2023 New York Laws › COR - Correction › Article 22-B - The Death Penalty › 656 - Proceeding When Person Under Sentence of Death May Be Incompetent.

§  656.  Proceeding  when  person  under  sentence  of  death  may  be
  incompetent. 1. The state may not execute an inmate who is  incompetent.
  An  inmate  is  "incompetent"  when,  as  a  result of mental disease or
  defect, he lacks the mental capacity to understand the nature and effect
  of the death penalty and why it is to be carried out.
2. Upon the filing of a petition in the supreme court  in  either  the
  county  in  which  an  inmate  sentenced  to death is confined or in the
  county in which the inmate was prosecuted alleging that  the  inmate  is
  incompetent, the court shall issue an order staying the execution if and
  to  the  extent  a  stay  is  necessary  to  permit determination of the
  petition.   Upon application of  either  the  inmate's  counsel  or  the
  district  attorney the petition may be transferred to the court in which
  the inmate was convicted unless such transfer would be unduly burdensome
  or impracticable. Promptly upon filing the  petition,  the  court  shall
  appoint   a  commission  of  three  psychiatric  examiners,  hereinafter
  referred to as "the psychiatric  commissioners,"  to  inquire  into  the
  inmate's  competence  and  report  to  the  court  as  to  the  inmate's
  competence. The psychiatric commissioners shall be impartial and must be
  qualified psychiatrists or certified psychologists. Before commencing an
  inquiry, the psychiatric commissioners must take the oath prescribed  in
  rule  forty-three hundred fifteen of the civil practice law and rules to
  be taken by referees. The petition may  be  filed  by  the  inmate,  the
  inmate's  counsel,  an  employee  of  the department, the inmate's legal
  guardian, a member of such inmate's immediate family or,  in  the  event
  that  the  inmate  does not have regular contact with a member of his or
  her immediate family, a bona fide  friend  who  has  maintained  regular
  contact  with  the  inmate.    The  petition  must  be accompanied by an
  affidavit  of  at  least  one  qualified   psychiatrist   or   certified
  psychologist  who,  based  at  least  in  part  on personal examination,
  attests  that  in  the  psychiatrist's  or  psychologist's  professional
  opinion  the  inmate  is  incompetent  and  lists  the  pertinent  facts
  therefor.  For  purposes  of   this   section   the   terms   "qualified
  psychiatrist" and "certified psychologist" have the meaning set forth in
  section 730.10 of the criminal procedure law.
3.  The petition shall be served upon either the district attorney who
  prosecuted the inmate or upon the district attorney for  the  county  in
  which  the  inmate  is  confined.  If  the  petition  is served upon the
  district attorney for the county in which the inmate  is  confined,  the
  court  shall  promptly  notify  the district attorney who prosecuted the
  inmate. Immediately upon appointing the psychiatric  commissioners,  the
  court  shall direct that an examination of the convicted person promptly
  take place with all three of the psychiatric  commissioners  present  at
  the  same  time.    The court shall also direct, upon application of the
  inmate or the district attorney,  that  the  inmate  be  examined  by  a
  qualified  psychiatrist  or  certified  psychologist  designated  by the
  inmate or the district attorney. Counsel for the inmate and the district
  attorney shall have the right to be present at  each  such  examination.
  Upon  the  filing  of  a  petition  pursuant  to subdivision two of this
  section, if the inmate does not have counsel and is  financially  unable
  to  obtain counsel the court shall appoint competent counsel experienced
  in the trial of criminal matters to represent the inmate.
4. The psychiatric commissioners must receive  and  consider  evidence
  offered  by  the  inmate's  counsel and the district attorney, including
  written submissions, testimony  and  expert  psychiatric  evidence.  The
  proceeding  before  the  psychiatric commissioners shall be conducted on
  the record but need not  be  conducted  in  accordance  with  the  rules
  governing the admission of evidence at trial, but counsel for the people
  and the inmate shall have the right to cross-examine witnesses.
5.  When  the proceeding before the psychiatric commissioners has been
  concluded, they must forthwith provide a transcript of  the  proceeding,
  together  with  their  findings of fact, to the court with their opinion
  thereon. Unless impracticable, the psychiatric  commissioners  shall  so
  act  within  sixty  days from the filing of the petition. When an inmate
  shall  be  found  incompetent  by  a   majority   of   the   psychiatric
  commissioners,  the  court  shall  accept  such  finding  unless clearly
  erroneous, and  promptly  enter  an  order  finding  the  inmate  to  be
  incompetent,  staying the execution of the inmate and directing that the
  inmate be committed to a secure facility under the jurisdiction  of  the
  office  of  mental  health if the inmate's incompetency is the result of
  mental illness. In all other cases,  the  inmate  shall  remain  in  the
  custody  of  the  department.    When  an inmate is found competent by a
  majority of the psychiatric commissioners, the court shall  accept  such
  finding  unless  clearly  erroneous, promptly enter an order finding the
  inmate to be competent and vacating any stay previously issued, and  the
  court  shall promptly inform the judge or justice who issued the warrant
  for the execution of the inmate of the court's finding.   Upon being  so
  informed,  the  judge  or  justice shall promptly issue a new warrant in
  accordance with subdivision two of section six  hundred  fifty  of  this
  article.    Any other provision of law notwithstanding, no other review,
  judicial or otherwise, shall be  available  with  respect  to  an  order
  finding  the inmate to be incompetent or competent. If the court rejects
  the finding of a majority of the psychiatric commissioners on the ground
  that it is clearly erroneous, the court shall appoint another commission
  to proceed as provided in this section.
6. When an inmate has been committed to a secure facility pursuant  to
  this   section,  the  inmate  shall  remain  there  until  the  facility
  administrator determines that the inmate may  be  competent.    Upon  so
  determining,  the facility administrator shall promptly notify the court
  that entered the order finding the inmate to  be  incompetent,  and  the
  court  shall  promptly  notify  counsel  and  the district attorneys and
  appoint another commission to proceed as provided in this section.
7.  The  court  shall  allow  reasonable  fees  to   the   psychiatric
  commissioners.  The  court shall allow reasonable fees for time spent in
  court and for time reasonably expended out of court to counsel appointed
  pursuant to this section. The court shall allow all reasonably necessary
  costs, including without limitation the costs attendant to fees for  the
  examination  of  the  inmate  by  a  qualified psychiatrist or certified
  psychologist, incurred by  the  inmate  and  the  district  attorney  in
  connection  with  a  petition  pursuant  to this section. Each claim for
  compensation and reimbursement shall be supported by a  sworn  statement
  specifying  the  time expended, services rendered, expenses incurred and
  reimbursement or compensation applied for or received in the  same  case
  from  any other source.  All such fees and costs shall be a state charge
  payable on vouchers approved by the court after  audit  by  and  on  the
  warrant of the comptroller.
8.  When  a petition has previously been filed and determined pursuant
  to this section, the court in which a subsequent petition is filed or to
  which a subsequent petition is transferred, shall  not  issue  an  order
  staying the execution of the inmate unless the court finds, after notice
  to  the  district attorney who prosecuted the inmate and after affording
  the district attorney a reasonable opportunity to be heard  in  writing,
  that   there   is  reasonable  cause  to  believe  that  the  inmate  is
  incompetent; provided, however,  that  the  court  may  issue  an  order
  staying  the  execution of the inmate, to the extent a stay is necessary
  to afford the district attorney an opportunity  to  be  heard  and  such
  reasonable cause determination to be made.