§ 322.2. Proceedings to determine capacity. 1. Upon the receipt of\nexamination reports ordered under section 322.1 of this act, the court\nshall conduct a hearing to determine whether the respondent is an\nincapacitated person. The respondent, the counsel for the respondent,\nthe presentment agency and the commissioner of mental health or the\ncommissioner of developmental disabilities, as appropriate, shall be\nnotified 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. Unless the court specifies that such commitment\nshall be in a residential facility, such commissioner having custody may\narrange for treatment in an appropriate facility or program, including\nan outpatient program, in accordance with subdivision (e) of section\n7.09 or subdivision (c-1) of section 13.09 respectively, of the mental\nhygiene law. The court shall dismiss the petition on the issuance of the\norder of commitment and such dismissal shall constitute a bar to further\nprosecution of the charge or charges contained in the petition.\n 5. (a) If the court finds that there is probable cause to believe that\nthe respondent committed a felony, it shall order the respondent\ncommitted to the custody of the commissioner of mental health or the\ncommissioner of the office for people with developmental disabilities\nfor an initial period not to exceed one year from the date of such\norder. Unless the court specifies that such commitment shall be in a\nresidential facility, such commissioner having custody may arrange for\ntreatment in an appropriate facility or program, including an outpatient\nprogram, in accordance with subdivision (e) of section 7.09 or\nsubdivision (c-1) of section 13.09 respectively, of the mental hygiene\nlaw. Such period may be extended annually upon further application to\nthe court by the commissioner having custody or his or her designee.\nSuch application must be made not more than sixty days prior to the\nexpiration of such period on forms that have been prescribed by the\nchief administrator of the courts. At that time, the commissioner must\ngive written notice of the application to the respondent, the counsel\nrepresenting the respondent and the mental hygiene legal service if the\nrespondent is at a residential facility. Upon receipt of such\napplication, the court must conduct a hearing to determine the issue of\ncapacity. If, at the conclusion of a hearing conducted pursuant to this\nsubdivision, the court finds that the respondent is no longer\nincapacitated, he or she shall be returned to the family court for\nfurther proceedings pursuant to this article. If the court is satisfied\nthat the respondent continues to be incapacitated, the court shall\nauthorize continued custody of the respondent by the commissioner in a\nfacility or program for a period not to exceed one year. Such extensions\nshall not continue beyond a reasonable period of time necessary to\ndetermine whether the respondent will attain the capacity to proceed to\na fact finding hearing in the foreseeable future but in no event shall\ncontinue beyond the respondent's eighteenth birthday or, if the\nrespondent was at least sixteen years of age when the act was committed,\nbeyond the respondent's twenty-first birthday.\n (b) If a respondent is in the custody of the com
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