§ 730.50 — Fitness to proceed; indictment

New York § 730.50

• Jurisdiction: New York
• Law CPL: Criminal Procedure
• Title U: Special Proceedings Which Replace, Suspend or Abate Criminal Actions
• Part 3: Special Proceedings and Miscellaneous Procedures
• Art. 730: Mental Disease or Defect Excluding Fitness to Proceed

Text

§ 730.50 Fitness to proceed; indictment.\n 1. When a superior court, following a hearing conducted pursuant to\nsubdivision three or four of section 730.30 of this article, is\nsatisfied that the defendant is not an incapacitated person, the\ncriminal action against him or her must proceed. If it is satisfied that\nthe defendant is an incapacitated person, or if no motion for such a\nhearing is made, it must adjudicate him or her an incapacitated person,\nand must issue a final order of observation or an order of commitment.\nWhen the indictment does not charge a felony or when the defendant has\nbeen convicted of an offense other than a felony, such court (a) must\nissue a final order of observation committing the defendant to the\ncustody of the commissioner for care and treatment in an appropriate\ninstitution for a period not to exceed ninety days from the date of such\norder, provided, however, that the commissioner may designate an\nappropriate hospital for placement of a defendant for whom a final order\nof observation has been issued, where such hospital is licensed by the\noffice of mental health and has agreed to accept, upon referral by the\ncommissioner, defendants subject to final orders of observation issued\nunder this subdivision, and (b) must dismiss the indictment filed in\nsuch court against the defendant, and such dismissal constitutes a bar\nto any further prosecution of the charge or charges contained in such\nindictment. Upon the issuance of a final order of observation, the\ndistrict attorney shall immediately transmit to the commissioner, in a\nmanner intended to protect the confidentiality of the information, a\nlist of names and contact information of persons who may reasonably be\nexpected to be the victim of any assault or any violent felony offense,\nas defined in the penal law, or any offense listed in section 530.11 of\nthis chapter which would be carried out by the committed person;\nprovided that the person who reasonably may be expected to be a victim\ndoes not need to be a member of the same family or household as the\ncommitted person. When the indictment charges a felony or when the\ndefendant has been convicted of a felony, it must issue an order of\ncommitment committing the defendant to the custody of the commissioner\nfor care and treatment in an appropriate institution or, upon the\nconsent of the district attorney, committing him or her to the custody\nof the commissioner for care and treatment on an out-patient basis, for\na period not to exceed one year from the date of such order. Upon the\nissuance of an order of commitment, the court must exonerate the\ndefendant's bail if he or she was previously at liberty on bail;\nprovided, however, that exoneration of bail is not required when a\ndefendant is committed to the custody of the commissioner for care and\ntreatment on an out-patient basis. When the defendant is in the custody\nof the commissioner pursuant to a final order of observation, the\ncommissioner or his or her designee, which may include the director of\nan appropriate institution, immediately upon the discharge of the\ndefendant, must certify to such court that he or she has complied with\nthe notice provisions set forth in paragraph (a) of subdivision six of\nsection 730.60 of this article.\n 2. When a defendant is in the custody of the commissioner immediately\nprior to the expiration of the period prescribed in a temporary order of\ncommitment and the superintendent of the institution wherein the\ndefendant is confined is of the opinion that the defendant continues to\nbe an incapacitated person, such superintendent must apply to the court\nthat issued such order for an order of retention. Such application must\nbe made within sixty days prior to the expiration of such period on\nforms that have been jointly adopted by the judicial conference and the\ncommissioner. The superintendent must give written notice of the\napplication to the defendant and to the mental hygiene legal service.\nUpon receipt of such application, the court may, on its own motion,\nconduct a hearing to determine the issue of capacity, and it must\nconduct such hearing if a demand therefor is made by the defendant or\nthe mental hygiene legal service within ten days from the date that\nnotice of the application was given them. If, at the conclusion of a\nhearing conducted pursuant to this subdivision, the court is satisfied\nthat the defendant is no longer an incapacitated person, the criminal\naction against him must proceed. If it is satisfied that the defendant\ncontinues to be an incapacitated person, or if no demand for a hearing\nis made, the court must adjudicate him an incapacitated person and must\nissue an order of retention which shall authorize continued custody of\nthe defendant by the commissioner for a period not to exceed one year.\n 3. When a defendant is in the custody of the commissioner immediately\nprior to the expiration of the period prescribed in the first order of\nretention, the procedure set forth in subdivision two shall govern the\napplication for and the issuance of any subsequent order of retention,\nexcept that any subsequent orders of retention must be for periods not\nto exceed two years each; provided, however, that the aggregate of the\nperiods prescribed in the temporary order of commitment, the first order\nof retention and all subsequent orders of retention must not exceed\ntwo-thirds of the authorized maximum term of imprisonment for the\nhighest class felony charged in the indictment or for the highest class\nfelony of which he was convicted.\n 4. When a defendant is in the custody of the commissioner at the\nexpiration of the authorized period prescribed in the last order of\nretention, the criminal action pending against him in the superior court\nthat issued such order shall terminate for all purposes, and the\ncommissioner must promptly certify to such court and to the appropriate\ndistrict attorney that the defendant was in his custody on such\nexpiration date. Upon receipt of such certification, the court must\ndismiss the indictment, and such dismissal constitutes a bar to any\nfurther prosecution of the charge or charges contained in such\nindictment.\n 5. When, on the effective date of this subdivision, any defendant\nremains in the custody of the commissioner pursuant to an order issued\nunder former code of criminal procedure section six hundred sixty-two-b,\nthe superintendent or director of the institution where such defendant\nis confined shall, if he believes that the defendant continues to be an\nincapacitated person, apply forthwith to a court of record in the county\nwhere the institution is located for an order of retention. The\nprocedures for obtaining any order pursuant to this subdivision shall be\nin accordance with the provisions of subdivisions two, three and four of\nthis section, except that the period of retention pursuant to the first\norder obtained under this subdivision shall be for not more than one\nyear and any subsequent orders of retention must be for periods not to\nexceed two years each; provided, however, that the aggregate of the time\nspent in the custody of the commissioner pursuant to any order issued in\naccordance with the provisions of former code of criminal procedure\nsection six hundred sixty-two-b and the periods prescribed by the first\norder obtained under this subdivision and all subsequent orders of\nretention must not exceed two-thirds of the authorized maximum term of\nimprisonment for the highest class felony charged in the indictment or\nthe highest class felony of which he was convicted.\n