2006 New York Code - Commitment To An Institution For The Retarded In The Department Of Correction.

 
    § 439. Commitment to an institution for the retarded in the department
  of  correction.  1.  A proceeding for commitment of an inmate who may be
  committed to an institution  for  the  retarded  in  the  department  of
  correction,  as  authorized  by subdivision two or three of section four
  hundred thirty-eight, may be commenced  and  shall  be  carried  out  as
  herein provided on application of the superintendent or other officer in
  charge  of  the  institution in which such inmate is confined, provided,
  however, that in the case of any inmate covered by  subdivision  two  of
  section four hundred thirty-eight, no such proceeding shall be commenced
  without permission of the commissioner of correction.
    2.  Such  superintendent or other officer in charge of the institution
  shall apply to a judge of a court of record to cause an  examination  to
  be  made  of  such inmate by two examining physicians or by an examining
  physician and a certified psychologist other than one connected with the
  institution in which such inmate is  confined.  The  physicians  or  the
  physician  and psychologist shall be designated by the judge to whom the
  application is made and shall possess the qualifications  prescribed  by
  the provisions of section 1.05 of the mental hygiene law. If the persons
  so  designated  are  satisfied  after  a  personal examination that such
  inmate is mentally retarded, as defined in section 1.05  of  the  mental
  hygiene law, they shall make a certificate to such effect.
    3.  Upon  such certificate being so made, it shall be delivered to the
  superintendent or other officer in charge, who may  thereupon  apply  by
  petition  to  a judge of a court of record, annexing such certificate to
  his petition, for an order committing such inmate to an institution  for
  the  retarded  in  the  department. Except as hereinafter provided, upon
  every such application for such an order of commitment,  notice  thereof
  in  writing of at least five days, together with a copy of the petition,
  shall be served upon the  alleged  mentally  defective  person,  and  in
  addition thereto such notice and copy of the petition shall be served by
  registered  mail  upon  either  the  wife, the father or mother or other
  nearest relative of such alleged mentally defective person, if there  be
  any  such known relative within the state; and if not, such notice shall
  be served upon any known  friend  of  such  alleged  mentally  defective
  person  within  the  state. If there be no such known relative or friend
  within the state, the giving of such notice shall be dispensed with, but
  in such case the petition for the commitment shall  recite  the  reasons
  why  service  of  such  notice  on  a  relative or friend of the alleged
  mentally defective person was dispensed with and in such case the  order
  for  commitment shall recite why service of such notice on a relative or
  friend of the alleged mentally  defective  person  was  dispensed  with.
  Notwithstanding  the  foregoing  provisions,  if  the judge to whom such
  application is made be satisfied from any statement made in  the  papers
  or  proceedings, or from inquiry, that personal service of the notice on
  the  alleged  mentally  defective  person  would   be   ineffective   or
  detrimental to such person, he may in his discretion dispense therewith,
  and  he  shall  dispense  therewith  if  the examining physicians or the
  examining physician and certified psychologist  state  in  writing  that
  personal  service  upon  the  alleged mentally defective person would in
  their opinion be detrimental to such person. Copies of the  notice,  the
  petition and the certificate or certificates of the examining physicians
  shall also be given the mental hygiene legal service.
    4.  The  judge  to  whom  such  application  for the commitment of the
  alleged mentally defective person is made may, if no demand is made  for
  a  hearing  in  behalf of the alleged mentally defective person, proceed
  forthwith on the return day of such notice to determine the question  of
  mental  condition  and  if satisfied that the alleged mentally defective
  person is mentally retarded, as defined in section 1.05  of  the  mental
  hygiene  law,  may immediately issue an order for the commitment of such
  alleged mentally defective person to an institution for the retarded  in
  the  department  of correction for a period not to exceed sixty days for
  the purpose of observation and treatment.
    5.  Upon  the demand for a hearing by the inmate, any relative or near
  friend on behalf of such alleged mentally defective  person,  the  judge
  shall,  or  he  may  upon  his own motion where there is no demand for a
  hearing, issue an order directing the hearing of such application before
  him at a time not more than five days from the date of such order  which
  shall  be served upon the parties interested in the application and upon
  such other persons as the judge, in his discretion, may name. Upon  such
  day  or  upon such other day to which the proceedings shall be regularly
  adjourned, he shall hear the testimony introduced  by  the  parties  and
  shall examine the alleged mentally defective person, if deemed advisable
  in or out of court, and render a decision in writing as to such person's
  mental defect. If such judge cannot hear the application, he may, in his
  order  directing  the  hearing,  name  some  referee  who shall hear the
  testimony and report the same forthwith, with his  opinion  thereon,  to
  such  judge,  who  shall,  if  satisfied  with  such  report, render his
  decision accordingly. If it be determined that such person is  a  mental
  defective,  the  judge shall forthwith issue his order committing him to
  an institution for the retarded in the department of  correction  for  a
  period  not  to  exceed  sixty  days  for the purpose of observation and
  treatment.  Such  superintendent  or  other  officer  in  charge   shall
  thereupon  cause  such  mentally defective person to be delivered to the
  superintendent of the appropriate institution for the  retarded  in  the
  department  of  correction as designated in the rules and regulations of
  that department and such mental defective shall be received therein  and
  retained  in  such  an  institution  until  transferred or discharged or
  otherwise released in accordance with the law, for the period  specified
  in  the  order  of  commitment  or  in  any subsequent order authorizing
  continued  retention  of  such  person  in  such  institution.      Such
  superintendent or other person in charge before delivering said mentally
  defective  person shall see that he is bodily clean. At the time of such
  transfer  there  shall  be  submitted  to  the  superintendent  of   the
  institution for the retarded the original certificate of conviction.  If
  such  judge  shall  refuse  to  issue  an  order of commitment, he shall
  certify in writing his reasons for such refusal.
    6. When an order of commitment is made, such order and all  papers  in
  the   proceeding  shall  be  presented  to  the  superintendent  of  the
  institution for the retarded at the time  when  the  mentally  defective
  person  is  delivered to such institution and a copy of the order and of
  each such paper shall be filed with the department of mental hygiene and
  also in the office of the county clerk of the county wherein  the  court
  is located which made the order of commitment. The judge shall order all
  such  papers  so  filed  in  the  county clerk's office to be sealed and
  exhibited only to  parties  to  the  proceedings,  or  someone  properly
  interested, upon order of the court.
    7.  At  any time prior to the expiration of sixty days from the date a
  mentally defective person is  delivered  to  the  superintendent  of  an
  institution for the retarded in the department of correction pursuant to
  this   section,  if  a  physician  designated  by  the  commissioner  of
  correction finds that such person is  in  need  of  continued  care  and
  treatment  therein,  the superintendent of the institution may file with
  the  court  that  made  the  commitment  an  application  for  continued
  retention  of  such person accompanied by a certificate of the physician
  setting forth his findings as to the condition of  the  inmate  and  the
  need  for  the  continued  care  and treatment of such inmate in such an
  institution.  If the court is satisfied that continued retention of such
  person in such an institution is warranted, the court shall approve  the
  application and the papers shall be filed in accordance with subdivision
  six  of this section. Upon the filing thereof the order theretofore made
  by the court shall become  a  final  order  and  such  person  shall  be
  retained  in  such  an  institution  until  transferred or discharged or
  otherwise released in accordance with the  law.  If  the  court  is  not
  satisfied  that  such  continued retention is warranted, the court shall
  vacate the commitment and  certify  in  writing  his  reasons  for  such
  action. Pending such decision of the court, the inmate shall be retained
  in  such  an  institution.  Where the commitment is vacated, or where an
  application is not made pursuant to this subdivision  the  inmate  shall
  forthwith  be  transferred to a state correctional facility, or returned
  to the warden or other officer in charge of the institution  from  which
  he  was  received  if  such  institution  was  not  a state correctional
  facility.
    8. If a mental defective whose commitment has been authorized pursuant
  to  this  section,  or  any  relative  or  friend  in  his  behalf,   be
  dissatisfied  with  the  commitment  or  the final order, he may, within
  thirty days after the making of any such order obtain a rehearing and  a
  review  of the proceeding already had and of such order, upon a petition
  to a justice of the supreme  court  other  than  the  judge  or  justice
  presiding over the court making such order, who shall cause a jury to be
  summoned  as  in  the  case  of  proceedings  for  the  appointment of a
  committee for a mentally ill person where the question of  fact  arising
  upon  the competency of the person is tried by a jury, and shall try the
  question of  the  mental  defect  of  the  person  so  committed  or  so
  authorized  to  be  retained,  in  the  same  manner as provided in said
  proceedings.  Any such mentally defective person or the person  applying
  on  his behalf for such review may waive the trial of the fact by a jury
  and consent in writing to trial of such  fact  by  the  court.  If  such
  petition for the hearing and review be made by any other than the person
  so  committed  or  authorized  to  be  retained  or  the father, mother,
  husband, wife or child of such person, before  such  hearing  or  review
  shall  be had, the petitioner shall make a deposit or give a bond, to be
  approved by a justice of the supreme court, for the payment of the costs
  and expenses of such  rehearing  or  review  and  determination  of  the
  question  of  mental  defect  by  a  jury  as aforesaid, if the order of
  commitment or authorizing  continued  retention  is  sustained.  If  the
  verdict  of  the  jury, or the decision of the court when jury trial has
  been waived, be that such person is not mentally defective, the  justice
  shall  order  the  removal  of  such  person from an institution for the
  retarded in the department of correction and such person shall forthwith
  be transferred to a state correctional  facility,  or  returned  to  the
  warden  or  other officer in charge of the institution from which he was
  received if such institution was  not  a  state  correctional  facility.
  Where the verdict of the jury, or the decision of the court where a jury
  trial  has  been  waived, be that such person is mentally defective, the
  justice shall certify that fact and make an order authorizing  continued
  retention  under  the  original order. Proceedings under the order shall
  not be stayed pending an appeal therefrom, except upon  an  order  of  a
  justice  of  the  supreme court, and made upon notice and after hearing,
  with provision made therein for such temporary care and  confinement  of
  the alleged mentally defective person as may be deemed necessary.
    9.  The  costs  necessarily  incurred  in  determining the question of
  mental condition including the fees of the physicians and  psychologists
  who  serve  as  examiners,  shall  be  a  charge  upon  the state or the
  municipality, as the case may be, at whose expense  the  institution  is
  maintained,  which  has custody of the alleged mentally defective person
  at the time of the application for his commitment  under  provisions  of
  this section.
    10.  During  the  pendency of such proceeding, the judge may forthwith
  commit such allegedly mentally defective person to  an  institution  for
  the  retarded  in  the  department  of  correction upon petition and the
  affidavit of two examining physicians or an examining  physician  and  a
  certified psychologist that the warden or other officer in charge is not
  able  to  properly  care  for such person at the institution where he is
  confined, and that such person is in need of immediate treatment.
    11. The notice provided for herein shall be served by the  sheriff  of
  the counties of the state of New York, in which case the charges of such
  sheriff  shall  be  a  disbursement in such proceeding, or by registered
  mail on all persons  required  to  be  served  other  than  the  alleged
  mentally defective person.