Bill Text: NY S05516 | 2019-2020 | General Assembly | Amended
Bill Title: Relates to the determination of capacity to stand trial in juvenile delinquency proceedings in family court.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Passed) 2019-12-06 - SIGNED CHAP.602 [S05516 Detail]
Download: New_York-2019-S05516-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 5516--B Cal. No. 766 2019-2020 Regular Sessions IN SENATE May 3, 2019 ___________ Introduced by Sen. MONTGOMERY -- (at request of the Office of Court Administration) -- read twice and ordered printed, and when printed to be committed to the Committee on Children and Families -- reported favorably from said committee, ordered to first and second report, amended on second report, ordered to a third reading, and to be reprinted as amended, retaining its place in the order of third read- ing -- amended and ordered reprinted, retaining its place in the order of third reading AN ACT to amend the family court act and the mental hygiene law, in relation to the determination of capacity to stand trial in juvenile delinquency proceedings in family court The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision 1 of section 322.1 of the family court act, as 2 amended by chapter 566 of the laws of 1994, is amended to read as 3 follows: 4 1. At any proceeding under this article, the court must issue an order 5 that the respondent be examined as provided herein when it is of the 6 opinion that the respondent may be an incapacitated person. Notwith- 7 standing the provisions of this or any other law, the court may direct 8 that the examination be conducted on an outpatient basis [when]. If the 9 respondent is [not] in custody at the time the court issues an order of 10 examination, the examination may be conducted at the place where the 11 respondent is being held in custody so long as no reasonable alternative 12 outpatient setting is available. The court shall order that two quali- 13 fied psychiatric examiners as defined in subdivision seven of section 14 730.10 of the criminal procedure law examine the respondent to determine 15 if he [is mentally ill, mentally retarded or developmentally disabled] 16 or she may be diagnosed as a person with mental illness or an intellec- 17 tual or developmental disability. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD09846-04-9S. 5516--B 2 1 § 2. Subdivision 4, paragraphs (a), (c) and (d) of subdivision 5 and 2 subdivisions 6 and 7 of section 322.2 of the family court act, subdivi- 3 sions 4, 6 and 7 and paragraph (c) of subdivision 5 as added by chapter 4 920 of the laws of 1982, paragraph (a) of subdivision 5 as amended by 5 section 69 of part WWW of chapter 59 of the laws of 2017, and paragraph 6 (d) of subdivision 5 as amended by chapter 41 of the laws of 2010, are 7 amended to read as follows: 8 4. If the court finds that there is probable cause to believe that the 9 respondent committed a misdemeanor, the respondent shall be committed to 10 the custody of the appropriate commissioner for a reasonable period not 11 to exceed ninety days. Unless the court specifies that such commitment 12 shall be in a residential facility, such commissioner having custody may 13 arrange for treatment in an appropriate facility or program, including 14 an outpatient program, in accordance with subdivision (e) of section 15 7.09 or subdivision (c-1) of section 13.09 respectively, of the mental 16 hygiene law. The court shall dismiss the petition on the issuance of the 17 order of commitment and such dismissal shall constitute a bar to further 18 prosecution of the charge or charges contained in the petition. 19 (a) If the court finds that there is probable cause to believe that 20 the respondent committed a felony, it shall order the respondent commit- 21 ted to the custody of the commissioner of mental health or the commis- 22 sioner of the office for people with developmental disabilities for an 23 initial period not to exceed one year from the date of such order. 24 Unless the court specifies that such commitment shall be in a residen- 25 tial facility, such commissioner having custody may arrange for treat- 26 ment in an appropriate facility or program, including an outpatient 27 program, in accordance with subdivision (e) of section 7.09 or subdivi- 28 sion (c-1) of section 13.09 respectively, of the mental hygiene law. 29 Such period may be extended annually upon further application to the 30 court by the commissioner having custody or his or her designee. Such 31 application must be made not more than sixty days prior to the expira- 32 tion of such period on forms that have been prescribed by the chief 33 administrator of the courts. At that time, the commissioner must give 34 written notice of the application to the respondent, the counsel repres- 35 enting the respondent and the mental hygiene legal service if the 36 respondent is at a residential facility. Upon receipt of such applica- 37 tion, the court must conduct a hearing to determine the issue of capaci- 38 ty. If, at the conclusion of a hearing conducted pursuant to this subdi- 39 vision, the court finds that the respondent is no longer incapacitated, 40 he or she shall be returned to the family court for further proceedings 41 pursuant to this article. If the court is satisfied that the respondent 42 continues to be incapacitated, the court shall authorize continued 43 custody of the respondent by the commissioner in a facility or program 44 for a period not to exceed one year. Such extensions shall not continue 45 beyond a reasonable period of time necessary to determine whether the 46 respondent will attain the capacity to proceed to a fact finding hearing 47 in the foreseeable future but in no event shall continue beyond the 48 respondent's eighteenth birthday or, if the respondent was at least 49 sixteen years of age when the act was committed, beyond the respondent's 50 twenty-first birthday. 51 (c) If the court finds that there is probable cause to believe that 52 the respondent has committed a designated felony act, the court shall 53 require that treatment be provided in a residential facility within the 54 appropriate office of the department of mental hygiene or in an outpa- 55 tient facility if the commissioner having custody of the child petitionsS. 5516--B 3 1 the court pursuant to subdivision seven of this section and such court 2 approves. 3 (d) The commissioner shall review the condition of the respondent 4 within forty-five days after the respondent is committed to the custody 5 of the commissioner. He or she shall make a second review within ninety 6 days after the respondent is committed to his or her custody. Thereaft- 7 er, he or she shall review the condition of the respondent every ninety 8 days. The respondent and the counsel for the respondent, shall be noti- 9 fied of any such review and afforded an opportunity to be heard. The 10 commissioner having custody shall apply to the court for an order 11 dismissing the petition whenever he or she determines that there is a 12 substantial probability that the respondent will continue to be incapac- 13 itated for the foreseeable future. At the time of such application the 14 commissioner must give written notice of the application to the respond- 15 ent, the presentment agency and the mental hygiene legal service if the 16 respondent is at a residential facility. Upon receipt of such applica- 17 tion, the court may on its own motion conduct a hearing to determine 18 whether there is substantial probability that the respondent will 19 continue to be incapacitated for the foreseeable future, and it must 20 conduct such hearing if a demand therefor is made by the respondent or 21 the mental hygiene legal service within ten days from the date that 22 notice of the application was given to them. The respondent may apply to 23 the court for an order of dismissal on the same ground. 24 6. Any order pursuant to this section dismissing a petition shall not 25 preclude an application for voluntary or involuntary care and treatment 26 in a facility or program of the appropriate office of the department of 27 mental hygiene pursuant to the provisions of the mental hygiene law. 28 Unless the respondent is admitted pursuant to such an application he or 29 she shall be released. 30 7. If the commissioner having custody of a child committed to a resi- 31 dential facility pursuant to subdivision four or paragraph (a) of subdi- 32 vision five of this section determines at any time that such child may 33 be more appropriately treated in a non-residential facility or on an 34 outpatient basis, he or she may arrange for such treatment. If the 35 commissioner having custody of a child committed to a residential facil- 36 ity pursuant to paragraph (c) of subdivision five of this section deter- 37 mines at any time that such child may be more appropriately treated in a 38 non-residential facility or on an outpatient basis, he or she may peti- 39 tion the family court for a hearing. If the court finds after a hearing 40 that treatment in a non-residential facility or on an outpatient basis 41 would be more appropriate for such child, the court shall modify its 42 order of commitment to [authorize] direct the commissioner to transfer 43 [of such] the child to a non-residential facility or arrange outpatient 44 treatment. Application for [such] a hearing to determine whether any 45 child committed to a residential facility under subdivisions four or 46 five of this section may be more appropriately treated in a non-residen- 47 tial facility or on an outpatient basis may be made by the respondent. 48 § 3. Subdivision (e) of section 7.09 of the mental hygiene law, as 49 amended by chapter 920 of the laws of 1982 and as relettered by chapter 50 509 of the laws of 1988, is amended to read as follows: 51 (e) The commissioner shall accept custody of a juvenile under an order 52 issued by the family court pursuant to the provisions of section 322.2 53 of the family court act. He or she may place the juvenile in any appro- 54 priate facility or program under his or her jurisdiction, but he or she 55 shall comply with any order requiring treatment in a residential facili- 56 ty made pursuant to paragraph (c) of subdivision five of section 322.2S. 5516--B 4 1 of the family court act, unless, after a hearing held in accordance with 2 subdivision seven of section 322.2 of the family court act, the court 3 modifies the order. In determining the appropriate placement, the 4 commissioner shall be furnished with a copy of the findings of the court 5 pursuant to subdivision four or five of section 322.2 of the family 6 court act and shall consider the nature of the act alleged in such find- 7 ings and the level of the juvenile's mental disability. The commissioner 8 shall review the condition of the juvenile in accordance with the 9 requirements of section 322.2 of the family court act and he or she may 10 petition the family court at any time for any relief authorized by such 11 section. 12 § 4. Subdivision (c) of section 13.09 of the mental hygiene law, as 13 amended by chapter 920 of the laws of 1982, is amended to read as 14 follows: 15 [(c)] (c-1) The commissioner shall accept custody of a juvenile under 16 an order issued by the family court pursuant to the provisions of 17 section 322.2 of the family court act. He or she may place the juvenile 18 in any appropriate facility or program under his or her jurisdiction, 19 but he or she shall comply with any order requiring treatment in a resi- 20 dential facility made pursuant to paragraph (c) of subdivision five of 21 section 322.2 of the family court act, unless, after a hearing held in 22 accordance with subdivision seven of section 322.2 of the family court 23 act, the court modifies the order. In determining the appropriate place- 24 ment, the commissioner shall be furnished with a copy of the findings of 25 the court pursuant to subdivision four or five of section 322.2 of the 26 family court act and shall consider the nature of the act alleged in 27 such findings and the level of the juvenile's mental disability. The 28 commissioner shall review the condition of the juvenile in accordance 29 with the requirements of section 322.2 of the family court act and he or 30 she may petition the family court at any time for any relief authorized 31 by such section. 32 § 5. This act shall take effect on the ninetieth day after it shall 33 have become a law; provided, however, that the amendments made to para- 34 graph (a) of subdivision 5 of section 322.2 of the family court act made 35 by section two of this act shall take effect on the same date and in the 36 same manner as section 69 of part WWW of chapter 59 of the laws of 2017, 37 takes effect.
