NY Corr L § 402 (2021)
2021 New York Laws COR - Correction Article 16 - Provisions Relating to Mentally Ill Incarcerated Individuals 402 - Commitment of Incarcerated Individuals With a Mental Illness.

§  402.  Commitment of incarcerated individuals with a mental illness.   1.   Whenever the physician of any  correctional  facility,  any  county   penitentiary, county jail or workhouse, any reformatory for women, or of   any  other  correctional  institution,  shall  report  in writing to the   superintendent that any person undergoing a sentence of imprisonment  or   adjudicated  to  be  a youthful offender or juvenile delinquent confined   therein  has,  in  his  or  her  opinion,   a   mental   illness,   such   superintendent  shall apply to a judge of the county court or justice of   the supreme court in the county to cause an examination to  be  made  of   such  person  by  two  examining  physicians.  Such  physicians shall be   designated by the judge to whom  the  application  is  made.  Each  such   physician,  if  satisfied,  after  a  personal  examination,  that  such   incarcerated individual has a mental illness and in  need  of  care  and   treatment,  shall  make a certificate to such effect. Before making such   certificate, however, he or she shall consider alternative forms of care   and  treatment  available  during  confinement  in   such   correctional   facility,  penitentiary,  jail,  reformatory or correctional institution   that might be adequate to provide  for  such  incarcerated  individual's   needs  without  requiring  hospitalization.  If  the examining physician   knows that the person he or  she  is  examining  has  been  under  prior   treatment,  he  or  she  shall,  insofar  as  possible, consult with the   physician or psychologist  furnishing  such  prior  treatment  prior  to   making his or her certificate.2.  In  the  city  of  New York, if the physician of a workhouse, city   prison, jail, penitentiary or reformatory  reports  in  writing  to  the   superintendent  of  such  institution  that a prisoner confined therein,   serving a sentence of imprisonment, in his or her opinion has  a  mental   illness,  the  superintendent  of said institution shall either transfer   said prisoner to Bellevue or Kings county hospital for observation as to   his or her mental condition by two examining physicians or shall  secure   two  examining  physicians  to make such examination in his institution.   Each such physician, if  satisfied  after  a  personal  examination  and   observation  that  the prisoner has a mental illness and in need of care   and treatment, shall make a certificate to such  effect.  Before  making   such certificate, however, he or she shall consider alternative forms of   care  and  treatment  available  during confinement in such correctional   facility, penitentiary, jail, reformatory  or  correctional  institution   that  might  be  adequate  to provide for such incarcerated individual's   needs without requiring  hospitalization.  If  the  examining  physician   knows  that  the  person  he  or  she  is examining has been under prior   treatment, he or she  shall,  insofar  as  possible,  consult  with  the   physician  or  psychologist  furnishing  such  prior  treatment prior to   making his or her certificate.3. Upon such certificates of the examining physicians being  so  made,   it shall be delivered to the superintendent who shall thereupon apply by   petition  forthwith  to  a  judge  of the county court or justice of the   supreme court in the county, annexing such certificate  to  his  or  her   petition,  for  an  order  committing  such incarcerated individual to a   hospital for persons with a mental illness. Upon every such  application   for  such an order of commitment, notice thereof in writing, of at least   five days, together with  a  copy  of  the  petition,  shall  be  served   personally  upon  the  alleged  person  with  a  mental  illness, and in   addition thereto such notice and a copy of the petition shall be  served   upon either the wife, the husband, the father or mother or other nearest   relative  of  such alleged person with a mental illness, if there be any   such known relative within the state; and if not, such notice  shall  be   served  upon  any  known  friend  of  such  alleged person with a mental   illness within the state. If there be no such known relative  or  friend    within the state, the giving of such notice shall be dispensed with, but   in  such  case  the petition for the commitment shall recite the reasons   why service of such notice on a relative or friend of the alleged person   with  a  mental  illness was dispensed with and, in such case, the order   for commitment shall recite why service of such a notice on  a  relative   or  friend  of  the  alleged  person with a mental illness was dispensed   with. Copies of the notice, the petition and  the  certificates  of  the   examining  physicians  shall  also  be  given  the  mental hygiene legal   service. The mental hygiene legal service shall inform the  incarcerated   individual  and,  in proper cases, others interested in the incarcerated   individual's welfare, of the procedures for placement in a hospital  and   of  the  incarcerated  individual's  right  to  have  a hearing, to have   judicial review with a right to a  jury  trial,  to  be  represented  by   counsel  and  to seek an independent medical opinion. The mental hygiene   legal service shall have personal access to such incarcerated individual   for such purposes.4. The judge to whom  such  application  for  the  commitment  of  the   alleged  person  with a mental illness is made may, if no demand is made   for a hearing on behalf of the alleged person  with  a  mental  illness,   proceed  forthwith  on  the  return  day of such notice to determine the   question of mental illness and, if satisfied  that  the  alleged  person   with  a  mental  illness  has  a  mental illness and in need of care and   treatment, may immediately issue an order for  the  commitment  of  such   alleged  person  with a mental illness to a hospital for a period not to   exceed six months from the date of the order.5. Upon the demand for a hearing by any relative  or  near  friend  on   behalf of such alleged person with a mental illness, the judge shall, or   he may upon his own motion where there is no demand for a hearing, issue   an  order directing the hearing of such application before him at a time   not more than five days from the date of  such  order,  which  shall  be   served  upon  the  parties  interested  in the application and upon such   other persons as the judge, in his discretion, may name. Upon  such  day   or  upon  such  other  day  to  which the proceedings shall be regularly   adjourned, he shall hear the testimony introduced  by  the  parties  and   shall  examine  the  alleged  person  with  a  mental illness, if deemed   advisable in or out of court, and render a decision  in  writing  as  to   such  person's  mental  illness and need for care and treatment. If such   judge cannot hear the application, he may, in his  order  directing  the   hearing,  name  some referee who shall hear the testimony and report the   same forthwith, with his opinion thereon, to such judge, who  shall,  if   satisfied  with  such  report, render his decision accordingly. If it be   determined that such person has a mental illness and in need of care and   treatment, the judge shall forthwith issue his order committing him to a   hospital for a period not to exceed six months  from  the  date  of  the   order.  Such  superintendent  shall  thereupon  cause such person with a   mental illness to be  delivered  to  the  director  of  the  appropriate   hospital  as  designated  by the commissioner of mental hygiene and such   person with a mental illness shall be received into  such  hospital  and   retained  there  until  he is determined to be no longer in need of care   and treatment by the director of such hospital or legally discharged  or   for the period specified in the order of commitment or in any subsequent   order  authorizing  continued retention of such person in said hospital.   Such  superintendent,  before  delivering  said  person  with  a  mental   illness,  shall  see that he is bodily clean. If such judge shall refuse   to issue an order of commitment, he shall certify in writing his reasons   for such refusal.6. When an order of commitment is made, such order and all  papers  in   the  proceeding  shall  be  presented to the director of the appropriate    hospital at the time when the person with a mental illness is  delivered   to such institution and a copy of the order and of each such paper shall   be filed with the department of mental hygiene and also in the office of   the  county  clerk of the county wherein the court is located which made   the order of commitment. The judge shall order all such papers so  filed   in  the county clerk's office to be sealed and exhibited only to parties   to the proceedings, or someone properly interested, upon  order  of  the   court.7.  The  costs  necessarily  incurred  in  determining the question of   mental illness, including the fees of the medical examiners, shall be  a   charge  upon the state or the municipality, as the case may be, at whose   expense the institution is maintained, which has custody of the  alleged   person  with  a  mental  illness  at the time of the application for his   commitment to the hospital under the provisions of this section.8. During the pendency of such  proceeding  the  judge  may  forthwith   commit  such  alleged  person  with  a  mental illness to a hospital for   persons with a mental illness upon petition and  the  affidavit  of  two   examining  physicians  that  the  superintendent is not able to properly   care for such person at the institution where he is  confined  and  that   such  person  is  in immediate need of care and treatment. Any person so   committed shall be delivered to the director of the appropriate hospital   as designated in the rules and regulations of the department  of  mental   hygiene.9. Except as provided in subdivision two of this section pertaining to   prisoners  confined  in the city of New York, an incarcerated individual   of a correctional facility or a  county  jail  may  be  admitted  on  an   emergency  basis  to  the  Central  New York Psychiatric Center upon the   certification by two examining physicians, including physicians employed   by the office of mental health  and  associated  with  the  correctional   facility  in  which  such  incarcerated individual is confined, that the   incarcerated individual suffers from a mental illness which is likely to   result in serious harm to himself,  herself  or  others  as  defined  in   subdivision (a) of section 9.39 of the mental hygiene law. Any person so   committed  shall be delivered by the superintendent within a twenty-four   hour period, to the director of the appropriate hospital  as  designated   in  the  rules  and  regulations  of  the  office of mental health. Upon   delivery of such person to a hospital operated by the office  of  mental   health, a proceeding under this section shall immediately be commenced.10.  If  the  director of a hospital for persons with a mental illness   shall deem that the condition of  such  person  with  a  mental  illness   requires his further retention in a hospital he shall, during the period   of  retention  authorized  by  the last order of the court, apply to the   supreme court or county court in  the  county  where  such  hospital  is   located,  for  an  order  authorizing continued retention of such person   with a mental illness. The procedures for obtaining any  order  pursuant   to  this  subdivision  shall be in accordance with the provisions of the   mental hygiene law for the retention of involuntary patients.11. If a person with a mental illness whose commitment,  retention  or   continued retention has been authorized pursuant to this section, or any   relative  or  friend in his behalf, be dissatisfied with any such order,   he may, within thirty days after the making of any such order, obtain  a   rehearing and a review of the proceedings already had and of such order,   upon  a  petition to a justice of the supreme court other than the judge   or justice presiding over the court  making  such  order.  Such  justice   shall  cause  a  jury  to  be summoned and shall try the question of the   mental illness and the need for care and  treatment  of  the  person  so   committed or so authorized to be retained. Any such person with a mental   illness  or  the person applying on his behalf for such review may waive    the trial of the fact by a jury and consent in writing to trial of  such   fact  by the court. No such petition for the hearing and review shall be   made by anyone other than the person so committed or  authorized  to  be   retained  or  the father, mother, husband, wife or child of such person,   unless the petitioner shall have first obtained the leave of  the  court   upon  good  cause  shown. If the verdict of the jury, or the decision of   the court when jury trial has been waived, be that such person does  not   have  a  mental  illness,  the  justice  shall order the removal of such   person from the hospital and such person shall forthwith be  transferred   to  a  state correctional facility, or returned to the superintendent of   the institution from which he was received if such institution was not a   state correctional facility. Where the  verdict  of  the  jury,  or  the   decision  of  the court where a jury trial has been waived, be that such   person has a mental illness, the justice shall  certify  that  fact  and   make  an order authorizing continued retention under the original order.   Proceedings under the order  shall  not  be  stayed  pending  an  appeal   therefrom,  except  upon an order of a justice of the supreme court, and   made upon notice and after hearing, with provision made therein for such   temporary care and confinement of  the  alleged  person  with  a  mental   illness as may be deemed necessary.12.  The  notice provided for herein shall be served by the sheriff of   the counties of the state of New York, in which case the charges of such   sheriff shall be a disbursement in such  proceeding,  or  by  registered   mail   on   all   persons   required  to  be  served,  except  that  the   superintendent of a correctional facility or the director of a  hospital   for  persons  with  a  mental  illness,  or  their  designees,  shall be   authorized to personally serve notice upon  an  alleged  person  with  a   mental  illness  or  a person with a mental illness, as provided in this   section.13. Notwithstanding any provision of law  to  the  contrary,  when  an   incarcerated  individual is being examined in anticipation of his or her   conditional release, release to parole supervision, or when his  or  her   sentence   to   a  term  of  imprisonment  expires,  the  provisions  of   subdivision one of section four hundred four of this  article  shall  be   applicable  and  such commitment shall be effectuated in accordance with   the provisions of article nine or ten of  the  mental  hygiene  law,  as   appropriate.