(dissenting). While we have no doubt that the crimes here are most egregious and the evidence of guilt in the record is overwhelming, neither the nature of the crimes nor the quantum of proof is at issue. The issue on appeal distills to whether County Court took sufficient steps to ensure that an incompetent person was not put on trial. Because we believe that County Court did not, we respectfully dissent.
“It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial” (Drope v Missouri, 420 US 162, 171). Although the determination as to whether to order a competency hearing is left to the discretion of the trial court, the court has an obligation to issue an order of examination when there is a reasonable ground for believing that defendant is an incapacitated person (see, People v Armlin, 37 NY2d 167, 171; People v Smyth, 3 NY2d 184, 187; People v Dover, 227 AD2d 804, 805, lv denied 88 NY2d 984; People v Simmons, 182 AD2d 1018, 1019; see also, CPL 730.10 [1]; 730.30 [1]); this obligation exists “whether or not counsel raised the issue” (People v Bangert, 22 NY2d 799, 800). While there is a presumption of competency (see, People v Gelikkaya, 84 NY2d 456, 459-460), the presumption is rebutted by evidence that defendant is not fit to proceed (see, id., at 460).
We have no quarrel with the majority’s assertion that a determination of fitness is a judicial, not a medical inquiry. However, we are not aware of a single reported case where a competency determination was made without the benefit of medical opinion and, in the few reported cases that have found competency in the face of uncontroverted medical evidence to the contrary, that determination was based upon the trial *594court’s “progressive personal observations” of the defendant (see, e.g., People v Gensler, 72 NY2d 239, 245). In this regard, it is important to note that, contrary to the majority’s assertion, there were no such progressive personal observations by County Court here, and it is this aspect of the case that we find most troublesome.
The record reveals that subsequent to defendant’s arraignment on March 20, 1995, County Court observed defendant on November 16, 1995 at the beginning of a Mapp-Huntley hearing. Defendant, through his defense counsel, had previously indicated his desire not to be present at such hearing. County Court had defendant brought into the courtroom and inquired whether his counsel had spoken with him regarding his “personal presence being dispensed with at this pre-trial hearing”, to which defendant responded, “I do not desire to be present. No further comments.” County Court then proceeded in defendant’s absence, and there is nothing to reflect any further “progressive personal observations” (People v Gensler, supra, at 245) until the commencement of trial on January 3,1996, when defendant again expressed his desire to be absent. At that time County Court asked defendant upwards of six questions, related to his understanding of the significance of waiving his right to be present during the proceedings. Beyond those questions, and the extremely terse answers in response thereto, County Court had no other personal contact with defendant throughout this trial.
Although County Court did indeed consult with defense counsel at the beginning of each day’s session as to whether defendant continued to desire to be tried in absentia, this cursory inquiry sheds no light on defendant’s mental capacity to proceed. And to the extent that the majority relies upon the failure of defense counsel to raise the issue of defendant’s fitness to proceed as affirmative evidence of fitness, we strongly disagree. In our view, neither defense counsel’s “repeated and unequivocal assurances to County Court that * * * defendant was ready to proceed” nor counsel’s failure to raise the issue of fitness to proceed may serve to obviate the need for a sua sponte inquiry by the court (see, People v Bangert, 22 NY2d 799, 800, supra). If counsel’s representations or silence could be construed as conclusive evidence of competency, the court’s obligation to inquire would be rendered meaningless.
With respect to the majority’s statement that County Court had before it evidence that defendant exhibited no behavior at the jail between March 20, 1995 and January 4, 1996 which may have called into question his fitness to proceed, we find no *595such evidence in the record as of the time County Court determined that an inquiry was not necessary. What the record does reflect is that on January 5, 1996, the prosecutor advised the court that “a review of the jail records * * * would not in any way contradict the fact that [defendant] appeared at all times fit to proceed as of yesterday”. As noted previously, however, the prosecutor’s representations cannot serve as a substitute for County Court’s duty to exercise its discretion in determining competency (see, People v Morgan, 87 NY2d 878, 880). Simply stated, this is not a case where the trial court was justified in reaching a competency determination based upon its observations of the defendant actively participating in the case, including a continuing flow of oral communications with the defendant’s attorney and the personal interaction between the trial court and the defendant throughout the course of the trial (compare, People v Morgan, supra, at 880). At the time County Court was informed of Lawrence Siegel’s psychiatric report, the court’s contacts with defendant had been minimal.
Next, with respect to the Siegel report, it is the emphasis put upon such report by the majority that represents the crux of the problem. Ignoring Siegel’s opinion that, with a reasonable degree of psychiatric certainty defendant was not fit to proceed to trial due to acute psychosis, the majority focuses upon that portion of the report which observes that defendant possessed “more than a rudimentary understanding of the process of trial and the roles of the Judge, jury, prosecutor and defense attorney” and concludes that defendant was capable of forming a relationship with his attorney and appeared to have done so.* It is significant that the reports of the two doctors who conducted GPL 730.20 examinations of defendant after his arrest in 1994 also observed that defendant had a full understanding of the proceedings, the role of the Trial Judge, the District Attorney and his own attorney. Nevertheless, like Siegel, they were of the opinion that defendant’s understanding was tainted by his delusional system and, therefore, lacked the capacity to understand the proceedings and to assist in his defense. Based upon those reports, the same Judge initially found defendant to be incapacitated. As a review of those *596reports and Siegel’s report produces a near mirror image with regard to findings and opinion, it is curious that when, confronted with Siegel’s report, County Court did not feel the heed to hold a competency hearing.
In short, what County Court had before it in January 1996 was psychiatric evidence that by January 1995 defendant suffered from a psychotic delusional disorder which rendered him unfit to stand trial and that two months later, in March 1995, apparently after extensive psychiatric treatment, defendant was certified by the psychiatrists at Mid-Hudson Psychiatric Center as being fit to proceed based upon defendant’s awareness. and appreciation that his thought process was delusional. Then, 10 months thereafter, apparently without the benefit of additional psychiatric treatment, medical evidence surfaced in the form of Siegel’s report that defendant again was suffering from a psychotic delusional disorder which rendered him unfit to proceed. Given that sequence of events, County Court surely should have surmised that defendant’s mental state may have deteriorated during that 10-month period and should have held a hearing sua sponte, regardless of whether defense counsel raised the issue. Siegel’s report, which represented the most current and updated psychiatric observations and evaluation of defendant, together with defendant’s extensive psychiatric history, provided reasonable grounds for doubting defendant’s competency (see, People v Armlin, 37 NY2d 167, supra).
In view of the foregoing, we would withhold determination of this appeal and remit the matter to County Court for a reconstruction hearing, at which the People would have the burden of proving that defendant was competent at the time of the trial and sentencing (see, People v Wright, 105 AD2d 1088).
Crew III, J. P., concurs. Ordered that the judgment is affirmed.
The majority fails to note that the report continues, with regard to defendant’s understanding of the trial process, that “this understanding is tainted by his conviction that there are external governmental forces influencing these persons through waves”. Notably, with regard to defendant’s relationship with his defense counsel, the report continues: “While he is capable of forming a relationship with his attorney (and appears to have formed one), his delusional system is such that there cannot be a joint understanding of the meaning of the trial currently going on.”