ARTICLE 1

Section 1001.1 Definitions. Whenever to this Part or in the forms promulgated or approved hereunder, the following terms appear, they shall have the following meaning:

(a) Director of community mental health services means the person responsible for the administration of community mental health and mental retardation services in a county or city, whether known or referred to as director, commissioner, or otherwise.

(b) Director when used in connection with a hospital, institution, or other facility, means the person in charge of the facility, whether known or referred to as director, superintendent, or otherwise.

100.2 Examination of defendant. (a) An order for the examination of a defendant to determine whether he is an incapacitated person under article 730 of the Criminal Procedure Law shall be addressed to the director of community mental health services of the county where the criminal action is pending except in the City of New York where the order shall be addressed to the director of community government that has been certified by the Commissioner of Mental Hygiene as having adequate facilities mental health services of such city. If there is no such director of community mental health services, the order shall be addressed to the director of a hospital operated by local government within such county or city that has been certified as having adequate facilities for such purpose by the Commissioner of Mental Hygiene or, in the absence of such local hospital, to the director of the State hospital operated by the Department of Mental Hygiene serving the county where the criminal action is pending.

(b) The hospital in which a defendant may be confined for examination pursuant to subdivisions (2) or (3) of section 730.20 of the Criminal Procedure Law shall be a hospital operated by local to examine a defendant to determine if he is an incapacitated person. If there be no such local governmental hospital serving the county where the criminal proceeding is pending, the defendant may be confined in a general hospital having a phychiatric unit approved by the Commissioner of Mental Hygiene or in a State hospital operated by the Department of Mental Hygiene approved for such purpose if the person in charge thereof shall have given his consent to the confinement of such defendant therein.

100.3 Examination report. (a) The examination of the defendant by the psychiatric examiners may be conducted separately or jointly but each examiner shall execute a separate report. Such report shall be made in the form jointly adopted by the Judicial Conference and the Commissioner of Mental Hygiene.

(b) The director of community mental health services charged with causing the examination to be made shall furnish six copies of the examination report to the court for filing and necessary distribution. The court shall require that copies be furnished to counsel for the defendant and to the district attorney.

(a) If the court is satisfied that the defendant is an incapacitated person or a dangerous incapacitated person, as the case may be, and the defendant is not in custody, the court shall cause the defendant to appear before it at the time of issuing a final order of observation, temporary order of observation or order of commitment, or other appropriate order, as the case may be.

(b) The court shall forward to the Commissioner of Mental Hygiene the order committing the defendant to his custody together with a copy of the examination reports, a copy of the accusatory instrument and, if available, a copy of the pre-sentence report. Upon receipt thereof, the Commissioner of Mental Hygiene shall designate the institution in which the defendant is to be placed and give notice of such designation to the sheriff or local correction department, as the case may be, who shall deliver the defendant, if in custody, to the person in charge of the designated institution, except that, in the case of final orders of observation, the Department of Mental Hygiene may provide the transportation to the designated institution.

(a) The application for an order of retention of a defendant held pursuant to an order of commitment or order of retention shall be made within 60 days prior to the expiration of the order pursuant to which the defendant is being held. It shall be prepared by the director of the institution where the defendant is confined and shall have annexed to it a summary of the defendant's history and condition supporting the application, a copy of the indictment and a copy of each prior order of commitment or retention. Such director shall serve notice of the application on the defendant, on the defendant's attorney if known to the director, on the district attorney of the county where the criminal proceeding is pending, and on the mental health information service. Such director shall then promptly file the application with the court which issued the initial order of commitment of the defendant.

(b) The application shall not be brought on for determination by the court prior to 10 days from the date upon which notice of the application was served upon the defendant. A request by the defendant or anyone on his behalf for a hearing shall be forwarded to the court, with a copy to the district attorney and the mental health information service. The clerk of the court shall notify the defendant, the defendant's attorney if any, the district attorney, the director of the institution where the defendant is confined, and the mental health information service of the time and place of the hearing.

(c) Upon issuance of an order of retention, the court shall forward copies thereof to the district attorney, to the director of the institution where the defendant is confined, to the Commissioner of Mental Hygiene and to the mental health information service. The director of the institution where the defendant is confined shall serve a copy of such order personally upon the defendant.

100.6 Order of adjudication of dangerousness. (a) The director of an institution in which a defendant is confined pursuant to an order of commitment or an order of retention may apply for a court order adjudicating the defendant a dangerous incapacitated person. The application shall be prepared by such director and shall have annexed to it a summary of the defendant's history and condition supporting the application, a copy of the indictment and a copy of each prior order of commitment or retention. Such director shall serve notice of the application on the defendant, on the defendant's attorney if known, to the director, on the district attorney of the county where the criminal proceeding is pending and on the mental health information service. Such director shall then promptly file such application with the court which issued the initial order of commitment of the defendant.

(b) The application shall not be brought on for determination by the court prior to 10 days from the date upon which notice of the application was served upon the defendant. A request by the defendant or anyone on his behalf for a hearing shall be forwarded to the court, with a copy to the district attorney and the mental health information service. The clerk of the court shall notify the defendant, the defendant's attorney if any, the district attorney, the director of the institution where the defendant is confined and the mental health information service of the time and place of the hearing.

(c) Upon issuance of an order of adjudication of dangerousness, the court shall forward copies thereof to the district attorney, to the director of the institution where the defendant is confined, to the Commissioner of Mental Hygiene and to the mental health information service. The person in charge of the institution where the defendant is confined shall serve a copy of such order personally upon the defendant.

100.7 Certificate of custody. When defendant is in the custody of the Commissioner of Mental Hygiene at the expiration of the period prescribed in a temporary order of observation or at the expiration of the authorized period prescribed in the last order of retention, the director of the institution where the defendant is confined may act as the agent of the Commissioner of Mental Hygiene in certifying to the court that the defendant was in the custody of the Commissioner of Mental Hygiene on such expiration date.

100.8 Official forms. The forms appended hereto [see appendix A-7, infra] and listed in the index preceding them, shall be the official forms for use in implementation of said article 730 of the Criminal Procedure Law and were adopted by the Commissioner of Mental Hygiene and the Judicial conference jointly, or by each of them individually, as indicated by the index. Variations in these forms will be permitted if approved by the agency or agencies indicated as having adopted them.

It is my opinion that the above-named defendant is an incapacitated person in that the said defendant as a result of mental disease or defect lacks capacity to understand the proceeding against him or to assist in his own defense. My opinion is based on the following:

(NOTE TO EXAMINER: If the order of examination has been issued by the Supreme Court or the County Court you must also complete the following, setting forth your opinion as to whether the defendant is, or is not, a dangerous incapacitated person.)

It is my further opinion that the above-named defendant (is) (is not) a dangerous incapacitated person, that is, an incapacitated person who is so mentally ill or mentally defective that his presence in an institution operated by the Department of Mental Hygiene is dangerous to the safety of other patients therein, the staff of the institution or the community. The following is a detailed statement of the reasons for finding the defendant to be a dangerous incapacitated person. (NOTE: No statement is necessary if defendant is not so found).

(Qualified Psychiatrist) (Certified

A copy of this application was personally served upon the said defendant on the __ day of __, 19 , with a notice of his right to request a hearing and copies thereof have been served by mail upon the Mental Health Information Service, the District Attorney of __ county and __.

(Name any other person served).

Hospital

A copy of this application was personally served upon the said defendant on the __ day of __, 19 , with a notice of his right to request a hearing and copies thereof have been served by mail upon the Mental Health Information Service, the District Attorney of __ county and __.

(Name any other person served)

Hospital

Form DMH 706 (4-72)

NOTICE TO SHERIFF OR LOCAL DEPARTMENT OF CORRECTION

TO: ______ ______ ______ ______

Pursuant to the following designation and order of court stated therein (copy attached) you are required to deliver the defendant, __, to the institution so designated.

ALAN D. MILLER, M.D. Commissioner of Mental Hygiene

NOTICE TO DIRECTOR OF INSTITUTION

TO: ______ ______ ______ ______

Pursuant to the following designation and order of court stated therein, your institution has been designated as appropriate for care and treatment of the named defendant. Such defendant will be delivered to your institution by the appropriate sheriff or local department of correction.

ALAN D. MILLER, M.D. Commissioner of Mental Hygiene

The __ Court, __ County, has committed to my custody __, the defendant in a criminal proceeding pending in such court, pursuant to an order dated __ (copy attached). I hereby designate __ an institution in the Department of __ as the appropriate institution for the care and treatment of such defendant.

(for the Commissioner of Mental Hygiene)

Form DMH 720 (4-72)

TO: ______ ______ ______

The Commissioner of Mental Hygiene was served on __, 19 with an order of the __ Court, County of __, dismissing the indictment against __, a patient presently in the custody of the commissioner pursuant to order of such court and confined at your institution.

Authority to retain the above-named patient will cease thirty days from the date of the said service. The patient should therefore be examined and a determination made as to the need for continued in-patient care and treatment.

If the patient is found to be mentally ill or mentally defective and in need of continued in-patient care and treatment, the Director should make appropriate application for an order of retention or certification as is provided under Sec. 73 or Sec. 124 of the Mental Hygiene Law or, if the patient is confined in an institution in the Department of Correction and is so dangerously mentally ill or dangerously mentally defective as to require continued care and treatment in an institution in the Department of Correction, the person in charge of such institution shall before the expiration of such 30 day period apply for an order of certification as is provided under Sec. 85 or Sec. 135 of the Mental Hygiene Law.

____________M.D.

for the Commissioner of Mental Hygiene

DATE: _______

NOW, on motion of __, it is

ORDERED that the above named defendant be committed to the custody of the Commissioner of Mental Hygiene for care and treatment in an appropriate institution of the Department of Mental Hygiene to be designated by said Commissioner for a period not to exceed ninety days from the date of this order, and it is further

(Enter: County Sheriff or N.Y.C. Commissioner of Correction),

and it is further

ORDERED, that the accusatory instrument filed in this court against such defendant is hereby dismissed.

[Print name to be signed] Justice or Judge,

____________Court

ORDERED that if the person in charge of the institution in which the defendant is confined determines at any time that the defendant is no longer an incapacitated person, such person shall give notice in writing of such determination to this court and to the District Attorney, and it is further

(Enter: County Sheriff or N.Y.C. Commissioner of Correction),

[Print name to be signed] Justice or Judge,

____________Court

AND it appearing to my satisfaction that the said defendant as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense,

AND it appearing further to my satisfaction that said defendant is a dangerous incapacitated person, that is, an incapacitated person who is so mentally ill or mentally defective that his presence in an institution operated by the Department of Mental Hygiene is dangerous to the safety of other patients therein, the staff of the institution or the community,

AND it appearing further that the maximum term of imprisonment for the highest lass of felony charged in the indictment against the defendant or for the highest class of felony of which the defendant was convicted is __ years, that two thirds of such authorized maximum term of imprisonment is __ years, __ months, __ days, and that the aggregate of the periods for which the defendant was authorized to be retained pursuant to the order of commitment and orders of retention is, as of the date of this order, __ years, __ months, __ days and the aggregate of the periods of escape from custody is, as of the date of this order, __ years, __ months, __ days,

NOW, THEREFORE, it is

ORDERED that: [NOTE: Check the appropriate one of the following two paragraphs, depending on whether there has been a finding of dangerousness. Strike out the inappropriate paragraph, The period of authorized retention may not exceed the period prescribed in C.P.L. Article 730]

□ the above named defendant is hereby adjudicated to be an incapacitated person and is hereby authorized to be retained in the custody of the Commissioner of Mental Hygiene for care and treatment in an appropriate institution operated by the Department of Mental Hygiene to be designated by said Commissioner, for a period not to exceed __ years, __ months, __ days from the date of this order, and it is further

□ the above named defendant is hereby adjudicated to be a dangerous incapacitated person and is hereby committed to the custody of the Commissioner of Mental Hygiene for care and treatment in an appropriate institution operated by the Department of Mental Hygiene or operated by the Department of Correction to be designated by said Commissioner, for a period not to exceed __ years, __ months, __ days from the date of this order, and it is further

ORDERED that, if the person in charge of the institution in which the defendant is confined determines that the defendant is no longer an incapacitated person, such person shall gave notice in writing of such determination to the court and to the District Attorney.

[Print name to be signed] Justice or Judge,

____________Court

NOTICE TO ACQUITTED DEFENDANT: You may make application to the court for a dsicharge or conditional release pursuant to Section 330.20 of the Criminal Procedure Law to determine whether or not you may be discharged or released without danger to yourself or to others. You may have a jury trial of this issue if you so request.

You are also hereby advised that the Mental Health Information Service, which is an agency of the Supreme Court of the State of New York, has been established to provide you and others interested in your welfare with assistance and information as to your rights under the law and the procedures governing your retention. You or others on your behalf are entitled to communicate with a representative of the Service at any time.