S T A T E O F N E W Y O R K ________________________________________________________________________ 6563 2013-2014 Regular Sessions I N A S S E M B L Y April 9, 2013 ___________ Introduced by M. of A. ORTIZ, CYMBROWITZ, LUPARDO, LAVINE, MONTESANO -- Multi-Sponsored by -- M. of A. BRENNAN, PERRY, PRETLOW -- read once and referred to the Committee on Codes AN ACT to amend the criminal procedure law, in relation to increasing the availability of professionals to perform evaluations regarding a defendant's fitness to proceed to trial in a criminal proceeding THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Section 730.10 of the criminal procedure law, subdivision 2 2 as amended by chapter 566 of the laws of 1994, subdivisions 3 and 4 as 3 amended by chapter 440 of the laws of 1987, subdivision 5 as amended by 4 chapter 435 of the laws of 1976, subdivisions 6 and 7 as renumbered by 5 chapter 629 of the laws of 1974, subdivision 8 as separately amended by 6 chapters 615 and 629 of the laws of 1974 and subdivision 9 as added by 7 section 1 of part Q of chapter 56 of the laws of 2012, is amended to 8 read as follows: 9 S 730.10 Fitness to proceed; definitions. 10 As used in this article, the following terms have the following mean- 11 ings: 12 1. "Incapacitated person" means a defendant who as a result of mental 13 [disease] ILLNESS or [defect] DEVELOPMENTAL DISABILITY lacks capacity to 14 understand the proceedings against him OR HER or to assist in his OR HER 15 own defense. 16 2. "Order of examination" means an order issued to an appropriate 17 director by a criminal court wherein a criminal action is pending 18 against a defendant, or by a family court pursuant to section 322.1 of 19 the family court act wherein a juvenile delinquency proceeding is pend- 20 ing against a juvenile, directing that such person be examined for the 21 purpose of determining if he OR SHE is an incapacitated person. EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD07933-02-3 A. 6563 2 1 3. "Commissioner" means the state commissioner of THE OFFICE OF mental 2 health or the state commissioner of [mental retardation and] develop- 3 mental disabilities. 4 4. "Director" means (a) the director of a state hospital operated by 5 the office of mental health or the director of a developmental center 6 operated by the office [of mental retardation and] FOR PEOPLE WITH 7 developmental disabilities, or (b) the director of a hospital operated 8 by any local government of the state that has been certified by the 9 commissioner as having adequate facilities to examine a defendant to 10 determine if he OR SHE is an incapacitated person, or (c) the director 11 of community [mental health] services UNDER ARTICLE FORTY-ONE OF THE 12 MENTAL HYGIENE LAW. 13 5. "Qualified psychiatrist" means a physician LICENSED UNDER ARTICLE 14 ONE HUNDRED THIRTY-ONE OF THE EDUCATION LAW who: 15 (a) is a diplomate of the American board of psychiatry and neurology 16 or is eligible to be certified by that board; or, 17 (b) is certified by the American osteopathic board of neurology and 18 psychiatry or is eligible to be certified by that board. 19 6. "[Certified psychologist] PSYCHOLOGIST" means a person who is 20 [registered] LICENSED as a [certified] psychologist under article one 21 hundred fifty-three of the education law. 22 7. "LICENSED CLINICAL SOCIAL WORKER" MEANS A PERSON WHO IS LICENSED AS 23 A LICENSED CLINICAL SOCIAL WORKER UNDER ARTICLE ONE HUNDRED FIFTY-FOUR 24 OF THE EDUCATION LAW. 25 8. "QUALIFIED NURSE PRACTITIONER" MEANS A PERSON WHO IS CERTIFIED AS A 26 NURSE PRACTITIONER UNDER ARTICLE ONE HUNDRED THIRTY-NINE OF THE EDUCA- 27 TION LAW WITHIN THE SPECIALTY AREA OF PSYCHIATRY. 28 9. "Psychiatric examiner" means a qualified psychiatrist [or a certi- 29 fied], A psychologist, A LICENSED CLINICAL SOCIAL WORKER OR A QUALIFIED 30 NURSE PRACTITIONER who has been designated by a director to examine a 31 defendant pursuant to an order of examination. 32 [8.] 10. "Examination report" means a report made by a psychiatric 33 examiner wherein he OR SHE sets forth [his] SUCH EXAMINER'S opinion as 34 to whether the defendant is or is not an incapacitated person, the 35 nature and extent of [his] THE examination and, if [he] THE EXAMINER 36 finds that the defendant is an incapacitated person, [his] SUCH EXAMIN- 37 ER'S diagnosis and prognosis and a detailed statement of the reasons for 38 [his] SUCH opinion by making particular reference to those aspects of 39 the proceedings wherein the defendant lacks capacity to understand or to 40 assist in his OR HER own defense. The state administrator and the 41 commissioner must jointly adopt the form of the examination report; and 42 the state administrator shall prescribe the number of copies thereof 43 that must be submitted to the court by the director. 44 [9.] 11. "Appropriate institution" means: (a) a hospital operated by 45 the office of mental health or a developmental center operated by the 46 office for people with developmental disabilities; or (b) a hospital 47 licensed by the department of health which operates a psychiatric unit 48 licensed by the office of mental health, as determined by the commis- 49 sioner provided, however, that any such hospital that is not operated by 50 the state shall qualify as an "appropriate institution" only pursuant to 51 the terms of an agreement between the commissioner and the hospital. 52 Nothing in this article shall be construed as requiring a hospital to 53 consent to providing care and treatment to an incapacitated person at 54 such hospital. 55 S 2. Section 730.20 of the criminal procedure law, subdivisions 1 and 56 5 as amended by chapter 693 of the laws of 1989 and subdivision 7 as A. 6563 3 1 amended by chapter 692 of the laws of 1972, is amended to read as 2 follows: 3 S 730.20 Fitness to proceed; generally. 4 1. The appropriate director to whom a criminal court issues an order 5 of examination must be determined in accordance with rules jointly 6 adopted by the judicial conference and the commissioner. Upon receipt 7 of an examination order, the director must designate two qualified 8 psychiatric examiners, of whom he OR SHE may be one, to examine the 9 defendant to determine if he OR SHE is an incapacitated person. In 10 conducting their examination, the psychiatric examiners may employ any 11 method which is accepted by the medical profession for the examination 12 of persons alleged to be mentally ill or [mentally defective] DEVELOP- 13 MENTALLY DISABLED. The court may authorize a psychiatrist [or], 14 psychologist, LICENSED CLINICAL SOCIAL WORKER OR QUALIFIED NURSE PRACTI- 15 TIONER retained by the defendant to be present at such examination. 16 2. When the defendant is not in custody at the time a court issues an 17 order of examination, because he OR SHE was theretofore released on bail 18 or on his OR HER own recognizance, the court may direct that the exam- 19 ination be conducted on an out-patient basis, and at such time and place 20 as the director shall designate. If, however, the director informs the 21 court that hospital confinement of the defendant is necessary for an 22 effective examination, the court may direct that the defendant be 23 confined in a hospital designated by the director until the examination 24 is completed. 25 3. When the defendant is in custody at the time a court issues an 26 order of examination, the examination must be conducted at the place 27 where the defendant is being held in custody. If, however, the director 28 determines that hospital confinement of the defendant is necessary for 29 an effective examination, the sheriff must deliver the defendant to a 30 hospital designated by the director and hold [him] THE DEFENDANT in 31 custody therein, under sufficient guard, until the examination is 32 completed. 33 4. Hospital confinement under subdivisions two and three shall be for 34 a period not exceeding thirty days, except that, upon application of the 35 director, the court may authorize confinement for an additional period 36 not exceeding thirty days if it is satisfied that a longer period is 37 necessary to complete the examination. During the period of hospital 38 confinement, the physician in charge of the hospital may administer or 39 cause to be administered to the defendant such emergency psychiatric, 40 medical or other therapeutic treatment as in his OR HER judgment should 41 be administered. 42 5. Each psychiatric examiner, after he OR SHE has completed his OR 43 HER examination of the defendant, must promptly prepare an examination 44 report and submit it to the director. If the psychiatric examiners are 45 not unanimous in their opinion as to whether the defendant is or is not 46 an incapacitated person, the director must designate another qualified 47 psychiatric examiner to examine the defendant to determine if he OR SHE 48 is an incapacitated person. Upon receipt of the examination reports, 49 the director must submit them to the court that issued the order of 50 examination. The court must furnish a copy of the reports to counsel 51 for the defendant and to the district attorney. 52 6. When a defendant is subjected to examination pursuant to an order 53 issued by a criminal court in accordance with this article, any state- 54 ment made by [him] SUCH DEFENDANT for the purpose of the examination or 55 treatment shall be inadmissible in evidence against [him] SUCH DEFENDANT 56 in any criminal action on any issue other than that of his OR HER mental A. 6563 4 1 condition, but such statement is admissible upon that issue whether or 2 not it would otherwise be deemed a privileged communication. 3 7. A psychiatric examiner is entitled to his OR HER reasonable trav- 4 eling expenses, a fee of fifty dollars for each examination of a defend- 5 ant and a fee of fifty dollars for each appearance at a court hearing or 6 trial but not exceeding two hundred dollars in fees for examination and 7 testimony in any one case; except that if such psychiatric examiner be 8 an employee of the state of New York he OR SHE shall be entitled only to 9 reasonable traveling expenses, unless such psychiatric examiner makes 10 the examination or appears at a court hearing or trial outside his OR 11 HER hours of state employment in a county in which the director of 12 community [mental health] services certifies to the fiscal officer ther- 13 eof that there is a shortage of qualified [psychiatrists] PSYCHIATRIC 14 EXAMINERS available to conduct examinations under the criminal procedure 15 law in such county, in which event he OR SHE shall be entitled to the 16 foregoing fees and reasonable traveling expenses. Such fees and travel- 17 ing expenses and the costs of sending a defendant to another place of 18 detention or to a hospital for examination, of his OR HER maintenance 19 therein and of returning [him] SUCH DEFENDANT shall, when approved by 20 the court, be a charge of the county in which the defendant is being 21 tried. 22 S 3. Subdivision 1 of section 730.30 of the criminal procedure law is 23 amended to read as follows: 24 1. At any time after a defendant is arraigned upon an accusatory 25 instrument other than a felony complaint and before the imposition of 26 sentence, or at any time after a defendant is arraigned upon a felony 27 complaint and before he OR SHE is held for the action of the grand jury, 28 the court wherein the criminal action is pending must issue an order of 29 examination when it is of the opinion that the defendant may be an inca- 30 pacitated person. 31 S 4. Subdivision 5 of section 730.40 of the criminal procedure law is 32 amended to read as follows: 33 5. When an indictment is timely filed against the defendant after the 34 issuance of a temporary order of observation or after the expiration of 35 the period prescribed in such order, the superior court in which such 36 indictment is filed must direct the sheriff to take custody of the 37 defendant at the institution in which he OR SHE is confined and bring 38 him OR HER before the court for arraignment upon the indictment. After 39 the defendant is arraigned upon the indictment, such temporary order of 40 observation or any order issued pursuant to the mental hygiene law after 41 the expiration of the period prescribed in the temporary order of obser- 42 vation shall be deemed nullified. Notwithstanding any other provision of 43 law, an indictment filed in a superior court against a defendant for a 44 crime charged in the felony complaint is not timely for the purpose of 45 this subdivision if it is filed more than six months after the expira- 46 tion of the period prescribed in a temporary order of observation issued 47 by a local criminal court wherein such felony complaint was pending. An 48 untimely indictment must be dismissed by the superior court unless such 49 court is satisfied that there was good cause for the delay in filing 50 such indictment. 51 S 5. Subdivisions 2, 3, 4 and 5 of section 730.50 of the criminal 52 procedure law, subdivision 2 as amended by chapter 789 of the laws of 53 1985 and subdivision 5 as amended by chapter 629 of the laws of 1974, 54 are amended to read as follows: 55 2. When a defendant is in the custody of the commissioner immediately 56 prior to the expiration of the period prescribed in a temporary order of A. 6563 5 1 commitment and the superintendent of the institution wherein the defend- 2 ant is confined is of the opinion that the defendant continues to be an 3 incapacitated person, such superintendent must apply to the court that 4 issued such order for an order of retention. Such application must be 5 made within sixty days prior to the expiration of such period on forms 6 that have been jointly adopted by the judicial conference and the 7 commissioner. The superintendent must give written notice of the appli- 8 cation to the defendant and to the mental hygiene legal service. Upon 9 receipt of such application, the court may, on its own motion, conduct a 10 hearing to determine the issue of capacity, and it must conduct such 11 hearing if a demand therefor is made by the defendant or the mental 12 hygiene legal service within ten days from the date that notice of the 13 application was given them. If, at the conclusion of a hearing conducted 14 pursuant to this subdivision, the court is satisfied that the defendant 15 is no longer an incapacitated person, the criminal action against him 16 must proceed. If it is satisfied that the defendant continues to be an 17 incapacitated person, or if no demand for a hearing is made, the court 18 must adjudicate him OR HER AS an incapacitated person and must issue an 19 order of retention which shall authorize continued custody of the 20 defendant by the commissioner for a period not to exceed one year. 21 3. When a defendant is in the custody of the commissioner immediately 22 prior to the expiration of the period prescribed in the first order of 23 retention, the procedure set forth in subdivision two OF THIS SECTION 24 shall govern the application for and the issuance of any subsequent 25 order of retention, except that any subsequent orders of retention must 26 be for periods not to exceed two years each; provided, however, that the 27 aggregate of the periods prescribed in the temporary order of commit- 28 ment, the first order of retention and all subsequent orders of 29 retention must not exceed two-thirds of the authorized maximum term of 30 imprisonment for the highest class felony charged in the indictment or 31 for the highest class felony of which he OR SHE was convicted. 32 4. When a defendant is in the custody of the commissioner at the expi- 33 ration of the authorized period prescribed in the last order of 34 retention, the criminal action pending against him OR HER in the superi- 35 or court that issued such order shall terminate for all purposes, and 36 the commissioner must promptly certify to such court and to the appro- 37 priate district attorney that the defendant was in his OR HER custody on 38 such expiration date. Upon receipt of such certification, the court must 39 dismiss the indictment, and such dismissal constitutes a bar to any 40 further prosecution of the charge or charges contained in such indict- 41 ment. 42 5. When, on the effective date of this subdivision, any defendant 43 remains in the custody of the commissioner pursuant to an order issued 44 under former code of criminal procedure section six hundred sixty-two-b, 45 the superintendent or director of the institution where such defendant 46 is confined shall, if he OR SHE believes that the defendant continues to 47 be an incapacitated person, apply forthwith to a court of record in the 48 county where the institution is located for an order of retention. The 49 procedures for obtaining any order pursuant to this subdivision shall be 50 in accordance with the provisions of subdivisions two, three and four of 51 this section, except that the period of retention pursuant to the first 52 order obtained under this subdivision shall be for not more than one 53 year and any subsequent orders of retention must be for periods not to 54 exceed two years each; provided, however, that the aggregate of the time 55 spent in the custody of the commissioner pursuant to any order issued in 56 accordance with the provisions of former code of criminal procedure A. 6563 6 1 section six hundred sixty-two-b and the periods prescribed by the first 2 order obtained under this subdivision and all subsequent orders of 3 retention must not exceed two-thirds of the authorized maximum term of 4 imprisonment for the highest class felony charged in the indictment or 5 the highest class felony of which he OR SHE was convicted. 6 S 6. Section 730.60 of the criminal procedure law, subdivisions 1 and 7 3 as amended by chapter 231 of the laws of 2008, subdivision 2 as 8 amended by chapter 57 of the laws of 1984, subdivisions 4 and 5 as 9 renumbered by chapter 629 of the laws of 1974, subdivision 6 as added by 10 chapter 549 of the laws of 1980 and paragraphs (a) and (b) of subdivi- 11 sion 6 as amended by chapter 7 of the laws of 2013, is amended to read 12 as follows: 13 S 730.60 Fitness to proceed; procedure following custody by commission- 14 er. 15 1. When a local criminal court issues a final or temporary order of 16 observation or an order of commitment, it must forward such order and a 17 copy of the examination reports and the accusatory instrument to the 18 commissioner, and, if available, a copy of the pre-sentence report. Upon 19 receipt thereof, the commissioner must designate an appropriate institu- 20 tion operated by the department of mental hygiene in which the defendant 21 is to be placed, provided, however, that the commissioner may designate 22 an appropriate hospital for placement of a defendant for whom a final 23 order of observation has been issued, where such hospital is licensed by 24 the office of mental health and has agreed to accept, upon referral by 25 the commissioner, defendants subject to final orders of observation 26 issued under this subdivision. The sheriff must hold the defendant in 27 custody pending such designation by the commissioner, and when notified 28 of the designation, the sheriff must deliver the defendant to the super- 29 intendent of such institution. The superintendent must promptly inform 30 the appropriate director of the mental hygiene legal service of the 31 defendant's admission to such institution. If a defendant escapes from 32 the custody of the commissioner, the escape shall interrupt the period 33 prescribed in any order of observation, commitment or retention, and 34 such interruption shall continue until the defendant is returned to the 35 custody of the commissioner. 36 2. Except as otherwise provided in subdivisions four and five OF THIS 37 SECTION, when a defendant is in the custody of the commissioner pursuant 38 to a temporary order of observation or an order of commitment or an 39 order of retention, the criminal action pending against the defendant in 40 the court that issued such order is suspended until the superintendent 41 of the institution in which the defendant is confined determines that he 42 OR SHE is no longer an incapacitated person. In that event, the court 43 that issued such order and the appropriate district attorney must be 44 notified, in writing, by the superintendent of his OR HER determination. 45 The court must thereupon proceed in accordance with the provisions of 46 subdivision two of section 730.30 of this chapter; provided, however, if 47 the court is satisfied that the defendant remains an incapacitated 48 person, and upon consent of all parties, the court may order the return 49 of the defendant to the institution in which he OR SHE had been confined 50 for such period of time as was authorized by the prior order of commit- 51 ment or order of retention. Upon such return, the defendant shall have 52 all rights and privileges accorded by the provisions of this article. 53 3. When a defendant is in the custody of the commissioner pursuant to 54 an order issued in accordance with this article, the commissioner may 55 transfer him OR HER to any appropriate institution operated by the 56 department of mental hygiene, provided, however, that the commissioner A. 6563 7 1 may designate an appropriate hospital for placement of a defendant for 2 whom a final order of observation has been issued, where such hospital 3 is licensed by the office of mental health and has agreed to accept, 4 upon referral by the commissioner, defendants subject to final orders of 5 observation issued under this section. The commissioner may discharge a 6 defendant in his OR HER custody under a final order of observation at 7 any time prior to the expiration date of such order, or otherwise treat 8 or transfer such defendant in the same manner as if he OR SHE were a 9 patient not in confinement under a criminal court order. 10 4. When a defendant is in the custody of the commissioner pursuant to 11 an order of commitment or an order of retention, he OR SHE may make any 12 motion authorized by this chapter which is susceptible of fair determi- 13 nation without his OR HER personal participation. If the court denies 14 any such motion it must be without prejudice to a renewal thereof after 15 the criminal action against the defendant has been ordered to proceed. 16 If the court enters an order dismissing the indictment and does not 17 direct that the charge or charges be resubmitted to a grand jury, the 18 court must direct that such order of dismissal be served upon the 19 commissioner. 20 5. When a defendant is in the custody of the commissioner pursuant to 21 an order of commitment or an order of retention, the superior court that 22 issued such order may, upon motion of the defendant, and with the 23 consent of the district attorney, dismiss the indictment when the court 24 is satisfied that (a) the defendant is a resident or citizen of another 25 state or country and that he OR SHE will be removed thereto upon 26 dismissal of the indictment, or (b) the defendant has been continuously 27 confined in the custody of the commissioner for a period of more than 28 two years. Before granting a motion under this subdivision, the court 29 must be further satisfied that dismissal of the indictment is consistent 30 with the ends of justice and that custody of the defendant by the 31 commissioner pursuant to an order of commitment or an order of retention 32 is not necessary for the protection of the public and that care and 33 treatment can be effectively administered to the defendant without the 34 necessity of such order. If the court enters an order of dismissal under 35 this subdivision, it must set forth in the record the reasons for such 36 action, and must direct that such order of dismissal be served upon the 37 commissioner. The dismissal of an indictment pursuant to this subdivi- 38 sion constitutes a bar to any further prosecution of the charge or 39 charges contained in such indictment. 40 6. (a) Notwithstanding any other provision of law, no person committed 41 to the custody of the commissioner pursuant to this article, or contin- 42 uously thereafter retained in such custody, shall be discharged, 43 released on condition or placed in any less secure facility or on any 44 less restrictive status, including, but not limited to vacations, 45 furloughs and temporary passes, unless the commissioner or his or her 46 designee, which may include the director of an appropriate institution, 47 shall deliver written notice, at least four days, excluding Saturdays, 48 Sundays and holidays, in advance of the change of such committed 49 person's facility or status, or in the case of a person committed pursu- 50 ant to a final order of observation written notice upon discharge of 51 such committed person, to all of the following: 52 (1) The district attorney of the county from which such person was 53 committed; 54 (2) The superintendent of state police; 55 (3) The sheriff of the county where the facility is located; A. 6563 8 1 (4) The police department having jurisdiction of the area where the 2 facility is located; 3 (5) Any person who may reasonably be expected to be the victim of any 4 assault or any violent felony offense, as defined in the penal law, or 5 any offense listed in section 530.11 of this part which would be carried 6 out by the committed person; provided that the person who reasonably may 7 be expected to be a victim does not need to be a member of the same 8 family or household as the committed person; and 9 (6) Any other person the court may designate. 10 Said notice may be given by any means reasonably calculated to give 11 prompt actual notice. 12 (b) The notice required by this subdivision shall also be given imme- 13 diately upon the departure of such committed person from the actual 14 custody of the commissioner or an appropriate institution, without prop- 15 er authorization. Nothing in this subdivision shall be construed to 16 impair any other right or duty regarding any notice or hearing contained 17 in any other provision of law. 18 (c) Whenever a district attorney has received the notice described in 19 this subdivision, and the defendant is in the custody of the commission- 20 er pursuant to a final order of observation or an order of commitment, 21 he OR SHE may apply within three days of receipt of such notice to a 22 superior court, for an order directing a hearing to be held to determine 23 whether such committed person is a danger to himself, HERSELF or others. 24 Such hearing shall be held within ten days following the issuance of 25 such order. Such order may provide that there shall be no further change 26 in the committed person's facility or status until the hearing. Upon a 27 finding that the committed person is a danger to himself, HERSELF or 28 others, the court shall issue an order to the commissioner authorizing 29 retention of the committed person in the status existing at the time 30 notice was given hereunder, for a specified period, not to exceed six 31 months. The district attorney and the committed person's attorney shall 32 be entitled to the committed person's clinical records in the commis- 33 sioner's custody, upon the issuance of an order directing a hearing to 34 be held. 35 (d) Nothing in this subdivision shall be construed to impair any other 36 right or duty regarding any notice or hearing contained in any other 37 provision of law. 38 S 7. Section 730.70 of the criminal procedure law, as amended by chap- 39 ter 629 of the laws of 1974, is amended to read as follows: 40 S 730.70 Fitness to proceed; procedure following termination of custody 41 by commissioner. 42 When a defendant is in the custody of the commissioner on the expira- 43 tion date of a final or temporary order of observation or an order of 44 commitment, or on the expiration date of the last order of retention, or 45 on the date an order dismissing an indictment is served upon the commis- 46 sioner, the superintendent of the institution in which the defendant is 47 confined may retain him OR HER for care and treatment for a period of 48 thirty days from such date. 49 If the superintendent determines that the defendant is so mentally ill 50 or [mentally defective] DEVELOPMENTALLY DISABLED as to require continued 51 care and treatment in an institution, he OR SHE may, before the expira- 52 tion of such thirty day period, apply for an order of certification in 53 the manner prescribed in section 31.33 of the mental hygiene law. 54 S 8. This act shall take effect immediately.