Appeal from an order of the Justice Court of the Town of Goshen, Orange County (Thomas J. Cione, J.), entered October 12, 2006. The order dismissed the accusatory instrument.

Order reversed on the law, accusatory instrument reinstated and matter remanded for all further proceedings.

In January 2005, defendant, an inpatient at the Mid-Hudson Forensic Psychiatric Facility, was charged in a felony complaint with assault in the second degree as a result of his hitting a guard at the facility. In June 2005, the People moved to reduce the charge to assault in the third degree, the motion was granted and defendant pleaded not guilty to the reduced charge. The matter was adjourned for a CPL article 730 evaluation of defendant. In reports dated July 8, 2005, both psychiatric examiners stated that it was their "opinion that [defendant] does not as a result of mental disease or defect lack capacity to understand the proceedings against him or to assist in his defense." In January 2006, a competency hearing was held after which the trial court found defendant competent to stand trial (see CPL 730.30 [2]). In October 2006, on the date the trial was scheduled to begin, the court revisited the issue of defendant's competency, found defendant to be incompetent, and dismissed the accusatory instrument. The instant appeal by the People ensued.

"[O]nce the procedures of CPL article 730 have been invoked by the court, those procedures must be strictly followed in order to ensure that the defendant receives a full and impartial determination of his mental capacity" (People v Pena, 251 AD2d 26, 39 [1998]; see also People v Armlin, 37 NY2d 167, 172 [1975]; People v Rivers, 44 AD3d 391 [2007]). Inasmuch as each of the psychiatric examiners was of the opinion that defendant was not incapacitated, the hearing that was held was conducted pursuant to CPL 730.30 (2). CPL 730.30 (2) provides that if, following the hearing, the court is not satisfied that the defendant is not an [*2]incapacitated person, it "must issue a further order of examination directing that the defendant be examined by different psychiatric examiners designated by the director" (emphasis added). The trial court herein erred when it dismissed the accusatory instrument without issuing a further order of examination. We note that the provisions of CPL 730.40 (2) do not apply in the case at bar since no hearing was held pursuant to CPL 730.30 (3) or (4) (see CPL 730.40 [1]).

Accordingly, the accusatory instrument is reinstated, and the matter is remanded to the trial court for all further proceedings. If the court is still of the opinion that defendant is an incapacitated person, it shall issue a further order of examination directing that the defendant be examined by different psychiatric examiners designated by the director (see CPL 730.30 [2])

Rudolph, P.J., McCabe and Scheinkman, JJ., concur.
Decision Date: April 21, 2008