N.Y. Correct. Law § 402

§ 402. Commitment of mentally ill inmates. 1. Whenever the physician\nof any correctional facility, any county penitentiary, county jail or\nworkhouse, any reformatory for women, or of any other correctional\ninstitution, shall report in writing to the superintendent that any\nperson undergoing a sentence of imprisonment or adjudicated to be a\nyouthful offender or juvenile delinquent confined therein is, in his\nopinion, mentally ill, such superintendent shall apply to a judge of the\ncounty court or justice of the supreme court in the county to cause an\nexamination to be made of such person by two examining physicians. Such\nphysicians shall be designated by the judge to whom the application is\nmade. Each such physician, if satisfied, after a personal examination,\nthat such inmate is mentally ill and in need of care and treatment,\nshall make a certificate to such effect. Before making such certificate,\nhowever, he shall consider alternative forms of care and treatment\navailable during confinement in such correctional facility,\npenitentiary, jail, reformatory or correctional institution that might\nbe adequate to provide for such inmate's needs without requiring\nhospitalization. If the examining physician knows that the person he is\nexamining has been under prior treatment, he shall, insofar as possible,\nconsult with the physician or psychologist furnishing such prior\ntreatment prior to making his certificate.\n 2. In the city of New York, if the physician of a workhouse, city\nprison, jail, penitentiary or reformatory reports in writing to the\nsuperintendent of such institution that a prisoner confined therein,\nserving a sentence of imprisonment, is in his opinion mentally ill, the\nsuperintendent of said institution shall either transfer said prisoner\nto Bellevue or Kings county hospital for observation as to his mental\ncondition by two examining physicians or shall secure two examining\nphysicians to make such examination in his institution. Each such\nphysician, if satisfied after a personal examination and observation\nthat the prisoner is mentally ill and in need of care and treatment,\nshall make a certificate to such effect. Before making such certificate,\nhowever, he shall consider alternative forms of care and treatment\navailable during confinement in such correctional facility,\npenitentiary, jail, reformatory or correctional institution that might\nbe adequate to provide for such inmate's needs without requiring\nhospitalization. If the examining physician knows that the person he is\nexamining has been under prior treatment, he shall, insofar as possible,\nconsult with the physician or psychologist furnishing such prior\ntreatment prior to making his certificate.\n 3. Upon such certificates of the examining physicians being so made,\nit shall be delivered to the superintendent who shall thereupon apply by\npetition forthwith to a judge of the county court or justice of the\nsupreme court in the county, annexing such certificate to his petition,\nfor an order committing such inmate to a hospital for the mentally ill.\nUpon every such application for such an order of commitment, notice\nthereof in writing, of at least five days, together with a copy of the\npetition, shall be served personally upon the alleged mentally ill\nperson, and in addition thereto such notice and a copy of the petition\nshall be served upon either the wife, the husband, the father or mother\nor other nearest relative of such alleged mentally ill person, if there\nbe any such known relative within the state; and if not, such notice\nshall be served upon any known friend of such alleged mentally ill\nperson within the state. If there be no such known relative or friend\nwithin the state, the giving of such notice shall be dispensed with, but\nin such case the petition for the commitment shall recite the reasons\nwhy service of such notice on a relative or friend of the alleged\nmentally ill person was dispensed with and, in such case, the order for\ncommitment shall recite why service of such a notice on a relative or\nfriend of the alleged mentally ill person was dispensed with. Copies of\nthe notice, the petition and the certificates of the examining\nphysicians shall also be given the mental hygiene legal service. The\nmental hygiene legal service shall inform the inmate and, in proper\ncases, others interested in the inmate's welfare, of the procedures for\nplacement in a hospital and of the inmate's right to have a hearing, to\nhave judicial review with a right to a jury trial, to be represented by\ncounsel and to seek an independent medical opinion. The mental hygiene\nlegal service shall have personal access to such inmate for such\npurposes.\n 4. The judge to whom such application for the commitment of the\nalleged mentally ill person is made may, if no demand is made for a\nhearing on behalf of the alleged mentally ill person, proceed forthwith\non the return day of such notice to determine the question of mental\nillness and, if satisfied that the alleged mentally ill person is\nmentally ill and in need of care and treatment, may immediately issue an\norder for the commitment of such alleged mentally ill person to a\nhospital for a period not to exceed six months from the date of the\norder.\n 5. Upon the demand for a hearing by any relative or near friend on\nbehalf of such alleged mentally ill person, the judge shall, or he may\nupon his own motion where there is no demand for a hearing, issue an\norder directing the hearing of such application before him at a time not\nmore than five days from the date of such order, which shall be served\nupon the parties interested in the application and upon such other\npersons as the judge, in his discretion, may name. Upon such day or upon\nsuch other day to which the proceedings shall be regularly adjourned, he\nshall hear the testimony introduced by the parties and shall examine the\nalleged mentally ill person, if deemed advisable in or out of court, and\nrender a decision in writing as to such person's mental illness and need\nfor care and treatment. If such judge cannot hear the application, he\nmay, in his order directing the hearing, name some referee who shall\nhear the testimony and report the same forthwith, with his opinion\nthereon, to such judge, who shall, if satisfied with such report, render\nhis decision accordingly. If it be determined that such person is\nmentally ill and in need of care and treatment, the judge shall\nforthwith issue his order committing him to a hospital for a period not\nto exceed six months from the date of the order. Such superintendent\nshall thereupon cause such mentally ill person to be delivered to the\ndirector of the appropriate hospital as designated by the commissioner\nof mental hygiene and such mentally ill person shall be received into\nsuch hospital and retained there until he is determined to be no longer\nin need of care and treatment by the director of such hospital or\nlegally discharged or for the period specified in the order of\ncommitment or in any subsequent order authorizing continued retention of\nsuch person in said hospital. Such superintendent, before delivering\nsaid mentally ill person, shall see that he is bodily clean. If such\njudge shall refuse to issue an order of commitment, he shall certify in\nwriting his reasons for such refusal.\n 6. When an order of commitment is made, such order and all papers in\nthe proceeding shall be presented to the director of the appropriate\nhospital at the time when the mentally ill person is delivered to such\ninstitution and a copy of the order and of each such paper shall be\nfiled with the department of mental hygiene and also in the office of\nthe county clerk of the county wherein the court is located which made\nthe order of commitment. The judge shall order all such papers so filed\nin the county clerk's office to be sealed and exhibited only to parties\nto the proceedings, or someone properly interested, upon order of the\ncourt.\n 7. The costs necessarily incurred in determining the question of\nmental illness, including the fees of the medical examiners, shall be a\ncharge upon the state or the municipality, as the case may be, at whose\nexpense the institution is maintained, which has custody of the alleged\nmentally ill person at the time of the application for his commitment to\nthe hospital under the provisions of this section.\n 8. During the pendency of such proceeding the judge may forthwith\ncommit such alleged mentally ill person to a hospital for the mentally\nill upon petition and the affidavit of two examining physicians that the\nsuperintendent is not able to properly care for such person at the\ninstitution where he is confined and that such person is in immediate\nneed of care and treatment. Any person so committed shall be delivered\nto the director of the appropriate hospital as designated in the rules\nand regulations of the department of mental hygiene.\n 9. Except as provided in subdivision two pertaining to prisoners\nconfined in the city of New York, an inmate of a correctional facility\nor a county jail may be admitted on an emergency basis to the Central\nNew York Psychiatric Center upon the certification by two examining\nphysicians, including physicians employed by the office of mental health\nand associated with the correctional facility in which such inmate is\nconfined, that the inmate suffers from a mental illness which is likely\nto result in serious harm to himself or others as defined in subdivision\n(a) of section 9.39 of the mental hygiene law. Any person so committed\nshall be delivered by the superintendent within a twenty-four hour\nperiod, to the director of the appropriate hospital as designated in the\nrules and regulations of the office of mental health. Upon delivery of\nsuch person to a hospital operated by the office of mental health, a\nproceeding under this section shall immediately be commenced.\n 10. If the director of a hospital for the mentally ill shall deem that\nthe condition of such mentally ill person requires his further retention\nin a hospital he shall, during the period of retention authorized by the\nlast order of the court, apply to the supreme court or county court in\nthe county where such hospital is located, for an order authorizing\ncontinued retention of such mentally ill person. The procedures for\nobtaining any order pursuant to this subdivision shall be in accordance\nwith the provisions of the mental hygiene law for the retention of\ninvoluntary patients.\n 11. If a mentally ill person whose commitment, retention or continued\nretention has been authorized pursuant to this section, or any relative\nor friend in his behalf, be dissatisfied with any such order, he may,\nwithin thirty days after the making of any such order, obtain a\nrehearing and a review of the proceedings already had and of such order,\nupon a petition to a justice of the supreme court other than the judge\nor justice presiding over the court making such order. Such justice\nshall cause a jury to be summoned and shall try the question of the\nmental illness and the need for care and treatment of the person so\ncommitted or so authorized to be retained. Any such mentally ill person\nor the person applying on his behalf for such review may waive the trial\nof the fact by a jury and consent in writing to trial of such fact by\nthe court. No such petition for the hearing and review shall be made by\nanyone other than the person so committed or authorized to be retained\nor the father, mother, husband, wife or child of such person, unless the\npetitioner shall have first obtained the leave of the court upon good\ncause shown. If the verdict of the jury, or the decision of the court\nwhen jury trial has been waived, be that such person is not mentally\nill, the justice shall order the removal of such person from the\nhospital and such person shall forthwith be transferred to a state\ncorrectional facility, or returned to the superintendent of the\ninstitution from which he was received if such institution was not a\nstate correctional facility. Where the verdict of the jury, or the\ndecision of the court where a jury trial has been waived, be that such\nperson is mentally ill, the justice shall certify that fact and make an\norder authorizing continued retention under the original order.\nProceedings under the order shall not be stayed pending an appeal\ntherefrom, except upon an order of a justice of the supreme court, and\nmade upon notice and after hearing, with provision made therein for such\ntemporary care and confinement of the alleged mentally ill person as may\nbe deemed necessary.\n 12. The notice provided for herein shall be served by the sheriff of\nthe counties of the state of New York, in which case the charges of such\nsheriff shall be a disbursement in such proceeding, or by registered\nmail on all persons required to be served, except that the\nsuperintendent of a correctional facility or the director of a hospital\nfor the mentally ill, or their designees, shall be authorized to\npersonally serve notice upon an alleged mentally ill person or a\nmentally ill person, as provided in this section.\n 13. Notwithstanding any provision of law to the contrary, when an\ninmate is being examined in anticipation of his or her conditional\nrelease, release to parole supervision, or when his or her sentence to a\nterm of imprisonment expires, the provisions of subdivision one of\nsection four hundred four of this article shall be applicable and such\ncommitment shall be effectuated in accordance with the provisions of\narticle nine or ten of the mental hygiene law, as appropriate.\n