N.Y. Criminal Procedure Law § 730.50: Fitness to proceed; indictment

§ 730.50 Fitness to proceed; indictment.

1. When a superior 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, it must adjudicate him or her an incapacitated person,

and must issue a final order of observation or an order of commitment.

When the indictment does not charge a felony or when the defendant has

been convicted of an offense other than a felony, such court (a) must

issue a final order of observation committing the defendant 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 such

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, and (b) must dismiss the indictment 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

indictment. 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. When the indictment charges a felony or when the

defendant has been convicted of a felony, it must issue an order of

commitment committing the defendant 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 one year from the date of such order. Upon the

issuance of an order of commitment, the court must exonerate the

defendant's bail if he or she was previously at liberty on bail;

provided, however, that exoneration of bail is not required when a

defendant is committed to the custody of the commissioner for care and

treatment on an out-patient basis. When the defendant is in the custody

of the commissioner pursuant to a final order of observation, the

commissioner or his or her designee, which may include the director of

an appropriate institution, immediately upon the discharge of the

defendant, must certify to such court that he or she has complied with

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

section 730.60 of this article.

2. When a defendant is in the custody of the commissioner immediately

prior to the expiration of the period prescribed in a temporary order of

commitment and the superintendent of the institution wherein the

defendant is confined is of the opinion that the defendant continues to

be an incapacitated person, such superintendent must apply to the court

that issued such order for an order of retention. Such application must

be made within sixty days prior to the expiration of such period on

forms that have been jointly adopted by the judicial conference and the

commissioner. The superintendent must give written notice of the

application to the defendant and to the mental hygiene legal service.

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

conduct a hearing to determine the issue of capacity, and it must

conduct such hearing if a demand therefor is made by the defendant or

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

notice of the application was given them. If, at the conclusion of a

hearing conducted pursuant to this subdivision, the court is satisfied

that the defendant is no longer an incapacitated person, the criminal

action against him must proceed. If it is satisfied that the defendant

continues to be an incapacitated person, or if no demand for a hearing

is made, the court must adjudicate him an incapacitated person and must

issue an order of retention which shall authorize continued custody of

the defendant by the commissioner for a period not to exceed one year.

3. When a defendant is in the custody of the commissioner immediately

prior to the expiration of the period prescribed in the first order of

retention, the procedure set forth in subdivision two shall govern the

application for and the issuance of any subsequent order of retention,

except that any subsequent orders of retention must be for periods not

to exceed two years each; provided, however, that the aggregate of the

periods prescribed in the temporary order of commitment, the first order

of retention and all subsequent orders of retention must not exceed

two-thirds of the authorized maximum term of imprisonment for the

highest class felony charged in the indictment or for the highest class

felony of which he was convicted.

4. When a defendant is in the custody of the commissioner at the

expiration of the authorized period prescribed in the last order of

retention, the criminal action pending against him in the superior 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 his custody on such

expiration date. Upon receipt of such certification, the court must

dismiss the indictment, and such dismissal constitutes a bar to any

further prosecution of the charge or charges contained in such

indictment.

5. When, on the effective date of this subdivision, any defendant

remains in the custody of the commissioner pursuant to an order issued

under former code of criminal procedure section six hundred sixty-two-b,

the superintendent or director of the institution where such defendant

is confined shall, if he believes that the defendant continues to be an

incapacitated person, apply forthwith to a court of record in the county

where the institution is located for an order of retention. The

procedures for obtaining any order pursuant to this subdivision shall be

in accordance with the provisions of subdivisions two, three and four of

this section, except that the period of retention pursuant to the first

order obtained under this subdivision shall be for not more than one

year and any subsequent orders of retention must be for periods not to

exceed two years each; provided, however, that the aggregate of the time

spent in the custody of the commissioner pursuant to any order issued in

accordance with the provisions of former code of criminal procedure

section six hundred sixty-two-b and the periods prescribed by the first

order obtained under this subdivision and all subsequent orders of

retention must not exceed two-thirds of the authorized maximum term of

imprisonment for the highest class felony charged in the indictment or

the highest class felony of which he was convicted.