CPL 730 Flashcards
730.10- Definitions
Incapacitated person- A defendant that due to mental disease or defect lacks the capacity to___________________
understand the proceedings against them
730.10- Definitions
Order of Examination- An order issued to an appropriate director that such defendant or juvenile delinquent be examined to determine if they are ___________
an incapacitated person
730.10- Definitions
Commissioner- (NEW) The state commissioner of _____________ or the state commissioner of the office for people with ______________
mental health ………. developmental disabilities.
730.10- Definitions
Director - Director of state or other hospital that has been certified as having adequate facilities to determine and examine if a defendant is an incapacitated person
(Updated definition to remove references to Mental Retardation: Means:
- (a) the director of a state hospital operated by the office of mental health or the director of a developmental center operated by the office for people with developmental disabilities, or
- (b) the director of a hospital operated by any local government of the state that has been certified by the commissioner as having adequate facilities to examine a defendant to determine if he is an incapacitated person, or
- (c) the director of community mental health services.
XX
730.10- Definitions
Psychiatric Examiner- A Qualified __________ or a Certified ____________ who has been designated by a director to be able to examine a defendant
Psychiatrist…….. Psychologist
730.10- Definitions
Examination report - The report by a psychiatric examiner giving his opinion as to whether the defendant:
- is or is not an incapacitated person,
- the extent of his examination, and
- a diagnosis and prognosis.
The state administrator and the commissioner jointly adopt the form of the examination report and the state administrator determines the number of copies to be submitted to the court by the director
XX
730.10- Definitions
New: Appropriate Institution- A hospital operated by the office of mental health, or a developmental center operated by the office for people with developmental disabilities; or a hospital licensed by the department of health which operates a psychiatric unit licensed by the office of mental health, provided that any such hospital not operated by the state shall qualify as an “appropriate institution” only upon agreement with the commissioner and the hospital
XX
730.20- Fitness to proceed; generally
The ____________ and the commissioner adopts the rules used to determine as to who the Director will be to handle examinations
Judicial conference
730.20- Fitness to proceed; generally
- Upon receiving an order for an exam the director must appoint ________ qualified psychiatric examiners, of which he himself may be one.
- They must use methods accepted by the medical profession for the examination of persons who are mentally ill
TWO(2)
730.20- Fitness to proceed; generally
- The court MAY authorize a psychiatrist or psychologist retained by __________ to be present at such examination
- When the examination reports show that each psychiatric examiner believes the defendant is an incapacitated person, the court (MUST/MAY) still hold a hearing or upon motion of either side MUST hold a hearing to determine capacity
the defendant …. MAY
730.20- Fitness to proceed; generally
When the reports submitted to the court show that
- the psychiatric examiners are not unanimous in their opinion as to whether the defendant is incapacitated, or,
- in the Superior Court, whether or not the defendant is a dangerous incapacitated person,
the court MUST conduct ____________ to make the determination of capacity or dangerousness
a hearing
730.40- Fitness to proceed: Local criminal court accusatory instrument
Local criminal court accusatory instrument:
When a local criminal court finds a defendant to be an incapacitated person the court MUST issue a Final order of Observation (Misdemeanor Charges) or Temporary Order of Observation (Felony charges) committing them to the custody of the commissioner for a period not to exceed ___________ from the date of the order.
- Remember, a Final Order of observation can be issued for ___________ charges with the consent of the DA.
NINETY (90) DAYS
730.40- Fitness to proceed: Local criminal court accusatory instrument
Local criminal court accusatory instrument:
Once found an incapacitated person:
- When the accusatory instrument is other than a felony complaint, then the court MUST issue a _______________ disposing the matter.
- When it is based on a felony complaint, then a __________ MUST be issued, except with the consent of the DA, it can be a Final Order of Observation
Final Order of Observation………….. temporary Order
730.40- Fitness to proceed: Local criminal court accusatory instrument
Local criminal court accusatory instrument:
Upon the issuance of a Final Order of Observation the DA shall immediately transmit to the commissioner a list of the names and contact information of persons expected to be ___________ of the committed person
the victim
730.40- Fitness to proceed: Local criminal court accusatory instrument
Local criminal court accusatory instrument:
- When the court issues a Final Order of Observation, it MUST_________ the accusatory instrument filed.
- When the court issues a Temporary Order of Observation and the defendant is in the custody of the commissioner at the expiration of the period in the temporary order, the proceedings in __________ shall terminate and upon certifying to the court that the defendant is in the commissioner’s custody, the court MUST dismiss ______________ (Remember, ___________________________ because it is a TEMPORARY order in the LCC)
Dismiss …… the local criminal court……. the Felony complaint………. Felony complaint
730.40- Fitness to proceed: Local criminal court accusatory instrument
Local criminal court accusatory instrument:
When a local criminal court has issued an order of examination or temporary order of observation and the matter is presented to the grand jury, the grand jury need not _______________ as we see in CPL 190.50 unless it determines that the defendant is not an incapacitated person. “They don’t entertain crazy”
hear the defendant
730.40- Fitness to proceed: Local criminal court accusatory instrument
Local criminal court accusatory instrument:
An indictment filed in the Superior court for a crime charged in a felony complaint is not timely if it is filed more than ___________ after the expiration of a temporary order of observation.
(An untimely indictment must be dismissed unless good cause is shown. “For this think of CPL 30.30 where a motion to dismiss will be granted upon a felony if the people are not ready for trial within 6 months)
SIX(6) MONTHS
730.50- Fitness to proceed: Indictments
Indictments:
Upon adjudicating a defendant an incapacitated person, the court MUST issue a Final Order of Observation for Misdemeanor charges or Order of Commitment for Felony Charges.
- When the indictment charges less than a Felony the court MUST issue a Final Order of Observation committing the defendant for a period not to exceed_________ and MUST dismiss the indictment
- When the indictment charges a Felony or the defendant is convicted of a Felony the court MUST issue an ORDER OF COMMITMENT for a period not to exceed ___________
NINETY(90) DAYS… ONE(1) YEAR
730.50- Fitness to proceed: Indictments
Indictments:
- When the superintendent of the institution wants to hold a defendant for longer, that he believes is still an incapacitated person, he must apply for an order of Retention, he must make the application within ___________ prior to expiration of current period.
- The court MAY conduct a hearing on its own motion or MUST conduct a hearing on the request of the defendant or the mental hygiene legal service if such request is made within ____________ of being served the application for retention
SIXTY(60) DAYS…. TEN(10) DAYS
730.50- Fitness to proceed: Indictments
Indictments:
- If at the conclusion of the hearing it is determined the defendant is no longer incapacitated, then the criminal action will ___________
- If it is determined the defendant is still incapacitated, then an order of retention will issue confining the defendant to custody not to exceed ___________
proceed……….. ONE(1) YEAR
730.50- Fitness to proceed: Indictments
Indictments:
At the expiration of the First Retention Order an application can be made following the guidelines above for a _______ or _______________, which must be for periods not to exceed _________ each.
Second or Subsequent Retention Order …….. TWO (2) YEARS
730.50- Fitness to proceed: Indictments
Indictments:
The time committed during the aggregate of all orders shall not exceed ______________ of the maximum allowable sentence for the highest-class felony charged in the indictment or for the highest class felony of which he was convicted
TWO THIRDS (2/3)
730.50- Fitness to proceed: Indictments
Indictments:
At the expiration of all authorized periods of confinement, the criminal action pending in the Superior Court shall ___________ for all purposes and the indictment will be ____________
Terminate ………. dismissed
730.60- Fitness to proceed; Procedure following custody
- When a local criminal court issues a final or temporary ____________ or order of ______________ , it must deliver to the commissioner the order, copy of examination reports, the accusatory instrument and even pre- sentence reports if available.
- The commissioner then designates an appropriate institution run by the department of mental hygiene to place the defendant
order of observation ……… commitment
730.60- Fitness to proceed; Procedure following custody
This is interesting… The commissioner can discharge a defendant in his custody under a___________ at any time prior to the expiration of such order, in other words he can treat or transfer the defendant as if he were a patient and not in confinement under a criminal court order
final order of observation
730.60- Fitness to proceed; Procedure following custody
When a defendant is being held in the custody of the commissioner pursuant to this section, the Superior court may grant a motion made by the defendant to dismiss the indictment, upon consent of the people, when the court is satisfied that:
- The defendant is a citizen of another state or country and will be ___________ there upon the dismissal of the indictment, OR
- The defendant has been continuously confined to the custody of the commissioner for a period of more than ___________ years
Before granting such motion the court must be satisfied that it is consistent with the ends of justice and that the person will not put the public in harm’s way if released
removed……..two
730.60- Fitness to proceed; Procedure following custody
No person committed to the custody of the commissioner shall be discharged, released on condition, moved to a less secure facility or put on a less secure status, including vacations, furloughs or temporary passes unless the commissioner SHALL deliver written notice at least _____________ in advance excluding Saturdays, Sundays and holidays to:
- The DA of the county from which the person was committed
- The Superintendent of State Police
- The Sheriff of the county of the holding facility
- The Police department where the holding facility is located
- A person who may reasonably become a victim by the released defendant
- Any other person designated by the court
FOUR (4) DAYS
730.60- Fitness to proceed; Procedure following custody
______________ notice is given (not within 4 days) if the defendant leaves the facility without authorization
Immediate
730.60- Fitness to proceed; Procedure following custody
- Upon receiving the Four day notice, the DA within ________ can apply to the Superior court for an order directing a hearing as to whether the defendant is a danger to himself or others. This would be one day before he gets out.
- Such hearing will be held within ___________ of such order
- Upon a finding that the defendant is a danger to himself or others he can be held for an additional period not to exceed _______________
THREE (3) DAYS…….. TEN (10) DAYS……….. SIX (6) MONTHS
730.70- Fitness to proceed, procedure following termination of custody
- At the termination of any and all custody to the commissioner, as described in this article, The superintendent of the institution where he is confined may retain him for an additional period of __________ for care and treatment purposes.
- The superintendent may apply prior to the end of this period for an __________________under the mental hygiene law, if the person is so mentally ill or mentally defective that they require continued care and treatment in a facility
THIRTY (30) DAYS……. “Order of Certification”
