Opinion
55 KA 15-00778.
03-24-2017
The PEOPLE of the State of New York, Respondent, v. Gary J. PETT, Defendant–Appellant.
Daniel M. Griebel, Tonawanda, for Defendant–Appellant. Jeffrey S. Carpenter, District Attorney, Herkimer (Jacquelyn M. Asnoe of Counsel), for Respondent.
Daniel M. Griebel, Tonawanda, for Defendant–Appellant.
Jeffrey S. Carpenter, District Attorney, Herkimer (Jacquelyn M. Asnoe of Counsel), for Respondent.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, DeJOSEPH, AND CURRAN, JJ.
MEMORANDUM:Defendant appeals from an order of County Court (King, A.J.) denying his CPL article 440 motion to vacate a judgment convicting him, upon his plea of guilty, of robbery in the second degree. Defendant contends that County Court (Kirk, J.) violated his due process rights by accepting his guilty plea without conducting a competency hearing. We agree.
We note at the outset that Judge King did not reach the merits of defendant's motion because he determined that the issue had been decided in a prior CPL article 440 motion (see CPL 440.10[3][b] ) and that, in any event, it could have been raised therein (see CPL 440.10[3][c] ). We conclude that the precise issue raised herein was not raised in a prior motion and, although a court may refuse to consider the issue because it could have been raised in the prior motion but was not, we exercise our discretion to reach the merits (see People v. Hamilton, 115 A.D.3d 12, 21, 979 N.Y.S.2d 97 ).
Upon defense counsel's motion for a CPL article 730 examination based on defendant's lengthy psychiatric history, defendant was examined by two psychiatrists. One psychiatrist found defendant competent to stand trial, but the other found him incompetent to stand trial. Although CPL 730.30(4) explicitly requires a hearing when the examining psychiatrists report conflicting findings on the issue of competency, no hearing was held. Instead, Judge Kirk accepted defendant's guilty plea to a reduced charge of robbery in the second degree. During the plea colloquy, defense counsel purported to "withdraw" her request for a competency hearing. Defendant was subsequently sentenced in accordance with the terms of the plea agreement."Article 730 of the Criminal Procedure Law sets out the procedures courts of this State must follow in order to prevent the criminal trial of [an incompetent] defendant" (People v. Tortorici, 92 N.Y.2d 757, 759, 686 N.Y.S.2d 346, 709 N.E.2d 87, cert. denied 528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80 ). The CPL expressly provides that, "[w]hen the examination reports submitted to the court show that the psychiatric examiners are not unanimous in their opinion as to whether the defendant is or is not an incapacitated person, ... the court must conduct a hearing to determine the issue of capacity" (CPL 730.30[4] [emphasis added]; see People v. Meurer, 184 A.D.2d 1067, 1068, 584 N.Y.S.2d 370, lv. dismissed 80 N.Y.2d 835, 587 N.Y.S.2d 919, 600 N.E.2d 646, lv. denied 80 N.Y.2d 907, 588 N.Y.S.2d 832, 602 N.E.2d 240 ). "That section is mandatory and not discretionary" (People v. McCabe, 87 A.D.2d 852, 852, 449 N.Y.S.2d 245 ), and a plea of guilty cannot be accepted unless the requisite hearing is held and the defendant is found competent (see People v. Armlin, 37 N.Y.2d 167, 172, 371 N.Y.S.2d 691, 332 N.E.2d 870 ). Thus, we conclude that Judge Kirk erred in failing to conduct a competency hearing before accepting defendant's plea of guilty (see e.g. Meurer, 184 A.D.2d at 1067–1068, 584 N.Y.S.2d 370 ; People v. O'Reilly, 125 A.D.2d 979, 980, 510 N.Y.S.2d 375 ; McCabe, 87 A.D.2d at 852–853, 449 N.Y.S.2d 245 ).
A reconstruction hearing generally is the proper remedy for the violation of CPL article 730, but "we are unable to determine on the record before us whether a meaningful reconstruction hearing is feasible" (People v. Greene, 38 A.D.3d 1338, 1339, 832 N.Y.S.2d 349, lv. dismissed 11 N.Y.3d 788, 866 N.Y.S.2d 615, 896 N.E.2d 101 ). Under the circumstances of this case, we reverse the order denying defendant's motion, rather than holding the case and reserving decision as in Greene. As in Greene, however, we "remit the matter to County Court for a hearing ... to determine whether sufficient evidence may be developed to reconstruct defendant's mental capacity at the time of [the plea] and, if so, to determine whether defendant was competent" (id. ). If, on remittal, it is feasible to conduct a reconstruction hearing concerning defendant's competency at the time of the plea in 2008, and if the People meet their burden at the reconstruction hearing of establishing defendant's competency at the time of the plea by a preponderance of the evidence (see generally People v. Mendez, 1 N.Y.3d 15, 19–20, 769 N.Y.S.2d 162, 801 N.E.2d 382 ), then defendant's instant motion should be denied. If, however, the People fail to meet their burden of establishing defendant's competency at the time of the plea, or if it is not feasible to conduct a reconstruction hearing, then defendant's instant motion should be granted, the judgment and guilty plea should be vacated and further proceedings on the indictment should be conducted (see e.g. People v. Galea, 54 A.D.3d 686, 688, 863 N.Y.S.2d 695, lv. denied 11 N.Y.3d 854, 872 N.Y.S.2d 77, 900 N.E.2d 560 ; People v. Hasenflue, 48 A.D.3d 888, 889–891, 851 N.Y.S.2d 674, lv. denied 11 N.Y.3d 789, 866 N.Y.S.2d 615, 896 N.E.2d 101 ).In view of our determination, we do not address defendant's remaining contentions.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law, and the matter is remitted to Herkimer County Court for further proceedings.