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, the court shall conduct\na hearing to determine whether the respondent is an incapacitated\nperson. The respondent, the counsel for the respondent, the presentment\nagency and the commissioner of mental health or the commissioner of\nmental retardation and developmental disabilities, as appropriate, shall\nbe notified 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. The court shall dismiss the petition on the\nissuance of the order of commitment.\n 5. (a) If the court finds that there is probable cause to believe\nthat the respondent committed a felony, it shall order the respondent\ncommitted to the custody of the commissioner of mental health or the\ncommissioner of mental retardation and developmental disabilities for an\ninitial period not to exceed one year from the date of such order. Such\nperiod may be extended annually upon further application to the court by\nthe commissioner having custody or his or her designee. Such application\nmust be made not more than sixty days prior to the expiration of such\nperiod on forms that have been prescribed by the chief administrator of\nthe courts. At that time, the commissioner must give written notice of\nthe application to the respondent, the counsel representing the\nrespondent and the mental hygiene legal service if the respondent is at\na residential facility. Upon receipt of such application, the court must\nconduct a hearing to determine the issue of capacity. If, at the\nconclusion of a hearing conducted pursuant to this subdivision, the\ncourt finds that the respondent is no longer incapacitated, he or she\nshall be returned to the family court for further proceedings pursuant\nto this article. If the court is satisfied that the respondent continues\nto be incapacitated, the court shall authorize continued custody of the\nrespondent by the commissioner for a period not to exceed one year. Such\nextensions shall not continue beyond a reasonable period of time\nnecessary to determine whether the respondent will attain the capacity\nto proceed to a fact finding hearing in the foreseeable future but in no\nevent shall continue beyond the respondent's eighteenth birthday.\n (b) If a respondent is in the custody of the commissioner upon the\nrespondent's eighteenth birthday, the commissioner shall notify the\nclerk of the court that the respondent was in his custody on such date\nand the court shall dismiss the petition.\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.\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\nbe notified of any such review and afforded an opportunity to be heard.\nThe commissioner 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 of the appropriate office of the department of mental\nhygiene pursuant to the provisions of the mental hygiene law. Unless the\nrespondent is admitted pursuant to such an application he shall be\nreleased.\n 7. If the commissioner having custody of a child committed to a\nresidential facility determines at any time that such child may be more\nappropriately treated in a non-residential facility, he may petition the\nfamily court for a hearing. If the court finds after a hearing that\ntreatment in a non-residential facility would be more appropriate for\nsuch child, the court shall modify its order of commitment to authorize\ntransfer of such child to a non-residential facility. Application for\nsuch a hearing 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