PEOPLE v. DACOSTA (2019)

ORDERED that the judgment of conviction is reversed, on the law, and, as a matter of discretion in the interest of justice, the accusatory instrument is dismissed.

Defendant was charged in a superseding information with harassment in the second degree (Penal Law § 240.26 [2] ). By order dated January 9, 2013, the City Court ordered a competency hearing pursuant to CPL article 730. However, the court proceeded to trial without having conducted the hearing, following which it found defendant guilty of the charged offense.

It is well settled that once a trial court determines that a competency examination is warranted, the failure to strictly follow the procedures mandated by CPL 730.30 deprives a defendant of the right to a full and fair determination of his mental capacity to stand trial (see People v. Armlin, 37 NY2d 167 [1975]; People v. Hussari, 5 AD3d 697 [2004]; People v. Torres, 162 AD2d 482 [1990] ).

We find that, due to the passage of time (approximately three years and six months) since the judgment of conviction was rendered, and as the People concede that a reconstruction hearing of defendant's mental capacity to stand trial is not possible in this case (see People v. Peterson, 40 NY2d 1014 [1976] ), the judgment of conviction must be reversed (see People v. Torres, 162 AD2d at 483; cf. People v. Hussari, 17 AD3d 483 [2005] ). Since defendant has served his sentence and no penological purpose would be served in remitting the case for further proceedings, we agree with the People that, under the circumstances, the accusatory instrument should be dismissed (see People v. Kwas, 54 Misc 3d 138[A], 2017 NY Slip Op 50147[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017] ).

Accordingly, the judgment of conviction is reversed, and, as a matter of discretion in the interest of justice, the accusatory instrument is dismissed.

RUDERMAN, J.P., TOLBERT and GARGUILO, JJ., concur.