 |
| PART 110.
Procedure Under Cpl 330.20 (jointly Adopted By The State Commissioner
Of Mental Health And The Chief Administrator Of The Courts) |
| Commercial
reuse of the Rules as they appear on this web site is
prohibited. The official version of the Rules published
in the NYCRR is available on Westlaw. |
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110.1 Preamble
110.2 Definitions
110.3 Examination order
110.4 Initial hearing, commitment order; civil
commitment
110.5 First retention order
110.6 Second retention order
110.7 Subsequent retention order
110.8 Furlough order
110.9 Transfer order
110.10 Release order
110.11 Order of conditions
110.12 Recommitment order
110.13 Discharge order
110.14 Psychiatric examination; scope; form
of report |
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110.1 Preamble
(a) Section 12 of chapter 548 of the Laws of 1980 requires
the State Commissioner of Mental Health and the Chief Administrator
of the Courts to implement section 11 of that chapter (which
added a new section 330.20 to the Criminal Procedure Law,
hereinafter cited as CPL 330.20) by jointly adopting rules
respecting the following matters:
(1) the scope of the psychiatric examinations prescribed
by CPL 330.20;
(2) the data to be furnished the psychiatric examiners conducting
the examinations prescribed in CPL 330.20;
(3) the form and content of the examination reports required
to be filed under CPL 330.20;
(4) the form and content of the applications authorized
to be filed under CPL 330.20; and
(5) the form and content of the court orders issuable under
CPL 330.20.
(b)(1) The rules prescribed in this Part, including the
forms appended hereto have been jointly adopted by the
State Commissioner of Mental Health and the Chief Administrator
of the Courts. The appended forms shall be the official forms
for use in implementing CPL 330.20. Variations in these forms
will be permitted if jointly approved by the said commissioner
and chief administrator, or if, in the context of a particular
case, a variation in a form is required in order to comply
with an applicable provision of law.
(2) Since the appended forms do not expressly provide for
a defendant who is mentally retarded, the appropriate forms
must be modified by the court to conform with the provisions
of CPL 330.20 when a defendant, found not responsible by reason
of mental disease or defect, is determined by the court to
be mentally retarded and not suffering from a dangerous mental
disorder. In such case, if the defendant is in need of care
and treatment as a resident in the inpatient services of a
developmental center or other residential facility for the
mentally retarded and developmentally disabled, jurisdiction
is vested by law in the State Office of Mental Retardation
and Developmental Disabilities, and not in the State Office
of Mental Health [CPL 330.20(1)(d)]. Forms
Procedure following verdict or plea of not responsible by reason of mental disease or defect, see West's McKinney's Forms, CPL, Section 330.20, Forms 1 to 31.
Historical Note
Sec. added by renum. 6.1, filed Feb. 2, 1982 eff. Jan. 1,
1982.
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110.2 Definitions
The definitions set forth in section 1.20, and in subdivision
1 of section 330.20, of the Criminal Procedure Law shall be
applicable to this Part and the forms appended hereto.
Forms
Procedure following verdict or plea of not responsible by reason of mental disease or defect, see West's McKinney's Forms, CPL, Section 330.20, Forms 1 to 31. Historical Note
Sec. added by renum. 6.2, filed Feb. 2, 1982 eff. Jan. 1,
1982.
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110.3 Examination order
(a) Upon entry of a verdict of not responsible by reason
of mental disease or defect, or upon the acceptance of a
plea of not responsible by reason of mental disease or defect,
the court must immediately issue an examination order. The
form and contents of this examination order are prescribed
in Form A and Form B (see Chapter II of Subtitle D of this
Title). Form A directs that the defendant be committed to
a secure facility as the place for conducting the psychiatric
examination. Form B directs that the examination be conducted
on an outpatient basis. Form B may be used in the court's
discretion, but only if the defendant was not in custody
at the time of the "not responsible" verdict or
plea because he was previously released on bail or on his
own recognizance.
(b) Form A authorizes confinement in a secure facility
for a period not exceeding 30 days. Upon application
of the commissioner, the court may authorize confinement
for an additional period not exceeding 30 days when a longer
period is necessary to complete the examination. Form A-1
prescribes the form and contents of this application and
the order authorizing confinement for an additional period.
(c) Form B directs the outpatient psychiatric examination
be completed within 30 days after the defendant has first
reported to the place designated by the commissioner. Upon
application of the commissioner, the court may extend such
period for a reasonable time if a longer period is necessary
to complete the examination. Form B-1 prescribes the form
and contents of this application and the order extending
the examination period. If the commissioner informs the court
that confinement of the defendant is necessary for an effective
examination, the court must direct that the defendant be
confined in a facility designated by the commissioner until
the examination is completed. This direction
may be made orally, on the record, in open court.
(d) When an examination order is issued, the clerk of the
court shall promptly forward or furnish a copy of this order
to the persons named in Form A or Form B. In order to assist
the psychiatric examiners in their examination of the defendant,
the clerk of the court shall also promptly forward to the
commissioner, or directly to the designated psychiatric examiners,
the following material:
(1) a copy of the indictment and any other accusatory instrument
in the court's file;
(2) a copy of any examination report submitted pursuant
to CPL article 730;
(3) any psychiatric reports or medical records received
in evidence at the trial or other proceedings before the court;
and
(4) any other data or material designated by the court or
requested by the psychiatric examiners, including any available
and transcribed psychiatric testimony given at the trial or
other proceedings before the court.
(e) After he has completed his examination of the defendant,
each psychiatric examiner must promptly prepare a report of
his findings and evaluation concerning the defendant's mental
condition. The form of the examination report shall be as
prescribed in Form Y. The report shall be submitted to the
commissioner. Upon receipt of the examination reports, the
commissioner shall submit four copies of each report to the
court that issued the examination order. The clerk of the
court shall furnish a copy of the reports to the district
attorney, counsel for the defendant and the Mental Health
Information Service.
(f) After the examination reports are submitted, the court
must, within 10 days of receipt of such reports, conduct
an initial hearing to determine the defendant's present mental
condition. If the defendant is in the custody of the commissioner
pursuant to an examination order, the court shall issue the
order prescribed in Form C.
Forms
Procedure following verdict or plea of not responsible by reason of mental disease or defect, see West's McKinney's Forms, CPL, Section 330.20, Forms 1 to 31. Historical Note
Sec. added by renum. 6.3, filed Feb. 2, 1982 eff. Jan. 1,
1982.
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110.4 Initial hearing, commitment order; civil commitment
(a) At the initial hearing conducted pursuant to subdivision
6 of CPL 330.20, if the court finds that the defendant has
a dangerous mental disorder, it must issue a commitment order.
The form and contents of this commitment order are prescribed
in Form G.
(b) At the initial hearing conducted pursuant to subdivision
6 of CPL 330.20, if the court finds that the defendant is
mentally ill but does not have a dangerous mental disorder,
the court must issue a civil order committing the defendant
to the custody of the commissioner. The form and contents
of this civil order are prescribed in Form F. When issuing
this civil order, the court must also issue at the same time
an order of conditions. The form and contents of the order
of conditions are prescribed in Form N.
(c) At the initial hearing conducted pursuant to subdivision
6 of CPL 330.20, if the court finds that the defendant does
not have a dangerous mental disorder and is not mentally ill,
the court must issue one of the following orders:
(1) an order discharging the defendant unconditionally (Form
D); or
(2) an order discharging the defendant subject to an order
of conditions (Form E and Form N).
Historical Note
Sec. added by renum. 6.4, filed Feb. 2, 1982 eff. Jan. 1,
1982.
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110.5 First retention order
(a) When a defendant is in the custody of the commissioner
pursuant to a commitment order or a recommitment order, the
commissioner must, at least 30 days prior to the expiration
of the period prescribed in the order, apply to the court
that issued the order, or to a superior court in the county
where the secure facility is located, for a first retention
order or a release order. Upon receipt of such application,
the court may, on its own motion, conduct a hearing to determine
whether the defendant has a dangerous mental disorder, and
it must conduct such hearing if a demand therefor is made
by one of the parties.
(b) Form H prescribes the form and contents of the application
for a first retention order and the notice of application.
Form Q prescribes the form and contents of the application
for a release order and the notice of application. Following
the submission of either such application pursuant to subdivision
8 of CPL 330.20, if the court finds that the defendant has
a dangerous mental disorder it must issue a first retention
order. The form and contents of this first retention order
are prescribed in Form I.
(c) Following the submission of an application for a first
retention order (Form H) or an application for a release order
(Form Q) pursuant to subdivision 8 of CPL 330.20, if the courts
finds that the defendant is mentally ill but does not have
a dangerous mental disorder, it must issue the following three
orders:
(1) a first retention order (Form I);
(2) a transfer order (Form P); and
(3) an order of conditions (Form N).
(d) Following the submission of an application for a first
retention order (Form H) or an application for a release order
(Form Q) pursuant to subdivision 8 of CPL 330.20, if the court
finds that the defendant does not have a dangerous mental
disorder and is not mentally ill, it must issue the following
two orders:
(1) a release order (Form R); and
(2) an order of conditions (Form N).
Forms
Procedure following verdict or plea of not responsible by reason of mental disease or defect, see West's McKinney's Forms, CPL, Section 330.20, Forms 1 to 31. Historical Note
Sec. added by renum. 6.5, filed Feb. 2, 1982 eff. Jan. 1,
1982.
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110.6 Second retention order
(a) When a defendant is in the custody of the commissioner
pursuant to a first retention order, the commissioner must,
at least 30 days prior to the expiration of the period prescribed
in the order, apply to the court that issued the order, or
to a superior court in the county where the facility is located,
for a second retention order or a release order. Upon receipt
of such application, the court may, on its own motion, conduct
a hearing to determine whether the defendant has a dangerous
mental disorder, and it must conduct such hearing if a demand
therefor is made by one of the parties.
(b) Form J prescribes the form and contents of the application
for a second retention order and the notice of application.
Form Q prescribes the form and contents of the application
for a release order and the notice of application. Following
the submission of either such application pursuant to subdivision
9 of CPL 330.20, if the court finds that the defendant has
a dangerous mental disorder it must issue a second retention
order. The form and contents of this second retention order
are prescribed in Form K.
(c) Following the submission of an application for a second
retention order (Form J) or an application for a release order
(Form Q) pursuant to subdivision 9 of CPL 330.20, if the court
finds that the defendant is mentally ill but does not have
a dangerous mental disorder, it must issue the following three
orders:
(1) a second retention order (Form K);
(2) a transfer order (Form P); and
(3) an order of conditions (Form N).
(d) Following the submission of an application for a second
retention order (Form J) or an application for a release order
(Form Q) pursuant to subdivision 9 of CPL 330.20, if the court
finds that the defendant does not have a dangerous mental
disorder and is not mentally ill, it must issue the following
two orders:
(1) a release order (Form R); and
(2) an order of conditions (Form N).
Forms
Procedure following verdict or plea of not responsible by reason of mental disease or defect, see West's McKinney's Forms, CPL, Section 330.20, Forms 1 to 31. Historical Note
Sec. added by renum. 6.6, filed Feb. 2, 1982 eff. Jan. 1,
1982.
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110.7 Subsequent retention order
(a) When a defendant is in the custody of the commissioner
pursuant to a second retention order, or a previously issued
subsequent retention order, the commissioner must, at least
30 days prior to the expiration of the period prescribed
in the order, apply to the court that issued the order, or
to a superior court in the county where the facility is located,
for a subsequent retention order or a release order. Upon
receipt of such application, the court may, on its own motion,
conduct a hearing to determine whether the defendant has
a dangerous mental disorder, and it must conduct such hearing
if a demand therefor is made by one of the parties.
(b) Form L prescribes the form and contents of the application
for a subsequent retention order and the notice of application.
Form Q1 prescribes the form and contents of the application
for a release order and the notice of application. Following
the submission of either such application pursuant to subdivision
9 of CPL 330.20, if the court finds that the defendant has
a dangerous mental disorder it must issue a subsequent retention
order. The form and contents of this subsequent retention
order are prescribed in Form M.
(c) Following the submission of an application for a subsequent
retention order (Form L) or an application for a release order
(Form Q) pursuant to subdivision 9 of CPL 330.20, if the court
finds that the defendant is mentally ill but does not have
a dangerous mental disorder, it must issue the following three
orders:
(1) a subsequent retention order (Form M);
(2) a transfer order (Form P); and
(3) an order of conditions (Form N).
(d) Following the submission of an application for a subsequent
retention order (Form L) or an application for a release order
(Form Q) pursuant to subdivision 9 of CPL 330.20, if the court
finds that the defendant does not have a dangerous mental
disorder and is not mentally ill, it must issue the following
two orders:
(1) a release order (Form R); and
(2) an order of conditions (Form N).
Forms
Procedure following verdict or plea of not responsible by reason of mental disease or defect, see West's McKinney's Forms, CPL, Section 330.20, Forms 1 to 31. Historical Note
Sec. added by renum. 6.7, filed Feb. 2, 1982 eff. Jan. 1,
1982.
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110.8 Furlough order
(a) When a defendant is in the custody of the commissioner
in a secure facility pursuant to a commitment order, a recommitment
order, or a retention order, the commissioner may apply for
a furlough order pursuant to subdivision 10 of CPL 330.20.
The application for a furlough order may be made to the court
that issued the commitment order or to a superior court in
the county where the secure facility is located. Upon receipt
of such application the court may, on its own motion, conduct
a hearing to determine whether the application should be granted,
and must conduct such hearing if a demand therefor is made
by the district attorney.
(b) Form U prescribes the form and contents of the application
for a furlough order and the notice of application. Following
the submission of such application, if the court finds that
the issuance of a furlough order is consistent with the public
safety and welfare of the community and the defendant, and
that the clinical condition of the defendant warrants a granting
of the privileges authorized by a furlough order, the court
must grant the application and issue a furlough order. The
form and contents of this furlough order are prescribed in
Form V.
Forms
Procedure following verdict or plea of not responsible by reason of mental disease or defect, see West's McKinney's Forms, CPL, Section 330.20, Forms 1 to 31. Historical Note
Sec. added by renum. 6.8, filed Feb. 2, 1982 eff. Jan. 1,
1982.
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110.9 Transfer order
(a) When a defendant is in the custody of the commissioner
in a secure facility pursuant to a retention order or a recommitment
order, the commissioner may apply for a transfer order pursuant
to subdivision 11 of CPL 330.20. A transfer order may not
be issued when the defendant is in custody of the commissioner
pursuant to a commitment order. The application for a transfer
order may be made to the court that issued the order under
which the defendant is then in custody, or to a superior court
in the county where the secure facility is located. Upon receipt
of such application, the court may, on its own motion, conduct
a hearing to determine whether the application should be granted,
and must conduct such hearing if the demand therefor is made
by the district attorney.
(b) Form O prescribes the form and contents of the application
for a transfer order and the notice of application. Following
the submission of such application, the court must grant the
application and issue a transfer order if the court finds
that the defendant does not have a dangerous mental disorder,
or if the court finds that the issuance of a transfer order
is consistent with the public safety and welfare of the community
and the defendant and that the clinical condition of the defendant
warrants his transfer from a secure facility to a nonsecure
facility. The form and contents of this transfer order are
prescribed in Form P.
(c) A court must also issue a transfer order (Form P) when,
in connection with an application for a first retention order
(Form H), a second retention order (Form J), or a subsequent
retention order (Form L), the court finds that the defendant
is mentally ill but does not have a dangerous mental disorder.
(d) Whenever a court issues a transfer order (Form P), it
must also issue an order of conditions (Form N).
Forms
Procedure following verdict or plea of not responsible by reason of mental disease or defect, see West's McKinney's Forms, CPL, Section 330.20, Forms 1 to 31. Historical Note
Sec. added by renum. 6.9, filed Feb. 2, 1982 eff. Jan. 1,
1982.
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110.10 Release order
(a) When a defendant is in the custody of the commissioner
pursuant to a retention order or a recommitment order, the
commissioner may apply for a release order pursuant to subdivision
12 of CPL 330.20. The application for a release order may
be made to the court that issued the order under which the
defendant is then in custody, or to a superior court in the
county where the facility is located. Upon receipt of such
application, the court must promptly conduct a hearing to
determine the defendant's present mental condition.
(b) Form Q prescribes the form and contents of the application
for a release order and the notice of application. At the
conclusion of the hearing conducted pursuant to subdivision
12 of CPL 330.20, if the court finds that the defendant does
not have a dangerous mental disorder and is not mentally ill,
it must grant the application and issue a release order. The
form and contents of this release order are prescribed in
Form R.
(c) At the conclusion of the hearing conducted pursuant
to subdivision 12 of CPL 330.20, if the court finds that the
defendant has a dangerous mental disorder, it must deny the
application for a release order.
(d) At the conclusion of the hearing conducted pursuant
to subdivision 12 of CPL 330.20, if the court finds that the
defendant does not have a dangerous mental disorder but is
mentally ill, it must issue a transfer order (Form P) if the
defendant is then confined in a secure facility.
(e) A court must also issue a release order (Form R) when,
in connection with an application for a first retention order
(Form H), a second retention order (Form J), or a subsequent
retention order (Form L), the court finds that the defendant
does not have a dangerous mental disorder and is not mentally
ill.
(f) Whenever a court issues a release order (Form R), it
must also issue an order of conditions (Form N).
(g) If the court has previously issued a transfer order
(Form P) and an order of conditions (Form N), it must issue
a new order of conditions upon issuing a release order (Form
R).
Forms
Procedure following verdict or plea of not responsible by reason of mental disease or defect, see West's McKinney's Forms, CPL, Section 330.20, Forms 1 to 31. Historical Note
Sec. added by renum. 6.10, filed Feb. 2, 1982 eff. Jan. 1,
1982.
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110.11 Order of conditions
(a) An order of conditions is issuable in the following
instances:
(1) If the court issues a transfer order, it must also
issue an order of conditions.
(2) If the court issues a release order, it must also issue
an order of conditions.
(3) If the court at the initial hearing conducted pursuant
to CPL 330.20(6) finds that the defendant is mentally ill
but does not have a dangerous mental disorder, it must issue
an order of conditions and a civil order committing the defendant
to the custody of the commissioner pursuant to the applicable
provisions of the Mental Hygiene Law.
(4) If the court at the initial hearing conducted pursuant
to CPL 330.20(6) finds that the defendant does not have a
dangerous mental disorder and is not mentally ill, it must
discharge the defendant either unconditionally or subject
to an order of conditions.
(b) Form N prescribes the form and contents of an order
of conditions.
Forms
Procedure following verdict or plea of not responsible by reason of mental disease or defect, see West's McKinney's Forms, CPL, Section 330.20, Forms 1 to 31. Historical Note
Sec. added by renum. 6.11, filed Feb. 2, 1982 eff. Jan. 1,
1982.
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110.12 Recommitment order
(a) At any time during the period covered by an order of
conditions (Form N), an application may be made by the commissioner
or the district attorney for a recommitment order when the
applicant is of the view that the defendant has a dangerous
mental disorder. The application for a recommitment order
may be made to the court that issued the order of conditions,
or to a superior court in the county where the defendant
is then residing. Form S prescribes the form and contents
of an application for a recommitment order.
(b) Upon receipt of an application for a recommitment order
(Form S), the court must order the defendant to appear before
it for a hearing to determine if the defendant has a dangerous
mental disorder. Form S-1 prescribes the form and contents
of this order to appear. If the defendant fails to appear
in court as directed, the court must issue a warrant. Form
S-2 prescribes the form and contents of this warrant. When
the defendant is brought before the court on the warrant,
the court may direct that the defendant be confined in an
appropriate institution. Form S-3 prescribes the form and
contents of this temporary confinement order.
(c) When the defendant appears before the court on an application
for a recommitment order (Form S), the court must conduct
a hearing to determine whether the defendant has a dangerous
mental disorder. If the court finds that the defendant has
a dangerous mental disorder, it must issue a recommitment
order. The form and contents of this recommitment order are
prescribed in Form T.
Forms
Procedure following verdict or plea of not responsible by reason of mental disease or defect, see West's McKinney's Forms, CPL, Section 330.20, Forms 1 to 31. Historical Note
Sec. added by renum. 6.12, filed Feb. 2, 1982 eff. Jan. 1,
1982.
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110.13 Discharge order
(a) When a defendant has been continuously on an outpatient
status for three years or more pursuant to a release order,
the commissioner may apply for a discharge order pursuant
to subdivision 13 of CPL 330.20. The application for a discharge
order may be made to the court that issued the release order,
or to a superior court in the county where the defendant is
then residing. Upon receipt of such application, the court
may, on its own motion, conduct a hearing to determine whether
the application should be granted, and must conduct such hearing
if a demand therefor is made by the district attorney.
(b) Form W prescribes the form and contents of the application
for a discharge order and the notice of application. Following
the submission of such application, the court must grant the
application and issue a discharge order if the court finds
that the defendant has been continuously on an outpatient
status for three years or more, that he does not have a dangerous
mental disorder and is not mentally ill, and that the issuance
of the discharge order is consistent with the public safety
and welfare of the community and the defendant. The form and
contents of this discharge order are prescribed in Form X.
Forms
Procedure following verdict or plea of not responsible by reason of mental disease or defect, see West's McKinney's Forms, CPL, Section 330.20, Forms 1 to 31. Historical Note
Sec. added by renum. 6.13, filed Feb. 2, 1982 eff. Jan. 1,
1982.
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110.14 Psychiatric examination; scope; form of report
(a) The scope of the psychiatric examinations prescribed
by CPL 330.20 shall be as follows:
(1) the diagnosis and prognosis made by the psychiatric
examiner concerning the defendant's mental condition;
(2) the findings and evaluation made by the psychiatric
examiner concerning the defendant's mental condition;
(3) pertinent and significant factors in the defendant's
medical and psychiatric history;
(4) the psychiatric signs and symptoms displayed by the
defendant; and
(5) the reasons for the opinion stated by the psychiatric
examiner (including, when defendant has a dangerous mental
disorder, an explanation as to why, because of defendant's
mental condition, he currently constitutes a physical danger
to himself or others).
(b) Form Y prescribes the form and contents of the psychiatric
examination reports required to be filed under CPL 330.20.
Forms
Procedure following verdict or plea of not responsible by reason of mental disease or defect, see West's McKinney's Forms, CPL, Section 330.20, Forms 1 to 31. Historical Note
Sec. added by renum. 6.14, filed Feb. 2, 1982 eff. Jan. 1,
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