§ 656 — Proceeding when person under sentence of death may be incompetent

§ 656. Proceeding when person under sentence of death may be\nincompetent. 1. The state may not execute an inmate who is incompetent.\nAn inmate is "incompetent" when, as a result of mental disease or\ndefect, he lacks the mental capacity to understand the nature and effect\nof the death penalty and why it is to be carried out.\n 2. Upon the filing of a petition in the supreme court in either the\ncounty in which an inmate sentenced to death is confined or in the\ncounty in which the inmate was prosecuted alleging that the inmate is\nincompetent, the court shall issue an order staying the execution if and\nto the extent a stay is necessary to permit determination of the\npetition. Upon application of either the inmate's counsel or the\ndistrict attorney the petition may be transferred to the court in which\nthe inmate was convicted unless such transfer would be unduly burdensome\nor impracticable. Promptly upon filing the petition, the court shall\nappoint a commission of three psychiatric examiners, hereinafter\nreferred to as "the psychiatric commissioners," to inquire into the\ninmate's competence and report to the court as to the inmate's\ncompetence. The psychiatric commissioners shall be impartial and must be\nqualified psychiatrists or certified psychologists. Before commencing an\ninquiry, the psychiatric commissioners must take the oath prescribed in\nrule forty-three hundred fifteen of the civil practice law and rules to\nbe taken by referees. The petition may be filed by the inmate, the\ninmate's counsel, an employee of the department, the inmate's legal\nguardian, a member of such inmate's immediate family or, in the event\nthat the inmate does not have regular contact with a member of his or\nher immediate family, a bona fide friend who has maintained regular\ncontact with the inmate. The petition must be accompanied by an\naffidavit of at least one qualified psychiatrist or certified\npsychologist who, based at least in part on personal examination,\nattests that in the psychiatrist's or psychologist's professional\nopinion the inmate is incompetent and lists the pertinent facts\ntherefor. For purposes of this section the terms "qualified\npsychiatrist" and "certified psychologist" have the meaning set forth in\nsection 730.10 of the criminal procedure law.\n 3. The petition shall be served upon either the district attorney who\nprosecuted the inmate or upon the district attorney for the county in\nwhich the inmate is confined. If the petition is served upon the\ndistrict attorney for the county in which the inmate is confined, the\ncourt shall promptly notify the district attorney who prosecuted the\ninmate. Immediately upon appointing the psychiatric commissioners, the\ncourt shall direct that an examination of the convicted person promptly\ntake place with all three of the psychiatric commissioners present at\nthe same time. The court shall also direct, upon application of the\ninmate or the district attorney, that the inmate be examined by a\nqualified psychiatrist or certified psychologist designated by the\ninmate or the district attorney. Counsel for the inmate and the district\nattorney shall have the right to be present at each such examination.\nUpon the filing of a petition pursuant to subdivision two of this\nsection, if the inmate does not have counsel and is financially unable\nto obtain counsel the court shall appoint competent counsel experienced\nin the trial of criminal matters to represent the inmate.\n 4. The psychiatric commissioners must receive and consider evidence\noffered by the inmate's counsel and the district attorney, including\nwritten submissions, testimony and expert psychiatric evidence. The\nproceeding before the psychiatric commissioners shall be conducted on\nthe record but need not be conducted in accordance with the rules\ngoverning the admission of evidence at trial, but counsel for the people\nand the inmate shall have the right to cross-examine witnesses.\n 5. When the proceeding before the psychiatric commissioners has been\nconcluded, they must forthwith provide a transcript of the proceeding,\ntogether with their findings of fact, to the court with their opinion\nthereon. Unless impracticable, the psychiatric commissioners shall so\nact within sixty days from the filing of the petition. When an inmate\nshall be found incompetent by a majority of the psychiatric\ncommissioners, the court shall accept such finding unless clearly\nerroneous, and promptly enter an order finding the inmate to be\nincompetent, staying the execution of the inmate and directing that the\ninmate be committed to a secure facility under the jurisdiction of the\noffice of mental health if the inmate's incompetency is the result of\nmental illness. In all other cases, the inmate shall remain in the\ncustody of the department. When an inmate is found competent by a\nmajority of the psychiatric commissioners, the court shall accept such\nfinding unless clearly erroneous, promptly enter an order finding the\ninmate to be competent and vacating any stay previously issued, and the\ncourt shall promptly inform the judge or justice who issued the warrant\nfor the execution of the inmate of the court's finding. Upon being so\ninformed, the judge or justice shall promptly issue a new warrant in\naccordance with subdivision two of section six hundred fifty of this\narticle. Any other provision of law notwithstanding, no other review,\njudicial or otherwise, shall be available with respect to an order\nfinding the inmate to be incompetent or competent. If the court rejects\nthe finding of a majority of the psychiatric commissioners on the ground\nthat it is clearly erroneous, the court shall appoint another commission\nto proceed as provided in this section.\n 6. When an inmate has been committed to a secure facility pursuant to\nthis section, the inmate shall remain there until the facility\nadministrator determines that the inmate may be competent. Upon so\ndetermining, the facility administrator shall promptly notify the court\nthat entered the order finding the inmate to be incompetent, and the\ncourt shall promptly notify counsel and the district attorneys and\nappoint another commission to proceed as provided in this section.\n 7. The court shall allow reasonable fees to the psychiatric\ncommissioners. The court shall allow reasonable fees for time spent in\ncourt and for time reasonably expended out of court to counsel appointed\npursuant to this section. The court shall allow all reasonably necessary\ncosts, including without limitation the costs attendant to fees for the\nexamination of the inmate by a qualified psychiatrist or certified\npsychologist, incurred by the inmate and the district attorney in\nconnection with a petition pursuant to this section. Each claim for\ncompensation and reimbursement shall be supported by a sworn statement\nspecifying the time expended, services rendered, expenses incurred and\nreimbursement or compensation applied for or received in the same case\nfrom any other source. All such fees and costs shall be a state charge\npayable on vouchers approved by the court after audit by and on the\nwarrant of the comptroller.\n 8. When a petition has previously been filed and determined pursuant\nto this section, the court in which a subsequent petition is filed or to\nwhich a subsequent petition is transferred, shall not issue an order\nstaying the execution of the inmate unless the court finds, after notice\nto the district attorney who prosecuted the inmate and after affording\nthe district attorney a reasonable opportunity to be heard in writing,\nthat there is reasonable cause to believe that the inmate is\nincompetent; provided, however, that the court may issue an order\nstaying the execution of the inmate, to the extent a stay is necessary\nto afford the district attorney an opportunity to be heard and such\nreasonable cause determination to be made.\n