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92 N.Y.2d 757, 709 N.E.2d 87, 686 N.Y.S.2d 346 (1999).
February 18, 1999

3 No. 15

[99 NY Int. 0015]
Decided February 18, 1999

This opinion is uncorrected and subject to revision before publication in the New York Reports.

Kathryn M. Kase, for appellant.
Christopher D. Horn, for respondent.


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 a defendant "who as a result of mentaldisease or defect lacks capacity to understand the proceedings against him or to assist in his own defense" (CPL 730.10[1]). The central issue on this appeal is whether the trial court abused its discretion as a matter of law by failing, on its own, to order a competency hearing under article 730. We hold that it did not, and therefore affirm the order of the Appellate Division, which reached the same conclusion.


On the morning of December 14, 1994, defendant, armed with a semi–automatic rifle and a hunting knife, held a classroom of students hostage in a lecture hall at the State University of New York at Albany. During the two–hour ordeal, defendant made numerous threats and demanded the presence of various university and public officials. He claimed that he was the victim of an experiment in which a microchip was implanted in his brain, and wanted to expose the people responsible for victimizing him. The standoff concluded when several hostages overpowered defendant. During the struggle, defendant shot and seriously injured one hostage, and wounded another with his knife.

The following day, after defendant's arraignment, Albany City Court ordered an examination pursuant to CPL article 730 to determine whether defendant was competent to stand trial. After reviewing the reports of two psychiatric examiners, the court determined that defendant was incapacitated. The court issued a temporary order of observation, pursuant to whichdefendant was committed to the Mid–Hudson Psychiatric Center ( see, CPL 730.40). According to Mid–Hudson records, when defendant was admitted, he was "irritable, easily angered and tense." His judgment was "severely impaired" and "[h]is insight into his troubles was nil." Defendant suffered from delusions "that 'a chip' was implanted in his brain and he was a fiberoptic antenna and the government was experimenting on him." Defendant was diagnosed with alcohol abuse, cocaine–induced psychotic disorder with delusions and paranoid personality disorder.

Despite these problems, the Mid–Hudson records reveal that defendant "showed steady improvement in all areas in a rather short time." After two months of counseling –– defendant was not given any medication –– a Mid–Hudson psychiatrist reported that defendant appeared "rational and logical in speech and thought," was "very cooperative to the interview situations" and "was able to follow the rules and regulations of the hospital." The psychiatrist further found that defendant had "above average intelligence," as well as "satisfactory knowledge of courtroom procedure and the duties of court officials. He knows his lawyer * * * and he feels very sorry about what he did but knows he cannot change the consequences. He states he is going to go along with his lawyer's suggestions."

Accordingly, Mid–Hudson's director certified defendant fit to proceed and return to court, and defendant was discharged from Mid–Hudson on March 20, 1995. A Grand Jury indicteddefendant on 15 counts. [n.1]

From the time of his arraignment on the indictment on March 20, 1995 until the start of jury selection on January 3, 1996 (five days before the trial opened), the Trial Judge had several opportunities to observe defendant's interaction with his lawyer and understanding of the trial process. While in Albany County Court for his arraignment, defendant responded to the Judge's greeting and request for defendant's date of birth. At a suppression hearing held on November 16, 1995, defendant expressed his desire to be absent from that hearing. In order to determine whether the waiver of the right to be present was voluntarily and knowingly made, the court questioned defendant and his attorney as follows:

"MR. LYNCH [defense counsel]: * * * I have discussed it with my client. There is no particular need for his personal appearance. * * * I would move that Mr. Tortorici's request that he waive his physical presence as distinguished from his legal presence through me be granted.

* * *

"THE COURT: Mr. Tortorici do you understand the words I'm using? Mr. Tortorici * * * I'm directing it to you. Do you understand what Mr. Lynch ––

"THE DEFENDANT: I speak English, Judge. I don't desire to be present. I made that point clear. That is all.

"THE COURT: Mr. Lynch has spoken with you with regard to your personal presence being dispensed with at this pretrial hearing.

"THE DEFENDANT: I do not desire to be present. No further comments."

After receiving further assurances from defendant's lawyer that he had explained to defendant his right to be present, and that defendant expressed his desire not to attend the hearing, the court granted defendant's request.

In a letter dated December 27, 1995, defendant's lawyer advised the court that defendant also wished to waive his right to be present throughout the trial. The letter stated:

"As the Court is well aware, the defendant has previously been found fit to proceed with trial. He has clearly indicated to me the desire to be absent during the trial. He has consistently maintained a position of refusing to actively participate in the proceedings. He has directed me to proceed with the presentation of the defense, inclusive of the defense that he is not guilty by reason of mental disease or defect. * * *

"Please be advised that I have fully informed my client of the nature of his right to be present at trial, as well as the consequences of allowing the trial to proceed in his absence. Once again, my client acknowledged his understanding of the process and further directed me to proceed, in absentia, with the presentation of the defense."

On January 3, 1996, at the outset of jury selection, counsel informed the court that he had "consulted with Mr. Tortorici, as late as this morning," and that defendant still wished to waive his right to be present throughout the course of the entire trial. The court questioned defendant as follows:

"THE COURT: Mr. Tortorici * * * your attorney hasindicated to me that you do not wish to be present during the jury selection, which will occur today, and during this trial, which will occur in the next week to ten days. Is that your position, Mr. Tortorici?

"THE DEFENDANT: Yes, it is, Judge.

"THE COURT: Do you understand that you have a constitutional right to be present at both this jury selection and the trial proper?

"THE DEFENDANT: Yes, that is correct.

"THE COURT: And do you understand that it would be my intention, if I grant Mr. Lynch's request that you be removed from the courtroom in a few moments, do you understand that jury selection will continue in your absence and that the trial will continue in your absence?

"THE DEFENDANT: I am aware.

"THE COURT: [Explaining that defendant can change his mind and decide to be present later in the proceedings] Do you understand that point, Mr. Tortorici?


* * *

"[THE PEOPLE]: * * * [The] People would ask that the record be clear that the defendant understands exactly what he's waiving and his ability to assist in his own defense, and it's clear on the record that he has discussed this defense with Mr. Lynch and that is his desire at this time.

"THE COURT: Mr. Tortorici, I have asked you earlier, and I will reask it. All of these matters that you're waiving at this point, your right to be present, your right to consult with Mr. Lynch, your right to look at those jurors, your right to speak to Mr. Lynch at every stage of this proceeding, do you realize that if I waive your appearance, you won't be able to participate in that regard?

"THE DEFENDANT: Let me make this clear, please: This trial, the bad memory, it's a nuisance to me. I want to have as little to do with these proceedings as possible.

"THE COURT: Okay * * * you understand [Mr. Lynch is] going to proceed in your absence on your behalf? * * *

"THE DEFENDANT: I understand."

The court granted defendant's motion to waive his right to be present, and informed defendant that he could change his mind and be present at any time in the future. On every day of the eight–day trial, at the beginning of the day's proceedings, the court asked defense counsel whether he had conferred with defendant and whether defendant still wished to be absent from the proceedings. Counsel responded in the affirmative every day.

On December 29, 1995, in order to rebut the defense that defendant was not responsible for his actions by reason of mental disease or defect ( see, Penal Law § 40.15), the People moved for an order directing defendant to submit to an examination pursuant to CPL 250.10(3). [n.2] The purpose of the examination was to determine "whether or not this defendant, at the time of the crime, lacked responsibility due to mental disease or defect." The motion was granted, and defendant was examined by Dr. Lawrence Siegel on January 4, 1996, for approximately one hour.

Three days later, the parties received Dr. Siegel's nine–page report of his meeting with defendant. In the report,Dr. Siegel stated that he was unable to assess defendant's mental state at the time of the offense, but opined that defendant was "incapable of rational participation in court proceedings" and "not fit to proceed to trial." According to the report, defendant at times displayed delusional, irrational behavior during the examination, and was often hard to understand. When Dr. Siegel focused defendant on the court proceedings, however, the report's paraphrase of the conversation indicates that defendant understood the charges against him:

"What are his charges? 'Attempted Murder, Kidnapping. Every other violation in the book.' What is the date of the alleged offense? 'December 14, 1995.' Does he mean 1995, or 1994? '1994.' Where is this said to have occurred? 'University of Albany.'"

Furthermore, Dr. Siegel indicated that defendant clearly understood the role of the major participants in the proceedings against him: "He is able to name his attorney as Mr. Lynch and understands Mr. Lynch is supposed to help him. He says the D.A. prosecutes, the jury decides if one is guilty or not guilty, and the judge is the 'arbitrator between the prosecuting attorney and defense attorney, and instructs the jury on matters of the law.'"

Dr. Siegel's discussion of the examination states that many of defendant's ideas were tainted by delusions regarding the government's attempts to control him. However, Dr. Siegel also observed that "[m]uch of Mr. [Tortorici's] communication regarding his legal situation makes sense. He is aware of thenames of the charges against him and has an understanding of what he is alleged to have done. * * * He has more than a rudimentary understanding of the processes of trial and the roles of the Judge, jury, prosecutor and defense attorney."

After the examination took place and again after the report was distributed, the court allowed both sides to be heard on the issue of Dr. Siegel's report. The court observed that in light of its own observations of defendant, and representations by both the People and defense counsel that they were ready to proceed, "[n]othing has occurred in this Court and to this Court's observation that would lead it on its own initiative to review the expert determination made by the psychiatrists of Mid– Hudson earlier on, that this defendant is in fact fit to proceed. And therefore, we will proceed."

On February 16, 1996, after trial, a jury convicted defendant of first degree assault, second degree kidnapping, first degree reckless endangerment, first degree criminal use of a firearm and fourth degree criminal possession of a weapon. Defendant appealed, claiming that in light of Dr. Siegel's report, County Court erred in not sua sponte ordering a competency hearing. A divided Appellate Division affirmed, holding that "County Court did not abuse its sound discretion * * * in failing to sua sponte conduct a competency hearing after defendant had previously been certified fit to proceed to trial" ( People v Tortorici, __ AD2d __).

Defendant now appeals pursuant to leave granted by a Justice of the Appellate Division. Because County Court did not abuse its discretion as a matter of law by failing, sua sponte, to order a competency hearing, we affirm.


During the course of a criminal action, whenever a court has a "reasonable ground for believing that a defendant is in such a state of idiocy, imbecility or insanity that he is incapable of understanding the charge, indictment or proceedings or of making his defense, it is the duty of the court to direct him to be examined in these respects" ( People v Smyth, 3 NY2d 184, 187; see also, Pate v Robinson, 383 US 375, 387 [hearing must be held when there is "sufficient doubt" about defendant's competence]; Drope v Missouri, 420 US 162, 180).

Nevertheless, a defendant is presumed to be competent ( People v Gelikkaya, 84 NY2d 456, 459), and the law "is well settled that a defendant is not entitled, as a matter of right, to have the question of his capacity to stand trial passed upon before the commencement of the trial, if the court is satisfied from the available information that there is no proper basis for questioning the defendant's sanity" ( People v Armlin, 37 NY2d 167, 171). Moreover, a defendant's history of psychiatric illness does not in itself call into question defendant's competence to stand trial ( People v Morgan, 87 NY2d 878, 881; People v Gelikkaya, supra, 84 NY2d, at 459).

CPL article 730 provides New York's courts with a "meticulously detailed procedure governing this complex area of law and medicine" ( People v Gensler, 72 NY2d 239, 243, cert denied 488 US 932). [n.3] CPL 730.30(1) provides that "the court wherein the criminal action is pending must issue an order of examination when it is of the opinion that the defendant may be an incapacitated person." Pursuant to CPL 730.60(2), in cases where, as here, the institution in which a defendant has been confined has determined that the defendant is no longer incapacitated, "the court may, on its own motion, conduct a hearing to determine the issue of capacity, and it must conduct a hearing upon motion therefor by the defendant or by the district attorney. If no motion for a hearing is made, the criminal action against the defendant must proceed" (CPL 730.30[2]). The determination of whether to order a competency hearing lies within the sound discretion of the trial court ( People v Morgan, 87 NY2d 878, 879, supra; People v Gensler, supra, 72 NY2d, at 247). The sole issue before us is whether the trial court abused that discretion, not whether it might have been reasonable toorder a hearing.

Although defendant premises his argument on Dr. Siegel's report, a Trial Judge determining whether a competency hearing is necessary may also consider "expert medical proof available to him, coupled with all other evidence and his own observations of the defendant" ( People v Gensler, supra, 72 NY2d, at 244). Considering the evidence before County Court regarding defendant's competence, we conclude that the court did not abuse its discretion in failing, on its own, to order a hearing.

The Mid–Hudson report certifying defendant competent to proceed to trial explicitly stated that defendant "had satisfactory knowledge of courtroom procedure and the duties of court officials." It also stated that he knew who his lawyer was and was going to follow the lawyer's suggestions, and that he was sorry for his actions and understood their consequences. This report contained the most recent opinion of a psychiatrist who examined defendant for the purpose of determining competency to stand trial, and therefore was entitled to significant weight.

The Trial Judge additionally could consider his "progressive personal observations of defendant," during which defendant clearly indicated that he understood his right to be present in the courtroom and consult with counsel, and also understood the proceedings that would ensue in his absence ( id., at 245; see also, People v Morgan, supra, 87 NY2d, at 880). These observations included the court's questioning of defendanton January 3, 1996, the day before Dr. Siegel examined him. Furthermore, it is significant that the court continued to monitor defendant's understanding of his rights and the proceedings against him throughout the duration of the trial, even though defendant himself did not appear in court. Every day during the trial, before the jury entered the courtroom, the Trial Judge asked defendant's lawyer if defendant still wished to be absent from the courtroom. Counsel always responded in the affirmative, indicating that he had spoken with defendant regarding the defense.

It is also significant that at no time after defendant was certified as competent "did defense counsel, who was in the best position to assess defendant's capacity, raise the issue of defendant's fitness to proceed or request an examination pursuant to CPL 730.30" ( People v Gelikkaya, 84 NY2d 456, 460, supra). On the contrary, defense counsel consistently made clear that defendant was competent and the defense was ready to proceed. For example, in his letter advising the court of defendant's desire to be absent during the trial, written a week before Dr. Siegel's examination, counsel emphasized that "[a]s the Court is well aware, the defendant has previously been found fit to proceed with trial," and stated that counsel had fully informed defendant of his right to be present at trial as well as the consequences of his absence. Counsel concluded, "Once again, my client acknowledged his understanding of the process and furtherdirected me to proceed, in absentia, with the presentation of the defense" (emphasis added).

Even after Dr. Siegel's examination of defendant (which defendant's lawyer attended), defendant's lawyer emphasized that "the law of this case is that there had been a previous determination, after Mr. Tortorici's stay at Mid–Hudson, that he was in fact fit to proceed." He further stated that "we are ready to proceed with the defense. And I'm not making any motions at this time." After the court revisited the issue upon receipt of Dr. Siegel's report, defense counsel again stated "the defense's position remains the same, the defense is ready to proceed." Thus, defendant's lawyer not only failed to move for a competency hearing –– which would have required the court to conduct one ( see, CPL 730.30[2]) –– but he also represented numerous times that defendant wished for the trial to proceed, notwithstanding Dr. Siegel's report. This clearly distinguishes the case before us from the two United States Supreme Court cases on which defendant primarily relies. In Pate v Robinson (383 US 375, 384, supra), the record showed "that counsel throughout the proceedings insisted that Robinson's present sanity was very much in issue." In fact, "the prosecutor himself suggested at trial" that a psychiatric evaluation of defendant's present sanity was necessary ( id.). Likewise, in Drope v Missouri (420 US 162, 165, supra), defendant's counsel filed a motion for continuance "for the reason that the defendant is not a person of sound mind andshould have a further psychiatric examination before the case should be forced to trial." Although the motion was unopposed, the court denied it on procedural grounds.

The conscious choice of defendant's lawyer not to request a hearing (or to request the court to order a hearing sua sponte) is even more noteworthy given defendant's insanity defense, for which counsel presented the testimony of four psychiatric experts. Considering defense counsel's presence during Dr. Siegel's examination of defendant, and his orchestration of a defense based on defendant's lack of capacity to commit the crimes, counsel's failure to request a competency hearing was significant "from a defense strategy standpoint" ( People v Gensler, 72 NY2d 239, 244, cert denied 488 US 932, supra). Indeed, a sua sponte competency hearing might well have been viewed by the defense as interfering with its strategy regarding the insanity defense, as well as its unequivocal determination to proceed to trial at that time and before that particular jury.

While Dr. Siegel observed that defendant expressed numerous delusional ideas that evidenced an "apparent psychosis," he also unequivocally stated that defendant's communication regarding his legal situation made sense, and that defendant was able to name the charges against him and the role of the TrialJudge, jury and lawyers. [n.4] Dr. Siegel also highlighted defendant's ability to name his own lawyer and understanding that his lawyer is supposed to help him. These are strong indicators that, regardless of defendant's undeniable psychiatric problems, defendant did indeed have "capacity to understand the proceedings against him * * * [and] to assist in his own defense" (CPL 730.10[1]; People v Smyth, 3 NY2d 184, 187, supra). Dr. Siegel's conclusions that defendant "is incapable of rational participation in court proceedings" and "is not fit to proceed to trial" are thus undercut by the evidence set forth in his own report. In fact, as the Appellate Division observed, many of Dr. Siegel's findings "themselves satisfy the legal standard of fitness to proceed" ( People v Tortorici, __ AD2d __).

To imbue Dr. Siegel's report with the supervening significance urged by defendant and the dissent would oust the trial court of its independent statutory responsibility to determine whether a competency examination or hearing is required ( see, CPL 730.30[1] [the court "must issue an order of examination when it is of the opinion that the defendant may be an incapacitated person" (emphasis added)]; CPL 730.30[2][criminal action must proceed if, after a competency hearing, "the court is satisfied that the defendant is not an incapacitated person" (emphasis added)]). In light of all the evidence before him, including Dr. Siegel's report, the Trial Judge was within his discretion in making the requisite judicial determination that no competency hearing was required.

Defendant's remaining contentions are without merit.

Accordingly, the order of the Appellate Division should be affirmed.

People v Tortorici (Ralph J.)

No. 15

SMITH, J. (dissenting):

Because I believe the trial court abused its discretion in failing to insure that defendant was competent to stand trial and because I believe that an incompetent defendant may have been convicted of these brutal crimes, I dissent.

To rebut the defendant's impending defense of "not responsible" by reason of mental disease or defect (Penal Law § 40.15), the People moved on the first day of trial to have defendant examined by a board–certified forensic psychiatrist of the People's own selection ( see, CPL 250.10[3]). That motion was granted, and, on the evening following the second day of the trial, the People's forensic psychiatrist, Dr. Lawrence Siegel, evaluated defendant with the goal of determining his mental state at the time of the crime. Dr. Siegel concluded that "[defendant's] mental condition does not appear sufficiently stable to enable him to withstand the stresses of a trial without suffering a serious, prolonged or permanent breakdown. Based upon the examination he has deteriorated into a psychotic state." Dr. Siegel further concluded, "Mr. Tortorici is currently exhibiting signs and symptoms of acute psychosis. He is incapable of rational participation in court proceedings. He requires hospitalization and treatment with medication to restore him to fitness. * * * Based upon the information available at this time, it is my professional opinion with a reasonable degree of psychiatric certainty that Mr. Tortorici is not fit to proceed to trial."

A defendant who lacks the mental capacity to stand trial and to aid in his or her defense cannot, in harmony with due process principles, be convicted in an American court of law ( Pate v Robinson, 383 US 375; Bishop v United States, 350 US 961; Drope v Missouri, 420 US 162; People v Hudson, 19 NY2d 137, cert denied 398 US 944). Moreover, in New York it is the People who have the burden of proving by a fair preponderance of the evidence that the defendant is competent to stand trial ( People v Christopher, 65 NY2d 417, 424–425). That burden, however, was not met here.

In New York, the determination as to whether to order a competency hearing is a matter left to the sound discretion of the trial court ( People v Russell, 74 NY2d 901, 902). However, as articulated by this Court in People v Smyth (3 NY2d 184), the guiding principle remains: "If at any time before final judgment in a criminal action it shall appear to the court that there is reasonable ground for believing that a defendant is in such stateof idiocy, imbecility or insanity that he is incapable of understanding the charge, indictment or proceedings or of making his defense, it is the duty of the court to direct him to be examined in these respects" (3 NY2d at 187; see, People v Armlin, 37 NY2d 167, 171; People v Bangert, 22 NY2d 799, 800; People v Gonzalez, 20 NY2d 289, 293–294, cert denied 390 US 971; CPL 730.30[1]). Furthermore, in such cases it is not sufficient for the trial court to rely upon the mere fact that the defendant is oriented as to time and place and has some recollection of events ( Dusky v United States, 362 US 402). Instead, where a reasonable ground emerges, both due process and the precedent of this Court require that a hearing be held in strict compliance with the provisions of CPL article 730 ( see, People v Armlin, 37 NY2d, supra, at 170–172; People v Smyth, 3 NY2d, supra, at 187).

In People v Morgan (87 NY2d 878, 879), this Court held that no abuse of trial court discretion –– and therefore no Appellate Division error of law –– occurred by the trial court's refusal to grant defense counsel's repeated requests for a "new or updated examination of defendant's competency to stand trial." There, prior to trial, defendant had been examined four different times over intervals of several months with the most recent finding of fitness having occurred some four months prior to the start of the proceedings. The Court stated that "[t]he trial court was entitled to give weight to the findings and conclusions of competency derived from the most recent examination" ( id., at880). In the instant case, however, with the one and only determination of defendant's competency to stand trial having occurred some ten months prior to the start of the proceedings, any reliance upon Morgan is misplaced.

Following the tragic occurrence which began this criminal action, medical professionals within the Albany County mental health system determined, based upon court–ordered evaluations of defendant ( see, CPL 730.30), that in the years prior to the incident, and continuing throughout the time of its occurrence, defendant suffered from a fixed delusional belief that a micro chip had been surgically implanted inside his head, that a police listening device had been surgically implanted inside his penis and that he was a target of governmental experimentation. Moreover, according to psychiatrists, these irrationally held beliefs were additionally complicated by defendant's increasing suspicions of a vast governmental conspiracy, which, at least on one occasion, he attempted to uncover by undergoing a medically prescribed x–ray of his genitalia. The genesis of defendant's delusional behavior, as psychiatrists reported, began with the combined effects of a traumatic childhood, a family history of alcoholism and suicide, parents embroiled in divorce and the eventual use, abuse and addiction in his own life of alcohol, drugs and narcotic substances.

After having examined defendant at some lengthfollowing the incident, psychiatrists concluded that the incident itself was "the product of a longstanding mental disorder, most notably a paranoid delusional system." Speaking of defendant, psychiatrists reported the following conclusions:

"He has ongoing capability to process information given him, the capacity to use that information but unfortunately incorporates most information given him into the delusional system regarding the media and government. With respect to this, his competency, which is a legal decision, is certainly in question. Although he knows all the appropriate roles of players for the courts and is of at least average intelligence, the impact the paranoid delusional system has may certainly impact on his relationship with his attorney and impede the ability to get at facts versus delusions. He is certainly in need of stabilization."

Based upon this and other similar evaluations, psychiatrists determined defendant to be an incapacitated person not competent to stand trial. As a result, on January 6, 1995, the court committed defendant to the Mid–Hudson Psychiatric Center for treatment and continued evaluation ( see, CPL 730.40).

At Mid–Hudson, defendant underwent both individual and group counseling sessions, attended occupational and recreational therapy programs, and received alcohol and chemical abuse treatment in programs designed specifically for the mentally ill. Apparently, defendant derived benefit from his participation in these programs and, as a result, his condition improved. ByFebruary 28, 1995, after two months of receiving such care, defendant had exhibited such marked signs of psychiatric improvement that his doctors were then led to conclude that defendant was at that point competent to return to court. Thus, in a report dated March 3, 1995, psychiatrists certified defendant as "fit to proceed." On March 20, 1995, defendant was discharged from Mid–Hudson and returned to the Albany County prison system. Having been diagnosed with alcohol abuse, cocaine–induced psychotic disorder with delusions, paranoid personality disorder and psychosocial stressors, however, psychiatrists warned that defendant should continue to receive supportive psychotherapy, as well as alcohol and chemical abuse treatment. Nothing in the record before us, however, demonstrates that either of these recommendations was adequately followed.

On March 7, 1995, four days after he was certified fit to proceed, defendant was indicted and thereafter arraigned some thirteen days later. More than eight full months passed, however, until, on November 16, 1995, pre–trial hearings in the case began, with defendant waiving his right to be present at that time. Thereafter, following the passage of another one and a half months, on January 3, 1996, jury selection in the trial commenced –– a total of approximately ten months from the March 1995 date of defendant's certification of fitness to proceed.

On the first day of trial, defendant again waived hisright to be present, stating in a colloquy with the judge: "Let me make this clear, please: This trial, the bad memory, it's a nuisance to me. I want to have as little to do with these proceedings as possible." The trial judge stated in response to defendant's waiver:

"I want you to also be aware that at any point in time, if I decide to waive your appearance –– and that's going to happen in a few moments * * * if you change your mind with regard to that –– I'm going to instruct [your attorney] to periodically check on your situation –– all you have to do is let the Sheriff deputies or [your attorney] know that you have changed your mind and wish to be present. I will immediately, upon hearing that, cease all proceedings in this matter until you are brought into the courtroom."

Finding no abuse of discretion in Morgan (87 NY2d 878, 880, supra), this Court was expressly persuaded by the fact that the trial judge "saw the defendant actively participating in every aspect of his case, including a continuing flow of oral and written communications with his attorney," and that "the Judge personally interacted with the defendant on several occasions, including plea discussions, in which the defendant evinced a particularized understanding of the nature of the proceedings and what was unfolding." Similarly, in People v Gensler (72 NY2d 239, 245), this Court expressly found support for the trial court's exercise of discretion based upon its "progressive personal observations of defendant." Here, on the other hand,with defendant's presence having been waived during both pre–trial hearings and trial, any meaningful contact between defendant and the trial judge was minimal at best. Moreover, the trial record is undisputedly devoid of any indication that the trial court, after having received the nine page communication from the People's forensic psychiatrist, undertook any further contact, communication or observation of defendant prior to rendering its decision. [n.1]

Finally, with regard to the issue of defense counsel's failure to request that a competency hearing be held, this too provides no sanctionable basis for the trial court's conclusion. Akin to every criminal defendant's unilateral rights to decide whether to proceed without the benefit of counsel, whether to enter a plea of guilty to the charge(s) or whether to offer his or her testimony at trial, the fundamental right of the accused to be mentally competent at trial is a right which is individually owned and unilaterally exercised by every criminal defendant, independent of any action by trial counsel. Thus, as a unilateral right of the accused, resting squarely upon Fourteenth Amendment due process grounds ( see, Medina v California, 505 US 437; Drope v Missouri, 420 US 162, supra; Patev Robinson, 383 US 375, supra), no amount of artifice, strategy or losing trial tactics by a defendant's counsel may be said to diminish the duty of the trial court to adequately safeguard this fundamental constitutional concern ( see, Pate v Robinson, supra, at 384 ["[i]t is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently 'waive' his right to have the court determine his capacity to stand trial"]).

In short, notwithstanding defense counsel's failure to move for a competency hearing in this case, the nine page communication from the People's forensic psychiatrist –– which concluded that defendant was "incapable of rational participation in court proceedings" –– was sufficient to establish a reasonable ground to believe that defendant was incapable of understanding the charges or proceedings against him or of assisting in his defense (CPL 730.30[1]; People v Smyth, 3 NY2d 184, 187, supra; People v Armlin, 37 NY2d 167, supra). As a result, the trial court was required, independent of any applicable statutes, to sua sponte order a further examination of the defendant and, if necessary, a hearing on constitutional due process grounds. The failure of the trial court to do so was an abuse of discretion that warrants a reversal. Accordingly, I would reverse the order of the Appellate Division and remit this case for a new trial, presuming, of course, that defendant is first found fit to proceed ( see, Pate v Robinson, 383 US 375, 378, supra; People v Gonzalez, 20 NY2d 289, 293–294, cert denied 390 US 971, supra).

* * * * * * * * * * * * * * * *


Order affirmed. Opinion by Chief Judge Kaye. Judges Bellacosa, Ciparick, Wesley and Rosenblatt concur. Judge Smith dissents and votes to reverse in an opinion. Judge Levine took no part.

Decided February 18, 1999


1 The indictment included two counts of assault in the first degree; four counts of kidnapping in the second degree; four counts of reckless endangerment in the first degree; three counts of attempted murder in the second degree; one count of criminal use of a firearm in the first degree; and one count of criminal possession of a weapon in the fourth degree.

2 CPL 250.10(3) provides, in relevant part, that when a defendant "serves notice of intent to present psychiatric evidence, the district attorney may apply to the court, upon notice to the defendant, for an order directing that the defendant submit to an examination by a psychiatrist or licensed psychologist."

3 Here, as in People v Gensler ( supra, 72 NY2d, at 244), "Although defendant's argument * * * is draped in the semantical garb of due process, the unconstitutionality of no provision of CPL article 730 was ever asserted and is not argued even before us at this time. In effect, therefore, defendant's argument concedes the legislatively prescribed trial court authority exercised on a proffered state of facts in the record." ( See also, Drope v Missouri, 420 US 162, 172–173, supra [the State statutory procedures regarding inquiry into a defendant's competence, if followed, were constitutionally adequate in both Drope and Pate v Robinson, 383 US 375, supra]).

4 Dr. Siegel's opinion as to defendant's competency to stand trial was, as the trial court observed, "beyond the scope of what he was supposed to accomplish." Furthermore, prior to his one–hour meeting with defendant, Dr. Siegel did not review the full records of defendant's psychiatric treatment at Mid–Hudson and the Albany County Correctional Facility, and he could not rule out the possibility that defendant was feigning mental illness.

1 Not only does Dr. Siegel's report raise an issue concerning defendant's mental capacity to stand trial, it also raises questions about his capacity to waive his presence at the pretrial hearing and at trial. Moreover, the bigoted tirade by the defendant at sentencing, a tirade cut off in its midst by the court, raised further questions concerning defendant's capacity to participate in his trial.