
    The People of the State of New York, Respondent, v James E. Robinson, Also Known as Michael Evans, Appellant.
    [705 NYS2d 472]
   —Case held, decision reserved and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Supreme Court erred in permitting defendant to cross-examine one of the two psychiatrists at the pretrial competency hearing. When a court orders a defendant to undergo an examination pursuant to CPL 730.30, it is because the court is “of the opinion that the defendant may be an incapacitated person” (CPL 730.30 [1]). Once that procedure is invoked, as it was in this case, “the defendant [is] entitled to a full and impartial determination of his mental capacity” (People v Armlin, 37 NY2d 167, 172). The right of a defendant to act as his own attorney is dependent upon a finding of mental capacity to stand trial (see, People v Reason, 37 NY2d 351, 354, rearg denied 37 NY2d 817; see also, United States v Purnett, 910 F2d 51, 55). Thus, the court erred in allowing defendant to represent himself by assuming an active role in the hearing before that finding was made (see, People v Meurer, 210 AD2d 934, 935, Iv denied 85 NY2d 940). We therefore hold the case, reserve decision and remit the matter to Supreme Court for a reconstruction hearing to determine defendant’s competency at the time of trial (see, People v Allen, 224 AD2d 1027; People v Whysong, 175 AD2d 576). (Appeal from Judgment of Supreme Court, Erie County, Tills, J. — Forgery, 2nd Degree.) Present — Pigott, Jr., P. J., Wisner, Scudder and Lawton, JJ.  