§ 730.60 Fitness to proceed; procedure following custody by\n commissioner.\n 1. When a local criminal court issues a final or temporary order of\nobservation or an order of commitment, it must forward such order and a\ncopy of the examination reports and the accusatory instrument to the\ncommissioner, and, if available, a copy of the pre-sentence report. Upon\nreceipt thereof, the commissioner must designate an appropriate\ninstitution operated by the department of mental hygiene in which the\ndefendant is to be placed, provided, however, that the commissioner may\ndesignate an appropriate hospital for placement of a defendant for whom\na final order of observation has been issued, where such hospital is\nlicensed by the office of mental health and has agreed to accept, upon\nreferral by the commissioner, defendants subject to final orders of\nobservation issued under this subdivision. The sheriff must hold the\ndefendant in custody pending such designation by the commissioner, and\nwhen notified of the designation, the sheriff must deliver the defendant\nto the superintendent of such institution. The superintendent must\npromptly inform the appropriate director of the mental hygiene legal\nservice of the defendant's admission to such institution. If a defendant\nescapes from the custody of the commissioner, the escape shall interrupt\nthe period prescribed in any order of observation, commitment or\nretention, and such interruption shall continue until the defendant is\nreturned to the custody of the commissioner.\n 2. Except as otherwise provided in subdivisions four and five, when a\ndefendant is in the custody of the commissioner pursuant to a temporary\norder of observation or an order of commitment or an order of retention,\nthe criminal action pending against the defendant in the court that\nissued such order is suspended until the superintendent of the\ninstitution in which the defendant is confined determines that he is no\nlonger an incapacitated person. In that event, the court that issued\nsuch order and the appropriate district attorney must be notified, in\nwriting, by the superintendent of his determination. The court must\nthereupon proceed in accordance with the provisions of subdivision two\nof section 730.30 of this chapter; provided, however, if the court is\nsatisfied that the defendant remains an incapacitated person, and upon\nconsent of all parties, the court may order the return of the defendant\nto the institution in which he had been confined for such period of time\nas was authorized by the prior order of commitment or order of\nretention. Upon such return, the defendant shall have all rights and\nprivileges accorded by the provisions of this article.\n 3. When a defendant is in the custody of the commissioner pursuant to\nan order issued in accordance with this article, the commissioner may\ntransfer him to any appropriate institution operated by the department\nof mental hygiene, provided, however, that the commissioner may\ndesignate an appropriate hospital for placement of a defendant for whom\na final order of observation has been issued, where such hospital is\nlicensed by the office of mental health and has agreed to accept, upon\nreferral by the commissioner, defendants subject to final orders of\nobservation issued under this section. The commissioner may discharge a\ndefendant in his custody under a final order of observation at any time\nprior to the expiration date of such order, or otherwise treat or\ntransfer such defendant in the same manner as if he were a patient not\nin confinement under a criminal court order.\n 4. When a defendant is in the custody of the commissioner pursuant to\nan order of commitment or an order of retention, he may make any motion\nauthorized by this chapter which is susceptible of fair determination\nwithout his personal participation. If the court denies any such motion\nit must be without prejudice to a renewal thereof after the criminal\nac
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