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 › 730.60 - Fitness to Proceed; Procedure Following Custody by Commissioner.

§ 730.60 Fitness    to   proceed;   procedure   following   custody   by
commissioner.
1. When a local criminal court issues a final or  temporary  order  of
observation  or an order of commitment, it must forward such order and a
copy of the examination reports and the  accusatory  instrument  to  the
commissioner, and, if available, a copy of the pre-sentence report. Upon
receipt   thereof,   the  commissioner  must  designate  an  appropriate
institution operated by the department of mental hygiene  in  which  the
defendant  is to be placed, 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. The  sheriff  must  hold  the
defendant  in  custody pending such designation by the commissioner, and
when notified of the designation, the sheriff must deliver the defendant
to the superintendent  of  such  institution.  The  superintendent  must
promptly  inform  the  appropriate  director of the mental hygiene legal
service of the defendant's admission to such institution. If a defendant
escapes from the custody of the commissioner, the escape shall interrupt
the period  prescribed  in  any  order  of  observation,  commitment  or
retention,  and  such interruption shall continue until the defendant is
returned to the custody of the commissioner.
2. Except as otherwise provided in subdivisions four and five, when  a
defendant  is in the custody of the commissioner pursuant to a temporary
order of observation or an order of commitment or an order of retention,
the criminal action pending against the  defendant  in  the  court  that
issued   such  order  is  suspended  until  the  superintendent  of  the
institution in which the defendant is confined determines that he is  no
longer  an  incapacitated  person.  In that event, the court that issued
such order and the appropriate district attorney must  be  notified,  in
writing,  by  the  superintendent  of  his determination. The court must
thereupon proceed in accordance with the provisions of  subdivision  two
of  section  730.30  of this chapter; provided, however, if the court is
satisfied that the defendant remains an incapacitated person,  and  upon
consent  of all parties, the court may order the return of the defendant
to the institution in which he had been confined for such period of time
as was  authorized  by  the  prior  order  of  commitment  or  order  of
retention.  Upon  such  return,  the defendant shall have all rights and
privileges accorded by the provisions of this article.
3. When a defendant is in the custody of the commissioner pursuant  to
an  order  issued  in accordance with this article, the commissioner may
transfer him to any appropriate institution operated by  the  department
of   mental  hygiene,  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 section. The commissioner may discharge  a
defendant  in his custody under a final order of observation at any time
prior to the expiration date  of  such  order,  or  otherwise  treat  or
transfer  such  defendant in the same manner as if he were a patient not
in confinement under a criminal court order.
4. When a defendant is in the custody of the commissioner pursuant  to
an  order of commitment or an order of retention, he may make any motion
authorized by this chapter which is susceptible  of  fair  determination
without  his personal participation. If the court denies any such motion
it must be without prejudice to a renewal  thereof  after  the  criminal

action  against  the defendant has been ordered to proceed. If the court
enters an order dismissing the indictment and does not direct  that  the
charge  or charges be resubmitted to a grand jury, the court must direct
that such order of dismissal be served upon the commissioner.
5.  When a defendant is in the custody of the commissioner pursuant to
an order of commitment or an order of retention, the superior court that
issued such order may, upon  motion  of  the  defendant,  and  with  the
consent  of the district attorney, dismiss the indictment when the court
is satisfied that (a) the defendant is a resident or citizen of  another
state  or  country and that he will be removed thereto upon dismissal of
the indictment, or (b) the defendant has been continuously  confined  in
the  custody  of  the  commissioner for a period of more than two years.
Before granting a motion under  this  subdivision,  the  court  must  be
further  satisfied  that  dismissal of the indictment is consistent with
the  ends  of  justice  and  that  custody  of  the  defendant  by   the
commissioner pursuant to an order of commitment or an order of retention
is  not  necessary  for  the  protection of the public and that care and
treatment can be effectively administered to the defendant  without  the
necessity of such order. If the court enters an order of dismissal under
this  subdivision,  it must set forth in the record the reasons for such
action, and must direct that such order of dismissal be served upon  the
commissioner.   The   dismissal   of  an  indictment  pursuant  to  this
subdivision constitutes a bar to any further prosecution of  the  charge
or charges contained in such indictment.
6. (a) Notwithstanding any other provision of law, no person committed
to  the  custody  of  the  commissioner  pursuant  to  this  article, or
continuously thereafter retained in such custody, shall  be  discharged,
released  on  condition  or placed in any less secure facility or on any
less restrictive  status,  including,  but  not  limited  to  vacations,
furloughs  and  temporary  passes, unless the commissioner or his or her
designee, which may include the director of an appropriate  institution,
shall  deliver  written notice, at least four days, excluding Saturdays,
Sundays and holidays,  in  advance  of  the  change  of  such  committed
person's  facility  or  status,  or  in  the  case of a person committed
pursuant to a final order of observation written notice  upon  discharge
of such committed person, to all of the following:
(1)  The  district  attorney  of the county from which such person was
committed;
(2) The superintendent of state police;
(3) The sheriff of the county where the facility is located;
(4) The police department having jurisdiction of the  area  where  the
facility is located;
(5)  Any person 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 part 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; and
(6) Any other person the court may designate.
Said notice may be given by any means reasonably  calculated  to  give
prompt actual notice.
(b)  The  notice  required  by  this  subdivision  shall also be given
immediately upon the departure of such committed person from the  actual
custody  of  the  commissioner  or  an  appropriate institution, without
proper authorization. Nothing in this subdivision shall be construed  to
impair any other right or duty regarding any notice or hearing contained
in any other provision of law.
(c)  Whenever a district attorney has received the notice described in
this  subdivision,  and  the  defendant  is  in  the  custody   of   the
commissioner  pursuant  to  a  final order of observation or an order of
commitment, he may apply within three days of receipt of such notice  to
a  superior  court,  for  an  order  directing  a  hearing to be held to
determine whether such committed  person  is  a  danger  to  himself  or
others.  Such  hearing  shall  be  held  within  ten  days following the
issuance of such order. Such order may provide that there  shall  be  no
further  change  in  the committed person's facility or status until the
hearing. Upon a finding that the committed person is a danger to himself
or  others,  the  court  shall  issue  an  order  to  the   commissioner
authorizing  retention of the committed person in the status existing at
the time notice was given hereunder, for  a  specified  period,  not  to
exceed  six  months.  The  district  attorney and the committed person's
attorney shall be entitled to the committed person's clinical records in
the commissioner's custody, upon the issuance of an  order  directing  a
hearing to be held.
(d) Nothing in this subdivision shall be construed to impair any other
right  or  duty  regarding  any notice or hearing contained in any other
provision of law.