New York Codes, Rules and Regulations › Title 14 - DEPARTMENT OF MENTAL HYGIENE › Chapter XIII - Office of Mental Health › Part 541 - Defendants Committed To The Custody Of The Commissioner Pursuant To Cpl Section 330.20 › Section 541.4 - Retention orders

Current through Register Vol. 46, No. 28, July 10, 2024
(a) When a
				defendant is in the custody of the commissioner pursuant to a commitment order,
				a recommitment order or a retention order, at least 30 days prior to the
				expiration of the period prescribed in the order, the Director of Forensic
				Services, acting for the commissioner, shall apply to the court for a release
				order or a retention order when such order is applied for in conjunction with a
				transfer order, or the clinical director acting for the commissioner shall
				apply to the court for a retention order. An application by the clinical
				director pursuant to this subdivision shall be made on the basis of
				recommendations submitted to him or her by the treatment team after
				consultation with the hospital forensics committee. An application by the
				Director of Forensic Services pursuant to this subdivision shall be made on the
				basis of recommendations submitted to him or her by the clinical director after
				consultation with the hospital forensics committee in accordance with the
				procedures described in section
				541.9 
				of this Part.
(b) The application
				shall be made to the court which issued the order, or to a superior court in
				the county in which the facility is located, on forms jointly approved by the
				commissioner and the Office of Court Administration, and shall be accompanied
				by a current psychiatric report. The applicant, whether it be the Director of
				Forensic Services or the clinical director, shall give written notice to the
				district attorney, the defendant, counsel for the defendant and the Mental
				Health Information Service when applying to the court. In addition, when the
				clinical director is the applicant, he or she shall also give written notice to
				the Director of Forensic Services.
(c) The application and psychiatric report
				shall contain information necessary for the court to determine if the defendant
				has a dangerous mental disorder, or is mentally ill but not dangerous, or is
				not mentally ill, and shall include an accompanying affidavit from at least one
				psychiatrist supportive of the relief requested in the application. Such
				affidavit shall be served on all parties entitled to receive the notice of
				application, pursuant to subdivision (b) of this section, and shall set forth
				the defendant's clinical diagnosis, a detailed analysis of his or her mental
				condition which caused the psychiatrist to formulate an opinion, and the
				psychiatrist's opinion with respect to the defendant. The treatment team leader
				or a psychiatrist or psychologist familiar with the defendant's current mental
				condition and case history shall be prepared to testify at any hearing held by
				the court.
(d) If the
				recommendation of the hospital forensics committee and the clinical director
				supports the view that the defendant is not mentally ill, the Director of
				Forensic Services shall apply for a release order and an order of conditions in
				accordance with section
				541.8  of
				this Part.
(e) If the
				recommendation of the hospital forensics committee and the clinical director
				supports the view that the defendant is mentally ill but not dangerous, and the
				defendant is currently confined to a secure facility, the Director of Forensic
				Services may apply for a first, second or subsequent retention order, as
				appropriate, a transfer order and an order of conditions in accordance with
				section
				541.7  of this
				Part.
(f) If the recommendation of
				the hospital forensics committee and the clinical director supports the view
				that the defendant has a dangerous mental disorder, and the defendant is
				currently confined to a secure facility, he or she shall apply for a first,
				second or subsequent retention order, as appropriate, authorizing continued
				custody of the defendant by the commissioner.
(g) If the clinical director determines that
				the defendant is mentally ill but not dangerous and the defendant is currently
				confined in a nonsecure facility, he or she shall apply for a first, second or
				subsequent retention order, as appropriate, authorizing continued custody of
				the defendant by the commissioner.