New York Codes, Rules and Regulations
Title 14 - DEPARTMENT OF MENTAL HYGIENE
Chapter XIII - Office of Mental Health
Part 541 - Defendants Committed To The Custody Of The Commissioner Pursuant To Cpl Section 330.20
Section 541.4 - Retention orders

(a) When a defendant is in the custody of the commissioner pursuant to a commitment order, a recommitment order or a retention order, at least 30 days prior to the expiration of the period prescribed in the order, the Director of Forensic Services, acting for the commissioner, shall apply to the court for a release order or a retention order when such order is applied for in conjunction with a transfer order, or the clinical director acting for the commissioner shall apply to the court for a retention order. An application by the clinical director pursuant to this subdivision shall be made on the basis of recommendations submitted to him or her by the treatment team after consultation with the hospital forensics committee. An application by the Director of Forensic Services pursuant to this subdivision shall be made on the basis of recommendations submitted to him or her by the clinical director after consultation with the hospital forensics committee in accordance with the procedures described in section 541.9 of this Part.

(b) The application shall be made to the court which issued the order, or to a superior court in the county in which the facility is located, on forms jointly approved by the commissioner and the Office of Court Administration, and shall be accompanied by a current psychiatric report. The applicant, whether it be the Director of Forensic Services or the clinical director, shall give written notice to the district attorney, the defendant, counsel for the defendant and the Mental Health Information Service when applying to the court. In addition, when the clinical director is the applicant, he or she shall also give written notice to the Director of Forensic Services.

(c) The application and psychiatric report shall contain information necessary for the court to determine if the defendant has a dangerous mental disorder, or is mentally ill but not dangerous, or is not mentally ill, and shall include an accompanying affidavit from at least one psychiatrist supportive of the relief requested in the application. Such affidavit shall be served on all parties entitled to receive the notice of application, pursuant to subdivision (b) of this section, and shall set forth the defendant's clinical diagnosis, a detailed analysis of his or her mental condition which caused the psychiatrist to formulate an opinion, and the psychiatrist's opinion with respect to the defendant. The treatment team leader or a psychiatrist or psychologist familiar with the defendant's current mental condition and case history shall be prepared to testify at any hearing held by the court.

(d) If the recommendation of the hospital forensics committee and the clinical director supports the view that the defendant is not mentally ill, the Director of Forensic Services shall apply for a release order and an order of conditions in accordance with section 541.8 of this Part.

(e) If the recommendation of the hospital forensics committee and the clinical director supports the view that the defendant is mentally ill but not dangerous, and the defendant is currently confined to a secure facility, the Director of Forensic Services may apply for a first, second or subsequent retention order, as appropriate, a transfer order and an order of conditions in accordance with section 541.7 of this Part.

(f) If the recommendation of the hospital forensics committee and the clinical director supports the view that the defendant has a dangerous mental disorder, and the defendant is currently confined to a secure facility, he or she shall apply for a first, second or subsequent retention order, as appropriate, authorizing continued custody of the defendant by the commissioner.

(g) If the clinical director determines that the defendant is mentally ill but not dangerous and the defendant is currently confined in a nonsecure facility, he or she shall apply for a first, second or subsequent retention order, as appropriate, authorizing continued custody of the defendant by the commissioner.