§ 656. Proceeding when person under sentence of death may be incompetent. 1. The state may not execute an inmate who is incompetent. An inmate is "incompetent" when, as a result of mental disease or defect, he lacks the mental capacity to understand the nature and effect of the death penalty and why it is to be carried out.

2. Upon the filing of a petition in the supreme court in either the county in which an inmate sentenced to death is confined or in the county in which the inmate was prosecuted alleging that the inmate is incompetent, the court shall issue an order staying the execution if and to the extent a stay is necessary to permit determination of the petition. Upon application of either the inmate's counsel or the district attorney the petition may be transferred to the court in which the inmate was convicted unless such transfer would be unduly burdensome or impracticable. Promptly upon filing the petition, the court shall appoint a commission of three psychiatric examiners, hereinafter referred to as "the psychiatric commissioners," to inquire into the inmate's competence and report to the court as to the inmate's competence. The psychiatric commissioners shall be impartial and must be qualified psychiatrists or certified psychologists. Before commencing an inquiry, the psychiatric commissioners must take the oath prescribed in rule forty-three hundred fifteen of the civil practice law and rules to be taken by referees. The petition may be filed by the inmate, the inmate's counsel, an employee of the department, the inmate's legal guardian, a member of such inmate's immediate family or, in the event that the inmate does not have regular contact with a member of his or her immediate family, a bona fide friend who has maintained regular contact with the inmate. The petition must be accompanied by an affidavit of at least one qualified psychiatrist or certified psychologist who, based at least in part on personal examination, attests that in the psychiatrist's or psychologist's professional opinion the inmate is incompetent and lists the pertinent facts therefor. For purposes of this section the terms "qualified psychiatrist" and "certified psychologist" have the meaning set forth in section 730.10 of the criminal procedure law.

3. The petition shall be served upon either the district attorney who prosecuted the inmate or upon the district attorney for the county in which the inmate is confined. If the petition is served upon the district attorney for the county in which the inmate is confined, the court shall promptly notify the district attorney who prosecuted the inmate. Immediately upon appointing the psychiatric commissioners, the court shall direct that an examination of the convicted person promptly take place with all three of the psychiatric commissioners present at the same time. The court shall also direct, upon application of the inmate or the district attorney, that the inmate be examined by a qualified psychiatrist or certified psychologist designated by the inmate or the district attorney. Counsel for the inmate and the district attorney shall have the right to be present at each such examination. Upon the filing of a petition pursuant to subdivision two of this section, if the inmate does not have counsel and is financially unable to obtain counsel the court shall appoint competent counsel experienced in the trial of criminal matters to represent the inmate.

4. The psychiatric commissioners must receive and consider evidence offered by the inmate's counsel and the district attorney, including written submissions, testimony and expert psychiatric evidence. The proceeding before the psychiatric commissioners shall be conducted on the record but need not be conducted in accordance with the rules governing the admission of evidence at trial, but counsel for the people and the inmate shall have the right to cross-examine witnesses.

5. When the proceeding before the psychiatric commissioners has been concluded, they must forthwith provide a transcript of the proceeding, together with their findings of fact, to the court with their opinion thereon. Unless impracticable, the psychiatric commissioners shall so act within sixty days from the filing of the petition. When an inmate shall be found incompetent by a majority of the psychiatric commissioners, the court shall accept such finding unless clearly erroneous, and promptly enter an order finding the inmate to be incompetent, staying the execution of the inmate and directing that the inmate be committed to a secure facility under the jurisdiction of the office of mental health if the inmate's incompetency is the result of mental illness. In all other cases, the inmate shall remain in the custody of the department. When an inmate is found competent by a majority of the psychiatric commissioners, the court shall accept such finding unless clearly erroneous, promptly enter an order finding the inmate to be competent and vacating any stay previously issued, and the court shall promptly inform the judge or justice who issued the warrant for the execution of the inmate of the court's finding. Upon being so informed, the judge or justice shall promptly issue a new warrant in accordance with subdivision two of section six hundred fifty of this article. Any other provision of law notwithstanding, no other review, judicial or otherwise, shall be available with respect to an order finding the inmate to be incompetent or competent. If the court rejects the finding of a majority of the psychiatric commissioners on the ground that it is clearly erroneous, the court shall appoint another commission to proceed as provided in this section.

6. When an inmate has been committed to a secure facility pursuant to this section, the inmate shall remain there until the facility administrator determines that the inmate may be competent. Upon so determining, the facility administrator shall promptly notify the court that entered the order finding the inmate to be incompetent, and the court shall promptly notify counsel and the district attorneys and appoint another commission to proceed as provided in this section.

7. The court shall allow reasonable fees to the psychiatric commissioners. The court shall allow reasonable fees for time spent in court and for time reasonably expended out of court to counsel appointed pursuant to this section. The court shall allow all reasonably necessary costs, including without limitation the costs attendant to fees for the examination of the inmate by a qualified psychiatrist or certified psychologist, incurred by the inmate and the district attorney in connection with a petition pursuant to this section. Each claim for compensation and reimbursement shall be supported by a sworn statement specifying the time expended, services rendered, expenses incurred and reimbursement or compensation applied for or received in the same case from any other source. All such fees and costs shall be a state charge payable on vouchers approved by the court after audit by and on the warrant of the comptroller.

8. When a petition has previously been filed and determined pursuant to this section, the court in which a subsequent petition is filed or to which a subsequent petition is transferred, shall not issue an order staying the execution of the inmate unless the court finds, after notice to the district attorney who prosecuted the inmate and after affording the district attorney a reasonable opportunity to be heard in writing, that there is reasonable cause to believe that the inmate is incompetent; provided, however, that the court may issue an order staying the execution of the inmate, to the extent a stay is necessary to afford the district attorney an opportunity to be heard and such reasonable cause determination to be made.