she has completed his or 51 her examination of the defendant, each psychiatric examiner must prompt- 52 ly prepare a report of his or her findings and evaluation concerning the 53 defendant's mental condition, and submit such report to the commission- 54 er. If the psychiatric examiners differ in their opinion as to whether 55 the defendant is mentally ill or is suffering from a dangerous mental 56 disorder, the commissioner must designate another psychiatric examiner
S. 1927 5 1 to examine the defendant. Upon receipt of the examination reports, the 2 commissioner must submit them to the court that issued the examination 3 order. If the court is not satisfied with the findings of these psychi- 4 atric examiners, the court may designate one or more additional psychi- 5 atric examiners pursuant to subdivision [fifteen] fourteen of this 6 section. [The court must furnish a copy of the reports to the district 7 attorney, counsel for the defendant and the mental hygiene legal 8 service.] 9 6. [Initial hearing; commitment] Commitment order. After the examina- 10 tion reports are submitted, the court must[, within ten days of the 11 receipt of such reports, conduct an initial hearing to determine the 12 defendant's present mental condition. If the defendant is in the custody 13 of the commissioner pursuant to an examination order, the court must 14 direct the sheriff to obtain custody of the defendant from the commis- 15 sioner and to confine the defendant pending further order of the court, 16 except that the court may direct the sheriff to confine the defendant in 17 an institution located near the place where the court sits if that 18 institution has been designated by the commissioner as suitable for the 19 temporary and secure detention of mentally disabled persons. At such 20 initial hearing, the district attorney must establish to the satisfac- 21 tion of the court that the defendant has a dangerous mental disorder or 22 is mentally ill. If the court finds that the defendant has a dangerous 23 mental disorder, it must] issue a commitment order for the term of the 24 period of confinement imposed, pursuant to paragraph (a) of subdivision 25 two of this section, and to such a secure facility as shall be suitable 26 for a mentally ill person or a person with a dangerous mental disorder, 27 as the case may be, based upon the examination reports. [If the court 28 finds that the defendant does not have a dangerous mental disorder but 29 is mentally ill, the provisions of subdivision seven of this section 30 shall apply.] 31 7. [Initial hearing civil commitment and order of conditions. If, at 32 the conclusion of the initial hearing conducted pursuant to subdivision 33 six of this section, the court finds that the defendant is mentally ill 34 but does not have a dangerous mental disorder, the provisions of arti- 35 cles nine or fifteen of the mental hygiene law shall apply at that stage 36 of the proceedings and at all subsequent proceedings. Having found that 37 the defendant is mentally ill, the court must issue an order of condi- 38 tions and an order committing the defendant to the custody of the 39 commissioner. The latter order shall be deemed an order made pursuant to 40 the mental hygiene law and not pursuant to this section, and further 41 retention, conditional release or discharge of such defendant shall be 42 in accordance with the provisions of the mental hygiene law. If, at the 43 conclusion of the initial hearing, the court finds that the defendant 44 does not have a dangerous mental disorder and is not mentally ill, the 45 court must discharge the defendant either unconditionally or subject to 46 an order of conditions. 47 7-a. Whenever the court issues a special order of conditions pursuant 48 to this section, the commissioner shall make reasonable efforts to noti- 49 fy the victim or victims or the designated witness or witnesses that a 50 special order of conditions containing such provisions has been issued, 51 unless such victim or witness has requested that such notice should not 52 be provided. 53 8.] First retention order. When a defendant is in the custody of the 54 commissioner pursuant to a commitment order, the commissioner must, at 55 least thirty days prior to the expiration of the period prescribed in 56 the order, apply to the court that issued the order, or to a superior
S. 1927 6 1 court in the county where the secure facility is located, for a first 2 retention order or a release order. The commissioner must give written 3 notice of the application to the district attorney, the defendant, coun- 4 sel for the defendant, and the mental hygiene legal service. Upon 5 receipt of such application, the court may, on its own motion, conduct a 6 hearing to determine whether the defendant has a dangerous mental disor- 7 der, and it must conduct such hearing if a demand therefor is made by 8 the district attorney, the defendant, counsel for the defendant, or the 9 mental hygiene legal service within ten days from the date that notice 10 of the application was given to them. If such a hearing is held on an 11 application for retention, the commissioner must establish to the satis- 12 faction of the court that the defendant has a dangerous mental disorder 13 or is mentally ill. The district attorney shall be entitled to appear 14 and present evidence at such hearing. If such a hearing is held on an 15 application for release, the district attorney must establish to the 16 satisfaction of the court that the defendant has a dangerous mental 17 disorder or is mentally ill. If the court finds that the defendant has a 18 dangerous mental disorder it must issue a first retention order. If the 19 court finds that the defendant is mentally ill but does not have a 20 dangerous mental disorder, it must issue a first retention order and, 21 pursuant to subdivision [eleven] ten of this section, a transfer order 22 and an order of conditions. If the court finds that the defendant does 23 not have a dangerous mental disorder and is not mentally ill, it must 24 issue a release order and an order of conditions pursuant to subdivision 25 [twelve] eleven of this section. 26 [9.] 8. Second and subsequent retention orders. When a defendant is in 27 the custody of the commissioner pursuant to a first retention order, the 28 commissioner must, at least thirty days prior to the expiration of the 29 period prescribed in the order, apply to the court that issued the 30 order, or to a superior court in the county where the facility is 31 located, for a second retention order or a release order. The commis- 32 sioner must give written notice of the application to the district 33 attorney, the defendant, counsel for the defendant, and the mental 34 hygiene legal service. Upon receipt of such application, the court may, 35 on its own motion, conduct a hearing to determine whether the defendant 36 has a dangerous mental disorder, and it must conduct such hearing if a 37 demand therefor is made by the district attorney, the defendant, counsel 38 for the defendant, or the mental hygiene legal service within ten days 39 from the date that notice of the application was given to them. If such 40 a hearing is held on an application for retention, the commissioner must 41 establish to the satisfaction of the court that the defendant has a 42 dangerous mental disorder or is mentally ill. The district attorney 43 shall be entitled to appear and present evidence at such hearing. If 44 such a hearing is held on an application for release, the district 45 attorney must establish to the satisfaction of the court that the 46 defendant has a dangerous mental disorder or is mentally ill. If the 47 court finds that the defendant has a dangerous mental disorder it must 48 issue a second retention order. If the court finds that the defendant is 49 mentally ill but does not have a dangerous mental disorder, it must 50 issue a second retention order and, pursuant to subdivision [eleven] ten 51 of this section, a transfer order and an order of conditions. If the 52 court finds that the defendant does not have a dangerous mental disorder 53 and is not mentally ill, it must issue a release order and an order of 54 conditions pursuant to subdivision [twelve] eleven of this section. When 55 a defendant is in the custody of the commissioner prior to the expira- 56 tion of the period prescribed in a second retention order, the proce-
S. 1927 7 1 dures set forth in this subdivision for the issuance of a second 2 retention order shall govern the application for and the issuance of any 3 subsequent retention order. 4 [10.] 9. Furlough order. The commissioner may apply for a furlough 5 order, pursuant to this subdivision, when a defendant is in his or her 6 custody pursuant to a [commitment order,] recommitment order[,] or 7 retention order and the commissioner is of the view that, consistent 8 with the public safety and welfare of the community and the defendant, 9 the clinical condition of the defendant warrants a granting of the priv- 10 ileges authorized by a furlough order. The application for a furlough 11 order may be made to the court that issued the commitment order, or to a 12 superior court in the county where the secure facility is located. The 13 commissioner must give ten days written notice to the district attorney, 14 the defendant, counsel for the defendant, and the mental hygiene legal 15 service. Upon receipt of such application, the court may, on its own 16 motion, conduct a hearing to determine whether the application should be 17 granted, and must conduct such hearing if a demand therefor is made by 18 the district attorney. If the court finds that the issuance of a 19 furlough order is consistent with the public safety and welfare of the 20 community and the defendant, and that the clinical condition of the 21 defendant warrants a granting of the privileges authorized by a furlough 22 order, the court must grant the application and issue a furlough order 23 containing any terms and conditions that the court deems necessary or 24 appropriate. If the defendant fails to return to the secure facility at 25 the time specified in the furlough order, then, for purposes of subdivi- 26 sion [nineteen] eighteen of this section, he or she shall be deemed to 27 have escaped. 28 [11.] 10. Transfer order and order of conditions. The commissioner may 29 apply for a transfer order, pursuant to this subdivision, when a defend- 30 ant is in his or her custody pursuant to a retention order or a recom- 31 mitment order, and the commissioner is of the view that the defendant 32 does not have a dangerous mental disorder or that, consistent with the 33 public safety and welfare of the community and the defendant, the clin- 34 ical condition of the defendant warrants his or her transfer from a 35 secure facility to a non-secure facility under the jurisdiction of the 36 commissioner or to any non-secure facility designated by the commission- 37 er. The application for a transfer order may be made to the court that 38 issued the order under which the defendant is then in custody, or to a 39 superior court in the county where the secure facility is located. The 40 commissioner must give ten days written notice to the district attorney, 41 the defendant, counsel for the defendant, and the mental hygiene legal 42 service. Upon receipt of such application, the court may, on its own 43 motion, conduct a hearing to determine whether the application should be 44 granted, and must conduct such hearing if the demand therefor is made by 45 the district attorney. At such hearing, the district attorney must 46 establish to the satisfaction of the court that the defendant has a 47 dangerous mental disorder or that the issuance of a transfer order is 48 inconsistent with the public safety and welfare of the community. The 49 court must grant the application and issue a transfer order if the court 50 finds that the defendant does not have a dangerous mental disorder, or 51 if the court finds that the issuance of a transfer order is consistent 52 with the public safety and welfare of the community and the defendant 53 and that the clinical condition of the defendant, warrants his or her 54 transfer from a secure facility to a non-secure facility. A court must 55 also issue a transfer order when, in connection with an application for 56 a first retention order pursuant to subdivision [eight] seven of this
S. 1927 8 1 section or a second or subsequent retention order pursuant to subdivi- 2 sion [nine] eight of this section, it finds that a defendant is mentally 3 ill but does not have a dangerous mental disorder. Whenever a court 4 issues a transfer order it must also issue an order of conditions. 5 [12.] 11. Release order and order of conditions. The commissioner may 6 apply for a release order, pursuant to this subdivision, when a defend- 7 ant is in his or her custody pursuant to a retention order or recommit- 8 ment order, and the commissioner is of the view that the defendant no 9 longer has a dangerous mental disorder and is no longer mentally ill. 10 The application for a release order may be made to the court that issued 11 the order under which the defendant is then in custody, or to a superior 12 court in the county where the facility is located. The application must 13 contain a description of the defendant's current mental condition, the 14 past course of treatment, a history of the defendant's conduct subse- 15 quent to his or her commitment, a written service plan for continued 16 treatment which shall include the information specified in subdivision 17 (g) of section 29.15 of the mental hygiene law, and a detailed statement 18 of the extent to which supervision of the defendant after release is 19 proposed. The commissioner must give ten days written notice to the 20 district attorney, the defendant, counsel for the defendant, and the 21 mental hygiene legal service. Upon receipt of such application, the 22 court must promptly conduct a hearing to determine the defendant's pres- 23 ent mental condition. At such hearing, the district attorney must 24 establish to the satisfaction of the court that the defendant has a 25 dangerous mental disorder or is mentally ill. If the court finds that 26 the defendant has a dangerous mental disorder, it must deny the applica- 27 tion for a release order. If the court finds that the defendant does not 28 have a dangerous mental disorder but is mentally ill, it must issue a 29 transfer order pursuant to subdivision [eleven] ten of this section if 30 the defendant is then confined in a secure facility. If the court finds 31 that the defendant does not have a dangerous mental disorder and is not 32 mentally ill, it must grant the application and issue a release order. A 33 court must also issue a release order when, in connection with an appli- 34 cation for a first retention order pursuant to subdivision [eight] seven 35 of this section or a second or subsequent retention order pursuant to 36 subdivision [nine] eight of this section, it finds that the defendant 37 does not have a dangerous mental disorder and is not mentally ill. When- 38 ever a court issues a release order it must also issue an order of 39 conditions. If the court has previously issued a transfer order and an 40 order of conditions, it must issue a new order of conditions upon issu- 41 ing a release order. The order of conditions issued in conjunction with 42 a release order shall incorporate a written service plan prepared by a 43 psychiatrist familiar with the defendant's case history and approved by 44 the court, and shall contain any conditions that the court determines to 45 be reasonably necessary or appropriate. It shall be the responsibility 46 of the commissioner to determine that such defendant is receiving the 47 services specified in the written service plan and is complying with any 48 conditions specified in such plan and the order of conditions. 49 [13.] 12. Discharge order. The commissioner may apply for a discharge 50 order, pursuant to this subdivision, when a defendant has been contin- 51 uously on an out-patient status for three years or more pursuant to a 52 release order, and the commissioner is of the view that the defendant no 53 longer has a dangerous mental disorder and is no longer mentally ill and 54 that the issuance of a discharge order is consistent with the public 55 safety and welfare of the community and the defendant. The application 56 for a discharge order may be made to the court that issued the release
S. 1927 9 1 order, or to a superior court in the county where the defendant is then 2 residing. The commissioner must give ten days written notice to the 3 district attorney, the defendant, counsel for the defendant, and the 4 mental hygiene legal service. Upon receipt of such application, the 5 court may, on its own motion, conduct a hearing to determine whether the 6 application should be granted, and must conduct such hearing if a demand 7 therefor is made by the district attorney. The court must grant the 8 application and issue a discharge order if the court finds that the 9 defendant has been continuously on an out-patient status for three years 10 or more, that he or she does not have a dangerous mental disorder and is 11 not mentally ill, and that the issuance of the discharge order is 12 consistent with the public safety and welfare of the community and the 13 defendant. 14 [14.] 13. Recommitment order. At any time during the period covered by 15 an order of conditions an application may be made by the commissioner or 16 the district attorney to the court that issued such order, or to a supe- 17 rior court in the county where the defendant is then residing, for a 18 recommitment order when the applicant is of the view that the defendant 19 has a dangerous mental disorder. The applicant must give written notice 20 of the application to the defendant, counsel for the defendant, and the 21 mental hygiene legal service, and if the applicant is the commissioner 22 he or she must give such notice to the district attorney or if the 23 applicant is the district attorney he or she must give such notice to 24 the commissioner. Upon receipt of such application the court must order 25 the defendant to appear before it for a hearing to determine if the 26 defendant has a dangerous mental disorder. Such order may be in the form 27 of a written notice, specifying the time and place of appearance, served 28 personally upon the defendant, or mailed to his or her last known 29 address, as the court may direct. If the defendant fails to appear in 30 court as directed, the court [may] shall issue a warrant to an appropri- 31 ate peace officer directing him or her to take the defendant into custo- 32 dy and bring him or her before the court. In such circumstance, the 33 court [may] shall direct that the defendant be confined in an appropri- 34 ate institution located near the place where the court sits. The court 35 must conduct a hearing to determine whether the defendant has a danger- 36 ous mental disorder. At such hearing, the applicant, whether he or she 37 be the commissioner or the district attorney must establish to the 38 satisfaction of the court that the defendant has a dangerous mental 39 disorder. If the applicant is the commissioner, the district attorney 40 shall be entitled to appear and present evidence at such hearing; if the 41 applicant is the district attorney, the commissioner shall be entitled 42 to appear and present evidence at such hearing. If the court finds that 43 the defendant has a dangerous mental disorder, it must issue a recommit- 44 ment order. When a defendant is in the custody of the commissioner 45 pursuant to a recommitment order, the procedures set forth in subdivi- 46 sions seven and eight [and nine] of this section for the issuance of 47 retention orders shall govern the application for and the issuance of a 48 first retention order, a second retention order, and subsequent 49 retention orders. 50 [15.] 14. Designation of psychiatric examiners. If, at any hearing 51 conducted under this section to determine the defendant's present mental 52 condition, the court is not satisfied with the findings of the psychiat- 53 ric examiners, the court may direct the commissioner to designate one or 54 more additional psychiatric examiners to conduct an examination of the 55 defendant and submit a report of their findings. In addition, the court 56 may on its own motion, or upon request of a party, may designate one or
S. 1927 10 1 more psychiatric examiners to examine the defendant and submit a report 2 of their findings. The district attorney may apply to the court for an 3 order directing that the defendant submit to an examination by a psychi- 4 atric examiner designated by the district attorney, and such psychiatric 5 examiner may testify at the hearing. 6 [16.] 15. Rehearing and review. Any defendant who is in the custody of 7 the commissioner pursuant to [a commitment order,] a retention order, or 8 a recommitment order, if dissatisfied with such order, may, within thir- 9 ty days after the making of such order, obtain a rehearing and review of 10 the proceedings and of such order in accordance with the provisions of 11 section 9.35 or 15.35 of the mental hygiene law. 12 [17.] 16. Rights of defendants. Subject to the limitations and 13 provisions of this section, a defendant committed to the custody of the 14 commissioner pursuant to this section shall have the rights granted to 15 patients under the mental hygiene law. 16 [18.] 17. Notwithstanding any other provision of law, no person 17 confined by reason of a [commitment order,] recommitment order or 18 retention order to a secure facility may be discharged or released 19 unless the commissioner shall deliver written notice, at least four days 20 excluding Saturdays, Sundays and holidays, in advance of such discharge 21 or release to all of the following: 22 (a) the district attorney. 23 (b) the police department having jurisdiction of the area to which the 24 defendant is to be discharged or released. 25 (c) any other person the court may designate. 26 The notices required by this subdivision shall be given by the facili- 27 ty staff physician who was treating the defendant or, if unavailable, by 28 the defendant's treatment team leader, but if neither is immediately 29 available, notice must be given by some other member of the clinical 30 staff of the facility. Such notice must be given by any means reasonably 31 calculated to give prompt actual notice. 32 [19.] 18. Escape from custody; notice requirements. If a defendant is 33 in the custody of the commissioner pursuant to an order issued under 34 this section, and such defendant escapes from custody, immediate notice 35 of such escape shall be given by the department facility staff to: (a) 36 the district attorney, (b) the superintendent of state police, (c) the 37 sheriff of the county where the escape occurred, (d) the police depart- 38 ment having jurisdiction of the area where the escape occurred, (e) any 39 person the facility staff believes to be in danger, and (f) any law 40 enforcement agency and any person the facility staff believes would be 41 able to apprise such endangered person that the defendant has escaped 42 from the facility. Such notice shall be given as soon as the facility 43 staff know that the defendant has escaped from the facility and shall 44 include such information as will adequately identify the defendant and 45 the person or persons believed to be in danger and the nature of the 46 danger. The notices required by this subdivision shall be given by the 47 facility staff physician who was treating the defendant or, if unavail- 48 able, by the defendant's treatment team leader, but if neither is imme- 49 diately available, notice must be given by some other member of the 50 clinical staff of the facility. Such notice must be given by any means 51 reasonably calculated to give prompt actual notice. The defendant may be 52 apprehended, restrained, transported to, and returned to the facility 53 from which he escaped by any peace officer, and it shall be the duty of 54 the officer to assist any representative of the commissioner to take the 55 defendant into custody upon the request of such representative.
S. 1927 11 1 [20.] 19. Required affidavit. No application may be made by the 2 commissioner under this section without an accompanying affidavit from 3 at least one psychiatric examiner supportive of relief requested in the 4 application, which affidavit shall be served on all parties entitled to 5 receive the notice of application. Such affidavit shall set forth the 6 defendant's clinical diagnosis, a detailed analysis of his or her mental 7 condition which caused the psychiatric examiner to formulate an opinion, 8 and the opinion of the psychiatric examiner with respect to the defend- 9 ant. Any application submitted without the required affidavit shall be 10 dismissed by the court. 11 [21.] 20. Appeals. (a) A party to proceedings conducted in accordance 12 with the provisions of this section may take an appeal to an intermedi- 13 ate appellate court by permission of the intermediate appellate court as 14 follows: 15 (i) the commissioner may appeal from any release order, retention 16 order, transfer order, discharge order, order of conditions, or recom- 17 mitment order, for which he or she has not applied; 18 (ii) a defendant, or the mental hygiene legal service on his or her 19 behalf, may appeal from any [commitment order,] retention order, recom- 20 mitment order, or, if the defendant has obtained a rehearing and review 21 of any such order pursuant to subdivision [sixteen] fifteen of this 22 section, from an order, not otherwise appealable as of right, issued in 23 accordance with the provisions of section 9.35 or 15.35 of the mental 24 hygiene law authorizing continued retention under the original order, 25 provided, however, that a defendant who takes an appeal from a [commit- 26 ment order,] retention order, or recommitment order may not subsequently 27 obtain a rehearing and review of such order pursuant to subdivision 28 [sixteen] fifteen of this section; 29 (iii) the district attorney may appeal from any release order, trans- 30 fer order, discharge order, order of conditions, furlough order, or 31 order denying an application for a recommitment order which he or she 32 opposed. 33 (b) An aggrieved party may appeal from a final order of the intermedi- 34 ate appellate court to the court of appeals by permission of the inter- 35 mediate appellate court granted before application to the court of 36 appeals, or by permission of the court of appeals upon refusal by the 37 intermediate appellate court or upon direct application. 38 (c) An appeal taken under this subdivision shall be deemed civil in 39 nature, and shall be governed by the laws and rules applicable to civil 40 appeals; provided, however, that a stay of the order appealed from must 41 be obtained in accordance with the provisions of paragraph (d) [hereof] 42 of this subdivision. 43 (d) The court from or to which an appeal is taken may stay all 44 proceedings to enforce the order appealed from pending an appeal or 45 determination on a motion for permission to appeal, or may grant a 46 limited stay, except that only the court to which an appeal is taken may 47 vacate, limit, or modify a stay previously granted. If the order 48 appealed from is affirmed or modified, the stay shall continue for five 49 days after service upon the appellant of the order of affirmance or 50 modification with notice of its entry in the court to which the appeal 51 was taken. If a motion is made for permission to appeal from such an 52 order, before the expiration of the five days, the stay, or any other 53 stay granted pending determination of the motion for permission to 54 appeal, shall: 55 (i) if the motion is granted, continue until five days after the 56 appeal is determined; or
S. 1927 12 1 (ii) if the motion is denied, continue until five days after the 2 movant is served with the order of denial with notice of its entry. 3 [22.] 21. Any special order of conditions issued pursuant to subpara- 4 graph (i) or (ii) of paragraph (o) of subdivision one of this section 5 shall bear in a conspicuous manner the term "special order of condi- 6 tions" and a copy shall be filed by the clerk of the court with the 7 sheriff's office in the county in which anyone intended to be protected 8 by such special order resides, or, if anyone intended to be protected by 9 such special order resides within a city, with the police department of 10 such city. The absence of language specifying that the order is a 11 "special order of conditions" shall not affect the validity of such 12 order. A copy of such special order of conditions may from time to time 13 be filed by the clerk of the court with any other police department or 14 sheriff's office having jurisdiction of the residence, work place, or 15 school of anyone intended to be protected by such special order. A copy 16 of such special order may also be filed by anyone intended to be 17 protected by such provisions at the appropriate police department or 18 sheriff's office having jurisdiction. Any subsequent amendment or revo- 19 cation of such special order may be filed in the same manner as provided 20 in this subdivision. Such special order of conditions shall plainly 21 state the date that the order expires. 22 § 2. This act shall take effect on the first of January next succeed- 23 ing the date on which it shall have become a law and shall apply to 24 criminal offenses committed on or after such date.