
    The People of the State of New York, Respondent, v Joseph G. Christopher, Appellant.
    Argued March 27, 1985;
    decided July 5, 1985
    POINTS OF COUNSEL
    
      John A. Ziegler and Rose H. Sconiers for appellant.
    I. Appellant was denied compulsory process, due process of law and equal protection of the law when the court refused defense counsel an opportunity to present expert psychiatric testimony at the second competency hearing. (Bishop v United States, 350 US 961; Pate v Robinson, 383 US 375; Jenkins v McKeithen, 395 US 411; Morgan v United States, 304 US 1; Baltimore & Ohio 
      
      R.R. Co. v United States, 298 US 349; Pate v Smith, 637 F2d 1068; Fuentes v Shevin, 407 US 67; Armstrong v Manzo, 380 US 545; Grannis v Ordean, 234 US 385; Washington v Texas, 388 US 14.) II. Appellant’s right to trial by jury was violated when the court below accepted the written jury waiver without establishing that such waiver was knowing, intelligent and voluntary, or that he was fully aware of the consequences. (Johnson v Zerbst, 304 US 458; Patton v United States, 281 US 276; Adams v United States ex rel. McCann, 317 US 269; Schneckloth v Bustamonte, 412 US 218; Duncan v Louisiana, 391 US 145; United States v David, 511 F2d 355; Faretta v California, 422 US 806; People v Mitchell, 61 NY2d 580; People v Kaltenbach, 60 NY2d 797; People v White, 56 NY2d 110.) III. The trial court erred when it upheld invalid search warrants issued without probable cause, and further, when it refused to hold a hearing on the affiant’s false and misleading statements used in support of the warrants. (Franks v Delaware, 438 US 154; Sgro v United States, 287 US 206; Durham v United States, 403 F2d 190; People v Loewel, 50 AD2d 483; Zurcher v Stanford Daily, 436 US 547; People v Teribury, 91 AD2d 815; Berger v New York, 388 US 41; People v Rainey, 14 NY2d 35; People v Baker, 23 NY2d 307; Coolidge v New Hampshire, 403 US 443.) IV. Appellant’s right to a fair trial was denied when the prosecution failed to provide favorable firearms evidence prior to trial and the court refused to grant a mistrial or adjournment in order that the defense would have reasonable opportunity to utilize this evidence. (Brady v Maryland, 373 US 83; United States v Agurs, 427 US 97; People v Consolazio, 40 NY2d 466; Giles v Maryland, 386 US 66; People v Simmons, 36 NY2d 126; United States ex rel. Meers v Wilkins, 326 F2d 135; Matter of Kapatos, 208 F Supp 883; Grant v Alldredge, 498 F2d 376.) V. The court below erred by permitting testimony of witnesses regarding privileged communications with appellant, which were statutorily protected. (Perry v Fiumano, 61 AD2d 512; People v Al-Kanani, 33 NY2d 260; Volkman v Miller, 52 AD2d 146, 41 NY2d 946; Matter of Lynch, 68 Misc 2d 78; Mayer v Albany Med. Center Hosp., 56 Misc 2d 239; People v Bartholomew, 73 Misc 2d 541; Nelson v Village of Oneida, 156 NY 219; Edington v Aetna Life Ins. Co., 77 NY 564; Matter of City Council of City of N. Y. v Goldwater, 284 NY 296; People v Decina, 2 NY2d 133.) VI. Appellant’s April 26,1981 statement to Aldrich Johnson was not spontaneous as a matter of law and was obtained in violation of appellant’s right to counsel and right to remain silent, as guaranteed by the New York State and United States Constitutions. (People v Lanahan, 55 NY2d 711; People v Lucus, 53 NY2d 678; People v Stoesser, 53 
      NY2d 648; People v Anderson, 42 NY2d 35; People v Maerling, 46 NY2d 289; People v Rivers, 56 NY2d 476; People v Townes, 41 NY2d 97; People v Roberson, 41 NY2d 106; Miranda v Arizona, 384 US 436; People v Chapple, 38 NY2d 112.) VII. There is insufficient evidence as a matter of law to support the convictions under counts 2 and 3 of this indictment and therefore they must be dismissed. (Jackson v Virginia, 443 US 307; In re Winship, 397 US 358; People v Molineux, 168 NY 264; People v Burke, 62 NY2d 860; People v Bretagna, 298 NY 323; People v Way, 59 NY2d 361; People v Barnes, 50 NY2d 375; People v Cleague, 22 NY2d 363; People v Benzinger, 36 NY2d 29; People v Kennedy, 47 NY2d 196.) VIII. The lower court abused its discretion as a matter of law when it denied the motion, pursuant to CPL 200.20 (3), for severance of the three second degree murder counts contained in the indictment. (People v Molineux, 168 NY 264; Drew v United States, 331 F2d 85; People v Yuk Bui Yee, 94 Misc 2d 628; People v Payne, 35 NY2d 22; People v Fisher, 249 NY 419; People v Stanley, 81 AD2d 842.)
    
      Richard J. Arcara, District Attorney (John J. DeFranks, Jo W. Faber and Rosemarie A. Wyman of counsel), for respondent.
    I. Defendant was not denied an opportunity to present evidence at the second competency proceeding wherein the court properly refused to order additional psychiatric examinations. In any event, the record in its entirety establishes defendant’s competency for trial. (Johnson v Harris, 682 F2d 49; People v Cona, 49 NY2d 26; Dusky v United States, 362 US 402; People v Hudson, 19 NY2d 137.) II. The jury trial waiver was properly accepted by the court. (People v Davis, 49 NY2d 114.) III. The search warrant was validly issued upon probable cause and properly executed by law enforcement officials. (United States v Harris, 403 US 573; Brinegar v United States, 338 US 160; United States v Brinklow, 560 F2d 1003, 434 US 1047; People v Teribury, 91 AD2d 815; United States v Johnson, 461 F2d 285; People v Alexanian, 76 AD2d 187, 54 NY2d 725; People v King, 61 NY2d 969; People v Warren, 61 NY2d 886.) IV. There existed no favorable firearms evidence to which defendant was entitled prior to trial, nor was it error for the court to allow both firearms examiners to testify. (Brady v Maryland, 373 US 83; People v Rosario, 9 NY2d 286; People v Strong, 60 AD2d 792; People v Gissendanner, 48 NY2d 543; People v Jones, 44 NY2d 76; People v Geaslen, 54 NY2d 510; Grant v Alldredge, 498 F2d 376.) V. Testimony regarding defendant’s admissions to Military Guard Christopher Corwin, Army Nurses Bernard Burgess and Dorothy Anderson and Army Chaplain Michael Freeman was properly received at trial. (People v Krom, 61 NY2d 197; People v 
      
      Warren, 61 NY2d 886; People v Newman, 32 NY2d 379; Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340; Bernstein v Lore, 59 AD2d 650; People v Al-Kanani, 33 NY2d 260; Matter of Vanderbilt [Rosner — Hickey], 57 NY2d 66; Matter of Priest v Hennessy, 51 NY2d 62; Matter of Camperlengo v Blum, 56 NY2d 251; People v Smith, 59 NY2d 156.) VI. Defendant’s April 26,1981 admissions to Captain Aldrich Johnson did not result from any custodial interrogation but were spontaneous as a matter of law and, as such, were properly received into evidence. (Miranda v Arizona, 384 US 436; People v Krom, 61 NY2d 187; People v Harrison, 57 NY2d 470; People v Maerling, 46 NY2d 289; People v Williamson, 51 NY2d 801; People v Kaye, 25 NY2d 139; Rhode Island v Innis, 446 US 291; People v Rivers, 56 NY2d 476; People v Tanner, 30 NY2d 102; People v Chappie, 38 NY2d 112.) VII. The court’s verdict finding defendant guilty of the three murders charged was supported by legally sufficient evidence. (People v Allweiss, 48 NY2d 40; People v Molineux, 168 NY 264; People v Ventimiglia, 52 NY2d 350; People v Condon, 26 NY2d 139; People v Brown, 24 NY2d 168.) VIII. The court below did not abuse its discretion in denying defendant’s motion for severance. (People v Lane, 56 NY2d 1; People v Brown, 24 NY2d 168.)
   OPINION OF THE COURT

Meyer, J.

A defendant found to lack capacity to participate in his own defense and committed for care and treatment, who is thereafter determined by the superintendent of the institution to which committed to be no longer incapacitated, has the right to present expert testimony during the hearing held pursuant to CPL 730.30 (2) following the superintendent’s report. Nothing in CPL 730.30 (2) or 730.60 (2) authorizes the hearing court to refuse to hear expert testimony other than that of the psychiatrist in charge of defendant during his confinement, nor is it material that defendant himself opposes the demand of his attorneys for such a hearing. The order of the Appellate Division should, therefore, be reversed and the matter remitted to Supreme Court, Erie County, for a new hearing to ascertain defendant’s capacity to assist in his own defense and, if he is found to have such capacity, for a new trial on all three counts of murder in the second degree of which he was convicted.

I

Defendant was convicted after a bench trial of murdering three black males in the 26-hour period between 10:00 p.m. on September 22,1980 and midnight on September 23,1980 on the east side of Buffalo. His conviction has been affirmed by the Appellate Division in a thorough and thoughtful opinion (101 AD2d 504), to which reference is made as to the facts of the killings, the pretrial proceedings and the claimed trial errors. We agree with the conclusions reached in that opinion other than (1) its holding that the hearing judge did not err in refusing to allow introduction by the defense of expert testimony at the second (March 16, 1982) hearing concerning defendant’s capacity to assist in his own defense, and (2) its reasoning as to the sufficiency of the evidence concerning the second (Green) and third (Thomas) murders.

II

Much of the problem with respect to defendant’s right to introduce psychiatric testimony at the second hearing stems from the fact that defendant himself opposed his attorneys’ efforts to have a hearing at all, it being his view that there was no question about his capacity to participate in his defense. Whatever may be the right of a criminal defendant represented by counsel to make the ultimate determination of trial strategy (cf. Dearinger v United States, 344 F2d 309 [defendant entitled to insist, against counsel’s advice, that particular witnesses be called]), it does not include the right to waive a hearing concerning capacity which counsel has requested. This necessarily follows from the self-contradiction involved in recognizing that a defendant whose capacity is in issue has the capacity to waive a hearing concerning his capacity (Pate v Robinson, 383 US 375, 384).

Here, the hearing judge, after the first hearing during which the reporting psychiatrists disagreed concerning defendant’s ability to participate in his defense, found him incapacitated and on December 16, 1981, committed him to the Mid-Hudson Psychiatric Center for treatment and care. On February 23, 1982, the superintendent of that institution certified that defendant was no longer incapacitated. Defendant’s attorneys then moved for a hearing, and a prehearing conference made clear that what they sought was not an order of examination pursuant to CPL 730.30 (1) but the appointment of psychiatrists to assist in the defense, to testify at the hearing and to help prepare the cross-examination. The hearing judge denied the application, stating that what counsel sought was the same hearing previously held and that he would hear only the psychiatrists whose opinions underlay the superintendent’s report.

Counsel demurred to the latter suggestion and stated that formal application would follow. That application, made on the affidavit of one of defendant’s attorneys which called attention to testimony at the first hearing concerning defendant’s inflexibility in his inability to cooperate with counsel, recited that in discussion since defendant’s return to Buffalo the same intransigence continued, asked in view of defendant’s indigency for authority to obtain the services of psychiatrists as experts for the assistance of the defense and emphasized the due process and other constitutional violations that would otherwise result. It was accompanied by a proposed form of order which made specific reference to County Law § 722-c, which provides for the furnishing of services of others than attorneys for indigent defendants. At the argument of that motion the defendant objected to a hearing, as did the prosecutor. The judge resolved the dilemma by ordering the hearing on his own motion, but reserved decision on the request of defendant’s attorneys for appointment of psychiatrists until conclusion of the testimony of the Mid-Hudson psychiatrist who has been in charge of defendant after he was committed there for care and treatment.

After conclusion of that testimony, the motion for appointment of psychiatrists was denied, the judge stating again that he construed the application as one for further examination under CPL 730.30 (1). Defense counsel then offered to pay the psychiatrists from their own funds, but the judge ruled that to be no more than a backdoor approach to a third round of psychiatric tests. That interpretation and ruling were reiterated on the next hearing date. The judge’s ultimate decision, that the defendant was not an incapacitated person and that the criminal trial should proceed, was, therefore, made without hearing any psychiatric evidence from the defense.

The Appellate Division held that there nevertheless was no denial of due process because the hearing having been held on the court’s own motion, limitation of expert testimony produced at the hearing was reasonable; because CPL 730.60 (2) does not mandate a full adversary hearing; because it interpreted the last sentence of CPL 730.30 (2) to provide for a limited initial hearing followed by a further hearing at which other psychiatrists would be allowed to testify; because defense counsel had the opportunity to cross-examine the Mid-Hudson doctor; and because the court in reaching its second hearing decision considered the testimony of the three psychiatrists who testified on behalf of defendant at the first hearing.

That reasoning, and the reasons given by the hearing judge for denying defense counsel’s request, misconstrue the governing statutes. CPL 730.60 (2) provides that when the superintendent of the institution in which defendant is confined determines that defendant is no longer an incapacitated person he must so notify the court and the District Attorney in writing, and that: “The court must thereupon proceed in accordance with the provisions of subdivision two of section 730.30 of this chapter; provided, however, if the court is satisfied that the defendant remains an incapacitated person, and upon consent of all parties, the court may order the return of the defendant to the institution in which he had been confined for such period of time as was authorized by the prior order of commitment or order of retention.” CPL 730.30 (2), which deals with an order of examination as to capacity before an order of commitment issues (see, CPL 730.40, 730.50), provides that: “When the examination reports submitted to the court show that each psychiatric examiner is of the opinion that the defendant is not an incapacitated person, 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. If, following a hearing, the court is satisfied that the defendant is not an incapacitated person, the criminal action against him must proceed; if the court is not so satisfied, it must issue a further order of examination directing that the defendant be examined by different psychiatric examiners designated by the director.” But, if the Appellate Division’s construction of the concluding clause of that provision is correct, not only a defendant returned for a second hearing after prior commitment for observation, but also a defendant whose capacity is first put in issue, would have no right in the initial hearing held pursuant to the section to present psychiatric testimony on his own behalf. He could do so only after the court, not being satisfied following the initial hearing that defendant is not incapacitated, ordered additional examination by psychiatric examiners designated by the director, which would be an absurd result. It would also be wholly inconsistent with the wording of the statute which provides in its first sentence that the court “must conduct a hearing upon motion therefor by defendant” (emphasis supplied), and with the memorandum of the Senator who sponsored the 1981 amendment which added to CPL 730.60 (2) the sentence quoted above. That memorandum stated flatly that: “This bill ensures that the court, the district attorney and the defendant retain the right to contest the determination of the department.” (1981 NY Legis Ann, at 423, 424 [emphasis supplied]). To say that defendant is ensured the right to a hearing and to contest a psychiatric determination but may not present psychiatric testimony is a contradiction in terms.

Moreover, the statutory requirement was not met by the hearing judge’s review of the testimony of psychiatrists who testified at the initial hearing. That testimony, the judge found, was insufficient to establish defendant’s competence to stand trial but, in any event, the issue on the second hearing was defendant’s capacity at that time, not several months before. Had defendant been permitted to present psychiatric testimony, it may have varied from that of the Mid-Hudson psychiatrist eyen more drastically than had been the difference between them on the first hearing.

It is, furthermore, the People’s.burden to establish defendant’s coippetence to proceed (People v Santos, 43 AD2d 73; see, People v Silver, 33 AD2d 475). If the proof submitted through the Mid-Hudson psychiatrist be deemed sufficient to shift the burden of going forward on that issue to defendant, still as Chief Judge Cardozo (as he then was) observed in Matter of Reilly v Berry (250 NY 456, 461), “a defendant may be at an unfair disadvantage if he is unable * * * to parry by his own witnesses the thrusts of those against him.” Nothing in the statutory reference to a “hearing,” or in its provision for a hearing on the court’s own motion, suggests that defendant was to be disadvantaged at that juncture by being denied the assistance of a psychiatrist. As we have noted in People v Richetti (302 NY 290, 297), “A ‘hearing’ or ‘trial’ of * * * an issue of fact is an empty form unless it takes place * * * with the right, on each side, to examine and cross-examine.”

No more so is there basis in the statute or in the record for the hearing judge’s denomination of the motion made by defendant’s counsel, who clearly and repeatedly argued that they sought only the assistance of expert psychiatrists and ultimately offered to pay the costs involved themselves, as one for a third round of psychiatric examination. Nor is it material that there was an adjournment between hearing and trial during which counsel might have consulted and retained expert assistance at their own expense for by that time the hearing judge had ruled that he would neither appoint psychiatrists at court expense nor hear psychiatrists retained at defendant’s attorneys’ expense.

Nor finally can it avail the People, as they argue, that the evidence before the hearing judge was legally sufficient or that the introduction of expert testimony is generally a matter of the court’s discretion. How many experts will be heard will in most circumstances be a matter of discretion, but, as already noted, th^ refusal to hear any expert witness on behalf of defendant is a violation of the statutory requirement, not a matter of discretion. And the statutory right to oppose the testimony presented against him having been violated, it is simply irrelevant that the unopposed testimony was legally sufficient. The issue is not whether the People presented enough evidence but whether defendant was prevented from contesting as the statute ensured; under the statute defendant’s right to present evidence in opposition is not subject to the unfettered discretion of the hearing judge._

Because the psychiatric assistance that can be provided at a new hearing will relate to defendant’s present condition, rather than his capacity at the time of the second hearing held without such assistance, a new hearing will not provide him with the safeguards he was entitled to at the time of the second hearing (cf. People v Hudson, 19 NY2d 137,140). There must, therefore, be a reversal and a remand for a new hearing as to defendant’s present capacity, followed, if he is found capable to proceed, by a new trial (Dusky v United States, 362 US 402).

Ill

Whether that new trial, if it occurs, will be only as to the Dunn murder or as to the Green and Thomas murders as well turns on the legal sufficiency of the evidence presented as to the latter two. Defendant attacks the legal sufficiency of the evidence as to them on a number of bases. He argues first that the testimony of Robert Oddo, who identified defendant as the perpetrator of the Dunn murder, was inconclusive and, therefore, an insufficient predicate as “other crime” evidence on the issue of identity under the Molineux rule (People v Molineux, 168 NY 264), because Oddo did not identify defendant at the lineup, testifying at the trial that initially he did not want to get involved. The argument cannot help defendant, however, for he was identified not only by Oddo but by Madonna Gorney as well, who passed within an arm’s length of him just prior to the Dunn murder and positively identified him at the trial.

Defendant contends also that the Trial Judge committed himself, without objection from the prosecution, to render a verdict on each count separately and weigh and assess the evidence as it applied to each count separately and that it was, therefore, impermissible for the Appellate Division to use the Dunn “other crime” evidence to identify defendant as the perpetrator of the other two murders. The Trial Judge’s statement was related to defendant’s counsel’s objection to the prosecutor’s theory that the crimes were connected because all the victims were black, and the impropriety of using guilt of one crime to establish guilt of another. It cannot properly be read, however, as a commitment not to consider evidence properly admissible on the issue of identity under the Molineux rule (see, People v Beam, 57 NY2d 241; People v Allweiss, 48 NY2d 40). Here there is more than the race of the victims to make the evidence probative of identity: the short space of time in which the three murders occurred, the unprovoked nature of each, the facts that they occurred in the same general geographical area, that the same type of weapon was involved in each and that defendant owned such a weapon.

Moreover, the expert testimony, based on the shell casings found at each murder site and at other places frequented by defendant, that the same gun was used in all three killings, considered together with the “other crime” identity evidence and defendant’s admissions that he had killed many people in Buffalo, some using a .22 caliber weapon, constituted sufficient evidence to present a jury issue with respect to the other two murders.

For the foregoing reasons, the order of the Appellate Division should be reversed and the matter remitted to Supreme Court, Erie County, for further proceedings in accordance with this opinion.

Simons, J.

(dissenting). The majority find nothing in CPL 730.30 (2) or 730.60 (2) which “authorizes the hearing court to refuse” defendant the right to submit partisan psychiatric testimony to controvert the diagnosis, made by doctors of the State institution in which he had been held for observation, that he was no longer an incapacitated person. They hold, therefore, that the court’s refusal to hear such evidence constituted reversibly error. I can find nothing in the statute or which can be implied from it which grants defendant an absolute right to submit such evidence and, therefore, I assume that the Legislature intended to commit the matter to the discretion of the hearing court. Inasmuch as the record establishes convincingly that the court properly exercised its discretion, I dissent and would affirm the judgment.

Defendant was charged with three counts of second degree murder arising out of the much publicized and apparently racially motivated killing of three black men in the City of Buffalo in September 1980. He was arraigned on May 11, 1981 and at that time the court ordered a psychiatric examination pursuant to CPL art 730. Two psychiatrists, Drs. Molnar and Wadsworth, examined him and found him fit to proceed. The case was reached for trial the following fall. On October 20,1981, the day before jury selection was to start, counsel announced that defendant had decided not to invoke an insanity defense. He advised the court that he and defendant’s court-appointed psychiatrist had fully explained the options to defendant and that in counsel’s opinion defendant was competent to make that decision. Jury selection commenced the next day. During voir dire defendant, against the wishes of his attorney, moved to waive a jury and proceed by bench trial. Counsel then changed his position on his client’s competency and contended that he was not fit to proceed, apparently believing that defendant was competent to proceed before a jury but not competent to proceed before a judge without a jury. Counsel’s ambivalence became even more apparent, the court noted, when he subsequently agreed to withdraw his claim of incompetency if the court would deny defendant’s motion to waive a jury. At this point the court ordered a further psychiatric examination solely to determine if defendant was competent to waive a jury. After reexamination, Dr. Molnar continued to believe defendant was fit to proceed but Dr. Wads-worth changed his earlier diagnosis and held that he was not. The court then ordered a full psychiatric reexamination pursuant to CPL 730.30 (1). Three additional doctors were appointed and examined defendant. They too disagreed on his fitness to proceed. On this state of the record, finding the evidence “exceedingly close”, the court ruled that the People had not met their burden of proving competence by a preponderance of the evidence and ordered defendant committed to Mid-Hudson Psychiatric Center for observation (see, CPL 730.40 [1]).

defendant was returned to court two months later, certified by the superintendent of Mid-Hudson as competent to stand trial. After speaking with defendant, however, his counsel advised the court that defendant was no different than he had been earlier and he requested further psychiatric examinations and a hearing. Defendant adamantly opposed his counsel’s request and urged immediate trial. The court settled the dispute by ordering a hearing on the report certifying defendant. One of the three psychiatrists who had treated defendant at Mid-Hudson, Dr. Chellappa, was called to testify. It is this hearing and the court’s rulings during it which present the issue which divides the court on this appeal.

Before and during the hearing, defense counsel requested that the four psychiatrists who had previously testified that defendant was not fit to proceed reexamine defendant and testify in opposition to Dr. Chellappa. Counsel offered no reason why reexamination was required except for conclusory assertions that defendant failed to cooperate with him and the speculation that further examinations might develop evidence of incapacity. The court reserved decision on the request while it heard the testimony of Dr. Chellappa but it did not foreclose defendant or his counsel from cross-examining the doctor nor did it foreclose them from offering additional evidence. At the conclusion of the hearing, the court decided that it had sufficient evidence before it to determine the matter and that no further psychiatric evidence was necessary. It therefore denied counsel’s motion and ruled that defendant was fit to proceed to trial.

Specifically, the court had before it the expert opinions of 11 different doctors who had made psychiatric evaluations of defendant (Drs. Molnar and Wadsworth had evaluated him twice). All of them believed defendant was competent to understand the proceedings; they disagreed on whether he was able to assist in his defense. Those who believed he could not based their opinions in part upon a diagnosis that he was suffering from a mental disease, paranoia, and the fact that he failed to cooperate witjh his lawyers or with the examiners. That conduct was not necessarily irrational, however; defendant insisted that he was competent to proceed and he insisted, contrary to his lawyer’s adyice and for reasons he expressed with considerable logic, that he stood a better chance of acquittal before a judge than before a jury. Indeed, believing he was competent, defendant even had instituted a pro se habeas corpus proceeding seeking release from Mid-Hudson Psychiatric Center and return for trial and he had presented psychiatric evidence in that proceeding which supported his claim. Also to the point, the court noted that when defendant had appeared before it in several proceedings during the preceding year he was always alert and fully oriented and that he had participated in the proceedings, appeared to understand them and had suggested questions to his lawyers concerning matters they could not otherwise know of.* Insofar as defendant may have been disadvantaged at the second hearing by any claimed lack of psychiatric assistance, the court noted that it had previously appointed a psychiatrist to aid defendant at State expense, that the psychiatrist had appeared with defendant and his lawyer during earlier examinations, had advised them at the hearing thereafter and that he was still available to assist him. Although counsel contends otherwise, there is nothing before us to indicate that that psychiatrist was unavailable or that his assistance was inadequate and the majority do not rest their reversal on defendant’s lack of psychiatric assistance in,conducting the hearing or cross-examining Dr. Chellappa. Indeed, counsel has not identified a single instance during the hearing or the trial in which arguably defendant was hampered or prejudiced by the court’s decision to proceed.

The narrow issue dividing the court on this appeal is whether the court erred in denying defendant’s application to retain psychiatrists, either at State expense or at his own expense, to examine him and testify in opposition to the doctor from Mid-Hudson Psychiatric Center after defendant was returned from that institution. The majority find that he had a statutory right to submit such evidence.* *

CPL 730.30 sets forth a comprehensive scheme for determining whether a defendant is an incapacitated person within the definition of the statute (CPL 730.10 [1]). Subdivision 1 provides for an order of examination when the court determines that defendant may be an incapacitated person, subdivisions 2,3 and 4 provide for various procedures after examinations have been completed depending upon the results of those examinations and the court’s view on the issue of incapacity. In this case, the court had determined that examinations were required and ordered them pursuant to subdivision 1 and it had already held hearings at which the examiners testified and the court evaluated their findings. The propriety of those hearings is not before us. The hearing in question is the hearing held after defendant had been returned to court from Mid-Hudson Psychiatric Center, certified as fit to stand trial by the superintendent.

CPL 730.60 (2) provides that when a defendant has been returned to court after a period of observation, certified as fit to proceed, his procedural rights shall be governed by CPL 730.30 (2). That section provides: “2. When the examination reports submitted to the court show that each psychiatric examiner is of the opinion that the defendant is not an incapacitated person, 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. If, following a hearing, the court is satisfied that the defendant is not an incapacitated person, the criminal action against him must proceed; if the court is not so satisfied, it must issue a further order of examination directing that the defendant be examined by different psychiatric examiners designated by the director.” The relevant provision is the first sentence which authorized the court to hold the hearing. It gives no guidance on the nature of the hearing but manifestly it was designed to aid the court in evaluating the report of the institution’s doctor. If the court is not satisfied with the doctor’s report and testimony after the hearing, the statute authorizes it to order another round of examinations, but nothing in the subdivisions grant defendant the right to submit additional psychiatric evidence in opposition to the doctor’s diagnosis. The court was satisfied with the evidence after this hearing and there was no need for it to hear additional psychiatric evidence or to order a fourth round of examinations. Accordingly, it ordered the criminal action to proceed. In holding it was bound to hear additional psychiatric evidence, the majority rely upon the last sentence of subdivision 2 but that refers to proceedings “following a hearing.” But that language does not govern the procedure during the hearing after defendant’s return or grant him the right to submit additional psychiatric evidence at it. The purpose of the hearing was to test the certification. It was only a part of the proceedings conducted pursuant to CPL 730.30, and the court’s decision after it was concluded was based not only on the evidence presented at that hearing but also upon all the evidence in the record of the criminal action, the prior article 730 proceedings and the report of defendant’s doctor in the habeas corpus proceeding.

Any doubt about this interpretation was removed by the reasons which prompted the 1981 amendment to section 730.60 (2). Originally the section provided that when a defendant had been found incapacitated and confined to a State institution and the superintendent of the institution thereafter certified that he was no longer incapacitated, the defendant was to be returned to court and “the criminal action against him must proceed.” Some lawyers and judges apparently found this language ambiguous and construed it to mean that the court had no authority to reject the superintendent’s certification. Accordingly, the statute was amended by deleting the quoted section and providing that when a defendant was returned from the hospital and certified as fit to proceed, the court “must thereupon proceed in accordance with the provisions of subdivision two of section 730.30” (L 1981, ch 791). The sponsor’s memorandum explained: “Criminal Procedure Law: § 730.60. The purpose of this bill is to ensure that a Superintendent of a Mental Hygiene Facility may not overrule a court’s determination on the issue of capacity. There currently is an ambiguity on the question of whether a court is bound to accept the determination of the department on the crucial question of a defendant’s mental fitness to proceed in a criminal case. People v. Rodriques [sic], Supreme Court, New York County (1980), highlights this ambiguity. Although a defendant is currently entitled to a capacity hearing after an initial psychiatric examination current language in § 730.60(2) does not explicitly state that he is so entitled after a temporary order of observation or an order to commitment or retention. This bill ensures that the court, the district attorney and the defendant retain the right to contest the determination of the department. Passage of this bill will prevent the mental hygiene department from making a determination of a defendant’s capacity without the court system’s assent. Since the Court has made an initial determination on a defendant’s capacity, it should have the opportunity to conduct a new hearing before accepting the department’s findings” (1981 NY Legis Ann, at 423-424).

Thus the purpose of the amendment was not to grant a defendant a wide ranging adversarial hearing at which he could introduce partisan opinion evidence in opposition to the superintendent’s report. Indeed, that interpretation is contrary to the statute’s requirement that neutral psychiatric examiners be used (see, CPL 730.10 [2], [5], [7]). It was intended to clarify the statutory authority permitting the court to require the superintendent or the institution’s doctors to testify in support of the superintendent’s diagnoses, to reevaluate its ruling on the basis of that evidence and to order a further examination thereafter if it determined that one was required. In short, the amendment sought to insure that the court, not the superintendent of the hospital to which defendant was confined, would determine whether defendant was an incapacitated person (see, Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 7B, CPL 730.60, p 304).

This interpretation is confirmed further by a report made by a committee of the Association of the Bar of New York City (see, Mental Illness, Due Process and the Criminal Defendant, Second Report and Additional Recommendations of the Assn of Bar of New York City [1968]). The bill jacket for the original statute indicates that much of article 730 was patterned after recommendations in the report (see, Legis Bill Jacket, L 1970, ch 996). The report notes the concern of the committee that the court should feel free to reject the superintendent’s report and conduct further examinations if it felt them warranted (id., at 85). The 1981 amendment became necessary after the meaning of the statute had been questioned in a specific case in which the prosecutor had contended that CPL 730.60 (2) did not permit the defendant to challenge the superintendent’s certification (see, People v Rodriguez, 79 AD2d 576, dissent of Murphy, P. J., at p 578; see also, Legis Bill Jacket, L 1981, ch 791, Memorandum of Arnold D. Hechtman to John G. McGoldrick dated June 29, 1981). Nothing in the amendment or its history, however, suggests that the Legislature intended by it to expand defendant’s rights under the original statute.

It is also worth noting that this analysis of the statute is consistent with the historical development of capacity hearings. At common law, an incompetent accused could not be brought to trial (Youtsey v United States, 97 F 937,940-946; see also, Bishop v United States, 350 US 961). The law distinguished between defendants who lacked the mens rea to commit the crime because they were insane at the time of the offense and those lacking the capacity to defend because incapacitated at the time of trial. The rule, then as now, held that although a defendant may well have been insane at the .time of the crime and also at the time of trial, he could be prosecuted if he understood the nature of the proceedings and was able to assist in his own defense. If he was incapacitated at the time of trial, the proceedings could not continue (see, Freeman v People, 4 Denio 9, 27).

The court possessed broad discretion to determine whether to inquire into defendants’ capacity (see, People v Smith, 3 NY2d 184, 186; People v Nickerson, 1 NY2d 815) and whether to impanel a jury or to decide the issue itself (Weihofen, Mental Disorder as a Criminal Defense, at 429, 445-447). If it was satisfied from its own observations that there was no basis to question defendant’s capacity, he was not entitled to a hearing (People v McElvaine, 125 NY 596; see also, People v Esposito, 287 NY 389). On appeal, the Trial Judge’s competency ruling was sustained unless found to be clearly arbitrary (see, Freeman v People, supra; Comment, The Effect of the New York Criminal Procedure Law upon the Treatment of the Mentally Incompetent Defendant, 20 Buffalo L Rev 646, 647). The former Code of Criminal Procedure similarly granted the trial court broad discretion in determining capacity (Code Crim Pro §§ 658, 662-a, 662-c).

Our present practice is derived from these rules. Subject to specific statutory limitations, the court retains broad discretion to decide capacity issues based upon its own observations and, if examination is required, upon its evaluation of evidence of neutral psychiatric examiners (see, People v Rodriguez, 79 AD2d 576, affd 56 NY2d 557, supra; CPL 730.10 [5], [7]; cf. former Code Crim Pro § 659; 18 USC § 4244). The defendant’s incapacity must be the result of mental disease or defect (CPL 730.10 [1]) but the determination of his capacity is a judicial determination, not a medical one (see, Comment, Incompetency to Stand Trial, 81 Harv L Rev 454, 470; Comment, 20 Buffalo L Rev 646, 651-652; Cooper, Fitness to Proceed, A Brief Look at Some Aspects of the Medico-Legal Problem Under the New York Criminal Procedure Law, 52 Neb L Rev 44, 53, 67; Pizzi, Competency to Stand Trial in Federal Courts: Conceptual and Constitutional Problems, 45 U of Chi L Rev 21, 54-55). Thus, the statute restricts the reports of the examiners to information necessary for the court’s decision (see, CPL 730.10 [8]; see also, Mental Illness, Due Process and the Criminal Defendant, Second Report and Additional Recommendations of Assn of Bar of New York City, at 85 [1968]) and, significantly, under the various alternatives provided in CPL 730.30 the opinions of the psychiatrists are not binding on the court.

The dispositive issue always is defendant’s ability to function at the trial and although psychiatric evidence is required once the defendant’s capacity is questioned, resolution of the question is not necessarily aided by multiple examinations or additional psychiatric testimony because the psychiatrists’ orientation is therapy; they have little familiarity with criminal prosecutions. The court is familiar with the procedures and dynamics of a criminal prosecution, however, and it can best assess the defendant’s mental capacity against the specific demands the trial may make upon him. In the final analysis, it must decide whether defendant can understand the proceedings and, with a “modicum of intelligence”, assist counsel (People v Francabandera, 33 NY2d 429, 435-436).

In sum, absent an explicit controlling statutory direction, the determination to order further examinations or to receive additional psychiatric evidence is one that rests now, as it always has, in the sound discretion of the hearing court. Its decision on the matter, absent clear error should be upheld. Under similar circumstances, this court (see, People v Rodriguez, 79 AD2d 576, affd 56 NY2d 557, supra; see also, People v Esposito, 287 NY 389, supra) and several Federal courts, interpreting a similar statute (18 USC § 4244), have held that a defendant does not have a right to seek repeated mental examinations and that the denial of his request for such examinations or to offer expert psychiatric testimony on his mental condition at a hearing, unsupported by legitimate reasons for doing so, does not constitute an abuse of discretion (Ruud v United States, 347 F2d 321, cert denied 382 US 1014; United States v Cook, 418 F2d 321; United States v Maret, 433 F2d 1064; cert denied 402 US 989; United States v Valtierra, 467 F2d 125; see, Pizzi, Competency to Stand Trial in Federal Courts: Conceptual and Constitutional Problems, 45 U of Chi L Rev 21, 54-57). That discretionary power controls the result in this case and requires an affirmance of defendant’s conviction.

Chief Judge Wachtler and Judges Kaye and Alexander concur with Judge Meyer; Judge Simons dissents and votes to affirm in a separate opinion in which Judge Jasen concurs; Judge Titone taking no part.

Order reversed, etc. 
      
      . Pate held the defense of incompetence to stand trial not waived by defendant, noting that “it 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” (383 US, at p 384) and that “[w]hile Robinson’s demeanor at trial might be relevant to the ultimate decision * * * it cannot be relied upon to dispense with a hearing” (383 US, at p 386).
     
      
      . What the dissent characterizes as “conclusory assertions that defendant failed to cooperate” (dissenting opn, at p 428) is contained in paragraph 8 of the affidavit, which reads: “I have spent in excess of four hours with Mr. Christopher since his return to Buffalo. During that time I have concluded that he is still unable to assist effectively in his defense because of his refusal to discuss important areas of his case, such as trial strategy, the raising of defenses, such as, for example, lack of criminal responsibility, and possible approaches to the anticipated proof at trial. In one conversation with him, regarding two important areas of evidence expected from the prosecution, and conflicting strategies for responding to same evidence, the defendant merely states ‘I’ll take care of that'f or ‘leave that up to me.’ When pressed on the need to cooperate with defense counsel, Mr. Christopher states ‘I’m going to make my own decisions’ ’’ (Emphasis supplied.)
     
      
      . Because our reversal stems from those statutes, we do not reach or decide the constitutional issues argued by defendant.
     
      
      
        . The dissent’s reference to the last sentence of subdivision 2 (dissenting opn, at p 432) ignores the wording of the first sentence of that subdivision. Its contrary construction of the subdivision (dissenting opn, at p 432) also ignores the above-quoted underscored language of the legislative memorandum. Even if the one-sided proceedings which the dissent would accept as sufficient be deemed a “hearing” (but see, People v Richetti, 302 NY 290, 297), it does not afford defendant “the right to contest the determination of the department” which the legislative history shows to have been intended. Moreover, that CPL 730.10 (8) specifies what the examiner’s report shall contain (dissenting opn, at p 434) proves nothing contrary to defendant’s right to contest that report at a hearing.
     
      
      . Though defendant’s original application was for funds to pay the four psychiatrists who testified at the first hearing, our holding is that the Trial Judge erred in refusing to hear any psychiatric evidence on defendant’s behalf, not that defendant had a statutory right to present the evidence of four psychiatrists at the second hearing.
     
      
      . Specifically, defense counsel were free to cross-examine the institution doctors and to submit evidence on behalf of defendant that he was not able to assist in his defense. The application to offer additional psychiatric evidence initially sought reexamination by the four psychiatrists who had previously testified defendant was incapacitated, then apparently sought a further statutory examination, at least the court understood it as such, and finally was submitted as an application to present additional psychiatric testimony to rebut the superintendent’s certification. The court reserved judgment on the application to submit additional psychiatric evidence until the conclusion of the hearing. It then denied the motion, holding that such evidence would be “cumulative and unnecessary.”
     
      
      . Parenthetically, I would add that I do not agree with the majority that the court may ignore defendant’s wish for a prompt trial when his counsel urges a finding of incapacity. For every reason counsel can advance for delay, the defendant can advance an equally cogent reason for a prompt trial to exonerate himself before the evidence grows stale or disappears and before he is consigned to a period of incarceration and treatment in a hospital for the criminally insane (see, Comment, Incompetency to Stand Trial, 81 Harv L Rev 454, 455-456; Cooper, Fitness to Proceed: A Brief Look at Some Aspects of the Medico-Legal Problem Under the New York Criminal Procedure Law, 52 Neb L Rev 44,64). As has been aptly stated, “[t]he gravest injustice is inflicted upon a person by criminal law commitment upon a finding of unfitness to proceed when it later turns out that he had not committed any criminal act” (see, Bacon, Incompetency to Stand Trial: Commitment to an Inclusive Test, 42 S Cal L Rev 444, 448). In the absence of agreement on the necessity of a hearing between defendant and his counsel, the court wisely ordered one to review the doctors’ certification of competency. But defendant’s wishes and his well-stated and rational reasons for proceeding contrary to his counsel’s advice were entitled to the consideration the hearing court gave them when it decided the issue after the hearing. Pate v Robinson (383 US 375, 384) does not hold otherwise.
     
      
      . Defendant mentions this statutory right only briefly in his submissions and without specification of the basis for it. His principal contentions concerning the hearing are that reversal is required (1) because Dr. Chellappa was unqualified and his testimony unworthy of belief and (2) because he was denied due process. The first issue is beyond our power of review. Because the majority have decided the appeal on statutory grounds, it is not necessary to address the constitutional issue. We have previously held, however, that the procedures set forth in title 12 of the former Code of Criminal Procedure, generally similar to the procedure contained in article 730, satisfied due process requirements (see, People v Hudson, 19 NY2d 137, cert denied 398 US 944; see generally, Validity and Construction of Statutes Providing for Psychiatric Examination of Accused to Determine Mental Condition, Ann., 32 ALR2d 434).
     