Bill Text: NY A05465 | 2019-2020 | General Assembly | Introduced
Bill Title: Directs a criminal court to establish a period of commitment for persons found not responsible by reason of mental disease or defect; a person so committed shall not be eligible for release from the custody of the commissioner of mental health or the commissioner of developmental disabilities until completion of the period of commitment.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2020-01-08 - referred to codes [A05465 Detail]
Download: New_York-2019-A05465-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 5465 2019-2020 Regular Sessions IN ASSEMBLY February 12, 2019 ___________ Introduced by M. of A. SALKA -- read once and referred 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, paragraph (o) of subdivision 1, the 3 closing paragraph of subdivision 2 and subdivisions 7-a and 22 as 4 amended by chapter 107 of the laws of 2004, subdivisions 2 and 20 as 5 amended by chapter 693 of the laws of 1989, subdivision 2-a as added by 6 chapter 1 of the laws of 2013, subdivisions 5, 8, 9, 10, 11, 12, 13 and 7 14 as amended by chapter 789 of the laws of 1985, subdivision 21 as 8 added by chapter 976 of the laws of 1983, and subparagraph (ii) of para- 9 graph (a) of subdivision 21 as amended by chapter 330 of the laws of 10 1993, is amended to read as follows: 11 § 330.20 Procedure following verdict or plea of not responsible by 12 reason of mental disease or defect. 13 1. Definition of terms. As used in this section, the following terms 14 shall have the following meanings: 15 (a) "Commissioner" means the [state] commissioner of mental health or 16 the [state] commissioner of [mental retardation and] the office for 17 people with developmental [disability] disabilities. 18 (b) "Secure facility" means a facility within the [state] office of 19 mental health or the [state] office [of mental retardation and] for 20 people with developmental disabilities which is staffed with personnel 21 adequately trained in security methods and is so equipped as to minimize 22 the risk or danger of escapes, and which has been so specifically desig- 23 nated by the commissioner. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD08522-01-9A. 5465 2 1 (c) "Dangerous mental disorder" means: (i) that a defendant currently 2 suffers from a "mental illness" as that term is defined in subdivision 3 twenty of section 1.03 of the mental hygiene law, and (ii) that because 4 of such condition he currently constitutes a physical danger to himself 5 or herself or others. 6 (d) "Mentally ill" means that a defendant currently suffers from a 7 mental illness for which care and treatment as a patient, in the in-pa- 8 tient services of a psychiatric center under the jurisdiction of the 9 [state] office of mental health, is essential to such defendant's 10 welfare and that his or her judgment is so impaired that he or she is 11 unable to understand the need for such care and treatment; and, where a 12 defendant is mentally retarded, the term "mentally ill" shall also mean, 13 for purposes of this section, that the defendant is in need of care and 14 treatment as a resident in the in-patient services of a developmental 15 center or other residential facility for the mentally retarded and 16 developmentally disabled under the jurisdiction of the [state] office 17 [of mental retardation and] for people with developmental disabilities. 18 (e) "Examination order" means an order directed to the commissioner 19 requiring that a defendant submit to a psychiatric examination to deter- 20 mine whether the defendant has a dangerous mental disorder, or if he or 21 she does not have a dangerous mental disorder, whether he or she is 22 mentally ill. 23 (f) "Commitment order" [or "recommitment order"] means an order 24 committing a defendant to the custody of the commissioner for confine- 25 ment in a secure facility for care and treatment [for six months from26the date of the order]. 27 (g) "First retention order" means an order which is effective at the 28 expiration of the period prescribed in a commitment order [for] or a 29 recommitment order, authorizing continued custody of a defendant by the 30 commissioner for a period not to exceed one year. 31 (h) "Second retention order" means an order which is effective at the 32 expiration of the period prescribed in a first retention order, author- 33 izing continued custody of a defendant by the commissioner for a period 34 not to exceed two years. 35 (i) "Subsequent retention order" means an order which is effective at 36 the expiration of the period prescribed in a second retention order or a 37 prior subsequent retention order authorizing continued custody of a 38 defendant by the commissioner for a period not to exceed two years. 39 (j) "Retention order" means a first retention order, a second 40 retention order or a subsequent retention order. 41 (k) "Furlough order" means an order directing the commissioner to 42 allow a defendant in confinement pursuant to a commitment order, recom- 43 mitment order or retention order to temporarily leave the facility for a 44 period not exceeding fourteen days, [either] with [or without] the 45 constant supervision of one or more employees of the facility. 46 (l) "Transfer order" means an order directing the commissioner to 47 transfer a defendant from a secure facility to a non-secure facility 48 under the jurisdiction of the commissioner or to any non-secure facility 49 designated by the commissioner. 50 (m) "Release order" means an order directing the commissioner to 51 terminate a defendant's in-patient status without terminating the 52 commissioner's responsibility for the defendant. 53 (n) "Discharge order" means an order terminating an order of condi- 54 tions or unconditionally discharging a defendant from supervision under 55 the provisions of this section.A. 5465 3 1 (o) "Order of conditions" means an order directing a defendant to 2 comply with this prescribed treatment plan, or any other condition which 3 the court determines to be reasonably necessary or appropriate, and, in 4 addition, where a defendant is in custody of the commissioner, not to 5 leave the facility without authorization. In addition to such condi- 6 tions, when determined to be reasonably necessary or appropriate, an 7 order of conditions may be accompanied by a special order of conditions 8 set forth in a separate document requiring that the defendant: (i) stay 9 away from the home, school, business or place of employment of the 10 victim or victims, or of any witness designated by the court, of such 11 offense; or (ii) refrain from harassing, intimidating, threatening or 12 otherwise interfering with the victim or victims of the offense and such 13 members of the family or household of such victim or victims as shall be 14 specifically named by the court in such special order. An order of 15 conditions or special order of conditions shall be valid for five years 16 from the date of its issuance, except that, for good cause shown, the 17 court may extend the period for an additional five years. 18 (p) "District attorney" means the office which prosecuted the criminal 19 action resulting in the verdict or plea of not responsible by reason of 20 mental disease or defect. 21 (q) "Qualified psychiatrist" means a physician who (i) is a diplomate 22 of the American board of psychiatry and neurology or is eligible to be 23 certified by that board; or (ii) is certified by the American osteopath- 24 ic board of neurology and psychiatry or is eligible to be certified by 25 that board. 26 (r) "Licensed psychologist" means a person who is registered as a 27 psychologist under article one hundred fifty-three of the education law. 28 (s) "Psychiatric examiner" means a qualified psychiatrist or a 29 licensed psychologist who has been designated by the commissioner to 30 examine a defendant pursuant to this section, and such designee need not 31 be an employee of the department of mental hygiene. 32 2. [Examination] Sentence; examination order; psychiatric examiners. 33 Upon entry of a verdict of not responsible by reason of mental disease 34 or defect, or upon the acceptance of a plea of not responsible by reason 35 of mental disease or defect, the court must immediately (a) impose a 36 period of confinement in the custody of the commissioner which is equal 37 to the sentence of imprisonment such defendant would have received 38 pursuant to article seventy of the penal law, upon conviction of the 39 crime with which he or she was charged; and (b) issue an examination 40 order. Upon receipt of such order, the commissioner must designate two 41 qualified psychiatric examiners to conduct the examination to examine 42 the defendant. In conducting their examination, the psychiatric examin- 43 ers may employ any method which is accepted by the medical profession 44 for the examination of persons alleged to be suffering from a dangerous 45 mental disorder or to be mentally ill or retarded. The court may author- 46 ize a psychiatrist or psychologist retained by a defendant to be present 47 at such examination. The clerk of the court must promptly forward a copy 48 of the examination order to the mental hygiene legal service and such 49 service may thereafter participate in all subsequent proceedings under 50 this section. 51 In all subsequent proceedings under this section, [prior to the issu-52ance of a special order of conditions,] the court shall consider whether 53 any order of protection had been issued prior to a verdict of not 54 responsible by reason of mental disease or defect in the case, or prior 55 to the acceptance of a plea of not responsible by reason of mental 56 disease or defect in the case.A. 5465 4 1 2-a. Firearm, rifle or shotgun surrender order. Upon entry of a 2 verdict of not responsible by reason of mental disease or defect, or 3 upon the acceptance of a plea of not responsible by reason of mental 4 disease or defect, or upon a finding that the defendant is an incapaci- 5 tated person pursuant to article seven hundred thirty of this chapter, 6 the court shall revoke the defendant's firearm license, if any, inquire 7 of the defendant as to the existence and location of any firearm, rifle 8 or shotgun owned or possessed by such defendant and direct the surrender 9 of such firearm, rifle or shotgun pursuant to subparagraph (f) of para- 10 graph one of subdivision a of section 265.20 and subdivision six of 11 section 400.05 of the penal law. 12 3. Examination order; place of examination. Upon issuing an examina- 13 tion order, the court must, except as otherwise provided in this subdi- 14 vision, direct that the defendant be committed to a secure facility 15 designated by the commissioner as the place for such psychiatric exam- 16 ination. The sheriff must hold the defendant in custody pending such 17 designation by the commissioner, and when notified of the designation, 18 the sheriff must promptly deliver the defendant to such secure facility. 19 [When the defendant is not in custody at the time of such verdict or20plea, because he was previously released on bail or on his own recogni-21zance, the court, in its discretion, may direct that such examination be22conducted on an out-patient basis, and at such time and place as the23commissioner shall designate. If, however, the commissioner informs the24court that confinement of the defendant is necessary for an effective25examination, the court must direct that the defendant be confined in a26facility designated by the commissioner until the examination is27completed.] 28 4. Examination order, duration. Confinement in a secure facility 29 pursuant to an examination order shall be for a period not exceeding 30 thirty days, except that, upon application of the commissioner, the 31 court may authorize confinement for an additional period not exceeding 32 thirty days when a longer period is necessary to complete the examina- 33 tion. [If the initial hearing required by subdivision six of this34section has not commenced prior to the termination of such examination35period, the commissioner shall retain custody of the defendant in such36secure facility until custody is transferred to the sheriff in the37manner prescribed in subdivision six of this section.] During the period 38 of such confinement, the physician in charge of the facility may admin- 39 ister or cause to be administered to the defendant such emergency 40 psychiatric, medical or other therapeutic treatment as in his or her 41 judgment should be administered. [If the court has directed that the42examination be conducted on an out-patient basis, the examination shall43be completed within thirty days after the defendant has first reported44to the place designated by the commissioner, except that, upon applica-45tion of the commissioner, the court may extend such period for a reason-46able time if a longer period is necessary to complete the examination.] 47 5. Examination order; reports. After he or she has completed his or 48 her examination of the defendant, each psychiatric examiner must prompt- 49 ly prepare a report of his or her findings and evaluation concerning the 50 defendant's mental condition, and submit such report to the commission- 51 er. If the psychiatric examiners differ in their opinion as to whether 52 the defendant is mentally ill or is suffering from a dangerous mental 53 disorder, the commissioner must designate another psychiatric examiner 54 to examine the defendant. Upon receipt of the examination reports, the 55 commissioner must submit them to the court that issued the examination 56 order. If the court is not satisfied with the findings of these psychi-A. 5465 5 1 atric examiners, the court may designate one or more additional psychi- 2 atric examiners pursuant to subdivision [fifteen] fourteen of this 3 section. [The court must furnish a copy of the reports to the district4attorney, counsel for the defendant and the mental hygiene legal5service.] 6 6. [Initial hearing; commitment] Commitment order. After the examina- 7 tion reports are submitted, the court must[, within ten days of the8receipt of such reports, conduct an initial hearing to determine the9defendant's present mental condition. If the defendant is in the custody10of the commissioner pursuant to an examination order, the court must11direct the sheriff to obtain custody of the defendant from the commis-12sioner and to confine the defendant pending further order of the court,13except that the court may direct the sheriff to confine the defendant in14an institution located near the place where the court sits if that15institution has been designated by the commissioner as suitable for the16temporary and secure detention of mentally disabled persons. At such17initial hearing, the district attorney must establish to the satisfac-18tion of the court that the defendant has a dangerous mental disorder or19is mentally ill. If the court finds that the defendant has a dangerous20mental disorder, it must] issue a commitment order for the term of the 21 period of confinement imposed, pursuant to paragraph (a) of subdivision 22 two of this section, and to such a secure facility as shall be suitable 23 for a mentally ill person or a person with a dangerous mental disorder, 24 as the case may be, based upon the examination reports. [If the court25finds that the defendant does not have a dangerous mental disorder but26is mentally ill, the provisions of subdivision seven of this section27shall apply.] 28 7. [Initial hearing civil commitment and order of conditions. If, at29the conclusion of the initial hearing conducted pursuant to subdivision30six of this section, the court finds that the defendant is mentally ill31but does not have a dangerous mental disorder, the provisions of arti-32cles nine or fifteen of the mental hygiene law shall apply at that stage33of the proceedings and at all subsequent proceedings. Having found that34the defendant is mentally ill, the court must issue an order of condi-35tions and an order committing the defendant to the custody of the36commissioner. The latter order shall be deemed an order made pursuant to37the mental hygiene law and not pursuant to this section, and further38retention, conditional release or discharge of such defendant shall be39in accordance with the provisions of the mental hygiene law. If, at the40conclusion of the initial hearing, the court finds that the defendant41does not have a dangerous mental disorder and is not mentally ill, the42court must discharge the defendant either unconditionally or subject to43an order of conditions.447-a. Whenever the court issues a special order of conditions pursuant45to this section, the commissioner shall make reasonable efforts to noti-46fy the victim or victims or the designated witness or witnesses that a47special order of conditions containing such provisions has been issued,48unless such victim or witness has requested that such notice should not49be provided.508.] First retention order. When a defendant is in the custody of the 51 commissioner pursuant to a commitment order, the commissioner must, at 52 least thirty days prior to the expiration of the period prescribed in 53 the order, apply to the court that issued the order, or to a superior 54 court in the county where the secure facility is located, for a first 55 retention order or a release order. The commissioner must give written 56 notice of the application to the district attorney, the defendant, coun-A. 5465 6 1 sel for the defendant, and the mental hygiene legal service. Upon 2 receipt of such application, the court may, on its own motion, conduct a 3 hearing to determine whether the defendant has a dangerous mental disor- 4 der, and it must conduct such hearing if a demand therefor is made by 5 the district attorney, the defendant, counsel for the defendant, or the 6 mental hygiene legal service within ten days from the date that notice 7 of the application was given to them. If such a hearing is held on an 8 application for retention, the commissioner must establish to the satis- 9 faction of the court that the defendant has a dangerous mental disorder 10 or is mentally ill. The district attorney shall be entitled to appear 11 and present evidence at such hearing. If such a hearing is held on an 12 application for release, the district attorney must establish to the 13 satisfaction of the court that the defendant has a dangerous mental 14 disorder or is mentally ill. If the court finds that the defendant has a 15 dangerous mental disorder it must issue a first retention order. If the 16 court finds that the defendant is mentally ill but does not have a 17 dangerous mental disorder, it must issue a first retention order and, 18 pursuant to subdivision [eleven] ten of this section, a transfer order 19 and an order of conditions. If the court finds that the defendant does 20 not have a dangerous mental disorder and is not mentally ill, it must 21 issue a release order and an order of conditions pursuant to subdivision 22 [twelve] eleven of this section. 23 [9.] 8. Second and subsequent retention orders. When a defendant is in 24 the custody of the commissioner pursuant to a first retention order, the 25 commissioner must, at least thirty days prior to the expiration of the 26 period prescribed in the order, apply to the court that issued the 27 order, or to a superior court in the county where the facility is 28 located, for a second retention order or a release order. The commis- 29 sioner must give written notice of the application to the district 30 attorney, the defendant, counsel for the defendant, and the mental 31 hygiene legal service. Upon receipt of such application, the court may, 32 on its own motion, conduct a hearing to determine whether the defendant 33 has a dangerous mental disorder, and it must conduct such hearing if a 34 demand therefor is made by the district attorney, the defendant, counsel 35 for the defendant, or the mental hygiene legal service within ten days 36 from the date that notice of the application was given to them. If such 37 a hearing is held on an application for retention, the commissioner must 38 establish to the satisfaction of the court that the defendant has a 39 dangerous mental disorder or is mentally ill. The district attorney 40 shall be entitled to appear and present evidence at such hearing. If 41 such a hearing is held on an application for release, the district 42 attorney must establish to the satisfaction of the court that the 43 defendant has a dangerous mental disorder or is mentally ill. If the 44 court finds that the defendant has a dangerous mental disorder it must 45 issue a second retention order. If the court finds that the defendant is 46 mentally ill but does not have a dangerous mental disorder, it must 47 issue a second retention order and, pursuant to subdivision [eleven] ten 48 of this section, a transfer order and an order of conditions. If the 49 court finds that the defendant does not have a dangerous mental disorder 50 and is not mentally ill, it must issue a release order and an order of 51 conditions pursuant to subdivision [twelve] eleven of this section. When 52 a defendant is in the custody of the commissioner prior to the expira- 53 tion of the period prescribed in a second retention order, the proce- 54 dures set forth in this subdivision for the issuance of a second 55 retention order shall govern the application for and the issuance of any 56 subsequent retention order.A. 5465 7 1 [10.] 9. Furlough order. The commissioner may apply for a furlough 2 order, pursuant to this subdivision, when a defendant is in his or her 3 custody pursuant to a [commitment order,] recommitment order[,] or 4 retention order and the commissioner is of the view that, consistent 5 with the public safety and welfare of the community and the defendant, 6 the clinical condition of the defendant warrants a granting of the priv- 7 ileges authorized by a furlough order. The application for a furlough 8 order may be made to the court that issued the commitment order, or to a 9 superior court in the county where the secure facility is located. The 10 commissioner must give ten days written notice to the district attorney, 11 the defendant, counsel for the defendant, and the mental hygiene legal 12 service. Upon receipt of such application, the court may, on its own 13 motion, conduct a hearing to determine whether the application should be 14 granted, and must conduct such hearing if a demand therefor is made by 15 the district attorney. If the court finds that the issuance of a 16 furlough order is consistent with the public safety and welfare of the 17 community and the defendant, and that the clinical condition of the 18 defendant warrants a granting of the privileges authorized by a furlough 19 order, the court must grant the application and issue a furlough order 20 containing any terms and conditions that the court deems necessary or 21 appropriate. If the defendant fails to return to the secure facility at 22 the time specified in the furlough order, then, for purposes of subdivi- 23 sion [nineteen] eighteen of this section, he or she shall be deemed to 24 have escaped. 25 [11.] 10. Transfer order and order of conditions. The commissioner may 26 apply for a transfer order, pursuant to this subdivision, when a defend- 27 ant is in his or her custody pursuant to a retention order or a recom- 28 mitment order, and the commissioner is of the view that the defendant 29 does not have a dangerous mental disorder or that, consistent with the 30 public safety and welfare of the community and the defendant, the clin- 31 ical condition of the defendant warrants his or her transfer from a 32 secure facility to a non-secure facility under the jurisdiction of the 33 commissioner or to any non-secure facility designated by the commission- 34 er. The application for a transfer order may be made to the court that 35 issued the order under which the defendant is then in custody, or to a 36 superior court in the county where the secure facility is located. The 37 commissioner must give ten days written notice to the district attorney, 38 the defendant, counsel for the defendant, and the mental hygiene legal 39 service. Upon receipt of such application, the court may, on its own 40 motion, conduct a hearing to determine whether the application should be 41 granted, and must conduct such hearing if the demand therefor is made by 42 the district attorney. At such hearing, the district attorney must 43 establish to the satisfaction of the court that the defendant has a 44 dangerous mental disorder or that the issuance of a transfer order is 45 inconsistent with the public safety and welfare of the community. The 46 court must grant the application and issue a transfer order if the court 47 finds that the defendant does not have a dangerous mental disorder, or 48 if the court finds that the issuance of a transfer order is consistent 49 with the public safety and welfare of the community and the defendant 50 and that the clinical condition of the defendant, warrants his or her 51 transfer from a secure facility to a non-secure facility. A court must 52 also issue a transfer order when, in connection with an application for 53 a first retention order pursuant to subdivision [eight] seven of this 54 section or a second or subsequent retention order pursuant to subdivi- 55 sion [nine] eight of this section, it finds that a defendant is mentallyA. 5465 8 1 ill but does not have a dangerous mental disorder. Whenever a court 2 issues a transfer order it must also issue an order of conditions. 3 [12.] 11. Release order and order of conditions. The commissioner may 4 apply for a release order, pursuant to this subdivision, when a defend- 5 ant is in his or her custody pursuant to a retention order or recommit- 6 ment order, and the commissioner is of the view that the defendant no 7 longer has a dangerous mental disorder and is no longer mentally ill. 8 The application for a release order may be made to the court that issued 9 the order under which the defendant is then in custody, or to a superior 10 court in the county where the facility is located. The application must 11 contain a description of the defendant's current mental condition, the 12 past course of treatment, a history of the defendant's conduct subse- 13 quent to his or her commitment, a written service plan for continued 14 treatment which shall include the information specified in subdivision 15 (g) of section 29.15 of the mental hygiene law, and a detailed statement 16 of the extent to which supervision of the defendant after release is 17 proposed. The commissioner must give ten days written notice to the 18 district attorney, the defendant, counsel for the defendant, and the 19 mental hygiene legal service. Upon receipt of such application, the 20 court must promptly conduct a hearing to determine the defendant's pres- 21 ent mental condition. At such hearing, the district attorney must 22 establish to the satisfaction of the court that the defendant has a 23 dangerous mental disorder or is mentally ill. If the court finds that 24 the defendant has a dangerous mental disorder, it must deny the applica- 25 tion for a release order. If the court finds that the defendant does not 26 have a dangerous mental disorder but is mentally ill, it must issue a 27 transfer order pursuant to subdivision [eleven] ten of this section if 28 the defendant is then confined in a secure facility. If the court finds 29 that the defendant does not have a dangerous mental disorder and is not 30 mentally ill, it must grant the application and issue a release order. A 31 court must also issue a release order when, in connection with an appli- 32 cation for a first retention order pursuant to subdivision [eight] seven 33 of this section or a second or subsequent retention order pursuant to 34 subdivision [nine] eight of this section, it finds that the defendant 35 does not have a dangerous mental disorder and is not mentally ill. When- 36 ever a court issues a release order it must also issue an order of 37 conditions. If the court has previously issued a transfer order and an 38 order of conditions, it must issue a new order of conditions upon issu- 39 ing a release order. The order of conditions issued in conjunction with 40 a release order shall incorporate a written service plan prepared by a 41 psychiatrist familiar with the defendant's case history and approved by 42 the court, and shall contain any conditions that the court determines to 43 be reasonably necessary or appropriate. It shall be the responsibility 44 of the commissioner to determine that such defendant is receiving the 45 services specified in the written service plan and is complying with any 46 conditions specified in such plan and the order of conditions. 47 [13.] 12. Discharge order. The commissioner may apply for a discharge 48 order, pursuant to this subdivision, when a defendant has been contin- 49 uously on an out-patient status for three years or more pursuant to a 50 release order, and the commissioner is of the view that the defendant no 51 longer has a dangerous mental disorder and is no longer mentally ill and 52 that the issuance of a discharge order is consistent with the public 53 safety and welfare of the community and the defendant. The application 54 for a discharge order may be made to the court that issued the release 55 order, or to a superior court in the county where the defendant is then 56 residing. The commissioner must give ten days written notice to theA. 5465 9 1 district attorney, the defendant, counsel for the defendant, and the 2 mental hygiene legal service. Upon receipt of such application, the 3 court may, on its own motion, conduct a hearing to determine whether the 4 application should be granted, and must conduct such hearing if a demand 5 therefor is made by the district attorney. The court must grant the 6 application and issue a discharge order if the court finds that the 7 defendant has been continuously on an out-patient status for three years 8 or more, that he or she does not have a dangerous mental disorder and is 9 not mentally ill, and that the issuance of the discharge order is 10 consistent with the public safety and welfare of the community and the 11 defendant. 12 [14.] 13. Recommitment order. At any time during the period covered 13 by an order of conditions an application may be made by the commissioner 14 or the district attorney to the court that issued such order, or to a 15 superior court in the county where the defendant is then residing, for a 16 recommitment order when the applicant is of the view that the defendant 17 has a dangerous mental disorder. The applicant must give written notice 18 of the application to the defendant, counsel for the defendant, and the 19 mental hygiene legal service, and if the applicant is the commissioner 20 he or she must give such notice to the district attorney or if the 21 applicant is the district attorney he or she must give such notice to 22 the commissioner. Upon receipt of such application the court must order 23 the defendant to appear before it for a hearing to determine if the 24 defendant has a dangerous mental disorder. Such order may be in the form 25 of a written notice, specifying the time and place of appearance, served 26 personally upon the defendant, or mailed to his or her last known 27 address, as the court may direct. If the defendant fails to appear in 28 court as directed, the court [may] shall issue a warrant to an appropri- 29 ate peace officer directing him or her to take the defendant into custo- 30 dy and bring him or her before the court. In such circumstance, the 31 court [may] shall direct that the defendant be confined in an appropri- 32 ate institution located near the place where the court sits. The court 33 must conduct a hearing to determine whether the defendant has a danger- 34 ous mental disorder. At such hearing, the applicant, whether he or she 35 be the commissioner or the district attorney must establish to the 36 satisfaction of the court that the defendant has a dangerous mental 37 disorder. If the applicant is the commissioner, the district attorney 38 shall be entitled to appear and present evidence at such hearing; if the 39 applicant is the district attorney, the commissioner shall be entitled 40 to appear and present evidence at such hearing. If the court finds that 41 the defendant has a dangerous mental disorder, it must issue a recommit- 42 ment order. When a defendant is in the custody of the commissioner 43 pursuant to a recommitment order, the procedures set forth in subdivi- 44 sions seven and eight [and nine] of this section for the issuance of 45 retention orders shall govern the application for and the issuance of a 46 first retention order, a second retention order, and subsequent 47 retention orders. 48 [15.] 14. Designation of psychiatric examiners. If, at any hearing 49 conducted under this section to determine the defendant's present mental 50 condition, the court is not satisfied with the findings of the psychiat- 51 ric examiners, the court may direct the commissioner to designate one or 52 more additional psychiatric examiners to conduct an examination of the 53 defendant and submit a report of their findings. In addition, the court 54 may on its own motion, or upon request of a party, may designate one or 55 more psychiatric examiners to examine the defendant and submit a report 56 of their findings. The district attorney may apply to the court for anA. 5465 10 1 order directing that the defendant submit to an examination by a psychi- 2 atric examiner designated by the district attorney, and such psychiatric 3 examiner may testify at the hearing. 4 [16.] 15. Rehearing and review. Any defendant who is in the custody of 5 the commissioner pursuant to a [commitment order,] a retention order, or 6 a recommitment order, if dissatisfied with such order, may, within thir- 7 ty days after the making of such order, obtain a rehearing and review of 8 the proceedings and of such order in accordance with the provisions of 9 section 9.35 or 15.35 of the mental hygiene law. 10 [17.] 16. Rights of defendants. Subject to the limitations and 11 provisions of this section, a defendant committed to the custody of the 12 commissioner pursuant to this section shall have the rights granted to 13 patients under the mental hygiene law. 14 [18.] 17. Notwithstanding any other provision of law, no person 15 confined by reason of a [commitment order,] recommitment order or 16 retention order to a secure facility may be discharged or released 17 unless the commissioner shall deliver written notice, at least four days 18 excluding Saturdays, Sundays and holidays, in advance of such discharge 19 or release to all of the following: 20 (a) the district attorney. 21 (b) the police department having jurisdiction of the area to which the 22 defendant is to be discharged or released. 23 (c) any other person the court may designate. 24 The notices required by this subdivision shall be given by the facili- 25 ty staff physician who was treating the defendant or, if unavailable, by 26 the defendant's treatment team leader, but if neither is immediately 27 available, notice must be given by some other member of the clinical 28 staff of the facility. Such notice must be given by any means reasonably 29 calculated to give prompt actual notice. 30 [19.] 18. Escape from custody; notice requirements. If a defendant is 31 in the custody of the commissioner pursuant to an order issued under 32 this section, and such defendant escapes from custody, immediate notice 33 of such escape shall be given by the department facility staff to: (a) 34 the district attorney, (b) the superintendent of state police, (c) the 35 sheriff of the county where the escape occurred, (d) the police depart- 36 ment having jurisdiction of the area where the escape occurred, (e) any 37 person the facility staff believes to be in danger, and (f) any law 38 enforcement agency and any person the facility staff believes would be 39 able to apprise such endangered person that the defendant has escaped 40 from the facility. Such notice shall be given as soon as the facility 41 staff know that the defendant has escaped from the facility and shall 42 include such information as will adequately identify the defendant and 43 the person or persons believed to be in danger and the nature of the 44 danger. The notices required by this subdivision shall be given by the 45 facility staff physician who was treating the defendant or, if unavail- 46 able, by the defendant's treatment team leader, but if neither is imme- 47 diately available, notice must be given by some other member of the 48 clinical staff of the facility. Such notice must be given by any means 49 reasonably calculated to give prompt actual notice. The defendant may be 50 apprehended, restrained, transported to, and returned to the facility 51 from which he escaped by any peace officer, and it shall be the duty of 52 the officer to assist any representative of the commissioner to take the 53 defendant into custody upon the request of such representative. 54 [20.] 19. Required affidavit. No application may be made by the 55 commissioner under this section without an accompanying affidavit from 56 at least one psychiatric examiner supportive of relief requested in theA. 5465 11 1 application, which affidavit shall be served on all parties entitled to 2 receive the notice of application. Such affidavit shall set forth the 3 defendant's clinical diagnosis, a detailed analysis of his or her mental 4 condition which caused the psychiatric examiner to formulate an opinion, 5 and the opinion of the psychiatric examiner with respect to the defend- 6 ant. Any application submitted without the required affidavit shall be 7 dismissed by the court. 8 [21.] 20. Appeals. (a) A party to proceedings conducted in accordance 9 with the provisions of this section may take an appeal to an intermedi- 10 ate appellate court by permission of the intermediate appellate court as 11 follows: 12 (i) the commissioner may appeal from any release order, retention 13 order, transfer order, discharge order, order of conditions, or recom- 14 mitment order, for which he or she has not applied; 15 (ii) a defendant, or the mental hygiene legal service on his or her 16 behalf, may appeal from any [commitment order,] retention order, recom- 17 mitment order, or, if the defendant has obtained a rehearing and review 18 of any such order pursuant to subdivision [sixteen] fifteen of this 19 section, from an order, not otherwise appealable as of right, issued in 20 accordance with the provisions of section 9.35 or 15.35 of the mental 21 hygiene law authorizing continued retention under the original order, 22 provided, however, that a defendant who takes an appeal from a [commit-23ment order,] retention order, or recommitment order may not subsequently 24 obtain a rehearing and review of such order pursuant to subdivision 25 [sixteen] fifteen of this section; 26 (iii) the district attorney may appeal from any release order, trans- 27 fer order, discharge order, order of conditions, furlough order, or 28 order denying an application for a recommitment order which he or she 29 opposed. 30 (b) An aggrieved party may appeal from a final order of the intermedi- 31 ate appellate court to the court of appeals by permission of the inter- 32 mediate appellate court granted before application to the court of 33 appeals, or by permission of the court of appeals upon refusal by the 34 intermediate appellate court or upon direct application. 35 (c) An appeal taken under this subdivision shall be deemed civil in 36 nature, and shall be governed by the laws and rules applicable to civil 37 appeals; provided, however, that a stay of the order appealed from must 38 be obtained in accordance with the provisions of paragraph (d) [hereof] 39 of this subdivision. 40 (d) The court from or to which an appeal is taken may stay all 41 proceedings to enforce the order appealed from pending an appeal or 42 determination on a motion for permission to appeal, or may grant a 43 limited stay, except that only the court to which an appeal is taken may 44 vacate, limit, or modify a stay previously granted. If the order 45 appealed from is affirmed or modified, the stay shall continue for five 46 days after service upon the appellant of the order of affirmance or 47 modification with notice of its entry in the court to which the appeal 48 was taken. If a motion is made for permission to appeal from such an 49 order, before the expiration of the five days, the stay, or any other 50 stay granted pending determination of the motion for permission to 51 appeal, shall: 52 (i) if the motion is granted, continue until five days after the 53 appeal is determined; or 54 (ii) if the motion is denied, continue until five days after the 55 movant is served with the order of denial with notice of its entry.A. 5465 12 1 [22.] 21. Any special order of conditions issued pursuant to subpara- 2 graph (i) or (ii) of paragraph (o) of subdivision one of this section 3 shall bear in a conspicuous manner the term "special order of condi- 4 tions" and a copy shall be filed by the clerk of the court with the 5 sheriff's office in the county in which anyone intended to be protected 6 by such special order resides, or, if anyone intended to be protected by 7 such special order resides within a city, with the police department of 8 such city. The absence of language specifying that the order is a 9 "special order of conditions" shall not affect the validity of such 10 order. A copy of such special order of conditions may from time to time 11 be filed by the clerk of the court with any other police department or 12 sheriff's office having jurisdiction of the residence, work place, or 13 school of anyone intended to be protected by such special order. A copy 14 of such special order may also be filed by anyone intended to be 15 protected by such provisions at the appropriate police department or 16 sheriff's office having jurisdiction. Any subsequent amendment or revo- 17 cation of such special order may be filed in the same manner as provided 18 in this subdivision. Such special order of conditions shall plainly 19 state the date that the order expires. 20 § 2. This act shall take effect on the first of January next succeed- 21 ing the date on which it shall have become a law and shall apply to 22 criminal offenses committed on or after such date.
