N.Y. Fam. Ct. Act § 322.2

§ 322.2. Proceedings to determine capacity. 1. Upon the receipt of\nexamination reports ordered under section 322.1 of this act, the court\nshall conduct a hearing to determine whether the respondent is an\nincapacitated person. The respondent, the counsel for the respondent,\nthe presentment agency and the commissioner of mental health or the\ncommissioner of developmental disabilities, as appropriate, shall be\nnotified of such hearing at least five days prior to the date thereof\nand afforded an opportunity to be heard.\n 2. If the court finds that the respondent is not an incapacitated\nperson, it shall continue the delinquency proceedings.\n 3. If the court finds that the respondent is an incapacitated person,\nthe court shall schedule a hearing to determine whether there is\nprobable cause to believe that the respondent committed a crime. The\norder of proceeding at such hearing shall conform to section 325.2.\n 4. If the court finds that there is probable cause to believe that the\nrespondent committed a misdemeanor, the respondent shall be committed to\nthe custody of the appropriate commissioner for a reasonable period not\nto exceed ninety days. Unless the court specifies that such commitment\nshall be in a residential facility, such commissioner having custody may\narrange for treatment in an appropriate facility or program, including\nan outpatient program, in accordance with subdivision (e) of section\n7.09 or subdivision (c-1) of section 13.09 respectively, of the mental\nhygiene law. The court shall dismiss the petition on the issuance of the\norder of commitment and such dismissal shall constitute a bar to further\nprosecution of the charge or charges contained in the petition.\n 5. (a) If the court finds that there is probable cause to believe that\nthe respondent committed a felony, it shall order the respondent\ncommitted to the custody of the commissioner of mental health or the\ncommissioner of the office for people with developmental disabilities\nfor an initial period not to exceed one year from the date of such\norder. Unless the court specifies that such commitment shall be in a\nresidential facility, such commissioner having custody may arrange for\ntreatment in an appropriate facility or program, including an outpatient\nprogram, in accordance with subdivision (e) of section 7.09 or\nsubdivision (c-1) of section 13.09 respectively, of the mental hygiene\nlaw. Such period may be extended annually upon further application to\nthe court by the commissioner having custody or his or her designee.\nSuch application must be made not more than sixty days prior to the\nexpiration of such period on forms that have been prescribed by the\nchief administrator of the courts. At that time, the commissioner must\ngive written notice of the application to the respondent, the counsel\nrepresenting the respondent and the mental hygiene legal service if the\nrespondent is at a residential facility. Upon receipt of such\napplication, the court must conduct a hearing to determine the issue of\ncapacity. If, at the conclusion of a hearing conducted pursuant to this\nsubdivision, the court finds that the respondent is no longer\nincapacitated, he or she shall be returned to the family court for\nfurther proceedings pursuant to this article. If the court is satisfied\nthat the respondent continues to be incapacitated, the court shall\nauthorize continued custody of the respondent by the commissioner in a\nfacility or program for a period not to exceed one year. Such extensions\nshall not continue beyond a reasonable period of time necessary to\ndetermine whether the respondent will attain the capacity to proceed to\na fact finding hearing in the foreseeable future but in no event shall\ncontinue beyond the respondent's eighteenth birthday or, if the\nrespondent was at least sixteen years of age when the act was committed,\nbeyond the respondent's twenty-first birthday.\n (b) If a respondent is in the custody of the commissioner upon the\nrespondent's eighteenth birthday, or if the respondent was at least\nsixteen years of age when the act resulting in the respondent's\nplacement was committed, beyond the respondent's twenty-first birthday,\nthe commissioner shall notify the clerk of the court that the respondent\nwas in his custody on such date and the court shall dismiss the\npetition.\n (c) If the court finds that there is probable cause to believe that\nthe respondent has committed a designated felony act, the court shall\nrequire that treatment be provided in a residential facility within the\nappropriate office of the department of mental hygiene or in an\noutpatient facility if the commissioner having custody of the child\npetitions the court pursuant to subdivision seven of this section and\nsuch court approves.\n (d) The commissioner shall review the condition of the respondent\nwithin forty-five days after the respondent is committed to the custody\nof the commissioner. He or she shall make a second review within ninety\ndays after the respondent is committed to his or her custody.\nThereafter, he or she shall review the condition of the respondent every\nninety days. The respondent and the counsel for the respondent, shall be\nnotified of any such review and afforded an opportunity to be heard. The\ncommissioner having custody shall apply to the court for an order\ndismissing the petition whenever he or she determines that there is a\nsubstantial probability that the respondent will continue to be\nincapacitated for the foreseeable future. At the time of such\napplication the commissioner must give written notice of the application\nto the respondent, the presentment agency and the mental hygiene legal\nservice if the respondent is at a residential facility. Upon receipt of\nsuch application, the court may on its own motion conduct a hearing to\ndetermine whether there is substantial probability that the respondent\nwill continue to be incapacitated for the foreseeable future, and it\nmust conduct such hearing if a demand therefor is made by the respondent\nor the mental hygiene legal service within ten days from the date that\nnotice of the application was given to them. The respondent may apply to\nthe court for an order of dismissal on the same ground.\n 6. Any order pursuant to this section dismissing a petition shall not\npreclude an application for voluntary or involuntary care and treatment\nin a facility or program of the appropriate office of the department of\nmental hygiene pursuant to the provisions of the mental hygiene law.\nUnless the respondent is admitted pursuant to such an application he or\nshe shall be released.\n 7. If the commissioner having custody of a child committed to a\nresidential facility pursuant to subdivision four or paragraph (a) of\nsubdivision five of this section determines at any time that such child\nmay be more appropriately treated in a non-residential facility or on an\noutpatient basis, he or she may arrange for such treatment. If the\ncommissioner having custody of a child committed to a residential\nfacility pursuant to paragraph (c) of subdivision five of this section\ndetermines at any time that such child may be more appropriately treated\nin a non-residential facility or on an outpatient basis, he or she may\npetition the family court for a hearing. If the court finds after a\nhearing that treatment in a non-residential facility or on an outpatient\nbasis would be more appropriate for such child, the court shall modify\nits order of commitment to direct the commissioner to transfer the child\nto a non-residential facility or arrange outpatient treatment.\nApplication for a hearing to determine whether any child committed to a\nresidential facility under subdivisions four or five of this section may\nbe more appropriately treated in a non-residential facility or on an\noutpatient basis may be made by the respondent.\n 8. If the commissioner having custody of the child determines at any\ntime that such child is not an incapacitated person, he shall petition\nthe court for a hearing. The respondent and the presentment agency shall\nbe notified of such hearing within twenty-four hours of the scheduling\nof such hearing and afforded an opportunity to be heard. Application for\nsuch a hearing may be made by the respondent. If the court finds after\nthe hearing that the child is no longer incapacitated, he shall be\nreturned to the family court for further proceedings pursuant to this\narticle.\n 9. Time spent by the respondent in the custody of a commissioner of an\noffice within the department of mental hygiene or in a local hospital or\ndetention facility pending transfer to the custody of the commissioner\nafter a finding of incapacity, shall be credited and applied towards the\nperiod of placement specified in a dispositional order on the original\npetition.\n