This bill has been amended

Bill S6548-2011

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 15, 2012: ADVANCED TO THIRD READING
  • Mar 14, 2012: 2ND REPORT CAL.
  • Mar 13, 2012: 1ST REPORT CAL.343
  • Feb 24, 2012: REFERRED TO CODES

Meetings

Calendars

Votes

VOTE: COMMITTEE VOTE: - Codes - Mar 13, 2012
Ayes (12): Saland, DeFrancisco, Flanagan, Fuschillo, Gallivan, Golden, Lanza, Nozzolio, O'Mara, Duane, Squadron, Espaillat
Ayes W/R (3): Gianaris, Huntley, Perkins
Nays (1): Parker

Memo

BILL NUMBER:S6548

TITLE OF BILL:

An act to amend the criminal procedure law, in relation to orders of observation for the purpose of determining incapacitation

PURPOSE:

Relates to orders of observation for the purpose of determining incapacitation

SUMMARY OF PROVISIONS:

Section 1. Amends section 730.40 of the criminal procedure law to provide that when a local criminal court has issued a final order of observation it must dismiss the accusatory instrument filed in the court except that upon the motion of the district attorney, the dismissal date can be adjourned for up to one year for the purpose of issuance of an order of protection for the protection of the complainant. When the defendant is in the custody of the commissioner at the expiration of the period prescribed in a final order of observation 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.

Section 2. Amends section 730.50 of the criminal procedure law to provide that when it is satisfied that the defendant is an incapacitated person, and when the defendant has not been charged with a felony or when the defendant has been convicted of an offense other than a felony such court, among other things, must dismiss the indictment filed in such court against the defendant except that upon motion of the district attorney the dismissal date can be adjourned for up to one year for the purpose of issuance of an order of protection for the protection of the complainant.

Section 3. Effective Date.

JUSTIFICATION:

Under current law, when a defendant is determined to be an incapacitated person and has been charged with a misdemeanor, the charges are dismissed in a final order of observation, and that individual is referred for medical treatment. In contrast, when a defendant is charged with a felony, the commissioner is required to notify the court and the district attorney's office that that the individual is in his custody at the expiration of the period of his temporary order of observation. This notification principle in felony cases, has proven to be a useful tool to ensure that patients are compliant with their medical treatment, the district attorney's office has adequate notification regarding the whereabouts of the individual, and the court can address the needs of the parties before them in an appropriate fashion.

This legislation would allow the court, upon motion of the district attorney, to adjourn the dismissal date of a final order of observation for lip to one year for the purposes of securing an order of protection for the complainant. Some of the misdemeanors at issue in a final order of observation can include stalking and harassment - crimes that have an underlying current of violence, and often result in a significant amount of fear and anxiety for the victim. Today, these victims would find that a case would be dismissed upon a finding of incapacity, and would be left without any assurances that the defendant could not be released in the very near future. By affording the victim an opportunity to obtain an order of protection, this bill will close this existing loophole.

LEGISLATIVE HISTORY:

New bill.

FISCAL IMPLICATIONS:

None.

LOCAL FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

This act shall take effect immediately.


Text

STATE OF NEW YORK ________________________________________________________________________ 6548 IN SENATE February 24, 2012 ___________
Introduced by Sen. SALAND -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the criminal procedure law, in relation to 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 2 of section 730.40 of the criminal procedure law 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], EXCEPT THAT UPON MOTION OF THE DISTRICT ATTORNEY THE DISMISSAL DATE CAN BE ADJOURNED FOR UP TO ONE YEAR FOR THE PURPOSE OF ISSUANCE OF AN ORDER OF PROTECTION PURSUANT TO SECTION 530.11 OR 530.12 OF THIS PART FOR THE PROTECTION OF THE COMPLAINANT. UPON SUCH DISMISSAL IT SHALL CONSTITUTE 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 AT THE EXPIRATION OF THE PERIOD PRESCRIBED IN A FINAL ORDER OF OBSERVA- TION 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. When the defendant is in the custody of the commissioner at the expiration of the period prescribed in a tempo- rary order of observation, the proceedings in the local criminal court that issued such order shall terminate for all purposes and the commis- sioner must promptly certify to such court and to the appropriate district attorney that the defendant was in his custody on such expira- tion date. Upon receipt of such certification, the court must dismiss the felony complaint filed against the defendant, EXCEPT THAT UPON MOTION OF THE DISTRICT ATTORNEY THE DISMISSAL DATE CAN BE ADJOURNED FOR UP TO ONE YEAR FOR THE PURPOSE OF ISSUANCE OF AN ORDER OF PROTECTION PURSUANT TO SECTION 530.11 OR 530.12 OF THIS PART FOR THE PROTECTION OF THE COMPLAINANT.
S 2. Subdivision 1 of section 730.50 of the criminal procedure law, as amended by chapter 231 of the laws of 2008, 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 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 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, EXCEPT THAT UPON MOTION OF THE DISTRICT ATTORNEY THE DISMISSAL DATE CAN BE ADJOURNED FOR UP TO ONE YEAR FOR THE PURPOSE OF ISSUANCE OF AN ORDER OF PROTECTION PURSUANT TO SECTION 530.11 OR 530.12 OF THIS PART FOR THE PROTECTION OF THE COMPLAINANT, and UPON such dismissal [constitutes] IT SHALL CONSTITUTE a bar to any further prosecution of the charge or charges contained in such indictment. 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 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 was previously at liberty on bail. S 3. This act shall take effect immediately.

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