S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         3674
                              2013-2014 Regular Sessions
                                   I N  S E N A T E
                                   February 11, 2013
                                      ___________
       Introduced  by  Sens.  GRIFFO, SAVINO -- read twice and ordered printed,
         and when printed to be committed to the Committee on Codes
       AN ACT to amend the criminal procedure law, in relation to retention  of
         custody  of  persons  found  not guilty by reason of mental disease or
         defect
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section  1.  Section 330.20 of the criminal procedure law, as added by
    2  chapter 548 of the laws of 1980, paragraph (o)  of  subdivision  1,  the
    3  closing  paragraph  of  subdivision  2  and  subdivisions  7-a and 22 as
    4  amended by chapter 107 of the laws of 2004, subdivisions  2  and  20  as
    5  amended  by chapter 693 of the laws of 1989, subdivision 2-a as added by
    6  chapter 1 of the laws of 2013, subdivisions 5, 8, 9, 10, 11, 12, 13  and
    7  14  as  amended  by  chapter  789 of the laws of 1985, subdivision 21 as
    8  added by chapter 976 of the laws of 1983, and subparagraph (ii) of para-
    9  graph (a) of subdivision 21 as amended by chapter 330  of  the  laws  of
   10  1993, is amended to read as follows:
   11  S  330.20  Procedure  following  verdict  or  plea of not responsible by
   12               reason of mental disease or defect.
   13    1. Definition of terms. As used in this section, the  following  terms
   14  shall have the following meanings:
   15    (a)  "Commissioner" means the [state] commissioner of mental health or
   16  the [state]  commissioner  of  [mental  retardation  and]  developmental
   17  [disability] DISABILITIES.
   18    (b)  "Secure  facility"  means a facility within the [state] office of
   19  mental health or the [state] office  [of  mental  retardation  and]  FOR
   20  PEOPLE  WITH  developmental disabilities which is staffed with personnel
   21  adequately trained in security methods and is so equipped as to minimize
   22  the risk or danger of escapes, and which has been so specifically desig-
   23  nated by the commissioner.
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD06470-02-3
       S. 3674                             2
    1    (c) "Dangerous mental disorder" means: (i) that a defendant  currently
    2  suffers  from  a "mental illness" as that term is defined in subdivision
    3  twenty of section 1.03 of the mental hygiene law, and (ii) that  because
    4  of  such condition he currently constitutes a physical danger to himself
    5  OR HERSELF or others.
    6    (d)  "Mentally  ill"  means  that a defendant currently suffers from a
    7  mental illness for which care and treatment as a patient, in the  in-pa-
    8  tient  services  of  a  psychiatric center under the jurisdiction of the
    9  [state] office of  mental  health,  is  essential  to  such  defendant's
   10  welfare  and  that  his OR HER judgment is so impaired that he OR SHE is
   11  unable to understand the need for such care and treatment; and, where  a
   12  defendant is mentally retarded, the term "mentally ill" shall also mean,
   13  for  purposes of this section, that the defendant is in need of care and
   14  treatment as a resident in the in-patient services  of  a  developmental
   15  center  or  other  residential  facility  for  the mentally retarded and
   16  developmentally disabled under the jurisdiction of  the  [state]  office
   17  [of mental retardation and] FOR PEOPLE WITH developmental disabilities.
   18    (e)  "Examination  order"  means an order directed to the commissioner
   19  requiring that a defendant submit to a psychiatric examination to deter-
   20  mine whether the defendant has a dangerous mental disorder, or if he  OR
   21  SHE  does  not  have  A  dangerous mental disorder, whether he OR SHE is
   22  mentally ill.
   23    (f) "Commitment  order"  [or  "recommitment  order"]  means  an  order
   24  committing  a  defendant to the custody of the commissioner for confine-
   25  ment in a secure facility for care and treatment [for  six  months  from
   26  the date of the order].
   27    (g)  "First  retention order" means an order which is effective at the
   28  expiration of the period prescribed in a commitment  order  [for]  OR  a
   29  recommitment  order, authorizing continued custody of a defendant by the
   30  commissioner for a period not to exceed one year.
   31    (h) "Second retention order" means an order which is effective at  the
   32  expiration  of the period prescribed in a first retention order, author-
   33  izing continued custody of a defendant by the commissioner for a  period
   34  not to exceed two years.
   35    (i)  "Subsequent retention order" means an order which is effective at
   36  the expiration of the period prescribed in a second retention order or a
   37  prior subsequent retention order  authorizing  continued  custody  of  a
   38  defendant by the commissioner for a period not to exceed two years.
   39    (j)  "Retention  order"  means  a  first  retention  order,  a  second
   40  retention order or a subsequent retention order.
   41    (k) "Furlough order" means an  order  directing  the  commissioner  to
   42  allow  a defendant in confinement pursuant to a commitment order, recom-
   43  mitment order or retention order to temporarily leave the facility for a
   44  period not exceeding fourteen  days,  [either]  with  [or  without]  the
   45  constant supervision of one or more employees of the facility.
   46    (l)  "Transfer  order"  means  an  order directing the commissioner to
   47  transfer a defendant from a secure facility  to  a  non-secure  facility
   48  under the jurisdiction of the commissioner or to any non-secure facility
   49  designated by the commissioner.
   50    (m)  "Release  order"  means  an  order  directing the commissioner to
   51  terminate  a  defendant's  in-patient  status  without  terminating  the
   52  commissioner's responsibility for the defendant.
   53    (n)  "Discharge  order"  means an order terminating an order of condi-
   54  tions or unconditionally discharging a defendant from supervision  under
   55  the provisions of this section.
       S. 3674                             3
    1    (o)  "Order  of  conditions"  means  an order directing a defendant to
    2  comply with this prescribed treatment plan, or any other condition which
    3  the court determines to be reasonably necessary or appropriate, and,  in
    4  addition,  where  a  defendant is in custody of the commissioner, not to
    5  leave  the  facility  without  authorization. In addition to such condi-
    6  tions, when determined to be reasonably  necessary  or  appropriate,  an
    7  order  of conditions may be accompanied by a special order of conditions
    8  set forth in a separate document requiring that the defendant: (i)  stay
    9  away  from  the  home,  school,  business  or place of employment of the
   10  victim or victims, or of any witness designated by the  court,  of  such
   11  offense;  or  (ii)  refrain from harassing, intimidating, threatening or
   12  otherwise interfering with the victim or victims of the offense and such
   13  members of the family or household of such victim or victims as shall be
   14  specifically named by the court in  such  special  order.  An  order  of
   15  conditions  or special order of conditions shall be valid for five years
   16  from the date of its issuance, except that, for good  cause  shown,  the
   17  court may extend the period for an additional five years.
   18    (p) "District attorney" means the office which prosecuted the criminal
   19  action  resulting in the verdict or plea of not responsible by reason of
   20  mental disease or defect.
   21    (q) "Qualified psychiatrist" means a physician who (i) is a  diplomate
   22  of  the  American board of psychiatry and neurology or is eligible to be
   23  certified by that board; or (ii) is certified by the American osteopath-
   24  ic board of neurology and psychiatry or is eligible to be  certified  by
   25  that board.
   26    (r)  "Licensed  psychologist"  means  a  person who is registered as a
   27  psychologist under article one hundred fifty-three of the education law.
   28    (s)  "Psychiatric  examiner"  means  a  qualified  psychiatrist  or  a
   29  licensed  psychologist  who  has  been designated by the commissioner to
   30  examine a defendant pursuant to this section, and such designee need not
   31  be an employee of the department of mental hygiene.
   32    2. [Examination] SENTENCE; EXAMINATION order;  psychiatric  examiners.
   33  Upon  entry  of a verdict of not responsible by reason of mental disease
   34  or defect, or upon the acceptance of a plea of not responsible by reason
   35  of mental disease or defect, the court must  immediately  (A)  IMPOSE  A
   36  PERIOD  OF CONFINEMENT IN THE CUSTODY OF THE COMMISSIONER WHICH IS EQUAL
   37  TO THE SENTENCE OF  IMPRISONMENT  SUCH  DEFENDANT  WOULD  HAVE  RECEIVED
   38  PURSUANT  TO  ARTICLE  SEVENTY  OF THE PENAL LAW, UPON CONVICTION OF THE
   39  CRIME WITH WHICH HE OR SHE WAS CHARGED; AND  (B)  issue  an  examination
   40  order.  Upon  receipt of such order, the commissioner must designate two
   41  qualified psychiatric examiners to conduct the  examination  to  examine
   42  the  defendant. In conducting their examination, the psychiatric examin-
   43  ers may employ any method which is accepted by  the  medical  profession
   44  for  the examination of persons alleged to be suffering from a dangerous
   45  mental disorder or to be mentally ill or retarded. The court may author-
   46  ize a psychiatrist or psychologist retained by a defendant to be present
   47  at such examination. The clerk of the court must promptly forward a copy
   48  of the examination order to the mental hygiene legal  service  and  such
   49  service  may  thereafter participate in all subsequent proceedings under
   50  this section.
   51    In all subsequent proceedings under this section, [prior to the  issu-
   52  ance of a special order of conditions,] the court shall consider whether
   53  any  order  of  protection  had  been  issued  prior to a verdict of not
   54  responsible by reason of mental disease or defect in the case, or  prior
   55  to  the  acceptance  of  a  plea  of not responsible by reason of mental
   56  disease or defect in the case.
       S. 3674                             4
    1    2-a. Firearm, rifle or  shotgun  surrender  order.  Upon  entry  of  a
    2  verdict  of  not  responsible  by reason of mental disease or defect, or
    3  upon the acceptance of a plea of not responsible  by  reason  of  mental
    4  disease  or defect, or upon a finding that the defendant is an incapaci-
    5  tated  person  pursuant to article seven hundred thirty of this chapter,
    6  the court shall revoke the defendant's firearm license, if any,  inquire
    7  of  the defendant as to the existence and location of any firearm, rifle
    8  or shotgun owned or possessed by such defendant and direct the surrender
    9  of such firearm, rifle or shotgun pursuant to subparagraph (f) of  para-
   10  graph  one  of  subdivision  a  of section 265.20 and subdivision six of
   11  section 400.05 of the penal law.
   12    3. Examination order; place of examination. Upon issuing  an  examina-
   13  tion  order, the court must, except as otherwise provided in this subdi-
   14  vision, direct that the defendant be  committed  to  a  secure  facility
   15  designated  by  the commissioner as the place for such psychiatric exam-
   16  ination. The sheriff must hold the defendant  in  custody  pending  such
   17  designation  by  the commissioner, and when notified of the designation,
   18  the sheriff must promptly deliver the defendant to such secure facility.
   19  [When the defendant is not in custody at the time  of  such  verdict  or
   20  plea,  because he was previously released on bail or on his own recogni-
   21  zance, the court, in its discretion, may direct that such examination be
   22  conducted on an out-patient basis, and at such time  and  place  as  the
   23  commissioner  shall designate. If, however, the commissioner informs the
   24  court that confinement of the defendant is necessary  for  an  effective
   25  examination,  the  court must direct that the defendant be confined in a
   26  facility  designated  by  the  commissioner  until  the  examination  is
   27  completed.]
   28    4.  Examination  order,  duration.  Confinement  in  a secure facility
   29  pursuant to an examination order shall be for  a  period  not  exceeding
   30  thirty  days,  except  that,  upon  application of the commissioner, the
   31  court may authorize confinement for an additional period  not  exceeding
   32  thirty  days  when a longer period is necessary to complete the examina-
   33  tion. [If the initial  hearing  required  by  subdivision  six  of  this
   34  section  has  not commenced prior to the termination of such examination
   35  period, the commissioner shall retain custody of the defendant  in  such
   36  secure  facility  until  custody  is  transferred  to the sheriff in the
   37  manner prescribed in subdivision six of this section.] During the period
   38  of such confinement, the physician in charge of the facility may  admin-
   39  ister  or  cause  to  be  administered  to  the defendant such emergency
   40  psychiatric, medical or other therapeutic treatment as  in  his  OR  HER
   41  judgment  should  be  administered.  [If the court has directed that the
   42  examination be conducted on an out-patient basis, the examination  shall
   43  be  completed  within thirty days after the defendant has first reported
   44  to the place designated by the commissioner, except that, upon  applica-
   45  tion of the commissioner, the court may extend such period for a reason-
   46  able time if a longer period is necessary to complete the examination.]
   47    5.  Examination  order;  reports. After he OR SHE has completed his OR
   48  HER examination of the defendant, each psychiatric examiner must prompt-
   49  ly prepare a report of his OR HER findings and evaluation concerning the
   50  defendant's mental condition, and submit such report to the  commission-
   51  er.  If  the psychiatric examiners differ in their opinion as to whether
   52  the defendant is mentally ill or is suffering from  a  dangerous  mental
   53  disorder,  the  commissioner must designate another psychiatric examiner
   54  to examine the defendant. Upon receipt of the examination  reports,  the
   55  commissioner  must  submit them to the court that issued the examination
   56  order. If the court is not satisfied with the findings of these  psychi-
       S. 3674                             5
    1  atric  examiners, the court may designate one or more additional psychi-
    2  atric examiners pursuant to subdivision fifteen of this section.    [The
    3  court must furnish a copy of the reports to the district attorney, coun-
    4  sel for the defendant and the mental hygiene legal service.]
    5    6.  [Initial hearing; commitment] COMMITMENT order. After the examina-
    6  tion reports are submitted, the court must[,  within  ten  days  of  the
    7  receipt  of  such  reports,  conduct an initial hearing to determine the
    8  defendant's present mental condition. If the defendant is in the custody
    9  of the commissioner pursuant to an examination  order,  the  court  must
   10  direct  the  sheriff to obtain custody of the defendant from the commis-
   11  sioner and to confine the defendant pending further order of the  court,
   12  except that the court may direct the sheriff to confine the defendant in
   13  an  institution  located  near  the  place  where the court sits if that
   14  institution has been designated by the commissioner as suitable for  the
   15  temporary  and  secure  detention  of mentally disabled persons. At such
   16  initial hearing, the district attorney must establish to  the  satisfac-
   17  tion  of the court that the defendant has a dangerous mental disorder or
   18  is mentally ill. If the court finds that the defendant has  a  dangerous
   19  mental  disorder,  it must] issue a commitment order FOR THE TERM OF THE
   20  PERIOD OF CONFINEMENT IMPOSED, PURSUANT TO PARAGRAPH (A) OF  SUBDIVISION
   21  TWO  OF THIS SECTION, AND TO SUCH A SECURE FACILITY AS SHALL BE SUITABLE
   22  FOR A MENTALLY ILL PERSON OR A PERSON WITH A DANGEROUS MENTAL  DISORDER,
   23  AS  THE  CASE MAY BE, BASED UPON THE EXAMINATION REPORTS.  [If the court
   24  finds that the defendant does not have a dangerous mental  disorder  but
   25  is  mentally  ill,  the  provisions of subdivision seven of this section
   26  shall apply.]
   27    7. [Initial hearing civil commitment and order of conditions.  If,  at
   28  the  conclusion of the initial hearing conducted pursuant to subdivision
   29  six of this section, the court finds that the defendant is mentally  ill
   30  but  does  not have a dangerous mental disorder, the provisions of arti-
   31  cles nine or fifteen of the mental hygiene law shall apply at that stage
   32  of the proceedings and at all subsequent proceedings. Having found  that
   33  the  defendant  is mentally ill, the court must issue an order of condi-
   34  tions and an order committing  the  defendant  to  the  custody  of  the
   35  commissioner. The latter order shall be deemed an order made pursuant to
   36  the  mental  hygiene  law  and not pursuant to this section, and further
   37  retention, conditional release or discharge of such defendant  shall  be
   38  in  accordance with the provisions of the mental hygiene law. If, at the
   39  conclusion of the initial hearing, the court finds  that  the  defendant
   40  does  not  have a dangerous mental disorder and is not mentally ill, the
   41  court must discharge the defendant either unconditionally or subject  to
   42  an order of conditions.
   43    7-a.  Whenever the court issues a special order of conditions pursuant
   44  to this section, the commissioner shall make reasonable efforts to noti-
   45  fy the victim or victims or the designated witness or witnesses  that  a
   46  special  order of conditions containing such provisions has been issued,
   47  unless such victim or witness has requested that such notice should  not
   48  be provided.
   49    8.]  First  retention order. When a defendant is in the custody of the
   50  commissioner pursuant to a commitment order, the commissioner  must,  at
   51  least  thirty  days  prior to the expiration of the period prescribed in
   52  the order, apply to the court that issued the order, or  to  a  superior
   53  court  in  the  county where the secure facility is located, for a first
   54  retention order or a release order. The commissioner must  give  written
   55  notice of the application to the district attorney, the defendant, coun-
   56  sel  for  the  defendant,  and  the  mental  hygiene legal service. Upon
       S. 3674                             6
    1  receipt of such application, the court may, on its own motion, conduct a
    2  hearing to determine whether the defendant has a dangerous mental disor-
    3  der, and it must conduct such hearing if a demand therefor  is  made  by
    4  the  district attorney, the defendant, counsel for the defendant, or the
    5  mental hygiene legal service within ten days from the date  that  notice
    6  of  the  application  was given to them. If such a hearing is held on an
    7  application for retention, the commissioner must establish to the satis-
    8  faction of the court that the defendant has a dangerous mental  disorder
    9  or  is  mentally  ill. The district attorney shall be entitled to appear
   10  and present evidence at such hearing. If such a hearing is  held  on  an
   11  application  for  release,  the  district attorney must establish to the
   12  satisfaction of the court that the  defendant  has  a  dangerous  mental
   13  disorder or is mentally ill. If the court finds that the defendant has a
   14  dangerous  mental disorder it must issue a first retention order. If the
   15  court finds that the defendant is mentally  ill  but  does  not  have  a
   16  dangerous  mental  disorder,  it must issue a first retention order and,
   17  pursuant to subdivision [eleven] TEN of this section, a  transfer  order
   18  and  an  order of conditions. If the court finds that the defendant does
   19  not have a dangerous mental disorder and is not mentally  ill,  it  must
   20  issue a release order and an order of conditions pursuant to subdivision
   21  [twelve] ELEVEN of this section.
   22    [9.] 8. Second and subsequent retention orders. When a defendant is in
   23  the custody of the commissioner pursuant to a first retention order, the
   24  commissioner  must,  at least thirty days prior to the expiration of the
   25  period prescribed in the order, apply  to  the  court  that  issued  the
   26  order,  or  to  a  superior  court  in  the county where the facility is
   27  located, for a second retention order or a release  order.  The  commis-
   28  sioner  must  give  written  notice  of  the application to the district
   29  attorney, the defendant, counsel  for  the  defendant,  and  the  mental
   30  hygiene  legal service. Upon receipt of such application, the court may,
   31  on its own motion, conduct a hearing to determine whether the  defendant
   32  has  a  dangerous mental disorder, and it must conduct such hearing if a
   33  demand therefor is made by the district attorney, the defendant, counsel
   34  for the defendant, or the mental hygiene legal service within  ten  days
   35  from  the date that notice of the application was given to them. If such
   36  a hearing is held on an application for retention, the commissioner must
   37  establish to the satisfaction of the court  that  the  defendant  has  a
   38  dangerous  mental  disorder  or  is  mentally ill. The district attorney
   39  shall be entitled to appear and present evidence  at  such  hearing.  If
   40  such  a  hearing  is  held  on  an application for release, the district
   41  attorney must establish to  the  satisfaction  of  the  court  that  the
   42  defendant  has  a  dangerous  mental disorder or is mentally ill. If the
   43  court finds that the defendant has a dangerous mental disorder  it  must
   44  issue a second retention order. If the court finds that the defendant is
   45  mentally  ill  but  does  not  have a dangerous mental disorder, it must
   46  issue a second retention order and, pursuant to subdivision [eleven] TEN
   47  of this section, a transfer order and an order  of  conditions.  If  the
   48  court finds that the defendant does not have a dangerous mental disorder
   49  and  is  not mentally ill, it must issue a release order and an order of
   50  conditions pursuant to subdivision [twelve] ELEVEN of this section. When
   51  a defendant is in the custody of the commissioner prior to  the  expira-
   52  tion  of  the  period prescribed in a second retention order, the proce-
   53  dures set forth in  this  subdivision  for  the  issuance  of  a  second
   54  retention order shall govern the application for and the issuance of any
   55  subsequent retention order.
       S. 3674                             7
    1    [10.]  9.  Furlough  order.  The commissioner may apply for a furlough
    2  order, pursuant to this subdivision, when a defendant is in his  OR  HER
    3  custody  pursuant  to  a  [commitment  order,]  recommitment order[,] or
    4  retention order and the commissioner is of  the  view  that,  consistent
    5  with  the  public safety and welfare of the community and the defendant,
    6  the clinical condition of the defendant warrants a granting of the priv-
    7  ileges authorized by a furlough order. The application  for  a  furlough
    8  order may be made to the court that issued the commitment order, or to a
    9  superior  court  in the county where the secure facility is located. The
   10  commissioner must give ten days written notice to the district attorney,
   11  the defendant, counsel for the defendant, and the mental  hygiene  legal
   12  service.  Upon  receipt  of  such application, the court may, on its own
   13  motion, conduct a hearing to determine whether the application should be
   14  granted, and must conduct such hearing if a demand therefor is  made  by
   15  the  district  attorney.  If  the  court  finds  that  the issuance of a
   16  furlough order is consistent with the public safety and welfare  of  the
   17  community  and  the  defendant,  and  that the clinical condition of the
   18  defendant warrants a granting of the privileges authorized by a furlough
   19  order, the court must grant the application and issue a  furlough  order
   20  containing  any  terms  and conditions that the court deems necessary or
   21  appropriate. If the defendant fails to return to the secure facility  at
   22  the time specified in the furlough order, then, for purposes of subdivi-
   23  sion  [nineteen]  EIGHTEEN of this section, he OR SHE shall be deemed to
   24  have escaped.
   25    [11.] 10. Transfer order and order of conditions. The commissioner may
   26  apply for a transfer order, pursuant to this subdivision, when a defend-
   27  ant is in his OR HER custody pursuant to a retention order or  a  recom-
   28  mitment  order,  and  the commissioner is of the view that the defendant
   29  does not have a dangerous mental disorder or that, consistent  with  the
   30  public  safety and welfare of the community and the defendant, the clin-
   31  ical condition of the defendant warrants his  OR  HER  transfer  from  a
   32  secure  facility  to a non-secure facility under the jurisdiction of the
   33  commissioner or to any non-secure facility designated by the commission-
   34  er. The application for a transfer order may be made to the  court  that
   35  issued  the  order under which the defendant is then in custody, or to a
   36  superior court in the county where the secure facility is  located.  The
   37  commissioner must give ten days written notice to the district attorney,
   38  the  defendant,  counsel for the defendant, and the mental hygiene legal
   39  service. Upon receipt of such application, the court  may,  on  its  own
   40  motion, conduct a hearing to determine whether the application should be
   41  granted, and must conduct such hearing if the demand therefor is made by
   42  the  district  attorney.  At  such  hearing,  the district attorney must
   43  establish to the satisfaction of the court  that  the  defendant  has  a
   44  dangerous  mental  disorder  or that the issuance of a transfer order is
   45  inconsistent with the public safety and welfare of  the  community.  The
   46  court must grant the application and issue a transfer order if the court
   47  finds  that  the defendant does not have a dangerous mental disorder, or
   48  if the court finds that the issuance of a transfer order  is  consistent
   49  with  the  public  safety and welfare of the community and the defendant
   50  and that the clinical condition of the defendant, warrants  his  OR  HER
   51  transfer  from  a secure facility to a non-secure facility. A court must
   52  also issue a transfer order when, in connection with an application  for
   53  a  first  retention  order pursuant to subdivision [eight] SEVEN of this
   54  section or a second or subsequent retention order pursuant  to  subdivi-
   55  sion [nine] EIGHT of this section, it finds that a defendant is mentally
       S. 3674                             8
    1  ill  but  does  not  have a dangerous mental disorder.  Whenever a court
    2  issues a transfer order it must also issue an order of conditions.
    3    [12.]  11. Release order and order of conditions. The commissioner may
    4  apply for a release order, pursuant to this subdivision, when a  defend-
    5  ant  is in his OR HER custody pursuant to a retention order or recommit-
    6  ment order, and the commissioner is of the view that  the  defendant  no
    7  longer  has  a  dangerous mental disorder and is no longer mentally ill.
    8  The application for a release order may be made to the court that issued
    9  the order under which the defendant is then in custody, or to a superior
   10  court in the county where the facility is located. The application  must
   11  contain  a  description of the defendant's current mental condition, the
   12  past course of treatment, a history of the  defendant's  conduct  subse-
   13  quent  to  his  OR  HER commitment, a written service plan for continued
   14  treatment which shall include the information specified  in  subdivision
   15  (g) of section 29.15 of the mental hygiene law, and a detailed statement
   16  of  the  extent  to  which supervision of the defendant after release is
   17  proposed. The commissioner must give ten  days  written  notice  to  the
   18  district  attorney,  the  defendant,  counsel for the defendant, and the
   19  mental hygiene legal service. Upon  receipt  of  such  application,  the
   20  court must promptly conduct a hearing to determine the defendant's pres-
   21  ent  mental  condition.    At  such  hearing, the district attorney must
   22  establish to the satisfaction of the court  that  the  defendant  has  a
   23  dangerous  mental  disorder  or is mentally ill. If the court finds that
   24  the defendant has a dangerous mental disorder, it must deny the applica-
   25  tion for a release order. If the court finds that the defendant does not
   26  have a dangerous mental disorder but is mentally ill, it  must  issue  a
   27  transfer  order  pursuant to subdivision [eleven] TEN of this section if
   28  the defendant is then confined in a secure facility. If the court  finds
   29  that  the defendant does not have a dangerous mental disorder and is not
   30  mentally ill, it must grant the application and issue a release order. A
   31  court must also issue a release order when, in connection with an appli-
   32  cation for a first retention order pursuant to subdivision [eight] SEVEN
   33  of this section or a second or subsequent retention  order  pursuant  to
   34  subdivision  [nine]  EIGHT  of this section, it finds that the defendant
   35  does not have a dangerous mental disorder and is not mentally ill. When-
   36  ever a court issues a release order it  must  also  issue  an  order  of
   37  conditions.  If  the court has previously issued a transfer order and an
   38  order of conditions, it must issue a new order of conditions upon  issu-
   39  ing  a release order. The order of conditions issued in conjunction with
   40  a release order shall incorporate a written service plan prepared  by  a
   41  psychiatrist  familiar with the defendant's case history and approved by
   42  the court, and shall contain any conditions that the court determines to
   43  be reasonably necessary or appropriate. It shall be  the  responsibility
   44  of  the  commissioner  to determine that such defendant is receiving the
   45  services specified in the written service plan and is complying with any
   46  conditions specified in such plan and the order of conditions.
   47    [13.] 12. Discharge order. The commissioner may apply for a  discharge
   48  order,  pursuant  to this subdivision, when a defendant has been contin-
   49  uously on an out-patient status for three years or more  pursuant  to  a
   50  release order, and the commissioner is of the view that the defendant no
   51  longer has a dangerous mental disorder and is no longer mentally ill and
   52  that  the  issuance  of  a discharge order is consistent with the public
   53  safety and welfare of the community and the defendant.  The  application
   54  for  a  discharge order may be made to the court that issued the release
   55  order, or to a superior court in the county where the defendant is  then
   56  residing.  The  commissioner  must  give  ten days written notice to the
       S. 3674                             9
    1  district attorney, the defendant, counsel for  the  defendant,  and  the
    2  mental  hygiene  legal  service.  Upon  receipt of such application, the
    3  court may, on its own motion, conduct a hearing to determine whether the
    4  application should be granted, and must conduct such hearing if a demand
    5  therefor  is  made  by  the  district attorney. The court must grant the
    6  application and issue a discharge order if  the  court  finds  that  the
    7  defendant has been continuously on an out-patient status for three years
    8  or more, that he OR SHE does not have a dangerous mental disorder and is
    9  not  mentally  ill,  and  that  the  issuance  of the discharge order is
   10  consistent with the public safety and welfare of the community  and  the
   11  defendant.
   12    [14] 13.  Recommitment order. At any time during the period covered by
   13  an order of conditions an application may be made by the commissioner or
   14  the district attorney to the court that issued such order, or to a supe-
   15  rior  court  in  the  county where the defendant is then residing, for a
   16  recommitment order when the applicant is of the view that the  defendant
   17  has  a dangerous mental disorder. The applicant must give written notice
   18  of the application to the defendant, counsel for the defendant, and  the
   19  mental  hygiene  legal service, and if the applicant is the commissioner
   20  he OR SHE must give such notice to  the  district  attorney  or  if  the
   21  applicant  is  the  district attorney he OR SHE must give such notice to
   22  the commissioner. Upon receipt of such application the court must  order
   23  the  defendant  to  appear  before  it for a hearing to determine if the
   24  defendant has a dangerous mental disorder. Such order may be in the form
   25  of a written notice, specifying the time and place of appearance, served
   26  personally upon the defendant, or  mailed  to  his  OR  HER  last  known
   27  address,  as  the court may direct.  If the defendant fails to appear in
   28  court as directed, the court [may] SHALL issue a warrant to an appropri-
   29  ate peace officer directing him OR HER to take the defendant into custo-
   30  dy and bring him OR HER before the  court.  In  such  circumstance,  the
   31  court  [may] SHALL direct that the defendant be confined in an appropri-
   32  ate institution located near the place where the court sits.  The  court
   33  must  conduct a hearing to determine whether the defendant has a danger-
   34  ous mental disorder. At such hearing, the applicant, whether he  OR  SHE
   35  be  the  commissioner  or  the  district  attorney must establish to the
   36  satisfaction of the court that the  defendant  has  a  dangerous  mental
   37  disorder.  If  the  applicant is the commissioner, the district attorney
   38  shall be entitled to appear and present evidence at such hearing; if the
   39  applicant is the district attorney, the commissioner shall  be  entitled
   40  to  appear and present evidence at such hearing. If the court finds that
   41  the defendant has a dangerous mental disorder, it must issue a recommit-
   42  ment order. When a defendant is  in  the  custody  of  the  commissioner
   43  pursuant  to  a recommitment order, the procedures set forth in subdivi-
   44  sions SEVEN AND eight [and nine] of this section  for  the  issuance  of
   45  retention  orders shall govern the application for and the issuance of a
   46  first  retention  order,  a  second  retention  order,  and   subsequent
   47  retention orders.
   48    [15]  14.    Designation  of psychiatric examiners. If, at any hearing
   49  conducted under this section to determine the defendant's present mental
   50  condition, the court is not satisfied with the findings of the psychiat-
   51  ric examiners, the court may direct the commissioner to designate one or
   52  more additional psychiatric examiners to conduct an examination  of  the
   53  defendant  and submit a report of their findings. In addition, the court
   54  may on its own motion, or upon request of a party, may designate one  or
   55  more  psychiatric examiners to examine the defendant and submit a report
   56  of their findings. The district attorney may apply to the court  for  an
       S. 3674                            10
    1  order directing that the defendant submit to an examination by a psychi-
    2  atric examiner designated by the district attorney, and such psychiatric
    3  examiner may testify at the hearing.
    4    [16] 15.  Rehearing and review. Any defendant who is in the custody of
    5  the commissioner pursuant to a [commitment order,] a retention order, or
    6  a recommitment order, if dissatisfied with such order, may, within thir-
    7  ty days after the making of such order, obtain a rehearing and review of
    8  the  proceedings  and of such order in accordance with the provisions of
    9  section 9.35 or 15.35 of the mental hygiene law.
   10    [17] 16.   Rights  of  defendants.  Subject  to  the  limitations  and
   11  provisions  of this section, a defendant committed to the custody of the
   12  commissioner pursuant to this section shall have the rights  granted  to
   13  patients under the mental hygiene law.
   14    [18]  17.    Notwithstanding  any  other  provision  of law, no person
   15  confined by reason  of  a  [commitment  order,]  recommitment  order  or
   16  retention  order  to  a  secure  facility  may be discharged or released
   17  unless the commissioner shall deliver written notice, at least four days
   18  excluding Saturdays, Sundays and holidays, in advance of such  discharge
   19  or release to all of the following:
   20    (a) the district attorney.
   21    (b) the police department having jurisdiction of the area to which the
   22  defendant is to be discharged or released.
   23    (c) any other person the court may designate.
   24    The notices required by this subdivision shall be given by the facili-
   25  ty staff physician who was treating the defendant or, if unavailable, by
   26  the  defendant's  treatment  team  leader, but if neither is immediately
   27  available, notice must be given by some other  member  of  the  clinical
   28  staff of the facility. Such notice must be given by any means reasonably
   29  calculated to give prompt actual notice.
   30    [19]  18.  Escape from custody; notice requirements. If a defendant is
   31  in the custody of the commissioner pursuant to  an  order  issued  under
   32  this  section, and such defendant escapes from custody, immediate notice
   33  of such escape shall be given by the department facility staff  to:  (a)
   34  the  district  attorney, (b) the superintendent of state police, (c) the
   35  sheriff of the county where the escape occurred, (d) the police  depart-
   36  ment  having jurisdiction of the area where the escape occurred, (e) any
   37  person the facility staff believes to be in  danger,  and  (f)  any  law
   38  enforcement  agency  and any person the facility staff believes would be
   39  able to apprise such endangered person that the  defendant  has  escaped
   40  from  the  facility.  Such notice shall be given as soon as the facility
   41  staff know that the defendant has escaped from the  facility  and  shall
   42  include  such  information as will adequately identify the defendant and
   43  the person or persons believed to be in danger and  the  nature  of  the
   44  danger.  The  notices required by this subdivision shall be given by the
   45  facility staff physician who was treating the defendant or, if  unavail-
   46  able,  by the defendant's treatment team leader, but if neither is imme-
   47  diately available, notice must be given by  some  other  member  of  the
   48  clinical  staff  of the facility. Such notice must be given by any means
   49  reasonably calculated to give prompt actual notice. The defendant may be
   50  apprehended, restrained, transported to, and returned  to  the  facility
   51  from  which he escaped by any peace officer, and it shall be the duty of
   52  the officer to assist any representative of the commissioner to take the
   53  defendant into custody upon the request of such representative.
   54    [20] 19.   Required affidavit. No  application  may  be  made  by  the
   55  commissioner  under  this section without an accompanying affidavit from
   56  at least one psychiatric examiner supportive of relief requested in  the
       S. 3674                            11
    1  application,  which affidavit shall be served on all parties entitled to
    2  receive the notice of application. Such affidavit shall  set  forth  the
    3  defendant's clinical diagnosis, a detailed analysis of his or her mental
    4  condition which caused the psychiatric examiner to formulate an opinion,
    5  and  the opinion of the psychiatric examiner with respect to the defend-
    6  ant. Any application submitted without the required affidavit  shall  be
    7  dismissed by the court.
    8    [21]  20.  Appeals. (a) A party to proceedings conducted in accordance
    9  with the provisions of this section may take an appeal to an  intermedi-
   10  ate appellate court by permission of the intermediate appellate court as
   11  follows:
   12    (i)  the  commissioner  may  appeal  from any release order, retention
   13  order, transfer order, discharge order, order of conditions,  or  recom-
   14  mitment order, for which he OR SHE has not applied;
   15    (ii)  a  defendant,  or the mental hygiene legal service on his or her
   16  behalf, may appeal from any [commitment order,] retention order,  recom-
   17  mitment  order, or, if the defendant has obtained a rehearing and review
   18  of any such order pursuant to  subdivision  [sixteen]  FIFTEEN  of  this
   19  section,  from an order, not otherwise appealable as of right, issued in
   20  accordance with the provisions of section 9.35 or 15.35  of  the  mental
   21  hygiene  law  authorizing  continued retention under the original order,
   22  provided, however, that a defendant who takes an appeal from a  [commit-
   23  ment order,] retention order, or recommitment order may not subsequently
   24  obtain  a  rehearing  and  review  of such order pursuant to subdivision
   25  [sixteen] FIFTEEN of this section;
   26    (iii) the district attorney may appeal from any release order,  trans-
   27  fer  order,  discharge  order,  order  of conditions, furlough order, or
   28  order denying an application for a recommitment order which  he  OR  SHE
   29  opposed.
   30    (b) An aggrieved party may appeal from a final order of the intermedi-
   31  ate  appellate court to the court of appeals by permission of the inter-
   32  mediate appellate court granted  before  application  to  the  court  of
   33  appeals,  or  by  permission of the court of appeals upon refusal by the
   34  intermediate appellate court or upon direct application.
   35    (c) An appeal taken under this subdivision shall be  deemed  civil  in
   36  nature,  and shall be governed by the laws and rules applicable to civil
   37  appeals; provided, however, that a stay of the order appealed from  must
   38  be  obtained in accordance with the provisions of paragraph (d) [hereof]
   39  OF THIS SUBDIVISION.
   40    (d) The court from or to  which  an  appeal  is  taken  may  stay  all
   41  proceedings  to  enforce  the  order  appealed from pending an appeal or
   42  determination on a motion for permission  to  appeal,  or  may  grant  a
   43  limited stay, except that only the court to which an appeal is taken may
   44  vacate,  limit,  or  modify  a  stay  previously  granted.  If the order
   45  appealed from is affirmed or modified, the stay shall continue for  five
   46  days  after  service  upon  the  appellant of the order of affirmance or
   47  modification with notice of its entry in the court to which  the  appeal
   48  was  taken.  If  a  motion is made for permission to appeal from such an
   49  order, before the expiration of the five days, the stay,  or  any  other
   50  stay  granted  pending  determination  of  the  motion for permission to
   51  appeal, shall:
   52    (i) if the motion is granted,  continue  until  five  days  after  the
   53  appeal is determined; or
   54    (ii)  if  the  motion  is  denied,  continue until five days after the
   55  movant is served with the order of denial with notice of its entry.
       S. 3674                            12
    1    [22] 21.  Any special order of conditions issued pursuant to  subpara-
    2  graph  (i)  or  (ii) of paragraph (o) of subdivision one of this section
    3  shall bear in a conspicuous manner the term  "special  order  of  condi-
    4  tions"  and  a  copy  shall  be filed by the clerk of the court with the
    5  sheriff's  office in the county in which anyone intended to be protected
    6  by such special order resides, or, if anyone intended to be protected by
    7  such special order resides within a city, with the police department  of
    8  such  city.    The  absence  of  language specifying that the order is a
    9  "special order of conditions" shall not  affect  the  validity  of  such
   10  order.  A copy of such special order of conditions may from time to time
   11  be filed by the clerk of the court with any other police  department  or
   12  sheriff's  office  having  jurisdiction of the residence, work place, or
   13  school of anyone intended to be protected by such special order. A  copy
   14  of  such  special  order  may  also  be  filed  by anyone intended to be
   15  protected by such provisions at the  appropriate  police  department  or
   16  sheriff's  office having jurisdiction. Any subsequent amendment or revo-
   17  cation of such special order may be filed in the same manner as provided
   18  in this subdivision.   Such special order of  conditions  shall  plainly
   19  state the date that the order expires.
   20    S  2. This act shall take effect on the first of January next succeed-
   21  ing the date on which it shall have become a  law  and  shall  apply  to
   22  criminal  offenses  committed  on or after such date; provided, however,
   23  that if section 1 of chapter 1 of the laws of 2013 shall not have  taken
   24  effect  on  or  before such date then the amendments made to subdivision
   25  2-a of section 330.20 of the criminal procedure law made by section  one
   26  of this act shall take effect on the same date and in the same manner as
   27  section 1 of such chapter of the laws of 2013 takes effect.