Fitness to proceed; procedure following custody by commissioner

§ 730.60 Fitness to proceed; procedure following custody by\n commissioner.\n 1. When a local criminal court issues a final or temporary order of\nobservation or an order of commitment, it must forward such order and a\ncopy of the examination reports and the accusatory instrument to the\ncommissioner, and, if available, a copy of the pre-sentence report. Upon\nreceipt thereof, the commissioner must designate an appropriate\ninstitution operated by the department of mental hygiene in which the\ndefendant is to be placed, provided, however, that the commissioner may\ndesignate an appropriate hospital for placement of a defendant for whom\na final order of observation has been issued, where such hospital is\nlicensed by the office of mental health and has agreed to accept, upon\nreferral by the commissioner, defendants subject to final orders of\nobservation issued under this subdivision. The sheriff must hold the\ndefendant in custody pending such designation by the commissioner, and\nwhen notified of the designation, the sheriff must deliver the defendant\nto the superintendent of such institution. The superintendent must\npromptly inform the appropriate director of the mental hygiene legal\nservice of the defendant's admission to such institution. If a defendant\nescapes from the custody of the commissioner, the escape shall interrupt\nthe period prescribed in any order of observation, commitment or\nretention, and such interruption shall continue until the defendant is\nreturned to the custody of the commissioner.\n 2. Except as otherwise provided in subdivisions four and five, when a\ndefendant is in the custody of the commissioner pursuant to a temporary\norder of observation or an order of commitment or an order of retention,\nthe criminal action pending against the defendant in the court that\nissued such order is suspended until the superintendent of the\ninstitution in which the defendant is confined determines that he is no\nlonger an incapacitated person. In that event, the court that issued\nsuch order and the appropriate district attorney must be notified, in\nwriting, by the superintendent of his determination. The court must\nthereupon proceed in accordance with the provisions of subdivision two\nof section 730.30 of this chapter; provided, however, if the court is\nsatisfied that the defendant remains an incapacitated person, and upon\nconsent of all parties, the court may order the return of the defendant\nto the institution in which he had been confined for such period of time\nas was authorized by the prior order of commitment or order of\nretention. Upon such return, the defendant shall have all rights and\nprivileges accorded by the provisions of this article.\n 3. When a defendant is in the custody of the commissioner pursuant to\nan order issued in accordance with this article, the commissioner may\ntransfer him to any appropriate institution operated by the department\nof mental hygiene, provided, however, that the commissioner may\ndesignate an appropriate hospital for placement of a defendant for whom\na final order of observation has been issued, where such hospital is\nlicensed by the office of mental health and has agreed to accept, upon\nreferral by the commissioner, defendants subject to final orders of\nobservation issued under this section. The commissioner may discharge a\ndefendant in his custody under a final order of observation at any time\nprior to the expiration date of such order, or otherwise treat or\ntransfer such defendant in the same manner as if he were a patient not\nin confinement under a criminal court order.\n 4. When a defendant is in the custody of the commissioner pursuant to\nan order of commitment or an order of retention, he may make any motion\nauthorized by this chapter which is susceptible of fair determination\nwithout his personal participation. If the court denies any such motion\nit must be without prejudice to a renewal thereof after the criminal\naction against the defendant has been ordered to proceed. If the court\nenters an order dismissing the indictment and does not direct that the\ncharge or charges be resubmitted to a grand jury, the court must direct\nthat such order of dismissal be served upon the commissioner.\n 5. When a defendant is in the custody of the commissioner pursuant to\nan order of commitment or an order of retention, the superior court that\nissued such order may, upon motion of the defendant, and with the\nconsent of the district attorney, dismiss the indictment when the court\nis satisfied that (a) the defendant is a resident or citizen of another\nstate or country and that he will be removed thereto upon dismissal of\nthe indictment, or (b) the defendant has been continuously confined in\nthe custody of the commissioner for a period of more than two years.\nBefore granting a motion under this subdivision, the court must be\nfurther satisfied that dismissal of the indictment is consistent with\nthe ends of justice and that custody of the defendant by the\ncommissioner pursuant to an order of commitment or an order of retention\nis not necessary for the protection of the public and that care and\ntreatment can be effectively administered to the defendant without the\nnecessity of such order. If the court enters an order of dismissal under\nthis subdivision, it must set forth in the record the reasons for such\naction, and must direct that such order of dismissal be served upon the\ncommissioner. The dismissal of an indictment pursuant to this\nsubdivision constitutes a bar to any further prosecution of the charge\nor charges contained in such indictment.\n 6. (a) Notwithstanding any other provision of law, no person committed\nto the custody of the commissioner pursuant to this article, or\ncontinuously thereafter retained in such custody, shall be discharged,\nreleased on condition or placed in any less secure facility or on any\nless restrictive status, including, but not limited to vacations,\nfurloughs and temporary passes, unless the commissioner or his or her\ndesignee, which may include the director of an appropriate institution,\nshall deliver written notice, at least four days, excluding Saturdays,\nSundays and holidays, in advance of the change of such committed\nperson's facility or status, or in the case of a person committed\npursuant to a final order of observation written notice upon discharge\nof such committed person, to all of the following:\n (1) The district attorney of the county from which such person was\ncommitted;\n (2) The superintendent of state police;\n (3) The sheriff of the county where the facility is located;\n (4) The police department having jurisdiction of the area where the\nfacility is located;\n (5) Any person who may reasonably be expected to be the victim of any\nassault or any violent felony offense, as defined in the penal law, or\nany offense listed in section 530.11 of this part which would be carried\nout by the committed person; provided that the person who reasonably may\nbe expected to be a victim does not need to be a member of the same\nfamily or household as the committed person; and\n (6) Any other person the court may designate.\n Said notice may be given by any means reasonably calculated to give\nprompt actual notice.\n (b) The notice required by this subdivision shall also be given\nimmediately upon the departure of such committed person from the actual\ncustody of the commissioner or an appropriate institution, without\nproper authorization. Nothing in this subdivision shall be construed to\nimpair any other right or duty regarding any notice or hearing contained\nin any other provision of law.\n (c) Whenever a district attorney has received the notice described in\nthis subdivision, and the defendant is in the custody of the\ncommissioner pursuant to a final order of observation or an order of\ncommitment, he may apply within three days of receipt of such notice to\na superior court, for an order directing a hearing to be held to\ndetermine whether such committed person is a danger to himself or\nothers. Such hearing shall be held within ten days following the\nissuance of such order. Such order may provide that there shall be no\nfurther change in the committed person's facility or status until the\nhearing. Upon a finding that the committed person is a danger to himself\nor others, the court shall issue an order to the commissioner\nauthorizing retention of the committed person in the status existing at\nthe time notice was given hereunder, for a specified period, not to\nexceed six months. The district attorney and the committed person's\nattorney shall be entitled to the committed person's clinical records in\nthe commissioner's custody, upon the issuance of an order directing a\nhearing to be held.\n (d) Nothing in this subdivision shall be construed to impair any other\nright or duty regarding any notice or hearing contained in any other\nprovision of law.\n