Bill Text: NY S03378 | 2025-2026 | General Assembly | Introduced

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Bill Title: Directs a criminal court to establish a period of commitment for persons found not responsible by reason of mental disease or defect; a person so committed shall not be eligible for release from the custody of the commissioner of mental health or the commissioner of developmental disabilities until completion of the period of commitment.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced) 2025-01-27 - REFERRED TO CODES [S03378 Detail]

Download: New_York-2025-S03378-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          3378

                               2025-2026 Regular Sessions

                    IN SENATE

                                    January 27, 2025
                                       ___________

        Introduced  by  Sen.  GRIFFO -- read twice and ordered printed, and when
          printed to be committed to the Committee on Codes

        AN ACT to amend the criminal procedure law, in relation to retention  of
          custody  of  persons  found  not guilty by reason of mental disease or
          defect

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  Section 330.20 of the criminal procedure law, as added by
     2  chapter 548 of the laws of 1980, paragraphs (a) and (b) of subdivision 1
     3  as amended by chapter 672 of the laws of 2019, paragraph (d) of subdivi-
     4  sion 1 and the opening paragraph of subdivision 2 as amended by  chapter
     5  479  of  the  laws  of 2022, paragraph (o) of subdivision 1, the closing
     6  paragraph of subdivision 2 and subdivisions 7-a and  22  as  amended  by
     7  chapter  107  of  the  laws of 2004, subdivisions 2 and 20 as amended by
     8  chapter 693 of the laws of 1989, subdivision 2-a as added by  chapter  1
     9  of  the  laws  of  2013,  subdivisions 5, 8, 9, 10, 11, 12, 13 and 14 as
    10  amended by chapter 789 of the laws of 1985, subdivision 21 as  added  by
    11  chapter  976 of the laws of 1983, and subparagraph (ii) of paragraph (a)
    12  of subdivision 21 as amended by chapter 330 of  the  laws  of  1993,  is
    13  amended to read as follows:
    14  §  330.20  Procedure  following  verdict  or  plea of not responsible by
    15               reason of mental disease or defect.
    16    1. Definition of terms. As used in this section, the  following  terms
    17  shall have the following meanings:
    18    (a)  "Commissioner" means the [state] commissioner of mental health or
    19  the [state] commissioner of the office  for  people  with  developmental
    20  disabilities.
    21    (b)  "Secure  facility"  means a facility within the [state] office of
    22  mental health or the [state] office for people with developmental  disa-
    23  bilities  which is staffed with personnel adequately trained in security

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03632-01-5
        S. 3378                             2

     1  methods and is so equipped as to minimize the risk or danger of escapes,
     2  and which has been so specifically designated by the commissioner.
     3    (c)  "Dangerous mental disorder" means: (i) that a defendant currently
     4  suffers from a "mental illness" as that term is defined  in  subdivision
     5  twenty  of section 1.03 of the mental hygiene law, and (ii) that because
     6  of such condition [he] the defendant currently  constitutes  a  physical
     7  danger to [himself] themself or others.
     8    (d)  "Mentally  ill"  means  that a defendant currently suffers from a
     9  mental illness for which care and treatment as a patient, in the  in-pa-
    10  tient  services  of  a  psychiatric center under the jurisdiction of the
    11  [state] office of  mental  health,  is  essential  to  such  defendant's
    12  welfare  and  that [his or her] such defendant's judgment is so impaired
    13  that [he] the defendant is unable to understand the need for  such  care
    14  and  treatment;  and,  where a defendant has a developmental disability,
    15  the term "mentally ill" shall also mean, for purposes of  this  section,
    16  that the defendant is in need of care and treatment as a resident in the
    17  in-patient  services  of  a  developmental  center  or other residential
    18  facility for  individuals  with  developmental  disabilities  under  the
    19  jurisdiction  of  the [state] office for people with developmental disa-
    20  bilities.
    21    (e) "Examination order" means an order directed  to  the  commissioner
    22  requiring that a defendant submit to a psychiatric examination to deter-
    23  mine  whether  the defendant has a dangerous mental disorder, or if [he]
    24  the defendant does not have a dangerous mental  disorder,  whether  [he]
    25  the defendant is mentally ill.
    26    (f)  "Commitment  order"  [or  "recommitment  order"]  means  an order
    27  committing a defendant to the custody of the commissioner  for  confine-
    28  ment  in  a  secure facility for care and treatment [for six months from
    29  the date of the order].
    30    (g) "First retention order" means an order which is effective  at  the
    31  expiration  of  the  period  prescribed in a commitment order [for] or a
    32  recommitment order, authorizing continued custody of a defendant by  the
    33  commissioner for a period not to exceed one year.
    34    (h)  "Second retention order" means an order which is effective at the
    35  expiration of the period prescribed in a first retention order,  author-
    36  izing  continued custody of a defendant by the commissioner for a period
    37  not to exceed two years.
    38    (i) "Subsequent retention order" means an order which is effective  at
    39  the expiration of the period prescribed in a second retention order or a
    40  prior  subsequent  retention  order  authorizing  continued custody of a
    41  defendant by the commissioner for a period not to exceed two years.
    42    (j)  "Retention  order"  means  a  first  retention  order,  a  second
    43  retention order or a subsequent retention order.
    44    (k)  "Furlough  order"  means  an  order directing the commissioner to
    45  allow a defendant in confinement pursuant to a commitment order,  recom-
    46  mitment order or retention order to temporarily leave the facility for a
    47  period  not  exceeding  fourteen  days,  [either]  with [or without] the
    48  constant supervision of one or more employees of the facility.
    49    (l) "Transfer order" means an  order  directing  the  commissioner  to
    50  transfer  a  defendant  from  a secure facility to a non-secure facility
    51  under the jurisdiction of the commissioner or to any non-secure facility
    52  designated by the commissioner.
    53    (m) "Release order" means  an  order  directing  the  commissioner  to
    54  terminate  a  defendant's  in-patient  status  without  terminating  the
    55  commissioner's responsibility for the defendant.
        S. 3378                             3

     1    (n) "Discharge order" means an order terminating an  order  of  condi-
     2  tions  or unconditionally discharging a defendant from supervision under
     3  the provisions of this section.
     4    (o)  "Order  of  conditions"  means  an order directing a defendant to
     5  comply with this prescribed treatment plan, or any other condition which
     6  the court determines to be reasonably necessary or appropriate, and,  in
     7  addition,  where  a  defendant is in custody of the commissioner, not to
     8  leave the facility without authorization. In  addition  to  such  condi-
     9  tions,  when  determined  to  be reasonably necessary or appropriate, an
    10  order of conditions may be accompanied by a special order of  conditions
    11  set  forth in a separate document requiring that the defendant: (i) stay
    12  away from the home, school, business  or  place  of  employment  of  the
    13  victim  or  victims,  or of any witness designated by the court, of such
    14  offense; or (ii) refrain from harassing,  intimidating,  threatening  or
    15  otherwise interfering with the victim or victims of the offense and such
    16  members of the family or household of such victim or victims as shall be
    17  specifically  named  by  the  court  in  such special order. An order of
    18  conditions or special order of conditions shall be valid for five  years
    19  from  the  date  of its issuance, except that, for good cause shown, the
    20  court may extend the period for an additional five years.
    21    (p) "District attorney" means the office which prosecuted the criminal
    22  action resulting in the verdict or plea of not responsible by reason  of
    23  mental disease or defect.
    24    (q)  "Qualified psychiatrist" means a physician who (i) is a diplomate
    25  of the American board of psychiatry and neurology or is eligible  to  be
    26  certified by that board; or (ii) is certified by the American osteopath-
    27  ic  board  of neurology and psychiatry or is eligible to be certified by
    28  that board.
    29    (r) "Licensed psychologist" means a person  who  is  registered  as  a
    30  psychologist under article one hundred fifty-three of the education law.
    31    (s)  "Psychiatric  examiner"  means  a  qualified  psychiatrist  or  a
    32  licensed psychologist who has been designated  by  the  commissioner  to
    33  examine a defendant pursuant to this section, and such designee need not
    34  be an employee of the department of mental hygiene.
    35    2.  [Examination]  Sentence; examination order; psychiatric examiners.
    36  Upon entry of a verdict of not responsible by reason of  mental  disease
    37  or defect, or upon the acceptance of a plea of not responsible by reason
    38  of  mental  disease  or  defect, the court must immediately (a) impose a
    39  period of confinement in the custody of the commissioner which is  equal
    40  to  the  sentence  of  imprisonment  such  defendant would have received
    41  pursuant to article seventy of the penal law,  upon  conviction  of  the
    42  crime with which the defendant was charged; and (b) issue an examination
    43  order.  Upon  receipt of such order, the commissioner must designate two
    44  qualified psychiatric examiners to conduct the  examination  to  examine
    45  the  defendant. In conducting their examination, the psychiatric examin-
    46  ers may employ any method which is accepted by  the  medical  profession
    47  for  the examination of persons alleged to be suffering from a dangerous
    48  mental disorder or to be mentally ill or having a developmental disabil-
    49  ity. The court may authorize a psychiatrist or psychologist retained  by
    50  a  defendant  to  be present at such examination. The clerk of the court
    51  must promptly forward a copy of the  examination  order  to  the  mental
    52  hygiene legal service and such service may thereafter participate in all
    53  subsequent proceedings under this section.
    54    In  all subsequent proceedings under this section, [prior to the issu-
    55  ance of a special order of conditions,] the court shall consider whether
    56  any order of protection had been  issued  prior  to  a  verdict  of  not
        S. 3378                             4

     1  responsible  by reason of mental disease or defect in the case, or prior
     2  to the acceptance of a plea of  not  responsible  by  reason  of  mental
     3  disease or defect in the case.
     4    2-a.  Firearm,  rifle  or  shotgun  surrender  order.  Upon entry of a
     5  verdict of not responsible by reason of mental  disease  or  defect,  or
     6  upon  the  acceptance  of  a plea of not responsible by reason of mental
     7  disease or defect, or upon a finding that the defendant is an  incapaci-
     8  tated  person  pursuant to article seven hundred thirty of this chapter,
     9  the court shall revoke the defendant's firearm license, if any,  inquire
    10  of  the defendant as to the existence and location of any firearm, rifle
    11  or shotgun owned or possessed by such defendant and direct the surrender
    12  of such firearm, rifle or shotgun pursuant to subparagraph (f) of  para-
    13  graph  one  of  subdivision  a  of section 265.20 and subdivision six of
    14  section 400.05 of the penal law.
    15    3. Examination order; place of examination. Upon issuing  an  examina-
    16  tion  order, the court must, except as otherwise provided in this subdi-
    17  vision, direct that the defendant be  committed  to  a  secure  facility
    18  designated  by  the commissioner as the place for such psychiatric exam-
    19  ination. The sheriff must hold the defendant  in  custody  pending  such
    20  designation  by  the commissioner, and when notified of the designation,
    21  the sheriff must promptly deliver the defendant to such secure facility.
    22  [When the defendant is not in custody at the time  of  such  verdict  or
    23  plea,  because he was previously released on bail or on his own recogni-
    24  zance, the court, in its discretion, may direct that such examination be
    25  conducted on an out-patient basis, and at such time  and  place  as  the
    26  commissioner  shall designate. If, however, the commissioner informs the
    27  court that confinement of the defendant is necessary  for  an  effective
    28  examination,  the  court must direct that the defendant be confined in a
    29  facility  designated  by  the  commissioner  until  the  examination  is
    30  completed.]
    31    4.  Examination  order,  duration.  Confinement  in  a secure facility
    32  pursuant to an examination order shall be for  a  period  not  exceeding
    33  thirty  days,  except  that,  upon  application of the commissioner, the
    34  court may authorize confinement for an additional period  not  exceeding
    35  thirty  days  when a longer period is necessary to complete the examina-
    36  tion. [If the initial  hearing  required  by  subdivision  six  of  this
    37  section  has  not commenced prior to the termination of such examination
    38  period, the commissioner shall retain custody of the defendant  in  such
    39  secure  facility  until  custody  is  transferred  to the sheriff in the
    40  manner prescribed in subdivision six of this section.] During the period
    41  of such confinement, the physician in charge of the facility may  admin-
    42  ister  or  cause  to  be  administered  to  the defendant such emergency
    43  psychiatric, medical or other therapeutic treatment  as  in  [his]  such
    44  physician's  judgment should be administered. [If the court has directed
    45  that the examination be conducted on an out-patient basis, the  examina-
    46  tion shall be completed within thirty days after the defendant has first
    47  reported  to the place designated by the commissioner, except that, upon
    48  application of the commissioner, the court may extend such period for  a
    49  reasonable time if a longer period is necessary to complete the examina-
    50  tion.]
    51    5.  Examination  order; reports. After [he] a psychiatric examiner has
    52  completed [his] an examination of the defendant, each psychiatric  exam-
    53  iner  must  promptly  prepare a report of [his] such examiner's findings
    54  and evaluation concerning the defendant's mental condition,  and  submit
    55  such  report to the commissioner. If the psychiatric examiners differ in
    56  their opinion as to whether the defendant is mentally ill or is  suffer-
        S. 3378                             5

     1  ing  from  a  dangerous mental disorder, the commissioner must designate
     2  another psychiatric examiner to examine the defendant. Upon  receipt  of
     3  the  examination reports, the commissioner must submit them to the court
     4  that  issued  the  examination order. If the court is not satisfied with
     5  the findings of these psychiatric examiners, the court may designate one
     6  or  more  additional  psychiatric  examiners  pursuant  to   subdivision
     7  [fifteen]  fourteen  of this section.  [The court must furnish a copy of
     8  the reports to the district attorney, counsel for the defendant and  the
     9  mental hygiene legal service.]
    10    6.  [Initial hearing; commitment] Commitment order. After the examina-
    11  tion reports are submitted, the court must[,  within  ten  days  of  the
    12  receipt  of  such  reports,  conduct an initial hearing to determine the
    13  defendant's present mental condition. If the defendant is in the custody
    14  of the commissioner pursuant to an examination  order,  the  court  must
    15  direct  the  sheriff to obtain custody of the defendant from the commis-
    16  sioner and to confine the defendant pending further order of the  court,
    17  except that the court may direct the sheriff to confine the defendant in
    18  an  institution  located  near  the  place  where the court sits if that
    19  institution has been designated by the commissioner as suitable for  the
    20  temporary  and  secure  detention  of mentally disabled persons. At such
    21  initial hearing, the district attorney must establish to  the  satisfac-
    22  tion  of the court that the defendant has a dangerous mental disorder or
    23  is mentally ill. If the court finds that the defendant has  a  dangerous
    24  mental  disorder,  it must] issue a commitment order for the term of the
    25  period of confinement imposed, pursuant to paragraph (a) of  subdivision
    26  two  of this section, and to such a secure facility as shall be suitable
    27  for a mentally ill person or a person with a dangerous mental  disorder,
    28  as  the  case may be, based upon the examination reports.  [If the court
    29  finds that the defendant does not have a dangerous mental  disorder  but
    30  is  mentally  ill,  the  provisions of subdivision seven of this section
    31  shall apply.]
    32    7. [Initial hearing civil commitment and order of conditions.  If,  at
    33  the  conclusion of the initial hearing conducted pursuant to subdivision
    34  six of this section, the court finds that the defendant is mentally  ill
    35  but  does  not have a dangerous mental disorder, the provisions of arti-
    36  cles nine or fifteen of the mental hygiene law shall apply at that stage
    37  of the proceedings and at all subsequent proceedings. Having found  that
    38  the  defendant  is mentally ill, the court must issue an order of condi-
    39  tions and an order committing  the  defendant  to  the  custody  of  the
    40  commissioner. The latter order shall be deemed an order made pursuant to
    41  the  mental  hygiene  law  and not pursuant to this section, and further
    42  retention, conditional release or discharge of such defendant  shall  be
    43  in  accordance with the provisions of the mental hygiene law. If, at the
    44  conclusion of the initial hearing, the court finds  that  the  defendant
    45  does  not  have a dangerous mental disorder and is not mentally ill, the
    46  court must discharge the defendant either unconditionally or subject  to
    47  an order of conditions.
    48    7-a.  Whenever the court issues a special order of conditions pursuant
    49  to this section, the commissioner shall make reasonable efforts to noti-
    50  fy the victim or victims or the designated witness or witnesses  that  a
    51  special  order of conditions containing such provisions has been issued,
    52  unless such victim or witness has requested that such notice should  not
    53  be provided.
    54    8.]  First  retention order. When a defendant is in the custody of the
    55  commissioner pursuant to a commitment order, the commissioner  must,  at
    56  least  thirty  days  prior to the expiration of the period prescribed in
        S. 3378                             6

     1  the order, apply to the court that issued the order, or  to  a  superior
     2  court  in  the  county where the secure facility is located, for a first
     3  retention order or a release order. The commissioner must  give  written
     4  notice of the application to the district attorney, the defendant, coun-
     5  sel  for  the  defendant,  and  the  mental  hygiene legal service. Upon
     6  receipt of such application, the court may, on its own motion, conduct a
     7  hearing to determine whether the defendant has a dangerous mental disor-
     8  der, and it must conduct such hearing if a demand therefor  is  made  by
     9  the  district attorney, the defendant, counsel for the defendant, or the
    10  mental hygiene legal service within ten days from the date  that  notice
    11  of  the  application  was given to them. If such a hearing is held on an
    12  application for retention, the commissioner must establish to the satis-
    13  faction of the court that the defendant has a dangerous mental  disorder
    14  or  is  mentally  ill. The district attorney shall be entitled to appear
    15  and present evidence at such hearing. If such a hearing is  held  on  an
    16  application  for  release,  the  district attorney must establish to the
    17  satisfaction of the court that the  defendant  has  a  dangerous  mental
    18  disorder or is mentally ill. If the court finds that the defendant has a
    19  dangerous  mental disorder it must issue a first retention order. If the
    20  court finds that the defendant is mentally  ill  but  does  not  have  a
    21  dangerous  mental  disorder,  it must issue a first retention order and,
    22  pursuant to subdivision [eleven] ten of this section, a  transfer  order
    23  and  an  order of conditions. If the court finds that the defendant does
    24  not have a dangerous mental disorder and is not mentally  ill,  it  must
    25  issue a release order and an order of conditions pursuant to subdivision
    26  [twelve] eleven of this section.
    27    [9.] 8. Second and subsequent retention orders. When a defendant is in
    28  the custody of the commissioner pursuant to a first retention order, the
    29  commissioner  must,  at least thirty days prior to the expiration of the
    30  period prescribed in the order, apply  to  the  court  that  issued  the
    31  order,  or  to  a  superior  court  in  the county where the facility is
    32  located, for a second retention order or a release  order.  The  commis-
    33  sioner  must  give  written  notice  of  the application to the district
    34  attorney, the defendant, counsel  for  the  defendant,  and  the  mental
    35  hygiene  legal service. Upon receipt of such application, the court may,
    36  on its own motion, conduct a hearing to determine whether the  defendant
    37  has  a  dangerous mental disorder, and it must conduct such hearing if a
    38  demand therefor is made by the district attorney, the defendant, counsel
    39  for the defendant, or the mental hygiene legal service within  ten  days
    40  from  the date that notice of the application was given to them. If such
    41  a hearing is held on an application for retention, the commissioner must
    42  establish to the satisfaction of the court  that  the  defendant  has  a
    43  dangerous  mental  disorder  or  is  mentally ill. The district attorney
    44  shall be entitled to appear and present evidence  at  such  hearing.  If
    45  such  a  hearing  is  held  on  an application for release, the district
    46  attorney must establish to  the  satisfaction  of  the  court  that  the
    47  defendant  has  a  dangerous  mental disorder or is mentally ill. If the
    48  court finds that the defendant has a dangerous mental disorder  it  must
    49  issue a second retention order. If the court finds that the defendant is
    50  mentally  ill  but  does  not  have a dangerous mental disorder, it must
    51  issue a second retention order and, pursuant to subdivision [eleven] ten
    52  of this section, a transfer order and an order  of  conditions.  If  the
    53  court finds that the defendant does not have a dangerous mental disorder
    54  and  is  not mentally ill, it must issue a release order and an order of
    55  conditions pursuant to subdivision [twelve] eleven of this section. When
    56  a defendant is in the custody of the commissioner prior to  the  expira-
        S. 3378                             7

     1  tion  of  the  period prescribed in a second retention order, the proce-
     2  dures set forth in  this  subdivision  for  the  issuance  of  a  second
     3  retention order shall govern the application for and the issuance of any
     4  subsequent retention order.
     5    [10.]  9.  Furlough  order.  The commissioner may apply for a furlough
     6  order, pursuant to this subdivision, when a defendant is  in  [his]  the
     7  commissioner's  custody  pursuant  to a [commitment order,] recommitment
     8  order[,] or retention order and the commissioner is of  the  view  that,
     9  consistent  with  the public safety and welfare of the community and the
    10  defendant, the clinical condition of the defendant warrants  a  granting
    11  of  the privileges authorized by a furlough order. The application for a
    12  furlough order may be made to  the  court  that  issued  the  commitment
    13  order, or to a superior court in the county where the secure facility is
    14  located.  The  commissioner  must  give  ten  days written notice to the
    15  district attorney, the defendant, counsel for  the  defendant,  and  the
    16  mental  hygiene  legal  service.  Upon  receipt of such application, the
    17  court may, on its own motion, conduct a hearing to determine whether the
    18  application should be granted, and must conduct such hearing if a demand
    19  therefor is made by the district attorney. If the court finds  that  the
    20  issuance  of  a  furlough order is consistent with the public safety and
    21  welfare of the community and the defendant, and that the clinical condi-
    22  tion of the defendant warrants a granting of the  privileges  authorized
    23  by  a  furlough  order, the court must grant the application and issue a
    24  furlough order containing any terms and conditions that the court  deems
    25  necessary or appropriate. If the defendant fails to return to the secure
    26  facility at the time specified in the furlough order, then, for purposes
    27  of  subdivision  [nineteen] eighteen of this section, [he] the defendant
    28  shall be deemed to have escaped.
    29    [11.] 10. Transfer order and order of conditions. The commissioner may
    30  apply for a transfer order, pursuant to this subdivision, when a defend-
    31  ant is in [his] the commissioner's custody pursuant to a retention order
    32  or a recommitment order, and the commissioner is of the  view  that  the
    33  defendant  does not have a dangerous mental disorder or that, consistent
    34  with the public safety and welfare of the community and  the  defendant,
    35  the  clinical  condition of the defendant warrants [his] the defendant's
    36  transfer from a secure facility  to  a  non-secure  facility  under  the
    37  jurisdiction  of  the  commissioner or to any non-secure facility desig-
    38  nated by the commissioner. The application for a transfer order  may  be
    39  made  to  the  court  that issued the order under which the defendant is
    40  then in custody, or to a superior court in the county where  the  secure
    41  facility  is located. The commissioner must give ten days written notice
    42  to the district attorney, the defendant, counsel for the defendant,  and
    43  the  mental hygiene legal service. Upon receipt of such application, the
    44  court may, on its own motion, conduct a hearing to determine whether the
    45  application should be granted, and must  conduct  such  hearing  if  the
    46  demand  therefor  is made by the district attorney. At such hearing, the
    47  district attorney must establish to the satisfaction of the  court  that
    48  the  defendant has a dangerous mental disorder or that the issuance of a
    49  transfer order is inconsistent with the public safety and welfare of the
    50  community. The court must grant the application  and  issue  a  transfer
    51  order  if  the  court finds that the defendant does not have a dangerous
    52  mental disorder, or if the court finds that the issuance of  a  transfer
    53  order  is consistent with the public safety and welfare of the community
    54  and the defendant and that the  clinical  condition  of  the  defendant,
    55  warrants  [his]  the  defendant's  transfer  from a secure facility to a
    56  non-secure facility. A court must also issue a transfer order  when,  in
        S. 3378                             8

     1  connection  with  an application for a first retention order pursuant to
     2  subdivision [eight] seven of this section  or  a  second  or  subsequent
     3  retention order pursuant to subdivision [nine] eight of this section, it
     4  finds  that  a  defendant  is mentally ill but does not have a dangerous
     5  mental disorder.  Whenever a court issues a transfer order it must  also
     6  issue an order of conditions.
     7    [12.]  11. Release order and order of conditions. The commissioner may
     8  apply for a release order, pursuant to this subdivision, when a  defend-
     9  ant is in [his] the commissioner's custody pursuant to a retention order
    10  or  recommitment  order,  and  the  commissioner is of the view that the
    11  defendant no longer has a dangerous mental disorder  and  is  no  longer
    12  mentally  ill.  The  application  for a release order may be made to the
    13  court that issued the order under which the defendant is then in  custo-
    14  dy,  or to a superior court in the county where the facility is located.
    15  The application must contain a description of  the  defendant's  current
    16  mental condition, the past course of treatment, a history of the defend-
    17  ant's  conduct subsequent to [his] the defendant's commitment, a written
    18  service plan for continued treatment which shall include the information
    19  specified in subdivision (g) of section 29.15 of the mental hygiene law,
    20  and a detailed statement of the  extent  to  which  supervision  of  the
    21  defendant after release is proposed. The commissioner must give ten days
    22  written  notice to the district attorney, the defendant, counsel for the
    23  defendant, and the mental hygiene legal service. Upon  receipt  of  such
    24  application,  the court must promptly conduct a hearing to determine the
    25  defendant's present mental condition.   At such  hearing,  the  district
    26  attorney  must  establish  to  the  satisfaction  of  the court that the
    27  defendant has a dangerous mental disorder or is  mentally  ill.  If  the
    28  court  finds that the defendant has a dangerous mental disorder, it must
    29  deny the application for a release order. If the court  finds  that  the
    30  defendant does not have a dangerous mental disorder but is mentally ill,
    31  it  must  issue a transfer order pursuant to subdivision [eleven] ten of
    32  this section if the defendant is then confined in a secure facility.  If
    33  the  court  finds  that  the  defendant does not have a dangerous mental
    34  disorder and is not mentally ill, it  must  grant  the  application  and
    35  issue  a release order. A court must also issue a release order when, in
    36  connection with an application for a first retention order  pursuant  to
    37  subdivision  [eight]  seven  of  this  section or a second or subsequent
    38  retention order pursuant to subdivision [nine] eight of this section, it
    39  finds that the defendant does not have a dangerous mental  disorder  and
    40  is  not  mentally  ill.  Whenever a court issues a release order it must
    41  also issue an order of conditions. If the court has previously issued  a
    42  transfer  order and an order of conditions, it must issue a new order of
    43  conditions upon issuing a release order. The order of conditions  issued
    44  in  conjunction with a release order shall incorporate a written service
    45  plan prepared by a  psychiatrist  familiar  with  the  defendant's  case
    46  history and approved by the court, and shall contain any conditions that
    47  the court determines to be reasonably necessary or appropriate. It shall
    48  be the responsibility of the commissioner to determine that such defend-
    49  ant  is receiving the services specified in the written service plan and
    50  is complying with any conditions specified in such plan and the order of
    51  conditions.
    52    [13.] 12. Discharge order. The commissioner may apply for a  discharge
    53  order,  pursuant  to this subdivision, when a defendant has been contin-
    54  uously on an out-patient status for three years or more  pursuant  to  a
    55  release order, and the commissioner is of the view that the defendant no
    56  longer has a dangerous mental disorder and is no longer mentally ill and
        S. 3378                             9

     1  that  the  issuance  of  a discharge order is consistent with the public
     2  safety and welfare of the community and the defendant.  The  application
     3  for  a  discharge order may be made to the court that issued the release
     4  order,  or to a superior court in the county where the defendant is then
     5  residing. The commissioner must give ten  days  written  notice  to  the
     6  district  attorney,  the  defendant,  counsel for the defendant, and the
     7  mental hygiene legal service. Upon  receipt  of  such  application,  the
     8  court may, on its own motion, conduct a hearing to determine whether the
     9  application should be granted, and must conduct such hearing if a demand
    10  therefor  is  made  by  the  district attorney. The court must grant the
    11  application and issue a discharge order if  the  court  finds  that  the
    12  defendant has been continuously on an out-patient status for three years
    13  or more, that [he] the defendant does not have a dangerous mental disor-
    14  der  and  is  not  mentally  ill, and that the issuance of the discharge
    15  order is consistent with the public safety and welfare of the  community
    16  and the defendant.
    17    [14.] 13. Recommitment order. At any time during the period covered by
    18  an order of conditions an application may be made by the commissioner or
    19  the district attorney to the court that issued such order, or to a supe-
    20  rior  court  in  the  county where the defendant is then residing, for a
    21  recommitment order when the applicant is of the view that the  defendant
    22  has  a dangerous mental disorder. The applicant must give written notice
    23  of the application to the defendant, counsel for the defendant, and  the
    24  mental  hygiene  legal service, and if the applicant is the commissioner
    25  [he] the applicant must give such notice to the district attorney or  if
    26  the applicant is the district attorney [he] the applicant must give such
    27  notice  to  the commissioner. Upon receipt of such application the court
    28  must order the defendant to appear before it for a hearing to  determine
    29  if  the  defendant has a dangerous mental disorder. Such order may be in
    30  the form of a written notice, specifying the time and place  of  appear-
    31  ance,  served  personally  upon  the  defendant,  or mailed to [his] the
    32  defendant's last known address, as the court may direct.  If the defend-
    33  ant fails to appear in court as directed, the court [may] shall issue  a
    34  warrant to an appropriate peace officer directing [him] such peace offi-
    35  cer  to  take  the  defendant into custody and bring [him] the defendant
    36  before the court. In such circumstance, the  court  [may]  shall  direct
    37  that  the  defendant  be  confined in an appropriate institution located
    38  near the place where the court sits. The court must conduct a hearing to
    39  determine whether the defendant has a dangerous mental disorder. At such
    40  hearing, the applicant, whether [he] the applicant be  the  commissioner
    41  or the district attorney must establish to the satisfaction of the court
    42  that  the defendant has a dangerous mental disorder. If the applicant is
    43  the commissioner, the district attorney shall be entitled to appear  and
    44  present  evidence  at  such  hearing;  if  the applicant is the district
    45  attorney, the commissioner shall  be  entitled  to  appear  and  present
    46  evidence  at  such  hearing. If the court finds that the defendant has a
    47  dangerous mental disorder, it must issue a recommitment  order.  When  a
    48  defendant  is in the custody of the commissioner pursuant to a recommit-
    49  ment order, the procedures set forth in  subdivisions  seven  and  eight
    50  [and  nine]  of  this section for the issuance of retention orders shall
    51  govern the application for and the issuance of a first retention  order,
    52  a second retention order, and subsequent retention orders.
    53    [15.]  14.  Designation  of  psychiatric examiners. If, at any hearing
    54  conducted under this section to determine the defendant's present mental
    55  condition, the court is not satisfied with the findings of the psychiat-
    56  ric examiners, the court may direct the commissioner to designate one or
        S. 3378                            10

     1  more additional psychiatric examiners to conduct an examination  of  the
     2  defendant  and submit a report of their findings. In addition, the court
     3  may on its own motion, or upon request of a party, may designate one  or
     4  more  psychiatric examiners to examine the defendant and submit a report
     5  of their findings. The district attorney may apply to the court  for  an
     6  order directing that the defendant submit to an examination by a psychi-
     7  atric examiner designated by the district attorney, and such psychiatric
     8  examiner may testify at the hearing.
     9    [16.] 15. Rehearing and review. Any defendant who is in the custody of
    10  the commissioner pursuant to [a commitment order,] a retention order, or
    11  a recommitment order, if dissatisfied with such order, may, within thir-
    12  ty days after the making of such order, obtain a rehearing and review of
    13  the  proceedings  and of such order in accordance with the provisions of
    14  section 9.35 or 15.35 of the mental hygiene law.
    15    [17.] 16.  Rights  of  defendants.  Subject  to  the  limitations  and
    16  provisions  of this section, a defendant committed to the custody of the
    17  commissioner pursuant to this section shall have the rights  granted  to
    18  patients under the mental hygiene law.
    19    [18.]  17.  Notwithstanding  any  other  provision  of  law, no person
    20  confined by reason  of  a  [commitment  order,]  recommitment  order  or
    21  retention  order  to  a  secure  facility  may be discharged or released
    22  unless the commissioner shall deliver written notice, at least four days
    23  excluding Saturdays, Sundays and holidays, in advance of such  discharge
    24  or release to all of the following:
    25    (a) the district attorney.
    26    (b) the police department having jurisdiction of the area to which the
    27  defendant is to be discharged or released.
    28    (c) any other person the court may designate.
    29    The notices required by this subdivision shall be given by the facili-
    30  ty staff physician who was treating the defendant or, if unavailable, by
    31  the  defendant's  treatment  team  leader, but if neither is immediately
    32  available, notice must be given by some other  member  of  the  clinical
    33  staff of the facility. Such notice must be given by any means reasonably
    34  calculated to give prompt actual notice.
    35    [19.]  18. Escape from custody; notice requirements. If a defendant is
    36  in the custody of the commissioner pursuant to  an  order  issued  under
    37  this  section, and such defendant escapes from custody, immediate notice
    38  of such escape shall be given by the department facility staff  to:  (a)
    39  the  district  attorney, (b) the superintendent of state police, (c) the
    40  sheriff of the county where the escape occurred, (d) the police  depart-
    41  ment  having jurisdiction of the area where the escape occurred, (e) any
    42  person the facility staff believes to be in  danger,  and  (f)  any  law
    43  enforcement  agency  and any person the facility staff believes would be
    44  able to apprise such endangered person that the  defendant  has  escaped
    45  from  the  facility.  Such notice shall be given as soon as the facility
    46  staff know that the defendant has escaped from the  facility  and  shall
    47  include  such  information as will adequately identify the defendant and
    48  the person or persons believed to be in danger and  the  nature  of  the
    49  danger.  The  notices required by this subdivision shall be given by the
    50  facility staff physician who was treating the defendant or, if  unavail-
    51  able,  by the defendant's treatment team leader, but if neither is imme-
    52  diately available, notice must be given by  some  other  member  of  the
    53  clinical  staff  of the facility. Such notice must be given by any means
    54  reasonably calculated to give prompt actual notice. The defendant may be
    55  apprehended, restrained, transported to, and returned  to  the  facility
    56  from which [he] the defendant escaped by any peace officer, and it shall
        S. 3378                            11

     1  be  the  duty of the officer to assist any representative of the commis-
     2  sioner to take the defendant into  custody  upon  the  request  of  such
     3  representative.
     4    [20.]  19.  Required  affidavit.  No  application  may  be made by the
     5  commissioner under this section without an accompanying  affidavit  from
     6  at  least one psychiatric examiner supportive of relief requested in the
     7  application, which affidavit shall be served on all parties entitled  to
     8  receive  the  notice  of application. Such affidavit shall set forth the
     9  defendant's clinical diagnosis, a detailed analysis of [his or her]  the
    10  defendant's  mental  condition  which caused the psychiatric examiner to
    11  formulate an opinion, and the opinion of the psychiatric  examiner  with
    12  respect to the defendant. Any application submitted without the required
    13  affidavit shall be dismissed by the court.
    14    [21.]  20. Appeals. (a) A party to proceedings conducted in accordance
    15  with the provisions of this section may take an appeal to an  intermedi-
    16  ate appellate court by permission of the intermediate appellate court as
    17  follows:
    18    (i)  the  commissioner  may  appeal  from any release order, retention
    19  order, transfer order, discharge order, order of conditions,  or  recom-
    20  mitment order, for which [he] the commissioner has not applied;
    21    (ii)  a defendant, or the mental hygiene legal service on [his or her]
    22  the  defendant's  behalf,  may  appeal  from  any  [commitment   order,]
    23  retention order, recommitment order, or, if the defendant has obtained a
    24  rehearing and review of any such order pursuant to subdivision [sixteen]
    25  fifteen  of  this section, from an order, not otherwise appealable as of
    26  right, issued in accordance with the provisions of section 9.35 or 15.35
    27  of the mental hygiene law  authorizing  continued  retention  under  the
    28  original  order, provided, however, that a defendant who takes an appeal
    29  from a [commitment order,] retention order, or  recommitment  order  may
    30  not subsequently obtain a rehearing and review of such order pursuant to
    31  subdivision [sixteen] fifteen of this section;
    32    (iii)  the district attorney may appeal from any release order, trans-
    33  fer order, discharge order, order  of  conditions,  furlough  order,  or
    34  order  denying  an  application  for a recommitment order which [he] the
    35  district attorney opposed.
    36    (b) An aggrieved party may appeal from a final order of the intermedi-
    37  ate appellate court to the court of appeals by permission of the  inter-
    38  mediate  appellate  court  granted  before  application  to the court of
    39  appeals, or by permission of the court of appeals upon  refusal  by  the
    40  intermediate appellate court or upon direct application.
    41    (c)  An  appeal  taken under this subdivision shall be deemed civil in
    42  nature, and shall be governed by the laws and rules applicable to  civil
    43  appeals;  provided, however, that a stay of the order appealed from must
    44  be obtained in accordance with the provisions of paragraph (d)  [hereof]
    45  of this subdivision.
    46    (d)  The  court  from  or  to  which  an  appeal is taken may stay all
    47  proceedings to enforce the order appealed  from  pending  an  appeal  or
    48  determination  on  a  motion  for  permission  to appeal, or may grant a
    49  limited stay, except that only the court to which an appeal is taken may
    50  vacate, limit, or  modify  a  stay  previously  granted.  If  the  order
    51  appealed  from is affirmed or modified, the stay shall continue for five
    52  days after service upon the appellant of  the  order  of  affirmance  or
    53  modification  with  notice of its entry in the court to which the appeal
    54  was taken. If a motion is made for permission to  appeal  from  such  an
    55  order,  before  the  expiration of the five days, the stay, or any other
        S. 3378                            12

     1  stay granted pending determination  of  the  motion  for  permission  to
     2  appeal, shall:
     3    (i)  if  the  motion  is  granted,  continue until five days after the
     4  appeal is determined; or
     5    (ii) if the motion is denied,  continue  until  five  days  after  the
     6  movant is served with the order of denial with notice of its entry.
     7    [22.]  21. Any special order of conditions issued pursuant to subpara-
     8  graph (i) or (ii) of paragraph (o) of subdivision one  of  this  section
     9  shall  bear  in  a  conspicuous manner the term "special order of condi-
    10  tions" and a copy shall be filed by the clerk  of  the  court  with  the
    11  sheriff's  office in the county in which anyone intended to be protected
    12  by such special order resides, or, if anyone intended to be protected by
    13  such special order resides within a city, with the police department  of
    14  such  city.    The  absence  of  language specifying that the order is a
    15  "special order of conditions" shall not  affect  the  validity  of  such
    16  order.  A copy of such special order of conditions may from time to time
    17  be filed by the clerk of the court with any other police  department  or
    18  sheriff's  office  having  jurisdiction of the residence, work place, or
    19  school of anyone intended to be protected by such special order. A  copy
    20  of  such  special  order  may  also  be  filed  by anyone intended to be
    21  protected by such provisions at the  appropriate  police  department  or
    22  sheriff's  office having jurisdiction. Any subsequent amendment or revo-
    23  cation of such special order may be filed in the same manner as provided
    24  in this subdivision.   Such special order of  conditions  shall  plainly
    25  state the date that the order expires.
    26    §  2. This act shall take effect on the first of January next succeed-
    27  ing the date on which it shall have become a  law  and  shall  apply  to
    28  criminal offenses committed on or after such date.