N.Y. Criminal Procedure Law § 730.60: Fitness to proceed; procedure following custody by commissioner

§ 730.60 Fitness to proceed; procedure following custody by

commissioner.

1. When a local criminal court issues a final or temporary order of

observation or an order of commitment, it must forward such order and a

copy of the examination reports and the accusatory instrument to the

commissioner, and, if available, a copy of the pre-sentence report. Upon

receipt thereof, the commissioner must designate an appropriate

institution operated by the department of mental hygiene in which the

defendant is to be placed, 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. The sheriff must hold the

defendant in custody pending such designation by the commissioner, and

when notified of the designation, the sheriff must deliver the defendant

to the superintendent of such institution. The superintendent must

promptly inform the appropriate director of the mental hygiene legal

service of the defendant's admission to such institution. If a defendant

escapes from the custody of the commissioner, the escape shall interrupt

the period prescribed in any order of observation, commitment or

retention, and such interruption shall continue until the defendant is

returned to the custody of the commissioner.

2. Except as otherwise provided in subdivisions four and five, when a

defendant is in the custody of the commissioner pursuant to a temporary

order of observation or an order of commitment or an order of retention,

the criminal action pending against the defendant in the court that

issued such order is suspended until the superintendent of the

institution in which the defendant is confined determines that he is no

longer an incapacitated person. In that event, the court that issued

such order and the appropriate district attorney must be notified, in

writing, by the superintendent of his determination. The court must

thereupon proceed in accordance with the provisions of subdivision two

of section 730.30 of this chapter; provided, however, if the court is

satisfied that the defendant remains an incapacitated person, and upon

consent of all parties, the court may order the return of the defendant

to the institution in which he had been confined for such period of time

as was authorized by the prior order of commitment or order of

retention. Upon such return, the defendant shall have all rights and

privileges accorded by the provisions of this article.

3. When a defendant is in the custody of the commissioner pursuant to

an order issued in accordance with this article, the commissioner may

transfer him to any appropriate institution operated by the department

of mental hygiene, 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 section. The commissioner may discharge a

defendant in his custody under a final order of observation at any time

prior to the expiration date of such order, or otherwise treat or

transfer such defendant in the same manner as if he were a patient not

in confinement under a criminal court order.

4. When a defendant is in the custody of the commissioner pursuant to

an order of commitment or an order of retention, he may make any motion

authorized by this chapter which is susceptible of fair determination

without his personal participation. If the court denies any such motion

it must be without prejudice to a renewal thereof after the criminal

action against the defendant has been ordered to proceed. If the court

enters an order dismissing the indictment and does not direct that the

charge or charges be resubmitted to a grand jury, the court must direct

that such order of dismissal be served upon the commissioner.

5. When a defendant is in the custody of the commissioner pursuant to

an order of commitment or an order of retention, the superior court that

issued such order may, upon motion of the defendant, and with the

consent of the district attorney, dismiss the indictment when the court

is satisfied that (a) the defendant is a resident or citizen of another

state or country and that he will be removed thereto upon dismissal of

the indictment, or (b) the defendant has been continuously confined in

the custody of the commissioner for a period of more than two years.

Before granting a motion under this subdivision, the court must be

further satisfied that dismissal of the indictment is consistent with

the ends of justice and that custody of the defendant by the

commissioner pursuant to an order of commitment or an order of retention

is not necessary for the protection of the public and that care and

treatment can be effectively administered to the defendant without the

necessity of such order. If the court enters an order of dismissal under

this subdivision, it must set forth in the record the reasons for such

action, and must direct that such order of dismissal be served upon the

commissioner. The dismissal of an indictment pursuant to this

subdivision constitutes a bar to any further prosecution of the charge

or charges contained in such indictment.

6. (a) Notwithstanding any other provision of law, no person committed

to the custody of the commissioner pursuant to this article, or

continuously thereafter retained in such custody, shall be discharged,

released on condition or placed in any less secure facility or on any

less restrictive status, including, but not limited to vacations,

furloughs and temporary passes, unless the commissioner or his or her

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

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

Sundays and holidays, in advance of the change of such committed

person's facility or status, or in the case of a person committed

pursuant to a final order of observation written notice upon discharge

of such committed person, to all of the following:

(1) The district attorney of the county from which such person was

committed;

(2) The superintendent of state police;

(3) The sheriff of the county where the facility is located;

(4) The police department having jurisdiction of the area where the

facility is located;

(5) Any person 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 part 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; and

(6) Any other person the court may designate.

Said notice may be given by any means reasonably calculated to give

prompt actual notice.

(b) The notice required by this subdivision shall also be given

immediately upon the departure of such committed person from the actual

custody of the commissioner or an appropriate institution, without

proper authorization. Nothing in this subdivision shall be construed to

impair any other right or duty regarding any notice or hearing contained

in any other provision of law.

(c) Whenever a district attorney has received the notice described in

this subdivision, and the defendant is in the custody of the

commissioner pursuant to a final order of observation or an order of

commitment, he may apply within three days of receipt of such notice to

a superior court, for an order directing a hearing to be held to

determine whether such committed person is a danger to himself or

others. Such hearing shall be held within ten days following the

issuance of such order. Such order may provide that there shall be no

further change in the committed person's facility or status until the

hearing. Upon a finding that the committed person is a danger to himself

or others, the court shall issue an order to the commissioner

authorizing retention of the committed person in the status existing at

the time notice was given hereunder, for a specified period, not to

exceed six months. The district attorney and the committed person's

attorney shall be entitled to the committed person's clinical records in

the commissioner's custody, upon the issuance of an order directing a

hearing to be held.

(d) Nothing in this subdivision shall be construed to impair any other

right or duty regarding any notice or hearing contained in any other

provision of law.