Opinion
March 11, 1986
Appeal from the Supreme Court, New York County (James Leff, J.).
Defendant moved prior to trial for a psychiatric examination to determine if he possessed the requisite capacity to stand trial. Thereafter, pursuant to court order, two psychiatrists examined defendant and found him not to be incapacitated. Defendant's lawyer also retained his own psychiatrist, whose findings were inconclusive. Then, citing the report of the defendant's psychiatrist, as well as his own inability to communicate with his client, defendant's attorney, after first requesting and being denied an adjournment, moved for a competency hearing. The court denied the motion and proceeded to trial.
CPL 730.30 (2) mandates that "[w]hen the examination reports submitted to the court show that each psychiatric examiner is of the opinion that the defendant is not an incapacitated person, the court * * * must conduct a hearing upon motion therefor by the defendant or by the district attorney." The fact that defense counsel did not request such a hearing until after he had received an evaluation from his own expert did not constitute an unreasonable delay, nor does the statute require that defendant, in order to avail himself of the right to a competency hearing, bring the motion immediately upon issuance of the report of the court-appointed psychiatrists. Indeed, the procedure set forth in CPL article 730 is available at any time after arraignment and before the imposition of sentence. (CPL 730.30.) Since the court was compelled to conduct a hearing upon defendant's request once the article 730 procedure was invoked (People v. Wright, 105 A.D.2d 1088), decision with regard to the other arguments raised herein will be held in abeyance pending a determination on the issue of defendant's mental capacity at the time of trial.
Concur — Sullivan, J.P., Fein, Lynch, Milonas and Kassal, JJ.