Bill Text: NY A08092 | 2019-2020 | General Assembly | Introduced


Bill Title: Relates to the determination of capacity to stand trial in juvenile delinquency proceedings in family court.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2019-12-06 - SIGNED CHAP.602 [A08092 Detail]

Download: New_York-2019-A08092-Introduced.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                          8092

                               2019-2020 Regular Sessions

                   IN ASSEMBLY

                                      May 31, 2019
                                       ___________

        Introduced  by  M.  of  A.  JAFFEE -- (at request of the Office of Court
          Administration) -- read once and referred to the Committee on Children
          and Families

        AN ACT to amend the family court act and  the  mental  hygiene  law,  in
          relation  to  the determination of capacity to stand trial in juvenile
          delinquency proceedings in family court

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1. Subdivision 1 of section 322.1 of the family court act, as
     2  amended by chapter 566 of the laws  of  1994,  is  amended  to  read  as
     3  follows:
     4    1. At any proceeding under this article, the court must issue an order
     5  that  the  respondent  be  examined as provided herein when it is of the
     6  opinion that the respondent may be  an  incapacitated  person.  Notwith-
     7  standing  the  provisions of this or any other law, the court may direct
     8  that the examination be conducted on an outpatient basis [when].  If the
     9  respondent is [not] in custody at the time the court issues an order  of
    10  examination,  the  examination  may  be conducted at the place where the
    11  respondent is being held in custody so long as no reasonable alternative
    12  outpatient setting is available. The court shall order that  two  quali-
    13  fied  psychiatric  examiners  as defined in subdivision seven of section
    14  730.10 of the criminal procedure law examine the respondent to determine
    15  if he [is mentally ill, mentally retarded or  developmentally  disabled]
    16  or  she may be diagnosed as a person with mental illness or an intellec-
    17  tual or developmental disability.
    18    § 2. Subdivision 4, paragraphs (a), (c) and (d) of subdivision  5  and
    19  subdivisions  6 and 7 of section 322.2 of the family court act, subdivi-
    20  sions 4, 6 and 7 and paragraph (c) of subdivision 5 as added by  chapter
    21  920  of  the  laws of 1982, paragraph (a) of subdivision 5 as amended by
    22  section 69 of part WWW of chapter 59 of the laws of 2017, and  paragraph

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09846-05-9

        A. 8092                             2

     1  (d)  of  subdivision 5 as amended by chapter 41 of the laws of 2010, are
     2  amended to read as follows:
     3    4. If the court finds that there is probable cause to believe that the
     4  respondent committed a misdemeanor, the respondent shall be committed to
     5  the  custody of the appropriate commissioner for a reasonable period not
     6  to exceed ninety days. Unless the court specifies that  such  commitment
     7  shall be in a residential facility, such commissioner having custody may
     8  arrange  for  treatment in an appropriate facility or program, including
     9  an outpatient program, in accordance with  subdivision  (e)  of  section
    10  7.09  or  subdivision (c-1) of section 13.09 respectively, of the mental
    11  hygiene law. The court shall dismiss the petition on the issuance of the
    12  order of commitment and such dismissal shall constitute a bar to further
    13  prosecution of the charge or charges contained in the petition.
    14    (a) If the court finds that there is probable cause  to  believe  that
    15  the respondent committed a felony, it shall order the respondent commit-
    16  ted  to  the custody of the commissioner of mental health or the commis-
    17  sioner of the office for people with developmental disabilities  for  an
    18  initial  period  not  to  exceed  one  year from the date of such order.
    19  Unless the court specifies that such commitment shall be in  a  residen-
    20  tial  facility,  such commissioner having custody may arrange for treat-
    21  ment in an appropriate facility  or  program,  including  an  outpatient
    22  program,  in accordance with subdivision (e) of section 7.09 or subdivi-
    23  sion (c-1) of section 13.09 respectively, of  the  mental  hygiene  law.
    24  Such  period  may  be  extended annually upon further application to the
    25  court by the commissioner having custody or his or her designee.    Such
    26  application  must  be made not more than sixty days prior to the expira-
    27  tion of such period on forms that have  been  prescribed  by  the  chief
    28  administrator  of  the  courts. At that time, the commissioner must give
    29  written notice of the application to the respondent, the counsel repres-
    30  enting the respondent and  the  mental  hygiene  legal  service  if  the
    31  respondent  is  at a residential facility. Upon receipt of such applica-
    32  tion, the court must conduct a hearing to determine the issue of capaci-
    33  ty. If, at the conclusion of a hearing conducted pursuant to this subdi-
    34  vision, the court finds that the respondent is no longer  incapacitated,
    35  he  or she shall be returned to the family court for further proceedings
    36  pursuant to this article. If the court is satisfied that the  respondent
    37  continues  to  be  incapacitated,  the  court  shall authorize continued
    38  custody of the respondent by the commissioner in a facility  or  program
    39  for  a period not to exceed one year. Such extensions shall not continue
    40  beyond a reasonable period of time necessary to  determine  whether  the
    41  respondent will attain the capacity to proceed to a fact finding hearing
    42  in  the  foreseeable  future  but  in no event shall continue beyond the
    43  respondent's eighteenth birthday or, if  the  respondent  was  at  least
    44  sixteen years of age when the act was committed, beyond the respondent's
    45  twenty-first birthday.
    46    (c)  If  the  court finds that there is probable cause to believe that
    47  the respondent has committed a designated felony act,  the  court  shall
    48  require  that treatment be provided in a residential facility within the
    49  appropriate office of the department of mental hygiene or in  an  outpa-
    50  tient facility if the commissioner having custody of the child petitions
    51  the  court  pursuant to subdivision seven of this section and such court
    52  approves.
    53    (d) The commissioner shall review  the  condition  of  the  respondent
    54  within  forty-five days after the respondent is committed to the custody
    55  of the commissioner. He or she shall make a second review within  ninety
    56  days  after the respondent is committed to his or her custody. Thereaft-

        A. 8092                             3

     1  er, he or she shall review the condition of the respondent every  ninety
     2  days.  The respondent and the counsel for the respondent, shall be noti-
     3  fied  of  any  such  review and afforded an opportunity to be heard. The
     4  commissioner  having  custody  shall  apply  to  the  court for an order
     5  dismissing the petition whenever he or she determines that  there  is  a
     6  substantial probability that the respondent will continue to be incapac-
     7  itated  for  the foreseeable future. At the time of such application the
     8  commissioner must give written notice of the application to the respond-
     9  ent, the presentment agency and the mental hygiene legal service if  the
    10  respondent  is  at a residential facility. Upon receipt of such applica-
    11  tion, the court may on its own motion conduct  a  hearing  to  determine
    12  whether  there  is  substantial  probability  that  the  respondent will
    13  continue to be incapacitated for the foreseeable  future,  and  it  must
    14  conduct  such  hearing if a demand therefor is made by the respondent or
    15  the mental hygiene legal service within ten  days  from  the  date  that
    16  notice of the application was given to them. The respondent may apply to
    17  the court for an order of dismissal on the same ground.
    18    6.  Any order pursuant to this section dismissing a petition shall not
    19  preclude an application for voluntary or involuntary care and  treatment
    20  in  a facility or program of the appropriate office of the department of
    21  mental hygiene pursuant to the provisions of  the  mental  hygiene  law.
    22  Unless  the respondent is admitted pursuant to such an application he or
    23  she shall be released.
    24    7. If the commissioner having custody of a child committed to a  resi-
    25  dential facility pursuant to subdivision four or paragraph (a) of subdi-
    26  vision  five  of this section determines at any time that such child may
    27  be more appropriately treated in a non-residential  facility  or  on  an
    28  outpatient  basis,  he  or  she  may  arrange for such treatment. If the
    29  commissioner having custody of a child committed to a residential facil-
    30  ity pursuant to paragraph (c) of subdivision five of this section deter-
    31  mines at any time that such child may be more appropriately treated in a
    32  non-residential facility or on an outpatient basis, he or she may  peti-
    33  tion  the family court for a hearing. If the court finds after a hearing
    34  that treatment in a non-residential facility or on an  outpatient  basis
    35  would  be  more  appropriate  for such child, the court shall modify its
    36  order of commitment to [authorize] direct the commissioner  to  transfer
    37  [of  such] the child to a non-residential facility or arrange outpatient
    38  treatment. Application for [such] a hearing  to  determine  whether  any
    39  child  committed  to  a  residential facility under subdivisions four or
    40  five of this section may be more appropriately treated in a non-residen-
    41  tial facility or on an outpatient basis may be made by the respondent.
    42    § 3. Subdivision (e) of section 7.09 of the  mental  hygiene  law,  as
    43  amended  by chapter 920 of the laws of 1982 and as relettered by chapter
    44  509 of the laws of 1988, is amended to read as follows:
    45    (e) The commissioner shall accept custody of a juvenile under an order
    46  issued by the family court pursuant to the provisions of  section  322.2
    47  of  the family court act. He or she may place the juvenile in any appro-
    48  priate facility or program under his or her jurisdiction, but he or  she
    49  shall comply with any order requiring treatment in a residential facili-
    50  ty  made  pursuant to paragraph (c) of subdivision five of section 322.2
    51  of the family court act, unless, after a hearing held in accordance with
    52  subdivision seven of section 322.2 of the family court  act,  the  court
    53  modifies  the  order.    In  determining  the appropriate placement, the
    54  commissioner shall be furnished with a copy of the findings of the court
    55  pursuant to subdivision four or five of  section  322.2  of  the  family
    56  court act and shall consider the nature of the act alleged in such find-

        A. 8092                             4

     1  ings and the level of the juvenile's mental disability. The commissioner
     2  shall  review  the  condition  of  the  juvenile  in accordance with the
     3  requirements of section 322.2 of the family court act and he or she  may
     4  petition  the family court at any time for any relief authorized by such
     5  section.
     6    § 4. Subdivision (c) of section 13.09 of the mental  hygiene  law,  as
     7  amended  by  chapter  920  of  the  laws  of 1982, is amended to read as
     8  follows:
     9    [(c)] (c-1) The commissioner shall accept custody of a juvenile  under
    10  an  order  issued  by  the  family  court  pursuant to the provisions of
    11  section 322.2 of the family court act. He or she may place the  juvenile
    12  in  any  appropriate  facility or program under his or her jurisdiction,
    13  but he or she shall comply with any order requiring treatment in a resi-
    14  dential facility made pursuant to paragraph (c) of subdivision  five  of
    15  section  322.2  of the family court act, unless, after a hearing held in
    16  accordance with subdivision seven of section 322.2 of the  family  court
    17  act, the court modifies the order. In determining the appropriate place-
    18  ment, the commissioner shall be furnished with a copy of the findings of
    19  the  court  pursuant to subdivision four or five of section 322.2 of the
    20  family court act and shall consider the nature of  the  act  alleged  in
    21  such  findings  and  the  level of the juvenile's mental disability. The
    22  commissioner shall review the condition of the  juvenile  in  accordance
    23  with the requirements of section 322.2 of the family court act and he or
    24  she  may petition the family court at any time for any relief authorized
    25  by such section.
    26    § 5. This act shall take effect on the ninetieth day  after  it  shall
    27  have  become a law; provided, however, that the amendments made to para-
    28  graph (a) of subdivision 5 of section 322.2 of the family court act made
    29  by section two of this act shall take effect on the same date and in the
    30  same manner as section 69 of part WWW of chapter 59 of the laws of 2017,
    31  takes effect.
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