730.50 - Fitness to proceed; indictment.

§ 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, 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, 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  thehighest  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.