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Article 730 - NY Criminal Procedure Law

MENTAL DISEASE OR DEFECT EXCLUDING FITNESS TO PROCEED

Section Description
730.10 Fitness to proceed; definitions.
730.20 Fitness to proceed; generally.
730.30 Fitness to proceed; order of examination.
730.40 Fitness to proceed; local criminal court accusatory instrument.
730.50 Fitness to proceed; indictment.
730.60 Fitness to proceed; procedure following custody by commissioner.
730.70 Fitness to proceed; procedure following termination of custody by commissioner.
S 730.10 Fitness to proceed; definitions.
  As  used  in  this  article,  the  following  terms have the following
  meanings:
    1. "Incapacitated person" means a defendant who as a result of  mental
  disease  or  defect lacks capacity to understand the proceedings against
  him or to assist in his own defense.
    2. "Order of examination" means an  order  issued  to  an  appropriate
  director  by  a  criminal  court  wherein  a  criminal action is pending
  against a defendant, or by a family court pursuant to section  322.1  of
  the  family  court  act  wherein  a  juvenile  delinquency proceeding is
  pending against a juvenile, directing that such person be  examined  for
  the purpose of determining if he is an incapacitated person.
    3. "Commissioner" means the state commissioner of mental health or the
  state commissioner of mental retardation and developmental disabilities.
    4.  "Director"  means (a) the director of a state hospital operated by
  the office of mental health or the director of  a  developmental  center
  operated   by   the  office  of  mental  retardation  and  developmental
  disabilities, or (b) the director of a hospital operated  by  any  local
  government  of  the state that has been certified by the commissioner as
  having adequate facilities to examine a defendant to determine if he  is
  an  incapacitated person, or (c) the director of community mental health
  services.
    5. "Qualified psychiatrist" means a physician who:
    (a) is a diplomate of the American board of psychiatry  and  neurology
  or is eligible to be certified by that board; or,
    (b)  is  certified  by the American osteopathic board of neurology and
  psychiatry or is eligible to be certified by that board.
    6. "Certified psychologist" means a person  who  is  registered  as  a
  certified  psychologist  under  article  one  hundred fifty-three of the
  education law.
    7.  "Psychiatric  examiner"  means  a  qualified  psychiatrist  or   a
  certified  psychologist who has been designated by a director to examine
  a defendant pursuant to an order of examination.
    8. "Examination report" means a report made by a psychiatric  examiner
  wherein  he  sets forth his opinion as to whether the defendant is or is
  not an incapacitated person, the nature and extent  of  his  examination
  and,  if  he  finds  that  the defendant is an incapacitated person, his
  diagnosis and prognosis and a detailed statement of the reasons for  his
  opinion   by  making  particular  reference  to  those  aspects  of  the
  proceedings wherein the defendant lacks capacity  to  understand  or  to
  assist  in his own defense. The state administrator and the commissioner
  must jointly adopt the form of the examination  report;  and  the  state
  administrator  shall prescribe the number of copies thereof that must be
  submitted to the court by the director.
    9. "Appropriate institution" means: (a) a  hospital  operated  by  the
  office of mental health or a developmental center operated by the office
  for  people  with developmental disabilities; or (b) a hospital licensed
  by the department of health which operates a psychiatric  unit  licensed
  by  the  office  of  mental  health,  as  determined by the commissioner
  provided, however, that any such hospital that is not  operated  by  the
  state shall qualify as an "appropriate institution" only pursuant to the
  terms of an agreement between the commissioner and the hospital. Nothing
  in this article shall be construed as requiring a hospital to consent to
  providing  care  and  treatment  to  an  incapacitated  person  at  such
  hospital.

S 730.20 Fitness to proceed; generally.
  1.   The appropriate director to whom a criminal court issues an order
  of examination must be  determined  in  accordance  with  rules  jointly
  adopted  by  the judicial conference and the commissioner.  Upon receipt
  of an examination order,  the  director  must  designate  two  qualified
  psychiatric  examiners,  of whom he may be one, to examine the defendant
  to determine if he is  an  incapacitated  person.  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  mentally  ill  or  mentally  defective.   The court may
  authorize a psychiatrist or psychologist retained by the defendant to be
  present at such examination.
    2.  When the defendant is not in custody at the time a court issues an
  order of examination, because he was theretofore released on bail or  on
  his  own  recognizance,  the  court  may  direct that the examination be
  conducted on an out-patient basis, and at such time  and  place  as  the
  director  shall designate.   If, however, the director informs the court
  that hospital confinement of the defendant is necessary for an effective
  examination, the court may direct that the defendant be  confined  in  a
  hospital designated by the director until the examination is completed.
    3.    When  the  defendant is in custody at the time a court issues an
  order of examination, the examination must be  conducted  at  the  place
  where the defendant is being held in custody.  If, however, the director
  determines  that  hospital confinement of the defendant is necessary for
  an effective examination, the sheriff must deliver the  defendant  to  a
  hospital  designated  by  the  director and hold him in custody therein,
  under sufficient guard, until the examination is completed.
    4.  Hospital confinement under subdivisions two and three shall be for
  a period not exceeding thirty days, except that, upon application of the
  director, the court may authorize confinement for an  additional  period
  not  exceeding  thirty  days  if it is satisfied that a longer period is
  necessary to complete the examination.   During the period  of  hospital
  confinement,  the  physician in charge of the hospital may administer or
  cause to be administered to the defendant  such  emergency  psychiatric,
  medical  or  other  therapeutic  treatment  as in his judgment should be
  administered.
    5.  Each psychiatric examiner, after he has completed his  examination
  of the defendant, must promptly prepare an examination report and submit
  it  to  the director.  If the psychiatric examiners are not unanimous in
  their opinion as to whether the defendant is or is not an  incapacitated
  person,  the  director  must  designate  another  qualified  psychiatric
  examiner to examine the defendant to determine if he is an incapacitated
  person.   Upon receipt of the examination  reports,  the  director  must
  submit  them  to  the  court  that issued the order of examination.  The
  court must furnish a copy of the reports to counsel  for  the  defendant
  and to the district attorney.
    6.   When a defendant is subjected to examination pursuant to an order
  issued by  a  criminal  court  in  accordance  with  this  article,  any
  statement  made  by  him for the purpose of the examination or treatment
  shall be inadmissible in evidence against him in any criminal action  on
  any issue other than that of his mental condition, but such statement is
  admissible upon that issue whether or not it would otherwise be deemed a
  privileged communication.
    7.    A  psychiatric  examiner is entitled to his reasonable traveling
  expenses, a fee of fifty dollars for each examination of a defendant and
  a fee of fifty dollars for each appearance at a court hearing  or  trial
  but  not  exceeding  two  hundred  dollars  in  fees for examination and
  testimony in any one case; except that if such psychiatric  examiner  be
  an  employee  of  the  state  of  New  York he shall be entitled only to
  reasonable traveling expenses, unless such  psychiatric  examiner  makes
  the examination or appears at a court hearing or trial outside his hours
  of  state  employment  in  a  county  in which the director of community
  mental health services certifies to  the  fiscal  officer  thereof  that
  there  is  a  shortage  of  qualified psychiatrists available to conduct
  examinations under the criminal procedure law in such county,  in  which
  event  he  shall  be  entitled  to  the  foregoing  fees  and reasonable
  traveling expenses.  Such fees and traveling expenses and the  costs  of
  sending  a  defendant to another place of detention or to a hospital for
  examination, of his maintenance therein and of returning him shall, when
  approved by the court, be a charge of the county in which the  defendant
  is being tried.

S 730.30 Fitness to proceed; order of examination.
  1.    At  any  time  after a defendant is arraigned upon an accusatory
  instrument other than a felony complaint and before  the  imposition  of
  sentence,  or  at  any time after a defendant is arraigned upon a felony
  complaint and before he is held for the action of the  grand  jury,  the
  court  wherein  the  criminal  action  is pending must issue an order of
  examination when it is of the opinion  that  the  defendant  may  be  an
  incapacitated person.
    2.  When the examination reports submitted to the court show that each
  psychiatric  examiner  is  of  the  opinion that the defendant is not an
  incapacitated person, the court  may,  on  its  own  motion,  conduct  a
  hearing  to  determine  the  issue  of  capacity,  and it must conduct a
  hearing upon motion  therefor  by  the  defendant  or  by  the  district
  attorney.    If  no  motion  for  a hearing is made, the criminal action
  against the defendant must proceed.  If, following a hearing, the  court
  is  satisfied  that  the  defendant  is not an incapacitated person, the
  criminal action against him  must  proceed;  if  the  court  is  not  so
  satisfied,  it  must issue a further order of examination directing that
  the defendant be examined by different psychiatric examiners  designated
  by the director.
    3.  When the examination reports submitted to the court show that each
  psychiatric  examiner  is  of  the  opinion  that  the  defendant  is an
  incapacitated person, the court  may,  on  its  own  motion,  conduct  a
  hearing  to  determine  the  issue  of capacity and it must conduct such
  hearing upon motion  therefor  by  the  defendant  or  by  the  district
  attorney.
    4.   When the examination reports submitted to the court show that the
  psychiatric examiners are not unanimous in their opinion as  to  whether
  the  defendant  is  or  is  not  an  incapacitated  person,  or when the
  examination reports submitted  to  the  superior  court  show  that  the
  psychiatric  examiners  are not unanimous in their opinion as to whether
  the defendant is or is not a dangerous incapacitated person,  the  court
  must   conduct   a  hearing  to  determine  the  issue  of  capacity  or
  dangerousness.

S 730.40 Fitness to proceed; local criminal court accusatory instrument.
  1. When a local criminal court, following a hearing conducted pursuant
  to  subdivision  three  or four of section 730.30, is satisfied that the
  defendant is not an incapacitated person, the  criminal  action  against
  him  or  her  must  proceed. If it is satisfied that the defendant is an
  incapacitated person, or if no motion for such a hearing is  made,  such
  court  must  issue  a final or temporary order of observation committing
  him or her to the custody of the commissioner for care and treatment  in
  an  appropriate  institution for a period not to exceed ninety days from
  the date of the order, provided,  however,  that  the  commissioner  may
  designate  an appropriate hospital for placement of a defendant for whom
  a final order of observation has been issued,  where  such  hospital  is
  licensed  by  the office of mental health and has agreed to accept, upon
  referral by the commissioner, defendants  subject  to  final  orders  of
  observation  issued  under this subdivision. When a local criminal court
  accusatory instrument other than  a  felony  complaint  has  been  filed
  against   the  defendant,  such  court  must  issue  a  final  order  of
  observation.  When  a  felony  complaint  has  been  filed  against  the
  defendant,  such  court  must  issue  a  temporary  order of observation
  committing him or her to the custody of the commissioner  for  care  and
  treatment  in  an  appropriate  institution  or, upon the consent of the
  district  attorney,  committing  him  or  her  to  the  custody  of  the
  commissioner  for  care  and  treatment  on  an out-patient basis, for a
  period not to exceed ninety days from the date  of  such  order,  except
  that,  with  the  consent of the district attorney, it may issue a final
  order of observation.
    2.  When  a  local  criminal  court  has  issued  a  final  order   of
  observation,  it  must  dismiss  the accusatory instrument filed in such
  court against the defendant and such dismissal constitutes a bar to  any
  further   prosecution  of  the  charge  or  charges  contained  in  such
  accusatory instrument. When the defendant  is  in  the  custody  of  the
  commissioner  pursuant  to a final order of observation the commissioner
  must, immediately upon the discharge of the defendant, certify  to  such
  court  that  he or she has complied with the notice provisions set forth
  in subdivision six of section 730.60 of this article. When the defendant
  is in the custody of the commissioner at the expiration  of  the  period
  prescribed  in  a temporary order of observation, the proceedings in the
  local criminal court that issued such  order  shall  terminate  for  all
  purposes and the commissioner must promptly certify to such court and to
  the  appropriate  district attorney that the defendant was in his or her
  custody on such expiration date. Upon receipt of such certification, the
  court must dismiss the felony complaint filed against the defendant.
    3. When a local criminal court has issued an order of examination or a
  temporary order of observation, and when the charge or charges contained
  in the accusatory instrument are subsequently presented to a grand jury,
  such grand jury need not hear the defendant pursuant to  section  190.50
  unless,  upon  application  by  defendant  to  the  superior  court that
  impaneled such grand  jury,  the  superior  court  determines  that  the
  defendant is not an incapacitated person.
    4.  When  an  indictment  is  filed  against a defendant after a local
  criminal court has issued an order of  examination  and  before  it  has
  issued  a final or temporary order of observation, the defendant must be
  promptly arraigned upon the indictment, and the proceedings in the local
  criminal court shall thereupon terminate for all purposes. The  district
  attorney  must  notify the local criminal court of such arraignment, and
  such court must thereupon dismiss the  accusatory  instrument  filed  in
  such  court  against  the  defendant.  If the director has submitted the
  examination reports to the local criminal court, such court must forward
  them to the superior court in which the indictment  was  filed.  If  the
  director  has not submitted such reports to the local criminal court, he
  must submit them to the superior  court  in  which  the  indictment  was
  filed.
    5.  When an indictment is timely filed against the defendant after the
  issuance of a temporary order of observation or after the expiration  of
  the  period  prescribed  in such order, the superior court in which such
  indictment is filed must direct the  sheriff  to  take  custody  of  the
  defendant  at  the  institution  in  which  he is confined and bring him
  before  the  court  for  arraignment  upon  the  indictment.  After  the
  defendant  is  arraigned  upon  the  indictment, such temporary order of
  observation or any order issued pursuant to the mental hygiene law after
  the expiration of the  period  prescribed  in  the  temporary  order  of
  observation   shall  be  deemed  nullified.  Notwithstanding  any  other
  provision of law, an indictment filed in  a  superior  court  against  a
  defendant  for a crime charged in the felony complaint is not timely for
  the purpose of this subdivision if it is  filed  more  than  six  months
  after  the  expiration  of the period prescribed in a temporary order of
  observation issued  by  a  local  criminal  court  wherein  such  felony
  complaint  was  pending. An untimely indictment must be dismissed by the
  superior court unless such court is satisfied that there was good  cause
  for the delay in filing such indictment.

S 730.50 Fitness to proceed; indictment.
   1.  When  a  superior court, following a hearing conducted pursuant to
  subdivision three  or  four  of  section  730.30  of  this  article,  is
  satisfied  that  the  defendant  is  not  an  incapacitated  person, the
  criminal action against him or her must proceed. If it is satisfied that
  the defendant is an incapacitated person, or if no  motion  for  such  a
  hearing  is made, it must adjudicate him or her an incapacitated person,
  and must issue a final order of observation or an order  of  commitment.
  When  the  indictment does not charge a felony or when the defendant has
  been convicted of an offense other than a felony, such  court  (a)  must
  issue  a  final  order  of  observation  committing the defendant to the
  custody of the commissioner for care and  treatment  in  an  appropriate
  institution for a period not to exceed ninety days from the date of such
  order,  provided,  however,  that  the  commissioner  may  designate  an
  appropriate hospital for placement of a defendant for whom a final order
  of observation has been issued, where such hospital is licensed  by  the
  office  of  mental health and has agreed to accept, upon referral by the
  commissioner, defendants subject to final orders of  observation  issued
  under  this  subdivision,  and  (b) must dismiss the indictment filed in
  such court against the defendant, and such dismissal constitutes  a  bar
  to  any  further  prosecution of the charge or charges contained in such
  indictment. Upon the issuance of  a  final  order  of  observation,  the
  district  attorney  shall immediately transmit to the commissioner, in a
  manner intended to protect the confidentiality  of  the  information,  a
  list  of  names and contact information of persons who may reasonably be
  expected to be the victim of any assault or any violent felony  offense,
  as  defined in the penal law, or any offense listed in section 530.11 of
  this chapter which  would  be  carried  out  by  the  committed  person;
  provided  that  the person who reasonably may be expected to be a victim
  does not need to be a member of the same  family  or  household  as  the
  committed  person.  When  the  indictment  charges  a felony or when the
  defendant has been convicted of a felony, it  must  issue  an  order  of
  commitment  committing  the defendant to the custody of the commissioner
  for care and treatment  in  an  appropriate  institution  or,  upon  the
  consent  of  the district attorney, committing him or her to the custody
  of the commissioner for care and treatment on an out-patient basis,  for
  a  period  not  to exceed one year from the date of such order. Upon the
  issuance of an  order  of  commitment,  the  court  must  exonerate  the
  defendant's  bail  if  he  or  she  was  previously  at liberty on bail;
  provided, however, that exoneration of  bail  is  not  required  when  a
  defendant  is  committed to the custody of the commissioner for care and
  treatment on an out-patient basis. When the defendant is in the  custody
  of  the  commissioner  pursuant  to  a  final  order of observation, the
  commissioner or his or her designee, which may include the  director  of
  an  appropriate  institution,  immediately  upon  the  discharge  of the
  defendant, must certify to such court that he or she has  complied  with
  the  notice  provisions set forth in paragraph (a) of subdivision six of
  section 730.60 of this article.
    2. When a defendant is in the custody of the commissioner  immediately
  prior to the expiration of the period prescribed in a temporary order of
  commitment  and  the  superintendent  of  the  institution  wherein  the
  defendant is confined is of the opinion that the defendant continues  to
  be  an incapacitated person, such superintendent must apply to the court
  that issued such order for an order of retention. Such application  must
  be  made  within  sixty  days  prior to the expiration of such period on
  forms that have been jointly adopted by the judicial conference and  the
  commissioner.  The  superintendent  must  give  written  notice  of  the
  application to the defendant and to the mental  hygiene  legal  service.
  Upon  receipt  of  such  application,  the court may, on its own motion,
  conduct a hearing to determine  the  issue  of  capacity,  and  it  must
  conduct  such  hearing  if a demand therefor is made by the defendant or
  the  mental  hygiene  legal  service  within ten days from the date that
  notice of the application was given them. If, at  the  conclusion  of  a
  hearing  conducted  pursuant to this subdivision, the court is satisfied
  that the defendant is no longer an incapacitated  person,  the  criminal
  action  against  him must proceed. If it is satisfied that the defendant
  continues to be an incapacitated person, or if no demand for  a  hearing
  is  made, the court must adjudicate him an incapacitated person and must
  issue an order of retention which shall authorize continued  custody  of
  the defendant by the commissioner for a period not to exceed one year.
    3.  When a defendant is in the custody of the commissioner immediately
  prior to the expiration of the period prescribed in the first  order  of
  retention,  the  procedure set forth in subdivision two shall govern the
  application for and the issuance of any subsequent order  of  retention,
  except  that  any subsequent orders of retention must be for periods not
  to exceed two years each; provided, however, that the aggregate  of  the
  periods prescribed in the temporary order of commitment, the first order
  of  retention  and  all  subsequent  orders of retention must not exceed
  two-thirds of the  authorized  maximum  term  of  imprisonment  for  the
  highest  class felony charged in the indictment or for the highest class
  felony of which he was convicted.
    4. When a defendant is in the  custody  of  the  commissioner  at  the
  expiration  of  the  authorized  period  prescribed in the last order of
  retention, the criminal action pending against him in the superior court
  that issued such  order  shall  terminate  for  all  purposes,  and  the
  commissioner  must promptly certify to such court and to the appropriate
  district attorney  that  the  defendant  was  in  his  custody  on  such
  expiration  date.  Upon  receipt  of  such certification, the court must
  dismiss the indictment, and such dismissal  constitutes  a  bar  to  any
  further   prosecution  of  the  charge  or  charges  contained  in  such
  indictment.
    5. When, on the effective date  of  this  subdivision,  any  defendant
  remains  in  the custody of the commissioner pursuant to an order issued
  under former code of criminal procedure section six hundred sixty-two-b,
  the superintendent or director of the institution where  such  defendant
  is  confined shall, if he believes that the defendant continues to be an
  incapacitated person, apply forthwith to a court of record in the county
  where the  institution  is  located  for  an  order  of  retention.  The
  procedures for obtaining any order pursuant to this subdivision shall be
  in accordance with the provisions of subdivisions two, three and four of
  this  section, except that the period of retention pursuant to the first
  order obtained under this subdivision shall be for  not  more  than  one
  year  and  any subsequent orders of retention must be for periods not to
  exceed two years each; provided, however, that the aggregate of the time
  spent in the custody of the commissioner pursuant to any order issued in
  accordance with the provisions of  former  code  of  criminal  procedure
  section  six hundred sixty-two-b and the periods prescribed by the first
  order obtained under this  subdivision  and  all  subsequent  orders  of
  retention  must  not exceed two-thirds of the authorized maximum term of
  imprisonment for the highest class felony charged in the  indictment  or
  the highest class felony of which he was convicted.

S 730.60 Fitness to proceed; procedure following custody by commissioner.
  1. When a local criminal court issues a final or  temporary  order  of
  observation  or an order of commitment, it must forward such order and a
  copy of the examination reports and the  accusatory  instrument  to  the
  commissioner, and, if available, a copy of the pre-sentence report. Upon
  receipt   thereof,   the  commissioner  must  designate  an  appropriate
  institution operated by the department of mental hygiene  in  which  the
  defendant  is to be placed, provided, however, that the commissioner may
  designate an appropriate hospital for placement of a defendant for  whom
  a  final  order  of  observation has been issued, where such hospital is
  licensed by the office of mental health and has agreed to  accept,  upon
  referral  by  the  commissioner,  defendants  subject to final orders of
  observation issued under this subdivision. The  sheriff  must  hold  the
  defendant  in  custody pending such designation by the commissioner, and
  when notified of the designation, the sheriff must deliver the defendant
  to the superintendent  of  such  institution.  The  superintendent  must
  promptly  inform  the  appropriate  director of the mental hygiene legal
  service of the defendant's admission to such institution. If a defendant
  escapes from the custody of the commissioner, the escape shall interrupt
  the period  prescribed  in  any  order  of  observation,  commitment  or
  retention,  and  such interruption shall continue until the defendant is
  returned to the custody of the commissioner.
    2. Except as otherwise provided in subdivisions four and five, when  a
  defendant  is in the custody of the commissioner pursuant to a temporary
  order of observation or an order of commitment or an order of retention,
  the criminal action pending against the  defendant  in  the  court  that
  issued   such  order  is  suspended  until  the  superintendent  of  the
  institution in which the defendant is confined determines that he is  no
  longer  an  incapacitated  person.  In that event, the court that issued
  such order and the appropriate district attorney must  be  notified,  in
  writing,  by  the  superintendent  of  his determination. The court must
  thereupon proceed in accordance with the provisions of  subdivision  two
  of  section  730.30  of this chapter; provided, however, if the court is
  satisfied that the defendant remains an incapacitated person,  and  upon
  consent  of all parties, the court may order the return of the defendant
  to the institution in which he had been confined for such period of time
  as was  authorized  by  the  prior  order  of  commitment  or  order  of
  retention.  Upon  such  return,  the defendant shall have all rights and
  privileges accorded by the provisions of this article.
    3. When a defendant is in the custody of the commissioner pursuant  to
  an  order  issued  in accordance with this article, the commissioner may
  transfer him to any appropriate institution operated by  the  department
  of   mental  hygiene,  provided,  however,  that  the  commissioner  may
  designate an appropriate hospital for placement of a defendant for  whom
  a  final  order  of  observation has been issued, where such hospital is
  licensed by the office of mental health and has agreed to  accept,  upon
  referral  by  the  commissioner,  defendants  subject to final orders of
  observation issued under this section. The commissioner may discharge  a
  defendant  in his custody under a final order of observation at any time
  prior to the expiration date  of  such  order,  or  otherwise  treat  or
  transfer  such  defendant in the same manner as if he were a patient not
  in confinement under a criminal court order.
    4. When a defendant is in the custody of the commissioner pursuant  to
  an  order of commitment or an order of retention, he may make any motion
  authorized by this chapter which is susceptible  of  fair  determination
  without  his personal participation. If the court denies any such motion
  it must be without prejudice to a renewal  thereof  after  the  criminal
  action  against  the defendant has been ordered to proceed. If the court
  enters an order dismissing the indictment and does not direct  that  the
  charge  or charges be resubmitted to a grand jury, the court must direct
  that such order of dismissal be served upon the commissioner.
    5.  When a defendant is in the custody of the commissioner pursuant to
  an order of commitment or an order of retention, the superior court that
  issued such order may, upon  motion  of  the  defendant,  and  with  the
  consent  of the district attorney, dismiss the indictment when the court
  is satisfied that (a) the defendant is a resident or citizen of  another
  state  or  country and that he will be removed thereto upon dismissal of
  the indictment, or (b) the defendant has been continuously  confined  in
  the  custody  of  the  commissioner for a period of more than two years.
  Before granting a motion under  this  subdivision,  the  court  must  be
  further  satisfied  that  dismissal of the indictment is consistent with
  the  ends  of  justice  and  that  custody  of  the  defendant  by   the
  commissioner pursuant to an order of commitment or an order of retention
  is  not  necessary  for  the  protection of the public and that care and
  treatment can be effectively administered to the defendant  without  the
  necessity of such order. If the court enters an order of dismissal under
  this  subdivision,  it must set forth in the record the reasons for such
  action, and must direct that such order of dismissal be served upon  the
  commissioner.   The   dismissal   of  an  indictment  pursuant  to  this
  subdivision constitutes a bar to any further prosecution of  the  charge
  or charges contained in such indictment.
    6. (a) Notwithstanding any other provision of law, no person committed
  to  the  custody  of  the  commissioner  pursuant  to  this  article, or
  continuously thereafter retained in such custody, shall  be  discharged,
  released  on  condition  or placed in any less secure facility or on any
  less restrictive  status,  including,  but  not  limited  to  vacations,
  furloughs  and  temporary  passes, unless the commissioner or his or her
  designee, which may include the director of an appropriate  institution,
  shall  deliver  written notice, at least four days, excluding Saturdays,
  Sundays and holidays,  in  advance  of  the  change  of  such  committed
  person's  facility  or  status,  or  in  the  case of a person committed
  pursuant to a final order of observation written notice  upon  discharge
  of such committed person, to all of the following:
    (1)  The  district  attorney  of the county from which such person was
  committed;
    (2) The superintendent of state police;
    (3) The sheriff of the county where the facility is located;
    (4) The police department having jurisdiction of the  area  where  the
  facility is located;
    (5)  Any person who may reasonably be expected to be the victim of any
  assault or any violent felony offense, as defined in the penal  law,  or
  any offense listed in section 530.11 of this part which would be carried
  out by the committed person; provided that the person who reasonably may
  be  expected  to  be  a  victim does not need to be a member of the same
  family or household as the committed person; and
    (6) Any other person the court may designate.
    Said notice may be given by any means reasonably  calculated  to  give
  prompt actual notice.
    (b)  The  notice  required  by  this  subdivision  shall also be given
  immediately upon the departure of such committed person from the  actual
  custody  of  the  commissioner  or  an  appropriate institution, without
  proper authorization. Nothing in this subdivision shall be construed  to
  impair any other right or duty regarding any notice or hearing contained
  in any other provision of law.
    (c)  Whenever a district attorney has received the notice described in
  this  subdivision,  and  the  defendant  is  in  the  custody   of   the
  commissioner  pursuant  to  a  final order of observation or an order of
  commitment, he may apply within three days of receipt of such notice  to
  a  superior  court,  for  an  order  directing  a  hearing to be held to
  determine whether such committed  person  is  a  danger  to  himself  or
  others.  Such  hearing  shall  be  held  within  ten  days following the
  issuance of such order. Such order may provide that there  shall  be  no
  further  change  in  the committed person's facility or status until the
  hearing. Upon a finding that the committed person is a danger to himself
  or  others,  the  court  shall  issue  an  order  to  the   commissioner
  authorizing  retention of the committed person in the status existing at
  the time notice was given hereunder, for  a  specified  period,  not  to
  exceed  six  months.  The  district  attorney and the committed person's
  attorney shall be entitled to the committed person's clinical records in
  the commissioner's custody, upon the issuance of an  order  directing  a
  hearing to be held.
    (d) Nothing in this subdivision shall be construed to impair any other
  right  or  duty  regarding  any notice or hearing contained in any other
  provision of law.

S 730.70 Fitness to proceed; procedure following termination of custody
              by commissioner.
  When a defendant  is  in  the  custody  of  the  commissioner  on  the
  expiration date of a final or temporary order of observation or an order
  of commitment, or on the expiration date of the last order of retention,
  or  on  the  date  an  order dismissing an indictment is served upon the
  commissioner,  the  superintendent  of  the  institution  in  which  the
  defendant is confined may retain him for care and treatment for a period
  of thirty days from such date. If the superintendent determines that the
  defendant  is  so  mentally  ill  or  mentally  defective  as to require
  continued care and treatment in  an  institution,  he  may,  before  the
  expiration   of   such   thirty  day  period,  apply  for  an  order  of
  certification in the manner prescribed in section 31.33  of  the  mental
  hygiene law.

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