NY Crim Pro L § 730.50 (2021)
2021 New York Laws CPL - Criminal Procedure Part 3 - Special Proceedings and Miscellaneous Procedures Title U - Special Proceedings Which Replace,suspend or Abate Criminal Actions Article 730 - Mental Disease or Defect Excluding Fitness to Proceed 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.