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                 New York Criminal Procedure Law - ARTICLE 730
             MENTAL DISEASE OR DEFECT EXCLUDING FITNESS TO PROCEED
Section 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 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 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.  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, 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 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 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, is satisfied 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 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.  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.
  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. 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. 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 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, 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,
which would be carried out by 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
commissioner`s actual custody, 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.