        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

55
KA 15-00778
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, DEJOSEPH, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

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.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth 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 the judgment convicting defendant of robbery in the second
degree.

     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 in accordance with the
following 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 AD3d 12, 21).

     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
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                                                         KA 15-00778

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
NY2d 757, 759, cert denied 528 US 834). 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 AD2d 1067, 1068,
lv dismissed 80 NY2d 835, lv denied 80 NY2d 907). “That section is
mandatory and not discretionary” (People v McCabe, 87 AD2d 852, 852),
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
NY2d 167, 172). 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 AD2d at 1067-1068; People v O’Reilly, 125
AD2d 979, 980; McCabe, 87 AD2d at 852-853).

     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 reconstruction hearing is
feasible” (People v Greene, 38 AD3d 1338, 1339, lv dismissed 11 NY3d
788). 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 NY3d 15, 19-20), 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 AD3d 686, 688, lv
denied 11 NY3d 854; People v Hasenflue, 48 AD3d 888, 889-891, lv
denied 11 NY3d 789).

     In view of our determination, we do not address defendant’s
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                                           KA 15-00778

remaining contentions.




Entered:   March 24, 2017         Frances E. Cafarell
                                  Clerk of the Court
