N.Y. Criminal Procedure Law § 730.20: Fitness to proceed; generally

§ 730.20 Fitness to proceed; generally.

1. The appropriate director to whom a criminal court issues an order

of examination must be determined in accordance with rules jointly

adopted by the judicial conference and the commissioner. Upon receipt

of an examination order, the director must designate two qualified

psychiatric examiners, of whom he may be one, to examine the defendant

to determine if he is an incapacitated person. 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 mentally ill or mentally defective. The court may

authorize a psychiatrist or psychologist retained by the defendant to be

present at such examination.

2. When the defendant is not in custody at the time a court issues an

order of examination, because he was theretofore released on bail or on

his own recognizance, the court may direct that the examination be

conducted on an out-patient basis, and at such time and place as the

director shall designate. If, however, the director informs the court

that hospital confinement of the defendant is necessary for an effective

examination, the court may direct that the defendant be confined in a

hospital designated by the director until the examination is completed.

3. When the defendant is in custody at the time a court issues an

order of examination, the examination must be conducted at the place

where the defendant is being held in custody. If, however, the director

determines that hospital confinement of the defendant is necessary for

an effective examination, the sheriff must deliver the defendant to a

hospital designated by the director and hold him in custody therein,

under sufficient guard, until the examination is completed.

4. Hospital confinement under subdivisions two and three shall be for

a period not exceeding thirty days, except that, upon application of the

director, the court may authorize confinement for an additional period

not exceeding thirty days if it is satisfied that a longer period is

necessary to complete the examination. During the period of hospital

confinement, the physician in charge of the hospital 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.

5. Each psychiatric examiner, after he has completed his examination

of the defendant, must promptly prepare an examination report and submit

it to the director. If the psychiatric examiners are not unanimous in

their opinion as to whether the defendant is or is not an incapacitated

person, the director must designate another qualified psychiatric

examiner to examine the defendant to determine if he is an incapacitated

person. Upon receipt of the examination reports, the director must

submit them to the court that issued the order of examination. The

court must furnish a copy of the reports to counsel for the defendant

and to the district attorney.

6. When a defendant is subjected to examination pursuant to an order

issued by a criminal court in accordance with this article, any

statement made by him for the purpose of the examination or treatment

shall be inadmissible in evidence against him in any criminal action on

any issue other than that of his mental condition, but such statement is

admissible upon that issue whether or not it would otherwise be deemed a

privileged communication.

7. A psychiatric examiner is entitled to his reasonable traveling

expenses, a fee of fifty dollars for each examination of a defendant and

a fee of fifty dollars for each appearance at a court hearing or trial

but not exceeding two hundred dollars in fees for examination and

testimony in any one case; except that if such psychiatric examiner be

an employee of the state of New York he shall be entitled only to

reasonable traveling expenses, unless such psychiatric examiner makes

the examination or appears at a court hearing or trial outside his hours

of state employment in a county in which the director of community

mental health services certifies to the fiscal officer thereof that

there is a shortage of qualified psychiatrists available to conduct

examinations under the criminal procedure law in such county, in which

event he shall be entitled to the foregoing fees and reasonable

traveling expenses. Such fees and traveling expenses and the costs of

sending a defendant to another place of detention or to a hospital for

examination, of his maintenance therein and of returning him shall, when

approved by the court, be a charge of the county in which the defendant

is being tried.