(dissenting). A defendant does not have an absolute right to a psychiatric examination (CPL 730.30, subd. 1) nor did such a right exist under the predecessor provision of the Code of Criminal Procedure (United States ex rel. Donaldson v. Henderson, 346 F. Supp. 749). It is within the trial court’s discretion whether or not to order an examination of a defendant (People v. Falu, 37 A D 2d 1025). Once, however, the provisions of CPL article 730 are invoked by the trial court at its own instance or by the grant of a motion of a defendant, it is incumbent upon the court to carefully adhere to the statutory provisions. CPL 730.20 (subd. 1) requires that the appropriate director to whom a criminal court issues an order of examination “ must designate two qualified psychiatrists, of whom he may be one, to examine the defendant to determine if he is an incapacitated person, except that if the director is of the opinion that the defendant may be mentally defective, he may designate one qualified psychiatrist and one certified psychologist to examine the defendant” (emphasis added). This provision is very clear, as is the entirety of article 730, and nowhere therein is there an exception to the requirement that there be two examiners. Having in this case formed an opinion that defendant may be an incapacitated person, the court ordered that he be taken to Utica State Hospital to be examined by two qualified psychiatrists designated by the superintendent of the facility. In fact, there was only one examination which took place at the Fulton County Mental Health Clinic by a psychiatrist. To proceed with the criminal prosecution on this single psychiatric examination was a violation of CPL 730.20 (subd. 1) as well as the court’s own order. (A defendant who was directed to be examined by two psychiatrists but who was in fact subjected to a single examination refused to answer questions of the *784examiner. He was adjudged in contempt of court but, in an article 78 proceeding, was successful in vacating the contempt order and was awarded a judgment prohibiting and restraining the Erie County Court and the District Attorney from compelling him to answer questions propounded to him by a single psychiatrist [Matter of Lee v. County Ct. of Erie County, 32 A D 2d 885, 33 A D 2d 1093, mod. 27 N Y 2d 432].) In addition to the violation of the statute, although not controlling or decisive, are the facts of this case which were before the court at the time a trial date was fixed. Defendant told the psychiatrist that when he learned that his brother was killed in Viet Nam, he joined the military service to retaliate his death. While in Viet Nam, he earned four separate Purple Hearts and in his service medical records were medical opinions that he was a chronic undifferentiated schizophrenic and suffered an acute psychotic reaction with delusions of grandeur. After discharge from the Army, apparently just a short time before he was charged with the crimes, he was being treated at the Veterans’ Hospital as a psychiatric outpatient. One of the police officers who made the arrest and who was a longtime acquaintance of defendant and his parents, "testified at the Huntley hearing that defendant needed psychiatric help and that it was his impression that he was long overdue to be institutionalized. These facts came to the attention of the court after it had reached the conclusion that defendant may be incapacitated. To permit this judgment of conviction to stand, we are directly disregarding a mandate of the legislative branch and indirectly passing upon the competency of the defendant. A strong argument is made that, since defendant made no objection at the trial, took no other affirmative action regarding the noncompliance with the court’s order and ultimately pleaded guilty, he waived his right to raise the issue on appeal. It is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently waive his right to have a court determine his capacity to stand trial (People v. Hudson, 19 N Y 2d 137; People v. Clancy, 39 A D 2d 538, 539; People v. Mullooly, 37 A D 2d 6, 9; cf. cases not involving alleged incompetence, People v. Rogers, 15 N Y 2d 690; People v. Nicholson, 11 N Y 2d 1067; People v. Schiskey, 39 A D 2d 608). Failure to afford a defendant the statutory protection available in this regard constituted a violation of his constitutional right to a fair trial (Pate v. Robinson, 383 U. S. 375, 385). Accordingly, determination of this appeal should be withheld, and the matter remanded to the County Court of Fulton County for a hearing in accordance with People v. Hudson (supra).