Bill Text: NY S05516 | 2019-2020 | General Assembly | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
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
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--A 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 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. 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 diagnosed to be mentally ill, [mentally15retarded or] intellectually 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 EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD09846-03-9S. 5516--A 2 1 section 69 of part WWW of chapter 59 of the laws of 2017, and paragraph 2 (d) of subdivision 5 as amended by chapter 41 of the laws of 2010, are 3 amended to read as follows: 4 4. If the court finds that there is probable cause to believe that the 5 respondent committed a misdemeanor, the respondent shall be committed to 6 the custody of the appropriate commissioner for a reasonable period not 7 to exceed ninety days. Unless the court specifies that such commitment 8 shall be in a residential facility, such commissioner having custody may 9 arrange for treatment in an appropriate facility or program, including 10 an outpatient program, in accordance with subdivision (e) of section 11 7.09 or subdivision (c-1) of section 13.09 respectively, of the mental 12 hygiene law. The court shall dismiss the petition on the issuance of the 13 order of commitment and such dismissal shall constitute a bar to further 14 prosecution of the charge or charges contained in the petition. 15 (a) If the court finds that there is probable cause to believe that 16 the respondent committed a felony, it shall order the respondent commit- 17 ted to the custody of the commissioner of mental health or the commis- 18 sioner of the office for people with developmental disabilities for an 19 initial period not to exceed one year from the date of such order. 20 Unless the court specifies that such commitment shall be in a residen- 21 tial facility, such commissioner having custody may arrange for treat- 22 ment in an appropriate facility or program, including an outpatient 23 program, in accordance with subdivision (e) of section 7.09 or subdivi- 24 sion (c-1) of section 13.09 respectively, of the mental hygiene law. 25 Such period may be extended annually upon further application to the 26 court by the commissioner having custody or his or her designee. Such 27 application must be made not more than sixty days prior to the expira- 28 tion of such period on forms that have been prescribed by the chief 29 administrator of the courts. At that time, the commissioner must give 30 written notice of the application to the respondent, the counsel repres- 31 enting the respondent and the mental hygiene legal service if the 32 respondent is at a residential facility. Upon receipt of such applica- 33 tion, the court must conduct a hearing to determine the issue of capaci- 34 ty. If, at the conclusion of a hearing conducted pursuant to this subdi- 35 vision, the court finds that the respondent is no longer incapacitated, 36 he or she shall be returned to the family court for further proceedings 37 pursuant to this article. If the court is satisfied that the respondent 38 continues to be incapacitated, the court shall authorize continued 39 custody of the respondent by the commissioner in a facility or program 40 for a period not to exceed one year. Such extensions shall not continue 41 beyond a reasonable period of time necessary to determine whether the 42 respondent will attain the capacity to proceed to a fact finding hearing 43 in the foreseeable future but in no event shall continue beyond the 44 respondent's eighteenth birthday or, if the respondent was at least 45 sixteen years of age when the act was committed, beyond the respondent's 46 twenty-first birthday. 47 (c) [If the court finds that there is probable cause to believe that48the respondent has committed a designated felony act, the court shall49require that treatment be provided in a residential facility within the50appropriate office of the department of mental hygiene.51(d)] The commissioner shall review the condition of the respondent 52 within forty-five days after the respondent is committed to the custody 53 of the commissioner. He or she shall make a second review within ninety 54 days after the respondent is committed to his or her custody. Thereaft- 55 er, he or she shall review the condition of the respondent every ninety 56 days. The respondent and the counsel for the respondent, shall be noti-S. 5516--A 3 1 fied of any such review and afforded an opportunity to be heard. The 2 commissioner having custody shall apply to the court for an order 3 dismissing the petition whenever he or she determines that there is a 4 substantial probability that the respondent will continue to be incapac- 5 itated for the foreseeable future. At the time of such application the 6 commissioner must give written notice of the application to the respond- 7 ent, the presentment agency and the mental hygiene legal service if the 8 respondent is at a residential facility. Upon receipt of such applica- 9 tion, the court may on its own motion conduct a hearing to determine 10 whether there is substantial probability that the respondent will 11 continue to be incapacitated for the foreseeable future, and it must 12 conduct such hearing if a demand therefor is made by the respondent or 13 the mental hygiene legal service within ten days from the date that 14 notice of the application was given to them. The respondent may apply to 15 the court for an order of dismissal on the same ground. 16 6. Any order pursuant to this section dismissing a petition shall not 17 preclude an application for voluntary or involuntary care and treatment 18 in a facility or program of the appropriate office of the department of 19 mental hygiene pursuant to the provisions of the mental hygiene law. 20 Unless the respondent is admitted pursuant to such an application he or 21 she shall be released. 22 7. If the commissioner having custody of a child committed to a resi- 23 dential facility pursuant to subdivision four or paragraph (a) of subdi- 24 vision five of this section determines at any time that such child may 25 be more appropriately treated in a non-residential facility or on an 26 outpatient basis, he or she may arrange for such treatment. If the 27 commissioner having custody of a child committed to a residential facil- 28 ity pursuant to subdivisions four or five of this section determines at 29 any time that such child may be more appropriately treated in a non-re- 30 sidential facility or on an outpatient basis, he or she may petition the 31 family court for a hearing. If the court finds after a hearing that 32 treatment in a non-residential facility or on an outpatient basis would 33 be more appropriate for such child, the court shall modify its order of 34 commitment to [authorize] direct the commissioner to transfer [of such] 35 the child to a non-residential facility or arrange outpatient treatment. 36 Application for [such] a hearing to determine whether any child commit- 37 ted to a residential facility under subdivisions four or five of this 38 section may be more appropriately treated in a non-residential facility 39 or on an outpatient basis may be made by the respondent. 40 § 3. Subdivision (e) of section 7.09 of the mental hygiene law, as 41 amended by chapter 920 of the laws of 1982 and as relettered by chapter 42 509 of the laws of 1988, is amended to read as follows: 43 (e) The commissioner shall accept custody of a juvenile under an order 44 issued by the family court pursuant to the provisions of section 322.2 45 of the family court act. He or she may place the juvenile in any appro- 46 priate facility or program under his or her jurisdiction, but he or she 47 shall comply with any order requiring treatment in a residential facili- 48 ty made pursuant to [paragraph (c) of] subdivision four or five of 49 section 322.2 of the family court act. In determining the appropriate 50 placement, the commissioner shall be furnished with a copy of the find- 51 ings of the court pursuant to subdivision four or five of section 322.2 52 of the family court act and shall consider the nature of the act alleged 53 in such findings and the level of the juvenile's mental disability. The 54 commissioner shall review the condition of the juvenile in accordance 55 with the requirements of section 322.2 of the family court act and he orS. 5516--A 4 1 she may petition the family court at any time for any relief authorized 2 by such section. 3 § 4. Subdivision (c) of section 13.09 of the mental hygiene law, as 4 amended by chapter 920 of the laws of 1982, is amended to read as 5 follows: 6 [(c)] (c-1) The commissioner shall accept custody of a juvenile under 7 an order issued by the family court pursuant to the provisions of 8 section 322.2 of the family court act. He or she may place the juvenile 9 in any appropriate facility or program under his or her jurisdiction, 10 but he or she shall comply with any order requiring treatment in a resi- 11 dential facility made pursuant to [paragraph (c) of] subdivision four or 12 five of section 322.2 of the family court act. In determining the appro- 13 priate placement, the commissioner shall be furnished with a copy of the 14 findings of the court pursuant to subdivision four or five of section 15 322.2 of the family court act and shall consider the nature of the act 16 alleged in such findings and the level of the juvenile's mental disabil- 17 ity. The commissioner shall review the condition of the juvenile in 18 accordance with the requirements of section 322.2 of the family court 19 act and he or she may petition the family court at any time for any 20 relief authorized by such section. 21 § 5. This act shall take effect on the ninetieth day after it shall 22 have become a law; provided, however, that the amendments made to para- 23 graph (a) of subdivision 5 of section 322.2 of the family court act made 24 by section two of this act shall take effect on the same date and in the 25 same manner as section 69 of part WWW of chapter 59 of the laws of 2017, 26 takes effect.
