Ordering a CPL Article 730 Competency Exam in New York: The Question Counsel Should Actually Ask

Stephan M. Carlson, MD, MBA, FAPA · Criminal Competency and Responsibility

Fitness to proceed is one of the few forensic questions a court can revisit at any point in a prosecution, and one of the easiest to get wrong by answering too much. A 730 exam asks only whether a defendant can engage with this case now—not whether the defendant is ill, and not what the defendant was thinking at the time of the offense. What the statute decides—and what it does not New York treats a defendant as an "incapacitated person" when, as a result of mental disease or defect, he lacks capacity to understand the proceedings against him or to assist in his own defense (CPL 730.10[1]). The disjunctive matters: a deficit in either understanding or assisting can support incapacity, so the

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