Procedure following verdict or plea of not responsible by reason of mental disease or defect

§ 330.20 Procedure following verdict or plea of not responsible by\n reason of mental disease or defect.\n 1. Definition of terms. As used in this section, the following terms\nshall have the following meanings:\n (a) "Commissioner" means the state commissioner of mental health or\nthe state commissioner of the office for people with developmental\ndisabilities.\n (b) "Secure facility" means a facility within the state office of\nmental health or the state office for people with developmental\ndisabilities which is staffed with personnel adequately trained in\nsecurity methods and is so equipped as to minimize the risk or danger of\nescapes, and which has been so specifically designated by the\ncommissioner.\n (c) "Dangerous mental disorder" means: (i) that a defendant currently\nsuffers from a "mental illness" as that term is defined in subdivision\ntwenty of section 1.03 of the mental hygiene law, and (ii) that because\nof such condition he currently constitutes a physical danger to himself\nor others.\n (d) "Mentally ill" means that a defendant currently suffers from a\nmental illness for which care and treatment as a patient, in the\nin-patient services of a psychiatric center under the jurisdiction of\nthe state office of mental health, is essential to such defendant's\nwelfare and that his or her judgment is so impaired that he is unable to\nunderstand the need for such care and treatment; and, where a defendant\nhas a developmental disability, the term "mentally ill" shall also mean,\nfor purposes of this section, that the defendant is in need of care and\ntreatment as a resident in the in-patient services of a developmental\ncenter or other residential facility for individuals with developmental\ndisabilities under the jurisdiction of the state office for people with\ndevelopmental disabilities.\n (e) "Examination order" means an order directed to the commissioner\nrequiring that a defendant submit to a psychiatric examination to\ndetermine whether the defendant has a dangerous mental disorder, or if\nhe does not have dangerous mental disorder, whether he is mentally ill.\n (f) "Commitment order" or "recommitment order" means an order\ncommitting a defendant to the custody of the commissioner for\nconfinement in a secure facility for care and treatment for six months\nfrom the date of the order.\n (g) "First retention order" means an order which is effective at the\nexpiration of the period prescribed in a commitment order for a\nrecommitment order, authorizing continued custody of a defendant by the\ncommissioner for a period not to exceed one year.\n (h) "Second retention order" means an order which is effective at the\nexpiration of the period prescribed in a first retention order,\nauthorizing continued custody of a defendant by the commissioner for a\nperiod not to exceed two years.\n (i) "Subsequent retention order" means an order which is effective at\nthe expiration of the period prescribed in a second retention order or a\nprior subsequent retention order authorizing continued custody of a\ndefendant by the commissioner for a period not to exceed two years.\n (j) "Retention order" means a first retention order, a second\nretention order or a subsequent retention order.\n (k) "Furlough order" means an order directing the commissioner to\nallow a defendant in confinement pursuant to a commitment order,\nrecommitment order or retention order to temporarily leave the facility\nfor a period not exceeding fourteen days, either with or without the\nconstant supervision of one or more employees of the facility.\n (l) "Transfer order" means an order directing the commissioner to\ntransfer a defendant from a secure facility to a non-secure facility\nunder the jurisdiction of the commissioner or to any non-secure facility\ndesignated by the commissioner.\n (m) "Release order" means an order directing the commissioner to\nterminate a defendant's in-patient status without terminating the\ncommissioner's responsibility for the defendant.\n (n) "Discharge order" means an order terminating an order of\nconditions or unconditionally discharging a defendant from supervision\nunder the provisions of this section.\n (o) "Order of conditions" means an order directing a defendant to\ncomply with this prescribed treatment plan, or any other condition which\nthe court determines to be reasonably necessary or appropriate, and, in\naddition, where a defendant is in custody of the commissioner, not to\nleave the facility without authorization. In addition to such\nconditions, when determined to be reasonably necessary or appropriate,\nan order of conditions may be accompanied by a special order of\nconditions set forth in a separate document requiring that the\ndefendant: (i) stay away from the home, school, business or place of\nemployment of the victim or victims, or of any witness designated by the\ncourt, of such offense; or (ii) refrain from harassing, intimidating,\nthreatening or otherwise interfering with the victim or victims of the\noffense and such members of the family or household of such victim or\nvictims as shall be specifically named by the court in such special\norder. An order of conditions or special order of conditions shall be\nvalid for five years from the date of its issuance, except that, for\ngood cause shown, the court may extend the period for an additional five\nyears.\n (p) "District attorney" means the office which prosecuted the criminal\naction resulting in the verdict or plea of not responsible by reason of\nmental disease or defect.\n (q) "Qualified psychiatrist" means a physician who (i) is a diplomate\nof the American board of psychiatry and neurology or is eligible to be\ncertified by that board; or (ii) is certified by the American\nosteopathic board of neurology and psychiatry or is eligible to be\ncertified by that board.\n (r) "Licensed psychologist" means a person who is registered as a\npsychologist under article one hundred fifty-three of the education law.\n (s) "Psychiatric examiner" means a qualified psychiatrist or a\nlicensed psychologist who has been designated by the commissioner to\nexamine a defendant pursuant to this section, and such designee need not\nbe an employee of the department of mental hygiene.\n 2. Examination order; psychiatric examiners. Upon entry of a verdict\nof not responsible by reason of mental disease or defect, or upon the\nacceptance of a plea of not responsible by reason of mental disease or\ndefect, the court must immediately issue an examination order. Upon\nreceipt of such order, the commissioner must designate two qualified\npsychiatric examiners to conduct the examination to examine the\ndefendant. In conducting their examination, the psychiatric examiners\nmay employ any method which is accepted by the medical profession for\nthe examination of persons alleged to be suffering from a dangerous\nmental disorder or to be mentally ill or having a developmental\ndisability. The court may authorize a psychiatrist or psychologist\nretained by a defendant to be present at such examination. The clerk of\nthe court must promptly forward a copy of the examination order to the\nmental hygiene legal service and such service may thereafter participate\nin all subsequent proceedings under this section.\n In all subsequent proceedings under this section, prior to the\nissuance of a special order of conditions, the court shall consider\nwhether any order of protection had been issued prior to a verdict of\nnot responsible by reason of mental disease or defect in the case, or\nprior to the acceptance of a plea of not responsible by reason of mental\ndisease or defect in the case.\n 2-a. Firearm, rifle or shotgun surrender order. Upon entry of a\nverdict of not responsible by reason of mental disease or defect, or\nupon the acceptance of a plea of not responsible by reason of mental\ndisease or defect, or upon a finding that the defendant is an\nincapacitated person pursuant to article seven hundred thirty of this\nchapter, the court shall revoke the defendant's firearm license, if any,\ninquire of the defendant as to the existence and location of any\nfirearm, rifle or shotgun owned or possessed by such defendant and\ndirect the surrender of such firearm, rifle or shotgun pursuant to\nsubparagraph (f) of paragraph one of subdivision a of section 265.20 and\nsubdivision six of section 400.05 of the penal law.\n 3. Examination order; place of examination. Upon issuing an\nexamination order, the court must, except as otherwise provided in this\nsubdivision, direct that the defendant be committed to a secure facility\ndesignated by the commissioner as the place for such psychiatric\nexamination. The sheriff must hold the defendant in custody pending such\ndesignation by the commissioner, and when notified of the designation,\nthe sheriff must promptly deliver the defendant to such secure facility.\nWhen the defendant is not in custody at the time of such verdict or\nplea, because he was previously released on bail or on his own\nrecognizance, the court, in its discretion, may direct that such\nexamination be conducted on an out-patient basis, and at such time and\nplace as the commissioner shall designate. If, however, the commissioner\ninforms the court that confinement of the defendant is necessary for an\neffective examination, the court must direct that the defendant be\nconfined in a facility designated by the commissioner until the\nexamination is completed.\n 4. Examination order, duration. Confinement in a secure facility\npursuant to an examination order shall be for a period not exceeding\nthirty days, except that, upon application of the commissioner, the\ncourt may authorize confinement for an additional period not exceeding\nthirty days when a longer period is necessary to complete the\nexamination. If the initial hearing required by subdivision six of this\nsection has not commenced prior to the termination of such examination\nperiod, the commissioner shall retain custody of the defendant in such\nsecure facility until custody is transferred to the sheriff in the\nmanner prescribed in subdivision six of this section. During the period\nof such confinement, the physician in charge of the facility may\nadminister or cause to be administered to the defendant such emergency\npsychiatric, medical or other therapeutic treatment as in his judgment\nshould be administered. If the court has directed that the examination\nbe conducted on an out-patient basis, the examination shall be completed\nwithin thirty days after the defendant has first reported to the place\ndesignated by the commissioner, except that, upon application of the\ncommissioner, the court may extend such period for a reasonable time if\na longer period is necessary to complete the examination.\n 5. Examination order; reports. After he has completed his examination\nof the defendant, each psychiatric examiner must promptly prepare a\nreport of his findings and evaluation concerning the defendant's mental\ncondition, and submit such report to the commissioner. If the\npsychiatric examiners differ in their opinion as to whether the\ndefendant is mentally ill or is suffering from a dangerous mental\ndisorder, the commissioner must designate another psychiatric examiner\nto examine the defendant. Upon receipt of the examination reports, the\ncommissioner must submit them to the court that issued the examination\norder. If the court is not satisfied with the findings of these\npsychiatric examiners, the court may designate one or more additional\npsychiatric examiners pursuant to subdivision fifteen of this section.\nThe court must furnish a copy of the reports to the district attorney,\ncounsel for the defendant and the mental hygiene legal service.\n 6. Initial hearing; commitment order. After the examination reports\nare submitted, the court must, within ten days of the receipt of such\nreports, conduct an initial hearing to determine the defendant's present\nmental condition. If the defendant is in the custody of the commissioner\npursuant to an examination order, the court must direct the sheriff to\nobtain custody of the defendant from the commissioner and to confine the\ndefendant pending further order of the court, except that the court may\ndirect the sheriff to confine the defendant in an institution located\nnear the place where the court sits if that institution has been\ndesignated by the commissioner as suitable for the temporary and secure\ndetention of mentally disabled persons. At such initial hearing, the\ndistrict attorney must establish to the satisfaction of the court that\nthe defendant has a dangerous mental disorder or is mentally ill. If the\ncourt finds that the defendant has a dangerous mental disorder, it must\nissue a commitment order. If the court finds that the defendant does not\nhave a dangerous mental disorder but is mentally ill, the provisions of\nsubdivision seven of this section shall apply.\n 7. Initial hearing civil commitment and order of conditions. If, at\nthe conclusion of the initial hearing conducted pursuant to subdivision\nsix of this section, the court finds that the defendant is mentally ill\nbut does not have a dangerous mental disorder, the provisions of\narticles nine or fifteen of the mental hygiene law shall apply at that\nstage of the proceedings and at all subsequent proceedings. Having found\nthat the defendant is mentally ill, the court must issue an order of\nconditions and an order committing the defendant to the custody of the\ncommissioner. The latter order shall be deemed an order made pursuant to\nthe mental hygiene law and not pursuant to this section, and further\nretention, conditional release or discharge of such defendant shall be\nin accordance with the provisions of the mental hygiene law. If, at the\nconclusion of the initial hearing, the court finds that the defendant\ndoes not have a dangerous mental disorder and is not mentally ill, the\ncourt must discharge the defendant either unconditionally or subject to\nan order of conditions.\n 7-a. Whenever the court issues a special order of conditions pursuant\nto this section, the commissioner shall make reasonable efforts to\nnotify the victim or victims or the designated witness or witnesses that\na special order of conditions containing such provisions has been\nissued, unless such victim or witness has requested that such notice\nshould not be provided.\n 8. First retention order. When a defendant is in the custody of the\ncommissioner pursuant to a commitment order, the commissioner must, at\nleast thirty days prior to the expiration of the period prescribed in\nthe order, apply to the court that issued the order, or to a superior\ncourt in the county where the secure facility is located, for a first\nretention order or a release order. The commissioner must give written\nnotice of the application to the district attorney, the defendant,\ncounsel for the defendant, and the mental hygiene legal service. Upon\nreceipt of such application, the court may, on its own motion, conduct a\nhearing to determine whether the defendant has a dangerous mental\ndisorder, and it must conduct such hearing if a demand therefor is made\nby the district attorney, the defendant, counsel for the defendant, or\nthe mental hygiene legal service within ten days from the date that\nnotice of the application was given to them. If such a hearing is held\non an application for retention, the commissioner must establish to the\nsatisfaction of the court that the defendant has a dangerous mental\ndisorder or is mentally ill. The district attorney shall be entitled to\nappear and present evidence at such hearing. If such a hearing is held\non an application for release, the district attorney must establish to\nthe satisfaction of the court that the defendant has a dangerous mental\ndisorder or is mentally ill. If the court finds that the defendant has a\ndangerous mental disorder it must issue a first retention order. If the\ncourt finds that the defendant is mentally ill but does not have a\ndangerous mental disorder, it must issue a first retention order and,\npursuant to subdivision eleven of this section, a transfer order and an\norder of conditions. If the court finds that the defendant does not have\na dangerous mental disorder and is not mentally ill, it must issue a\nrelease order and an order of conditions pursuant to subdivision twelve\nof this section.\n 9. Second and subsequent retention orders. When a defendant is in the\ncustody of the commissioner pursuant to a first retention order, the\ncommissioner must, at least thirty days prior to the expiration of the\nperiod prescribed in the order, apply to the court that issued the\norder, or to a superior court in the county where the facility is\nlocated, for a second retention order or a release order. The\ncommissioner must give written notice of the application to the district\nattorney, the defendant, counsel for the defendant, and the mental\nhygiene legal service. Upon receipt of such application, the court may,\non its own motion, conduct a hearing to determine whether the defendant\nhas a dangerous mental disorder, and it must conduct such hearing if a\ndemand therefor is made by the district attorney, the defendant, counsel\nfor the defendant, or the mental hygiene legal service within ten days\nfrom the date that notice of the application was given to them. If such\na hearing is held on an application for retention, the commissioner must\nestablish to the satisfaction of the court that the defendant has a\ndangerous mental disorder or is mentally ill. The district attorney\nshall be entitled to appear and present evidence at such hearing. If\nsuch a hearing is held on an application for release, the district\nattorney must establish to the satisfaction of the court that the\ndefendant has a dangerous mental disorder or is mentally ill. If the\ncourt finds that the defendant has a dangerous mental disorder it must\nissue a second retention order. If the court finds that the defendant is\nmentally ill but does not have a dangerous mental disorder, it must\nissue a second retention order and, pursuant to subdivision eleven of\nthis section, a transfer order and an order of conditions. If the court\nfinds that the defendant does not have a dangerous mental disorder and\nis not mentally ill, it must issue a release order and an order of\nconditions pursuant to subdivision twelve of this section. When a\ndefendant is in the custody of the commissioner prior to the expiration\nof the period prescribed in a second retention order, the procedures set\nforth in this subdivision for the issuance of a second retention order\nshall govern the application for and the issuance of any subsequent\nretention order.\n 10. Furlough order. The commissioner may apply for a furlough order,\npursuant to this subdivision, when a defendant is in his custody\npursuant to a commitment order, recommitment order, or retention order\nand the commissioner is of the view that, consistent with the public\nsafety and welfare of the community and the defendant, the clinical\ncondition of the defendant warrants a granting of the privileges\nauthorized by a furlough order. The application for a furlough order may\nbe made to the court that issued the commitment order, or to a superior\ncourt in the county where the secure facility is located. The\ncommissioner must give ten days written notice to the district attorney,\nthe defendant, counsel for the defendant, and the mental hygiene legal\nservice. Upon receipt of such application, the court may, on its own\nmotion, conduct a hearing to determine whether the application should be\ngranted, and must conduct such hearing if a demand therefor is made by\nthe district attorney. If the court finds that the issuance of a\nfurlough order is consistent with the public safety and welfare of the\ncommunity and the defendant, and that the clinical condition of the\ndefendant warrants a granting of the privileges authorized by a furlough\norder, the court must grant the application and issue a furlough order\ncontaining any terms and conditions that the court deems necessary or\nappropriate. If the defendant fails to return to the secure facility at\nthe time specified in the furlough order, then, for purposes of\nsubdivision nineteen of this section, he shall be deemed to have\nescaped.\n 11. Transfer order and order of conditions. The commissioner may apply\nfor a transfer order, pursuant to this subdivision, when a defendant is\nin his custody pursuant to a retention order or a recommitment order,\nand the commissioner is of the view that the defendant does not have a\ndangerous mental disorder or that, consistent with the public safety and\nwelfare of the community and the defendant, the clinical condition of\nthe defendant warrants his transfer from a secure facility to a\nnon-secure facility under the jurisdiction of the commissioner or to any\nnon-secure facility designated by the commissioner. The application for\na transfer order may be made to the court that issued the order under\nwhich the defendant is then in custody, or to a superior court in the\ncounty where the secure facility is located. The commissioner must give\nten days written notice to the district attorney, the defendant, counsel\nfor the defendant, and the mental hygiene legal service. Upon receipt of\nsuch application, the court may, on its own motion, conduct a hearing to\ndetermine whether the application should be granted, and must conduct\nsuch hearing if the demand therefor is made by the district attorney. At\nsuch hearing, the district attorney must establish to the satisfaction\nof the court that the defendant has a dangerous mental disorder or that\nthe issuance of a transfer order is inconsistent with the public safety\nand welfare of the community. The court must grant the application and\nissue a transfer order if the court finds that the defendant does not\nhave a dangerous mental disorder, or if the court finds that the\nissuance of a transfer order is consistent with the public safety and\nwelfare of the community and the defendant and that the clinical\ncondition of the defendant, warrants his transfer from a secure facility\nto a non-secure facility. A court must also issue a transfer order when,\nin connection with an application for a first retention order pursuant\nto subdivision eight of this section or a second or subsequent retention\norder pursuant to subdivision nine of this section, it finds that a\ndefendant is mentally ill but does not have a dangerous mental disorder.\nWhenever a court issues a transfer order it must also issue an order of\nconditions.\n 12. Release order and order of conditions. The commissioner may apply\nfor a release order, pursuant to this subdivision, when a defendant is\nin his custody pursuant to a retention order or recommitment order, and\nthe commissioner is of the view that the defendant no longer has a\ndangerous mental disorder and is no longer mentally ill. The application\nfor a release order may be made to the court that issued the order under\nwhich the defendant is then in custody, or to a superior court in the\ncounty where the facility is located. The application must contain a\ndescription of the defendant's current mental condition, the past course\nof treatment, a history of the defendant's conduct subsequent to his\ncommitment, a written service plan for continued treatment which shall\ninclude the information specified in subdivision (g) of section 29.15 of\nthe mental hygiene law, and a detailed statement of the extent to which\nsupervision of the defendant after release is proposed. The commissioner\nmust give ten days written notice to the district attorney, the\ndefendant, counsel for the defendant, and the mental hygiene legal\nservice. Upon receipt of such application, the court must promptly\nconduct a hearing to determine the defendant's present mental condition.\nAt such hearing, the district attorney must establish to the\nsatisfaction of the court that the defendant has a dangerous mental\ndisorder or is mentally ill. If the court finds that the defendant has a\ndangerous mental disorder, it must deny the application for a release\norder. If the court finds that the defendant does not have a dangerous\nmental disorder but is mentally ill, it must issue a transfer order\npursuant to subdivision eleven of this section if the defendant is then\nconfined in a secure facility. If the court finds that the defendant\ndoes not have a dangerous mental disorder and is not mentally ill, it\nmust grant the application and issue a release order. A court must also\nissue a release order when, in connection with an application for a\nfirst retention order pursuant to subdivision eight of this section or a\nsecond or subsequent retention order pursuant to subdivision nine of\nthis section, it finds that the defendant does not have a dangerous\nmental disorder and is not mentally ill. Whenever a court issues a\nrelease order it must also issue an order of conditions. If the court\nhas previously issued a transfer order and an order of conditions, it\nmust issue a new order of conditions upon issuing a release order. The\norder of conditions issued in conjunction with a release order shall\nincorporate a written service plan prepared by a psychiatrist familiar\nwith the defendant's case history and approved by the court, and shall\ncontain any conditions that the court determines to be reasonably\nnecessary or appropriate. It shall be the responsibility of the\ncommissioner to determine that such defendant is receiving the services\nspecified in the written service plan and is complying with any\nconditions specified in such plan and the order of conditions.\n 13. Discharge order. The commissioner may apply for a discharge order,\npursuant to this subdivision, when a defendant has been continuously on\nan out-patient status for three years or more pursuant to a release\norder, and the commissioner is of the view that the defendant no longer\nhas a dangerous mental disorder and is no longer mentally ill and that\nthe issuance of a discharge order is consistent with the public safety\nand welfare of the community and the defendant. The application for a\ndischarge order may be made to the court that issued the release order,\nor to a superior court in the county where the defendant is then\nresiding. The commissioner must give ten days written notice to the\ndistrict attorney, the defendant, counsel for the defendant, and the\nmental hygiene legal service. Upon receipt of such application, the\ncourt may, on its own motion, conduct a hearing to determine whether the\napplication should be granted, and must conduct such hearing if a demand\ntherefor is made by the district attorney. The court must grant the\napplication and issue a discharge order if the court finds that the\ndefendant has been continuously on an out-patient status for three years\nor more, that he does not have a dangerous mental disorder and is not\nmentally ill, and that the issuance of the discharge order is consistent\nwith the public safety and welfare of the community and the defendant.\n 14. Recommitment order. At any time during the period covered by an\norder of conditions an application may be made by the commissioner or\nthe district attorney to the court that issued such order, or to a\nsuperior court in the county where the defendant is then residing, for a\nrecommitment order when the applicant is of the view that the defendant\nhas a dangerous mental disorder. The applicant must give written notice\nof the application to the defendant, counsel for the defendant, and the\nmental hygiene legal service, and if the applicant is the commissioner\nhe must give such notice to the district attorney or if the applicant is\nthe district attorney he must give such notice to the commissioner. Upon\nreceipt of such application the court must order the defendant to appear\nbefore it for a hearing to determine if the defendant has a dangerous\nmental disorder. Such order may be in the form of a written notice,\nspecifying the time and place of appearance, served personally upon the\ndefendant, or mailed to his last known address, as the court may direct.\nIf the defendant fails to appear in court as directed, the court may\nissue a warrant to an appropriate peace officer directing him to take\nthe defendant into custody and bring him before the court. In such\ncircumstance, the court may direct that the defendant be confined in an\nappropriate institution located near the place where the court sits. The\ncourt must conduct a hearing to determine whether the defendant has a\ndangerous mental disorder. At such hearing, the applicant, whether he be\nthe commissioner or the district attorney must establish to the\nsatisfaction of the court that the defendant has a dangerous mental\ndisorder. If the applicant is the commissioner, the district attorney\nshall be entitled to appear and present evidence at such hearing; if the\napplicant is the district attorney, the commissioner shall be entitled\nto appear and present evidence at such hearing. If the court finds that\nthe defendant has a dangerous mental disorder, it must issue a\nrecommitment order. When a defendant is in the custody of the\ncommissioner pursuant to a recommitment order, the procedures set forth\nin subdivisions eight and nine of this section for the issuance of\nretention orders shall govern the application for and the issuance of a\nfirst retention order, a second retention order, and subsequent\nretention orders.\n 15. Designation of psychiatric examiners. If, at any hearing conducted\nunder this section to determine the defendant's present mental\ncondition, the court is not satisfied with the findings of the\npsychiatric examiners, the court may direct the commissioner to\ndesignate one or more additional psychiatric examiners to conduct an\nexamination of the defendant and submit a report of their findings. In\naddition, the court may on its own motion, or upon request of a party,\nmay designate one or more psychiatric examiners to examine the defendant\nand submit a report of their findings. The district attorney may apply\nto the court for an order directing that the defendant submit to an\nexamination by a psychiatric examiner designated by the district\nattorney, and such psychiatric examiner may testify at the hearing.\n 16. Rehearing and review. Any defendant who is in the custody of the\ncommissioner pursuant to a commitment order, a retention order, or a\nrecommitment order, if dissatisfied with such order, may, within thirty\ndays after the making of such order, obtain a rehearing and review of\nthe proceedings and of such order in accordance with the provisions of\nsection 9.35 or 15.35 of the mental hygiene law.\n 17. Rights of defendants. Subject to the limitations and provisions of\nthis section, a defendant committed to the custody of the commissioner\npursuant to this section shall have the rights granted to patients under\nthe mental hygiene law.\n 18. Notwithstanding any other provision of law, no person confined by\nreason of a commitment order, recommitment order or retention order to a\nsecure facility may be discharged or released unless the commissioner\nshall deliver written notice, at least four days excluding Saturdays,\nSundays and holidays, in advance of such discharge or release to all of\nthe following:\n (a) the district attorney.\n (b) the police department having jurisdiction of the area to which the\ndefendant is to be discharged or released.\n (c) any other person the court may designate.\n The notices required by this subdivision shall be given by the\nfacility staff physician who was treating the defendant or, if\nunavailable, by the defendant's treatment team leader, but if neither is\nimmediately available, notice must be given by some other member of the\nclinical staff of the facility. Such notice must be given by any means\nreasonably calculated to give prompt actual notice.\n 19. Escape from custody; notice requirements. If a defendant is in the\ncustody of the commissioner pursuant to an order issued under this\nsection, and such defendant escapes from custody, immediate notice of\nsuch escape shall be given by the department facility staff to: (a) the\ndistrict attorney, (b) the superintendent of state police, (c) the\nsheriff of the county where the escape occurred, (d) the police\ndepartment having jurisdiction of the area where the escape occurred,\n(e) any person the facility staff believes to be in danger, and (f) any\nlaw enforcement agency and any person the facility staff believes would\nbe able to apprise such endangered person that the defendant has escaped\nfrom the facility. Such notice shall be given as soon as the facility\nstaff know that the defendant has escaped from the facility and shall\ninclude such information as will adequately identify the defendant and\nthe person or persons believed to be in danger and the nature of the\ndanger. The notices required by this subdivision shall be given by the\nfacility staff physician who was treating the defendant or, if\nunavailable, by the defendant's treatment team leader, but if neither is\nimmediately available, notice must be given by some other member of the\nclinical staff of the facility. Such notice must be given by any means\nreasonably calculated to give prompt actual notice. The defendant may be\napprehended, restrained, transported to, and returned to the facility\nfrom which he escaped by any peace officer, and it shall be the duty of\nthe officer to assist any representative of the commissioner to take the\ndefendant into custody upon the request of such representative.\n 20. Required affidavit. No application may be made by the commissioner\nunder this section without an accompanying affidavit from at least one\npsychiatric examiner supportive of relief requested in the application,\nwhich affidavit shall be served on all parties entitled to receive the\nnotice of application. Such affidavit shall set forth the defendant's\nclinical diagnosis, a detailed analysis of his or her mental condition\nwhich caused the psychiatric examiner to formulate an opinion, and the\nopinion of the psychiatric examiner with respect to the defendant. Any\napplication submitted without the required affidavit shall be dismissed\nby the court.\n 21. Appeals. (a) A party to proceedings conducted in accordance with\nthe provisions of this section may take an appeal to an intermediate\nappellate court by permission of the intermediate appellate court as\nfollows:\n (i) the commissioner may appeal from any release order, retention\norder, transfer order, discharge order, order of conditions, or\nrecommitment order, for which he has not applied;\n (ii) a defendant, or the mental hygiene legal service on his or her\nbehalf, may appeal from any commitment order, retention order,\nrecommitment order, or, if the defendant has obtained a rehearing and\nreview of any such order pursuant to subdivision sixteen of this\nsection, from an order, not otherwise appealable as of right, issued in\naccordance with the provisions of section 9.35 or 15.35 of the mental\nhygiene law authorizing continued retention under the original order,\nprovided, however, that a defendant who takes an appeal from a\ncommitment order, retention order, or recommitment order may not\nsubsequently obtain a rehearing and review of such order pursuant to\nsubdivision sixteen of this section;\n (iii) the district attorney may appeal from any release order,\ntransfer order, discharge order, order of conditions, furlough order, or\norder denying an application for a recommitment order which he opposed.\n (b) An aggrieved party may appeal from a final order of the\nintermediate appellate court to the court of appeals by permission of\nthe intermediate appellate court granted before application to the court\nof appeals, or by permission of the court of appeals upon refusal by the\nintermediate appellate court or upon direct application.\n (c) An appeal taken under this subdivision shall be deemed civil in\nnature, and shall be governed by the laws and rules applicable to civil\nappeals; provided, however, that a stay of the order appealed from must\nbe obtained in accordance with the provisions of paragraph (d) hereof.\n (d) The court from or to which an appeal is taken may stay all\nproceedings to enforce the order appealed from pending an appeal or\ndetermination on a motion for permission to appeal, or may grant a\nlimited stay, except that only the court to which an appeal is taken may\nvacate, limit, or modify a stay previously granted. If the order\nappealed from is affirmed or modified, the stay shall continue for five\ndays after service upon the appellant of the order of affirmance or\nmodification with notice of its entry in the court to which the appeal\nwas taken. If a motion is made for permission to appeal from such an\norder, before the expiration of the five days, the stay, or any other\nstay granted pending determination of the motion for permission to\nappeal, shall:\n (i) if the motion is granted, continue until five days after the\nappeal is determined; or\n (ii) if the motion is denied, continue until five days after the\nmovant is served with the order of denial with notice of its entry.\n 22. Any special order of conditions issued pursuant to subparagraph\n(i) or (ii) of paragraph (o) of subdivision one of this section shall\nbear in a conspicuous manner the term "special order of conditions" and\na copy shall be filed by the clerk of the court with the sheriff's\noffice in the county in which anyone intended to be protected by such\nspecial order resides, or, if anyone intended to be protected by such\nspecial order resides within a city, with the police department of such\ncity. The absence of language specifying that the order is a "special\norder of conditions" shall not affect the validity of such order. A copy\nof such special order of conditions may from time to time be filed by\nthe clerk of the court with any other police department or sheriff's\noffice having jurisdiction of the residence, work place, or school of\nanyone intended to be protected by such special order. A copy of such\nspecial order may also be filed by anyone intended to be protected by\nsuch provisions at the appropriate police department or sheriff's office\nhaving jurisdiction. Any subsequent amendment or revocation of such\nspecial order may be filed in the same manner as provided in this\nsubdivision. Such special order of conditions shall plainly state the\ndate that the order expires.\n