2023 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 › 730.40 - Fitness to Proceed; Local Criminal Court Accusatory Instrument.

§ 730.40 Fitness to proceed; local criminal court accusatory instrument.
1. When a local criminal 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, such court must issue a final  or  temporary  order  of
  observation committing him or her 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 the 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. When a  local
  criminal  court  accusatory instrument other than a felony complaint has
  been filed against the defendant, such court must issue a final order of
  observation.  When  a  felony  complaint  has  been  filed  against  the
  defendant,  such  court  must  issue  a  temporary  order of observation
  committing him or her 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 ninety days from the date  of  such  order,  except
  that,  with  the  consent of the district attorney, it may issue a final
  order of observation. 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.
2.   When  a  local  criminal  court  has  issued  a  final  order  of
  observation, it must dismiss the accusatory  instrument  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
  accusatory  instrument.  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.  When the defendant is in  the  custody  of  the
  commissioner  at  the expiration of the period prescribed in a temporary
  order of observation, the proceedings in the local criminal  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 or her custody on such expiration
  date.  Upon  receipt  of  such certification, the court must dismiss the
  felony complaint filed against the defendant.
3. When a local criminal court has issued an order of examination or a
  temporary order of observation, and when the charge or charges contained
  in the accusatory instrument are subsequently presented to a grand jury,
  such grand jury need not hear the defendant pursuant to  section  190.50
  unless,  upon  application  by  defendant  to  the  superior  court that

  impaneled such grand  jury,  the  superior  court  determines  that  the
  defendant is not an incapacitated person.
4.  When  an  indictment  is  filed  against a defendant after a local
  criminal court has issued an order of  examination  and  before  it  has
  issued  a final or temporary order of observation, the defendant must be
  promptly arraigned upon the indictment, and the proceedings in the local
  criminal court shall thereupon terminate for all purposes. The  district
  attorney  must  notify the local criminal court of such arraignment, and
  such court must thereupon dismiss the  accusatory  instrument  filed  in
  such  court  against  the  defendant.  If the director has submitted the
  examination reports to the local criminal court, such court must forward
  them to the superior court in which the indictment  was  filed.  If  the
  director  has not submitted such reports to the local criminal court, he
  must submit them to the superior  court  in  which  the  indictment  was
  filed.
5.  When an indictment is timely filed against the defendant after the
  issuance of a temporary order of observation or after the expiration  of
  the  period  prescribed  in such order, the superior court in which such
  indictment is filed must direct the  sheriff  to  take  custody  of  the
  defendant  at  the  institution  in  which  he is confined and bring him
  before  the  court  for  arraignment  upon  the  indictment.  After  the
  defendant  is  arraigned  upon  the  indictment, such temporary order of
  observation or any order issued pursuant to the mental hygiene law after
  the expiration of the  period  prescribed  in  the  temporary  order  of
  observation   shall  be  deemed  nullified.  Notwithstanding  any  other
  provision of law, an indictment filed in  a  superior  court  against  a
  defendant  for a crime charged in the felony complaint is not timely for
  the purpose of this subdivision if it is  filed  more  than  six  months
  after  the  expiration  of the period prescribed in a temporary order of
  observation issued  by  a  local  criminal  court  wherein  such  felony
  complaint  was  pending. An untimely indictment must be dismissed by the
  superior court unless such court is satisfied that there was good  cause
  for the delay in filing such indictment.