2023 New York Laws › CPL - Criminal Procedure › Part 2 - The Principal Proceedings › Title J - Prosecution of Indictments in Superior Courts--Plea to Sentence › Article 330 - Proceedings From Verdict to Sentence › 330.20 - Procedure Following Verdict or Plea of Not Responsible by Reason of Mental Disease or Defect.

§  330.20  Procedure  following  verdict  or  plea of not responsible by
reason of mental disease or defect.
1. Definition of terms. As used in this section, the  following  terms
shall have the following meanings:
(a)  "Commissioner"  means  the state commissioner of mental health or
the state commissioner of  the  office  for  people  with  developmental
disabilities.
(b)  "Secure  facility"  means  a  facility within the state office of
mental  health  or  the  state  office  for  people  with  developmental
disabilities  which  is  staffed  with  personnel  adequately trained in
security methods and is so equipped as to minimize the risk or danger of
escapes,  and  which  has  been  so  specifically  designated   by   the
commissioner.
(c)  "Dangerous mental disorder" means: (i) that a defendant currently
suffers from a "mental illness" as that term is defined  in  subdivision
twenty  of section 1.03 of the mental hygiene law, and (ii) that because
of such condition he currently constitutes a physical danger to  himself
or others.
(d)  "Mentally  ill"  means  that a defendant currently suffers from a
mental illness for which  care  and  treatment  as  a  patient,  in  the
in-patient  services  of  a psychiatric center under the jurisdiction of
the state office of mental health,  is  essential  to  such  defendant's
welfare and that his or her judgment is so impaired that he is unable to
understand  the need for such care and treatment; and, where a defendant
has a developmental disability, the term "mentally ill" shall also mean,
for purposes of this section, that the defendant is in need of care  and
treatment  as  a  resident in the in-patient services of a developmental
center or other residential facility for individuals with  developmental
disabilities  under the jurisdiction of the state office for people with
developmental disabilities.
(e) "Examination order" means an order directed  to  the  commissioner
requiring  that  a  defendant  submit  to  a  psychiatric examination to
determine whether the defendant has a dangerous mental disorder,  or  if
he does not have dangerous mental disorder, whether he is mentally ill.
(f)   "Commitment  order"  or  "recommitment  order"  means  an  order
committing  a  defendant  to  the  custody  of  the   commissioner   for
confinement  in  a secure facility for care and treatment for six months
from the date of the order.
(g) "First retention order" means an order which is effective  at  the
expiration  of  the  period  prescribed  in  a  commitment  order  for a
recommitment order, authorizing continued custody of a defendant by  the
commissioner for a period not to exceed one year.
(h)  "Second retention order" means an order which is effective at the
expiration  of  the  period  prescribed  in  a  first  retention  order,
authorizing  continued  custody of a defendant by the commissioner for a
period not to exceed two years.
(i) "Subsequent retention order" means an order which is effective  at
the expiration of the period prescribed in a second retention order or a
prior  subsequent  retention  order  authorizing  continued custody of a
defendant by the commissioner for a period not to exceed two years.
(j)  "Retention  order"  means  a  first  retention  order,  a  second
retention order or a subsequent retention order.
(k)  "Furlough  order"  means  an  order directing the commissioner to
allow a  defendant  in  confinement  pursuant  to  a  commitment  order,
recommitment  order or retention order to temporarily leave the facility
for a period not exceeding fourteen days, either  with  or  without  the
constant supervision of one or more employees of the facility.
(l)  "Transfer  order"  means  an  order directing the commissioner to
transfer a defendant from a secure facility  to  a  non-secure  facility
under the jurisdiction of the commissioner or to any non-secure facility
designated by the commissioner.
(m)  "Release  order"  means  an  order  directing the commissioner to
terminate  a  defendant's  in-patient  status  without  terminating  the
commissioner's responsibility for the defendant.
(n)   "Discharge  order"  means  an  order  terminating  an  order  of
conditions or unconditionally discharging a defendant  from  supervision
under the provisions of this section.
(o)  "Order  of  conditions"  means  an order directing a defendant to
comply with this prescribed treatment plan, or any other condition which
the court determines to be reasonably necessary or appropriate, and,  in
addition,  where  a  defendant is in custody of the commissioner, not to
leave  the  facility  without  authorization.  In   addition   to   such
conditions,  when  determined to be reasonably necessary or appropriate,
an order of  conditions  may  be  accompanied  by  a  special  order  of
conditions   set  forth  in  a  separate  document  requiring  that  the
defendant: (i) stay away from the home, school,  business  or  place  of
employment of the victim or victims, or of any witness designated by the
court,  of  such  offense; or (ii) refrain from harassing, intimidating,
threatening or otherwise interfering with the victim or victims  of  the
offense  and  such  members of the family or household of such victim or
victims as shall be specifically named by  the  court  in  such  special
order.  An  order  of conditions or special order of conditions shall be
valid for five years from the date of its  issuance,  except  that,  for
good cause shown, the court may extend the period for an additional five
years.
(p) "District attorney" means the office which prosecuted the criminal
action  resulting in the verdict or plea of not responsible by reason of
mental disease or defect.
(q) "Qualified psychiatrist" means a physician who (i) is a  diplomate
of  the  American board of psychiatry and neurology or is eligible to be
certified  by  that  board;  or  (ii)  is  certified  by  the   American
osteopathic  board  of  neurology  and  psychiatry  or is eligible to be
certified by that board.
(r) "Licensed psychologist" means a person  who  is  registered  as  a
psychologist under article one hundred fifty-three of the education law.
(s)  "Psychiatric  examiner"  means  a  qualified  psychiatrist  or  a
licensed psychologist who has been designated  by  the  commissioner  to
examine a defendant pursuant to this section, and such designee need not
be an employee of the department of mental hygiene.
2.  Examination order; psychiatric examiners.  Upon entry of a verdict
of not responsible by reason of mental disease or defect,  or  upon  the
acceptance  of  a plea of not responsible by reason of mental disease or
defect, the court must immediately  issue  an  examination  order.  Upon
receipt  of  such  order,  the commissioner must designate two qualified
psychiatric  examiners  to  conduct  the  examination  to  examine   the
defendant.  In  conducting  their examination, the psychiatric examiners
may employ any method which is accepted by the  medical  profession  for
the  examination  of  persons  alleged  to be suffering from a dangerous
mental disorder  or  to  be  mentally  ill  or  having  a  developmental
disability.  The  court  may  authorize  a  psychiatrist or psychologist
retained by a defendant to be present at such examination. The clerk  of
the  court  must promptly forward a copy of the examination order to the
mental hygiene legal service and such service may thereafter participate
in all subsequent proceedings under this section.
In all  subsequent  proceedings  under  this  section,  prior  to  the
issuance  of  a  special  order  of conditions, the court shall consider
whether any order of protection had been issued prior to  a  verdict  of
not  responsible  by  reason of mental disease or defect in the case, or
prior to the acceptance of a plea of not responsible by reason of mental
disease or defect in the case.
2-a.  Firearm,  rifle  or  shotgun  surrender  order.  Upon entry of a
verdict of not responsible by reason of mental  disease  or  defect,  or
upon  the  acceptance  of  a plea of not responsible by reason of mental
disease  or  defect,  or  upon  a  finding  that  the  defendant  is  an
incapacitated  person  pursuant  to article seven hundred thirty of this
chapter, the court shall revoke the defendant's firearm license, if any,
inquire of the defendant  as  to  the  existence  and  location  of  any
firearm,  rifle  or  shotgun  owned  or  possessed by such defendant and
direct the surrender of such  firearm,  rifle  or  shotgun  pursuant  to
subparagraph (f) of paragraph one of subdivision a of section 265.20 and
subdivision six of section 400.05 of the penal law.
3.   Examination   order;   place  of  examination.  Upon  issuing  an
examination order, the court must, except as otherwise provided in  this
subdivision, direct that the defendant be committed to a secure facility
designated  by  the  commissioner  as  the  place  for  such psychiatric
examination. The sheriff must hold the defendant in custody pending such
designation by the commissioner, and when notified of  the  designation,
the sheriff must promptly deliver the defendant to such secure facility.
When  the  defendant  is  not  in custody at the time of such verdict or
plea, because  he  was  previously  released  on  bail  or  on  his  own
recognizance,  the  court,  in  its  discretion,  may  direct  that such
examination be conducted on an out-patient basis, and at such  time  and
place as the commissioner shall designate. If, however, the commissioner
informs  the court that confinement of the defendant is necessary for an
effective examination, the court  must  direct  that  the  defendant  be
confined  in  a  facility  designated  by  the  commissioner  until  the
examination is completed.
4. Examination order,  duration.  Confinement  in  a  secure  facility
pursuant  to  an  examination  order shall be for a period not exceeding
thirty days, except that, upon  application  of  the  commissioner,  the
court  may  authorize confinement for an additional period not exceeding
thirty  days  when  a  longer  period  is  necessary  to  complete   the
examination.  If the initial hearing required by subdivision six of this
section has not commenced prior to the termination of  such  examination
period,  the  commissioner shall retain custody of the defendant in such
secure facility until custody is  transferred  to  the  sheriff  in  the
manner  prescribed in subdivision six of this section. During the period
of such confinement,  the  physician  in  charge  of  the  facility  may
administer  or  cause to be administered to the defendant such emergency
psychiatric, medical or other therapeutic treatment as in  his  judgment
should  be  administered. If the court has directed that the examination
be conducted on an out-patient basis, the examination shall be completed
within thirty days after the defendant has first reported to  the  place
designated  by  the  commissioner,  except that, upon application of the
commissioner, the court may extend such period for a reasonable time  if
a longer period is necessary to complete the examination.
5.  Examination order; reports. After he has completed his examination
of the defendant, each psychiatric  examiner  must  promptly  prepare  a
report  of his findings and evaluation concerning the defendant's mental
condition,  and  submit  such  report  to  the  commissioner.   If   the
psychiatric  examiners  differ  in  their  opinion  as  to  whether  the
defendant is mentally ill  or  is  suffering  from  a  dangerous  mental

disorder,  the  commissioner must designate another psychiatric examiner
to examine the defendant. Upon receipt of the examination  reports,  the
commissioner  must  submit them to the court that issued the examination
order.  If  the  court  is  not  satisfied  with  the  findings of these
psychiatric examiners, the court may designate one  or  more  additional
psychiatric  examiners  pursuant to subdivision fifteen of this section.
The court must furnish a copy of the reports to the  district  attorney,
counsel for the defendant and the mental hygiene legal service.
6.  Initial  hearing;  commitment order. After the examination reports
are submitted, the court must, within ten days of the  receipt  of  such
reports, conduct an initial hearing to determine the defendant's present
mental condition. If the defendant is in the custody of the commissioner
pursuant  to  an examination order, the court must direct the sheriff to
obtain custody of the defendant from the commissioner and to confine the
defendant pending further order of the court, except that the court  may
direct  the  sheriff  to confine the defendant in an institution located
near the place where  the  court  sits  if  that  institution  has  been
designated  by the commissioner as suitable for the temporary and secure
detention of mentally disabled persons. At  such  initial  hearing,  the
district  attorney  must establish to the satisfaction of the court that
the defendant has a dangerous mental disorder or is mentally ill. If the
court finds that the defendant has a dangerous mental disorder, it  must
issue a commitment order. If the court finds that the defendant does not
have  a dangerous mental disorder but is mentally ill, the provisions of
subdivision seven of this section shall apply.
7. Initial hearing civil commitment and order of  conditions.  If,  at
the  conclusion of the initial hearing conducted pursuant to subdivision
six of this section, the court finds that the defendant is mentally  ill
but  does  not  have  a  dangerous  mental  disorder,  the provisions of
articles nine or fifteen of the mental hygiene law shall apply  at  that
stage of the proceedings and at all subsequent proceedings. Having found
that  the  defendant  is  mentally ill, the court must issue an order of
conditions and an order committing the defendant to the custody  of  the
commissioner. The latter order shall be deemed an order made pursuant to
the  mental  hygiene  law  and not pursuant to this section, and further
retention, conditional release or discharge of such defendant  shall  be
in  accordance with the provisions of the mental hygiene law. If, at the
conclusion of the initial hearing, the court finds  that  the  defendant
does  not  have a dangerous mental disorder and is not mentally ill, the
court must discharge the defendant either unconditionally or subject  to
an order of conditions.
7-a.  Whenever the court issues a special order of conditions pursuant
to this section, the  commissioner  shall  make  reasonable  efforts  to
notify the victim or victims or the designated witness or witnesses that
a  special  order  of  conditions  containing  such  provisions has been
issued, unless such victim or witness has  requested  that  such  notice
should not be provided.
8.  First  retention  order. When a defendant is in the custody of the
commissioner pursuant to a commitment order, the commissioner  must,  at
least  thirty  days  prior to the expiration of the period prescribed in
the order, apply to the court that issued the order, or  to  a  superior
court  in  the  county where the secure facility is located, for a first
retention order or a release order. The commissioner must  give  written
notice  of  the  application  to  the  district attorney, the defendant,
counsel for the defendant, and the mental hygiene  legal  service.  Upon
receipt of such application, the court may, on its own motion, conduct a
hearing  to  determine  whether  the  defendant  has  a dangerous mental
disorder, and it must conduct such hearing if a demand therefor is  made

by  the  district attorney, the defendant, counsel for the defendant, or
the mental hygiene legal service within ten  days  from  the  date  that
notice  of  the application was given to them. If such a hearing is held
on  an application for retention, the commissioner must establish to the
satisfaction of the court that the  defendant  has  a  dangerous  mental
disorder  or is mentally ill. The district attorney shall be entitled to
appear and present evidence at such hearing. If such a hearing  is  held
on  an  application for release, the district attorney must establish to
the satisfaction of the court that the defendant has a dangerous  mental
disorder or is mentally ill. If the court finds that the defendant has a
dangerous  mental disorder it must issue a first retention order. If the
court finds that the defendant is mentally  ill  but  does  not  have  a
dangerous  mental  disorder,  it must issue a first retention order and,
pursuant to subdivision eleven of this section, a transfer order and  an
order of conditions. If the court finds that the defendant does not have
a  dangerous  mental  disorder  and is not mentally ill, it must issue a
release order and an order of conditions pursuant to subdivision  twelve
of this section.
9.  Second and subsequent retention orders. When a defendant is in the
custody of the commissioner pursuant to a  first  retention  order,  the
commissioner  must,  at least thirty days prior to the expiration of the
period prescribed in the order, apply  to  the  court  that  issued  the
order,  or  to  a  superior  court  in  the county where the facility is
located,  for  a  second  retention  order  or  a  release  order.   The
commissioner must give written notice of the application to the district
attorney,  the  defendant,  counsel  for  the  defendant, and the mental
hygiene legal service. Upon receipt of such application, the court  may,
on  its own motion, conduct a hearing to determine whether the defendant
has a dangerous mental disorder, and it must conduct such hearing  if  a
demand therefor is made by the district attorney, the defendant, counsel
for  the  defendant, or the mental hygiene legal service within ten days
from the date that notice of the application was given to them. If  such
a hearing is held on an application for retention, the commissioner must
establish  to  the  satisfaction  of  the court that the defendant has a
dangerous mental disorder or is  mentally  ill.  The  district  attorney
shall  be  entitled  to  appear and present evidence at such hearing. If
such a hearing is held on  an  application  for  release,  the  district
attorney  must  establish  to  the  satisfaction  of  the court that the
defendant has a dangerous mental disorder or is  mentally  ill.  If  the
court  finds  that the defendant has a dangerous mental disorder it must
issue a second retention order. If the court finds that the defendant is
mentally ill but does not have a  dangerous  mental  disorder,  it  must
issue  a  second  retention order and, pursuant to subdivision eleven of
this section, a transfer order and an order of conditions. If the  court
finds  that  the defendant does not have a dangerous mental disorder and
is not mentally ill, it must issue a  release  order  and  an  order  of
conditions  pursuant  to  subdivision  twelve  of  this  section. When a
defendant is in the custody of the commissioner prior to the  expiration
of the period prescribed in a second retention order, the procedures set
forth  in  this subdivision for the issuance of a second retention order
shall govern the application for and  the  issuance  of  any  subsequent
retention order.
10.  Furlough  order. The commissioner may apply for a furlough order,
pursuant to this  subdivision,  when  a  defendant  is  in  his  custody
pursuant  to  a commitment order, recommitment order, or retention order
and the commissioner is of the view that,  consistent  with  the  public
safety  and  welfare  of  the  community and the defendant, the clinical
condition of  the  defendant  warrants  a  granting  of  the  privileges

authorized by a furlough order. The application for a furlough order may
be  made to the court that issued the commitment order, or to a superior
court  in  the  county  where  the  secure  facility  is  located.   The
commissioner must give ten days written notice to the district attorney,
the  defendant,  counsel for the defendant, and the mental hygiene legal
service. Upon receipt of such application, the court  may,  on  its  own
motion, conduct a hearing to determine whether the application should be
granted,  and  must conduct such hearing if a demand therefor is made by
the district attorney. If  the  court  finds  that  the  issuance  of  a
furlough  order  is consistent with the public safety and welfare of the
community and the defendant, and that  the  clinical  condition  of  the
defendant warrants a granting of the privileges authorized by a furlough
order,  the  court must grant the application and issue a furlough order
containing any terms and conditions that the court  deems  necessary  or
appropriate.  If the defendant fails to return to the secure facility at
the time  specified  in  the  furlough  order,  then,  for  purposes  of
subdivision  nineteen  of  this  section,  he  shall  be  deemed to have
escaped.
11. Transfer order and order of conditions. The commissioner may apply
for a transfer order, pursuant to this subdivision, when a defendant  is
in  his  custody  pursuant to a retention order or a recommitment order,
and the commissioner is of the view that the defendant does not  have  a
dangerous mental disorder or that, consistent with the public safety and
welfare  of  the  community and the defendant, the clinical condition of
the defendant  warrants  his  transfer  from  a  secure  facility  to  a
non-secure facility under the jurisdiction of the commissioner or to any
non-secure  facility designated by the commissioner. The application for
a transfer order may be made to the court that issued  the  order  under
which  the  defendant  is then in custody, or to a superior court in the
county where the secure facility is located. The commissioner must  give
ten days written notice to the district attorney, the defendant, counsel
for the defendant, and the mental hygiene legal service. Upon receipt of
such application, the court may, on its own motion, conduct a hearing to
determine  whether  the  application should be granted, and must conduct
such hearing if the demand therefor is made by the district attorney. At
such hearing, the district attorney must establish to  the  satisfaction
of  the court that the defendant has a dangerous mental disorder or that
the issuance of a transfer order is inconsistent with the public  safety
and  welfare  of the community. The court must grant the application and
issue a transfer order if the court finds that the  defendant  does  not
have  a  dangerous  mental  disorder,  or  if  the  court finds that the
issuance of a transfer order is consistent with the  public  safety  and
welfare  of  the  community  and  the  defendant  and  that the clinical
condition of the defendant, warrants his transfer from a secure facility
to a non-secure facility. A court must also issue a transfer order when,
in connection with an application for a first retention  order  pursuant
to subdivision eight of this section or a second or subsequent retention
order  pursuant  to  subdivision  nine  of this section, it finds that a
defendant is mentally ill but does not have a dangerous mental disorder.
Whenever a court issues a transfer order it must also issue an order  of
conditions.
12.  Release order and order of conditions. The commissioner may apply
for a release order, pursuant to this subdivision, when a  defendant  is
in  his custody pursuant to a retention order or recommitment order, and
the commissioner is of the view that  the  defendant  no  longer  has  a
dangerous mental disorder and is no longer mentally ill. The application
for a release order may be made to the court that issued the order under
which  the  defendant  is then in custody, or to a superior court in the

county where the facility is located. The  application  must  contain  a
description of the defendant's current mental condition, the past course
of  treatment,  a  history  of the defendant's conduct subsequent to his
commitment,  a  written service plan for continued treatment which shall
include the information specified in subdivision (g) of section 29.15 of
the mental hygiene law, and a detailed statement of the extent to  which
supervision of the defendant after release is proposed. The commissioner
must  give  ten  days  written  notice  to  the  district  attorney, the
defendant, counsel for the  defendant,  and  the  mental  hygiene  legal
service.  Upon  receipt  of  such  application,  the court must promptly
conduct a hearing to determine the defendant's present mental condition.
At  such  hearing,  the  district  attorney  must   establish   to   the
satisfaction  of  the  court  that  the defendant has a dangerous mental
disorder or is mentally ill. If the court finds that the defendant has a
dangerous mental disorder, it must deny the application  for  a  release
order.  If  the court finds that the defendant does not have a dangerous
mental disorder but is mentally ill, it  must  issue  a  transfer  order
pursuant  to subdivision eleven of this section if the defendant is then
confined in a secure facility. If the court  finds  that  the  defendant
does  not  have  a dangerous mental disorder and is not mentally ill, it
must grant the application and issue a release order. A court must  also
issue  a  release  order  when,  in connection with an application for a
first retention order pursuant to subdivision eight of this section or a
second or subsequent retention order pursuant  to  subdivision  nine  of
this  section,  it  finds  that  the defendant does not have a dangerous
mental disorder and is not mentally  ill.  Whenever  a  court  issues  a
release  order  it  must also issue an order of conditions. If the court
has previously issued a transfer order and an order  of  conditions,  it
must  issue  a new order of conditions upon issuing a release order. The
order of conditions issued in conjunction with  a  release  order  shall
incorporate  a  written service plan prepared by a psychiatrist familiar
with the defendant's case history and approved by the court,  and  shall
contain  any  conditions  that  the  court  determines  to be reasonably
necessary  or  appropriate.  It  shall  be  the  responsibility  of  the
commissioner  to determine that such defendant is receiving the services
specified in  the  written  service  plan  and  is  complying  with  any
conditions specified in such plan and the order of conditions.
13. Discharge order. The commissioner may apply for a discharge order,
pursuant  to this subdivision, when a defendant has been continuously on
an out-patient status for three years or  more  pursuant  to  a  release
order,  and the commissioner is of the view that the defendant no longer
has a dangerous mental disorder and is no longer mentally ill  and  that
the  issuance  of a discharge order is consistent with the public safety
and welfare of the community and the defendant. The  application  for  a
discharge  order may be made to the court that issued the release order,
or to a superior court  in  the  county  where  the  defendant  is  then
residing.  The  commissioner  must  give  ten days written notice to the
district attorney, the defendant, counsel for  the  defendant,  and  the
mental  hygiene  legal  service.  Upon  receipt of such application, the
court may, on its own motion, conduct a hearing to determine whether the
application should be granted, and must conduct such hearing if a demand
therefor is made by the district attorney.  The  court  must  grant  the
application  and  issue  a  discharge  order if the court finds that the
defendant has been continuously on an out-patient status for three years
or more, that he does not have a dangerous mental disorder  and  is  not
mentally ill, and that the issuance of the discharge order is consistent
with the public safety and welfare of the community and the defendant.
14.  Recommitment  order.  At any time during the period covered by an
order of conditions an application may be made by  the  commissioner  or
the  district  attorney  to  the  court  that issued such order, or to a
superior court in the county where the defendant is then residing, for a
recommitment  order when the applicant is of the view that the defendant
has a dangerous mental disorder. The applicant must give written  notice
of  the application to the defendant, counsel for the defendant, and the
mental hygiene legal service, and if the applicant is  the  commissioner
he must give such notice to the district attorney or if the applicant is
the district attorney he must give such notice to the commissioner. Upon
receipt of such application the court must order the defendant to appear
before  it  for  a hearing to determine if the defendant has a dangerous
mental disorder. Such order may be in the  form  of  a  written  notice,
specifying  the time and place of appearance, served personally upon the
defendant, or mailed to his last known address, as the court may direct.
If the defendant fails to appear in court as  directed,  the  court  may
issue  a  warrant  to an appropriate peace officer directing him to take
the defendant into custody and bring  him  before  the  court.  In  such
circumstance,  the court may direct that the defendant be confined in an
appropriate institution located near the place where the court sits. The
court must conduct a hearing to determine whether the  defendant  has  a
dangerous mental disorder. At such hearing, the applicant, whether he be
the  commissioner  or  the  district  attorney  must  establish  to  the
satisfaction of the court that the  defendant  has  a  dangerous  mental
disorder.  If  the  applicant is the commissioner, the district attorney
shall be entitled to appear and present evidence at such hearing; if the
applicant is the district attorney, the commissioner shall  be  entitled
to  appear and present evidence at such hearing. If the court finds that
the  defendant  has  a  dangerous  mental  disorder,  it  must  issue  a
recommitment   order.  When  a  defendant  is  in  the  custody  of  the
commissioner pursuant to a recommitment order, the procedures set  forth
in  subdivisions  eight  and  nine  of  this section for the issuance of
retention orders shall govern the application for and the issuance of  a
first   retention  order,  a  second  retention  order,  and  subsequent
retention orders.
15. Designation of psychiatric examiners. If, at any hearing conducted
under  this  section  to  determine  the  defendant's   present   mental
condition,  the  court  is  not  satisfied  with  the  findings  of  the
psychiatric  examiners,  the  court  may  direct  the  commissioner   to
designate  one  or  more  additional psychiatric examiners to conduct an
examination of the defendant and submit a report of their  findings.  In
addition,  the  court may on its own motion, or upon request of a party,
may designate one or more psychiatric examiners to examine the defendant
and submit a report of their findings. The district attorney  may  apply
to  the  court  for  an  order directing that the defendant submit to an
examination  by  a  psychiatric  examiner  designated  by  the  district
attorney, and such psychiatric examiner may testify at the hearing.
16.  Rehearing  and review. Any defendant who is in the custody of the
commissioner pursuant to a commitment order, a  retention  order,  or  a
recommitment  order, if dissatisfied with such order, may, within thirty
days after the making of such order, obtain a rehearing  and  review  of
the  proceedings  and of such order in accordance with the provisions of
section 9.35 or 15.35 of the mental hygiene law.
17. Rights of defendants. Subject to the limitations and provisions of
this section, a defendant committed to the custody of  the  commissioner
pursuant to this section shall have the rights granted to patients under
the mental hygiene law.
18.  Notwithstanding any other provision of law, no person confined by
reason of a commitment order, recommitment order or retention order to a
secure facility may be discharged or released  unless  the  commissioner
shall  deliver  written  notice, at least four days excluding Saturdays,
Sundays  and holidays, in advance of such discharge or release to all of
the following:
(a) the district attorney.
(b) the police department having jurisdiction of the area to which the
defendant is to be discharged or released.
(c) any other person the court may designate.
The notices required  by  this  subdivision  shall  be  given  by  the
facility   staff  physician  who  was  treating  the  defendant  or,  if
unavailable, by the defendant's treatment team leader, but if neither is
immediately available, notice must be given by some other member of  the
clinical  staff  of the facility. Such notice must be given by any means
reasonably calculated to give prompt actual notice.
19. Escape from custody; notice requirements. If a defendant is in the
custody of the commissioner pursuant  to  an  order  issued  under  this
section,  and  such  defendant escapes from custody, immediate notice of
such escape shall be given by the department facility staff to: (a)  the
district  attorney,  (b)  the  superintendent  of  state police, (c) the
sheriff of  the  county  where  the  escape  occurred,  (d)  the  police
department  having  jurisdiction  of the area where the escape occurred,
(e) any person the facility staff believes to be in danger, and (f)  any
law  enforcement agency and any person the facility staff believes would
be able to apprise such endangered person that the defendant has escaped
from the facility. Such notice shall be given as soon  as  the  facility
staff  know  that  the defendant has escaped from the facility and shall
include such information as will adequately identify the  defendant  and
the  person  or  persons  believed to be in danger and the nature of the
danger. The notices required by this subdivision shall be given  by  the
facility   staff  physician  who  was  treating  the  defendant  or,  if
unavailable, by the defendant's treatment team leader, but if neither is
immediately available, notice must be given by some other member of  the
clinical  staff  of the facility. Such notice must be given by any means
reasonably calculated to give prompt actual notice. The defendant may be
apprehended, restrained, transported to, and returned  to  the  facility
from  which he escaped by any peace officer, and it shall be the duty of
the officer to assist any representative of the commissioner to take the
defendant into custody upon the request of such representative.
20. Required affidavit. No application may be made by the commissioner
under this section without an accompanying affidavit from at  least  one
psychiatric  examiner supportive of relief requested in the application,
which affidavit shall be served on all parties entitled to  receive  the
notice  of  application.  Such affidavit shall set forth the defendant's
clinical diagnosis, a detailed analysis of his or her  mental  condition
which  caused  the psychiatric examiner to formulate an opinion, and the
opinion of the psychiatric examiner with respect to the  defendant.  Any
application  submitted without the required affidavit shall be dismissed
by the court.
21. Appeals. (a) A party to proceedings conducted in  accordance  with
the  provisions  of  this  section may take an appeal to an intermediate
appellate court by permission of the  intermediate  appellate  court  as
follows:
(i)  the  commissioner  may  appeal  from any release order, retention
order,  transfer  order,  discharge  order,  order  of  conditions,   or
recommitment order, for which he has not applied;
(ii)  a  defendant,  or the mental hygiene legal service on his or her
behalf,  may  appeal  from  any  commitment  order,   retention   order,
recommitment  order,  or,  if the defendant has obtained a rehearing and
review of any  such  order  pursuant  to  subdivision  sixteen  of  this
section,  from an order, not otherwise appealable as of right, issued in
accordance with the provisions of section 9.35 or 15.35  of  the  mental
hygiene  law  authorizing  continued retention under the original order,
provided,  however,  that  a  defendant  who  takes  an  appeal  from  a
commitment  order,  retention  order,  or  recommitment  order  may  not
subsequently obtain a rehearing and review of  such  order  pursuant  to
subdivision sixteen of this section;
(iii)  the  district  attorney  may  appeal  from  any  release order,
transfer order, discharge order, order of conditions, furlough order, or
order denying an application for a recommitment order which he opposed.
(b)  An  aggrieved  party  may  appeal  from  a  final  order  of  the
intermediate  appellate  court  to the court of appeals by permission of
the intermediate appellate court granted before application to the court
of appeals, or by permission of the court of appeals upon refusal by the
intermediate appellate court or upon direct application.
(c) An appeal taken under this subdivision shall be  deemed  civil  in
nature,  and shall be governed by the laws and rules applicable to civil
appeals; provided, however, that a stay of the order appealed from  must
be obtained in accordance with the provisions of paragraph (d) hereof.
(d)  The  court  from  or  to  which  an  appeal is taken may stay all
proceedings to enforce the order appealed  from  pending  an  appeal  or
determination  on  a  motion  for  permission  to appeal, or may grant a
limited stay, except that only the court to which an appeal is taken may
vacate, limit, or  modify  a  stay  previously  granted.  If  the  order
appealed  from is affirmed or modified, the stay shall continue for five
days after service upon the appellant of  the  order  of  affirmance  or
modification  with  notice of its entry in the court to which the appeal
was taken. If a motion is made for permission to  appeal  from  such  an
order,  before  the  expiration of the five days, the stay, or any other
stay granted pending determination  of  the  motion  for  permission  to
appeal, shall:
(i)  if  the  motion  is  granted,  continue until five days after the
appeal is determined; or
(ii) if the motion is denied,  continue  until  five  days  after  the
movant is served with the order of denial with notice of its entry.
22.  Any  special  order of conditions issued pursuant to subparagraph
(i) or (ii) of paragraph (o) of subdivision one of  this  section  shall
bear  in a conspicuous manner the term "special order of conditions" and
a copy shall be filed by the clerk  of  the  court  with  the  sheriff's
office  in  the  county in which anyone intended to be protected by such
special order resides, or, if anyone intended to be  protected  by  such
special  order resides within a city, with the police department of such
city.  The absence of language specifying that the order is  a  "special
order of conditions" shall not affect the validity of such order. A copy
of  such  special  order of conditions may from time to time be filed by
the clerk of the court with any other  police  department  or  sheriff's
office  having  jurisdiction  of the residence, work place, or school of
anyone intended to be protected by such special order. A  copy  of  such
special  order  may  also be filed by anyone intended to be protected by
such provisions at the appropriate police department or sheriff's office
having jurisdiction. Any subsequent  amendment  or  revocation  of  such
special  order  may  be  filed  in  the  same manner as provided in this
subdivision.  Such special order of conditions shall plainly  state  the
date that the order expires.