Section 730.60. Fitness to proceed; procedure following custody by commissioner

1. When a local criminal court issues a final or  temporary  order  of
  observation  or an order of commitment, it must forward such order and a
  copy of the examination reports and the  accusatory  instrument  to  the
  commissioner, and, if available, a copy of the pre-sentence report. Upon
  receipt   thereof,   the  commissioner  must  designate  an  appropriate
  institution operated by the department of mental hygiene  in  which  the
  defendant  is to be placed, 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. The  sheriff  must  hold  the
  defendant  in  custody pending such designation by the commissioner, and
  when notified of the designation, the sheriff must deliver the defendant
  to the superintendent  of  such  institution.  The  superintendent  must
  promptly  inform  the  appropriate  director of the mental hygiene legal
  service of the defendant's admission to such institution. If a defendant
  escapes from the custody of the commissioner, the escape shall interrupt
  the period  prescribed  in  any  order  of  observation,  commitment  or
  retention,  and  such interruption shall continue until the defendant is
  returned to the custody of the commissioner.
    2. Except as otherwise provided in subdivisions four and five, when  a
  defendant  is in the custody of the commissioner pursuant to a temporary
  order of observation or an order of commitment or an order of retention,
  the criminal action pending against the  defendant  in  the  court  that
  issued   such  order  is  suspended  until  the  superintendent  of  the
  institution in which the defendant is confined determines that he is  no
  longer  an  incapacitated  person.  In that event, the court that issued
  such order and the appropriate district attorney must  be  notified,  in
  writing,  by  the  superintendent  of  his determination. The court must
  thereupon proceed in accordance with the provisions of  subdivision  two
  of  section  730.30  of this chapter; provided, however, if the court is
  satisfied that the defendant remains an incapacitated person,  and  upon
  consent  of all parties, the court may order the return of the defendant
  to the institution in which he had been confined for such period of time
  as was  authorized  by  the  prior  order  of  commitment  or  order  of
  retention.  Upon  such  return,  the defendant shall have all rights and
  privileges accorded by the provisions of this article.
    3. When a defendant is in the custody of the commissioner pursuant  to
  an  order  issued  in accordance with this article, the commissioner may
  transfer him to any appropriate institution operated by  the  department
  of   mental  hygiene,  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 section. The commissioner may discharge  a
  defendant  in his custody under a final order of observation at any time
  prior to the expiration date  of  such  order,  or  otherwise  treat  or
  transfer  such  defendant in the same manner as if he were a patient not
  in confinement under a criminal court order.
    4. When a defendant is in the custody of the commissioner pursuant  to
  an  order of commitment or an order of retention, he may make any motion
  authorized by this chapter which is susceptible  of  fair  determination
  without  his personal participation. If the court denies any such motion
  it must be without prejudice to a renewal  thereof  after  the  criminal

  action  against  the defendant has been ordered to proceed. If the court
  enters an order dismissing the indictment and does not direct  that  the
  charge  or charges be resubmitted to a grand jury, the court must direct
  that such order of dismissal be served upon the commissioner.
    5.  When a defendant is in the custody of the commissioner pursuant to
  an order of commitment or an order of retention, the superior court that
  issued such order may, upon  motion  of  the  defendant,  and  with  the
  consent  of the district attorney, dismiss the indictment when the court
  is satisfied that (a) the defendant is a resident or citizen of  another
  state  or  country and that he will be removed thereto upon dismissal of
  the indictment, or (b) the defendant has been continuously  confined  in
  the  custody  of  the  commissioner for a period of more than two years.
  Before granting a motion under  this  subdivision,  the  court  must  be
  further  satisfied  that  dismissal of the indictment is consistent with
  the  ends  of  justice  and  that  custody  of  the  defendant  by   the
  commissioner pursuant to an order of commitment or an order of retention
  is  not  necessary  for  the  protection of the public and that care and
  treatment can be effectively administered to the defendant  without  the
  necessity of such order. If the court enters an order of dismissal under
  this  subdivision,  it must set forth in the record the reasons for such
  action, and must direct that such order of dismissal be served upon  the
  commissioner.   The   dismissal   of  an  indictment  pursuant  to  this
  subdivision constitutes a bar to any further prosecution of  the  charge
  or charges contained in such indictment.
    6. (a) Notwithstanding any other provision of law, no person committed
  to  the  custody  of  the  commissioner  pursuant  to  this  article, or
  continuously thereafter retained in such custody, shall  be  discharged,
  released  on  condition  or placed in any less secure facility or on any
  less restrictive  status,  including,  but  not  limited  to  vacations,
  furloughs  and  temporary  passes, unless the commissioner shall deliver
  written notice, at least four days,  excluding  Saturdays,  Sundays  and
  holidays,  in  advance of the change of such committed person's facility
  or status, to all of the following:
    (1) The district attorney of the county from  which  such  person  was
  committed;
    (2) The superintendent of state police;
    (3) The sheriff of the county where the facility is located;
    (4)  The  police  department having jurisdiction of the area where the
  facility is located;
    (5) Any person who may reasonably be expected to be the victim of  any
  assault  or  any  violent  felony  offense, as defined in the penal law,
  which would be carried out by the committed person; and
    (6) Any other person the court may designate.
    Said notice may be given by any means reasonably  calculated  to  give
  prompt actual notice.
    (b)  The  notice  required  by  this  subdivision  shall also be given
  immediately upon  the  departure  of  such  committed  person  from  the
  commissioner's  actual custody, without proper authorization. Nothing in
  this subdivision shall be construed to impair any other  right  or  duty
  regarding any notice or hearing contained in any other provision of law.
    (c)  Whenever a district attorney has received the notice described in
  this  subdivision,  and  the  defendant  is  in  the  custody   of   the
  commissioner  pursuant  to  a  final order of observation or an order of
  commitment, he may apply within three days of receipt of such notice  to
  a  superior  court,  for  an  order  directing  a  hearing to be held to
  determine whether such committed  person  is  a  danger  to  himself  or
  others.  Such  hearing  shall  be  held  within  ten  days following the
  issuance of such order. Such order may provide that there  shall  be  no

  further  change  in  the committed person's facility or status until the
  hearing. Upon a finding that the committed person is a danger to himself
  or  others,  the  court  shall  issue  an  order  to  the   commissioner
  authorizing  retention of the committed person in the status existing at
  the time notice was given hereunder, for  a  specified  period,  not  to
  exceed  six  months.  The  district  attorney and the committed person's
  attorney shall be entitled to the committed person's clinical records in
  the commissioner's custody, upon the issuance of an  order  directing  a
  hearing to be held.
    (d) Nothing in this subdivision shall be construed to impair any other
  right  or  duty  regarding  any notice or hearing contained in any other
  provision of law.