Definition The word forensic is an adjective that comes from the - PowerPoint PPT Presentation

CLMHD Mentoring Workshop November 7, 2014 Forensics : DCS Roles and Legal Responsibilities under CPL ' 730 Jed Wolkenbreit CLMHD Counsel 1

Definition The word forensic is an adjective that comes from the Latin forēnsis , meaning "of or before the forum. It is generally defined as “ Belonging to courts of justice” . 2

Mental Hygiene Law 3

Some Mental Hygiene Law Sections involving Courts • MHL ' 9.43- Power of the Courts to issue order of transport to 9.39 hospital or CPEP for examination. – DCS has no formal role but may be called upon by Judge for help. – Note that a judge is not a 9.45 reporter. • MHL ' 9.60- Assisted Outpatient Treatment 4

Mental Hygiene Law ' 9.27 • MHL ' 9.27- (2 PC) – involuntary admission – application to director of hospital by family, roommate, DCS, treating psychiatrist etc. – Two physicians must examine and separately certify need for involuntary admission- (not necessary harm to self or others although OMH 471 A form does require this). – Either physician may order transport – Confirmed by staff psychiatrist at hospital 5

Mental Hygiene Law ' 9.37 • MHL ' 9.37-DCS or designee apply to hospital for admission- (form 475).  Requires personal examination.  Requires mental illness likely to result in serious harm.  Designee must be a physician except in counties under 200,000 in certain cases.  Staff physician at hospital must confirm prior to admission.  For >72 hours -Staff psychiatrist must certify. 6

Corrections Law 7

Dealing with the Local Jail Population • Section 508 – concerns un-sentenced inmates – DCS may be involved • Section 402 concerns sentenced inmates. – DCS NOT involved 8

Section 508 Jail psychiatrist or physician determines need for hospitalization. MHL ' 9.37 or ' 9.27 are employed.  Forensic Unit (LGU pays ½ + sheriff fee)  Northeast Central Regional (Marcy)  Rochester Regional  Prison ward of Article 28 hospital.  9.39 with Sheriff custody.  Release from custody for hospitalization. 9

Section 402  Mentally ill sentenced inmates  Mental Health professionals in the local correctional system will diagnose and send inmate for treatment  The DCS has no statutory role in this procedure 10

Family Court Act 11

Family Court Act  ' 301.2 - Capacity examination of a juvenile.  ' 353.4- Transfer of mentally ill juvenile to custody of Commissioner.  ' 251 - Court ordered medical and psychiatric examinations and treatment 12

Criminal Procedure Law 13

Criminal Procedure Law  ' 250.10 - Examination Upon Application of Prosecutor.  ' 330.20 - Procedure following Plea or Verdict of Not Guilty by Reason of mental disease or Defect.  ' 390.30 - Presentence Investigation.  ' 730 - Fitness to Proceed. 14

CPL ' 250.10  If a defendant plans to introduce psychiatric testimony, the prosecution must be notified and has the opportunity to have the defendant examined.  The DCS has NO part in this proceeding. 15

CPL ' 330.20 • Procedure following verdict or plea of “not responsible by reason of mental disease or defect” • Examination by two examiners to determine: 1- dangerous mental disorder 2- mental illness- not dangerous 3- neither of the above • DCS has NO formal role in this process 16

Court action on 330.20 1- If dangerous, commit to Commissioner for placement in a secure facility. 2. If mentally ill but not dangerous, handle as a civil commitment (9.27,9.37 or 9.39) or discharge with order of conditions. 3. If neither, then release to community with or without order of conditions. • DCS may become involved if there are conditions. 17

CPL 390.30 – Pre-Sentence Mental Health Examination  Examination of a defendant anytime prior to sentencing to aid the Court in the sentencing process or other disposition.  Provide the court with information regarding a defendant’s mental condition.  Used, along with other relevant data obtained during the pre-sentence investigation, to determine an appropriate sentence, or to assist the court in making dispositions at other points in the criminal process. 18

CPL ' 730 Competency, Capacity or Fitness to Stand Trial Does the defendant have the capacity to understand the proceedings and aid in their defense? 19

CPL ' 730 Article 730 - MENTAL DISEASE OR DEFECT EXCLUDING FITNESS TO PROCEED 730.10 - Fitness to proceed; definitions. 730.20 - Fitness to proceed; generally. 730.30 - Fitness to proceed; order of examination. 730.40 - Fitness to proceed; local criminal court accusatory instrument. 730.50 - Fitness to proceed; indictment. 730.60 - Fitness to proceed; procedure following custody by commissioner. 730.70 - Fitness to proceed; procedure following termination of custody by commissioner. 20

CPL ' 730 Incapacitated person - a defendant who as a result of mental disease or defect • lacks capacity to understand the proceedings against him or to assist in his own defense. Order of examination - an order issued to an appropriate director by a criminal • court wherein a criminal action is pending against a defendant, or by a family court pursuant to section 322.1 of the family court act wherein a juvenile delinquency proceeding is pending against a juvenile, directing that such person be examined for the purpose of determining if he is an incapacitated person. Commissioner " means the state commissioner of mental health or the state • commissioner of mental retardation and developmental disabilities. Director- • – (a) the director of a state hospital operated by the office of mental health or the director of a developmental center operated by the office of mental retardation and developmental disabilities, or – (b) the director of a hospital operated by any local government of the state that has been certified by the commissioner as having adequate facilities to examine a defendant to determine if he is an incapacitated person, or – (c) the director of community mental health services. 21

CPL ' 730 Qualified psychiatrist - 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. 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. • 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. 22

730.20 Order  Court issues an order to the DCS to appoint 2 Psychiatric examiners (Psychiatrist or Psychologist).  Examiners may evaluate the defendant jointly or separately.  Court may order that defendant can have own examiner present.  Generally completed in an “outpatient” setting – local correctional facility or an outpatient clinic. Order should indicate where defendant is at the time the order was issued. 23

730.20 Order 24

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730- split decision • If examiners disagree the statute requires that the Court hold a hearing. • Often the DCS arranges third exam. • The examinations are reported to the Court. The final decision is made by the Court. 27

Outcome of 730 Examination • If Competent- defendant proceeds to trial or plea. (NOTE: A seriously mentally ill individual can be competent to stand trial) • If Not Competent - the court issues Orders of Observation or Commitment under CPL 730.40 or 730.50. 28

If Not Competent CPL 730.40- Actions in a local Criminal Court • Misdemeanor-Final Order of Observation issued. – Charges are dismissed. – Individual is committed for up to 90 days . • Felony- – Temporary Order of Observation for 90 Days. • May be extended – Final order of Observation with DA approval. • Charges must be dismissed 29

CPL 730.50- Actions in a Superior Criminal Court Final Order of Observation –  if indictment charges less than a felony or if convicted of less than felony.  charges dismissed.  ordered to custody of commissioner for 90 days . Order of Commitment- (Restoration)  Initial order not to exceed one year.  Must be reviewed annually and renewed if appropriate.  Can continue for up to a period of time equal to 2/3 of the length of the maximum sentence the defendant would have if convicted .  Jackson proceeding 30

Some resources 1. - Forensic Manual for Directors of Community Services- members only section of CLMHD website 2. The Mental Health Resource Handbook for Human Service Personnel Serving the Local Correctional Population. Chapter 7 has all of the required forms. https://www.omh.ny.gov/omhweb/forensic/manual/ 31

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