People v. Robinson , 74 A.D.2d 756 ( 1980 )

Application by assigned counsel to withdraw on the ground that the appeal is wholly frivolous granted to the extent of assigning alternate counsel. Time to perfect appeal enlarged to the September 1980 Term of this court. An examination of the record indicates the existence of at least one nonfrivolous issue. Three psychiatrists testified at defendant’s competency hearing, two of them that defendant was not competent to assist in his own defense and the third that he could not draw a conclusion because of defendant’s failure to co-operate, but recommending a postponement because "there are serious questions that must be raised as to whether he should be brought to trial at this time on the basis of the symptoms which I noted during these contacts”. A fourth psychiatrist submitted a letter to the court stating that defendant was competent to proceed. The People’s position after the conclusion of the hearing was that the defendant was not competent to proceed. The court asked defendant’s new assigned counsel whether the defendant could co-operate in his defense and counsel replied that he was not a psychiatrist but, "I can talk to Mr. Robinson. I can consult with Mr. Robinson. I don’t think I can say anything more than that to the Court.” The court ruled that the only issue at that point was whether the defendant could work with his lawyer and that he was competent. It would appear to this court that in view of the testimony at the hearing and the People’s position that defendant was not competent, the issue of competency as determined by the trial court is not frivolous. Concur — Murphy, P. J., Sandler and Carro, JJ.