N.Y. CPL Law § 730.40 — New York Code / Act CPL / Part 3 / Title U / Article 730 / Section 730.40
Fitness to proceed; local criminal court accusatory instrument
Status: in_force

§ 730.40 Fitness to proceed; local criminal court accusatory instrument.\n  1. When a local criminal court, following a hearing conducted pursuant\nto subdivision three or four of section 730.30 of this article, is\nsatisfied that the defendant is not an incapacitated person, the\ncriminal action against him or her must proceed. If it is satisfied that\nthe defendant is an incapacitated person, or if no motion for such a\nhearing is made, such court must issue a final or temporary order of\nobservation committing him or her to the custody of the commissioner for\ncare and treatment in an appropriate institution for a period not to\nexceed ninety days from the date of the order, provided, however, that\nthe commissioner may designate an appropriate hospital for placement of\na defendant for whom a final order of observation has been issued, where\nsuch hospital is licensed by the office of mental health and has agreed\nto accept, upon referral by the commissioner, defendants subject to\nfinal orders of observation issued under this subdivision. When a local\ncriminal court accusatory instrument other than a felony complaint has\nbeen filed against the defendant, such court must issue a final order of\nobservation. When a felony complaint has been filed against the\ndefendant, such court must issue a temporary order of observation\ncommitting him or her to the custody of the commissioner for care and\ntreatment in an appropriate institution or, upon the consent of the\ndistrict attorney, committing him or her to the custody of the\ncommissioner for care and treatment on an out-patient basis, for a\nperiod not to exceed ninety days from the date of such order, except\nthat, with the consent of the district attorney, it may issue a final\norder of observation. Upon the issuance of a final order of observation,\nthe district attorney shall immediately transmit to the commissioner, in\na manner intended to protect the confidentiality of the information, a\nlist of names and contact information of persons who may reasonably be\nexpected to be the victim of any assault or any violent felony offense,\nas defined in the penal law, or any offense listed in section 530.11 of\nthis chapter which would be carried out by the committed person;\nprovided that the person who reasonably may be expected to be a victim\ndoes not need to be a member of the same family or household as the\ncommitted person.\n  2. (a) When a local criminal court has issued a final order of\nobservation, it must:\n  (1) order the appropriate institution designated by the commissioner\nto provide for discharge planning pursuant to subdivisions (f) and (g)\nof section 29.15 of the mental hygiene law, if applicable, which shall\ninclude referrals to the single point of access or other outpatient\nproviders, provided such referrals are clinically indicated. Nothing in\nthis subparagraph shall be construed to require a referral to services\nfor which the defendant is not eligible or where otherwise prohibited by\nlaw, including where patient consent is required and has not been\nprovided; and\n  (2) dismiss the accusatory instrument filed in such court against the\ndefendant and such dismissal constitutes a bar to any further\nprosecution of the charge or charges contained in such accusatory\ninstrument.\n  (b) When the defendant is in the custody of the commissioner pursuant\nto a final order of observation, the commissioner or such commissioner's\ndesignee, which may include the director of an appropriate institution,\nimmediately upon the discharge of the defendant, must certify to such\ncourt that the commissioner or such commissioner's designee has complied\nwith the notice provisions set forth in paragraph (a) of subdivision six\nof section 730.60 of this article and the referral provisions set forth\nin paragraph (a) of this subdivision. When the defendant is in the\ncustody of the commissioner at the expiration of the period prescribed\nin a temporary order of observation, the proceedings in the local\ncriminal court that issued such order shall terminate for all purposes\nand the commissioner must promptly certify to such court and to the\nappropriate district attorney that the defendant was in the\ncommissioner's custody on such expiration date. Upon receipt of such\ncertification, the court must dismiss the felony complaint filed against\nthe defendant.\n  3. When a local criminal court has issued an order of examination or a\ntemporary order of observation, and when the charge or charges contained\nin the accusatory instrument are subsequently presented to a grand jury,\nsuch grand jury need not hear the defendant pursuant to section 190.50\nunless, upon application by defendant to the superior court that\nimpaneled such grand jury, the superior court determines that the\ndefendant is not an incapacitated person.\n  4. When an indictment is filed against a defendant after a local\ncriminal court has issued an order of examination and before it has\nissued a final or temporary order of observation, the defendant must be\npromptly arraigned upon the indictment, and the proceedings in the local\ncriminal court shall thereupon terminate for all purposes. The district\nattorney must notify the local criminal court of such arraignment, and\nsuch court must thereupon dismiss the accusatory instrument filed in\nsuch court against the defendant. If the director has submitted the\nexamination reports to the local criminal court, such court must forward\nthem to the superior court in which the indictment was filed. If the\ndirector has not submitted such reports to the local criminal court, he\nmust submit them to the superior court in which the indictment was\nfiled.\n  5. When an indictment is timely filed against the defendant after the\nissuance of a temporary order of observation or after the expiration of\nthe period prescribed in such order, the superior court in which such\nindictment is filed must direct the sheriff to take custody of the\ndefendant at the institution in which he is confined and bring him\nbefore the court for arraignment upon the indictment. After the\ndefendant is arraigned upon the indictment, such temporary order of\nobservation or any order issued pursuant to the mental hygiene law after\nthe expiration of the period prescribed in the temporary order of\nobservation shall be deemed nullified. Notwithstanding any other\nprovision of law, an indictment filed in a superior court against a\ndefendant for a crime charged in the felony complaint is not timely for\nthe purpose of this subdivision if it is filed more than six months\nafter the expiration of the period prescribed in a temporary order of\nobservation issued by a local criminal court wherein such felony\ncomplaint was pending. An untimely indictment must be dismissed by the\nsuperior court unless such court is satisfied that there was good cause\nfor the delay in filing such indictment.\n