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

1449
KA 11-02529
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CYNTHIA MOORE, ALSO KNOWN AS CYNTHIA Y. MOORE,
ALSO KNOWN AS CYNTHIA A. MOORE,
DEFENDANT-APPELLANT.


KELIANN M. ELNISKI, ORCHARD PARK, FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered December 10, 2010. The judgment convicted
defendant, upon her plea of guilty, of grand larceny in the fourth
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the sentence and as
modified the judgment is affirmed, and the matter is remitted to
Genesee County Court for resentencing in accordance with the following
Memorandum: Defendant appeals from a judgment convicting her upon her
plea of guilty of grand larceny in the fourth degree (Penal Law §
155.30 [1]). After defendant pleaded guilty but before she was
sentenced, she suffered a traumatic brain injury that allegedly
impacted her cognitive abilities. Upon defense counsel’s request,
County Court issued an order of examination pursuant to CPL article
730 to determine defendant’s competency. The two examination reports
that were prepared were inconclusive on the issue of defendant’s
competency, however, and the court ordered that a third examination be
conducted. The third examination was never completed. Instead, upon
defense counsel’s request, the matter proceeded to sentencing, where
defense counsel acknowledged that defendant was being sentenced
without conclusive proof of her competence.

     We agree with defendant that the court abused its discretion in
failing sua sponte to order a competency hearing to determine whether
defendant was fit to proceed at the time of sentencing (see People v
Garrasi, 302 AD2d 981, 983, lv denied 100 NY2d 538; see also People v
Armlin, 37 NY2d 167, 171-172; People v Bangert, 22 NY2d 799, 800; see
generally People v Tortorici, 92 NY2d 757, 765-766, cert denied 528 US
834). Although a defendant is presumed to be competent (see
Tortorici, 92 NY2d at 765) and “[t]he determination of whether to
                                 -2-                          1449
                                                         KA 11-02529

order a competency hearing lies within the sound discretion of the . .
. court” (id. at 766; see People v Hawkins, 70 AD3d 1389, 1390, lv
denied 14 NY3d 888), “[a] court may not . . . sentence a defendant who
is incompetent” (People v Rojas, 43 AD3d 413, 414). Moreover, “[t]he
court has ‘the authority, and the continuing obligation, to address .
. . evidence [of incompetence] at any time it believe[s] circumstances
warrant[ ] a hearing’ ” (Garrasi, 302 AD2d at 983, quoting People v
Williams, 85 NY2d 945, 948). Here, in light of the inconclusive
nature of the competency examination reports, defense counsel’s
acknowledgment that competency had not been determined (cf. Tortorici,
92 NY2d at 767), and the absence of any indication in the record that
the court had the opportunity to interact with and observe defendant
prior to sentencing in order to assess her capacity (cf. People v
Cipollina, 94 AD3d 1549, 1550, lv denied 19 NY3d 971; People v
Chicherchia, 86 AD3d 953, 954, lv denied 17 NY3d 952), we conclude
that the court erred in sentencing defendant without first ordering a
competency hearing.

     We therefore modify the judgment by vacating the sentence, and we
remit the matter to County Court to resentence defendant. “If the
court is ‘of the opinion that the defendant may be an incapacitated
person’ at that time (CPL 730.30 [1]), it shall order a competency
hearing before imposing sentence” (Garrasi, 302 AD2d at 983). In view
of our determination, we do not address defendant’s remaining
contention concerning defense counsel’s alleged ineffectiveness in
failing to object at sentencing in the absence of an unequivocal
competency determination.




Entered:   December 28, 2012                   Frances E. Cafarell
                                               Clerk of the Court
