Set Court Commitment Terms

Section 1. Section 330.20 of the criminal procedure law, as added by chapter 548 of the laws of 1980, paragraph (o) of subdivision 1, the closing paragraph of subdivision 2 and subdivisions 7-a and 22 as amended by chapter 107 of the laws of 2004, subdivisions 2 and 20 as amended by chapter 693 of the laws of 1989, subdivision 2-a as added by chapter 1 of the laws of 2013, subdivisions 5, 8, 9, 10, 11, 12, 13 and 14 as amended by chapter 789 of the laws of 1985, subdivision 21 as added by chapter 976 of the laws of 1983, and subparagraph (ii) of paragraph (a) of subdivision 21 as amended by chapter 330 of the laws of 1993, is amended to read as follows: § 330.20 Procedure following verdict or plea of not responsible by

reason of mental disease or defect.

1. Definition of terms. As used in this section, the following terms shall have the following meanings:

(a) "Commissioner" means the [state] commissioner of mental health or the [state] commissioner of [mental retardation and] developmental [disability] disabilities.

(b) "Secure facility" means a facility within the [state] office of mental health or the [state] office [of mental retardation and] for people with developmental disabilities which is staffed with personnel adequately trained in security methods and is so equipped as to minimize the risk or danger of escapes, and which has been so specifically designated by the commissioner.

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD05166-01-7

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(c) "Dangerous mental disorder" means: (i) that a defendant currently suffers from a "mental illness" as that term is defined in subdivision twenty of section 1.03 of the mental hygiene law, and (ii) that because of such condition he currently constitutes a physical danger to himself or herself or others.

(d) "Mentally ill" means that a defendant currently suffers from a mental illness for which care and treatment as a patient, in the in-patient services of a psychiatric center under the jurisdiction of the [state] office of mental health, is essential to such defendant's welfare and that his or her judgment is so impaired that he or she is unable to understand the need for such care and treatment; and, where a defendant is mentally retarded, the term "mentally ill" shall also mean, for purposes of this section, that the defendant is in need of care and treatment as a resident in the in-patient services of a developmental center or other residential facility for the mentally retarded and developmentally disabled under the jurisdiction of the [state] office [of mental retardation and] for people with developmental disabilities.

(e) "Examination order" means an order directed to the commissioner requiring that a defendant submit to a psychiatric examination to determine whether the defendant has a dangerous mental disorder, or if he or she does not have a dangerous mental disorder, whether he or she is mentally ill.

(f) "Commitment order" [or "recommitment order"] means an order committing a defendant to the custody of the commissioner for confinement in a secure facility for care and treatment [for six months from the date of the order].

(g) "First retention order" means an order which is effective at the expiration of the period prescribed in a commitment order [for] or a recommitment order, authorizing continued custody of a defendant by the commissioner for a period not to exceed one year.

(h) "Second retention order" means an order which is effective at the expiration of the period prescribed in a first retention order, authorizing continued custody of a defendant by the commissioner for a period not to exceed two years.

(i) "Subsequent retention order" means an order which is effective at the expiration of the period prescribed in a second retention order or a prior subsequent retention order authorizing continued custody of a defendant by the commissioner for a period not to exceed two years.

(j) "Retention order" means a first retention order, a second retention order or a subsequent retention order.

(k) "Furlough order" means an order directing the commissioner to allow a defendant in confinement pursuant to a commitment order, recommitment order or retention order to temporarily leave the facility for a period not exceeding fourteen days, [either] with [or without] the constant supervision of one or more employees of the facility.

(l) "Transfer order" means an order directing the commissioner to transfer a defendant from a secure facility to a non-secure facility under the jurisdiction of the commissioner or to any non-secure facility designated by the commissioner.

(m) "Release order" means an order directing the commissioner to terminate a defendant's in-patient status without terminating the commissioner's responsibility for the defendant.

(n) "Discharge order" means an order terminating an order of conditions or unconditionally discharging a defendant from supervision under the provisions of this section.

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(o) "Order of conditions" means an order directing a defendant to comply with this prescribed treatment plan, or any other condition which the court determines to be reasonably necessary or appropriate, and, in addition, where a defendant is in custody of the commissioner, not to leave the facility without authorization. In addition to such conditions, when determined to be reasonably necessary or appropriate, an order of conditions may be accompanied by a special order of conditions set forth in a separate document requiring that the defendant: (i) stay away from the home, school, business or place of employment of the victim or victims, or of any witness designated by the court, of such offense; or (ii) refrain from harassing, intimidating, threatening or otherwise interfering with the victim or victims of the offense and such members of the family or household of such victim or victims as shall be specifically named by the court in such special order. An order of conditions or special order of conditions shall be valid for five years from the date of its issuance, except that, for good cause shown, the court may extend the period for an additional five years.

(p) "District attorney" means the office which prosecuted the criminal action resulting in the verdict or plea of not responsible by reason of mental disease or defect.

(q) "Qualified psychiatrist" means a physician who (i) is a diplomate of the American board of psychiatry and neurology or is eligible to be certified by that board; or (ii) is certified by the American osteopathic board of neurology and psychiatry or is eligible to be certified by that board.

(r) "Licensed psychologist" means a person who is registered as a psychologist under article one hundred fifty-three of the education law.

(s) "Psychiatric examiner" means a qualified psychiatrist or a licensed psychologist who has been designated by the commissioner to examine a defendant pursuant to this section, and such designee need not be an employee of the department of mental hygiene.

2. [Examination] Sentence; examination order; psychiatric examiners. Upon entry of a verdict of not responsible by reason of mental disease or defect, or upon the acceptance of a plea of not responsible by reason of mental disease or defect, the court must immediately (a) impose a period of confinement in the custody of the commissioner which is equal to the sentence of imprisonment such defendant would have received pursuant to article seventy of the penal law, upon conviction of the crime with which he or she was charged; and (b) issue an examination order. Upon receipt of such order, the commissioner must designate two qualified psychiatric examiners to conduct the examination to examine the defendant. In conducting their examination, the psychiatric examiners may employ any method which is accepted by the medical profession for the examination of persons alleged to be suffering from a dangerous mental disorder or to be mentally ill or retarded. The court may authorize a psychiatrist or psychologist retained by a defendant to be present at such examination. The clerk of the court must promptly forward a copy of the examination order to the mental hygiene legal service and such service may thereafter participate in all subsequent proceedings under this section.

In all subsequent proceedings under this section, [prior to the issuance of a special order of conditions,] the court shall consider whether any order of protection had been issued prior to a verdict of not responsible by reason of mental disease or defect in the case, or prior to the acceptance of a plea of not responsible by reason of mental disease or defect in the case.

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2-a. Firearm, rifle or shotgun surrender order. Upon entry of a verdict of not responsible by reason of mental disease or defect, or upon the acceptance of a plea of not responsible by reason of mental disease or defect, or upon a finding that the defendant is an incapacitated person pursuant to article seven hundred thirty of this chapter, the court shall revoke the defendant's firearm license, if any, inquire of the defendant as to the existence and location of any firearm, rifle or shotgun owned or possessed by such defendant and direct the surrender of such firearm, rifle or shotgun pursuant to subparagraph (f) of paragraph one of subdivision a of section 265.20 and subdivision six of section 400.05 of the penal law.

3. Examination order; place of examination. Upon issuing an examination order, the court must, except as otherwise provided in this subdivision, direct that the defendant be committed to a secure facility designated by the commissioner as the place for such psychiatric examination. The sheriff must hold the defendant in custody pending such designation by the commissioner, and when notified of the designation, the sheriff must promptly deliver the defendant to such secure facility. [When the defendant is not in custody at the time of such verdict or plea, because he was previously released on bail or on his own recognizance, the court, in its discretion, may direct that such examination be conducted on an out-patient basis, and at such time and place as the commissioner shall designate. If, however, the commissioner informs the court that confinement of the defendant is necessary for an effective examination, the court must direct that the defendant be confined in a facility designated by the commissioner until the examination is completed.]

4. Examination order, duration. Confinement in a secure facility pursuant to an examination order shall be for a period not exceeding thirty days, except that, upon application of the commissioner, the court may authorize confinement for an additional period not exceeding thirty days when a longer period is necessary to complete the examination. [If the initial hearing required by subdivision six of this section has not commenced prior to the termination of such examination period, the commissioner shall retain custody of the defendant in such secure facility until custody is transferred to the sheriff in the manner prescribed in subdivision six of this section.] During the period of such confinement, the physician in charge of the facility may administer or cause to be administered to the defendant such emergency psychiatric, medical or other therapeutic treatment as in his or her judgment should be administered. [If the court has directed that the examination be conducted on an out-patient basis, the examination shall be completed within thirty days after the defendant has first reported to the place designated by the commissioner, except that, upon application of the commissioner, the court may extend such period for a reasonable time if a longer period is necessary to complete the examination.]

5. Examination order; reports. After he or she has completed his or her examination of the defendant, each psychiatric examiner must promptly prepare a report of his or her findings and evaluation concerning the defendant's mental condition, and submit such report to the commissioner. If the psychiatric examiners differ in their opinion as to whether the defendant is mentally ill or is suffering from a dangerous mental disorder, the commissioner must designate another psychiatric examiner to examine the defendant. Upon receipt of the examination reports, the commissioner must submit them to the court that issued the examination order. If the court is not satisfied with the findings of these psychi-

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atric examiners, the court may designate one or more additional psychiatric examiners pursuant to subdivision [fifteen] fourteen of this section. [The court must furnish a copy of the reports to the district attorney, counsel for the defendant and the mental hygiene legal service.]