Bill S3034-2013

Relates to orders of observation for the purpose of determining incapacitation

Relates to orders of observation for the purpose of determining incapacitation.

Details

Actions

  • Mar 11, 2013: SUBSTITUTED BY A196
  • Mar 5, 2013: ADVANCED TO THIRD READING
  • Mar 4, 2013: 2ND REPORT CAL.
  • Feb 28, 2013: 1ST REPORT CAL.131
  • Jan 28, 2013: REFERRED TO CODES

Meetings

Votes

VOTE: COMMITTEE VOTE: - Codes - Feb 28, 2013
Ayes (16): Nozzolio, Boyle, DeFrancisco, Flanagan, Fuschillo, Gallivan, Golden, Lanza, O'Mara, Smith, Squadron, Perkins, Espaillat, Hoylman, Sampson, O'Brien

Memo

BILL NUMBER:S3034

TITLE OF BILL: An act to amend the criminal procedure law and the mental hygiene law, in relation to orders of observation for the purpose of determining incapacitation

PURPOSE OF BILL: Relates to notice of discharge of persons confined pursuant to an order of observation for the purpose of determining incapacitation.

SUMMARY OF PROVISIONS OF BILL:

Section 1 amends section 730.40 of the criminal procedure law to require the district attorney to provide information to the commissioner of mental health about persons who may reasonably be expected to be a victim of an assault or violent felony offense.

Sections 2, 3 and 4 make conforming changes to relevant provisions of the criminal procedure law.

Section 5 makes conforming changes to the mental hygiene law. Section 6 is the effective date.

JUSTIFICATION: Legislation enacted in 2012 (Chapter 476 of 2012) expanded the duty of the Commissioner of Mental Health and the Commissioner of the Office for People with Developmental Disabilities to notify victims upon the discharge from custody of persons found incapacitated to stand trial. Specifically, the new law requires the Commissioner to certify to the court that he or she has complied with the notice provisions and also expands the list of victims that must be notified.

The Executive raised concerns that the agencies required to provide the notice do not always have access to all relevant victim information. Therefore, this bill further strengthens the new law by requiring the district attorney to transmit the names and contact information of victims to the Commissioners to help ensure access to relevant information regarding the identity of victims.

LEGISLATIVE HISTORY: New bill, 2013.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.

EFFECTIVE DATE: Immediately,


Text

STATE OF NEW YORK ________________________________________________________________________ 3034 2013-2014 Regular Sessions IN SENATE January 28, 2013 ___________
Introduced by Sen. NOZZOLIO -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the criminal procedure law and the mental hygiene law, in relation to orders of observation for the purpose of determining incapacitation THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 1 of section 730.40 of the criminal procedure law, as amended by section 2 of part Q of chapter 56 of the laws of 2012, is amended to read as follows: 1. When a local criminal 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 crimi- nal 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 nine- ty days from the date of the order, provided, however, that the commis- sioner may designate an appropriate hospital for placement of a defend- ant 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 crimi- nal 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 defend- ant, 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 attor- ney, 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. 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. S 2. Subdivision 2 of section 730.40 of the criminal procedure law, as amended by chapter 476 of the laws of 2012, is amended to read as follows: 2. When a local criminal court has issued a final order of observa- tion, 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 accusato- ry instrument. When the defendant is in the custody of the commissioner pursuant to a final order of observation, the commissioner [must] OR HIS OR HER DESIGNEE, WHICH MAY INCLUDE THE DIRECTOR OF AN APPROPRIATE INSTI- TUTION, 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. When the defendant is in the custody of the commissioner at the expiration of the period prescribed in a temporary order of observa- tion, 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. S 3. Paragraphs (a) and (b) of subdivision 6 of section 730.60 of the criminal procedure law, paragraph (a) as amended by chapter 476 of the laws of 2012, and paragraph (b) as added by chapter 549 of the laws of 1980, are amended to read as follows: (a) Notwithstanding any other provision of law, no person committed to the custody of the commissioner pursuant to this article, or continuous- ly thereafter retained in such custody, shall be discharged, released on condition or placed in any less secure facility or on any less restric- tive 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 imme- diately upon the departure of such committed person from the [commis- sioner's] actual custody OF THE COMMISSIONER OR AN APPROPRIATE INSTITU- TION, 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. S 4. Subdivision 1 of section 730.50 of the criminal procedure law, as amended by section 3 of part Q of chapter 56 of the laws of 2012, is amended to read as follows: 1. When a superior court, following a hearing conducted pursuant to subdivision three or four of section 730.30 of this article, is satis- fied 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 observa- tion has been issued, where such hospital is licensed by the office of mental health and has agreed to accept, upon referral by the commission- er, 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 indict- ment. 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 defend- ant'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. S 5. Subdivision (h) of section 29.11 of the mental hygiene law, as added by chapter 549 of the laws of 1980, is amended to read as follows: (h) Notwithstanding any other provision of law, no person committed to the custody of the commissioner of mental hygiene pursuant to article seven hundred thirty of the criminal procedure law, or continuously thereafter retained in such custody, shall be discharged, released on condition or placed in any less secure facility or on any less restric- tive 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 AS DEFINED IN SECTION 730.10 OF THE CRIMINAL PROCEDURE LAW, 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 OBSER- VATION 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 THE CRIMINAL PROCEDURE LAW 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; 6. the attorney for the committed person, where the attorney shall so request; and 7. any other person the court may designate. Said notice may be given by any means reasonably calculated to give prompt actual notice. The notice required by this subdivision shall also be given immediately upon the departure of such committed person from the [commissioner's] actual custody OF THE COMMISSIONER OR AN APPROPRI- ATE INSTITUTION, without proper authorization. Nothing in this subdivi- sion shall be construed to impair any other right or duty regarding any notice or hearing contained in any other provision of law. S 6. This act shall take effect immediately.

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