Opinion
March 29, 2000.
Appeal from Judgment of Supreme Court, Erie County, Tills, J. — Forgery, 2nd Degree.
PRESENT: PIGOTT, JR., P. J., WISNER, SCUDDER AND LAWTON, JJ.
Case held, decision reserved and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum:
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 ). 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, rearg denied 37 N.Y.2d 817; see also, United States v. Purnett , 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, lv denied 85 N.Y.2d 940). 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 ; People v. Whysong , 175 A.D.2d 576 ).