Key Information

Relevant Statutes and Rules

N.Y. Crim. Proc. Law § 730.10 et seq.; N.Y. Rules of Procedure 111.1-111.8.

What proceedings can occur while the defendant is incompetent

"[The defendant] may make any motion authorized by this chapter which is susceptible of fair determination without his personal participation. If the court denies any such motion it must be without prejudice to a renewal thereof after the criminal action against the defendant has been ordered to proceed."

N.Y. Crim. Proc. Law § 730.60 (McKinney)

"Upon motion of the defendant, and with the consent of the district attorney, [the superior court] may dismiss the indictment when the court is satisfied that (a) the defendant is a resident or citizen of another state or country and that he will be removed thereto upon dismissal of the indictment, or (b) the defendant has been continuously confined in the custody of the commissioner for a period of more than two years. Before granting a motion under this subdivision, the court must be further satisfied that dismissal of the indictment is consistent with the ends of justice and that custody of the defendant by the commissioner pursuant to an order of commitment or an order of retention is not necessary for the protection of the public and that care and treatment can be effectively administered to the defendant without the necessity of such order."

N.Y. Crim. Proc. Law § 730.60 (McKinney)

Number of examiners required

2 at outset

N.Y. Crim. Proc. Law § 730.20 (McKinney)

3, if first two opinions are not unanimous.

N.Y. Crim. Proc. Law § 730.20(5) (McKinney)

Qualifications of examiners

“Psychiatric examiner” means a qualified psychiatrist or a certified psychologist who has been designated by a director to examine a defendant pursuant to an order of examination.

“Qualified psychiatrist” means a physician who:
(a) is a diplomate of the American board of psychiatry and neurology or is eligible to be certified by that board; or,
(b) is certified by the American osteopathic board of neurology and psychiatry or is eligible to be certified by that board.
“Certified psychologist” means a person who is registered as a certified psychologist under article one hundred fifty-three of the education law.

N.Y. Crim. Proc. Law § 730.10 (McKinney)

What must the evaluation report contain

“Examination report” means a report made by a psychiatric examiner wherein he sets forth his opinion as to whether the defendant is or is not an incapacitated person, the nature and extent of his examination and, if he finds that the defendant is an incapacitated person, his diagnosis and prognosis and a detailed statement of the reasons for his opinion by making particular reference to those aspects of the proceedings wherein the defendant lacks capacity to understand or to assist in his own defense.

N.Y. Crim. Proc. Law § 730.10 (McKinney)

For actions in superior court, examiners also  assess whether defendant is dangerous.

N.Y. Crim. Proc. Law § 730.30(4) (McKinney)

Are low-level offenses excluded from restoration

Charges dismissed with prejudice for misdemeanors upon finding of incompetence, but defendant remains in appropriate institution for "care and treatment" for period of 90 days.

N.Y. Crim. Proc. Law § 730.40(1), (2) (McKinney)

Is there a pathway for diversion following a finding of incompetence to stand trial

None stated.

What are the locations for restoration services

Inpatient or outpatient. Outpatient only upon the consent of the district attorney.

N.Y. Crim. Proc. Law § 730.40(1) (McKinney)
 

What is the test for restorability

None stated.

What is the procedure after restoration

If the supervisor believe the defendant is no longer incompetent, "the court that issued such order and the appropriate district attorney must be notified, in writing, by the superintendent of his determination. The court must thereupon proceed in accordance with the provisions of subdivision two of section 730.30 of this chapter."

N.Y. Crim. Proc. Law § 730.60 (McKinney)

"When the examination reports submitted to the court show that each psychiatric examiner is of the opinion that the defendant is not an incapacitated person, the court may, on its own motion, conduct a hearing to determine the issue of capacity, and it must conduct a hearing upon motion therefor by the defendant or by the district attorney. If no motion for a hearing is made, the criminal action against the defendant must proceed. If, following a hearing, the court is satisfied that the defendant is not an incapacitated person, the criminal action against him must proceed."

N.Y. Crim. Proc. Law § 730.30(2) (McKinney)

What is the procedure if there is a finding of unrestorability

None stated.

What are the time limits on initial transfer to restoration services

None stated.

What are the time limits for treatment

N/A

What is the process if time limit is reached without restoration

Charges dismissed with prejudice.

N.Y. Crim. Proc. Law § 730.50 (4) (McKinney)

"The superintendent of the institution in which the defendant is confined may retain him for care and treatment for a period of thirty days from such date.
If the superintendent determines that the defendant is so mentally ill or mentally defective as to require continued care and treatment in an institution, he may, before the expiration of such thirty day period, apply for an order of certification in the manner prescribed in section 31.33 of the mental hygiene law."

N.Y. Crim. Proc. Law § 730.70 (McKinney); N.Y. Rule of Procedure 111.7.

Are there prohibitions on revoking pretrial release or competency as a pre-trial release factor

None stated.

Time limits on treatment

Maximum of two-thirds of the authorized maximum imprisonment for the highest class felony charged.

N.Y. Crim. Proc. Law § 730.40(1), 730.50(3), (4) (McKinney)