Articles 725 & 730 Removal of Proceedings against Juvenile Offender to Family Court & Mental Disease or Defect Excluding Fitness to Process

Question 1

CPL 725.05-7
Select the correct statement concerning defendant’s appearance in Family Court when a case is removed there:
(a) Upon removal, the defendant’s appearance is governed solely by Family Court
(b) In all cases, defendant must appear in Family Court on its next business day
(c) Defendant must appear in Family Court without unreasonable delay
(d) In all cases, the order of removal must specify a date within ten days of its date for defendant’s appearance
(e) For a defendant in custody, the order of removal must provide for defendant’s appearance on the next Family Court business day.

Answer 1

Answer: (e)
Choice (e) is correct (CPL 725.05-7). For defendants not in custody the order of removal must specify a date for defendant’s appearance within ten days of its date.

Question 2

CPL 725.10-2
Select the correct answer.
An action in a local criminal court against a juvenile offender has been removed to the Family Court. Upon the filing of the order of removal, the criminal action:
(a) is temporarily adjourned
(b) continues until final disposition by the Family Court
(c) is terminated and any findings, determinations, verdicts and orders of the criminal court are vacated
(d) is terminated and any findings, determinations, verdicts and orders of the criminal court, other than the order of removal, shall be deemed to have been made by the Family Court.

Answer 2

Answer: (d)
Choice (d) is correct (CPL 725.10-2).

Question 3

CPL 725.20-3
Select all correct answers.
In a removal under Article 722 of the CPL and in New York City, the clerk of the Supreme Court of the county where such action was pending, with whom the required records have been filed, must
(a) delete the portions of said records that identify the defendant, and place the undeleted material on file for public inspection
(b) maintain a separate confidential system to enable correlation of the records open to public inspection with the identification of the defendant
(c) not disclose, under any circumstances, any information permitting correlation of the records open to public inspection with the identity of the defendant
(d) send a copy of all such records to the clerk of the designated Family Court.

Answer 3

Answers: (a) and (b)
Choices (a) and (b) are correct (CPL 725.20-3, 180.75).
Choice (c) is incorrect, because the information permitting correlation may be disclosed by order of a Supreme Court justice.
Choice (d) is incorrect because it is the duty of the criminal court clerk, where the order of removal was made, to send all the pleadings and proceedings to the Family Court clerk, in accordance with CPL 725.05.

Question 4

CPL 730.20-4, 6
Select all correct statements concerning fitness to proceed in relation to mental disease or defect.
(a) Hospital confinement of the defendant is required in all cases for mental examination
(b) Examination of a confined defendant shall be for a period not exceeding thirty days
(c) If the two designated psychiatric examiners are not unanimous in their opinion as to incapacity, the court must appoint different examiners
(d) Statements made by defendant during mental examination are inadmissible in evidence against him on any issue other than that of his mental condition.

Answer 4

Answers: (b) and (d)
Choices (b) and (d) are correct (CPL 730.20-4, 6).
Choice (a) is incorrect because CPL 730.20-2, 3 permits an out- patient basis for examination of a defendant who was not in custody at the time the court issued an order for examination.
Choice (c) is incorrect because CPL 730.20-5 provides that if the two psychiatric examiners are not unanimous in their opinion concerning incapacity, the director must appoint another qualified psychiatric examiner.

Question 5

CPL 730.30-2, 3
Select all correct statements concerning a pending criminal action in which the two appointed psychiatric examiners report that, in their opinion, the defendant is not an incapacitated person.
(a) Despite the report, the court on its own motion may conduct a hearing on the question of capacity
(b) The court may conduct a hearing on the question of capacity only if requested by either side
(c) After a hearing on this report the court, if not satisfied, must issue a further order for examination by different psychiatric examiners appointed by the director
(d) The court must accept the examiner’s report, and order the criminal action to proceed.

Answer 5

Answers: (a) and (c)
Choices (a) and (c) are correct (CPL 730.30-2, 3).
Note that under subdivision 3 even when each psychiatric examiner’s report is that defendant is incapacitated, the court nevertheless, on its own motion, may conduct a hearing on the issue of capacity, and if requested by either side, must conduct a hearing.
Under subdivision 4 if the examiners are not unanimous the court must conduct a hearing.

Question 6

CPL 730.40-1, 2, 5
Select the correct statements concerning fitness to proceed in relation to local criminal court accusatory instruments.
(a) An order of observation issued by a local criminal court on an incapacitated person is for care and treatment for up to ninety days.
(b) In the case of a temporary order of observation, the local criminal court must dismiss the accusatory instrument, and this is a bar to further prosecution
(c) A grand jury must hear a defendant who asks to be heard about a pending charge, even though the defendant is under an order of examination or a temporary order of observation
(d) An indictment based on a felony complaint, filed more than two months after expiration of a temporary order of observation issued by a local criminal court, is untimely, and must be dismissed unless good cause is shown.

Answer 6

Answer: (a)
Choice (a) is correct (CPL 730.40-1, 2 and 5).
All other choices are unsupported by the CPL and choice (c) is incorrect because under CPL 730.40-3 the grand jury in this situation need not hear the defendant.

Question 7

CPL 730.50-1, 2, 3
Select all correct statements concerning fitness to proceed in superior court cases.
(a) When an incapacitated defendant is charged with or convicted of a non-felony offense, the maximum period of commitment for care and observation is ninety days
(b) When an incapacitated defendant is charged with or convicted of a felony, the maximum period of commitment for care and observation is one year
(c) When it appears that the incapacity of a defendant committed on a temporary order of commitment will continue beyond the time limited by the order, the superintendent of the institution must apply to the court for an order of retention for a period not to exceed one year
(d) When a defendant’s incapacity continues beyond the first order of retention, subsequent retention orders are for periods not to exceed two years.

Answer 7

Answers: (a), (b), (c) and (d)
All choices are correct (CPL 730.50-1, 2 and 3).

Question 8

CPL 730.60
Select the correct answer concerning the custody of incapacitated persons. When a criminal court orders the commitment of an incapacitated person:
(a) the order must designate the department of mental hygiene institution in which the person is to be placed
(b) the commissioner designates the institution operated by the department of mental hygiene in which the person is to be placed
(c) the person is not permitted to make any motions under CPL during his commitment and incapacity
(d) the restricted status of the person may be changed by release or otherwise by the commissioner, in his discretion and without opportunity for judicial review.

Answer 8

Answer: (b)
Choice (b) is correct (CPL 730.60). However, the commissioner may designate a hospital as specified in the statute.
Choice (a) is incorrect. The court’s order is directed to the commissioner, and the commissioner designates the institution.
Choice (c) is incorrect because CPL 730.60-4 provides that a committed defendant may make any motion under CPL which may be fairly determined without his personal participation. If any such motion is denied, it must be without prejudice to its renewal after the criminal action has been ordered to proceed.
Choice (d) is incorrect because CPL 730.60-6 provides that the commissioner must give timely written notice of the proposed change to specified persons and agencies, including the district attorney of the county from which the person was committed. The district attorney may then apply to the court for an order directing a hearing and providing that there be no change in status pending the court’s determination on the hearing.

Question 9

CPL 730.70
Select the correct answer.
When a defendant is in the custody of the commissioner pursuant to a criminal court’s order of observation or commitment, and the period specified in the order has expired, the superintendent of the institution having custody:
(a) must release the defendant without unnecessary delay
(b) must request that the defendant be transferred, if still in need of observation or treatment, to an institution of the department which serves persons civilly committed
(c) may retain the defendant for care and treatment for an additional thirty days
(d) may retain the defendant for care and treatment for an additional sixty days.

Answer 9

Answer: (c)
Choice (c) is correct (CPL 730.70).