| People v Pett |
| 2017 NY Slip Op 02178 [148 AD3d 1524] |
| March 24, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Gary J.Pett, Appellant. |
Daniel M. Griebel, Tonawanda, for defendant-appellant.
Jeffrey S. Carpenter, District Attorney, Herkimer (Jacquelyn M. Asnoe of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in theFourth Judicial Department, from an order of the Herkimer County Court (Daniel R. King, A.J.),dated April 12, 2015. The order denied defendant's motion pursuant to CPL 440.10 to vacate thejudgment convicting defendant of robbery in the second degree.
It is hereby ordered that the order so appealed from is unanimously reversed on the law, andthe matter is remitted to Herkimer County Court for further proceedings in accordance with thefollowing memorandum: Defendant appeals from an order of County Court (King, A.J.) denyinghis CPL article 440 motion to vacate a judgment convicting him, upon his plea of guilty, ofrobbery in the second degree. Defendant contends that County Court (Kirk, J.) violated his dueprocess rights by accepting his guilty plea without conducting a competency hearing. Weagree.
We note at the outset that Judge King did not reach the merits of defendant's motion becausehe determined that the issue had been decided in a prior CPL article 440 motion (see CPL440.10 [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 priormotion but was not, we exercise our discretion to reach the merits (see People vHamilton, 115 AD3d 12, 21 [2014]).
Upon defense counsel's motion for a CPL article 730 examination based on defendant'slengthy psychiatric history, defendant was examined by two psychiatrists. One psychiatrist founddefendant competent to stand trial, but the other found him incompetent to stand trial. AlthoughCPL 730.30 (4) explicitly requires a hearing when the examining psychiatrists report conflictingfindings on the issue of competency, no hearing was held. Instead, Judge Kirk accepteddefendant's guilty plea to a reduced charge of robbery in the second degree. During the pleacolloquy, 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 mustfollow in order to prevent the criminal trial of [an incompetent] defendant" (People vTortorici, 92 NY2d 757, 759 [1999], cert denied 528 US 834 [1999]). The CPLexpressly provides that, "[w]hen the examination reports submitted to the court show that thepsychiatric examiners are not unanimous in their opinion as to whether the defendant is or is notan incapacitated person, . . . the court must conduct a hearing to determinethe issue of capacity" (CPL 730.30 [4] [emphasis added]; see People v Meurer, 184AD2d 1067, 1068 [1992], lv dismissed 80 NY2d 835 [1992], lv denied 80 NY2d907 [1992]). "That section is mandatory and not discretionary" (People v McCabe, 87AD2d 852, 852 [1982]), and a plea of guilty cannot be accepted unless the requisite hearing isheld and the defendant is found competent (see People v Armlin, 37 NY2d 167, 172[1975]). Thus, we conclude that Judge Kirk erred in failing to conduct a competency hearingbefore accepting defendant's plea of guilty (see e.g. Meurer, 184 AD2d at 1067-1068;People v O'Reilly, 125 AD2d 979, 980 [1986]; McCabe, 87 AD2d at852-853).
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 reconstructionhearing is feasible" (People vGreene, 38 AD3d 1338, 1339 [2007], lv dismissed 11 NY3d 788 [2008]). Underthe circumstances of this case, we reverse the order denying defendant's motion, rather thanholding 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 sufficientevidence 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 isfeasible to conduct a reconstruction hearing concerning defendant's competency at the time of theplea in 2008, and if the People meet their burden at the reconstruction hearing of establishingdefendant's competency at the time of the plea by a preponderance of the evidence (see generally People v Mendez, 1NY3d 15, 19-20 [2003]), then defendant's instant motion should be denied. If, however, thePeople fail to meet their burden of establishing defendant's competency at the time of the plea, orif it is not feasible to conduct a reconstruction hearing, then defendant's instant motion should begranted, the judgment and guilty plea should be vacated and further proceedings on theindictment should be conducted (see e.g.People v Galea, 54 AD3d 686, 688 [2008], lv denied 11 NY3d 854 [2008]; People v Hasenflue, 48 AD3d 888,889-891 [2008], lv denied 11 NY3d 789 [2008]).
In view of our determination, we do not address defendant's remaining contentions.Present—Whalen, P.J., Smith, Peradotto, DeJoseph and Curran, JJ.