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People v. McGill

Appellate Division of the Supreme Court of New York, Second Department
Apr 5, 1971
36 A.D.2d 827 (N.Y. App. Div. 1971)

Opinion

April 5, 1971


Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered February 27, 1970, convicting him of grand larceny in the first degree, assault in the second degree and robbery in the first degree (two counts on each crime), upon a jury verdict, and imposing sentence. Case remanded to the Criminal Term for further proceedings in accordance with the views set forth herein and appeal held in abeyance in the interim. It is conceded by respondent that defendant was committed by court order to mental hospitals on two occasions between his arrest on October 11, 1966 and his indictment on October 27, 1967 for the crimes leading to the judgment appealed from. After pleading not guilty he was committed on April 10, 1968 for psychiatric examination. The psychiatric report, dated May 3, 1968, stated that defendant was capable of understanding the charges against him and the proceedings and of making his defense and recommended that defendant be returned to court. Upon defendant's motion, the report was confirmed by court order on May 15, 1968. The trial was held from May 23 to May 29, 1968, inclusive. Prior to sentencing, defendant was again committed for psychiatric examination. The psychiatric report stated that defendant was incompetent to be sentenced. On September 5, 1968, defendant was ordered to be committed to the Commissioner of Mental Hygiene for placement in an appropriate State institution. A report from Matteawan State Hospital, dated October 31, 1968, stated that defendant had recovered. At sentencing, defendant's attorney moved that the verdict be set aside because of reasonable doubt that defendant was competent at the time he was tried. The motion was denied without a hearing. Although the evidence of defendant's incompetency before and after trial is not conclusive of the issue of incompetency during trial, such history of his mental disturbance was sufficient to raise the question of his sanity at that time and the question should not have been decided adversely to him without a hearing ( People v. Boundy, 10 N.Y.2d 518). The psychiatric report stating that defendant was able to stand trial is not determinative of the issue, since competency is a legal question and the psychiatric opinion is merely evidence to be considered in arriving at a decision. The fact that defendant moved to confirm that psychiatric report does not constitute a waiver of his right to a competency hearing, since an incompetent person could obviously not waive that right ( Pate v. Robinson, 383 U.S. 375, 384). Therefore, defendant should be accorded a full hearing on the issue of his competency at the time of trial in accordance with the procedure laid down in People v. Hudson ( 19 N.Y.2d 137). In conformity with that decision, the hearing should be held before a Judge other than the Trial Judge. All other arguments raised by defendant are without merit. The pretrial identification proceeding was not unduly suggestive or conducive to irreparable mistaken identification and it was established at the identification hearing that the complainant had observed defendant for a full hour during the commission of the crime. Although there were inconsistencies in the testimony of some of the People's witnesses, these inconsistencies did not render the testimony incredible as a matter of law and, thus, the issue of credibility was for the jury ( People v. Lee, 308 N.Y. 302, 304). Within the context of the entire trial, it is our opinion that the inadvertent statement by one of the witnesses that he had heard that defendant had recently left jail was not so prejudicial as to constitute reversible error (cf. People v. Kingston, 8 N.Y.2d 384). Therefore, the case should be remanded to the trial court for a hearing, but before another Judge, and a determination of defendant's mental capacity at the time of trial. Rabin, P.J., Hopkins and Martuscello, JJ., concur; Munder and Christ, JJ., dissent and vote to affirm the judgment.


Summaries of

People v. McGill

Appellate Division of the Supreme Court of New York, Second Department
Apr 5, 1971
36 A.D.2d 827 (N.Y. App. Div. 1971)
Case details for

People v. McGill

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ALBERT McGILL…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 5, 1971

Citations

36 A.D.2d 827 (N.Y. App. Div. 1971)

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