author: Titone, J.

text:
    In the Matter of George Gross, as Commissioner of the New York City Human Resources Administration, et al., Respondents, v Cesar Perales, as Commissioner of the New York State Department of Social Services, et al., Appellants.
    Argued May 25, 1988;
    decided July 6, 1988

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Christopher Keith Hall, O. Peter Sherwood and Lawrence S. Kahn of counsel), for appellants.
    I. The Supreme Court lacked jurisdiction to award monetary relief against the State. (Morell v Balasubramanian, 70 NY2d 297; Schaffer v Evans, 57 NY2d 992; Sinhogar v Parry, 53 NY2d 424; Psaty v Duryea, 306 NY 413; Automated Ticket Sys. v Quinn, 90 AD2d 738, 58 NY2d 949; Matter of Bock v Cooperman, 89 AD2d 539, 57 NY2d 949, 59 NY2d 776; Samuel Adler, Inc. v Noyes, 285 NY 34; IMFC Professional Servs. v State of New York, 59 AD2d 1047; St. Paul Fire & Mar. Ins. Co. v State of New York, 99 Misc 2d 140; Green v

      Mansour, 474 US 64.) II. The State Commissioner had authority to recoup because the social services district failed to comply with State regulatory time limits.

      Peter L. Zimroth, Corporation Counsel (Kristin M. Helmers and Stephen J. McGrath of counsel), for respondents.
    I. Pursuant to CPLR article 78, the Supreme Court has jurisdiction of a proceeding in the nature of mandamus to review the determination of a State official imposing fiscal sanctions. Upon a finding that said determination was arbitrary and capricious or rendered without authority of law, CPLR 7806. empowers the Supreme Court to nullify the penalty and to order the moneys returned to the prevailing party as restitution. (Matter of Barr v Department of Consumer Affairs, 70 NY2d 821; Matter of Colon v Blum, 81 AD2d 637; Sidoti v State of New York, 115 AD2d 202; People v Abbott Manor Nursing Home, 70 AD2d 434, 52 NY2d 766; Lublin v State of New York, 135 Misc 2d 419; Burgos v State of New York, 40 Misc 2d 971; State Div. of Human Rights [Geraci] v New York State Dept. of Correctional Servs., 90 AD2d 51; People ex rel. Forest Commn. v Campbell, 156 NY 64; People ex rel. Vickerman v Contracting Bd., 46 Barb 254; Beth Rifka, Inc. v State of New York, 114 AD2d 560.) II. The New York State Department of Social Services acted arbitrarily, capriciously, and without statutory authority in imposing a $20 million administrative penalty on the City of New York on the basis of an audit which employed an unreasonable and nonstatutory "4 or 14 day” standard to measure the timeliness of public assistance case closings and grant reductions. (Matter of Pell v Board of Educ., 34 NY2d 222; State of Maryland v Mathews, 415 F Supp 1206; Matter of Meadowbrook Nursing Home v Axelrod, 116 AD2d 837; Matter of Connell v Regan, 114 AD2d 273; Matter of Sturman v Ingraham, 52 AD2d 882; Matter of Regan v D’Elia, 82 AD2d 890; Matter of Sisters of Charity Hosp. v Axelrod, 98 AD2d 979.)
   OPINION OF THE COURT

Titone, J.

The primary issue presented on this appeal is whether a municipality may challenge a determination by a State administrative agency, and at the same time recover wrongfully withheld money from the State, within the context of an article 78 proceeding in Supreme Court, or whether such a lawsuit must be commenced in whole or in part in the Court of Claims. We hold that where the thrust of the lawsuit is the review of an adverse State agency determination, with the monetary relief incidental, Supreme Court may entertain the entire case under CPLR article 78.

Petitioner, the New York City Human Resources Administration (HRA), provides public assistance benefits to some 860,000 New Yorkers under the Aid to Dependent Children (ADC) and Home Relief (HR) programs. Although the cost of these social services programs is initially borne by the City of New York (City), New York State reimburses the City for 50% of all ADC and HR benefits paid to eligible recipients, after deducting any applicable Federal funds received (see, Social Services Law § 153 [1] [d]). Eligibility under these programs is subject to continual review, modification and termination. Generally, however, before the Department of Social Services may terminate or reduce benefits paid under these programs, it must provide the recipient with notice of the proposed eligibility determination (see, 18 NYCRR 358.8, 358.9).

From 1981 to 1983, respondent, the New York State Department of Social Services (NYSDSS), audited the City for compliance with the regulations governing the timely termination or reduction of benefits to recipients for the five-year period 1976 to 1980 (see, Social Services Law §34 [5] [a]). Under 18 NYCRR 358.8 (d) (1) and 351.22 (e), if the local welfare agency receives readily verifiable proof that a recipient’s eligibility status has changed (such as a death certificate), no prior notice need be given to the recipient before taking action. In such cases, the HRA must "immediately initiate action” to terminate or reduce payments (see, 18 NYCRR 351.22 [e]). In all other cases, the HRA must provide the recipient with a minimum of 10 days’ notice that payments will be reduced or terminated (see, 18 NYCRR 358.8, 358.9).

In conducting its audit, however, the NYSDSS also utilized unpromulgated internal audit guidelines, which provided that in cases requiring no notice to the recipient, benefits were to be reduced or terminated within four days. In all other cases, while the statute required only that the recipient be given 10 days’ notice, the audit standard required that action be taken within 14 days. In effect, these audit standards imposed on the City the obligation to take appropriate action on a case within four days of the minimum required notice period. Using a statistical sampling of cases closed and grants reduced during the audit period, the State determined that the City failed to meet the audit criteria in some 62% of all cases. As a result, the State withheld $20 million in reimbursements as an administrative penalty.

The City then commenced this article 78 proceeding in Supreme Court, contending that the State’s determination was arbitrary and capricious, since it was based solely on these unpromulgated auditing standards. The petition also alleged that the State wrongfully withheld $20 million in reimbursements based on this improper audit and sought to annul the administrative penalty. The State contended that Supreme Court lacked subject matter jurisdiction. Supreme Court rejected the State’s argument, found that the NYSDSS acted arbitrarily and capriciously, and granted the petition in its entirety. The Appellate Division modified by vacating so much of the judgment as awarded interest on the $20 million in reimbursements. We granted leave to appeal and now affirm.

On this appeal, the State characterizes the City’s claim as one for money damages and contends that redress must be sought in the Court of Claims. Alternatively, relying on CPLR 7806, the State takes the position that while an article 78 proceeding may be employed to review whether the audit was conducted in an arbitrary and capricious manner, in order for the City to recover the withheld reimbursements, it must commence a second lawsuit in the Court of Claims. Finally, on the merits, the State argues that its use of the internal audit standards was reasonable.

Under CPLR 7803 (3), Supreme Court has subject matter jurisdiction over a proceeding challenging an administrative agency determination on the ground that it "was arbitrary and capricious” (see also, CPLR 7804 [b]). However, "[a]ny restitution or damages granted to the petitioner must be incidental to the primary relief sought by the petitioner, and must be such as he might otherwise recover on the same set of facts in a separate action or proceeding suable in the supreme court against the same body or officer in its or his official capacity” (CPLR 7806). On the other hand, where a party seeks only money damages against the State, the proper forum for such an action is the Court of Claims (NY Const, art VI, § 9; Court of Claims Act §§ 8, 9; see, Cass v State of New York, 58 NY2d 460, 463; Schaffer v Evans, 57 NY2d 992, affg 86 AD2d 708; see also, Morell v Balasubramanian, 70 NY2d 297, 300-302; Sinhogar v Parry, 53 NY2d 424, 431; Psaty v Duryea, 306 NY 413, 416-417).

We cannot agree with the State that the City’s claim is essentially one for money damages. Whether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim, is dependent upon the facts and issues presented in a particular case (see, Pauk v Board of Trustees, 68 NY2d 702, 705; Schaffer v Evans, supra; Matter of Schwab v Bowen, 41 NY2d 907). Here, the threshold inquiry was whether the State acted arbitrarily and capriciously because its determination was premised solely on the City’s failure to comply with the NYSDSS’ internal audit criteria. Consequently, the City initially sought judicial review of a determination made by a State administrative agency, a customary type of article 78 proceeding over which the Supreme Court unquestionably has subject matter jurisdiction (see, Pauk v Board of Trustees, supra; Health Care Plan v Bahou, 61 NY2d 814; Solnick v Whalen, 49 NY2d 224, 230; cf., Automated Ticket Sys. v Quinn, 58 NY2d 949, affg 90 AD2d 738; Breen v Mortgage Commn., 285 NY 425). For this reason, the cases relied on by the State are not applicable, since they involve contract and tort actions seeking damages from the State, or eminent domain proceedings over which the Court of Claims clearly has jurisdiction (see, e.g., EDPL 304 [E]; Morell v Balasubramanian, supra; Sinhogar v Parry, supra; Psaty v Duryea, supra).

Only if it was found that the NYSDSS acted arbitrarily and capriciously could its determination, and the concomitant administrative penalty, be annulled. This accomplished, the City was then entitled to the withheld reimbursements under the Social Services Law. This is true whether or not the court directed payment, since upon nullification of the underlying administrative action, the State had a statutory duty to reimburse the City. Consequently, in ordering payment to the City, the court merely directed the State to fulfill its statutory duty (see, Social Services Law § 153 [1]; Matter of Economic Opportunity Commn. v Shaffer, 114 AD2d 628, 630). Had the City only petitioned for judicial review of the audit procedures employed and annulment of the penalty, without additionally requesting the court to direct payment, the State would still have been obligated to reimburse the City. Thus, the demand for monetary relief was unquestionably incidental to the facts and issues presented. The primary focus of this proceeding was a determination of the reasonableness of NYSDSS’ audit.

CPLR 7806 also requires that the restitution or damages awarded "must be such as [petitioner] might otherwise recover on the same set of facts in a separate action or proceeding suable in the supreme court”. The construction of the provision has generated some confusion. One commentator has suggested a similar interpretation to that advanced by the State, stating: "It may indeed be that the adoption of this measure has effectively precluded damages as an Article 78 incident whenever state action is complained of, and hence state money is sought, remitting the petitioner to a plenary Court of Claims suit for the money whatever the 'primary’ relief he has been able to get from Article 78. If that is so, incidental damages in Article 78 would be permissible only against municipal and like respondents, since they would be subject to plenary suit in the Supreme Court.” (Siegel, NY Prac § 570, at 801.) Under this construction, the City would be required to commence a second lawsuit in the Court of Claims in order to recover the reimbursements.

The statutory language, however, does not mandate such a restrictive reading of CPLR 7806, and in enacting the statute, the Legislature never intended such an extreme result (see generally, Bill Jacket, L 1962, ch 318). Incidental monetary relief has long been permitted in article 78 proceedings commenced in Supreme Court in a variety of administrative contexts (see, e.g., Matter of Gunn v Blum, 48 NY2d 58; Matter of Pearlstein v Axelrod, 103 AD2d 921; State Div. of Human Rights [Geraci] v New York State Dept. of Correctional Servs., 90 AD2d 51). Moreover, the legislative history of CPLR 7806 indicates that it was intended to effectuate only a minor change in the law. The statute was adopted for the sole purpose of immunizing the State from paying consequential damages in cases where a State agency improperly denied, revoked or suspended a petitioner’s license (Bill Jacket, L 1962, ch 318, Sponsor’s Mem to Governor’s counsel; Mem of Judicial Conference). There is absolutely no indication that the Legislature intended to otherwise limit the power of the Supreme Court to award incidental monetary damages in an article 78 proceeding. Requiring future petitioners seeking incidental monetary relief to commence a separate action in the Court of Claims after prevailing in an article 78 in Supreme Court would work a profound procedural change in the manner in which our judiciary reviews administrative determinations. Adopting the State’s argument would unnecessarily add to the cost of litigation and impose an undue burden on the litigant, as well as the courts. A jurisdictional realignment of this magnitude is best left to the Legislature.

Finally, we cannot agree with the State that its audit was conducted under reasonable standards. Social Services Law § 20 (3) (e) empowers the State to withhold reimbursements only if the City fails "to comply with law, rules or regulations of the [NYSDSS] relating to public assistance and care or the administration thereof’. We conclude that the City was in compliance with all applicable statutes and regulations. The administrative penalty was assessed solely because the City failed to comply with unpromulgated, internal audit standards. Inasmuch as the City had no legal duty to comply with the rigid requirements these audit standards imposed, it cannot be said that the Appellate Division erred in finding that the State acted arbitrarily and capriciously.

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

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs.


source: Caselaw Access Project

author: Bellacosa, J. Hancock, Jr.,

license: Public Domain

text:
    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.”


author: Hancock, Jr., J.

text:
    In the Matter of Dinanath S. Halyalkar, Appellant, v Board of Regents of State of New York et al., Respondents.
    Argued May 26, 1988;
    decided July 7, 1988

      POINTS OF COUNSEL

      Philip M. Gassel for appellant.
    The doctrine of collateral estoppel was erroneously applied to the prior New Jersey consent order now asserted against appellant. (Ryan v New York Tel. Co., 62 NY2d 494; People v Plevy, 52 NY2d 58; Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65; Vavolizza v Krieger, 33 NY2d 351; Matter of Bach, 81 Misc 2d 479, 53 AD2d 612; Gramatan Home Investors Corp. v Lopez, 46 NY2d 481.)

      Robert Abrams, Attorney-General (Judith R. Gordon, O. Peter Sherwood, Harvey M. Berman and Anne S. Haskell of counsel), for respondents.
    Respondents properly gave collateral estoppel effect to petitioner’s guilty plea in New Jersey in finding him guilty of professional misconduct in New York. (Ryan v New York Tel. Co., 62 NY2d 494; Matter of Fahey v Axelrod, 105 AD2d 537; Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65; Matter of Rubin v Board of Regents, 101 AD2d 970; Van Wagner Adv. Corp. v S & M Enters., 67 NY2d 186; Matter of Rivera v Smith, 63 NY2d 501; Tumolillo v Tumolillo, 51 NY2d 790; Matter of Guimarales [New York City

      Bd. of Educ. — Roberts], 68 NY2d 989; Kaufman v Lilly Co., 65 NY2d 449; Gilberg v Barbieri, 53 NY2d 285.)
   OPINION OF THE COURT

Hancock, Jr., J.

Petitioner, a physician, seeks to annul a determination of the Board of Regents finding him guilty of professional misconduct in willfully and knowingly filing false medical examination reports. The question presented in his appeal is whether the Board of Regents properly invoked the doctrine of collateral estoppel, giving conclusive effect to a consent order in an earlier administrative proceeding before the New Jersey Board of Medical Examiners in which petitioner entered a plea of guilty to similar misconduct and agreed to a three-month suspension. The Appellate Division, where the proceeding was commenced (Education Law § 6510 [5]) held that collateral estoppel had been correctly applied and dismissed the petition. We granted leave to appeal and now reverse.

I

Petitioner, a native of India and educated and trained as a physician in that country, immigrated to the United States in 1975. Thereafter, he completed his residency and became licensed to practice medicine in New Jersey, New York and Pennsylvania. On 10 to 12 separate occasions from 1976 to 1979, at the behest of Upen Patel, a salesman for the New York Life Insurance Company and also an immigrant from India, petitioner performed a physical examination for one of Patel’s Indian clients. Patel had befriended petitioner on his arrival in this country and, with his better command of the language and familiarity with American customs, had been helpful to him in various routine personal and business matters. Patel was present at the examinations and assisted petitioner in filling out the forms for the insurance company. Petitioner has consistently maintained that he never knowingly signed a form for a person whom he had not examined.

On June 13, 1979, at the request of the New Jersey Board of Medical Examiners, petitioner voluntarily appeared at an "informal” hearing in connection with a complaint that he had submitted insurance forms for persons never examined. He was not represented by counsel and was unaware that he was to be questioned under oath. At the hearing, petitioner testified that he had performed the examinations at the request of and as a favor for his friend, Patel, who assisted him in completing the forms. Some of the forms produced at the hearing bore petitioner’s signature but contained information filled in by someone else. It was possible, he conceded, that Patel, without his knowledge, had put before him for signature either blank forms or forms filled out for persons whom he had not examined.

On July 25, 1979 petitioner was served with a formal administrative complaint by the New Jersey Board of Medical Examiners charging him with willfully and knowingly filing nine false certifications for medical examinations not performed. Attached to the complaint was a "Notice of Hearing and Notice to Enter Plea” advising petitioner, among other things, that he had 35 days within which to enter a plea to the charges, that he could "enter a plea by mail”, and that a "plea of guilty or nonvult [would] indicate that [he did] not wish to contest the charges stated, thus rendering unnecessary any hearing in [the] proceeding”. On his lawyer’s advice, he decided not to contest the charges but to accept the penalty provisions which his lawyer had negotiated as a plea bargain. The consent order — which petitioner signed in his lawyer’s office and before him as witness — contained no adjudication or other determination by the Board of Medical Examiners finding petitioner guilty of the misconduct charged in the complaint. The only reference to petitioner’s guilt was the recital of the guilty plea and his agreement to waive a formal hearing. Under the order, petitioner received three months’ active suspension of his license, a direction to make restitution to the insurance company in the amount of $180 for the examination fees it paid to petitioner, and a fine of $2,500.

In February 1981, administrative proceedings were commenced in Pennsylvania based on the suspension of petitioner’s license in New Jersey. Before the Pennsylvania Hearing Examiner, petitioner testified that he had performed all of the medical examinations requested of him by his "good, trusted friend” Patel, and that he had no reason to believe that he was signing anything but the forms of the persons he had examined. He explained that he had agreed to the New Jersey consent order as a plea bargain in view of the expense that would be involved in contesting the charges, the short period of the actual suspension, and his attorney’s promise that his agreement would not result in any punishment beyond what was stipulated in the order. The Hearing Examiner found that petitioner’s misfeasance did "not rise to the level of gross and willful misconduct”. Petitioner was given a private letter of reprimand specifying that it had "no effect on [his] competency to practice medicine in the Commonwealth of Pennsylvania” and that it had been "issued because of a technical violation of the Medical Practice Act”.

On August 28, 1984, approximately five years after the New Jersey proceedings, administrative action arising out of the same matter was commenced against petitioner in New York. The Office of Professional Medical Conduct, relying solely on the New Jersey consent order, maintained that the New York charges should be deemed proven under the doctrine of collateral estoppel. The Hearing Committee (see, Public Health Law § 230 [10]), however, found that petitioner had not had "a full and fair opportunity to be heard and to defend himself’ against the New Jersey charges "due to inadequate advice given to him by his then attorney”. For that reason, the Committee rejected collateral estoppel. Characterizing petitioner’s testimony as "credible and worthy of belief’, it made specific findings that he had not willfully or knowingly submitted false insurance forms and that he had actually performed several of the examinations which he was charged with not performing. The Committee recommended that the charges be dismissed.

The Board of Regents, nevertheless, accepted the contrary recommendations of the Commissioner of Health (see, Public Health Law § 230 [10] [i]) and of its own Review Committee (see, Education Law § 6510 [4] [a], [b]), concluding that collateral estoppel should be applied. Petitioner was found guilty of willfully and knowingly filing false medical reports and, by order of the Commissioner of Education dated April 2, 1986, he received a one-year suspension of his license, stayed subject to the terms of his probation.

In its decision dismissing the petition, the Appellate Division held that its review of the records in the New Jersey, Pennsylvania and New York proceedings showed that no evidence had been "developed at any of the hearings to establish that petitioner had the knowledge or intent necessary to sustain the charges against him” (127 AD2d 346, 349). The court, however, confirmed the determination of professional misconduct on the ground that the Board of Regents and the Commissioner of Education had properly applied the doctrine of collateral estoppel. For reasons which follow, we disagree.

II

The Appellate Division, in deciding that preclusive effect was properly given to the New Jersey consent order, held under established rules that the two basic requirements for the application of collateral estoppel had been satisfied: (1) the identicality of an issue necessarily decided in the prior action with one which is decisive of the present action, and (2) that there was a full and fair opportunity to contest the issue in the prior action (see, Gilberg v Barbieri, 53 NY2d 285, 291; Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65, 71). The court determined that the Office of Professional Medical Conduct had met its burden in showing identicality of the issue and that petitioner had failed to meet his burden of showing that he lacked a full and fair opportunity to contest it in the prior proceeding (see, Kaufman v Lilly & Co., 65 NY2d 449, 456; Ryan v New York Tel. Co., 62 NY2d 494, 501).

Because we conclude that the first requirement — identicality of the issue — was not satisfied, we address only that point. Preliminarily, we observe that the basis for petitioner’s objection to giving preclusive effect to the New Jersey consent order is not that it was entered in a proceeding brought before an administrative tribunal. He does not contend that the New Jersey Board of Medical Examiners acted outside its authority (see, NJ Statutes Annot § 45:9-1 et seq.; § 45:1-14 et seq.; § 45:1-21 [b]; § 45:9-6) or that the New Jersey proceeding was not quasi-judicial in nature and governed by "procedures substantially similar to those used in a court of law” (Ryan v New York Tel. Co., supra, at 499; see, Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147, 152-153; Clemens v Apple, 65 NY2d 746; Carlisle, Getting a Full Bite of the Apple: When Should the Doctrine of Issue Preclusion Make an Administrative or Arbitral Determination Binding in a Court of Law?, 55 Fordham L Rev 63). Petitioner’s sole objection is that collateral estoppel should not apply to this consent order.

The Appellate Division’s decision that the consent order meets the identicality of issue requirement was based on its legal analysis of the New Jersey charges and their similarity to the corresponding charges in New York. Noting that in each of the nine counts in New Jersey petitioner was alleged to have engaged in the proscribed conduct “willfully and knowingly”, the court held that by pleading guilty to each count he “essentially admitted to knowingly and willfully submitting false insurance forms.” Because the knowing and willful submission of the false forms was the basis of the charges in New York, the court reasoned, the guilty plea was sufficient to establish "an identity of issue between the New York and New Jersey proceedings such that the first prong of the test for applying collateral estoppel ha[d] been satisfied (see, Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65, 71)” (127 AD2d 346, 351).

Petitioner does not dispute that the issue as framed by the charges in New Jersey was essentially indistinguishable from the issue in the New York proceeding. He argues, however, that this is not sufficient to satisfy the identicality requirement and that it must also appear that the issue was actually litigated and resolved in the prior proceeding. Because the New Jersey suspension was based solely on his plea of guilty in the consent order and without any litigation of the issue of his knowing and willful misconduct or any formal adjudication of his guilt aside from the plea, he maintains that the identicality requirement under Schwartz was not satisfied. Petitioner’s argument finds support in our decision in Kaufman v Lilly & Co. (supra) where, citing Restatement (Second) of Judgments § 27, comments d and e, we recognized the rule that "[i]f the issue has not been litigated, there is no identity of issues between the present action and the prior determination” (65 NY2d 449, 456, supra; see, 5 Weinstein-Korn-Miller, NY Civ Prac ¶¶ 5011.25, 5011.26; Rosenberg, Collateral Estoppel in New York, 44 St. John’s L Rev 173-181).

In Kaufman v Lilly & Co. (supra), a civil action, we declined to apply issue preclusion based upon a liability determination made under the "concerted action” theory against the defendant drug manufacturer in a prior action, because the applicability of the "concerted action” theory had not been challenged and, thus, put in issue in the prior action. We held: "An issue is not actually litigated if, for example, there has been a default, a confession of liability, a failure to place a matter in issue by proper pleading or even because of a stipulation (see, Restatement [Second] of Judgments § 27, comments d, e, at 255-257; see also, Gilberg v Barbieri, 53 NY2d 285, supra). Because Lilly did not challenge the appropriateness of the concerted action theory in Bichler, it was not actually litigated and there is no identity between that issue in Bichler and here.” (Kaufman v Lilly & Co., 65 NY2d 449, 456-457 [emphasis added].)

For a question to have been actually litigated so as to satisfy the identicality requirement under Schwartz, it must have been properly raised by the pleadings or otherwise placed in issue and actually determined in the prior proceeding. The rule is founded on considerations of fairness and recognizes that if preclusive effect were given to issues not truly adjudicated the result would be to discourage compromises and to accord them consequences which the parties neither intended nor foresaw (see, Restatement [Second] of Judgments § 27, comment d; United States v International Bldg. Co., 345 US 502, 505; Tutt v Doby, 459 F2d 1195, 1199; James, Consent Judgments as Collateral Estoppel, 108 U Pa L Rev 173-181; Rosenberg, op. cit, at 173). Application of the rule seems particularly appropriate in the circumstances here, where the judgment sought to be given preclusive effect is a consent order in an administrative proceeding which states, without elaboration, that the party being disciplined entered a plea of guilty. By signing the consent order in response to the "Notice to Enter Plea”, the petitioner simply indicated that he did "not wish to contest the charges stated, thus rendering unnecessary any hearing” and that he wanted to accept the minimal sanction that had been negotiated by counsel. Accordingly, the issue in question was neither argued, conceded nor even addressed in the New Jersey proceeding. It cannot fairly be said, therefore, that the issue was litigated or resolved in that prior action.

Respondents contend, however, that the rationale of Kaufman v Lilly & Co. (supra) is inapposite. Relying on decisions where preclusive effect has been given to guilty pleas in criminal actions (see, e.g., Vavolizza v Krieger, 33 NY2d 351; and Matter of Rubin v Board of Regents, 101 AD2d 970), respondents argue that the same effect should be given to the New Jersey consent order. The critical issue of petitioner’s knowledge and willfulness was raised in the New Jersey complaint, they maintain, and that issue was conclusively determined against him when he signed the consent order pleading guilty to all counts. We disagree.

Collateral estoppel is a doctrine based on general notions of fairness involving a practical inquiry into the realities of the litigation (see, Gilberg v Barbieri, 53 NY2d 285, 291, 292, supra); it should never be rigidly or mechanically applied (see, Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147, 153, supra; Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65, 73, supra). Allowing this administrative consent order to have preclusive effect would, in our view, give it an effect neither justified by its language nor the circumstances surrounding its signing, and one which would necessarily disregard the significant differences between the constitutional and other protections guaranteed to a person being prosecuted by the State for commission of a felony or other crime and the administrative procedures pertaining to the suspension or revocation of a professional license (cf., Vavolizza v Krieger, supra).

There is no question that petitioner signed the New Jersey consent order voluntarily and sent it to the State Board of Medical Examiners. His act in signing a negotiated guilty plea in his lawyer’s office, however, can hardly be said to have the significance of a guilty plea made in a formal court proceeding following a thorough allocution establishing that the defendant understands the rights he is waiving and that he has admitted each of the essential elements of the crime charged (see generally, People v Thomas, 68 NY2d 194, 198-199; People v Harris, 61 NY2d 9, 18-20; cf., Vavolizza v Krieger, supra, at 355-356). No such safeguards were afforded petitioner in the New Jersey proceeding. The consent order required no appearance by petitioner before the New Jersey Board of Medical Examiners and no formal admission or acknowledgement of his guilt or waiver of his rights (contrast, Vavolizza v Krieger, 33 NY2d 351, supra; Brennan v Mead, 81 AD2d 821, affd 54 NY2d 811).

Moreover, this is not a case like Vavolizza or Brennan where collateral estoppel was applied defensively to bar the convicted defendant from affirmatively asserting an inconsistent position as plaintiff in a subsequent civil action. Here, the Office of Professional Medical Conduct seeks to use the New Jersey consent order offensively as the sole basis for punishing petitioner in a separate proceeding commenced to revoke or suspend his license in New York despite the lack of any formal adjudication of petitioner’s guilt and notwithstanding a subsequent finding of the Pennsylvania Hearing Examiner, based on sworn testimony, that he was not guilty of any knowing or willful misconduct. While offensive use of collateral estoppel has been permitted (see, e.g., Koch v Consolidated Edison Co., 62 NY2d 548; Guarino v Mine Safety Appli ances Co., 31 AD2d 255, 259 affd on other grounds 25 NY2d 460; see generally, Parklane Hosiery Co. v Shore, 439 US 322), the fact that the doctrine is sought to be employed offensively by a nonparty to the prior litigation may, in some situations, raise legitimate concerns about the fairness of its application (see, Parklane Hosiery Co. v Shore, supra, at 329-332; 5 Weinstein-Korn-Miller, NY Civ Prac ¶ 5011.42).

Under the particular circumstances here, we conclude that the issue of petitioner’s guilt of knowing and willful misconduct cannot be said to have been actually litigated in the New Jersey proceeding or determined in the consent order and that, therefore, the necessary identicality of issue was not established (see, Schwartz v Public Adm’r of County of Bronx, supra, at 71). A contrary holding would contravene precedent (see, Kaufman v Lilly & Co., supra, at 456, 457) and the concept of fairness underlying the doctrine of collateral estoppel (see, Gilberg v Barbieri, supra, at 291; Rosenberg, Collateral Estoppel in New York, 44 St John’s L Rev 173-182; Carlisle, Getting a Full Bite of the Apple: When Should the Doctrine of Issue Preclusion Make an Administrative or Arbitral Determination Binding in a Court of Law?, 55 Fordham L Rev 63, 84-94, 99).

The judgment of the Appellate Division should be reversed, with costs, the petition granted, and the determination and order of respondents annulled.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa concur.

Judgment reversed, etc.

       The sanction imposed was a one-year suspension of petitioner’s license to practice medicine. The suspension was stayed, however, on condition that petitioner abide by the terms of probation.