Opinion
February 5, 1993
Appeal from the Erie County Court, McCarthy, J.
Present — Callahan, J.P., Pine, Lawton, Boehm and Fallon, JJ.
Case held, decision reserved, and matter remitted to Erie County Court for further proceedings in accordance with the following Memorandum: Having referred defendant for a psychiatric examination, the court triggered the statutory requirement in CPL 730.20 (1) that defendant have two psychiatric examinations to determine his competency to stand trial pursuant to CPL 730.30. Thus, the court erred in failing to order a second examination (see, People v Armlin, 37 N.Y.2d 167, 170-172; People v Mullins, 137 A.D.2d 227, 232, lv denied 72 N.Y.2d 922; People v Mulholland, 129 A.D.2d 857, 859).
We conclude that a meaningful reconstruction hearing is feasible, in light of the facts that a contemporaneous psychiatric examination was conducted, less than two years have elapsed since the trial, and those who observed defendant at trial, including the Trial Judge, can testify concerning their observations of defendant's behavior and demeanor at or near the time of trial (see, People v Bey, 144 A.D.2d 972, 973; People v Arnold, 113 A.D.2d 101, 107-108; cf., People v Lowe, 109 A.D.2d 300, 304-305, lv denied 67 N.Y.2d 653). We remit the matter for a hearing before a different Judge (see, People v Armlin, supra, at 173; People v Wright, 105 A.D.2d 1088).