439 - Commitment to an institution for the retarded in the department of correction.
§ 439. Commitment to an institution for the retarded in the department of correction. 1. A proceeding for commitment of an inmate who may be committed to an institution for the retarded in the department of correction, as authorized by subdivision two or three of section four hundred thirty-eight, may be commenced and shall be carried out as herein provided on application of the superintendent or other officer in charge of the institution in which such inmate is confined, provided, however, that in the case of any inmate covered by subdivision two of section four hundred thirty-eight, no such proceeding shall be commenced without permission of the commissioner of correction. 2. Such superintendent or other officer in charge of the institution shall apply to a judge of a court of record to cause an examination to be made of such inmate by two examining physicians or by an examining physician and a certified psychologist other than one connected with the institution in which such inmate is confined. The physicians or the physician and psychologist shall be designated by the judge to whom the application is made and shall possess the qualifications prescribed by the provisions of section 1.05 of the mental hygiene law. If the persons so designated are satisfied after a personal examination that such inmate is mentally retarded, as defined in section 1.05 of the mental hygiene law, they shall make a certificate to such effect. 3. Upon such certificate being so made, it shall be delivered to the superintendent or other officer in charge, who may thereupon apply by petition to a judge of a court of record, annexing such certificate to his petition, for an order committing such inmate to an institution for the retarded in the department. Except as hereinafter provided, upon every such application for such an order of commitment, notice thereof in writing of at least five days, together with a copy of the petition, shall be served upon the alleged mentally defective person, and in addition thereto such notice and copy of the petition shall be served by registered mail upon either the wife, the father or mother or other nearest relative of such alleged mentally defective person, if there be any such known relative within the state; and if not, such notice shall be served upon any known friend of such alleged mentally defective person within the state. If there be no such known relative or friend within the state, the giving of such notice shall be dispensed with, but in such case the petition for the commitment shall recite the reasons why service of such notice on a relative or friend of the alleged mentally defective person was dispensed with and in such case the order for commitment shall recite why service of such notice on a relative or friend of the alleged mentally defective person was dispensed with. Notwithstanding the foregoing provisions, if the judge to whom such application is made be satisfied from any statement made in the papers or proceedings, or from inquiry, that personal service of the notice on the alleged mentally defective person would be ineffective or detrimental to such person, he may in his discretion dispense therewith, and he shall dispense therewith if the examining physicians or the examining physician and certified psychologist state in writing that personal service upon the alleged mentally defective person would in their opinion be detrimental to such person. Copies of the notice, the petition and the certificate or certificates of the examining physicians shall also be given the mental hygiene legal service. 4. The judge to whom such application for the commitment of the alleged mentally defective person is made may, if no demand is made for a hearing in behalf of the alleged mentally defective person, proceed forthwith on the return day of such notice to determine the question of mental condition and if satisfied that the alleged mentally defective person is mentally retarded, as defined in section 1.05 of the mentalhygiene law, may immediately issue an order for the commitment of such alleged mentally defective person to an institution for the retarded in the department of correction for a period not to exceed sixty days for the purpose of observation and treatment. 5. Upon the demand for a hearing by the inmate, any relative or near friend on behalf of such alleged mentally defective person, the judge shall, or he may upon his own motion where there is no demand for a hearing, issue an order directing the hearing of such application before him at a time not more than five days from the date of such order which shall be served upon the parties interested in the application and upon such other persons as the judge, in his discretion, may name. Upon such day or upon such other day to which the proceedings shall be regularly adjourned, he shall hear the testimony introduced by the parties and shall examine the alleged mentally defective person, if deemed advisable in or out of court, and render a decision in writing as to such person's mental defect. If such judge cannot hear the application, he may, in his order directing the hearing, name some referee who shall hear the testimony and report the same forthwith, with his opinion thereon, to such judge, who shall, if satisfied with such report, render his decision accordingly. If it be determined that such person is a mental defective, the judge shall forthwith issue his order committing him to an institution for the retarded in the department of correction for a period not to exceed sixty days for the purpose of observation and treatment. Such superintendent or other officer in charge shall thereupon cause such mentally defective person to be delivered to the superintendent of the appropriate institution for the retarded in the department of correction as designated in the rules and regulations of that department and such mental defective shall be received therein and retained in such an institution until transferred or discharged or otherwise released in accordance with the law, for the period specified in the order of commitment or in any subsequent order authorizing continued retention of such person in such institution. Such superintendent or other person in charge before delivering said mentally defective person shall see that he is bodily clean. At the time of such transfer there shall be submitted to the superintendent of the institution for the retarded the original certificate of conviction. If such judge shall refuse to issue an order of commitment, he shall certify in writing his reasons for such refusal. 6. When an order of commitment is made, such order and all papers in the proceeding shall be presented to the superintendent of the institution for the retarded at the time when the mentally defective person is delivered to such institution and a copy of the order and of each such paper shall be filed with the department of mental hygiene and also in the office of the county clerk of the county wherein the court is located which made the order of commitment. The judge shall order all such papers so filed in the county clerk's office to be sealed and exhibited only to parties to the proceedings, or someone properly interested, upon order of the court. 7. At any time prior to the expiration of sixty days from the date a mentally defective person is delivered to the superintendent of an institution for the retarded in the department of correction pursuant to this section, if a physician designated by the commissioner of correction finds that such person is in need of continued care and treatment therein, the superintendent of the institution may file with the court that made the commitment an application for continued retention of such person accompanied by a certificate of the physician setting forth his findings as to the condition of the inmate and the need for the continued care and treatment of such inmate in such aninstitution. If the court is satisfied that continued retention of such person in such an institution is warranted, the court shall approve the application and the papers shall be filed in accordance with subdivision six of this section. Upon the filing thereof the order theretofore made by the court shall become a final order and such person shall be retained in such an institution until transferred or discharged or otherwise released in accordance with the law. If the court is not satisfied that such continued retention is warranted, the court shall vacate the commitment and certify in writing his reasons for such action. Pending such decision of the court, the inmate shall be retained in such an institution. Where the commitment is vacated, or where an application is not made pursuant to this subdivision the inmate shall forthwith be transferred to a state correctional facility, or returned to the warden or other officer in charge of the institution from which he was received if such institution was not a state correctional facility. 8. If a mental defective whose commitment has been authorized pursuant to this section, or any relative or friend in his behalf, be dissatisfied with the commitment or the final order, he may, within thirty days after the making of any such order obtain a rehearing and a review of the proceeding already had and of such order, upon a petition to a justice of the supreme court other than the judge or justice presiding over the court making such order, who shall cause a jury to be summoned as in the case of proceedings for the appointment of a committee for a mentally ill person where the question of fact arising upon the competency of the person is tried by a jury, and shall try the question of the mental defect of the person so committed or so authorized to be retained, in the same manner as provided in said proceedings. Any such mentally defective person or the person applying on his behalf for such review may waive the trial of the fact by a jury and consent in writing to trial of such fact by the court. If such petition for the hearing and review be made by any other than the person so committed or authorized to be retained or the father, mother, husband, wife or child of such person, before such hearing or review shall be had, the petitioner shall make a deposit or give a bond, to be approved by a justice of the supreme court, for the payment of the costs and expenses of such rehearing or review and determination of the question of mental defect by a jury as aforesaid, if the order of commitment or authorizing continued retention is sustained. If the verdict of the jury, or the decision of the court when jury trial has been waived, be that such person is not mentally defective, the justice shall order the removal of such person from an institution for the retarded in the department of correction and such person shall forthwith be transferred to a state correctional facility, or returned to the warden or other officer in charge of the institution from which he was received if such institution was not a state correctional facility. Where the verdict of the jury, or the decision of the court where a jury trial has been waived, be that such person is mentally defective, the justice shall certify that fact and make an order authorizing continued retention under the original order. Proceedings under the order shall not be stayed pending an appeal therefrom, except upon an order of a justice of the supreme court, and made upon notice and after hearing, with provision made therein for such temporary care and confinement of the alleged mentally defective person as may be deemed necessary. 9. The costs necessarily incurred in determining the question of mental condition including the fees of the physicians and psychologists who serve as examiners, shall be a charge upon the state or the municipality, as the case may be, at whose expense the institution ismaintained, which has custody of the alleged mentally defective person at the time of the application for his commitment under provisions of this section. 10. During the pendency of such proceeding, the judge may forthwith commit such allegedly mentally defective person to an institution for the retarded in the department of correction upon petition and the affidavit of two examining physicians or an examining physician and a certified psychologist that the warden or other officer in charge is not able to properly care for such person at the institution where he is confined, and that such person is in need of immediate treatment. 11. The notice provided for herein shall be served by the sheriff of the counties of the state of New York, in which case the charges of such sheriff shall be a disbursement in such proceeding, or by registered mail on all persons required to be served other than the alleged mentally defective person.