Section 330.20. Procedure following verdict or plea of not responsible by reason of mental disease or defect

1. Definition of terms. As used in this section, the  following  terms
  shall have the following meanings:
    (a)  "Commissioner"  means  the state commissioner of mental health or
  the  state  commissioner  of  mental   retardation   and   developmental
  disability.
    (b)  "Secure  facility"  means  a  facility within the state office of
  mental  health  or  the  state  office   of   mental   retardation   and
  developmental  disabilities  which  is staffed with personnel adequately
  trained in security methods and is so equipped as to minimize  the  risk
  or  danger  of escapes, and which has been so specifically designated by
  the commissioner.
    (c) "Dangerous mental disorder" means: (i) that a defendant  currently
  suffers  from  a "mental illness" as that term is defined in subdivision
  twenty of section 1.03 of the mental hygiene law, and (ii) that  because
  of  such condition he currently constitutes a physical danger to himself
  or others.
    (d) "Mentally ill" means that a defendant  currently  suffers  from  a
  mental  illness  for  which  care  and  treatment  as  a patient, in the
  in-patient services of a psychiatric center under  the  jurisdiction  of
  the  state  office  of  mental  health, is essential to such defendant's
  welfare and that his judgment is  so  impaired  that  he  is  unable  to
  understand  the need for such care and treatment; and, where a defendant
  is mentally retarded, the term  "mentally  ill"  shall  also  mean,  for
  purposes  of  this  section,  that  the defendant is in need of care and
  treatment as a resident in the in-patient services  of  a  developmental
  center  or  other  residential  facility  for  the mentally retarded and
  developmentally disabled under the jurisdiction of the state  office  of
  mental retardation and developmental disabilities.
    (e)  "Examination  order"  means an order directed to the commissioner
  requiring that a  defendant  submit  to  a  psychiatric  examination  to
  determine  whether  the defendant has a dangerous mental disorder, or if
  he does not have dangerous mental disorder, whether he is mentally ill.
    (f)  "Commitment  order"  or  "recommitment  order"  means  an   order
  committing   a   defendant  to  the  custody  of  the  commissioner  for
  confinement in a secure facility for care and treatment for  six  months
  from the date of the order.
    (g)  "First  retention order" means an order which is effective at the
  expiration of  the  period  prescribed  in  a  commitment  order  for  a
  recommitment  order, authorizing continued custody of a defendant by the
  commissioner for a period not to exceed one year.
    (h) "Second retention order" means an order which is effective at  the
  expiration  of  the  period  prescribed  in  a  first  retention  order,
  authorizing continued custody of a defendant by the commissioner  for  a
  period not to exceed two years.
    (i)  "Subsequent retention order" means an order which is effective at
  the expiration of the period prescribed in a second retention order or a
  prior subsequent retention order  authorizing  continued  custody  of  a
  defendant by the commissioner for a period not to exceed two years.
    (j)  "Retention  order"  means  a  first  retention  order,  a  second
  retention order or a subsequent retention order.
    (k) "Furlough order" means an  order  directing  the  commissioner  to
  allow  a  defendant  in  confinement  pursuant  to  a  commitment order,
  recommitment order or retention order to temporarily leave the  facility
  for  a  period  not  exceeding fourteen days, either with or without the
  constant supervision of one or more employees of the facility.

    (l) "Transfer order" means an  order  directing  the  commissioner  to
  transfer  a  defendant  from  a secure facility to a non-secure facility
  under the jurisdiction of the commissioner or to any non-secure facility
  designated by the commissioner.
    (m)  "Release  order"  means  an  order  directing the commissioner to
  terminate  a  defendant's  in-patient  status  without  terminating  the
  commissioner's responsibility for the defendant.
    (n)   "Discharge  order"  means  an  order  terminating  an  order  of
  conditions or unconditionally discharging a defendant  from  supervision
  under the provisions of this section.
    (o)  "Order  of  conditions"  means  an order directing a defendant to
  comply with this prescribed treatment plan, or any other condition which
  the court determines to be reasonably necessary or appropriate, and,  in
  addition,  where  a  defendant is in custody of the commissioner, not to
  leave  the  facility  without  authorization.  In   addition   to   such
  conditions,  when  determined to be reasonably necessary or appropriate,
  an order of  conditions  may  be  accompanied  by  a  special  order  of
  conditions   set  forth  in  a  separate  document  requiring  that  the
  defendant: (i) stay away from the home, school,  business  or  place  of
  employment of the victim or victims, or of any witness designated by the
  court,  of  such  offense; or (ii) refrain from harassing, intimidating,
  threatening or otherwise interfering with the victim or victims  of  the
  offense  and  such  members of the family or household of such victim or
  victims as shall be specifically named by  the  court  in  such  special
  order.  An  order  of conditions or special order of conditions shall be
  valid for five years from the date of its  issuance,  except  that,  for
  good cause shown, the court may extend the period for an additional five
  years.
    (p) "District attorney" means the office which prosecuted the criminal
  action  resulting in the verdict or plea of not responsible by reason of
  mental disease or defect.
    (q) "Qualified psychiatrist" means a physician who (i) is a  diplomate
  of  the  American board of psychiatry and neurology or is eligible to be
  certified  by  that  board;  or  (ii)  is  certified  by  the   American
  osteopathic  board  of  neurology  and  psychiatry  or is eligible to be
  certified by that board.
    (r) "Licensed psychologist" means a person  who  is  registered  as  a
  psychologist under article one hundred fifty-three of the education law.
    (s)  "Psychiatric  examiner"  means  a  qualified  psychiatrist  or  a
  licensed psychologist who has been designated  by  the  commissioner  to
  examine a defendant pursuant to this section, and such designee need not
  be an employee of the department of mental hygiene.
    2.  Examination  order; psychiatric examiners. 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.  Upon
  receipt  of  such  order,  the commissioner must designate two qualified
  psychiatric  examiners  to  conduct  the  examination  to  examine   the
  defendant.  In  conducting  their examination, the psychiatric examiners
  may employ any method which is accepted by the  medical  profession  for
  the  examination  of  persons  alleged  to be suffering from a dangerous
  mental disorder or to  be  mentally  ill  or  retarded.  The  court  may
  authorize  a  psychiatrist or psychologist retained by a defendant to be
  present at such examination.  The  clerk  of  the  court  must  promptly
  forward  a  copy  of  the  examination order to the mental hygiene legal
  service and such service may thereafter participate  in  all  subsequent
  proceedings under this section.

    In  all  subsequent  proceedings  under  this  section,  prior  to the
  issuance of a special order of  conditions,  the  court  shall  consider
  whether  any  order  of protection had been issued prior to a verdict of
  not responsible by reason of mental disease or defect in  the  case,  or
  prior to the acceptance of a plea of not responsible by reason of mental
  disease or defect in the case.
    3.   Examination   order;   place  of  examination.  Upon  issuing  an
  examination order, the court must, except as otherwise provided in  this
  subdivision, direct that the defendant be committed to a secure facility
  designated  by  the  commissioner  as  the  place  for  such psychiatric
  examination. The sheriff must hold the defendant in custody pending such
  designation by the commissioner, and when notified of  the  designation,
  the sheriff must promptly deliver the defendant to such secure facility.
  When  the  defendant  is  not  in custody at the time of such verdict or
  plea, because  he  was  previously  released  on  bail  or  on  his  own
  recognizance,  the  court,  in  its  discretion,  may  direct  that such
  examination be conducted on an out-patient basis, and at such  time  and
  place as the commissioner shall designate. If, however, 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.
    4. Examination order,  duration.  Confinement  in  a  secure  facility
  pursuant  to  an  examination  order shall be for a period not exceeding
  thirty days, except that, upon  application  of  the  commissioner,  the
  court  may  authorize confinement for an additional period not exceeding
  thirty  days  when  a  longer  period  is  necessary  to  complete   the
  examination.  If the initial hearing required by subdivision six of this
  section has not commenced prior to the termination of  such  examination
  period,  the  commissioner shall retain custody of the defendant in such
  secure facility until custody is  transferred  to  the  sheriff  in  the
  manner  prescribed in subdivision six of this section. During the period
  of such confinement,  the  physician  in  charge  of  the  facility  may
  administer  or  cause to be administered to the defendant such emergency
  psychiatric, medical or other therapeutic treatment as in  his  judgment
  should  be  administered. If the court has directed that the examination
  be conducted on an out-patient basis, the examination shall be completed
  within thirty days after the defendant has first reported to  the  place
  designated  by  the  commissioner,  except that, 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.
    5.  Examination order; reports. 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,  and  submit  such  report  to  the  commissioner.   If   the
  psychiatric  examiners  differ  in  their  opinion  as  to  whether  the
  defendant is mentally ill  or  is  suffering  from  a  dangerous  mental
  disorder,  the  commissioner must designate another psychiatric examiner
  to examine the defendant. Upon receipt of the examination  reports,  the
  commissioner  must  submit them to the court that issued the examination
  order. If the  court  is  not  satisfied  with  the  findings  of  these
  psychiatric  examiners,  the  court may designate one or more additional
  psychiatric examiners pursuant to subdivision fifteen of  this  section.
  The  court  must furnish a copy of the reports to the district attorney,
  counsel for the defendant and the mental hygiene legal service.
    6. Initial hearing; commitment order. After  the  examination  reports
  are  submitted,  the  court must, within ten days of the 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 must direct the  sheriff  to
  obtain custody of the defendant from the commissioner and to confine the
  defendant  pending further order of the court, except that the court may
  direct the sheriff to confine the defendant in  an  institution  located
  near  the  place  where  the  court  sits  if  that institution has been
  designated by the commissioner as suitable for the temporary and  secure
  detention  of  mentally  disabled  persons. At such initial hearing, the
  district attorney must establish to the satisfaction of the  court  that
  the defendant has a dangerous mental disorder or is mentally ill. If the
  court  finds that the defendant has a dangerous mental disorder, it must
  issue a commitment order. If the court finds that the defendant does not
  have a dangerous mental disorder but is mentally ill, the provisions  of
  subdivision seven of this section shall apply.
    7.  Initial  hearing  civil commitment and order of conditions. If, at
  the conclusion of the initial hearing conducted pursuant to  subdivision
  six  of this section, the court finds that the defendant is mentally ill
  but does not  have  a  dangerous  mental  disorder,  the  provisions  of
  articles  nine  or fifteen of the mental hygiene law shall apply at that
  stage of the proceedings and at all subsequent proceedings. Having found
  that the defendant is mentally ill, the court must  issue  an  order  of
  conditions  and  an order committing the defendant to the custody of the
  commissioner. The latter order shall be deemed an order made pursuant to
  the mental hygiene law and not pursuant to  this  section,  and  further
  retention,  conditional  release or discharge of such defendant shall be
  in accordance with the provisions of the mental hygiene law. If, at  the
  conclusion  of  the  initial hearing, the court finds that the defendant
  does not have a dangerous mental disorder and is not mentally  ill,  the
  court  must discharge the defendant either unconditionally or subject to
  an order of conditions.
    7-a. Whenever the court issues a special order of conditions  pursuant
  to  this  section,  the  commissioner  shall  make reasonable efforts to
  notify the victim or victims or the designated witness or witnesses that
  a special order  of  conditions  containing  such  provisions  has  been
  issued,  unless  such  victim  or witness has requested that such notice
  should not be provided.
    8. First retention order. When a defendant is in the  custody  of  the
  commissioner  pursuant  to a commitment order, the commissioner must, at
  least thirty 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. The commissioner must give written
  notice of the application  to  the  district  attorney,  the  defendant,
  counsel  for  the  defendant, and the mental hygiene legal service. 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 the district attorney, the defendant, counsel for the  defendant,  or
  the  mental  hygiene  legal  service  within ten days from the date that
  notice of the application was given to them. If such a hearing  is  held
  on  an application for retention, the commissioner must establish to the
  satisfaction of the court that the  defendant  has  a  dangerous  mental
  disorder  or is mentally ill. The district attorney shall be entitled to
  appear and present evidence at such hearing. If such a hearing  is  held
  on  an  application for release, the district attorney must establish to
  the satisfaction of the court that the defendant has a dangerous  mental
  disorder or is mentally ill. If the court finds that the defendant has a
  dangerous  mental disorder it must issue a first retention order. If the

  court finds that the defendant is mentally  ill  but  does  not  have  a
  dangerous  mental  disorder,  it must issue a first retention order and,
  pursuant to subdivision eleven of this section, a transfer order and  an
  order of conditions. If the court finds that the defendant does not have
  a  dangerous  mental  disorder  and is not mentally ill, it must issue a
  release order and an order of conditions pursuant to subdivision  twelve
  of this section.
    9.  Second and subsequent retention orders. When a defendant is in the
  custody of the commissioner pursuant to a  first  retention  order,  the
  commissioner  must,  at least thirty 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.   The
  commissioner must give written notice of the application to the district
  attorney,  the  defendant,  counsel  for  the  defendant, and the mental
  hygiene legal service. 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 the district attorney, the defendant, counsel
  for  the  defendant, or the mental hygiene legal service within ten days
  from the date that notice of the application was given to them. If  such
  a hearing is held on an application for retention, the commissioner must
  establish  to  the  satisfaction  of  the court that the defendant has a
  dangerous mental disorder or is  mentally  ill.  The  district  attorney
  shall  be  entitled  to  appear and present evidence at such hearing. If
  such a hearing is held on  an  application  for  release,  the  district
  attorney  must  establish  to  the  satisfaction  of  the court that the
  defendant has a dangerous mental disorder or is  mentally  ill.  If  the
  court  finds  that the defendant has a dangerous mental disorder it must
  issue a second retention order. If the court finds that the defendant is
  mentally ill but does not have a  dangerous  mental  disorder,  it  must
  issue  a  second  retention order and, pursuant to subdivision eleven of
  this section, a transfer order and an order of conditions. If the  court
  finds  that  the defendant does not have a dangerous mental disorder and
  is not mentally ill, it must issue a  release  order  and  an  order  of
  conditions  pursuant  to  subdivision  twelve  of  this  section. When a
  defendant is in the custody of the commissioner prior to the  expiration
  of the period prescribed in a second retention order, the procedures set
  forth  in  this subdivision for the issuance of a second retention order
  shall govern the application for and  the  issuance  of  any  subsequent
  retention order.
    10.  Furlough  order. The commissioner may apply for a furlough order,
  pursuant to this  subdivision,  when  a  defendant  is  in  his  custody
  pursuant  to  a commitment order, recommitment order, or retention order
  and the commissioner is of the view that,  consistent  with  the  public
  safety  and  welfare  of  the  community and the defendant, the clinical
  condition of  the  defendant  warrants  a  granting  of  the  privileges
  authorized by a furlough order. 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.   The
  commissioner must give ten days written notice to the district attorney,
  the  defendant,  counsel for the defendant, and the mental hygiene legal
  service. 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. 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
  containing any terms and conditions that the court  deems  necessary  or
  appropriate.  If the defendant fails to return to the secure facility at
  the time  specified  in  the  furlough  order,  then,  for  purposes  of
  subdivision  nineteen  of  this  section,  he  shall  be  deemed to have
  escaped.
    11. Transfer order and order of conditions. The commissioner may apply
  for a transfer order, pursuant to this subdivision, when a defendant  is
  in  his  custody  pursuant to a retention order or a recommitment order,
  and the commissioner is of the view that the defendant does not  have  a
  dangerous mental disorder or that, consistent with the public safety and
  welfare  of  the  community and the defendant, the clinical condition of
  the defendant  warrants  his  transfer  from  a  secure  facility  to  a
  non-secure facility under the jurisdiction of the commissioner or to any
  non-secure  facility designated by the commissioner. 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. The commissioner must  give
  ten days written notice to the district attorney, the defendant, counsel
  for the defendant, and the mental hygiene legal service. 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. At
  such hearing, the district attorney must establish to  the  satisfaction
  of  the court that the defendant has a dangerous mental disorder or that
  the issuance of a transfer order is inconsistent with the public  safety
  and  welfare  of the community. 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 non-secure facility. A court must also issue a transfer order when,
  in connection with an application for a first retention  order  pursuant
  to subdivision eight of this section or a second or subsequent retention
  order  pursuant  to  subdivision  nine  of this section, it finds that a
  defendant is mentally ill but does not have a dangerous mental disorder.
  Whenever a court issues a transfer order it must also issue an order  of
  conditions.
    12.  Release order and order of conditions. The commissioner may apply
  for a release order, pursuant to this subdivision, when a  defendant  is
  in  his custody pursuant to a retention order or recommitment order, and
  the commissioner is of the view that  the  defendant  no  longer  has  a
  dangerous mental disorder and is no longer mentally ill. 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. The  application  must  contain  a
  description of the defendant's current mental condition, the past course
  of  treatment,  a  history  of the defendant's conduct subsequent to his
  commitment, a written service plan for continued treatment  which  shall
  include the information specified in subdivision (g) of section 29.15 of
  the  mental hygiene law, and a detailed statement of the extent to which
  supervision of the defendant after release is proposed. The commissioner
  must give  ten  days  written  notice  to  the  district  attorney,  the
  defendant,  counsel  for  the  defendant,  and  the mental hygiene legal
  service. Upon receipt of  such  application,  the  court  must  promptly
  conduct a hearing to determine the defendant's present mental condition.

  At   such   hearing,   the  district  attorney  must  establish  to  the
  satisfaction of the court that the  defendant  has  a  dangerous  mental
  disorder or is mentally ill. If the court finds that the defendant has a
  dangerous  mental  disorder,  it must deny the application for a release
  order. If the court finds that the defendant does not have  a  dangerous
  mental  disorder  but  is  mentally  ill, it must issue a transfer order
  pursuant to subdivision eleven of this section if the defendant is  then
  confined  in  a  secure  facility. 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. A court must also
  issue a release order when, in connection  with  an  application  for  a
  first retention order pursuant to subdivision eight of this section or a
  second  or  subsequent  retention  order pursuant to subdivision nine of
  this section, it finds that the defendant  does  not  have  a  dangerous
  mental  disorder  and  is  not  mentally  ill. Whenever a court issues a
  release order it must also issue an order of conditions.  If  the  court
  has  previously  issued  a transfer order and an order of conditions, it
  must issue a new order of conditions upon issuing a release  order.  The
  order  of  conditions  issued  in conjunction with a release order shall
  incorporate a written service plan prepared by a  psychiatrist  familiar
  with  the  defendant's case history and approved by the court, and shall
  contain any conditions  that  the  court  determines  to  be  reasonably
  necessary  or  appropriate.  It  shall  be  the  responsibility  of  the
  commissioner to determine that such defendant is receiving the  services
  specified  in  the  written  service  plan  and  is  complying  with any
  conditions specified in such plan and the order of conditions.
    13. Discharge order. The commissioner may apply for a discharge order,
  pursuant to this subdivision, when a defendant has been continuously  on
  an  out-patient  status  for  three  years or more pursuant to a release
  order, and the commissioner is of the view that the defendant no  longer
  has  a  dangerous mental disorder and is no longer mentally ill and that
  the issuance of a discharge order is consistent with the  public  safety
  and  welfare  of  the community and the defendant. 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. The commissioner must give ten  days  written  notice  to  the
  district  attorney,  the  defendant,  counsel for the defendant, and the
  mental hygiene legal service. 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. The court must grant the
  application and issue a discharge order if  the  court  finds  that  the
  defendant has been continuously on an out-patient 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.
    14. Recommitment order. At any time during the period  covered  by  an
  order  of  conditions  an application may be made by the commissioner or
  the district attorney to the court that  issued  such  order,  or  to  a
  superior court in the county where the defendant is then residing, for a
  recommitment  order when the applicant is of the view that the defendant
  has a dangerous mental disorder. The applicant must give written  notice
  of  the application to the defendant, counsel for the defendant, and the
  mental hygiene legal service, and if the applicant is  the  commissioner
  he must give such notice to the district attorney or if the applicant is
  the district attorney he must give such notice to the commissioner. Upon
  receipt of such application the court must order the defendant to appear
  before  it  for  a hearing to determine if the defendant has a dangerous

  mental disorder. Such order may be in the  form  of  a  written  notice,
  specifying  the time and place of appearance, served personally upon the
  defendant, or mailed to his last known address, as the court may direct.
  If  the  defendant  fails  to appear in court as directed, the court may
  issue a warrant to an appropriate peace officer directing  him  to  take
  the  defendant  into  custody  and  bring  him before the court. In such
  circumstance, the court may direct that the defendant be confined in  an
  appropriate institution located near the place where the court sits. The
  court  must  conduct  a hearing to determine whether the defendant has a
  dangerous mental disorder. At such hearing, the applicant, whether he be
  the  commissioner  or  the  district  attorney  must  establish  to  the
  satisfaction  of  the  court  that  the defendant has a dangerous mental
  disorder. If the applicant is the commissioner,  the  district  attorney
  shall be entitled to appear and present evidence at such hearing; if the
  applicant  is  the district attorney, the commissioner shall be entitled
  to appear and present evidence at such hearing. If the court finds  that
  the  defendant  has  a  dangerous  mental  disorder,  it  must  issue  a
  recommitment  order.  When  a  defendant  is  in  the  custody  of   the
  commissioner  pursuant to a recommitment order, the procedures set forth
  in subdivisions eight and nine of  this  section  for  the  issuance  of
  retention  orders shall govern the application for and the issuance of a
  first  retention  order,  a  second  retention  order,  and   subsequent
  retention orders.
    15. Designation of psychiatric examiners. If, at any hearing conducted
  under   this   section  to  determine  the  defendant's  present  mental
  condition,  the  court  is  not  satisfied  with  the  findings  of  the
  psychiatric   examiners,  the  court  may  direct  the  commissioner  to
  designate one or more additional psychiatric  examiners  to  conduct  an
  examination  of  the defendant and submit a report of their findings. In
  addition, the court may on its own motion, or upon request of  a  party,
  may designate one or more psychiatric examiners to examine the defendant
  and  submit  a report of their findings. The district attorney may apply
  to the court for an order directing that  the  defendant  submit  to  an
  examination  by  a  psychiatric  examiner  designated  by  the  district
  attorney, and such psychiatric examiner may testify at the hearing.
    16. Rehearing and review. Any defendant who is in the custody  of  the
  commissioner  pursuant  to  a  commitment order, a retention order, or a
  recommitment order, if dissatisfied with such order, may, within  thirty
  days  after  the  making of such order, obtain a rehearing and review of
  the proceedings and of such order in accordance with the  provisions  of
  section 9.35 or 15.35 of the mental hygiene law.
    17. Rights of defendants. Subject to the limitations and provisions of
  this  section,  a defendant committed to the custody of the commissioner
  pursuant to this section shall have the rights granted to patients under
  the mental hygiene law.
    18. Notwithstanding any other provision of law, no person confined  by
  reason of a commitment order, recommitment order or retention order to a
  secure  facility  may  be discharged or released unless the commissioner
  shall deliver written notice, at least four  days  excluding  Saturdays,
  Sundays  and holidays, in advance of such discharge or release to all of
  the following:
    (a) the district attorney.
    (b) the police department having jurisdiction of the area to which the
  defendant is to be discharged or released.
    (c) any other person the court may designate.
    The notices required  by  this  subdivision  shall  be  given  by  the
  facility   staff  physician  who  was  treating  the  defendant  or,  if
  unavailable, by the defendant's treatment team leader, but if neither is

  immediately available, notice must be given by some other member of  the
  clinical  staff  of the facility. Such notice must be given by any means
  reasonably calculated to give prompt actual notice.
    19. Escape from custody; notice requirements. If a defendant is in the
  custody  of  the  commissioner  pursuant  to  an order issued under this
  section, and such defendant escapes from custody,  immediate  notice  of
  such  escape shall be given by the department facility staff to: (a) the
  district attorney, (b) the  superintendent  of  state  police,  (c)  the
  sheriff  of  the  county  where  the  escape  occurred,  (d)  the police
  department having jurisdiction of the area where  the  escape  occurred,
  (e)  any person the facility staff believes to be in danger, and (f) any
  law enforcement agency and any person the facility staff believes  would
  be able to apprise such endangered person that the defendant has escaped
  from  the  facility.  Such notice shall be given as soon as the facility
  staff know that the defendant has escaped from the  facility  and  shall
  include  such  information as will adequately identify the defendant and
  the person or persons believed to be in danger and  the  nature  of  the
  danger.  The  notices required by this subdivision shall be given by the
  facility  staff  physician  who  was  treating  the  defendant  or,   if
  unavailable, by the defendant's treatment team leader, but if neither is
  immediately  available, notice must be given by some other member of the
  clinical staff of the facility. Such notice must be given by  any  means
  reasonably calculated to give prompt actual notice. The defendant may be
  apprehended,  restrained,  transported  to, and returned to the facility
  from which he escaped by any peace officer, and it shall be the duty  of
  the officer to assist any representative of the commissioner to take the
  defendant into custody upon the request of such representative.
    20. Required affidavit. No application may be made by the commissioner
  under  this  section without an accompanying affidavit from at least one
  psychiatric examiner supportive of relief requested in the  application,
  which  affidavit  shall be served on all parties entitled to receive the
  notice of application. Such affidavit shall set  forth  the  defendant's
  clinical  diagnosis,  a detailed analysis of his or her mental condition
  which caused the psychiatric examiner to formulate an opinion,  and  the
  opinion  of  the psychiatric examiner with respect to the defendant. Any
  application submitted without the required affidavit shall be  dismissed
  by the court.
    21.  Appeals.  (a) A party to proceedings conducted in accordance with
  the provisions of this section may take an  appeal  to  an  intermediate
  appellate  court  by  permission  of the intermediate appellate court as
  follows:
    (i) the commissioner may appeal  from  any  release  order,  retention
  order,   transfer  order,  discharge  order,  order  of  conditions,  or
  recommitment order, for which he has not applied;
    (ii) a defendant, or the mental hygiene legal service on  his  or  her
  behalf,   may   appeal  from  any  commitment  order,  retention  order,
  recommitment order, or, if the defendant has obtained  a  rehearing  and
  review  of  any  such  order  pursuant  to  subdivision  sixteen of this
  section, from an order, not otherwise appealable as of right, issued  in
  accordance  with  the  provisions of section 9.35 or 15.35 of the mental
  hygiene law authorizing continued retention under  the  original  order,
  provided,  however,  that  a  defendant  who  takes  an  appeal  from  a
  commitment  order,  retention  order,  or  recommitment  order  may  not
  subsequently  obtain  a  rehearing  and review of such order pursuant to
  subdivision sixteen of this section;
    (iii) the  district  attorney  may  appeal  from  any  release  order,
  transfer order, discharge order, order of conditions, furlough order, or
  order denying an application for a recommitment order which he opposed.

    (b)  An  aggrieved  party  may  appeal  from  a  final  order  of  the
  intermediate appellate court to the court of appeals  by  permission  of
  the intermediate appellate court granted before application to the court
  of appeals, or by permission of the court of appeals upon refusal by the
  intermediate appellate court or upon direct application.
    (c)  An  appeal  taken under this subdivision shall be deemed civil in
  nature, and shall be governed by the laws and rules applicable to  civil
  appeals;  provided, however, that a stay of the order appealed from must
  be obtained in accordance with the provisions of paragraph (d) hereof.
    (d) The court from or to  which  an  appeal  is  taken  may  stay  all
  proceedings  to  enforce  the  order  appealed from pending an appeal or
  determination on a motion for permission  to  appeal,  or  may  grant  a
  limited stay, except that only the court to which an appeal is taken may
  vacate,  limit,  or  modify  a  stay  previously  granted.  If the order
  appealed from is affirmed or modified, the stay shall continue for  five
  days  after  service  upon  the  appellant of the order of affirmance or
  modification with notice of its entry in the court to which  the  appeal
  was  taken.  If  a  motion is made for permission to appeal from such an
  order, before the expiration of the five days, the stay,  or  any  other
  stay  granted  pending  determination  of  the  motion for permission to
  appeal, shall:
    (i) if the motion is granted,  continue  until  five  days  after  the
  appeal is determined; or
    (ii)  if  the  motion  is  denied,  continue until five days after the
  movant is served with the order of denial with notice of its entry.
    22. Any special order of conditions issued  pursuant  to  subparagraph
  (i)  or  (ii)  of paragraph (o) of subdivision one of this section shall
  bear in a conspicuous manner the term "special order of conditions"  and
  a  copy  shall  be  filed  by  the clerk of the court with the sheriff's
  office in the county in which anyone intended to be  protected  by  such
  special  order  resides,  or, if anyone intended to be protected by such
  special order resides within a city, with the police department of  such
  city.    The absence of language specifying that the order is a "special
  order of conditions" shall not affect the validity of such order. A copy
  of such special order of conditions may from time to time  be  filed  by
  the  clerk  of  the  court with any other police department or sheriff's
  office having jurisdiction of the residence, work place,  or  school  of
  anyone  intended  to  be protected by such special order. A copy of such
  special order may also be filed by anyone intended to  be  protected  by
  such provisions at the appropriate police department or sheriff's office
  having  jurisdiction.  Any  subsequent  amendment  or revocation of such
  special order may be filed in  the  same  manner  as  provided  in  this
  subdivision.    Such special order of conditions shall plainly state the
  date that the order expires.