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Administrative Rules of the Unified Court System & Uniform Rules of the Trial Courts


Rules of the Chief Administrative Judge


PART 111. Procedure Under Cpl Article 730
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111.1 Definitions
111.2 Examination of defendant
111.3 Examination report
111.4 Commitment to custody of Commissioner of Mental Health
111.5 Order of retention for defendant held under orders
111.6 Certificate of custody
111.7 Procedure following termination of custody by commissioner
111.8 Official forms

Section 111.1 Definitions

Whenever in 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) "Facility 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.

Historical Note
Sec. added by renum. and amd. 100.1, filed Feb. 2, 1982 eff. Jan. 1, 1982.

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Section 111.2 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 mental health services of such city. If there is no such director of community mental health services, the order shall be addresed 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 Health 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 subdivision (2) or (3) of section 730.20 of the Criminal Procedure Law shall be a hospital operated by local government that has been certified by the Commissioner of Mental Health as having adequate facilities 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 psychiatric unit approved by the Commissioner of Mental Health 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.

Historical Note
Sec. added by renum. and amd. 100.2, filed Feb. 2, 1982 eff. Jan. 1, 1982.

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Section 111.3 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 Chief Administrator of the Courts and the Commissioner of Mental Health.

(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.

Historical Note
Sec. added by renum. and amd. 100.3, filed Feb. 2, 1982 eff. Jan. 1, 1982.

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Section 111.4 Commitment to custody of Commissioner of Mental Health

(a) If the court is satisfied that the defendant is an incapacitated person 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 Health 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 presentence report. Upon receipt thereof, the Commissioner of Mental Health 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.

Historical Note
Sec. added by renum. and amd. 100.4, filed Feb. 2, 1982 eff. Jan. 1, 1982.

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Section 111.5 Order of retention for defendant held under orders of commitment

(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 Health 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.

Historical Note
Sec. added by renum. and amd. 100.5, filed Feb. 2, 1982 eff. Jan. 1, 1982.

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Section 111.6 Certificate of custody

When defendant is in the custody of the Commissioner of Mental Health 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 Health in certifying to the court that the defendant was in the custody of the Commissioner of Mental Health on such expiration date.

Historical Note
Sec. added by renum. and amd. 100.6, filed Feb. 2, 1982 eff. Jan. 1, 1982.

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Section 111.7 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 director of the institution in which the defendant is confined may, pursuant to section 730.70 of the Criminal Procedure Law, retain him for care and treatment for a period of 30 days from such date. If the director determines that the defendant is so mentally ill or mentally defective as to require continued care and treatment in an institution, he may retain the defendant beyond such period only pursuant to the admission procedures set forth in the Mental Hygiene Law. If the defendant is sought to be retained on an involuntary basis, the certificates of two physicians or, in the case of retention at a school for the mentally retarded, one physician and one psychiatrist, shall be filed and an application to a court for an order authorizing retention shall be made before the expiration of the said 30-day period.

Historical Note
Sec. added by renum. 100.7, filed Feb. 2, 1982 eff. Jan. 1, 1982.

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Section 111.8 Official forms

Forms promulgated by the Chief Administrator of the Courts and the Commissioner of Mental Health, or either of them, shall be the official forms for uniform use throughout the State in implementation of article 730 of the Criminal Procedure Law. Variations in these forms will be permitted if approved by the official or officials indicated in the following index as having adopted them.

Forms
See West's McKinney's Forms, CPL, Article 730.

Historical Note
Sec. added by renum. and amd. 100.8, filed Feb. 2, 1982; amd. filed Feb. 6, 1989 eff. Dec. 22, 1988.