Section 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,  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. 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.