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Article 330 - NY Criminal Procedure Law

• NY Laws ›
• CPL ›
• Part 2 ›
• Title J ›
• Article 330

S 330.10 Disposition of defendant after verdict of acquittal.
  1.  Upon a verdict of complete acquittal, the court must immediately
discharge the defendant if he is in the custody of the sheriff, or, if
he is at liberty on bail, it must exonerate the bail.
  2.  Upon a verdict of not responsible by reason of mental disease or
defect, the provisions of section 330.20 of this chapter shall govern
all subsequent proceedings against the defendant.

S 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.
    (b)  "Secure  facility"  means  a  facility within the state office of
  mental  health  or  the  state  office   of   mental   retardation   and
  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.
    (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 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 judgment is  so  impaired  that  he  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 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 does not have dangerous mental disorder, whether he 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  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.
    (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  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  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.
    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  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 has completed his examination
  of the defendant, each psychiatric  examiner  must  promptly  prepare  a
  report  of his 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
  psychiatric examiners, the court may designate one  or  more  additional
  psychiatric  examiners  pursuant to subdivision fifteen 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.
    6.  Initial  hearing;  commitment order. After the examination reports
  are submitted, the court must, within ten days of the  receipt  of  such
  reports, conduct an initial hearing to determine the defendant's present
  mental condition. If the defendant is in the custody of the commissioner
  pursuant  to  an examination order, the court must direct the sheriff to
  obtain custody of the defendant from the commissioner and to confine the
  defendant pending further order of the court, except that the court  may
  direct  the  sheriff  to confine the defendant in an institution located
  near the place where  the  court  sits  if  that  institution  has  been
  designated  by the commissioner as suitable for the temporary and secure
  detention of mentally disabled persons. At  such  initial  hearing,  the
  district  attorney  must establish to the satisfaction of the court that
  the defendant has a dangerous mental disorder or is mentally ill. If the
  court finds that the defendant has a dangerous mental disorder, it  must
  issue a commitment order. If the court finds that the defendant does not
  have  a dangerous mental disorder but is mentally ill, the provisions of
  subdivision seven of this section shall apply.
    7. Initial hearing civil commitment and order of  conditions.  If,  at
  the  conclusion of the initial hearing conducted pursuant to subdivision
  six of this section, the court finds that the defendant is mentally  ill
  but  does  not  have  a  dangerous  mental  disorder,  the provisions of
  articles nine or fifteen of the mental hygiene law shall apply  at  that
  stage of the proceedings and at all subsequent proceedings. Having found
  that  the  defendant  is  mentally ill, the court must issue an order of
  conditions and an order committing the defendant to the custody  of  the
  commissioner. The latter order shall be deemed an order made pursuant to
  the  mental  hygiene  law  and not pursuant to this section, and further
  retention, conditional release or discharge of such defendant  shall  be
  in  accordance with the provisions of the mental hygiene law. If, at the
  conclusion of the initial hearing, the court finds  that  the  defendant
  does  not  have a dangerous mental disorder and is not mentally ill, the
  court must discharge the defendant either unconditionally or subject  to
  an order of conditions.
    7-a.  Whenever the court issues a special order of conditions pursuant
  to this section, the  commissioner  shall  make  reasonable  efforts  to
  notify the victim or victims or the designated witness or witnesses that
  a  special  order  of  conditions  containing  such  provisions has been
  issued, unless such victim or witness has  requested  that  such  notice
  should not be provided.
    8.  First  retention  order. When a defendant is in the custody of the
  commissioner pursuant to a commitment order, the commissioner  must,  at
  least  thirty  days  prior to the expiration of the period prescribed in
  the order, apply to the court that issued the order, or  to  a  superior
  court  in  the  county where the secure facility is located, for a first
  retention order or a release order. The commissioner must  give  written
  notice  of  the  application  to  the  district attorney, the defendant,
  counsel for the defendant, and the mental hygiene  legal  service.  Upon
  receipt of such application, the court may, on its own motion, conduct a
  hearing  to  determine  whether  the  defendant  has  a dangerous mental
  disorder, and it must conduct such hearing if a demand therefor is  made
  by  the  district attorney, the defendant, counsel for the defendant, or
  the mental hygiene legal service within ten  days  from  the  date  that
  notice  of  the application was given to them. If such a hearing is held
  on  an application for retention, the commissioner must establish to the
  satisfaction of the court that the  defendant  has  a  dangerous  mental
  disorder  or is mentally ill. The district attorney shall be entitled to
  appear and present evidence at such hearing. If such a hearing  is  held
  on  an  application for release, the district attorney must establish to
  the satisfaction of the court that the defendant has a dangerous  mental
  disorder or is mentally ill. If the court finds that the defendant has a
  dangerous  mental disorder it must issue a first retention order. If the
  court finds that the defendant is mentally  ill  but  does  not  have  a
  dangerous  mental  disorder,  it must issue a first retention order and,
  pursuant to subdivision eleven of this section, a transfer order and  an
  order of conditions. If the court finds that the defendant does not have
  a  dangerous  mental  disorder  and is not mentally ill, it must issue a
  release order and an order of conditions pursuant to subdivision  twelve
  of this section.
    9.  Second and subsequent retention orders. When a defendant is in the
  custody of the commissioner pursuant to a  first  retention  order,  the
  commissioner  must,  at least thirty days prior to the expiration of the
  period prescribed in the order, apply  to  the  court  that  issued  the
  order,  or  to  a  superior  court  in  the county where the facility is
  located,  for  a  second  retention  order  or  a  release  order.   The
  commissioner must give written notice of the application to the district
  attorney,  the  defendant,  counsel  for  the  defendant, and the mental
  hygiene legal service. Upon receipt of such application, the court  may,
  on  its own motion, conduct a hearing to determine whether the defendant
  has a dangerous mental disorder, and it must conduct such hearing  if  a
  demand therefor is made by the district attorney, the defendant, counsel
  for  the  defendant, or the mental hygiene legal service within ten days
  from the date that notice of the application was given to them. If  such
  a hearing is held on an application for retention, the commissioner must
  establish  to  the  satisfaction  of  the court that the defendant has a
  dangerous mental disorder or is  mentally  ill.  The  district  attorney
  shall  be  entitled  to  appear and present evidence at such hearing. If
  such a hearing is held on  an  application  for  release,  the  district
  attorney  must  establish  to  the  satisfaction  of  the court that the
  defendant has a dangerous mental disorder or is  mentally  ill.  If  the
  court  finds  that the defendant has a dangerous mental disorder it must
  issue a second retention order. If the court finds that the defendant is
  mentally ill but does not have a  dangerous  mental  disorder,  it  must
  issue  a  second  retention order and, pursuant to subdivision eleven of
  this section, a transfer order and an order of conditions. If the  court
  finds  that  the defendant does not have a dangerous mental disorder and
  is not mentally ill, it must issue a  release  order  and  an  order  of
  conditions  pursuant  to  subdivision  twelve  of  this  section. When a
  defendant is in the custody of the commissioner prior to the  expiration
  of the period prescribed in a second retention order, the procedures set
  forth  in  this subdivision for the issuance of a second retention order
  shall govern the application for and  the  issuance  of  any  subsequent
  retention order.
    10.  Furlough  order. The commissioner may apply for a furlough order,
  pursuant to this  subdivision,  when  a  defendant  is  in  his  custody
  pursuant  to  a commitment order, recommitment order, or retention order
  and the commissioner is of the view that,  consistent  with  the  public
  safety  and  welfare  of  the  community and the defendant, the clinical
  condition of  the  defendant  warrants  a  granting  of  the  privileges
  authorized by a furlough order. The application for a furlough order may
  be  made to the court that issued the commitment order, or to a superior
  court  in  the  county  where  the  secure  facility  is  located.   The
  commissioner must give ten days written notice to the district attorney,
  the  defendant,  counsel for the defendant, and the mental hygiene legal
  service. Upon receipt of such application, the court  may,  on  its  own
  motion, conduct a hearing to determine whether the application should be
  granted,  and  must conduct such hearing if a demand therefor is made by
  the district attorney. If  the  court  finds  that  the  issuance  of  a
  furlough  order  is consistent with the public safety and welfare of the
  community and the defendant, and that  the  clinical  condition  of  the
  defendant warrants a granting of the privileges authorized by a furlough
  order,  the  court must grant the application and issue a furlough order
  containing any terms and conditions that the court  deems  necessary  or
  appropriate.  If the defendant fails to return to the secure facility at
  the time  specified  in  the  furlough  order,  then,  for  purposes  of
  subdivision  nineteen  of  this  section,  he  shall  be  deemed to have
  escaped.
    11. Transfer order and order of conditions. The commissioner may apply
  for a transfer order, pursuant to this subdivision, when a defendant  is
  in  his  custody  pursuant to a retention order or a recommitment order,
  and the commissioner is of the view that the defendant does not  have  a
  dangerous mental disorder or that, consistent with the public safety and
  welfare  of  the  community and the defendant, the clinical condition of
  the defendant  warrants  his  transfer  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. The application for
  a transfer order may be made to the court that issued  the  order  under
  which  the  defendant  is then in custody, or to a superior court in the
  county where the secure facility is located. The commissioner must  give
  ten days written notice to the district attorney, the defendant, counsel
  for the defendant, and the mental hygiene legal service. Upon receipt of
  such application, the court may, on its own motion, conduct a hearing to
  determine  whether  the  application should be granted, and must conduct
  such hearing if the demand therefor is made by the district attorney. At
  such hearing, the district attorney must establish to  the  satisfaction
  of  the court that the defendant has a dangerous mental disorder or that
  the issuance of a transfer order is inconsistent with the public  safety
  and  welfare  of the community. The court must grant the application and
  issue a transfer order if the court finds that the  defendant  does  not
  have  a  dangerous  mental  disorder,  or  if  the  court finds that the
  issuance of a transfer order is consistent with the  public  safety  and
  welfare  of  the  community  and  the  defendant  and  that the clinical
  condition of the defendant, warrants his transfer from a secure facility
  to a non-secure facility. A court must also issue a transfer order when,
  in connection with an application for a first retention  order  pursuant
  to subdivision eight of this section or a second or subsequent retention
  order  pursuant  to  subdivision  nine  of this section, it finds that a
  defendant is mentally ill but does not have a dangerous mental disorder.
  Whenever a court issues a transfer order it must also issue an order  of
  conditions.
    12.  Release order and order of conditions. The commissioner may apply
  for a release order, pursuant to this subdivision, when a  defendant  is
  in  his custody pursuant to a retention order or recommitment order, and
  the commissioner is of the view that  the  defendant  no  longer  has  a
  dangerous mental disorder and is no longer mentally ill. The application
  for a release order may be made to the court that issued the order under
  which  the  defendant  is then in custody, or to a superior court in the
  county where the facility is located. The  application  must  contain  a
  description of the defendant's current mental condition, the past course
  of  treatment,  a  history  of the defendant's conduct subsequent to his
  commitment,  a  written service plan for continued treatment which shall
  include the information specified in subdivision (g) of section 29.15 of
  the mental hygiene law, and a detailed statement of the extent to  which
  supervision of the defendant after release is proposed. The commissioner
  must  give  ten  days  written  notice  to  the  district  attorney, the
  defendant, counsel for the  defendant,  and  the  mental  hygiene  legal
  service.  Upon  receipt  of  such  application,  the court must promptly
  conduct a hearing to determine the defendant's present mental condition.
  At  such  hearing,  the  district  attorney  must   establish   to   the
  satisfaction  of  the  court  that  the defendant has a dangerous mental
  disorder or is mentally ill. If the court finds that the defendant has a
  dangerous mental disorder, it must deny the application  for  a  release
  order.  If  the court finds that the defendant does not have a dangerous
  mental disorder but is mentally ill, it  must  issue  a  transfer  order
  pursuant  to subdivision eleven of this section if the defendant is then
  confined in a secure facility. If the court  finds  that  the  defendant
  does  not  have  a dangerous mental disorder and is not mentally ill, it
  must grant the application and issue a release order. A court must  also
  issue  a  release  order  when,  in connection with an application for a
  first retention order pursuant to subdivision eight of this section or a
  second or subsequent retention order pursuant  to  subdivision  nine  of
  this  section,  it  finds  that  the defendant does not have a dangerous
  mental disorder and is not mentally  ill.  Whenever  a  court  issues  a
  release  order  it  must also issue an order of conditions. If the court
  has previously issued a transfer order and an order  of  conditions,  it
  must  issue  a new order of conditions upon issuing a release order. The
  order of conditions issued in conjunction with  a  release  order  shall
  incorporate  a  written service plan prepared by a psychiatrist familiar
  with the defendant's case history and approved by the court,  and  shall
  contain  any  conditions  that  the  court  determines  to be reasonably
  necessary  or  appropriate.  It  shall  be  the  responsibility  of  the
  commissioner  to determine that such defendant is receiving the services
  specified in  the  written  service  plan  and  is  complying  with  any
  conditions specified in such plan and the order of conditions.
    13. Discharge order. The commissioner may apply for a discharge order,
  pursuant  to this subdivision, when a defendant has been continuously on
  an out-patient status for three years or  more  pursuant  to  a  release
  order,  and the commissioner is of the view that the defendant no longer
  has a dangerous mental disorder and is no longer mentally ill  and  that
  the  issuance  of a discharge order is consistent with the public safety
  and welfare of the community and the defendant. The  application  for  a
  discharge  order may be made to the court that issued the release order,
  or to a superior court  in  the  county  where  the  defendant  is  then
  residing.  The  commissioner  must  give  ten days written notice to the
  district attorney, the defendant, counsel for  the  defendant,  and  the
  mental  hygiene  legal  service.  Upon  receipt of such application, the
  court may, on its own motion, conduct a hearing to determine whether the
  application should be granted, and must conduct such hearing if a demand
  therefor is made by the district attorney.  The  court  must  grant  the
  application  and  issue  a  discharge  order if the court finds that the
  defendant has been continuously on an out-patient status for three years
  or more, that he does not have a dangerous mental disorder  and  is  not
  mentally ill, and that the issuance of the discharge order is consistent
  with the public safety and welfare of the community and the defendant.
    14.  Recommitment  order.  At any time during the period covered by an
  order of conditions an application may be made by  the  commissioner  or
  the  district  attorney  to  the  court  that issued such order, or to a
  superior court in the county where the defendant is then residing, for a
  recommitment  order when the applicant is of the view that the defendant
  has a dangerous mental disorder. The applicant must give written  notice
  of  the application to the defendant, counsel for the defendant, and the
  mental hygiene legal service, and if the applicant is  the  commissioner
  he must give such notice to the district attorney or if the applicant is
  the district attorney he must give such notice to the commissioner. Upon
  receipt of such application the court must order the defendant to appear
  before  it  for  a hearing to determine if the defendant has a dangerous
  mental disorder. Such order may be in the  form  of  a  written  notice,
  specifying  the time and place of appearance, served personally upon the
  defendant, or mailed to his last known address, as the court may direct.
  If the defendant fails to appear in court as  directed,  the  court  may
  issue  a  warrant  to an appropriate peace officer directing him to take
  the defendant into custody and bring  him  before  the  court.  In  such
  circumstance,  the court may direct that the defendant be confined in an
  appropriate institution located near the place where the court sits. The
  court must conduct a hearing to determine whether the  defendant  has  a
  dangerous mental disorder. At such hearing, the applicant, whether he be
  the  commissioner  or  the  district  attorney  must  establish  to  the
  satisfaction of the court that the  defendant  has  a  dangerous  mental
  disorder.  If  the  applicant is the commissioner, the district attorney
  shall be entitled to appear and present evidence at such hearing; if the
  applicant is the district attorney, the commissioner shall  be  entitled
  to  appear and present evidence at such hearing. If the court finds that
  the  defendant  has  a  dangerous  mental  disorder,  it  must  issue  a
  recommitment   order.  When  a  defendant  is  in  the  custody  of  the
  commissioner pursuant to a recommitment order, the procedures set  forth
  in  subdivisions  eight  and  nine  of  this section for the issuance of
  retention orders shall govern the application for and the issuance of  a
  first   retention  order,  a  second  retention  order,  and  subsequent
  retention orders.
    15. Designation of psychiatric examiners. If, at any hearing conducted
  under  this  section  to  determine  the  defendant's   present   mental
  condition,  the  court  is  not  satisfied  with  the  findings  of  the
  psychiatric  examiners,  the  court  may  direct  the  commissioner   to
  designate  one  or  more  additional psychiatric examiners to conduct an
  examination of the defendant and submit a report of their  findings.  In
  addition,  the  court may on its own motion, or upon request of a party,
  may designate one or more psychiatric examiners to examine the defendant
  and submit a report of their findings. The district attorney  may  apply
  to  the  court  for  an  order directing that the defendant submit to an
  examination  by  a  psychiatric  examiner  designated  by  the  district
  attorney, and such psychiatric examiner may testify at the hearing.
    16.  Rehearing  and review. Any defendant who is in the custody of the
  commissioner pursuant to a commitment order, a  retention  order,  or  a
  recommitment  order, if dissatisfied with such order, may, within thirty
  days after the making of such order, obtain a rehearing  and  review  of
  the  proceedings  and of such order in accordance with the provisions of
  section 9.35 or 15.35 of the mental hygiene law.
    17. Rights of defendants. Subject to the limitations and provisions of
  this section, a defendant committed to the custody of  the  commissioner
  pursuant to this section shall have the rights granted to patients under
  the mental hygiene law.
    18.  Notwithstanding any other provision of law, no person confined by
  reason of a commitment order, recommitment order or retention order to a
  secure facility may be discharged or released  unless  the  commissioner
  shall  deliver  written  notice, at least four days excluding Saturdays,
  Sundays  and holidays, in advance of such discharge or release to all of
  the following:
    (a) the district attorney.
    (b) the police department having jurisdiction of the area to which the
  defendant is to be discharged or released.
    (c) any other person the court may designate.
    The notices required  by  this  subdivision  shall  be  given  by  the
  facility   staff  physician  who  was  treating  the  defendant  or,  if
  unavailable, by the defendant's treatment team leader, but if neither is
  immediately available, notice must be given by some other member of  the
  clinical  staff  of the facility. Such notice must be given by any means
  reasonably calculated to give prompt actual notice.
    19. Escape from custody; notice requirements. If a defendant is in the
  custody of the commissioner pursuant  to  an  order  issued  under  this
  section,  and  such  defendant escapes from custody, immediate notice of
  such escape shall be given by the department facility staff to: (a)  the
  district  attorney,  (b)  the  superintendent  of  state police, (c) the
  sheriff of  the  county  where  the  escape  occurred,  (d)  the  police
  department  having  jurisdiction  of the area where the escape occurred,
  (e) any person the facility staff believes to be in danger, and (f)  any
  law  enforcement agency and any person the facility staff believes would
  be able to apprise such endangered person that the defendant has escaped
  from the facility. Such notice shall be given as soon  as  the  facility
  staff  know  that  the defendant has escaped from the facility and shall
  include such information as will adequately identify the  defendant  and
  the  person  or  persons  believed to be in danger and the nature of the
  danger. The notices required by this subdivision shall be given  by  the
  facility   staff  physician  who  was  treating  the  defendant  or,  if
  unavailable, by the defendant's treatment team leader, but if neither is
  immediately available, notice must be given by some other member of  the
  clinical  staff  of the facility. Such notice must be given by any means
  reasonably calculated to give prompt actual notice. The defendant may be
  apprehended, restrained, transported to, and returned  to  the  facility
  from  which he escaped by any peace officer, and it shall be the duty of
  the officer to assist any representative of the commissioner to take the
  defendant into custody upon the request of such representative.
    20. Required affidavit. No application may be made by the commissioner
  under this section without an accompanying affidavit from at  least  one
  psychiatric  examiner supportive of relief requested in the application,
  which affidavit shall be served on all parties entitled to  receive  the
  notice  of  application.  Such affidavit shall set forth the defendant's
  clinical diagnosis, a detailed analysis of his or her  mental  condition
  which  caused  the psychiatric examiner to formulate an opinion, and the
  opinion of the psychiatric examiner with respect to the  defendant.  Any
  application  submitted without the required affidavit shall be dismissed
  by the court.
    21. Appeals. (a) A party to proceedings conducted in  accordance  with
  the  provisions  of  this  section may take an appeal to an intermediate
  appellate court by permission of the  intermediate  appellate  court  as
  follows:
    (i)  the  commissioner  may  appeal  from any release order, retention
  order,  transfer  order,  discharge  order,  order  of  conditions,   or
  recommitment order, for which he has not applied;
    (ii)  a  defendant,  or the mental hygiene legal service on his or her
  behalf,  may  appeal  from  any  commitment  order,   retention   order,
  recommitment  order,  or,  if the defendant has obtained a rehearing and
  review of any  such  order  pursuant  to  subdivision  sixteen  of  this
  section,  from an order, not otherwise appealable as of right, issued in
  accordance with the provisions of section 9.35 or 15.35  of  the  mental
  hygiene  law  authorizing  continued retention under the original order,
  provided,  however,  that  a  defendant  who  takes  an  appeal  from  a
  commitment  order,  retention  order,  or  recommitment  order  may  not
  subsequently obtain a rehearing and review of  such  order  pursuant  to
  subdivision sixteen of this section;
    (iii)  the  district  attorney  may  appeal  from  any  release order,
  transfer order, discharge order, order of conditions, furlough order, or
  order denying an application for a recommitment order which he opposed.
    (b)  An  aggrieved  party  may  appeal  from  a  final  order  of  the
  intermediate  appellate  court  to the court of appeals by permission of
  the intermediate appellate court granted before application to the court
  of appeals, or by permission of the court of appeals upon refusal by the
  intermediate appellate court or upon direct application.
    (c) An appeal taken under this subdivision shall be  deemed  civil  in
  nature,  and shall be governed by the laws and rules applicable to civil
  appeals; provided, however, that a stay of the order appealed from  must
  be obtained in accordance with the provisions of paragraph (d) hereof.
    (d)  The  court  from  or  to  which  an  appeal is taken may stay all
  proceedings to enforce the order appealed  from  pending  an  appeal  or
  determination  on  a  motion  for  permission  to appeal, or may grant a
  limited stay, except that only the court to which an appeal is taken may
  vacate, limit, or  modify  a  stay  previously  granted.  If  the  order
  appealed  from is affirmed or modified, the stay shall continue for five
  days after service upon the appellant of  the  order  of  affirmance  or
  modification  with  notice of its entry in the court to which the appeal
  was taken. If a motion is made for permission to  appeal  from  such  an
  order,  before  the  expiration of the five days, the stay, or any other
  stay granted pending determination  of  the  motion  for  permission  to
  appeal, shall:
    (i)  if  the  motion  is  granted,  continue until five days after the
  appeal is determined; or
    (ii) if the motion is denied,  continue  until  five  days  after  the
  movant is served with the order of denial with notice of its entry.
    22.  Any  special  order of conditions issued pursuant to subparagraph
  (i) or (ii) of paragraph (o) of subdivision one of  this  section  shall
  bear  in a conspicuous manner the term "special order of conditions" and
  a copy shall be filed by the clerk  of  the  court  with  the  sheriff's
  office  in  the  county in which anyone intended to be protected by such
  special order resides, or, if anyone intended to be  protected  by  such
  special  order resides within a city, with the police department of such
  city.  The absence of language specifying that the order is  a  "special
  order of conditions" shall not affect the validity of such order. A copy
  of  such  special  order of conditions may from time to time be filed by
  the clerk of the court with any other  police  department  or  sheriff's
  office  having  jurisdiction  of the residence, work place, or school of
  anyone intended to be protected by such special order. A  copy  of  such
  special  order  may  also be filed by anyone intended to be protected by
  such provisions at the appropriate police department or sheriff's office
  having jurisdiction. Any subsequent  amendment  or  revocation  of  such
  special  order  may  be  filed  in  the  same manner as provided in this
  subdivision.  Such special order of conditions shall plainly  state  the
  date that the order expires.

S 330.25 Removal after verdict.
  1.  Where a defendant is a juvenile offender who does not stand
convicted of murder in the second degree, upon motion and with the
consent of the district attorney, the action may be removed to the
family court in the interests of justice pursuant to article seven
hundred twenty-five of this chapter notwithstanding the verdict.
  2.  If the district attorney consents to the motion for removal
pursuant to this section, he shall file a subscribed memorandum with the
court setting forth (1) a recommendation that the interests of justice
would best be served by removal of the action to the family court; and
(2) if the conviction is of an offense set forth in paragraph (b) of
subdivision one of section 210.43 of this chapter, specific factors, one
or more of which reasonably support the recommendation, showing, (i)
mitigating circumstances that bear directly upon the manner in which the
crime was committed, or (ii) where the defendant was not the sole
participant in the crime, that the defendant`s participation was
relatively minor although not so minor as to constitute a defense to
prosecution, or (iii) where the juvenile offender has no previous
adjudications of having committed a designated felony act, as defined in
subdivision eight of section 301.2 of the family court act, regardless
of the age of the offender at the time of commission of the act, that
the criminal act was not part of a pattern of criminal behavior and, in
view of the history of the offender, is not likely to be repeated.
  3.  If the court is of the opinion, based upon the specific factors
set forth in the district attorney`s memorandum, that the interests of
justice would best be served by removal of the action to the family
court, the verdict shall be set aside and a plea of guilty of a crime or
act for which the defendant is not criminally responsible may be entered
pursuant to subdivision three or four of section 220.10 of this chapter.
Upon accepting any such plea, the court must specify upon the record the
portion or portions of the district attorney`s statement the court is
relying upon as the basis of its opinion and that it believes the
interests of justice would best be served by removal of the proceeding
to the family court.  Such plea shall then be deemed to be a juvenile
delinquency fact determination and the court upon entry thereof must
direct that the action be removed to the family court in accordance with
the provisions of article seven hundred twenty-five of this chapter.

S 330.30  Motion to set aside verdict; grounds for.
  At any time after rendition of a verdict of guilty and before
sentence, the court may, upon motion of the defendant, set aside or
modify the verdict or any part thereof upon the following grounds:
  1.  Any ground appearing in the record which, if raised upon an appeal
from a prospective judgment of conviction, would require a reversal or
modification of the judgment as a matter of law by an appellate court.
  2.  That during the trial there occurred, out of the presence of the
court, improper conduct by a juror, or improper conduct by another
person in relation to a juror, which may have affected a substantial
right of the defendant and which was not known to the defendant prior to
the rendition of the verdict; or
  3.  That new evidence has been discovered since the trial which could
not have been produced by the defendant at the trial even with due
diligence on his part and which is of such character as to create a
probability that had such evidence been received at the trial the
verdict would have been more favorable to the defendant.

S 330.40 Motion to set aside verdict; procedure.
  1.  A motion to set aside a verdict based upon a ground specified in
subdivision one of section 330.30 need not be in writing, but the people
must be given reasonable notice thereof and an opportunity to appear in
opposition thereto.
  2.  A motion to set aside a verdict based upon a ground specified in
subdivisions two and three of section 330.30 must be made and determined
as follows:
  (a)  The motion must be in writing and upon reasonable notice to the
people.  The moving papers must contain sworn allegations, whether by
the defendant or by another person or persons, of the occurrence or
existence of all facts essential to support the motion.  Such sworn
allegations may be based upon personal knowledge of the affiant or upon
information and belief, provided that in the latter event the affiant
must state the sources of such information and the grounds of such
belief;
  (b)  The people may file with the court, and in such case must serve a
copy thereof upon the defendant or his counsel, an answer denying or
admitting any or all of the allegations of the moving papers;
  (c)  After all papers of both parties have been filed, the court must
consider the same and, if the motion is determinable pursuant to
paragraphs (d) or (e), must or may, as therein provided, determine the
motion without holding a hearing to resolve questions of fact;
  (d)  The court must grant the motion if:
  (i)  The moving papers allege a ground constituting legal basis for
the motion; and
  (ii)  Such papers contain sworn allegations of all facts essential to
support such ground; and
  (iii)  All the essential facts are conceded by the people to be true.
  (e)  The court may deny the motion if:
  (i)  The moving papers do not allege any ground constituting legal
basis for the motion; or
  (ii)  The moving papers do not contain sworn allegations of all facts
essential to support the motion.
  (f)  If the court does not determine the motion pursuant to paragraphs
(d) or (e), it must conduct a hearing and make findings of fact
essential to the determination thereof;
  (g)  Upon such a hearing, the defendant has the burden of proving by a
preponderance of the evidence every fact essential to support the
motion.

S 330.50 Motion to set aside verdict; order granting motion.
  1.  Upon setting aside or modifying a verdict or a part thereof upon a
ground specified in subdivision one of section 330.30, the court must
take the same action as the appropriate appellate court would be
required to take upon reversing or modifying a judgment upon the
particular ground in issue.
  2.  Upon setting aside a verdict upon a ground specified in
subdivision two of section 330.30, the court must order a new trial.
  3.  Upon setting aside a verdict upon a ground specified in
subdivision three of section 330.30, the court must, except as otherwise
provided in this subdivision, order a new trial.  If a verdict is set
aside upon the ground that had the newly discovered evidence in question
been received at the trial the verdict probably would have been more
favorable to the defendant in that the conviction probably would have
been for a lesser offense than the one contained in the verdict, the
court may either (a) set aside such verdict or (b) with the consent of
the people modify such verdict by reducing it to one of conviction of
such lesser offense.
  4.  Upon a new trial resulting from an order setting aside a verdict,
the indictment is deemed to contain all the counts and to charge all the
offenses which it contained and charged at the time the previous trial
was commenced, regardless of whether any count was dismissed by the
court in the course of such trial, except those upon or of which the
defendant was acquitted or is deemed to have been acquitted.

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