Bill Text: NY S05516 | 2019-2020 | General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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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-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________
                                          5516
                               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
        AN ACT to amend the family court act, 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. The  court  shall  order  that  two
    12  qualified  psychiatric  examiners  as  defined  in  subdivision seven of
    13  section 730.10 of the criminal procedure law examine the  respondent  to
    14  determine if he or she is mentally ill, [mentally retarded or] intellec-
    15  tually or developmentally disabled.
    16    §  2.  Subdivision 4, paragraphs (a), (c) and (d) of subdivision 5 and
    17  subdivisions 6 and 7 of section 322.2 of the family court act,  subdivi-
    18  sions  4, 6 and 7 and paragraph (c) of subdivision 5 as added by chapter
    19  920 of the laws of 1982, paragraph (a) of subdivision 5  as  amended  by
    20  section  69 of part WWW of chapter 59 of the laws of 2017, and paragraph
    21  (d) of subdivision 5 as amended by chapter 41 of the laws of  2010,  are
    22  amended to read as follows:
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09846-01-9
        S. 5516                             2
     1    4. If the court finds that there is probable cause to believe that the
     2  respondent committed a misdemeanor, the respondent shall be committed to
     3  the  custody of the appropriate commissioner for a reasonable period not
     4  to exceed ninety days. The court shall dismiss the petition on the issu-
     5  ance  of  the  order of commitment and such dismissal shall constitute a
     6  bar to further prosecution of the charge or  charges  contained  in  the
     7  petition.
     8    (a)  If  the  court finds that there is probable cause to believe that
     9  the respondent committed a felony, it shall order the respondent commit-
    10  ted to the custody of the commissioner of mental health or  the  commis-
    11  sioner  of  the office for people with developmental disabilities for an
    12  initial period not to exceed one year  from  the  date  of  such  order.
    13  Unless  the  court specifies that such commitment shall be in a residen-
    14  tial facility, such commissioner having custody may arrange  for  treat-
    15  ment  in  an  appropriate  facility  or program, including an outpatient
    16  program, in accordance with subdivision (e) of section 7.09 or  subdivi-
    17  sion  (c) of section 13.09, as added by chapter 531 of the laws of 1979,
    18  respectively, of the mental hygiene law. Such  period  may  be  extended
    19  annually  upon  further  application  to  the  court by the commissioner
    20  having custody or his or her designee.   Such application must  be  made
    21  not more than sixty days prior to the expiration of such period on forms
    22  that  have  been prescribed by the chief administrator of the courts. At
    23  that time, the commissioner must give written notice of the  application
    24  to  the  respondent,  the  counsel  representing  the respondent and the
    25  mental hygiene legal service if  the  respondent  is  at  a  residential
    26  facility.  Upon  receipt  of  such application, the court must conduct a
    27  hearing to determine the issue of capacity. If, at the conclusion  of  a
    28  hearing conducted pursuant to this subdivision, the court finds that the
    29  respondent  is  no  longer incapacitated, he or she shall be returned to
    30  the family court for further proceedings pursuant to  this  article.  If
    31  the  court  is  satisfied  that the respondent continues to be incapaci-
    32  tated, the court shall authorize continued custody of the respondent  by
    33  the commissioner in a facility or program for a period not to exceed one
    34  year.  Such  extensions shall not continue beyond a reasonable period of
    35  time necessary to determine  whether  the  respondent  will  attain  the
    36  capacity  to proceed to a fact finding hearing in the foreseeable future
    37  but in no event shall continue beyond the respondent's eighteenth birth-
    38  day or, if the respondent was at least sixteen years of age when the act
    39  was committed, beyond the respondent's twenty-first birthday.
    40    (c) [If the court finds that there is probable cause to  believe  that
    41  the  respondent  has  committed a designated felony act, the court shall
    42  require that treatment be provided in a residential facility within  the
    43  appropriate office of the department of mental hygiene.
    44    (d)]  The  commissioner  shall  review the condition of the respondent
    45  within forty-five days after the respondent is committed to the  custody
    46  of  the commissioner. He or she shall make a second review within ninety
    47  days after the respondent is committed to his or her custody.  Thereaft-
    48  er,  he or she shall review the condition of the respondent every ninety
    49  days.  The respondent and the counsel for the respondent, shall be noti-
    50  fied of any such review and afforded an opportunity  to  be  heard.  The
    51  commissioner  having  custody  shall  apply  to  the  court for an order
    52  dismissing the petition whenever he or she determines that  there  is  a
    53  substantial probability that the respondent will continue to be incapac-
    54  itated  for  the foreseeable future. At the time of such application the
    55  commissioner must give written notice of the application to the respond-
    56  ent, the presentment agency and the mental hygiene legal service if  the
        S. 5516                             3
     1  respondent  is  at a residential facility. Upon receipt of such applica-
     2  tion, the court may on its own motion conduct  a  hearing  to  determine
     3  whether  there  is  substantial  probability  that  the  respondent will
     4  continue  to  be  incapacitated  for the foreseeable future, and it must
     5  conduct such hearing if a demand therefor is made by the  respondent  or
     6  the  mental  hygiene  legal  service  within ten days from the date that
     7  notice of the application was given to them. The respondent may apply to
     8  the court for an order of dismissal on the same ground.
     9    6. Any order pursuant to this section dismissing a petition shall  not
    10  preclude  an application for voluntary or involuntary care and treatment
    11  in a facility or program of the appropriate office of the department  of
    12  mental  hygiene  pursuant  to  the provisions of the mental hygiene law.
    13  Unless the respondent is admitted pursuant to such an application he  or
    14  she shall be released.
    15    7.  If the commissioner having custody of a child committed to a resi-
    16  dential facility pursuant to subdivision four or paragraph (a) of subdi-
    17  vision five of this section determines at any time that such  child  may
    18  be  more  appropriately  treated  in a non-residential facility or on an
    19  outpatient basis, he or she may  arrange  for  such  treatment.  If  the
    20  commissioner having custody of a child committed to a residential facil-
    21  ity pursuant to paragraph (c) of subdivision five of this section deter-
    22  mines at any time that such child may be more appropriately treated in a
    23  non-residential  facility or on an outpatient basis, he or she may peti-
    24  tion the family court for a hearing. If the court finds after a  hearing
    25  that  treatment  in a non-residential facility or on an outpatient basis
    26  would be more appropriate for such child, the  court  shall  modify  its
    27  order  of  commitment to [authorize] direct the commissioner to transfer
    28  [of such] the child to a non-residential facility or arrange  outpatient
    29  treatment.  Application  for  [such]  a hearing to determine whether any
    30  child committed to a residential facility  under  subdivisions  four  or
    31  five of this section may be more appropriately treated in a non-residen-
    32  tial facility or on an outpatient basis may be made by the respondent.
    33    §  3.  This  act shall take effect on the ninetieth day after it shall
    34  have become a law; provided, however, that the amendments made to  para-
    35  graph (a) of subdivision 5 of section 322.2 of the family court act made
    36  by section two of this act shall take effect on the same date and in the
    37  same manner as section 69 of Part WWW of chapter 59 of the laws of 2017,
    38  takes effect.