PEOPLE v. ROBINSON (2000)

 Supreme Court erred in permitting defendant to cross-examine one of the two psychiatrists at the pretrial competency hearing.   When a court orders a defendant to undergo an examination pursuant to CPL 730.30, it is because the court is “of the opinion that the defendant may be an incapacitated person” (CPL 730.30[1] ).   Once that procedure is invoked, as it was in this case, “the defendant [is] entitled to a full and impartial determination of his mental capacity” (People v. Armlin, 37 N.Y.2d 167, 172, 371 N.Y.S.2d 691, 332 N.E.2d 870).   The right of a defendant to act as his own attorney is dependent upon a finding of mental capacity to stand trial (see, People v. Reason, 37 N.Y.2d 351, 354, 372 N.Y.S.2d 614, 334 N.E.2d 572, rearg. denied 37 N.Y.2d 817, 375 N.Y.S.2d 1029, 338 N.E.2d 332;  see also, United States v. Purnett, 2d Cir., 910 F.2d 51, 55).   Thus, the court erred in allowing defendant to represent himself by assuming an active role in the hearing before that finding was made (see, People v. Meurer, 210 A.D.2d 934, 935, 621 N.Y.S.2d 422, lv. denied 85 N.Y.2d 940, 627 N.Y.S.2d 1002, 651 N.E.2d 927).   We therefore hold the case, reserve decision and remit the matter to Supreme Court for a reconstruction hearing to determine defendant's competency at the time of trial (see, People v. Allen, 224 A.D.2d 1027, 638 N.Y.S.2d 266;  People v. Whysong, 175 A.D.2d 576, 572 N.Y.S.2d 243).

Case held, decision reserved and matter remitted to Supreme Court for further proceedings.

MEMORANDUM: