Relates to orders of observation for the purpose of determining incapacitation.
BILL NUMBER:S6548A REVISED 06/13/12
TITLE OF BILL:
An act to amend the criminal procedure law, in relation to orders of observation for the purpose of determining incapacitation
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 criminal court has issued a final order of observation it must dismiss the accusatory instrument filed in the court against the defendant and 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 (6) of section 730.60 of this article.
Section 2. Amends section 730.60 of the criminal procedure law to provide that when a defendant is committed pursuant to a final order of observation the commissioner of mental hygiene must provide written notice upon discharge of such committed person and requires anyone that may reasonably be expected to be a victim of an offense enumerated in section 530.11 of the CPL to the list of persons to be notified by the commissioner under this section. For purposes of notice under this provision, a victim of the enumerated offenses need not be a member of the same.
Section 3. Effective Date.
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 and the status of such persons custody is not reported back to the court, district attorney's office or the victim. In contrast, when a defendant is charged with a felony, the commissioner is required to notify the court, the district attorney's office and victims of assaults or violent felony offenses that that the individual is in his custody at the expiration of the period of his temporary order of observation before such persons release. 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 require notification when a person is committed to the custody of the commissioner pursuant to a final order of observation. Some of the misdemeanors at issue in a final order of observation can include stalking and harassment and domestic violence crimes-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 information about the defendant's whereabouts. This bill provides all victims of family offense crimes, regardless of the victim's relationship to the perpetrator, and domestic violence survivors an opportunity to obtain information about an incapacitated person's release so they may plan for their safety.
LEGISLATIVE HISTORY: New bill.
FISCAL IMPLICATIONS: None.
LOCAL FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This act shall take effect immediately.
STATE OF NEW YORK ________________________________________________________________________ 6548--A Cal. No. 343 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 -- reported favora- bly from said committee, ordered to first and second report, ordered to a third reading, amended and ordered reprinted, retaining its place in the order of third reading 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 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, IMME- DIATELY UPON THE DISCHARGE OF THE DEFENDANT, CERTIFY TO SUCH COURT THAT HE OR SHE HAS COMPLIED WITH THE NOTICE PROVISIONS SET FORTH IN SUBDIVI- SION 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 crimi- nal court that issued such order shall terminate for all purposes and the commissioner must promptly certify to such court and to the appro- priate 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 2. Paragraph (a) of subdivision 6 of section 730.60 of the criminal procedure law, as added by chapter 549 of the laws of 1980, and the opening paragraph as amended by chapter 440 of the laws of 1987, is 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 onEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD14006-02-2 S. 6548--A 2
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 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 OBSERVA- TION 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. S 3. This act shall take effect immediately.