The People of the State of New York, Respondent, v. James E. Robinson, Also Known as Michael Evans, Appellant

—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.