N.Y. Criminal Procedure Law § 730.40: Fitness to proceed; local criminal court accusatory instrument

§ 730.40 Fitness to proceed; local criminal court accusatory instrument.

1. When a local criminal court, following a hearing conducted pursuant

to subdivision three or four of section 730.30 of this article, is

satisfied that the defendant is not an incapacitated person, the

criminal action against him or her must proceed. If it is satisfied that

the defendant is an incapacitated person, or if no motion for such a

hearing is made, such court must issue a final or temporary order of

observation committing him or her to the custody of the commissioner for

care and treatment in an appropriate institution for a period not to

exceed ninety days from the date of the order, provided, however, that

the commissioner may designate an appropriate hospital for placement of

a defendant for whom a final order of observation has been issued, where

such hospital is licensed by the office of mental health and has agreed

to accept, upon referral by the commissioner, defendants subject to

final orders of observation issued under this subdivision. When a local

criminal court accusatory instrument other than a felony complaint has

been filed against the defendant, such court must issue a final order of

observation. When a felony complaint has been filed against the

defendant, such court must issue a temporary order of observation

committing him or her to the custody of the commissioner for care and

treatment in an appropriate institution or, upon the consent of the

district attorney, committing him or her to the custody of the

commissioner for care and treatment on an out-patient basis, for a

period not to exceed ninety days from the date of such order, except

that, with the consent of the district attorney, it may issue a final

order of observation. Upon the issuance of a final order of observation,

the district attorney shall immediately transmit to the commissioner, in

a manner intended to protect the confidentiality of the information, a

list of names and contact information of persons who may reasonably be

expected to be the victim of any assault or any violent felony offense,

as defined in the penal law, or any offense listed in section 530.11 of

this chapter which would be carried out by the committed person;

provided that the person who reasonably may be expected to be a victim

does not need to be a member of the same family or household as the

committed person.

2. (a) When a local criminal court has issued a final order of

observation, it must:

(1) order the appropriate institution designated by the commissioner

to provide for discharge planning pursuant to subdivisions (f) and (g)

of section 29.15 of the mental hygiene law, if applicable, which shall

include referrals to the single point of access or other outpatient

providers, provided such referrals are clinically indicated. Nothing in

this subparagraph shall be construed to require a referral to services

for which the defendant is not eligible or where otherwise prohibited by

law, including where patient consent is required and has not been

provided; and

(2) dismiss the accusatory instrument filed in such court against the

defendant and such dismissal constitutes a bar to any further

prosecution of the charge or charges contained in such accusatory

instrument.

(b) When the defendant is in the custody of the commissioner pursuant

to a final order of observation, the commissioner or such commissioner's

designee, which may include the director of an appropriate institution,

immediately upon the discharge of the defendant, must certify to such

court that the commissioner or such commissioner's designee has complied

with the notice provisions set forth in paragraph (a) of subdivision six

of section 730.60 of this article and the referral provisions set forth

in paragraph (a) of this subdivision. When the defendant is in the

custody of the commissioner at the expiration of the period prescribed

in a temporary order of observation, the proceedings in the local

criminal court that issued such order shall terminate for all purposes

and the commissioner must promptly certify to such court and to the

appropriate district attorney that the defendant was in the

commissioner's custody on such expiration date. Upon receipt of such

certification, the court must dismiss the felony complaint filed against

the defendant.

3. When a local criminal court has issued an order of examination or a

temporary order of observation, and when the charge or charges contained

in the accusatory instrument are subsequently presented to a grand jury,

such grand jury need not hear the defendant pursuant to section 190.50

unless, upon application by defendant to the superior court that

impaneled such grand jury, the superior court determines that the

defendant is not an incapacitated person.

4. When an indictment is filed against a defendant after a local

criminal court has issued an order of examination and before it has

issued a final or temporary order of observation, the defendant must be

promptly arraigned upon the indictment, and the proceedings in the local

criminal court shall thereupon terminate for all purposes. The district

attorney must notify the local criminal court of such arraignment, and

such court must thereupon dismiss the accusatory instrument filed in

such court against the defendant. If the director has submitted the

examination reports to the local criminal court, such court must forward

them to the superior court in which the indictment was filed. If the

director has not submitted such reports to the local criminal court, he

must submit them to the superior court in which the indictment was

filed.

5. When an indictment is timely filed against the defendant after the

issuance of a temporary order of observation or after the expiration of

the period prescribed in such order, the superior court in which such

indictment is filed must direct the sheriff to take custody of the

defendant at the institution in which he is confined and bring him

before the court for arraignment upon the indictment. After the

defendant is arraigned upon the indictment, such temporary order of

observation or any order issued pursuant to the mental hygiene law after

the expiration of the period prescribed in the temporary order of

observation shall be deemed nullified. Notwithstanding any other

provision of law, an indictment filed in a superior court against a

defendant for a crime charged in the felony complaint is not timely for

the purpose of this subdivision if it is filed more than six months

after the expiration of the period prescribed in a temporary order of

observation issued by a local criminal court wherein such felony

complaint was pending. An untimely indictment must be dismissed by the

superior court unless such court is satisfied that there was good cause

for the delay in filing such indictment.