
    The People of the State of New York, Respondent, v Mark W. Gensler, Appellant.
    Argued May 27, 1988;
    decided July 6, 1988
    
      POINTS OF COUNSEL
    
      Frank J. Nebush, Jr., Public Defender (Esther Cohen Lee of counsel), for appellant.
    I. The trial court had a duty, based upon the information before it regarding appellant’s mental illness, to order, sua sponte, a competency hearing before accepting his plea or sentencing him, and its failure to do so denied appellant due process of law. (Drope v Missouri, 420 US 162; Bishop v United States, 350 US 961; Pate v Robinson, 383 US 375; Dusky v United States, 362 US 402; People v Arnold, 113 AD2d 101; People v Harris, 109 AD2d 351; People v . Armlin, 37 NY2d 167; People v Bangert, 22 NY2d 799; Silverstein v Henderson, 706 F2d 361; People v Smyth, 3 NY2d 184.) II. The court may not accept a plea from, or sentence a defendant who, has been returned from a mental hospital where the court had just recently committed him unless it first holds a competency hearing because the facility’s report of competency constitutes a conflicting report with the recent reports of incompetency and requires a hearing under CPL 730.30 (4). (Drope v Missouri, 420 US 162; People v Lowe, 109 AD2d 300; People v Greenwood, 54 AD2d 1123; People v Hudson, 19 NY2d 137; Silverstein v Henderson, 706 F2d 361.) III. The court may not find a defendant to be competent based solely upon the opinion of one psychiatrist from the mental hospital where defendant had recently been committed by the court since CPL 730.30 (2) and 730.20 require the opinion of two psychiatrists under those circumstances. (People v Armlin, 37 NY2d 167; People v Kinder, 126 AD2d 60; People v Vallelunga, 101 AD2d 603; People v Ross, 50 AD2d 1064.)
    
      Barry M. Donalty, District Attorney (William M. Weber of counsel), for respondent.
    I. The court did not err when it accepted the report on defendant’s competency without ordering a hearing. (People v McElvaine, 125 NY 596; People v Armlin, 37 NY2d 167; People v Smyth, 3 NY2d 184.) II. The facts of this case did not require that a hearing be held pursuant to CPL 730.30 (4). (Silverstein v Henderson, 706 F2d 361.) III. A notification of fitness to proceed issued pursuant to CPL 730.60 (2) is a sufficient basis upon which a court may find a defendant not to be an incapacitated person.
   OPINION OF THE COURT

Bellacosa, J.

Defendant, by plea of guilty, was convicted of several felonies, including robbery and assault in the second degree, and the Appellate Division affirmed. The issue is whether reversible error was committed by the trial court’s refusal to conduct, sua sponte, a competency-to-stand-trial hearing after the Director of Mid-Hudson Psychiatric Center certified defendant as competent.

At his arraignment and at the request of his counsel, defendant was ordered to undergo a competency examination pursuant to CPL 730.30 because of the unusual occurrences leading up to and including the crimes charged and because defendant had a history of psychiatric instability. He was examined by two psychiatrists and determined to be competent. Defense counsel challenged these findings, moved for a competency hearing, and submitted the report of a privately retained psychiatrist concluding that defendant was incompetent. The Trial Judge then ordered a reexamination by court-appointed psychiatrists who reported that defendant was an incapacitated person. The trial court then found defendant lacked capacity to understand the proceedings or to assist in his own defense and executed an order committing him to treatment for up to one year or until no longer incapacitated (CPL 730.50).

The argument and the focus of the issues presented on this appeal center on the events which followed. After defendant’s 14-day placement at Mid-Hudson Psychiatric Center, the Director of that Center, relying on a clinical summary report, issued a notification of fitness to proceed declaring defendant was no longer incapacitated. At the court date following the notification, 2 Vz weeks later, the People urged that a judicial order of fitness to proceed be made predicated on that most recent fitness report from Mid-Hudson. Defendant’s attorney asked the Trial Judge to hold a competency hearing on his own motion, reasoning that the Trial Judge had a special additional obligation to ensure defendant’s competence in view of the lack of unanimity among the various psychiatric evaluations.

The entire colloquy on the subject at issue shows:

"the court: Well, obviously if you wish to have a hearing, the Court will afford you that opportunity to do so.
"the defendant: Can I say something?
"the court: I would prefer you go through your attorney. Of course, I don’t want you to say something which you may harm yourself.
"the defendant: I realize what’s going on. On the charges they have me, I didn’t do but I am willing to get this over with and do the 4 to 12. I know the system and if I take it to trial, they will give me more time. I understand the Court procedures and I didn’t harm the man. I got shot and I can’t lift my wrist and if they want to give me 4 to 12, fine.
"the court: Well, this raises a lot of questions * * *
"the defendant: I know you are the Judge and he is the District Attorney and she is for me; I am competent.
"the court: And I feel you are competent.
"the defendant: There is no sense in costing more money and delay this agony. And I want her fired. I don’t want her to represent me. I am not any more insane than anybody in this room.
"the court: I am willing at this time on the basis of the reports to indicate the Defendant is competent but I don’t want to deprive him if you are asking for a hearing.
"the defendant: I am not asking for it; she is.
"mrs. lee: Let me state on the record I would like to indicate to the Court that the cases which I was reading last week indicate that it’s the Court’s duty to see that a person is competent before he enters a plea, and that if there is some question about it, the Court must be satisfied by a fair preponderance that he is competent before he allows the plea and I am requesting the Court on its own motion order the hearing.
"the court: I am not going to order a hearing. If you want a hearing, I will give you one. I am satisfied from the reports which have been filed here by the psychiatrists both at Mid-Hudson and at the Utica Psychiatric Center and from talking with the Defendant here in Court, that he understands what he is charged with. And he understands that he is in the Courtroom and that if he wishes to cooperate with you in having a trial, he may do so. However, he also has the right to waive a trial and to plead guilty if he wishes to do so * * *
"mrs. lee: I don’t like to be placed * * *
"the court: And counsel cannot deprive him of that right.”

The court later reiterated: "the court: On the basis of my having seen Mr. Gensler on several occasions and on the reports which have been received and from his statements here today, I have no reason not to believe that he does not understand the nature of the charges against him and that he is not able to help you or other counsel in assisting in his defense.”

The court granted defense counsel’s request for a two-day adjournment for client consultation. At the adjourned date, defense counsel, pursuant to her client’s instruction, joined in accepting the report from Mid-Hudson finding defendant fit to proceed. Prior to allocuting the defendant and accepting his plea, the Trial Judge reaffirmed his finding that, "after talking with the Defendant and after having examined the report from Mid-Hudson, [the court] is of the opinion that the Defendant does understand the nature of the charges and is competent to assist in his defense and the Court at this time accepts the report.” At no time did defense counsel refer to a due process right or to any Federal or State constitutional entitlement and did not address or even imply any constitutional infirmity on the face of or with respect to the application of the provisions of article 730 of the CPL.

The Appellate Division necessarily adopted the findings of competence in affirming the judgment of conviction. "In view of the information the court had before it, it did not abuse its discretion in proceeding without ordering a competency hearing, sua sponte, under CPL 730.30 (1). Before accepting defendant’s plea of guilty, the court considered the notification of fitness to proceed by the director of the Mid-Hudson Psychiatric Center, the accompanying report, the reports of other examining psychiatrists, and defendant’s manner and appearance at the time of the plea” (People v Gensler, 132 AD2d 941, 942).

New York’s meticulously detailed procedure governing this complex area of law and medicine is governed by CPL article 730. Following a determination of fitness to proceed (CPL 730.60 [2]), "the court may, on its own motion, conduct a hearing to determine the issue of capacity, and it must conduct a hearing upon motion therefore 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] [emphasis added]). CPL 730.60 makes no provision for an in-all-instances hearing under CPL 730.30 (4) based on a difference between a precommitment finding of incapacity and a postcommitment declaration of fitness because the circumstances of each vary by their very nature.

Although defendant’s argument before us 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. Yet, from that necessarily accepted premise, defendant’s argument leaps to a mandatory due process hearing requirement and the dissent endorses the leap.

Notably from a defense strategy standpoint, neither defendant nor his counsel affirmatively requested a hearing. Indeed, defendant insisted he did not want one and wished to conclude the criminal proceeding. Defense counsel, when held to the record before us, expressly refrained from asking for a hearing, instead urging the court to grant one only on the court’s own initiative, and then two days later expressly "accepted” the Mid-Hudson Psychiatric Center report finding defendant competent as a basis for the court’s judicial determination of competency.

The Trial Judge cannot be said to have erred under these circumstances and under this statutory scheme, predicated as we get the case on undisturbed findings supported in the record by expert evidentiary material and judicial observations. The undisturbed findings were based upon the most recent psychiatric report at the hospital and on the strategic stance of defense counsel before the trial court. This all culminated in the court’s decision that defendant was able to understand the nature of the charges against him and that he was capable of assisting counsel in his own defense. "The fact that defendant had a previous history of mental disturbance does not in itself prove that he was insane at the time of this judgment” (People v Boundy, 10 NY2d 518, 521; People v Flora, 306 NY 615).

The Trial Judge in such circumstances has, under the statute, the authority to adopt expert medical proof available to him, coupled with all other evidence and his own observations of the defendant, and then to come to a right and fair judicial determination of fitness to proceed. A Trial Judge should be upheld when he complies with the letter and spirit of a set of governing statutes. This is different from People v Armlin (37 NY2d 167) where the trial court deviated from the express statutory prescription of defendant’s rights (see also, People v Christopher, 65 NY2d 417, 421, 423). In Armlin, the court relevantly added 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” (id., at 171). Also, Silverstein v Henderson (706 F2d 361) restricted, as it should be, to its particular facts (see, Phillips v Lane, 787 F2d 208, 215; United States ex rel. Mireles v Greer, 736 F2d 1160, 1167), is not to the contrary and we reject the appellant’s invitation to read it and apply it more broadly.

The short answer to the dissent is that defendant’s extensive psychiatric record, coupled with the Trial Judge’s progressive personal observations of defendant, wholly fail to establish that a "sufficient doubt” existed which would, independently of the applicable statutes, require the trial court to sua sponte order a hearing on constitutional due process grounds (see, Drope v Missouri, 420 US 162, 180; Pate v Robinson, 383 US 375, 387). A recurrent finding in the psychiatric reports generated by the court-appointed psychiatrists, defendant’s retained psychiatrist, the institutional psychiatrist, and conceded by the defendant in his examinations, was that his periodic coping problems revolved around his failure to take his medication and that once on medication he made an excellent adjustment. It was on this entire history, record and pattern that he was found competent to be tried as of that time before the Trial Judge.

Even under our own precedents, there was no "reasonable ground” on the record for the Trial Judge to sua sponte order, a competency hearing under CPL article 730 at that time based on what was then before him (see, People v Armlin, 37 NY2d 167, 168, supra; People v Smyth, 3 NY2d 184, 187). To superimpose on the applicable Criminal Procedure Law statutes, at our level at this time, a constitutional due process sua sponte hearing requirement, based on nebulous, selective factors, themselves all weighed by the lower courts along with other preponderating and concrete evidence, would unnecessarily mandate a hearing in all such cases and neither Silverstein v Henderson (706 F2d 361, supra) nor Pate v Robinson (383 US 375, supra) so require or suggest.

The litany of cases relied upon by the dissent do not support a result different from the one we reach on this record. For example, in People v Bangert (22 NY2d 799), the trial court failed to seek the advice of psychiatric experts or otherwise make any inquiry into defendant’s competency to stand trial despite indications that should have alerted the court to the issue. The same is true of Pate v Robinson (383 US 375, supra) and Drope v Missouri (420 US 162, supra), and their requirement of a "hearing” must be understood in that context. Nothing in those cases suggests that a plenary hearing with cross-examination of psychiatric experts is the only way to satisfy due process. Here, the Trial Judge was alert to the potential problem, invoked the full range of procedures and protections contained in CPL article 730 and appropriately relied on the fruits of all those procedures before concluding that defendant was competent to stand trial without the necessity of a further hearing on the court’s own motion. People v Smyth (3 NY2d 184, supra) provides no support for defendant or the dissent, because in that case we rejected the defendant’s coram nobis application even though no hearing or inquiry of any kind had been conducted at the trial court. Most significantly, our decision in People v Armlin (37 NY2d 167, supra) turned on the failure of the Trial Judge to comply with CPL article 730; here, the Trial Judge meticulously complied with the array of statutory protections. Finally, People v Gonzalez (20 NY2d 289) is plainly distinguishable from the present case because the psychiatric evaluations of the defendant in that case were sufficiently equivocal to require further inquiry.

Moreover, we do not disagree with the dissent that due process requires, in some instances, that the trial court inquire into a defendant’s competence whether or not a request has been made for such an inquiry (People v Armlin, 37 NY2d 167, 171, supra). The statute so requires. Here, however, a detailed inquiry was made according to the dictates of CPL article 730 and the Judge had relevant and complete data before he made his factual and constitutionally satisfactory determination that the defendant was competent to proceed and that an evidentiary hearing on the point was not required on his own motion. Neither the record nor governing legal principle provide any basis for us to differ or interfere with the trial court’s conclusions in this respect. Despite the dissent’s mischaracterization of the court’s reasoning, the logical compatibility of our handling of the interrelated issues is plain.

Judicial override of a carefully drawn legislative syllabus in this kind of case on a constitutional due process basis is particularly inappropriate (see, e.g., People v Patterson, 39 NY2d 288, 305-307 [Breitel, Ch. J., concurring], and compare with People v Kohl, 72 NY2d 191). It would make purposeless the hearing request under the statute by either defense counsel or the prosecutor, a hearing which is mandated if so requested; and it would substitute the word "must” for "may” in the complementary statutory authorization dealing with judicial sua sponte orderings of such hearings. In the circumstances of this case, a constitutionally mandated sua sponte rule is undue process.

Once the issue of fitness was factually resolved in a constitutionally and procedurally valid framework (as noted, defendant has never challenged the statutes themselves), the right to waive trial and plead to the charge is controlled by the rationale of People v Reason (37 NY2d 351, 354). Just as with the right to waive the assistance of counsel and proceed pro se, "[Resolution of this issue * * * does not require a further psychiatric examination and yet another formal hearing to determine mental competency” (People v Reason, supra, at 355).

We agree with the Appellate Division that there was no abuse of discretion and we conclude that there was no constitutional deprivation in this case. Defendant’s other arguments have been reviewed and also lack merit.

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

Hancock, Jr.,

J. (dissenting). A defendant who lacks the capacity to understand the proceedings against him, to consult with counsel, or to assist in his own defense, may not be subjected to a trial. This prohibition is a basic rule of constitutional due process. If there is a reasonable ground to doubt that the defendant is competent to stand trial, the court must, sua sponte, order and conduct an evidentiary hearing to resolve that doubt. This mandate also is required by basic due process.

Here, the court accepted defendant’s guilty plea without holding a competency hearing, and defendant was convicted and sentenced despite overwhelming evidence that he was mentally disabled, including (1) the reports of three psychiatriste, one private and two court-appointed, that defendant was not competent to stand trial; (2) defendant’s long history of severe mental instability; (3) defendant’s intermittent commitment in psychiatric institutions during the six years prior to his arraignment; (4) defendant’s bizarre and highly irrational behavior at the time of the charged crimes; (5) the trial court’s own commitment of defendant to a psychiatric institution approximately one month prior to his guilty plea; (6) the strenuous arguments of defendant’s counsel that her client was incompetent and, following defendant’s threat to discharge counsel for raising the competency issue, her exhortations that the court direct an evidentiary hearing on its own motion; (7) the determination of the Social Security Administration that defendant was entitled to continued mental disability benefits based upon its own detailed psychiatric evaluation; and (8) the trial court’s and the defendant’s own recognition, at the time of sentencing, that defendant needed psychiatric treatment and the court’s own recommendation that he be committed to a state institution where he would receive such treatment.

In reaching the conclusion that defendant was competent to stand trial, the court had before it only one contrary report prepared at the Mid-Hudson Psychiatric Center a mere six days after defendant was committed there on the trial court’s own order. Without the benefit of any hospital records or summaries from defendant’s previous commitments, the Center’s psychiatric staff reached a "consensus” on defendant’s fitness to proceed, explicitly relying on defendant’s own assurances that he never suffered hallucinations and that he responded well to drug treatment.

There can be no doubt about the governing rule of law. Whenever, as here, the trial court has information which, objectively considered, creates a reasonable ground to doubt that the defendant is competent to stand trial, there must be an evidentiary hearing, as a matter of due process, to resolve that issue. This is not a matter for the court’s discretion; it is a constitutional requirement born of the need to protect a defendant’s right to a fair trial (Pate v Robinson, 383 US 375, 385; People v Gonzalez, 20 NY2d 289, 293).

Nor can there be any doubt that the courts below did not apply this rule and failed to address the necessary constitutional question: whether there was reasonable ground to doubt defendant’s competence to stand trial such that a hearing was mandated. The courts simply bypassed that question and addressed, instead, the ultimate one of whether defendant was, in fact, competent. Thus, the trial court, without holding a hearing at which evidence could be offered and questioned by the parties, proceeded to make the very determination for which such a hearing was constitutionally required, stating: "the court after talking with the Defendant and after having examined the report from Mid-Hudson, is of the opinion that the Defendant does understand the nature of the charges and is competent to assist in his defense and the Court at this time accepts the report” (emphasis added).

The Appellate Division, in affirming, concluded that the trial court had not abused its discretion in proceeding without a hearing and that it "was justified in its belief that defendant was competent at the time of the plea” (emphasis added). Like the trial court, the Appellate Division failed to recognize that the constitutional mandate for an evidentiary hearing is not a matter of discretion and that it is triggered, not when the court believes the defendant to be incompetent, but whenever there is reasonable ground to doubt his competency.

In affirming the order of the Appellate Division and holding that a competency hearing was not required in these circumstances, the majority of our court apparently relies on two separate and seemingly incompatible rationales. Neither withstands scrutiny. First, the majority argues that the trial court’s "undisturbed” "factual and constitutionally satisfactory determination that the defendant was competent to proceed” was "supported in the record”. But the issue, of course, is not whether there was an evidentiary basis for the trial court’s factual conclusion that defendant was competent. The sole issue is whether a hearing was required because there was reasonable basis to doubt the defendant’s competency. Second, the majority, apparently conceding that doubt as to competence and not competence itself is the critical legal question in the case, nevertheless concludes that all the information before the trial court "wholly fail[ed] to establish that a 'sufficient doubt’ existed which would, independently of the applicable statutes, require the trial court to sua sponte order a hearing on constitutional due process grounds”. (Majority opn, at 245.) Inasmuch as neither lower court addressed that issue, the majority necessarily reaches its factual conclusion as a matter of law. The evidence in the record clearly compels the opposite result.

In my view, the trial court’s refusal to order a competency hearing violated due process under both the Federal and New York Constitutions. The majority’s approval of that failure, on either ground it advances, cannot be reconciled with settled principles and, therefore, I respectfully dissent.

I

The prohibition against subjecting an incompetent person to a criminal prosecution is so fundamental that a trial court has a constitutional duty to order an evidentiary hearing, sua sponte if need be, to resolve any reasonable ground for doubting that the defendant is mentally fit to proceed. Contrary to the assertions and implication in the majority opinion, such a hearing can neither be waived by the defendant, obviated by the trial court’s prehearing opinion as to the defendant’s competence, nor dispensed with in the exercise of discretion. This is settled law, both Federal and State.

As the decisions of the Federal courts and our own court make clear, the trial court is not free to avoid a competency hearing by simply choosing between psychiatric reports or other conflicting indicia of defendant’s mental condition to reach a conclusion that, on balance, defendant appears to be competent. Where there is substantial evidence that the defendant is incompetent, or where the evidence is conflicting, there must be a hearing, at which the evidence can be more fully presented and challenged, before such a determination can properly be made. For this reason, the majority’s reliance on the trial court’s "undisturbed findings” that defendant was competent and on defendant’s failure to "affirmatively request a hearing” is misplaced. The major Federal and State precedents are in agreement that the determination must await a hearing whenever the defendant’s competency is reasonably in question.

In Pate v Robinson (supra), the Supreme Court held that the defendant’s right to a fair trial was violated by the trial court’s failure, sua sponte, to conduct a hearing where the evidence, provided by four laypersons, "revealed that [defendant] had a long history of disturbed behavior” (383 US, at 378, supra). Because "the conviction of an accused person while he is legally incompetent violates due process” (id., citing Bishop v United States, 350 US 961), a defendant is entitled to a hearing on the issue, the court said, whenever "sufficient doubt exists as to his present competence” (id., at 385, 387 [emphasis added]). Moreover, the court rejected the argument that the defendant "deliberately waived” the defense of competency to stand trial by failing to demand a hearing as the state statute required. "[I]t is contradictory to argue that a defendant may be incompetent”, the court explained, "and yet knowingly or intelligently 'waive’ his right to” a competency hearing (id., at 384). Finally, the court made plain that the "mental alertness and understanding displayed” by the defendant in his colloquies with the trial judge, even when considered with the stipulated opinion of a state expert that defendant was sane, constituted "no justification” for overlooking defendant’s history of irrational behavior and dispensing with a competency hearing (id., at 385-386 [emphasis added]).

In Drope v Missouri (420 US 162), the Supreme Court, while acknowledging that the indicia of defendant’s mental instability did not approximate that in Robinson, nevertheless held that the trial court failed to give "proper weight” to the information "suggesting incompetence” which came to light during the trial (id., at 179). The defendant’s "strange behavior”, including the attempted strangulation of his wife and an attempted suicide, "created a sufficient doubt” of the defendant’s competence to stand trial to trigger the constitutional requirement for further inquiry (id., at 180).

Noting that the prohibition against trying a defendant who lacks the capacity either to understand the proceedings, to consult with counsel, or to assist in his own defense is "fundamental to an adversary system of justice” (id., at 172), the court emphasized that trial judges must be alert to indications that a defendant may be unfit to proceed. "[EJvidence of a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant”, the court explained, and "even one of these factors standing alone may, in some circumstances, be sufficient” (id., at 180). Finally, although counsel in Drope "did not clearly suggest” that the defendant’s competence to stand trial was in question and, therefore, failed to give "appropriate assistance to the trial court in that regard”, the evidence was sufficient to "cause the trial court to doubt [defendant’s] competence” and, consequently, to order an inquiry (id., at 176-178).

The Supreme Court did not, in Robinson or Drope, adopt a specific standard for the nature or quantum of evidence necessary to mandate a competency procedure (see, Chenault v Stynchombe, 546 F2d 1191, 1192). The Federal Courts of Appeals, however, while employing somewhat varied terminology, have consistently required only that the information before the trial court reasonably create a doubt about the defendant’s present mental capacity (see, LaFave and Scott, Substantive Criminal Law § 4.4, at 472; see also, Federal citations, supra, at n 1). The basic test applied by all these courts was well stated in general terms by the Fifth Circuit in Lokos v Capps (625 F2d 1258, 1261): "The question is: Did the trial judge receive information which, objectively considered, should reasonably have raised a doubt about defendant’s competency and alerted him to the possibility that defendant could neither understand the proceedings nor appreciate their significance, nor rationally aid his attorney in his defense?” The test articulated by our court, more than 30 years ago, is to similar effect.

In People v Smyth (3 NY2d 184), decided several years prior to the Supreme Court’s decision in Robinson, we stated the rule which has since been consistently applied to determine when a competency hearing is required. "[I]t is the duty of the court” to conduct an inquiry, we explained, "[i]f 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 state of idiocy, imbecility or insanity that he is incapable of understanding the charge, indictment or proceedings or of making his defense” (id., at 187 [emphasis added]). Moreover, although we held that there was no entitlement to a competency hearing in the absence of any evidence that the defendant was insane at the time of his guilty plea or sentence, we noted that, where there was such evidence, the defendant would "not be barred [on appeal] by not having raised the issue” previously (id.).

In People v Gonzalez (20 NY2d 289, supra), we held that there was reasonable ground to doubt the defendant’s competency to stand trial even though the psychiatric evaluation, ordered by the trial court, found the defendant able to proceed and to defend himself adequately. Because of the "guarded” nature of the report, as well as the defendant’s curious insistence that he proceed without any assistance from assigned counsel, we concluded that the trial judge had a constitutional duty to order a hearing sua sponte (id., at 292-293). Likewise, in People v Bangert (22 NY2d 799), we held that a hearing should have been conducted — "whether or not counsel raised the issue” (id., at 800) — when the court received a presentence report which indicated that the defendant had a history of psychiatric problems and, thereby, created a genuine doubt of defendant’s competency to stand trial (see also, People v Sprague, 11 NY2d 951, revg 14 AD2d 901; People v Boundy, 10 NY2d 518).

Finally, in People v Armlin (37 NY2d 167), we remitted the case for a hearing to determine whether the defendant was competent at the time of sentencing because "reasonable ground existed to believe that the defendant was an incapacitated person”, again, notwithstanding the absence of any objection by defendant or his counsel to the trial court’s failure to do so in the first instance (id., at 168, 172 [emphasis added]). In Armlin, we took the opportunity to outline the "well-settled” law of this State: there is no need for a competency hearing if the evidence presents "no proper basis” for questioning the defendant’s sanity; where "reasonable ground” exists, however, the trial court must order a hearing sua sponte because the defendant himself may be incapable of understanding the need for one; and the issue may be raised for the first time on appeal (id., at 171-172). According, we concluded in that case that, despite the court-ordered psychiatric report which stated that thé defendant was competent and despite the defendant’s failure to raise the issue, the defendant’s history of mental instability in the military service and his treatment as a psychiatric outpatient shortly before the commencement of criminal proceedings were sufficient to mandate a competency hearing.

The rule from these cases is clear. The trial court has a constitutional duty to conduct a competency hearing whenever the defendant’s fitness to proceed is reasonably in question. It is, therefore, equally clear that there is no merit to the majority’s contention that the trial court’s decision to dispense with the competency hearing was a matter properly within its discretion and justified by that court determination, without a hearing, that defendant was competent. Likewise, for reasons which follow, there is no merit to the other contention advanced by the majority that a competency hearing was not required because there was no "sufficient doubt” or "reasonable ground” on the record.

II

Contrary to the majority’s holding that the evidence "wholly fail[s] to establish that a 'sufficient doubt’ existed” to require a hearing, the abundant evidence in the record, in my view, clearly demonstrates the requisite "reasonable ground to doubt” defendant’s competency to stand trial, as a matter of law. The evidence before the trial court was, in fact, considerably stronger than in our prior cases where we either reversed the conviction or remitted for competency proceedings. Defendant’s history of mental difficulties, the expert psychiatric evaluations, defendant’s demeanor at trial, and his counsel’s exhortations to the court — the very factors identified in Drope (supra) and Robinson (supra) — all raised substantial question about defendant’s competency to proceed and, thereby, mandated that the trial court direct a hearing, sua sponte, to resolve the issue.

Defendant had been committed to psychiatric institutions on many occasions, beginning in 1976 when he was 17 years old. At that time, he was admitted to Marcy Psychiatric Center for bizarre behavior, hallucinations and delusions. He was released 10 weeks thereafter, but was hospitalized on three subsequent occasions at the same institution: 8 weeks in 1977, 17 weeks in 1979, and 1 week in 1978. He was consistently diagnosed as schizophrenic and treated with antipsychotic drugs.

In 1981, during a visit to Florida, he was involuntarily admitted to the psychiatric unit of a hospital following an alleged auto theft. In the admission report defendant was, once again, described as bizarre, hallucinating and delusional; he was diagnosed as schizophrenic and treated with large doses of medication. Defendant was released after three weeks but, a few months later, in October 1981, was arrested again for auto theft, psychiatrically evaluated while in pretrial detention, and diagnosed as suffering chronic paranoid schizophrenia and antisocial personality. Defendant’s condition, the psychiatric report concluded, "precluded his ability to be functional for the next 12 months”.

Within that 12-month period, in July 1982, defendant returned to New York and, following several episodes of bizarre behavior, was again brought by his mother to Marcy Psychiatric Center. He was denied admission and two days later, the incident out of which the charges arose occurred. Hence, for at least six years prior to his arraignment, defendant suffered chronic severe psychiatric disorders. All of this information was presented to the trial court.

Moreover, the incident in question itself was revealing. Having walked a great distance, defendant arrived at the residence of a perfect stranger at 7:40 a.m. looking disheveled and unshaven. Without any indication that the owner’s automobile was for sale, defendant insisted that he be permitted to purchase it and instigated a physical altercation resulting in defendant’s taking the keys, starting the car, and attempting to run over the owner. At that point, the owner fired a pistol at defendant and shot him in the arm. Defendant swerved the car and drove into a ditch.

The court also had before it the reports of four psychiatrists, three of whom evaluated defendant as not being able to stand trial or to understand the proceedings against him. Dr. Weber, a private psychiatrist retained by defense counsel, studied defendant’s history, observed and interviewed him personally, and found defendant’s thinking to be bizarre and his understanding impaired. He diagnosed defendant as delusional, schizophrenic, and out of contact with reality. The two court-appointed psychiatrists, Dr. Rao and Dr. Kotwal, had initially reported that defendant was competent. Upon reexamination at the court’s direction, however, they found significant regression in defendant’s mental condition. Both concluded that defendant had difficulty concentrating, was unable to correlate his actions with their consequences, and lacked sufficient capacity to assist in his defense at trial. Both recommended that defendant be rehospitalized and be administered antipsychotic medications. On the basis of their reports, the trial court adjudged defendant an incapacitated person and ordered him committed for treatment.

The subsequent hospital report recommending defendant’s discharge was the only one to conclude that defendant was fit to proceed. A mere six days after defendant was committed to the Mid-Hudson Psychiatric Center by the court’s order, defendant was said to be fully alert, showing no signs of impaired judgment, thought abnormality or psychotic symptoms. The report was prepared without the benefit of any hospital records or summaries from defendant’s previous commitments, without an examination of defendant to determine specifically whether he was capable of testifying at his trial or assisting in his own defense, and with explicit reliance on defendant to ascertain his institutional history and response to drug therapy. Dr. Vandenbergh, a psychiatrist at the facility, diagnosed defendant as suffering from schizophrenia in remission, prescribed antipsychotic medications, and noted that "[t]he consensus was that he is fit to proceed”.

Especially in light of defendant’s lengthy prior history, Mid-Hudson’s very limited familiarity therewith, and the emphatic evaluations of the other three psychiatrists that defendant was incompetent to stand trial, the "consensus” referred to in Dr. Vandenbergh’s "Clinical Summary” should have been received with a fair amount of skepticism. Moreover, just prior to sentencing, the court received another expert evaluation that defendant suffered serious mental illness, the detailed psychiatric report of the Social Security Administration which concluded that defendant was entitled to continued benefits for mental disability. The report noted that defendant had been thoroughly examined by government-retained psychiatrists, the last occasion being as recently as three months prior to his arrest. At that time, defendant was diagnosed as a chronic schizophrenic suffering from pronounced thought disorder and marked looseness of association.

Finally, as in People v Gonzalez (20 NY2d 289, supra), defendant’s attitude and behavior during the proceedings, specifically his insistence on waiving a competency hearing and his utter rejection of counsel’s advice, should have alerted the court to the need to order the hearing sua sponte. On several occasions, counsel advised the court that she believed defendant was incapable of proceeding and requested that a hearing on the issue be conducted. Defendant angrily insisted otherwise and, at one point, attempted to discharge counsel. Thereafter, counsel requested the court to direct a hearing on its own motion, noting that she would make the motion herself if defendant permitted. The court, however, refused the request stating, "I am not going to order a hearing. If you want a hearing, I’ll give you one.” The court decided that defendant was competent and accepted his guilty plea.

At sentencing, counsel reminded the court that, "I have felt all along in this matter that [defendant] was not competent to proceed”, but that defendant "has not been willing to debate this issue”. As the Supreme Court noted in Drope, although courts need not "accept without question a lawyer’s representations concerning the competence of his client, an expressed doubt in that regard by one with 'the closest contact with the defendant’ is unquestionably a factor which should be considered” (420 US, at 177, n 13 [citations omitted], supra). In addition to everything else, counsel’s repeated expressions of reservation to the court should have made it clear that a hearing was necessary.

Indeed, the court itself did recognize that defendant was suffering from mental illness and that his competency was in question. At sentencing, the court advised defendant that it was "reluctant” to impose a sentence of incarceration; that "[i]f the Court had an alternative” it would send defendant "to a state institution” to receive "psychiatric care * * * [I]f I could do that, I would * * * However, the Court has no choice”. Indeed, in sentencing defendant, the court stated for the record that "defendant has need for psychiatric care and treatment”, and it recommended that defendant "be committed to an institution * * * which will make that type of treatment available”.

III

There can be no question that the evidence before the trial court, objectively considered, raised substantial doubt about defendant’s mental fitness to proceed. However that threshold level of doubt might be described — as a "bona fide doubt” (see, Pate v Robinson, supra; Zapata v Estelle, 588 F2d 1017), "substantial question” (see, United States v Hayes, 589 F2d 811, cert denied 444 US 847; Rhay v White, 385 F2d 883), or "reasonable ground” for doubt (see, People v Armlin, supra; Silverstein v Henderson, 706 F2d 361; Lokos v Capps, supra)— the threshold was clearly exceeded here and no exercise of discretion could relieve the trial court of the resulting constitutional mandate to conduct a competency hearing. Defendant’s history, the psychiatric evaluations, defendant’s demeanor at the proceedings, and his attorney’s exhortations made it plain that a hearing was required. Indeed, even standing alone, defendant’s record of chronic delusions, hallucinations and bizarre conduct over the previous seven years, or the reports of three psychiatric experts that defendant was suffering from such thought disorder and irrationality that he was incapable of understanding the proceedings against him, were more than sufficient, as a matter of law, to raise the level of doubt constitutionally mandating an evidentiary hearing. Nevertheless, the trial court failed not only to direct a hearing, but even to apply the due process standard for determining whether one was needed.

The court refused to order a hearing sua sponte and, instead, simply rendered the very determination for which a hearing is constitutionally required — i.e., that defendant was competent. Under a long line of Federal and State decisions, the issue of defendant’s competency could properly be resolved only after an evidentiary hearing; the trial court had no discretionary authority to resolve the issue without one. Neither court below seemed to recognize this point. As the Federal courts and our own court have repeatedly held, the test for when a competency hearing is mandated as a matter of constitutional due process is not whether, on balance, the court believes the defendant to be incompetent, but whether the information before the court, objectively considered, reasonably raises a doubt as to his competence. Undeniably, that was the situation here.

Lastly, the point pressed by the People and repeated with approval by the majority, that the issue was not raised at the trial court, is, at best, difficult to comprehend. To say the least, it is incongruous to suggest that the issue, whether the trial court should have directed a competency hearing on its own initiative, could only be raised by counsel’s request for the hearing. Moreover, as the decisions of this court, the Supreme Court, and the other Federal courts have made clear —the issue need not be raised at the trial court, it cannot be waived by the defendant, and it may be argued for the first time on appeal (see, e.g., People v Christopher, 65 NY2d 417 421; People v Armlin, supra, at 172; Pate v Robinson, supra, at 384; Silverstein v Henderson, supra, at 366).

Accordingly, I believe that defendant’s conviction should be reversed and the case remitted for a competency hearing prior to any further proceedings on the merits.

Chief Judge Wachtler and Judges Alexander and Titone concur with Judge Bellacosa; Judge Hancock, Jr., dissents and votes to reverse in a separate opinion in which Judges Simons and Kaye concur.

Order affirmed. 
      
      . (See, e.g., Drope v Missouri, 420 US 162, 176 ["sufficient doubt” of defendant’s competency to stand trial requires further inquiry; issue need "not clearly” be raised]; Pate v Robinson, 383 US 375, 384, 385 ["bona fide doubt”, "sufficient doubt”; it is "contradictory to argue” that a questionably competent defendant may "knowingly or intelligently” waive "right” to a competency hearing]; Silverstein v Henderson, 706 F2d 361, 369 [2d Cir], cert denied 464 US 864 ["reasonable ground” to question competency; defendant’s "failing to request” competency hearing does not relieve court of duty to order one sua sponte]; Lokos v Capps, 625 F2d 1258, 1261 [5th Cir] ["reasonably raised” doubt, objectively considered]; Reese v Wainwright, 600 F2d 1085 [5th Cir] ["bona fide doubt”; can be asserted at any time]; United States ex rel. Roth v Zelker, 455 F2d 1105 [2d Cir], cert denied 408 US 927 ["reasonable ground”; cannot be waived]; Rhay v White, 385 F2d 883, 886 [9th Cir] ["substantial question of possible doubt” imposed sua sponte duty]; compare with Maggio v Fulford, 462 US 111, 112 ["nothing appears in the record which suggests * * * a history of mental or emotional difficulties”]; and United States ex rel. Mireles v Greer, 736 F2d 1160 [7th Cir] [no "bona fide doubt” shown].)
     
      
      . (See, e.g., People v Armlin, 37 NY2d 167 ["reasonable ground” required hearing sua sponte; need not be raised or preserved and cannot be waived]; People v Bangert, 22 NY2d 799, 800 [history of mental illness "indicated by” the presentence report; "court was bound” to conduct hearing "whether or not counsel raised the issue”]; People v Gonzalez, 20 NY2d 289, 293 [court required "sua sponte to order a hearing” though defendant "insisted that he was quite sane”]; People v Boundy, 10 NY2d 518, 521 ["some proof that a defendant was in fact insane at the time of plea” required trial on coram nobis application]; People v Smyth, 3 NY2d 184, 187 ["reasonable ground” to question competency triggers "duty of the court to direct” an inquiry]; People v Arnold, 113 AD2d 101, 103 [evidence "objectively considered, should reasonably have raised a doubt”; competency hearing required sua sponte]; see also, People v Christopher, 65 NY2d 417, 424 ["defendant whose capacity is first put in issue” does not have "the capacity to waive a hearing”]; People v Jordan, 35 NY2d 577 [final psychiatric evaluation that defendant was competent did not justify trial court’s posthearing determination of competency in light of long history of serious mental incapacity].)
     
      
      . As defendant himself described the incident to the sentencing court: "Well, I did have no intent of hurting him when I originally was walking down the street. I was just tired. I walked for miles. I walked to Rochester and back, just came back from Florida, no money. I was thrown out of my house by my stepfather. I walked all night; and as I came through my feet were all blistered up, and I was tired of walking, and I just really didn’t care at the time what happened. I just got to go in and break into his house and maybe get some money to get out of this area. Well, then, I walked up to the door and then as the man, you know, asked the man for his keys, and then he reached for the 45, and that was the only time I pushed him.”
     
      
      . For example, when the court accepted the conclusion of the Mid-Hudson report, counsel argued:
      "[T]hey only kept him there for a period of one week ** * * I feel there is definitely a question here as to his capacity to proceed. And I think that before we proceed, that we should have a full hearing in this matter * * * I would request a hearing date be set and if the Court determines he is competent to enter a plea, I will allow him to do so. * * *
      "[T]he cases which I was reading last week indicate that it’s the Court’s duty to see that a person is competent before he enters a plea, and that if there is some question about it, the Court must be satisfied by a fair preponderance that he is competent before he allows the plea and I am requesting the Court on its own motion order the hearing. * * *
      "And how the Court can say I am satisfied based upon the reports from Mid-Hudson, who have never seen his psychiatrists’ records, because they never asked for them and I have them here, from the diiferent hospitals he was in, and how they can say, well, we disagree with the psychiatrists and therefore we will send him back and that’s sufficient for you to be satisfied he is a competent person, I don’t see how you can say that. * * *
      "Your Honor, let me state I have talked with Mr. Gensler about this at length and if it was up to me, I would not accept the report [emphasis added].”
     
      
      . Although defendant had insisted that his counsel not press the issue of his competency, his own remarks at sentencing, like those of the court itself, reveal the pervasiveness of the doubt about his competency to stand trial and the consequent necessity for a hearing on the issue: "I think I was temporarily insane at the time, not something I normally would do. Never had no criminal grounds before. Never arrested in this State; graduated high school, had four, five different jobs, and never hurt anyone. And I think that going to prison would not help me because I have bad nerves. I have had a breakdown and so if I could get sentenced to CNY in Marcy [Psychiatric Center], I think that would be better.”
     