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criminal_recordWhen the court orders a psychiatric examination pursuant to article 730 of the Criminal Procedure Law (730 examination), the longstanding practice has been to either remand or set significant bail on the defendant unless the court is assured the defendant will appear for the examination. Although this practice is not without its critics, judges arraigning individuals who appear unfit and who are perhaps homeless or with no community ties have good reason to think the individual is at very high risk for failure to appear for a 730 evaluation if released on recognizance.

This practice is sure to be tested under the comprehensive overhaul of New York’s bail system signed into law by Gov. Andrew Cuomo on April 1, 2019. L. 2019, c. 59, effective Jan. 1, 2020. The new bail statute drastically changed the bail statute by eliminating cash bail in most cases. However, it did not amend CPL article 730 and is silent as to the type of securing order the court may issue when ordering a 730 examination. Part 1 of this article discusses whether a defendant who appears unfit can still be remanded or have bail set under the new statute; and if not, whether other options are available to facilitate a successful completion of a 730 examination, as will be discussed in Part 2.

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