N.Y. Criminal Procedure Law § 330.20: 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

reason of mental disease or defect.

1. Definition of terms. As used in this section, the following terms

shall have the following meanings:

(a) "Commissioner" means the state commissioner of mental health or

the state commissioner of the office for people with developmental

disabilities.

(b) "Secure facility" means a facility within the state office of

mental health or the state office for people with developmental

disabilities which is staffed with personnel adequately trained in

security methods and is so equipped as to minimize the risk or danger of

escapes, and which has been so specifically designated by the

commissioner.

(c) "Dangerous mental disorder" means: (i) that a defendant currently

suffers from a "mental illness" as that term is defined in subdivision

twenty of section 1.03 of the mental hygiene law, and (ii) that because

of such condition he currently constitutes a physical danger to himself

or others.

(d) "Mentally ill" means that a defendant currently suffers from a

mental illness for which care and treatment as a patient, in the

in-patient services of a psychiatric center under the jurisdiction of

the state office of mental health, is essential to such defendant's

welfare and that his or her judgment is so impaired that he is unable to

understand the need for such care and treatment; and, where a defendant

has a developmental disability, the term "mentally ill" shall also mean,

for purposes of this section, that the defendant is in need of care and

treatment as a resident in the in-patient services of a developmental

center or other residential facility for individuals with developmental

disabilities under the jurisdiction of the state office for people with

developmental disabilities.

(e) "Examination order" means an order directed to the commissioner

requiring that a defendant submit to a psychiatric examination to

determine whether the defendant has a dangerous mental disorder, or if

he does not have dangerous mental disorder, whether he is mentally ill.

(f) "Commitment order" or "recommitment order" means an order

committing a defendant to the custody of the commissioner for

confinement in a secure facility for care and treatment for six months

from the date of the order.

(g) "First retention order" means an order which is effective at the

expiration of the period prescribed in a commitment order for a

recommitment order, authorizing continued custody of a defendant by the

commissioner for a period not to exceed one year.

(h) "Second retention order" means an order which is effective at the

expiration of the period prescribed in a first retention order,

authorizing continued custody of a defendant by the commissioner for a

period not to exceed two years.

(i) "Subsequent retention order" means an order which is effective at

the expiration of the period prescribed in a second retention order or a

prior subsequent retention order authorizing continued custody of a

defendant by the commissioner for a period not to exceed two years.

(j) "Retention order" means a first retention order, a second

retention order or a subsequent retention order.

(k) "Furlough order" means an order directing the commissioner to

allow a defendant in confinement pursuant to a commitment order,

recommitment order or retention order to temporarily leave the facility

for a period not exceeding fourteen days, either with or without the

constant supervision of one or more employees of the facility.

(l) "Transfer order" means an order directing the commissioner to

transfer a defendant from a secure facility to a non-secure facility

under the jurisdiction of the commissioner or to any non-secure facility

designated by the commissioner.

(m) "Release order" means an order directing the commissioner to

terminate a defendant's in-patient status without terminating the

commissioner's responsibility for the defendant.

(n) "Discharge order" means an order terminating an order of

conditions or unconditionally discharging a defendant from supervision

under the provisions of this section.

(o) "Order of conditions" means an order directing a defendant to

comply with this prescribed treatment plan, or any other condition which

the court determines to be reasonably necessary or appropriate, and, in

addition, where a defendant is in custody of the commissioner, not to

leave the facility without authorization. In addition to such

conditions, when determined to be reasonably necessary or appropriate,

an order of conditions may be accompanied by a special order of

conditions set forth in a separate document requiring that the

defendant: (i) stay away from the home, school, business or place of

employment of the victim or victims, or of any witness designated by the

court, of such offense; or (ii) refrain from harassing, intimidating,

threatening or otherwise interfering with the victim or victims of the

offense and such members of the family or household of such victim or

victims as shall be specifically named by the court in such special

order. An order of conditions or special order of conditions shall be

valid for five years from the date of its issuance, except that, for

good cause shown, the court may extend the period for an additional five

years.

(p) "District attorney" means the office which prosecuted the criminal

action resulting in the verdict or plea of not responsible by reason of

mental disease or defect.

(q) "Qualified psychiatrist" means a physician who (i) is a diplomate

of the American board of psychiatry and neurology or is eligible to be

certified by that board; or (ii) is certified by the American

osteopathic board of neurology and psychiatry or is eligible to be

certified by that board.

(r) "Licensed psychologist" means a person who is registered as a

psychologist under article one hundred fifty-three of the education law.

(s) "Psychiatric examiner" means a qualified psychiatrist or a

licensed psychologist who has been designated by the commissioner to

examine a defendant pursuant to this section, and such designee need not

be an employee of the department of mental hygiene.

2. Examination order; psychiatric examiners. Upon entry of a verdict

of not responsible by reason of mental disease or defect, or upon the

acceptance of a plea of not responsible by reason of mental disease or

defect, the court must immediately issue an examination order. Upon

receipt of such order, the commissioner must designate two qualified

psychiatric examiners to conduct the examination to examine the

defendant. In conducting their examination, the psychiatric examiners

may employ any method which is accepted by the medical profession for

the examination of persons alleged to be suffering from a dangerous

mental disorder or to be mentally ill or having a developmental

disability. The court may authorize a psychiatrist or psychologist

retained by a defendant to be present at such examination. The clerk of

the court must promptly forward a copy of the examination order to the

mental hygiene legal service and such service may thereafter participate

in all subsequent proceedings under this section.

In all subsequent proceedings under this section, prior to the

issuance of a special order of conditions, the court shall consider

whether any order of protection had been issued prior to a verdict of

not responsible by reason of mental disease or defect in the case, or

prior to the acceptance of a plea of not responsible by reason of mental

disease or defect in the case.

2-a. Firearm, rifle or shotgun surrender order. Upon entry of a

verdict of not responsible by reason of mental disease or defect, or

upon the acceptance of a plea of not responsible by reason of mental

disease or defect, or upon a finding that the defendant is an

incapacitated person pursuant to article seven hundred thirty of this

chapter, the court shall revoke the defendant's firearm license, if any,

inquire of the defendant as to the existence and location of any

firearm, rifle or shotgun owned or possessed by such defendant and

direct the surrender of such firearm, rifle or shotgun pursuant to

subparagraph (f) of paragraph one of subdivision a of section 265.20 and

subdivision six of section 400.05 of the penal law.

3. Examination order; place of examination. Upon issuing an

examination order, the court must, except as otherwise provided in this

subdivision, direct that the defendant be committed to a secure facility

designated by the commissioner as the place for such psychiatric

examination. The sheriff must hold the defendant in custody pending such

designation by the commissioner, and when notified of the designation,

the sheriff must promptly deliver the defendant to such secure facility.

When the defendant is not in custody at the time of such verdict or

plea, because he was previously released on bail or on his own

recognizance, the court, in its discretion, may direct that such

examination be conducted on an out-patient basis, and at such time and

place as the commissioner shall designate. If, however, the commissioner

informs the court that confinement of the defendant is necessary for an

effective examination, the court must direct that the defendant be

confined in a facility designated by the commissioner until the

examination is completed.

4. Examination order, duration. Confinement in a secure facility

pursuant to an examination order shall be for a period not exceeding

thirty days, except that, upon application of the commissioner, the

court may authorize confinement for an additional period not exceeding

thirty days when a longer period is necessary to complete the

examination. If the initial hearing required by subdivision six of this

section has not commenced prior to the termination of such examination

period, the commissioner shall retain custody of the defendant in such

secure facility until custody is transferred to the sheriff in the

manner prescribed in subdivision six of this section. During the period

of such confinement, the physician in charge of the facility may

administer or cause to be administered to the defendant such emergency

psychiatric, medical or other therapeutic treatment as in his judgment

should be administered. If the court has directed that the examination

be conducted on an out-patient basis, the examination shall be completed

within thirty days after the defendant has first reported to the place

designated by the commissioner, except that, upon application of the

commissioner, the court may extend such period for a reasonable time if

a longer period is necessary to complete the examination.

5. Examination order; reports. After he has completed his examination

of the defendant, each psychiatric examiner must promptly prepare a

report of his findings and evaluation concerning the defendant's mental

condition, and submit such report to the commissioner. If the

psychiatric examiners differ in their opinion as to whether the

defendant is mentally ill or is suffering from a dangerous mental

disorder, the commissioner must designate another psychiatric examiner

to examine the defendant. Upon receipt of the examination reports, the

commissioner must submit them to the court that issued the examination

order. If the court is not satisfied with the findings of these

psychiatric examiners, the court may designate one or more additional

psychiatric examiners pursuant to subdivision fifteen of this section.

The court must furnish a copy of the reports to the district attorney,

counsel for the defendant and the mental hygiene legal service.

6. Initial hearing; commitment order. After the examination reports

are submitted, the court must, within ten days of the receipt of such

reports, conduct an initial hearing to determine the defendant's present

mental condition. If the defendant is in the custody of the commissioner

pursuant to an examination order, the court must direct the sheriff to

obtain custody of the defendant from the commissioner and to confine the

defendant pending further order of the court, except that the court may

direct the sheriff to confine the defendant in an institution located

near the place where the court sits if that institution has been

designated by the commissioner as suitable for the temporary and secure

detention of mentally disabled persons. At such initial hearing, the

district attorney must establish to the satisfaction of the court that

the defendant has a dangerous mental disorder or is mentally ill. If the

court finds that the defendant has a dangerous mental disorder, it must

issue a commitment order. If the court finds that the defendant does not

have a dangerous mental disorder but is mentally ill, the provisions of

subdivision seven of this section shall apply.

7. Initial hearing civil commitment and order of conditions. If, at

the conclusion of the initial hearing conducted pursuant to subdivision

six of this section, the court finds that the defendant is mentally ill

but does not have a dangerous mental disorder, the provisions of

articles nine or fifteen of the mental hygiene law shall apply at that

stage of the proceedings and at all subsequent proceedings. Having found

that the defendant is mentally ill, the court must issue an order of

conditions and an order committing the defendant to the custody of the

commissioner. The latter order shall be deemed an order made pursuant to

the mental hygiene law and not pursuant to this section, and further

retention, conditional release or discharge of such defendant shall be

in accordance with the provisions of the mental hygiene law. If, at the

conclusion of the initial hearing, the court finds that the defendant

does not have a dangerous mental disorder and is not mentally ill, the

court must discharge the defendant either unconditionally or subject to

an order of conditions.

7-a. Whenever the court issues a special order of conditions pursuant

to this section, the commissioner shall make reasonable efforts to

notify the victim or victims or the designated witness or witnesses that

a special order of conditions containing such provisions has been

issued, unless such victim or witness has requested that such notice

should not be provided.

8. First retention order. When a defendant is in the custody of the

commissioner pursuant to a commitment order, the commissioner must, at

least thirty days prior to the expiration of the period prescribed in

the order, apply to the court that issued the order, or to a superior

court in the county where the secure facility is located, for a first

retention order or a release order. The commissioner must give written

notice of the application to the district attorney, the defendant,

counsel for the defendant, and the mental hygiene legal service. Upon

receipt of such application, the court may, on its own motion, conduct a

hearing to determine whether the defendant has a dangerous mental

disorder, and it must conduct such hearing if a demand therefor is made

by the district attorney, the defendant, counsel for the defendant, or

the mental hygiene legal service within ten days from the date that

notice of the application was given to them. If such a hearing is held

on an application for retention, the commissioner must establish to the

satisfaction of the court that the defendant has a dangerous mental

disorder or is mentally ill. The district attorney shall be entitled to

appear and present evidence at such hearing. If such a hearing is held

on an application for release, the district attorney must establish to

the satisfaction of the court that the defendant has a dangerous mental

disorder or is mentally ill. If the court finds that the defendant has a

dangerous mental disorder it must issue a first retention order. If the

court finds that the defendant is mentally ill but does not have a

dangerous mental disorder, it must issue a first retention order and,

pursuant to subdivision eleven of this section, a transfer order and an

order of conditions. If the court finds that the defendant does not have

a dangerous mental disorder and is not mentally ill, it must issue a

release order and an order of conditions pursuant to subdivision twelve

of this section.

9. Second and subsequent retention orders. When a defendant is in the

custody of the commissioner pursuant to a first retention order, the

commissioner must, at least thirty days prior to the expiration of the

period prescribed in the order, apply to the court that issued the

order, or to a superior court in the county where the facility is

located, for a second retention order or a release order. The

commissioner must give written notice of the application to the district

attorney, the defendant, counsel for the defendant, and the mental

hygiene legal service. Upon receipt of such application, the court may,

on its own motion, conduct a hearing to determine whether the defendant

has a dangerous mental disorder, and it must conduct such hearing if a

demand therefor is made by the district attorney, the defendant, counsel

for the defendant, or the mental hygiene legal service within ten days

from the date that notice of the application was given to them. If such

a hearing is held on an application for retention, the commissioner must

establish to the satisfaction of the court that the defendant has a

dangerous mental disorder or is mentally ill. The district attorney

shall be entitled to appear and present evidence at such hearing. If

such a hearing is held on an application for release, the district

attorney must establish to the satisfaction of the court that the

defendant has a dangerous mental disorder or is mentally ill. If the

court finds that the defendant has a dangerous mental disorder it must

issue a second retention order. If the court finds that the defendant is

mentally ill but does not have a dangerous mental disorder, it must

issue a second retention order and, pursuant to subdivision eleven of

this section, a transfer order and an order of conditions. If the court

finds that the defendant does not have a dangerous mental disorder and

is not mentally ill, it must issue a release order and an order of

conditions pursuant to subdivision twelve of this section. When a

defendant is in the custody of the commissioner prior to the expiration

of the period prescribed in a second retention order, the procedures set

forth in this subdivision for the issuance of a second retention order

shall govern the application for and the issuance of any subsequent

retention order.

10. Furlough order. The commissioner may apply for a furlough order,

pursuant to this subdivision, when a defendant is in his custody

pursuant to a commitment order, recommitment order, or retention order

and the commissioner is of the view that, consistent with the public

safety and welfare of the community and the defendant, the clinical

condition of the defendant warrants a granting of the privileges

authorized by a furlough order. The application for a furlough order may

be made to the court that issued the commitment order, or to a superior

court in the county where the secure facility is located. The

commissioner must give ten days written notice to the district attorney,

the defendant, counsel for the defendant, and the mental hygiene legal

service. Upon receipt of such application, the court may, on its own

motion, conduct a hearing to determine whether the application should be

granted, and must conduct such hearing if a demand therefor is made by

the district attorney. If the court finds that the issuance of a

furlough order is consistent with the public safety and welfare of the

community and the defendant, and that the clinical condition of the

defendant warrants a granting of the privileges authorized by a furlough

order, the court must grant the application and issue a furlough order

containing any terms and conditions that the court deems necessary or

appropriate. If the defendant fails to return to the secure facility at

the time specified in the furlough order, then, for purposes of

subdivision nineteen of this section, he shall be deemed to have

escaped.

11. Transfer order and order of conditions. The commissioner may apply

for a transfer order, pursuant to this subdivision, when a defendant is

in his custody pursuant to a retention order or a recommitment order,

and the commissioner is of the view that the defendant does not have a

dangerous mental disorder or that, consistent with the public safety and

welfare of the community and the defendant, the clinical condition of

the defendant warrants his transfer from a secure facility to a

non-secure facility under the jurisdiction of the commissioner or to any

non-secure facility designated by the commissioner. The application for

a transfer order may be made to the court that issued the order under

which the defendant is then in custody, or to a superior court in the

county where the secure facility is located. The commissioner must give

ten days written notice to the district attorney, the defendant, counsel

for the defendant, and the mental hygiene legal service. Upon receipt of

such application, the court may, on its own motion, conduct a hearing to

determine whether the application should be granted, and must conduct

such hearing if the demand therefor is made by the district attorney. At

such hearing, the district attorney must establish to the satisfaction

of the court that the defendant has a dangerous mental disorder or that

the issuance of a transfer order is inconsistent with the public safety

and welfare of the community. The court must grant the application and

issue a transfer order if the court finds that the defendant does not

have a dangerous mental disorder, or if the court finds that the

issuance of a transfer order is consistent with the public safety and

welfare of the community and the defendant and that the clinical

condition of the defendant, warrants his transfer from a secure facility

to a non-secure facility. A court must also issue a transfer order when,

in connection with an application for a first retention order pursuant

to subdivision eight of this section or a second or subsequent retention

order pursuant to subdivision nine of this section, it finds that a

defendant is mentally ill but does not have a dangerous mental disorder.

Whenever a court issues a transfer order it must also issue an order of

conditions.

12. Release order and order of conditions. The commissioner may apply

for a release order, pursuant to this subdivision, when a defendant is

in his custody pursuant to a retention order or recommitment order, and

the commissioner is of the view that the defendant no longer has a

dangerous mental disorder and is no longer mentally ill. The application

for a release order may be made to the court that issued the order under

which the defendant is then in custody, or to a superior court in the

county where the facility is located. The application must contain a

description of the defendant's current mental condition, the past course

of treatment, a history of the defendant's conduct subsequent to his

commitment, a written service plan for continued treatment which shall

include the information specified in subdivision (g) of section 29.15 of

the mental hygiene law, and a detailed statement of the extent to which

supervision of the defendant after release is proposed. The commissioner

must give ten days written notice to the district attorney, the

defendant, counsel for the defendant, and the mental hygiene legal

service. Upon receipt of such application, the court must promptly

conduct a hearing to determine the defendant's present mental condition.

At such hearing, the district attorney must establish to the

satisfaction of the court that the defendant has a dangerous mental

disorder or is mentally ill. If the court finds that the defendant has a

dangerous mental disorder, it must deny the application for a release

order. If the court finds that the defendant does not have a dangerous

mental disorder but is mentally ill, it must issue a transfer order

pursuant to subdivision eleven of this section if the defendant is then

confined in a secure facility. If the court finds that the defendant

does not have a dangerous mental disorder and is not mentally ill, it

must grant the application and issue a release order. A court must also

issue a release order when, in connection with an application for a

first retention order pursuant to subdivision eight of this section or a

second or subsequent retention order pursuant to subdivision nine of

this section, it finds that the defendant does not have a dangerous

mental disorder and is not mentally ill. Whenever a court issues a

release order it must also issue an order of conditions. If the court

has previously issued a transfer order and an order of conditions, it

must issue a new order of conditions upon issuing a release order. The

order of conditions issued in conjunction with a release order shall

incorporate a written service plan prepared by a psychiatrist familiar

with the defendant's case history and approved by the court, and shall

contain any conditions that the court determines to be reasonably

necessary or appropriate. It shall be the responsibility of the

commissioner to determine that such defendant is receiving the services

specified in the written service plan and is complying with any

conditions specified in such plan and the order of conditions.

13. Discharge order. The commissioner may apply for a discharge order,

pursuant to this subdivision, when a defendant has been continuously on

an out-patient status for three years or more pursuant to a release

order, and the commissioner is of the view that the defendant no longer

has a dangerous mental disorder and is no longer mentally ill and that

the issuance of a discharge order is consistent with the public safety

and welfare of the community and the defendant. The application for a

discharge order may be made to the court that issued the release order,

or to a superior court in the county where the defendant is then

residing. The commissioner must give ten days written notice to the

district attorney, the defendant, counsel for the defendant, and the

mental hygiene legal service. Upon receipt of such application, the

court may, on its own motion, conduct a hearing to determine whether the

application should be granted, and must conduct such hearing if a demand

therefor is made by the district attorney. The court must grant the

application and issue a discharge order if the court finds that the

defendant has been continuously on an out-patient status for three years

or more, that he does not have a dangerous mental disorder and is not

mentally ill, and that the issuance of the discharge order is consistent

with the public safety and welfare of the community and the defendant.

14. Recommitment order. At any time during the period covered by an

order of conditions an application may be made by the commissioner or

the district attorney to the court that issued such order, or to a

superior court in the county where the defendant is then residing, for a

recommitment order when the applicant is of the view that the defendant

has a dangerous mental disorder. The applicant must give written notice

of the application to the defendant, counsel for the defendant, and the

mental hygiene legal service, and if the applicant is the commissioner

he must give such notice to the district attorney or if the applicant is

the district attorney he must give such notice to the commissioner. Upon

receipt of such application the court must order the defendant to appear

before it for a hearing to determine if the defendant has a dangerous

mental disorder. Such order may be in the form of a written notice,

specifying the time and place of appearance, served personally upon the

defendant, or mailed to his last known address, as the court may direct.

If the defendant fails to appear in court as directed, the court may

issue a warrant to an appropriate peace officer directing him to take

the defendant into custody and bring him before the court. In such

circumstance, the court may direct that the defendant be confined in an

appropriate institution located near the place where the court sits. The

court must conduct a hearing to determine whether the defendant has a

dangerous mental disorder. At such hearing, the applicant, whether he be

the commissioner or the district attorney must establish to the

satisfaction of the court that the defendant has a dangerous mental

disorder. If the applicant is the commissioner, the district attorney

shall be entitled to appear and present evidence at such hearing; if the

applicant is the district attorney, the commissioner shall be entitled

to appear and present evidence at such hearing. If the court finds that

the defendant has a dangerous mental disorder, it must issue a

recommitment order. When a defendant is in the custody of the

commissioner pursuant to a recommitment order, the procedures set forth

in subdivisions eight and nine of this section for the issuance of

retention orders shall govern the application for and the issuance of a

first retention order, a second retention order, and subsequent

retention orders.

15. Designation of psychiatric examiners. If, at any hearing conducted

under this section to determine the defendant's present mental

condition, the court is not satisfied with the findings of the

psychiatric examiners, the court may direct the commissioner to

designate one or more additional psychiatric examiners to conduct an

examination of the defendant and submit a report of their findings. In

addition, the court may on its own motion, or upon request of a party,

may designate one or more psychiatric examiners to examine the defendant

and submit a report of their findings. The district attorney may apply

to the court for an order directing that the defendant submit to an

examination by a psychiatric examiner designated by the district

attorney, and such psychiatric examiner may testify at the hearing.

16. Rehearing and review. Any defendant who is in the custody of the

commissioner pursuant to a commitment order, a retention order, or a

recommitment order, if dissatisfied with such order, may, within thirty

days after the making of such order, obtain a rehearing and review of

the proceedings and of such order in accordance with the provisions of

section 9.35 or 15.35 of the mental hygiene law.

17. Rights of defendants. Subject to the limitations and provisions of

this section, a defendant committed to the custody of the commissioner

pursuant to this section shall have the rights granted to patients under

the mental hygiene law.

18. Notwithstanding any other provision of law, no person confined by

reason of a commitment order, recommitment order or retention order to a

secure facility may be discharged or released unless the commissioner

shall deliver written notice, at least four days excluding Saturdays,

Sundays and holidays, in advance of such discharge or release to all of

the following:

(a) the district attorney.

(b) the police department having jurisdiction of the area to which the

defendant is to be discharged or released.

(c) any other person the court may designate.

The notices required by this subdivision shall be given by the

facility staff physician who was treating the defendant or, if

unavailable, by the defendant's treatment team leader, but if neither is

immediately available, notice must be given by some other member of the

clinical staff of the facility. Such notice must be given by any means

reasonably calculated to give prompt actual notice.

19. Escape from custody; notice requirements. If a defendant is in the

custody of the commissioner pursuant to an order issued under this

section, and such defendant escapes from custody, immediate notice of

such escape shall be given by the department facility staff to: (a) the

district attorney, (b) the superintendent of state police, (c) the

sheriff of the county where the escape occurred, (d) the police

department having jurisdiction of the area where the escape occurred,

(e) any person the facility staff believes to be in danger, and (f) any

law enforcement agency and any person the facility staff believes would

be able to apprise such endangered person that the defendant has escaped

from the facility. Such notice shall be given as soon as the facility

staff know that the defendant has escaped from the facility and shall

include such information as will adequately identify the defendant and

the person or persons believed to be in danger and the nature of the

danger. The notices required by this subdivision shall be given by the

facility staff physician who was treating the defendant or, if

unavailable, by the defendant's treatment team leader, but if neither is

immediately available, notice must be given by some other member of the

clinical staff of the facility. Such notice must be given by any means

reasonably calculated to give prompt actual notice. The defendant may be

apprehended, restrained, transported to, and returned to the facility

from which he escaped by any peace officer, and it shall be the duty of

the officer to assist any representative of the commissioner to take the

defendant into custody upon the request of such representative.

20. Required affidavit. No application may be made by the commissioner

under this section without an accompanying affidavit from at least one

psychiatric examiner supportive of relief requested in the application,

which affidavit shall be served on all parties entitled to receive the

notice of application. Such affidavit shall set forth the defendant's

clinical diagnosis, a detailed analysis of his or her mental condition

which caused the psychiatric examiner to formulate an opinion, and the

opinion of the psychiatric examiner with respect to the defendant. Any

application submitted without the required affidavit shall be dismissed

by the court.

21. Appeals. (a) A party to proceedings conducted in accordance with

the provisions of this section may take an appeal to an intermediate

appellate court by permission of the intermediate appellate court as

follows:

(i) the commissioner may appeal from any release order, retention

order, transfer order, discharge order, order of conditions, or

recommitment order, for which he has not applied;

(ii) a defendant, or the mental hygiene legal service on his or her

behalf, may appeal from any commitment order, retention order,

recommitment order, or, if the defendant has obtained a rehearing and

review of any such order pursuant to subdivision sixteen of this

section, from an order, not otherwise appealable as of right, issued in

accordance with the provisions of section 9.35 or 15.35 of the mental

hygiene law authorizing continued retention under the original order,

provided, however, that a defendant who takes an appeal from a

commitment order, retention order, or recommitment order may not

subsequently obtain a rehearing and review of such order pursuant to

subdivision sixteen of this section;

(iii) the district attorney may appeal from any release order,

transfer order, discharge order, order of conditions, furlough order, or

order denying an application for a recommitment order which he opposed.

(b) An aggrieved party may appeal from a final order of the

intermediate appellate court to the court of appeals by permission of

the intermediate appellate court granted before application to the court

of appeals, or by permission of the court of appeals upon refusal by the

intermediate appellate court or upon direct application.

(c) An appeal taken under this subdivision shall be deemed civil in

nature, and shall be governed by the laws and rules applicable to civil

appeals; provided, however, that a stay of the order appealed from must

be obtained in accordance with the provisions of paragraph (d) hereof.

(d) The court from or to which an appeal is taken may stay all

proceedings to enforce the order appealed from pending an appeal or

determination on a motion for permission to appeal, or may grant a

limited stay, except that only the court to which an appeal is taken may

vacate, limit, or modify a stay previously granted. If the order

appealed from is affirmed or modified, the stay shall continue for five

days after service upon the appellant of the order of affirmance or

modification with notice of its entry in the court to which the appeal

was taken. If a motion is made for permission to appeal from such an

order, before the expiration of the five days, the stay, or any other

stay granted pending determination of the motion for permission to

appeal, shall:

(i) if the motion is granted, continue until five days after the

appeal is determined; or

(ii) if the motion is denied, continue until five days after the

movant is served with the order of denial with notice of its entry.

22. Any special order of conditions issued pursuant to subparagraph

(i) or (ii) of paragraph (o) of subdivision one of this section shall

bear in a conspicuous manner the term "special order of conditions" and

a copy shall be filed by the clerk of the court with the sheriff's

office in the county in which anyone intended to be protected by such

special order resides, or, if anyone intended to be protected by such

special order resides within a city, with the police department of such

city. The absence of language specifying that the order is a "special

order of conditions" shall not affect the validity of such order. A copy

of such special order of conditions may from time to time be filed by

the clerk of the court with any other police department or sheriff's

office having jurisdiction of the residence, work place, or school of

anyone intended to be protected by such special order. A copy of such

special order may also be filed by anyone intended to be protected by

such provisions at the appropriate police department or sheriff's office

having jurisdiction. Any subsequent amendment or revocation of such

special order may be filed in the same manner as provided in this

subdivision. Such special order of conditions shall plainly state the

date that the order expires.