PEOPLE v. GREENE (2007)

 Defendant appeals from a judgment convicting him following a jury trial of two counts of criminal possession of stolen property in the fourth degree (Penal Law § 165.45[5] ) and one count of menacing in the second degree (§ 120.14[1] ).   We agree with defendant that County Court erred in refusing to conduct a hearing on the issue whether defendant was competent to stand trial (see CPL 730.30[1] ).  “ ‘[O]nce [the] court [made the] preliminary determination that ․ defendant may be incapacitated, the statutory steps [had to] be followed’ ” (People v. Marasa, 270 A.D.2d 902, 902, 706 N.Y.S.2d 662;  see People v. Armlin, 37 N.Y.2d 167, 172, 371 N.Y.S.2d 691, 332 N.E.2d 870;  People v. Weech, 116 A.D.2d 975, 976, 498 N.Y.S.2d 601;  People v. Lowe, 109 A.D.2d 300, 304, 491 N.Y.S.2d 529, lv. denied 67 N.Y.2d 653, 499 N.Y.S.2d 1049, 490 N.E.2d 566).   Pursuant to CPL 730.30(2), the court was required to “conduct a [competency] hearing upon motion therefor by the defendant” and, based on the court's failure to do so, “defendant was deprived of his right ‘to a full and impartial determination of his mental capacity’ to stand trial” (Marasa, 270 A.D.2d at 903, 706 N.Y.S.2d 662, quoting Armlin, 37 N.Y.2d at 172, 371 N.Y.S.2d 691, 332 N.E.2d 870).  “Where a meaningful reconstruction hearing can be held, it is the proper remedy for [the] violation of [CPL] article 730” (People v. Bey, 144 A.D.2d 972, 973, 534 N.Y.S.2d 275), but we are unable to determine on the record before us whether a meaningful reconstruction hearing is feasible (see People v. Arnold, 113 A.D.2d 101, 107-108, 495 N.Y.S.2d 537).   We therefore hold the case, reserve decision and remit the matter to County Court for a hearing before a different judge to determine whether sufficient evidence may be developed to reconstruct defendant's mental capacity at the time of trial and, if so, to determine whether defendant was competent to stand trial (see id. at 108, 495 N.Y.S.2d 537).

It is hereby ORDERED that the case is held, the decision is reserved, and the matter is remitted to Monroe County Court for a hearing.

MEMORANDUM:

All concur, SMITH, J., not participating.