Opinion
January 23, 1987
Appeal from the Erie County Court, Dillon, J.
Present — Doerr, J.P., Boomer, Green, Pine and Balio, JJ.
Judgment unanimously reversed, on the law, and new trial granted. Memorandum: In a prior appeal, because the trial court did not order a psychiatric examination of defendant to determine his competency to stand trial (see, CPL 730.30), we reserved decision and remitted the matter for a reconstruction hearing (People v. Arnold, 113 A.D.2d 101, 107-108). The hearing court has concluded that there was insufficient evidence developed to reconstruct defendant's mental capacity at the time of trial. This decision is supported by the record because competency cannot be reconstructed if, as here, no psychiatrist can testify that defendant was competent at the time of trial (see, People v Peterson, 40 N.Y.2d 1014, 1015). Since reconstruction of defendant's mental capacity to stand trial is not possible in this case, we reverse the judgment and grant defendant a new trial.