BILL NUMBER: S1004A
SPONSOR: BROUK
 
TITLE OF BILL:
An act to amend the criminal procedure law and the mental hygiene law,
in relation to determining the capacity of a defendant to stand trial
 
PURPOSE OR GENERAL IDEA OF BILL:
To amend the Criminal Procedure Law to limit the use of restoration
services for defendants who are deemed to be unable to understand the
charges against them or participate in their own defense to those
defendants who are likely to benefit from those services and to amend
the law to comply with the provisions of the U.S, Supreme Court case of
Jackson v. Indiana and the NY Supreme Court case of Ritter v. Surles.
 
SUMMARY OF SPECIFIC PROVISIONS:
Section 1: Makes the definition gender neutral.
Section 2: Requires that the reports of professionals examining the
defendant to determine capacity also gives the examiner's opinion of the
likelihood that the person can be restored.
Section 3: Creates a definition of restoration services to make it clear
that restoration is not aimed at recovery but simply at making the
defendant able to stand trial, plead guilty, or have the charge
dismissed.
Section 4: Amends section 730.20 of the CPL to require that the commis-
sioners of OMB and OPWDD promulgate regulations setting the standards
that examiners must use in making their determination. Many states
require examiners to undergo specific training or pass an exam to deter-
mine their ability to properly evaluate capacity. New York currently has
no standards. This section also recognizes that many defendants will now
be out on their own recognizance and that a court directive to attend
the examination may be required but that the defendant should not be
held in custody any longer than is needed for the examination. It also
revises the section dealing with fees due the examiners which are now
set by law at $50 and would require that the fees be set by the court.
Section 5: Amends section 730.30 to clarify the procedure for court
review of the defendant's capacity.
Section 6: Amends CPL 730.40 to delete the sections which the court has
declared to be unconstitutional.
Section 7: Modifies the procedure to a superior court to oversee the
process of restoration and provides that if the court determines that
there is not a reasonable probability that restoration will be effective
(e.g., a defendant has a very low IQ or traumatic brain injury) then the
matter will be referred to a civil court with a hearing to determine if
involuntary retention is appropriate.
Section 8: Deletes the portions of statute which have been deemed uncon-
stitutional.
Section 9: Provides that if a superintendent of a facility from which a
defendant is to be released believes that the person should be involun-
tarily detained, the superintendent can have two psychiatric examiners
examine the defendant and, if they believe that it is appropriate, the
matter can be referred to a civil court for a hearing with regard to
further involuntary retention.
Sections 10 and 11: Amend the Mental Hygiene Law to allow the referral
of the matter from a criminal status of a civil status.
Section 12: Amends the Mental Hygiene Law to make it clear that the
section refers to patients being held in custody by the Commissioner and
that it does not apply to patients being treated pursuant to section 508
of the Correction Law.
Section 13: Provides that the savings which counties incur from the bill
will be reinvested in other community mental hygiene services.
Section 14: Sets the effective date.
 
JUSTIFICATION:
Currently section 730 of the Criminal Procedure Law provides that
defendants charged with felonies who are mentally ill or developmentally
disabled and are determined by a court to be unable to understand the
charges against them or participate in their own defense are sent to
state operated forensic hospitals or developmental institutions solely
for the purpose of trying to restore them to competency so they can
stand trial. The cost of these services is over $1000 per day charged to
the county in which the court which sent them is located. In many cases,
the judge issuing the order truly believes that he or she is helping the
defendant to obtain treatment services for their mental disability. This
is not the case because restoration services are geared to making the
defendant legally able to stand trial and are not aimed at recovery from
the underlying illness. Indeed, in many cases the defendant is sent for
restoration at a cost of about $360,000 per year to the county and
returns to have the charge reduced to a misdemeanor and ultimately
dismissed.
The U.S. Supreme Court in the case of Jackson v. Indiana (406 US 715)
has held that holding a person in this manner for a period of time long-
er than necessary to determine whether there is a substantial probabili-
ty that he or she will attain capacity to stand trial in the foreseeable
future is unconstitutional. The case of Bitter v. Surles, (144 Misc. 2d
945) has also held that certain parts of CPL 730 are unconstitutional.
This bill seeks to make clear what restoration services are and to limit
their use to those situations in which they are likely to be effective.
It also amends those sections of law which have been held to be uncon-
stitutional.
 
PRIOR LEGISLATIVE HISTORY:
2021: S7461 Referred to Codes.
2022: S7461A Amended and recommitted to Codes.
2023-2024: S1874 Referred to Codes.
 
FISCAL IMPLICATIONS:
None to the State.
 
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become law.

Statutes affected:
S1004: 730.10 criminal procedure law, 730.10(1) criminal procedure law, 730.10(8) criminal procedure law, 730.30 criminal procedure law, 730.40 criminal procedure law, 730.40(1) criminal procedure law, 730.70 criminal procedure law, 9.33 mental hygiene law, 15.33 mental hygiene law, 43.03 mental hygiene law