Section 322.2. Proceedings to determine capacity

1. Upon the receipt of
  examination reports ordered under section 322.1, the court shall conduct
  a hearing to  determine  whether  the  respondent  is  an  incapacitated
  person.  The respondent, the counsel or law guardian for the respondent,
  the presentment agency and the commissioner  of  mental  health  or  the
  commissioner  of  mental  retardation and developmental disabilities, as
  appropriate, shall be notified of such hearing at least five days  prior
  to the date thereof and afforded an opportunity to be heard.
    2.  If  the  court  finds  that the respondent is not an incapacitated
  person, it shall continue the delinquency proceedings.
    3. If the court finds that the respondent is an incapacitated  person,
  the  court  shall  schedule  a  hearing  to  determine  whether there is
  probable cause to believe that the respondent  committed  a  crime.  The
  order of proceeding at such hearing shall conform to section 325.2.
    4. If the court finds that there is probable cause to believe that the
  respondent committed a misdemeanor, the respondent shall be committed to
  the  custody of the appropriate commissioner for a reasonable period not
  to exceed ninety days. The court  shall  dismiss  the  petition  on  the
  issuance of the order of commitment.
    5. (a) If the court finds that there is probable cause to believe that
  the  respondent  committed  a  felony,  it  shall  order  the respondent
  committed to the custody of the commissioner of  mental  health  or  the
  commissioner of mental retardation and developmental disabilities for an
  initial  period not to exceed one year from the date of such order. Such
  period may be extended annually upon further application to the court by
  the commissioner having custody or his designee. Such  application  must
  be  made not more than sixty days prior to the expiration of such period
  on forms that have been prescribed by the  chief  administrator  of  the
  courts.  At  that time, the commissioner must give written notice of the
  application to the respondent, the counsel or law guardian  representing
  the respondent and the mental hygiene legal service if the respondent is
  at  a  residential facility. Upon receipt of such application, the court
  must conduct a hearing to determine the issue of capacity.  If,  at  the
  conclusion  of  a  hearing  conducted  pursuant to this subdivision, the
  court finds that the respondent is no longer incapacitated, he shall  be
  returned  to  the  family court for further proceedings pursuant to this
  article.  If the court is satisfied that the respondent continues to  be
  incapacitated,  the  court  shall  authorize  continued  custody  of the
  respondent by the commissioner for a period not to exceed one year. Such
  extensions shall  not  continue  beyond  a  reasonable  period  of  time
  necessary  to  determine whether the respondent will attain the capacity
  to proceed to a fact finding hearing in the foreseeable future but in no
  event shall continue beyond the respondent's eighteenth birthday.
    (b) If a respondent is in the custody of  the  commissioner  upon  the
  respondent's  eighteenth  birthday,  the  commissioner  shall notify the
  clerk of the court that the respondent was in his custody on  such  date
  and the court shall dismiss the petition.
    (c)  If  the  court finds that there is probable cause to believe that
  the respondent has committed a designated felony act,  the  court  shall
  require  that treatment be provided in a residential facility within the
  appropriate office of the department of mental hygiene.
    (d) The commissioner shall review  the  condition  of  the  respondent
  within  forty-five days after the respondent is committed to the custody
  of the commissioner. He shall make a second review  within  ninety  days
  after  the respondent is committed to his custody.  Thereafter, he shall
  review the condition of the respondent every ninety days. The respondent
  and the counsel or law guardian for the respondent, shall be notified of
  any  such  review  and  afforded  an  opportunity  to  be  heard.    The

  commissioner  having  custody  shall  apply  to  the  court for an order
  dismissing  the  petition  whenever  he  determines  that  there  is   a
  substantial   probability  that  the  respondent  will  continue  to  be
  incapacitated   for   the  foreseeable  future.  At  the  time  of  such
  application the commissioner must give written notice of application  to
  the  respondent,  the  presentment  agency  and the mental hygiene legal
  service if the respondent is at a residential facility. Upon receipt  of
  such  application,  the court may on its own motion conduct a hearing to
  determine whether there is substantial probability that  the  respondent
  will  continue  to  be  incapacitated for the foreseeable future, and it
  must conduct such hearing if a demand therefor is made by the respondent
  or the mental hygiene legal service within ten days from the  date  that
  notice of application was given to them. The respondent may apply to the
  court for an order of dismissal on the same ground.
    6.  Any order pursuant to this section dismissing a petition shall not
  preclude an application for voluntary or involuntary care and  treatment
  in  a  facility  of  the  appropriate office of the department of mental
  hygiene pursuant to the provisions of the mental hygiene law. Unless the
  respondent is admitted pursuant to  such  an  application  he  shall  be
  released.
    7.  If  the  commissioner  having  custody  of  a child committed to a
  residential facility determines at any time that such child may be  more
  appropriately treated in a non-residential facility, he may petition the
  family  court  for  a  hearing.  If the court finds after a hearing that
  treatment in a non-residential facility would be  more  appropriate  for
  such  child, the court shall modify its order of commitment to authorize
  transfer of such child to a non-residential  facility.  Application  for
  such a hearing may be made by the respondent.
    8.  If  the commissioner having custody of the child determines at any
  time that such child is not an incapacitated person, he  shall  petition
  the court for a hearing. The respondent and the presentment agency shall
  be  notified  of such hearing within twenty-four hours of the scheduling
  of such hearing and afforded an opportunity to be heard. Application for
  such a hearing may be made by the respondent. If the court  finds  after
  the  hearing  that  the  child  is  no longer incapacitated, he shall be
  returned to the family court for further proceedings  pursuant  to  this
  article.
    9. Time spent by the respondent in the custody of a commissioner of an
  office within the department of mental hygiene or in a local hospital or
  detention  facility  pending transfer to the custody of the commissioner
  after a finding of incapacity, shall be credited and applied towards the
  period of placement specified in a dispositional order on  the  original
  petition.