N.Y. Correction Law § 656: Proceeding when person under sentence of death may be incompetent

§ 656. Proceeding when person under sentence of death may be

incompetent. 1. The state may not execute an inmate who is incompetent.

An inmate is "incompetent" when, as a result of mental disease or

defect, he lacks the mental capacity to understand the nature and effect

of the death penalty and why it is to be carried out.

2. Upon the filing of a petition in the supreme court in either the

county in which an inmate sentenced to death is confined or in the

county in which the inmate was prosecuted alleging that the inmate is

incompetent, the court shall issue an order staying the execution if and

to the extent a stay is necessary to permit determination of the

petition. Upon application of either the inmate's counsel or the

district attorney the petition may be transferred to the court in which

the inmate was convicted unless such transfer would be unduly burdensome

or impracticable. Promptly upon filing the petition, the court shall

appoint a commission of three psychiatric examiners, hereinafter

referred to as "the psychiatric commissioners," to inquire into the

inmate's competence and report to the court as to the inmate's

competence. The psychiatric commissioners shall be impartial and must be

qualified psychiatrists or certified psychologists. Before commencing an

inquiry, the psychiatric commissioners must take the oath prescribed in

rule forty-three hundred fifteen of the civil practice law and rules to

be taken by referees. The petition may be filed by the inmate, the

inmate's counsel, an employee of the department, the inmate's legal

guardian, a member of such inmate's immediate family or, in the event

that the inmate does not have regular contact with a member of his or

her immediate family, a bona fide friend who has maintained regular

contact with the inmate. The petition must be accompanied by an

affidavit of at least one qualified psychiatrist or certified

psychologist who, based at least in part on personal examination,

attests that in the psychiatrist's or psychologist's professional

opinion the inmate is incompetent and lists the pertinent facts

therefor. For purposes of this section the terms "qualified

psychiatrist" and "certified psychologist" have the meaning set forth in

section 730.10 of the criminal procedure law.

3. The petition shall be served upon either the district attorney who

prosecuted the inmate or upon the district attorney for the county in

which the inmate is confined. If the petition is served upon the

district attorney for the county in which the inmate is confined, the

court shall promptly notify the district attorney who prosecuted the

inmate. Immediately upon appointing the psychiatric commissioners, the

court shall direct that an examination of the convicted person promptly

take place with all three of the psychiatric commissioners present at

the same time. The court shall also direct, upon application of the

inmate or the district attorney, that the inmate be examined by a

qualified psychiatrist or certified psychologist designated by the

inmate or the district attorney. Counsel for the inmate and the district

attorney shall have the right to be present at each such examination.

Upon the filing of a petition pursuant to subdivision two of this

section, if the inmate does not have counsel and is financially unable

to obtain counsel the court shall appoint competent counsel experienced

in the trial of criminal matters to represent the inmate.

4. The psychiatric commissioners must receive and consider evidence

offered by the inmate's counsel and the district attorney, including

written submissions, testimony and expert psychiatric evidence. The

proceeding before the psychiatric commissioners shall be conducted on

the record but need not be conducted in accordance with the rules

governing the admission of evidence at trial, but counsel for the people

and the inmate shall have the right to cross-examine witnesses.

5. When the proceeding before the psychiatric commissioners has been

concluded, they must forthwith provide a transcript of the proceeding,

together with their findings of fact, to the court with their opinion

thereon. Unless impracticable, the psychiatric commissioners shall so

act within sixty days from the filing of the petition. When an inmate

shall be found incompetent by a majority of the psychiatric

commissioners, the court shall accept such finding unless clearly

erroneous, and promptly enter an order finding the inmate to be

incompetent, staying the execution of the inmate and directing that the

inmate be committed to a secure facility under the jurisdiction of the

office of mental health if the inmate's incompetency is the result of

mental illness. In all other cases, the inmate shall remain in the

custody of the department. When an inmate is found competent by a

majority of the psychiatric commissioners, the court shall accept such

finding unless clearly erroneous, promptly enter an order finding the

inmate to be competent and vacating any stay previously issued, and the

court shall promptly inform the judge or justice who issued the warrant

for the execution of the inmate of the court's finding. Upon being so

informed, the judge or justice shall promptly issue a new warrant in

accordance with subdivision two of section six hundred fifty of this

article. Any other provision of law notwithstanding, no other review,

judicial or otherwise, shall be available with respect to an order

finding the inmate to be incompetent or competent. If the court rejects

the finding of a majority of the psychiatric commissioners on the ground

that it is clearly erroneous, the court shall appoint another commission

to proceed as provided in this section.

6. When an inmate has been committed to a secure facility pursuant to

this section, the inmate shall remain there until the facility

administrator determines that the inmate may be competent. Upon so

determining, the facility administrator shall promptly notify the court

that entered the order finding the inmate to be incompetent, and the

court shall promptly notify counsel and the district attorneys and

appoint another commission to proceed as provided in this section.

7. The court shall allow reasonable fees to the psychiatric

commissioners. The court shall allow reasonable fees for time spent in

court and for time reasonably expended out of court to counsel appointed

pursuant to this section. The court shall allow all reasonably necessary

costs, including without limitation the costs attendant to fees for the

examination of the inmate by a qualified psychiatrist or certified

psychologist, incurred by the inmate and the district attorney in

connection with a petition pursuant to this section. Each claim for

compensation and reimbursement shall be supported by a sworn statement

specifying the time expended, services rendered, expenses incurred and

reimbursement or compensation applied for or received in the same case

from any other source. All such fees and costs shall be a state charge

payable on vouchers approved by the court after audit by and on the

warrant of the comptroller.

8. When a petition has previously been filed and determined pursuant

to this section, the court in which a subsequent petition is filed or to

which a subsequent petition is transferred, shall not issue an order

staying the execution of the inmate unless the court finds, after notice

to the district attorney who prosecuted the inmate and after affording

the district attorney a reasonable opportunity to be heard in writing,

that there is reasonable cause to believe that the inmate is

incompetent; provided, however, that the court may issue an order

staying the execution of the inmate, to the extent a stay is necessary

to afford the district attorney an opportunity to be heard and such

reasonable cause determination to be made.